Powell v Athanasopoulos
[2010] VSC 558
•8 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 2589 of 2010
| ELIZABETH JEANETTE POWELL in her capacity as Minister responsible under the Local Government Act 1989 | Plaintiff |
| v | |
| ANASTASIO ATHANASOPOULOS | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1-2 December 2010 | |
DATE OF JUDGMENT: | 8 December 2010 | |
CASE MAY BE CITED AS: | Powell v Athanasopoulos | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 558 | |
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LOCAL GOVERNMENT – Councillor – Ouster from office – Qualification to be a councillor – Entitlement to be enrolled on the voters’ roll of a council – Sections 11, 15, 16, 17, 28 and 67 Local Government Act 1989.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N.J. O’Bryan AM SC with Mr P.C. Golombek | Victorian Government Solicitor’s Office |
| For the Defendant | Mr S.G. O’Bryan SC with Mr L.E.P. Magowan | Melbourne Legal Partners Pty Ltd |
HIS HONOUR:
Introduction
In an election held on 29 November 2008, Councillor Anastasio Athanasopoulos, the defendant, was elected as one of the councillors for the North Ward of the City of Stonnington. Councillor Athanasopoulos had previously been elected and served three year terms from 1999 to 2002 and 2005 to 2008. Subject to this proceeding, his current term is due to expire in November 2012.
In this proceeding, the plaintiff, in her capacity as Minister responsible under the Local Government Act 1989 (“the Act”), seeks an order pursuant to s 67(1) of the Act that the defendant be ousted from the office of councillor for the Stonnington City Council. Section 67(1) of the Act provides:
“The Minister, a Council of which a particular Councillor is a member or any person who is on the voters’ roll of that Council may apply to the Supreme Court for the ouster from the office of Councillor of any person whom he, she or it believes is declared elected or holds the office contrary to this Act.”
The grounds on which the ouster of the defendant is sought are formulated in the originating motion as follows:
“The Defendant Anastasio Athanasopoulos holds the office of Councillor for the Stonnington City Council contrary to the Local Government Act 1989 in that:-
(a)As at the entitlement date namely 3 October 2008 he had no entitlement to be enrolled on the voters roll for the City of Stonnington; and/or
(b)At no relevant time was he qualified to be a candidate for the office of Councillor for the City of Stonnington; and/or
(c)At no relevant time was he capable under the Local Government Act 1989 of nominating as a candidate at the City of Stonnington general election on 29 November 2008 and was not capable of becoming a Councillor for the City of Stonnington in that election or continuing to be a Councillor for the City of Stonnington at any time whatsoever subsequent to that election.
Particulars
(i)The Defendant purported to nominate himself as a candidate for election for the office of Councillor for the City of Stonnington and claimed to be entitled to so nominate himself pursuant to an application made by P.P.P. Security Pty Ltd (a company of which the Defendant was the sole Director) dated 25 September 2008.
(ii)The corporation P.P.P. Security Pty Ltd did not on 25 September 2008 or at any other relevant time and in particular as at 3 October 2008 have any entitlement pursuant to s 16(5) of the Local Government Act 1989 to apply to have the Defendant (or any other person) appointed to represent it at the City of Stonnington elections to vote on its behalf.
(iii)P.P.P. Security Pty Ltd had no such entitlement as at no relevant time and in particular 3 October 2008 was it the occupier of any rateable property in the municipal district of the City of Stonnington, and at no relevant time and in particular as at 3 October 2008, was it liable to pay the rates in respect of any rateable property in the Municipal District of the City of Stonnington.
(iv)The property details provided by P.P.P. Security Pty Ltd of the address of the rateable property in its application to the Council dated 25 September 2008 to appoint the Defendant as its voting representative namely ‘1/387 Malvern Road South Yarra Victoria 3141’ was not a rateable property address and was not a property address occupied by P.P.P. Security Pty Ltd and P.P.P. Security Pty Ltd was not liable to pay City of Stonnington Council rates for this property address.”
The relevant legislative provisions
Section 28 of the Act deals with the qualifications needed to be a councillor. Section 28 provides:
“(1) A person is qualified to be a candidate for the office of Councillor if he or she has an entitlement referred to in section 11.
(1A) A person is qualified to become and continue to be a Councillor at a particular time if, were that particular time the entitlement date and a voters’ roll prepared, subsection (1) would apply to that person.
