Registrar Appointed Under the Aboriginal Land Rights Act 1983 v Toomey

[2024] NSWLEC 92

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Registrar Appointed Under the Aboriginal Land Rights Act 1983 v Toomey [2024] NSWLEC 92

Hearing dates:

17 June 2024

Date of orders:

30 August 2024

Decision date:

30 August 2024

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [158].

Catchwords:

JUDICIAL REVIEW: validity of election to Local Aboriginal Land Council – administrative error resulted in candidate being left off the ballot – councillor elected unopposed – challenge to election result not brought within time – whether Court has discretion to extend time – whether challenge time barred – whether Court has the power to grant the relief sought, including declaring invalid the disputed return – whether Court should exercise its discretion and grant the relief sought – materiality of inadvertent administrative error – application dismissed.

STATUTORY CONSTRUCTION: construction of time limitation within which to challenge election results – whether provision to be construed as affording the Court a discretion to extend time – whether any other provision permits Court to extend time – neither text, context nor purpose supports a construction affording the Court a discretion to extend time to bring challenge.

Legislation Cited:

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), Sch 4, cl 3A

Aboriginal Land Rights Act 1983, ss 4, 27AC, 121, 122, 124, 125, 126, 127

Aboriginal Land Rights Regulation 2020, cll 21 55, 56, 58, 60, 61, 65, 80

Administrative Decisions Tribunal Act 1997, ss 42, 44

Civil Procedure Act 2005, s 61

Commonwealth Electoral Act 1918 (Cth), ss 355, 358

Electoral Act2017, 234, 237

Land and Environment Court Act 1979, ss 16, 20, 22

Land and Environment Court Rules 2007

Local Government Act 1993, ss 285, 329

Local Government (General) Regulation 2021, reg 333E

Uniform Civil Procedure Rules 2005, r 59.10

Cases Cited:

Australian Electoral Commission v Lalara (1994) 53 FCR 156

Bradbery v Hay [2011] NSWSC 623

Bruce v Magee trading as Armstrong Legal [2017] NSWSC 1687

Burnum Burnum v Electoral Commissioner of New South Wales [1993] NSWCA 44

Cachia v Colaco [2003] NSWLEC 364; (2003) 132 LGERA 62

Cameron v Fysh [1904] HCA 49; (1904) 1 CLR 314

Carroll v Ingram (Land and Environment Court, Pearlman J, 13 June 1996)

Cheung v Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062; (2000) 111 LGERA 353

Dodd v Gandangara Local Aboriginal Land Council [1999] NSWLEC 263; (1999) 106 LGERA 189

Fels v Davies [2009] WASC 138

Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114

Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [2023] NSWCA 134; (2023) 111 NSWLR 550

Griffen v Griffith (Land and Environment Court of NSW, Pearlman J, 25 March 1997)

Hansen v Australian Electoral Commission [2000] FCA 606

Hansen v Electoral Commissioner for New South Wales [2004] NSWSC 348; (2004) 132 LGERA 296

Laurie v New South Wales Aboriginal Land Council [2010] NSWCA 199; (2010) 175 LGERA 247

Laurie v New South Wales Aboriginal Land Council; New South Wales Aboriginal Land Council v Laurie [2009] NSWLEC 58; (2009) 166 LGERA 157

Lester v Ellis (Land and Environment Court of NSW, Pearlman J, 21 October 1996)

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 98 ALJR 623

Mundine v Forestry Corporation of NSW [2024] NSWLEC 70

Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28

Nile v Wood [1988] HCA 30; (1988) 167 CLR 133

NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2002] NSWSC 282; (2022) 251 LGERA 158

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Robertson v Australian Electoral Commission [1993] HCA 50; (1993) 67 ALJR 818

Roger John Brandy v E I Dickson, Electoral Commissioner of New South Wales (Land and Environment Court, Pearlman J, 23 March 1994)

Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Veenstra v Department of Customer Service [2023] NSWLEC 99

Whitby v Garlett [2000] FCA 245; (2000) 98 FCR 585

Texts Cited:

G E Dal Pont, Law of Limitations (2nd ed, 2021, LexisNexis)

G Orr, The Law of Politics (2nd ed, 2019, Federation Press)

Category:

Principal judgment

Parties:

Registrar Appointed Under the Aboriginal Land Rights Act 1983 (Applicant)
Grace Toomey (First Respondent)
Electoral Commissioner for NSW (Second Respondent)

Representation:

Counsel:
J Davidson with B Green (Applicant)
A Kaufman (First Respondent)
Submitting appearance (Second Respondent)

Solicitors:
Crown Solicitor’s Office (Applicant)
The Purpose Group Australia P/L (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2024/80429

Publication restriction:

Nil

JUDGMENT

A Late Challenge to Election Results of the Dubbo Local Aboriginal Land Council

1. By amended summons, the applicant, the Registrar appointed under the Aboriginal Land Rights Act 1983 (“the Registrar”), Sally Skyring, seeks a declaration that the election for a councillor to represent the Central Region of the New South Wales Aboriginal Land Council (“NSWALC”), of which the second respondent, the Electoral Commissioner of NSW (“Electoral Commissioner”), gave public notice on 21 November 2023, is void (prayer 3). The Registrar also seeks a declaration that the effect of the finding of invalidity is that a fresh election for a councillor to represent the Central Region of the NSWALC must be held (prayer 4).

