La France v Clarence

CITATION:	La France v Clarence [2004] NSWADT 256
DIVISION:	General Division
PARTIES:	APPLICANT Jacqueline La France RESPONDENT John Clarence
FILE NUMBER:	043158
HEARING DATES:	30/08/2004
SUBMISSIONS CLOSED:	08/30/2004
DATE OF DECISION:	11/09/2004
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Antonios Z - Non Judicial Member
APPLICATION:	Costs - Dismissal from civic office
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Local Government Act 1993
CASES CITED:	Bourne v Murphy (1996) 92 LGERA 329 (Court of Appeal) Brooks Maher v Cheung (2001) NSWADT 18 Jeffery & ors v Roberts (2002) NSWADT 57 Joliffe v Commissioenr of Police, NSW Police (No 2) (2004) NSWADT 108 Roberts v Jeffery & ors (2003) NSWSC 162
REPRESENTATION:	APPLICANT In person RESPONDENT T Howard, barrister
ORDERS:	The applicant to pay the respondent's costs of the proceedings, as agreed or as assessed pursuant to Division 6 of Part 11 of the Legal Profession Act 1987.

1 The principal application in these proceedings is an application for dismissal of an elected councillor from civic office. That application was dismissed at the conclusion of the hearing on 30 August 2004. The Tribunal gave oral reasons at the time, and indicated it would provide fuller written reasons. After dismissing the application, the respondent applied for costs. The Tribunal reserved its decision on that application.

2 This set of reasons comprises the (slightly revised) text of the Tribunal’s oral reasons for dismissal. They are published for the value they have in their own right; and because they bear significantly on the decision to be made in relation to the respondent’s application for costs.

Reasons for Dismissal of Principal Application

3 PRESIDENT: The applicant is Ms La France who is a resident of the Cessnock Council area, and she has brought an application under s 329 of the Local Government Act 1993 in respect of the election to civic office, namely to the Council, of a Mr John Clarence at the last elections which were held in March 2004.

4 Section 329 provides:

‘(1) Any person may apply to the Administrative Decisions Tribunal for an order that a person be dismissed from civic office.

(2) On any such application, the Tribunal may order the dismissal of a person from civic office:

(a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, …’

and then there is another alternative which is not relevant to these proceedings.
5 The application must be commenced within three months of the election (see s 329(3)), and this application was filed on 24 May 2004, which was approximately two months after the election.

6 The applicant’s case relates to the content of an advertisement which formed a part of the campaign strategy of Mr Clarence (a Labor candidate), and the advertisement according to her, a matter that was not disputed, was published on at least three occasions in a local newspaper.

7 It included…