(1AA) For the purposes of subsection (1A), if the only entitlement that a person has is an entitlement to be enrolled as a resident of the municipal district, the person ceases to be qualified to continue to be a Councillor at a particular time if at that particular time the person's principal place of residence is not located within the municipal district.
(1B) A Councillor must notify the Chief Executive Officer in writing if there has been any change to any entitlement relating to enrolment of the Councillor under section 11.
(1C) A notification under subsection (1B) must specify the nature of the change and the date on which the change occurred.
(2) If a Councillor ceases to have a qualification entitling the Councillor to continue in office, the Councillor continues to hold the office of Councillor for 50 days after ceasing to be qualified.
(3) A Councillor to whom subsection (2) applies, goes out of office at the expiry of the period specified in subsection (2) unless the Councillor has within that period-
(a) obtained a qualification entitling him or her to continue to be a Councillor; and
(b) lodged a written statement with the Chief Executive Officer specifying that qualification.
(4) Despite subsection (3), a Councillor does not go out of office if the Councillor has only failed to comply with subsection (3)(b) within the period specified in subsection (2).”
Eligibility to be a candidate for the office of councillor is dependent upon whether or not the candidate has an entitlement referred to in s 11 of the Act. Section 11 provides:
“(1) A person can only be enrolled on the voters' roll of a Council if the person is a resident in the municipal district of the Council or a ratepayer to the Council exercising an entitlement under and in accordance with this Division.
(2) Despite anything to the contrary in this Division, a person can only be enrolled on the voters' roll for one ward in a municipal district.
(3) Despite anything to the contrary in this Part, a person is only entitled to vote once at any election in respect of a Council, regardless of how many different entitlements the person may have to vote in respect of any ward.
(4) A person is not entitled to elect which right of entitlement conferred by section 12(1), 13(1), 14(1) or 15(1) to exercise.
(5) A person can only be enrolled on the voters' roll if-
(a) the person has an entitlement as a resident or ratepayer to be enrolled without application as at the entitlement date; or
(b) the person is entitled as a ratepayer to apply to be enrolled and the application-
(i) complies with subsection (6); and
(ii) is accepted in accordance with this Division; or
(c) the person is appointed to vote on behalf of a corporation under section 16 and the application for appointment-
(i) complies with subsection (6); and
(ii) is accepted in accordance with this Division.
(6) An application must-
(a) be in writing;
(b) contain the details required by the regulations;
(c) be delivered to the Council office by 4 p.m. on the entitlement date.
(7) Enrolment under an application referred to in subsection (5)(b) or (5)(c) has effect from the next entitlement date after it is accepted and continues in force until the day before the subsequent entitlement date for a general election.”
Section 16 of the Act deals with corporations. Specifically, s 16 entitles particular corporations to apply to appoint a person to represent them at council elections and vote on their behalf. It is this section which was relevant in relation to the application made by P.P.P. Security Pty Ltd (“PPP”) referred to in the particulars of the plaintiff’s originating motion, set out above. Section 16 relevantly provides:
“(1) Subject to subsection (3), if on the entitlement date a corporation is the sole owner of any rateable property in the municipal district, the corporation may apply to appoint a person to represent it at Council elections to vote on its behalf.
(2) Subject to subsection (3), if on the entitlement date a corporation is a joint owner of any rateable property in the municipal district, the corporation may apply to appoint a person to represent it at Council elections to vote on its behalf.
(3) If an application is in force under section 15, an enrolment cannot be made in respect of the same rateable property under subsection (1) or (2).
(4) Section 14(2) applies in respect of an application under subsection (2).
(5) If on the entitlement date a corporation is the occupier of any rateable property in the municipal district whether solely or jointly and is liable to pay the rates in respect of that rateable property, the corporation may apply to appoint a person to represent it at Council elections to vote on its behalf.
(6) Sections 15(2), 15(3), 15(4), 15(5), 15(6), 15(7) and 15(11) apply in respect of an application under subsection (5).
(7) …
(8) …
(9) An application for a person to be appointed under this section is void if at the time the appointment is made the person appointed-
(a) …
(b) …
(c) …
(d) is for any other reason entitled to be enrolled on the voters’ roll in respect of the municipal district for which the appointment is made; or
(e) …
(10) An appointment for the purposes of subsection (1), (2) or (5) is revoked if-
(a) the person appointed-
(i) ceases to be a director or company secretary (however styled) of the corporation; or
(ii) dies; or
(iii) delivers a notice of resignation containing the details required by the regulations to the Council office; or
(iv) for any other reason becomes entitled in his or her own right to be enrolled on the voters' roll in respect of the municipal district for which the appointment was made; or
(b) notice of revocation containing the details required by the regulations is delivered to the Council office; or
(c) the entitlement under subsection (1), (2) or (5) ceases to exist.”
