La France v Clarence

[2004] NSWADT 256

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 a number of statements as to what the Labor team was committed to, and had a closing statement which said:

‘A recent Federal Government survey has revealed Cessnock is the second best economic performer, and the second fastest growing city in Australia.’
8 It is to that statement that the applicant takes objection. She contends that it is a matter of the kind to which s 329 of the Local Government Act is addressed, and it amounts to an irregularity in the manner in which the person has been elected because she says it is an incorrect statement. She has used various words to describe the statement.

9 The position of Mr Clarence is, one, he does not acknowledge that it is incorrect or untrue, but even if that were to be considered to be the case it still could not on the law as it stands amount to an irregularity of the kind to which s 329(2)(a) is addressed.

10 So, much of the discussion today has centred on this question of whether if the applicant is correct, and if this statement were false, misleading, or untrue, would a statement of that kind, i.e. a false, misleading or untrue statement about whether Cessnock is the second best economic performer, et cetera, constitute an irregularity in the manner in which the person has been elected.

11 The obligation of the Tribunal is first to ascertain the law that is applicable to the facts that have been brought forward, and then to state that law correctly and apply it to the facts before it. We cannot, lightly at least, embark on the exercise which Ms La France recommended - which was really to ignore the precedents that go to this question and in a sense create a new precedent on the matter, a new precedent which no doubt Ms La France, and those who make similar cases, would then argue ought to be followed and treated as binding.

12 The position that this Tribunal must adopt, in keeping with the need for the law itself to be a respected element of the life of the community, is one where we adhere to authoritative statements of principle that bear on the matters that are before us.

13 In this instance the cases of most significance obviously are the cases in New South Wales which have interpreted s 329(2)(a) in particular, the word irregularity, and the two cases were much discussed today, Bourne v Murphy (1996) 92 LGERA 329 (Court of Appeal) and Roberts v Jeffery & ors [2003] NSWSC 162 (Bell J). In the latter case the Court affirmed the decision of this Tribunal, as to which see: Jeffery & ors v Roberts [2002] NSWADT 57 (an order had been made dismissing a person from civic office).

14 The decision in Roberts v Jeffery is a decision of only a little over a year ago in the New South Wales Supreme Court, and it would be a radical departure from the normal practice of Tribunals if we were to simply ignore the statements of law that are found in that decision, which is a contemporary decision on the interpretation of this legislation.

15 What is clear from the way the courts approach the term ‘irregularity’ is that it is seen as involving - and I am just using general language at this stage - some kind of conduct which is unlawful or improper in a way that affects the processes connected with the actual conduct of the election.

16 Typical examples of such irregularities that you will see in the law on disputed returns both in the present area, local government elections, as well as in other areas such as State and Federal government election disputes, are: miscounts of votes; the setting aside of votes wrongly (that appears to have been the issue in Bourne’s case); the format and contents of the ballot paper; the content of posters at polling booths; and distribution of false or misleading how to vote cards. These are the sorts of things that have been seen as irregularities.

17 The second element to the meaning of irregularity is one that is not visible, we accept, to the ordinary applicant who might be the ordinary voter. That is that the courts have really built either into the concept of irregularity, or into their exercise of discretion, a second idea, being that the irregularity needs to be of a serious kind.

18 The way in which the Courts have expressed that idea is that it is an irregularity which might have rendered the outcome of the election uncertain.

19 So there could be a relatively minor irregularity in terms of the conduct of an election which would be seen as serious in the way I have described because there might have only been a one or two vote difference in the outcome.

20 On the other hand you might have a relatively significant irregularity viewed apart from the outcome, yet the outcome may be so clear cut that on no reasonable view could that serious irregularity have been said to have affected the outcome of the election. The assessment of seriousness is more related to the effect on the outcome than the nature of the irregularity itself.

21 Now what we have in this case, if you go to the question only of the outcome, I think on any reasonable view, and we have taken account of what you have said, Ms La France, is that the advertising statement had no effect that might have rendered the outcome uncertain. The poll figures do not carry any suggestion that the conduct to which you refer could have had any effect on the outcome of the election which might have rendered the election uncertain.

22 But having said that, the primary submission of Mr Howard (for Mr Clarence) is not the one to which I have just referred. His primary submission is that the conduct put in issue, if it does amount to a statement which could reasonably be said to be false, misleading, untrue or incorrect, is still not an irregularity within the meaning of the law. This type of conduct is a matter that the law simply does not choose to address under the heading of ‘irregularity’.

23 In our view, based on the precedents, that submission is correct. This is not conduct of the kind to which the regulation of elections as reflected in the Local Government Act is directed.

