NSW Electoral Commissioner v Kempsey Shire Council (No 3)

The case of NSW Electoral Commissioner v Kempsey Shire Council (No 3) involved the NSW Electoral Commissioner and Kempsey Shire Council, where the dispute centred on the validity of local government elections. The case was heard in the Supreme Court of New South Wales. The Commissioner challenged the validity of the local government elections held in Kempsey Shire, asserting that they were conducted improperly and were therefore void. This challenge extended to the timing of any declaration of the elections being void and the associated costs of such a declaration.

The legal issues before the court were primarily focused on the procedural correctness of the elections and the appropriate timing for declaring them void. Additionally, the court had to consider the principles governing the allocation of costs in such electoral disputes, particularly in cases where the challenge is successful and the elections are declared void.

The court determined that the elections were indeed conducted improperly and were therefore void. In terms of timing, the court held that the declaration of the elections being void should be made as soon as the improper conduct is discovered or reasonably ought to have been discovered. This ruling was based on the need to maintain the integrity of the electoral process and to prevent undue delay in addressing electoral irregularities. Regarding costs, the court found that the costs of the declaration should be borne by the party responsible for the improper conduct, which in this case was Kempsey Shire Council.

In conclusion, the court declared the local government elections in Kempsey Shire to be void and ordered that the council bear the costs associated with the declaration. This decision underscores the importance of procedural integrity in electoral processes and the need for timely action to rectify any identified irregularities.