Section 15 of the Act deals with occupier ratepayers. This section has relevance because of s 16(6). It also has relevance because it provides the basis upon which the defendant asserts an entitlement to be enrolled, and thus that he is qualified as required by s 28. Section 15 provides:
“(1) A person who on the entitlement date-
(a) is not a person referred to in section 12, 13 or 14; and
(b) is not less than 18 years of age or is less than 18 years of age but will attain the age of 18 years on or before the election day; and
(c) is the occupier of any rateable property in the municipal district, whether solely or jointly with any other person or persons and is liable to pay the rates in respect of that rateable property-
is entitled as a ratepayer to apply to be enrolled on the voters’ roll in respect of that rateable property.
(2) For the purposes of subsection (1), only 2 joint occupiers can be enrolled in respect of each rateable property.
(3) For the purposes of subsection (1), an occupier is liable to pay the rates in respect of that rateable property if-
(a) the occupier is paying the rates to the Council; or
(b) the lease under which the occupier occupies the rateable property specifies that the occupier is liable to pay the rates.
(4) Subject to subsection (5), an application under subsection (1) must be accompanied by the written consent of the owner, or if there are joint owners, of at least 2 of the joint owners, of the rateable property.
(5) Subsection (4) does not apply if it appears from the Council records that the occupier is, or the joint occupiers are, receiving the rate notice.
(6) If the Council receives an application under subsection (1), the Chief Executive Officer must notify the owner or joint owners that the Council has received the application.
(7) If an application is in force under subsection (1), an enrolment cannot be made in respect of the same rateable property under section 13 or 14.
(8) A person who is enrolled on the voters’ roll as an occupier under subsection (1) may renew the enrolment by an application containing the details required by the regulations delivered to the Council office by 4 p.m. on the entitlement date before the next general election.
(9) Subsection (4) does not apply to an application under subsection (8).
(10) A person who is enrolled on the voters’ roll as an occupier under subsection (1) may resign the enrolment by an application containing the details required by the regulations delivered to the Council.
(11) The owner or any 2 of the joint owners may withdraw a written consent under subsection (4) by an application containing the details required by the regulations delivered to the Council before 4 p.m. on the entitlement date.”
Finally, s 17 has relevance because of the defendant’s contention (which I will come to below) that whatever the correctness or effect of PPP’s application, the defendant was entitled to be on the roll because of an earlier application he made on his own behalf in December 2007. Section 17 relevantly provides:
“(1) On receiving notice of an appointment under section 13(5), 13(6) or 16 or an application for enrolment under section 14 or 15, the Chief Executive Officer must enrol the person unless the Chief Executive Officer believes that the person is not entitled to be enrolled.
(2) If the Chief Executive Officer believes the person is not entitled to be enrolled, the Chief Executive Officer must-
(a) refuse to enrol the person; and
(b) advise the person who submitted the notice of appointment or application for enrolment of the refusal in writing and give the person the reason for the refusal.
(3) The Chief Executive Officer may either orally or in writing, request any person or corporation to provide information to enable the Chief Executive Officer to determine the eligibility of a person to be enrolled.
(4) ...”
Background facts
Up until 2007, it would appear that the defendant had an entitlement to be on the roll as a result of a relevant connection with premises situated at 350 Punt Road. In 2007, the landlord required these premises to be vacated. The defendant approached one Gary Giasoumi with a view to obtaining premises from which to operate his business (PPP). Discussions between the defendant and Mr Giasoumi culminated in a licence agreement being entered into between Mr Giasoumi’s company, Shawmat Pty Ltd, and the defendant. The licence agreement relevantly provided:
“THIS LICENCE AGREEMENT is made the 1st December, 2007
BETWEEN: SHAWMAT PTY LTD of 387 Malvern Road, South Yarra 3141
(Proprietor)
and
ANASTASIO ATHANASOPOULOS of 6 Prahran Grove, Elsternwick 3185
(Licencee)
RECITALS:
A.The proprietor is registered as the proprietor of all that piece of land known as Ground Floor, 387 Malvern Road, South Yarra 3141
B.The Licensee and the Proprietor have agreed to allow the Licensee to occupy Suite 4, 387 Malvern Road, South Yarra 3141 subject to the terms of his Licence Agreement as on and from the 1st December, 2007 (‘the Occupation Date’).