24 In Roberts v Jeffery the Supreme Court (Bell J) reviewed the relevant case-law and found that the Tribunal had not erred in its understanding and application of the relevant principles. The irregularities found proven by the Tribunal were these. The candidate had placed an electoral advertisement in the local newspaper which at its foot bore the endorsement of a person of standing and reputation in the local community, the current deputy mayor. That person had not authorised the advertisement. The candidate had also displayed an election poster on various dates bearing the logo of the National Party of Australia. On some occasions the offending content had been deliberately masked. But unmasked versions of the poster had been displayed at the pre-polling place for the election (the Council offices) and on election day at one of the polling booths. The Party had not endorsed the candidate. The election was decided by the narrow margin of 177 votes in an election where just under 17,000 formal votes had been cast and where the final outcome was determined by preferences.

25 The matter giving rise to the present complaint is one that is drawn from the ordinary conduct of an election campaign. It has no connection of the kind that you can establish from the other cases with the process of conducting an election. The concept of ‘process’ embraces a range of possibilities, from breaches of rules governing the display and distribution of election material, the content of that material, whether or not a candidate has been endorsed by a political party or group and the conduct of the ballot and the vote count. In Roberts case, for example, the candidate had presented himself in a manner which might have led voters to believe that he had the endorsement of the National Party and of a prominent local citizen. This is clearly not a case of those kinds. The conduct put in issue does not, in our view, fall within the meaning of the expression, ‘any irregularity in the manner in which the person has been elected or appointed to that office’.

26 On the other hand we acknowledge the concern that the application reflects which I guess might be generally described as a concern to do with truth in political advertising. It is a topic obviously that has received a lot of public and media attention in recent years. I think it has led to some changes in the law in some jurisdictions. [See for example the law in South Australia, Electoral Act 1985, s 113:

‘ Misleading advertising

113. (1) This section applies to advertisement published by any means (including radio or television).

(2) A person who authorises, causes or permits the publication of an electoral advertisement (an "advertiser") is guilty of an offence if the advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent.

Maximum penalty:

If the offender is a natural person--$1,250;

If the offender is a body corporate--$10,000.

(3) However, it is a defence to a charge of an offence against subsection (2) to establish that the defendant--

(a) took no part in determining the content of the advertisement; and

(b) could not reasonably be expected to have known that the statement to which the charge relates was inaccurate and misleading.

(4) If the Electoral Commissioner is satisfied that an electoral advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent, the Electoral Commissioner may request the advertiser to do one or more of the following:
(a) withdraw the advertisement from further publication;

(b) publish a retraction in specified terms and a specified manner and form,

(and in proceedings for an offence against subsection (2) arising from the advertisement, the advertiser's response to a request under this subsection will be taken into account in assessing any penalty to which the advertiser may be liable).

(5) If the Supreme Court is satisfied beyond reasonable doubt on application by the Electoral Commissioner that an electoral advertisement contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent, the Court may order the advertiser to do one or more of the following:

(a) withdraw the advertisement from further publication;

(b) publish a retraction in specified terms and a specified manner and form.’]

27 But the principles that the courts and tribunals such as ours are called upon to apply in respect of disputed local government elections in New South Wales are confined by the words that appear in s 329(2)(a). Moreover, there may very well be very good broader constitutional reasons, of the kind to which Mr Howard has alluded, for not having courts and tribunals involved in the wider dynamic of political campaigns and the statements that flow back and forth between the parties and the candidates about the matters in issue.

28 Having said that I acknowledge that the applicant’s position, as she has expressed it, is that she is concerned with errors of fact not matters of opinion. But again assertions of fact are themselves issues that are part of that wider debate on truth in political advertising which we are not here today to deal with.

29 The application is dismissed.

Respondent’s Application for Costs

30 The Tribunal’s power to award costs is provided by s 329(6) of the Local Government Act which provides:

‘(6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.’
31 Section 88 of the Administrative Decisions Tribunal Act 1997 provides:
‘ 88 Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.’

32 Mr Howard handed up written submissions in support of the application for costs. He submitted that when one has regard to s 88 of the Act this is a proper application of the special circumstances principle, i.e. that there are matters here which take this application ‘out of the realm of the ordinary’.

33 As to the criteria relevant to the exercise of the costs discretion, Mr Howard drew attention to the Tribunal’s decision in another s 329 case, Brooks Maher v Cheung [2001] NSWADT 18. The Tribunal said at [14]:

‘14 We are satisfied that the plain meaning of “special circumstances” is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But “special circumstances” alone are not sufficient. Under s 88(1), the special circumstances must “warrant an award of costs.” The circumstances which would or would not “warrant an award of costs” cannot be exhaustively listed. However where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted.’
34 He also drew our attention to a recent comprehensive review of the Tribunal’s approach in Joliffe v Commissioner of Police, NSW Police (No 2) [2004] NSWADT 108.

