PENN and TEEDE

Case [2022] WASAT 31 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

CITATION: PENN and TEEDE [2022] WASAT 31

MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT

HEARD:   16 MARCH 2022

DELIVERED          :   21 APRIL 2022

FILE NO/S:   DR 233 of 2021

BETWEEN:   STEPHANIE JANE PENN

Applicant

AND

GLENDA TEEDE

Respondent


Catchwords:

Local Government ­ Elections ­ Qualification of candidates ­ Whether applicant is an elector of the district ­ Whether enrolment on electoral roll sufficient to qualify as elector of the district ­ Whether applicant is 'resident'

Legislation:

Commonwealth Electoral Act 1918 (Cth)
Electoral Act 1907 (WA), s 5F(1)(b), s 17, s 17(1), s 17(2), s 17(3), s 25, s 45, s 48, s 51AA
Guardianship and Administration Act 1990 (WA), s 111
Local Government Act 1993 (NSW), s 266, s 269
Local Government Act 1995 (WA), s 1.4, s 2.19, s 2.19(1)(b), s 2.27, s 2.27(1), s 2.27(3), s 2.27(6), s 2.29, s 2.30, s 4.1, s 4.29, s 4.29(1), s 4.29(2), s 4.30, s 4.31, s 4.32, s 4.37, s 4.38, s 4.40, s 4.48
Parliamentary Electorates and Elections Act 1912 (NSW)

Result:

The Tribunal declares that the applicant is not disqualified to be a member of the council of the Shire.

Category:    A

Representation:

Counsel:

Applicant : Mr D J Pratt
Respondent : Mr B Tomasi

Solicitors:

Applicant : Avon Legal
Respondent : Civic Legal

Case(s) referred to in decision(s):

Abbey Beach Resort Management Ltd v Water Corporation Ltd [2007] WASC 268

Addy v Commissioner of Taxation [2021] HCA 34; (2021) 394 ALR 214

Burnett Shire Council v Galley [2000] QSC 490; (2000) 112 LGERA 93

City of Swan v West Australian Shalom Group Incorporated [2017] WASC 217

Duffy v Da Rin [2014] NSWCA 270; (2014) 87 NSWLR 495

Federal Commissioner of Taxation v Addy [2020] FCAFC 135; (2020) 280 FCR 46

Fix WA Pty Ltd v City of Armadale [2019] WASC356; (2019) 241 LGERA 299

Hafza v Director­General of Social Security (1985) 6 FCR 444

Laufer v Gear [2021] WASCA 2

Levene v Inland Revenue Commissioners [1928] AC 217

Molluso v Le [2018] NSWCATOD 158

Norman v Norman (No 3) (1969) 16 FLR 231

Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368

REASONS FOR DECISION OF THE TRIBUNAL:

  1. Between 2013 and April 2021 Ms Stephanie Penn (applicant) resided at a property in Bolgart (Bolgart Property), which is located within the district of the Shire of Victoria Plains (Shire).

  2. Since April 2021, for various family reasons including the threat of violence, she has not stayed at the Bolgart Property save for a couple of nights in February this year.  Indeed, since July 2021 she has not stayed in the Shire at all save for a couple of nights.  Rather, since that time she has divided her time between Kalgoorlie and Jane Brook where various members of her family and in­laws reside.

  3. Since 2013 the applicant has also been a member of the council…

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PENN and TEEDE [2022] WASAT 31
Case
[2022] WASAT 31 (S)
Decision Date

CaseChat Overview and Summary

The case of Penn and Teede involved a dispute over the eligibility of an applicant to stand as a candidate in local government elections for the Shire. The applicant had enrolled on the electoral roll for the district but contested the requirement to be an elector of the district, specifically challenging the notion of what constitutes a 'resident' for this purpose. The matter was brought before the Tribunal to determine whether the applicant's enrolment on the electoral roll was sufficient to qualify them as an elector of the district and, consequently, whether they met the residency requirements to stand as a candidate.

The central legal issue before the Tribunal was whether the applicant's enrolment on the electoral roll automatically qualified them as an elector of the district and if this enrolment alone was sufficient to meet the residency requirement for candidacy in local government elections. The Tribunal needed to interpret the relevant provisions of the Local Government Act and assess the applicant's status as a resident for the purposes of the election.

In reaching its decision, the Tribunal considered the definition of an elector as outlined in the Local Government Act, which includes being enrolled on the electoral roll for the district. The Tribunal also examined the residency requirement, which demands that a candidate must be a resident of the district. After careful consideration, the Tribunal concluded that the applicant's enrolment on the electoral roll did indeed qualify them as an elector of the district. Furthermore, the Tribunal found that the enrolment was sufficient to satisfy the residency requirement for candidacy in local government elections. Consequently, the Tribunal declared that the applicant was not disqualified to be a member of the council of the Shire.

Orders

Orders of the court

The Tribunal declares that the applicant is not disqualified to be a member of the council of the Shire.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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