OPERATIVE PART:
1.The Licensee will on the Occupation Date occupy the Land as Licensee of the Proprietor and in consideration therefore will pay to the Proprietor the Licence fee of $50.00 (‘the Licence Fee’) per week from the Occupation Date. The Licence fee is to be paid to the Proprietor weekly in advance from the date of occupation.
2.…
3.This Licence will automatically cease and determine on the 1st December, 2008 or at the expiration of 7 days from the date of any notice issued by the Proprietor pursuant to Clause 2 above … .
4.The Licence hereby created is personal to the Licensee and the covenants herein contained shall rest in Contract only and will not be capable of assignment in any way and it is further agreed and declared by the Proprietor and the Licensee that the Licensee shall obtain no tenancy or leasehold interest in the Land or any part thereof nor will this agreement be construed as conferring upon the Licensee any of the rights referred to in Section 42 of the Transfer of Land Act 1958.
5.…
6.The Licencee will be responsible for 15% of all rates in respect of the Land on and from the Occupation Date.
7.…”
At various times during the proceeding, the plaintiff appeared to contest the genuineness of this agreement. As part of the plaintiff’s case, the plaintiff relied upon an affidavit of Stephen Charles Hamilton, a former managing director of Wild Publications. The substance of Mr Hamilton’s evidence was that Wild Publications occupied the first floor of 387-389 Malvern Road from January 2006 to February 2009 and that he had never heard of PPP or the defendant; and had never seen any signs advertising PPP as having an office on the property.
Against this, the defendant gave evidence of his use of an office within 387 Malvern Road for the purpose of his business interests, which included PPP and Angel Limousines. The defendant also swore that occasionally he met constituents of the City of Stonnington at these premises. Further, the defendant tendered affidavits of Julie Villani and Donald James Doolan. These witnesses describe the defendant operating his business from a room in 387 Malvern Road (from at least October 2009 according to Ms Villani; and over approximately two years between June 2008 and June 2010 so far as Mr Doolan is concerned).
Whilst the licence agreement specified a termination date of 1 December 2008, the defendant swore that since 1 December 2008, he and Mr Giasoumi for Shawmat agreed to extend the licence on the same terms. The evidence of Ms Villani and Mr Doolan corroborates the fact that this occurred, as do (to a lesser extent) the Angel Limousines booking forms dated May to July 2010 and bearing the address 387 Malvern Road.[1]
[1]Exhibit D4.
Whilst it might be said there is a paucity of documentary evidence supporting the defendant’s claims to operating his business interests from 387 Malvern Road, having seen the defendant in the witness box, I accept his evidence on this issue, corroborated as it is by Ms Villani and Mr Doolan. The defendant swore that he tended to run his business on the road and often had meetings with people in cafes, restaurants or the place of his clients’ business premises. He also swore to his business involving security issues and that being a reason why there are no public signs for PPP outside the premises. In the circumstances, it is understandable that Mr Hamilton may not have observed PPP or its operations, or known of the existence of the defendant. During the course of the trial, an issue arose as to whether any occupation by either the defendant or PPP was, on the one hand, occupation by PPP and not the defendant, and on the other hand, occupation by the defendant. I will deal with this issue in greater detail below.
On 15 December 2007, the defendant applied to be enrolled as an occupier ratepayer under s 15(1) of the Act. The application was made on the basis that the defendant was an occupier of what was described as “Suite 4/387 Malvern Road”. Whilst the application form may have originally described the property as “387 Malvern Road”, it appears the words “Suite 4/” may have been added later. In the application, the defendant declared:
“I apply to be enrolled in respect to the abovenamed property and declare that I am an occupier of that property, that I am liable to pay municipal rates for the property and that I am not entitled to be enrolled as a resident or property owner in the municipality.”
The application was dealt with by two council employees: Mr Robert Francis Smart, the rates coordinator of Stonnington City Council; and Ms Fabienne Anne Thewlis, the manager of governance and corporate support of Stonnington City Council. At the time of the application, Mr Smart was an authorised officer for the administration and enforcement of the Act.[2]
[2]Exhibit D1.