35 The mere fact that the applicant has failed in her application does not take the matter out of the realm of the ordinary. There must be more.

36 As to whether additional factors existed here justifying an award of costs, Mr Howard began by referring to a letter from the respondent’s solicitor addressed to the applicant dated 11 June 2004 which was expressed to be without prejudice (except as to costs). The letter foreshadowed the respondent’s case. It put the applicant on notice of the respondent’s view that her application was misconceived and had no proper basis in fact or law. Mr Howard noted that the letter invited her to discontinue her application as it was misconceived, and if she did not, that an order for costs would be applied for. He noted that the applicant replied by letter dated 18 June. She acknowledged receipt of the information provided and indicated that she had had at that stage insufficient time to make an informed decision on the matter. By the same letter she indicated that she would ask for a deferral of the hearing to allow time to seek further counsel.

37 He noted that his solicitor had advised that at a subsequent directions hearing the applicant indicated that what was meant by seeking further counsel was not necessarily the obtaining of legal advice, but referred to counsel in the broader sense.

38 Mr Howard noted that his solicitor wrote again on 6 July 2004 repeating the warning that the respondent would pursue an application for costs.

39 Mr Howard acknowledged that communications of this kind would rarely, if ever, be enough to meet the requirement of ‘special circumstances’.

40 His more fundamental submission was that this warning must be read in conjunction with the fact, as he sees it, that this application was frivolous, misconceived and, arguably, vexatious.

41 Mr Howard acknowledged that the Local Government Act permits ‘any person’ to bring proceedings on s 329. It is accepted that Ms La France had standing to bring the application.

42 Mr Howard submitted that Ms La France’s direct involvement in the election was a matter to be taken into account. He noted that she was involved in the Cessnock Council elections as a candidate in another Ward. She was actively involved in the political debate in the local community of Cessnock, and he referred to her contribution of cartoons in a local paper The Independent.

43 As we understood these submissions, Mr Howard was seeking to make the point that Ms La France was a ‘player’ in the game of politics. When put on notice that her case lacked substance, she should have taken steps to inform herself, and should have acted responsibly in that way. Mr Howard sought to contrast her situation, as we understood his submissions, with that of an application brought by an ordinary citizen. That person might have had no active involvement in the campaign but was disturbed for reasons purely of conscience by some statement made by a candidate, and reached the stage of a Tribunal hearing without being warned about the state of the law, and the likely outcome.

44 Mr Howard referred to Ms La France’s self-represented status. He felt that no special concession should be made for that circumstance in a case like this where the application was so weak. He noted that Ms La France had produced no independent evidence in support of her case apart from what he described as the ‘self-serving assertions’ of her husband.

45 Mr Howard drew the Tribunal’s attention to the material that he suggested showed that Ms La France was pursuing this application not as a high-minded citizen concerned with issues of probity but in order to denigrate a political opponent so as to advance her political interests. He referred to the cartoons and her other public writings both before and after the election. She had used the expression ‘Porkies’ in connection with Mr Clarence. Mr Howard emphasised the contents of The Independent dated 15 June 2004 and the column, “Around the town with Mac”, which Mr Howard described as an editorial of sorts. He noted the third paragraph: “Anyway the news for you guys is the beloved mayor is due to appear before a Tribunal accused of telling porkies in his advertising promotion which appeared in one of our rival papers.” He noted that about three paragraphs further down, appeared the statement “Hope you like our cartoon”. The cartoon was drawn by the applicant.

46 He submitted to the Tribunal that this material raises the possibility that the applicant had resolved to pursue her claim regardless of its legal merit. She was engaged in an abuse of process; or at least, in a mischievous application for political ends.

47 Mr Howard added that it was a very serious matter to bring an elected councillor before the Tribunal especially when the person whose election is sought to be impugned received almost 50 per cent of the primary vote and who has been elected Mayor.

Respondent’s Submissions in Reply

48 The applicant denied that she was involved in any mischievous campaign against the respondent. She submitted that the respondent had been selective in drawing on aspects of the political campaign before and after the election; and that if any view was formed about her objectives it should involve an examination of all that material that was published on all sides.

49 She described herself as ‘a nominal candidate in the election’. She explained that she appeared on the ballot paper in a Ward to assist her husband to get elected. She understood that this would assist him because of the way the count was conducted (a quota system involving allocation of preferences shown in exhausted votes).

50 She referred to her attempts to obtain legal assistance but the lawyers all had reasons (she said unconnected with the strength or otherwise of her claim) that made it impossible for them to appear on her behalf. She emphasised that she had brought the case because she felt misled by what Mr Clarence had to say in his advertising.

51 In reply to the criticism that she had not replied to the respondent’s solicitors’ communications, she said that she had felt intimidated by the short time frames given to her to respond to the demands to drop her case.

