Pascale v Lucas (GD)

[2000] NSWADTAP 29

Appeal Panel

CITATION:	Pascale -v- Lucas (GD) [2000] NSWADTAP 29
PARTIES:	APPELLANT Antonio Pascale RESPONDENT Gary John Lucas
FILE NUMBER:	009012
HEARING DATES:
SUBMISSIONS CLOSED:	08/01/2000
DATE OF DECISION:	12/21/2000
DECISION UNDER APPEAL:	Suitors' Fund Act 1951 application
BEFORE:	O'Connor K - DCJ (President); Robinson MA - Judicial Member; Mapperson K - Member
CATCHWORDS:	jurisdiction
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993283
DATE OF DECISION UNDER APPEAL:	12/21/2000
LEGISLATION CITED:	Suitors' Fund Act 1951
CASES CITED:	Lucas v Pascale [2000] NSWADT 23 Qidwai v Brown [1984] 1 NSWLR 100 Kingsford v Kavanagh, unreported, Court of Appeal, 21 November 1994 R v Pack, unreported, Court of Appeal, 14 October 1999
REPRESENTATION:	APPELLANT P Huntington, barrister RESPONDENT B Levet, barrister
ORDERS:	Recommendation for payment from Fund pursuant to s 6C of Act.

1 The matter giving rise to an appeal to the Appeal Panel commenced as an application under section 329 of the Local Government Act 1993 (the Act) in the General Division of the Tribunal. The applicant below, Gary John Lucas, sought dismissal from civic office of Councillor Antonio Pascale of the Liverpool City Council. The applicant was a defeated candidate for election to the Council in the ballot held on 11 September 1999, for which the poll was declared by the returning officer on 22 September 1999. The basis upon which the applicant objected to the respondent’s election related to an irregularity in the address given by Pascale at the time of his nomination. The applicant alleged that Pascale had given an address inside the municipality when in fact he resided elsewhere, at Taren Point.

2 The application was lodged with the Tribunal on 20 December 1999. Directions were given to the parties by Deputy President Hennessy on 2 February 2000. ‘Preliminary’ issues were raised. It was agreed that these issues be disposed on the papers, without a hearing, after exchange and filing of written submissions.

3 The respondent had sought immediate dismissal of the application for review on the ground that the proceeding was commenced after expiry of the period of 3 months permitted by s 329(2) of the Act. It was agreed that this question turn on what date was the one on which Pascale was ‘elected.’ Pascale contended that it was 11 September 1999 (the date of the ballot), while the applicant contended that it was 22 September 1999 (the date of the declaration of the poll). There was another ‘preliminary’ issue: whether the Electoral Commissioner should be joined in the proceedings, and the prior question of whether the Tribunal had power to do that.

4 A decision was delivered by Deputy President Hennessy, with written reasons, on 13 March 2000: Lucas v Pascale [2000] NSWADT 23. The orders made were that the application was not out of time; and that the Electoral Commissioner not be joined as a party.

5 On 7 April 2000 the respondent, Mr Pascale, lodged an appeal against this decision. Directions were given and an Appeal Panel constituted.…