Ms Thewlis was cross-examined about the handling of the December 2007 application. In substance, her evidence was that she was not aware of any impediment to the defendant’s application being granted; and that once the application was marked “Processed” on 24 December 2007, the applicant’s name would appear (or should have appeared) on the roll. Similarly, Mr Smart, in cross-examination, agreed that once he had written the word “Processed” on the defendant’s application in December 2007, that indicated that he had made an entry in the computer system which should have resulted in the defendant being placed on the roll. The fact that the December 2007 application should have resulted in the defendant being placed on the roll in respect of 387 Malvern Road is exemplified by s 17(2)(b) and s 17(3) of the Act. If the December 2007 application was to be rejected, then s 17(2)(b) required the chief executive officer of the council to advise the defendant. Similarly, if further information was required, then a request should have been made under s 17(3). In this case, no advice was given pursuant to s 17(2)(b), and no request was made under s 17(3).
Notwithstanding the defendant’s application in December 2007 to be enrolled as an occupier ratepayer, and notwithstanding the processing of that application in a way which Ms Thewlis and Mr Smart said was favourable to the defendant, it would appear that the defendant’s name remained off the roll until the application by PPP referred to in paragraph (i) of the particulars set out in the originating motion. Mr Smart, in cross-examination, provided a possible explanation as to why the defendant’s name may not have been on the roll following 1 September 2008. This explanation related to a change in the property number of the relevant premises. However, Mr Smart’s explanation cannot be the answer because it appears from the evidence of Paul Strickland (Manager Electoral Enrolment Branch at the Victorian Electoral Commission) that the defendant’s name was not on the roll provided to him by the Stonnington City Council on 22 August 2008. Whilst the defendant called for a copy of this list, it was never produced.
In any event, it appeared to be common ground (and the evidence establishes) that whilst the defendant’s December 2007 application for enrolment should have resulted in him being placed on the roll, it did not have that effect.
On 25 September 2008, Mr Strickland contacted the defendant by telephone. There was discussion about the defendant’s position with respect to the roll. On the same day, PPP made the application I have previously referred to to have the defendant appointed as its voting representative under s 16(5) of the Act. In this application (“the September 2008 application”), the defendant made a declaration in the following terms:
“I am not otherwise entitled to be enrolled to vote in this municipality”.
This declaration was wrong if the December 2007 application had been correctly processed so as to place the defendant’s name on the roll with respect to 387 Malvern Road.[3] Further, the September 2008 application was itself void if the defendant was in any event entitled to be enrolled (see s 16(9)(d) of the Act).
[3]Arguably, it was wrong even if the defendant was not on the roll. The issue in those circumstances would be whether the defendant was “entitled to be enrolled”.
The September 2008 application was processed by Mr Smart, and ultimately the defendant was placed onto the roll. The defendant nominated for the election to the office of councillor with the Stonnington City Council on 27 October 2008 (s 70(1) of the Act permitting a councillor to nominate as a candidate for an election if he or she is capable of being or continuing to be a councillor). The election was held on 29 November 2008 and the defendant was declared elected on 1 December 2008. He took the oath of office the next day.
The plaintiff’s case
The plaintiff’s case, as identified in the originating motion and the plaintiff’s outline of submissions[4] was that the defendant had no entitlement to be enrolled on the voters’ roll for the City of Stonnington because the September 2008 application could not (and should never) have been determined in favour of PPP. That is, PPP’s application made under s 16(5) could not be granted because even if PPP was an occupier of 387 Malvern Road (or any part thereof), it was not liable to pay the rates in respect of that property. The only relevant party that arguably might have had a liability in respect of rates was the defendant himself – he being the licensee under the licence agreement.
[4]Dated 6 September 2010.
I accept the plaintiff’s submission that PPP had no entitlement to apply to appoint a person to represent it at council elections to vote on its behalf under s 16(5). PPP had no such entitlement because it was not liable to pay any rates in respect of 387 Malvern Road or any other rateable property within the municipal district.
It would follow that if this was the only basis upon which the defendant might have one of the entitlements referred to in s 11, then the defendant would not be qualified to be a candidate for the office of councillor pursuant to s 28 of the Act. However, PPP’s September 2008 application is not the only basis upon which the defendant asserts a relevant entitlement. It is necessary now to examine the defendant’s claim to a relevant entitlement.
The defendant’s claim to an entitlement referred to in s 11[5]
[5]See s 28(1) of the Act.
The defendant’s case is that at all relevant times he has had an entitlement referred to in s 11 of the Act: that is, an entitlement to be enrolled on the voters’ roll of the council of the City of Stonnington.