52 The President asked Ms La France whether she saw it as relevant to the exercise of costs discretion that cases of this kind where the respondent to the proceedings is an ordinary member of the community, albeit one holding a public office. The President noted that in many of the proceedings in the Tribunal the respondent is a government agency or a business. Parliament may have had in mind that organisations of this kind, because of their size, might have some capacity to carry the costs of applications brought against them; and may also have been influenced by the view that there was a public interest to be served in not unduly inhibiting (through a strict costs-follow-the-event rule) applications in jurisdictions such as review of administrative decisions and equal opportunity. Here the case was one of private individual against private individual, with the respondent facing the need to meet the costs of defending the application from his personal means, as the matters alleged are unconnected with the office of councillor.

53 Ms La France said in reply that she considered that the matter need not ever have reached the Tribunal had Mr Clarence responded directly to her and given a retraction. As we understood the point, she saw Mr Clarence’s choice in engaging lawyers as having obstructed the possibility of resolving the case amicably. She also referred to her and her husband’s economic circumstances, and that their income consisted of pensions and some superannuation.

Respondent’s Further Submissions

54 Mr Howard submitted that it was not reasonable for Ms La France to expect Mr Clarence to provide her with some kind of concession (such as a retraction of the statement) in circumstances where an application was baseless. The point of s 329 is to regulate conduct that might have affected the outcome of the election.

55 This is in our view clearly a case out of the ordinary to an extent sufficient to warrant the making of an order that the applicant pay the respondent’s costs of the proceedings.

56 While we acknowledge that there are many who would like to see stronger laws on truth in political advertising, and Ms La France counts herself among them, this application was without foundation under the laws of New South Wales. Ms La France presented as a person with a sophisticated interest in community affairs. She would, in our view, have well appreciated that to launch an application against an elected councillor to strip him of his office is a very serious matter. The application needed to be supported at some stage after filing and before hearing by grounds that fell, at least arguably, within the principles that govern this area. This did not occur.

57 There are several rulings of the Tribunal, readily available, that might have furnished guidance to Ms La France, as well as the recent decision of the Supreme Court in Roberts v Jeffery to which we referred in our oral reasons dismissing the application. These decisions are, we consider, readily able to be understood by persons with a familiarity with the nature of the electoral process.

58 We have set out at some length Mr Howard’s wider submissions that another factor to be taken into account is the nature of the applicant’s involvement in the community debate in Cessnock. Her involvement is, we acknowledge, a reasonably high-profile one. Such an involvement ought normally not be the subject of any negative comment. It is in the community’s interest and in the proper functioning of local democracy that people involve themselves in this way in community affairs. Hyperbole, passion, maladroit criticisms, satire, hurtful cartoons and vigorous denunciation all form part of the give and take of politics, especially local politics.

59 The Tribunal should not lightly give weight to the kind of case made by Mr Howard, as to do so might operate as something of a constraint on the activities mentioned. Proceedings of the present kind will often be driven by strong emotions and will, we suspect, almost invariably be brought by political opponents of the incumbent councillor.

60 Nonetheless we do consider that account should be taken of the submissions made by Mr Howard in relation to this case. The material in The Independent points towards the likelihood that as at mid-June Ms La France was set on pursuing these proceedings and inflicting public harm on the respondent. It provides an explanation for her failure to consider the weaknesses of her case or to produce any evidence relevant to the legal principles. Her explanations to the Tribunal for her failure to respond substantively to the communications from Mr Clarence’s solicitors referred to the shortness of the time they had given her to respond. There was nothing to stop her asking for some more time. We are not satisfied that she ever seriously reconsidered her decision to sue.

61 In exercising the discretion as to costs, we also think that some greater flexibility must be shown in this category of case in responding to costs applications, as compared to the usual cases heard in the General Division (applications for review of administrative decisions made by State government agencies). Section 329 applications are of a unique kind. While clearly there is an important public interest in ensuring the integrity and regularity of elections, on the other hand a person apparently regularly elected may be put to substantial personal expense in money and time in defending an application. If the application is one that has no foundation, and at no point reached the level of being reasonably arguable, then this is a strong factor favouring the making of a costs award. That was the case here.

62 In this regard it is well known that members of Councils do not receive significant payments for their services (as it happens the present respondent is also the Mayor and may, therefore, have access to a better allowance than the ordinary Councillor). Members of Councils are forced to draw on their own financial resources to meet applications of this kind, unless those that endorsed them are prepared to reimburse the cost. They may not have the marginal benefit that commercial respondents enjoy of being able to claim legal costs as a business expenditure. In these circumstances, they should not be put at the risk of an application that is not even arguable.

63 These factors all in our view support an award of costs.

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 .