The first point to be noted is that in order to be qualified under s 28, one does not necessarily have to be enrolled: one merely has to have one of the entitlements referred to in s 11. That this is so, is demonstrated by the language of s 28(1) (“if he or she has an entitlement …”), sub-s (1A), sub-s (1B), the reference in sub-s (2) to “50 days after ceasing to be qualified” and the reference to “obtain[ing] a qualification entitling him or her to continue …” in paragraph (3)(a).
The “entitlement under and in accordance with this Division” referred to in s 11(1), which the defendant relies upon is the entitlement referred to in s 15(1)(c). That is, the defendant contends that he is “the occupier of [a part of 387 Malvern Road] …, whether solely or jointly with any other person … and is liable to pay the rates in respect of that rateable property”. The defendant also relies upon s 15(3)(b), which provides for the purposes of s 15(1), “an occupier is liable to pay the rates in respect of that rateable property if … the lease under which the occupier occupies the rateable property specifies that the occupier is liable to pay the rates”.
In relying upon s 15(3)(b), the defendant submitted that the licence agreement was a lease within the meaning of that section. It was submitted that the word “lease” should not be given a narrow construction, and that it bears a wider meaning than that given to it in the field of property law. The plaintiff did not contest this submission. I was referred to s 156 of the Act for the purpose of showing that one could be an occupier under a licence (or indeed, without even a licence) and still be a person upon whom a liability to pay rates might fall. It was said that this fact supports a construction of s 15(3)(b) which gives the word “lease” a wider than usual meaning.
It is not necessary to rule on the correctness of this submission. Section 15(3) is not exhaustive of the circumstances in which an occupier might be liable to pay the rates in respect of a rateable property within the meaning of s 15(1)(c). Whilst the plaintiff submitted that in order to come within s 15(1)(c), a person claiming an entitlement must satisfy one of the limbs of s 15(3), I reject that submission. To uphold the plaintiff’s submission, one would have to read the word “only” into s 15(3) immediately before the word “if”. Section 15(3) expands the operation of s 15(1)(c) in at least one respect when it provides that an occupier who is paying the rates to the council is (for the purposes of s 15(1)) a person “liable to pay the rates in respect of that rateable property”. Section 15(3) is not intended to cut down the operation of s 15(1)(c). However, given the concession by the plaintiff that the word “lease” in s 15(3)(b) includes a licence of the kind here in existence, the two construction issues I have identified may be moot (subject to an additional argument of the plaintiff which I will deal with below).
The real issue in this case was whether, during the relevant period (December 2007 to date) the defendant was an occupier of part of 387 Malvern Road and at the same time liable to pay the rates in respect of that part of 387 Malvern Road. I turn now to consider those two questions.
Was the defendant a relevant occupier?
I have already dealt with the issue of whether part of 387 Malvern Road was occupied by the defendant or PPP and rejected that part of the plaintiff’s case premised on the proposition that neither the defendant nor PPP occupied any part of the premises at any relevant time. The plaintiff’s alternative case is that only PPP ever occupied the property. In paragraph one of the plaintiff’s closing submissions,[6] the plaintiff put the argument as follows:
“Only PPP Security Pty Ltd ever occupied the property. The defendant was not the occupier: Defendant’s first affidavit (9/6/10), paragraphs 14 and 16, the truth of which were confirmed by the defendant at T87.1 - .16; also confirmed by Exh. P1 and Exh. RFS-1 to the affidavit of Smart (corporation declaration signed by the defendant on 25/9/08) and by the defendant at T96.21 and T97.7.”[7]
[6]Dated 2 December 2010.
[7]Emphasis in original.
Paragraphs 14 and 16 of the defendant’s first affidavit were originally in the following terms:
“14. Garry Giasoumi suggested that PPP occupy the Premises. He said that PPP could occupy the room as a licensee. I told Garry Giasoumi that in order to be a councillor I needed to be a rate payer and that I would like to be responsible for paying the rates for the Premises. Garry agreed and said that I would be charged 15% of the rates for the ground / first [floor] of 387 Malvern Road, South Yarra, which represented the approximate share of the Premises to the ground / first floor. I agreed to this and Garry Giasoumi’s son, Nick Giasoumi, prepared a Licence Agreement dated 1 December 2007. The Licence Agreement was executed on or about 1 December 2007 and from that date I, on behalf of PPP, have consistently occupied the Premises. The Licence Agreement was between Shawmat and me personally because I believed it was necessary for me to pay the rates in order to qualify to be a councillor and continued (sic) to wish to be a councillor. However, I always understood that it was PPP, being a company that I am the sole director and shareholder of, which would occupy the premises and pay the rates. I have no need for business premises other than as part of my business, PPP.
15. …
16. Having signed the Licence Agreement, I, on behalf of PPP, paid and continue to pay the $50 per week licence fee in cash to Shawmat by providing the same to Garry Giasoumi. In relation to rates, when Garry Giasoumi receives a rates notice he shows it to me and I, on behalf of PPP, pay 15% of the amount of the rates notice to Mr Giasoumi in cash.”
On 16 November 2010, the plaintiff delivered a list of objections to the defendant’s affidavit evidence. The plaintiff objected to the words “on behalf of PPP” in paragraph 14; the sentence commencing “However, I always understood …” in paragraph 14; and the words “on behalf of PPP” in paragraph 16. The grounds for each objection were said to be “comment, submissions, not evidence”.
At trial, the defendant sought to accept the plaintiff’s objections. However, the plaintiff then sought not to pursue these objections. Ultimately, the defendant chose to tender the affidavit, without reading the words which the plaintiff had previously objected to. Clearly, the defendant, in his initial defence of the grounds in the originating motion, sought to establish that PPP was an occupier of part of 387 Malvern Road. However, the defendant no longer sought to establish that proposition at trial, running his defence on the basis of the December 2007 application (namely, that the defendant personally was an occupier and liable to pay the rates). Equally clearly, the plaintiff’s counsel, when they realised how the defendant was in truth defending the proceeding (namely, the defendant is an occupier liable to pay the rates), sought to establish through the defendant what he had previously sworn to as being the truth – namely, that PPP was the occupier. To that end, the defendant was cross-examined as follows:
“Can you look carefully at paragraph 14 and tell his Honour whether there is anything in paragraph 14 which is not the truth?---Yes, that’s correct.
That is all true?---That I occupy the property, yes.
Mr Athanasopoulos, is there anything in paragraph 14 which is not the truth, anything?---Well, as suggested, the ground and the first floor, I’ve never been on the top floor, so I gather it’s the ground floor that I’m leasing or I had leased, and the licence agreement was between me and Shawmat.
Between you and Shawmat?---M’mm.
Is there anything in paragraph 14 which you consider today not to be the truth?---No.
Pardon?---No, it’s all true, on company.
Would you look now on paragraph 16, please, a much shorter paragraph?
---Yes.Is there anything in paragraph 16 which is not the truth?---That’s correct.”[8]
[8]T86.30 – 87.16.
Reliance was also placed by the plaintiff on the Australian Securities & Investments Commission search[9] which showed that as at 22 September 2008, the defendant certified that PPP’s registered office was Level 1, 387 Malvern Road. Additionally, the plaintiff relied upon the defendant’s declaration in the September 2008 application that PPP occupies the rateable property (recorded as “1/387 Malvern Road”). The defendant was cross-examined about this declaration as follows:
“Did you not ask anyone, ‘Why am I being asked to sign another form in respect of entitlement to vote in Stonnington?’?”---No, because as I said, it didn’t come at the same time where I would have looked at one next to the other and say. Why am I signing these two different forms? I was given this separately, I read it, and still read it as corporation occupier, and therefore I filled it out as the director of the company.
Your original form in December 2007 identified you personally as the occupier of the premises, didn’t it?---That’s correct, yes.
Did you read the corporation from carefully before you signed it?---Yes, I did, and I still believe I filled it out correctly.
No doubt you have. You read – have you got the document in front of you?
---Yes.Above your signature, under the declaration form, you declared in the second dot point that the corporation occupied the rateable property and was liable to pay the council rates for that property; did you read that carefully?---I read it, probably because I looked at the corporation occupier, filled out all those bigger details. The smaller details, well, the corporation does occupy the property as well and that’s where – I am sort of – whether it’s me, whether it’s my company, I am the one paying the rates.”[10]
[9]Exhibit P1.
[10]T96.15 – 97.10.
The fallacy in the plaintiff’s case on this issue is the assumption that if PPP occupies the relevant part of 387 Malvern Road, the plaintiff cannot also be an occupier. In his cross-examination, the defendant made clear that, whatever the position of PPP, he also occupied the relevant part of 387 Malvern Road.[11] This evidence is consistent with the defendant’s first affidavit[12] that he occasionally meets (and has met) constituents of the City of Stonnington at 387 Malvern Road.[13]
[11]See for example T87.2 and the words “as well” at T97.8.
[12]Sworn 9 June 2010.
[13]See paragraph [17].
In the result, I accept that at all relevant times since approximately December 2007, the defendant personally was an occupier of part of 387 Malvern Road. The fact that PPP may also have been an occupier does not detract from this conclusion. I turn now to consider the question of whether the defendant was at all relevant times liable to pay the rates in respect of that part of 387 Malvern Road of which he was an occupier.
Was the defendant liable to pay the rates?
At trial, no issue was taken by the plaintiff as to the possibility of a person having a relevant entitlement if they paid that share of the rates relevant to that part of the premises which they occupied within the municipal district. The issue so far as this part of the proceeding was concerned was whether the defendant was liable to pay the rates, having regard to the fact that the licence agreement provided that the licence would “automatically cease and determine on the 1st December 2008”.
In submitting that the defendant had to bring himself within s 15(3)(b) to come within s 15(1)(c), the plaintiff submitted that there was no lease within the meaning of s 15(3)(b) after 1 December 2008. Two answers may be made to this proposition:
(a)First, the defendant’s evidence was that since 1 December 2008, he and Shawmat agreed to extend the licence on the same terms. Thus, the licence (if it be a lease within the meaning of s 15(3)(b)) was still in force – and it specified that the defendant was liable to pay the rates.[14]
(b)Secondly, on the construction of s 15(1)(c) which I have favoured, it is not necessary for the defendant to come within s 15(3). The evidence to which I have referred is sufficient to bring the defendant within s 15(1)(c) of the Act.
[14]Cf Leros Pty Ltd v Terara Pty Ltd & Anor (1992) 174 CLR 407 at 422-3 and 425; Evans v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2003) 135 FCR 306 at 314 and 319, and City of Boroondara v Optus Networks Pty Ltd (unreported Supreme Court of Victoria, 21 December 1995).
It follows that the defendant has at all relevant times (December 2007 to date) been liable to pay the rates within the meaning of s 15(1)(c) of the Act.
Conclusion
What I have said so far is sufficient to show that the defendant does not hold his office as councillor for the North Ward of the City of Stonnington contrary to the Act.[15] The defendant, being an occupier[16] of rateable property in the municipal district and being liable to pay the rates in respect of that rateable property[17] has an entitlement referred to in s 11 of the Act[18] and is therefore qualified to be a candidate for the office of councillor.[19] It is not to the point that the defendant wrongly declared that he was “not otherwise entitled to be enrolled to vote” in the City of Stonnington when PPP made its application for the appointment of a voting representative in September 2008. The defendant was cross-examined about this, and I accept his explanation as to how he thought he was covering all necessary bases.
[15]Cf s 67(1) of the Act.
[16]“the occupier … whether solely or jointly with any other person …”.
[17]Being part of 387 Malvern Road.
[18]See s 15(1)(c) of the Act.
[19]See s 28(1) of the Act.
I should mention one further matter for the sake of completeness. During the course of this proceeding, the plaintiff paid some attention to the fact that the defendant’s address at 387 Malvern Road was variously described in some of the documents as 1/387 Malvern Road, 1st floor 387 Malvern Road, ground floor 387 Malvern Road, room 4/387 Malvern Road and suite 4/387 Malvern Road. Undoubtedly, there has been some confusion in the proper description of that part of the premises occupied by the defendant. The fact that the address of the defendant’s premises may have been wrong (or incorrectly described) in some of the paperwork is, again, not to the point.[20] The issue is whether the defendant had a relevant entitlement, not whether any application for enrolment was deficient or incorrect in any particular aspect. In any event, Senior Counsel for the plaintiff conceded in his final address that “If there had literally been just a simple error about the number 1 and whether it was the first floor or the ground floor and it was all the responsibility of the council, et cetera, we concede in such a case the Court may well decide the Court will not exercise a discretion against the candidate here”.[21] This was a reference to the Court retaining a discretion under s67 of the Act not to grant the application sought (although it should be noted that, unlike its predecessors, s67 does not contain express words showing the Court has a residual discretion to refuse an application that is otherwise made out).[22]
[20]Cf regulation 7(b) of the Local Government (Electoral) Regulations 2005.
[21]T134.5 - .11.
[22]Cf s156 of the Local Government Act 1958.
For the reasons given above, this proceeding must be dismissed. I will hear the parties on the question of costs.
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