2. The Court has jurisdiction to hear the challenge sitting in its capacity as the Court of Disputed Returns pursuant to s 125(3) of the Aboriginal Land Rights Act 1983 (“ALRA”). Section 125 states (emphasis added):

125 Method of disputing elections and returns

(1)    The validity of an election for a councillor to represent a Region, or of any return or statement showing the voting in any such election, may be disputed by an application to the Court, and not otherwise.

(2)    Any person may make an application to the Court under this section within 28 days after the returning officer has publicly declared the result of the election that is the subject of the application.

(3) In determining an application under this section, the Court has the same powers as are conferred by section 225 of the Electoral Act 2017 on the Court of Disputed Returns. ...

3. The “Court” is defined in s 4 of the ALRA to mean “the Land and Environment Court”.

4. Section 127 of the ALRA is concerned with immaterial errors that will not invalidate an election:

127 Immaterial errors not to invalidate election

(1)   An election of councillors of the New South Wales Aboriginal Land Council, or any return or statement showing the voting in an election, is not invalid because of—

(a)   any delay in taking the votes of the electors or in making any statement or return, or

(b)    the absence of any officer, or

(c)    the error or omission of any officer,

that could not have affected the result of the election.

(2)    If a person was prevented from voting in an election because of the absence of any officer, or the error or omission of any officer, the Court must not admit any evidence of the way the person intended to vote in order to determine whether or not the absence, error or omission could have affected the result of the election.

5. The proceedings concern the effect of an administrative error which led to non‑compliance by the Registrar with cl 56(2) of the Aboriginal Land Rights Regulation 2020 (“Regulations”).

6. Clause 56 of the Regulations states that:

56  Certification of roll

(1) The chief executive officer of each Local Aboriginal Land Council must, not later than 7 clear days after the closing date specified in the relevant notice of election, send a current copy of the Council’s membership roll to the Registrar that is certified in a manner approved by the Registrar.

(1A)    For the Act, section 60(a), the copy of the membership roll sent under subclause (1) must—

(a) list the members in alphabetical order by surname, and

(b) have a consecutive number listed next to each member.

(2) Within 14 clear days after the certified copies of the membership rolls for the Local Aboriginal Land Councils have been sent to the Registrar, the Registrar must—

(a) ensure that the consolidated membership roll kept by the Registrar is current, and

(b) prepare an electoral roll for each Region that contains the names of each voting member of a Local Aboriginal Land Council in that Region, and

(c) certify each electoral roll in the form set out in Form 5 of Schedule 5, and

(d) send the rolls to the returning officer. …

7. Clause 60(1) of the Regulations relevantly provides:

60 Manner of nominating candidates

(1) A nomination of a candidate for election as a councillor must—

(a)    be made by no fewer than 6 persons (other than the candidate), each of whom is entitled to vote in the election, and

(b)    be in a form approved by the returning officer, and

(c)    specify the form of the candidate’s given name that should be printed on ballot-papers for the election…

8. The Registrar provided the Electoral Commissioner with certified rolls for the Central Region for the purpose of cl 56 of the Regulations on 19 December 2023 and 30 January 2024. Neither of those certified rolls took into account the membership roll for the Dubbo Local Aboriginal Land Council (being a Local Aboriginal Land Council (“LALC”) within the Central Region) provided to the Registrar on 6 December 2023.

9. As a result, the certified electoral roll for the Central Region provided by the Registrar to the Electoral Commissioner did not contain the name of each voting member of the Dubbo LALC on the date that it was provided to the Registrar, as required by cl 56(2) of the Regulations. Put another way, the certified roll did not contain the names of all persons entitled (pursuant to s 121(5) of the ALRA) to vote in the election of the councillor for the Central Region.

10. Section 121 of the ALRA states as follows:

121  Election of councillors

(1)   Each councillor is to be elected in the manner specified in this Division to represent a Region.

(2)    The regulations may make provision for or with respect to the election of councillors.

(3)    The Electoral Commissioner for New South Wales, or a person employed in the office of and nominated by the Electoral Commissioner, is to be the returning officer for elections of councillors.

(4)    A person is not qualified to be nominated to stand for election, or to be elected, as a councillor to represent a Region if, at the time of the nomination or election, either of the following applies to the person—

(a)   the person is not a voting member of a Local Aboriginal Land Council the area of which is within the Region,

(b)    the person is disqualified from holding office as a councillor of the New South Wales Aboriginal Land Council.

(5)   A person is entitled to vote at an election for a councillor to represent a Region if the person is a voting member of a Local Aboriginal Land Council the area of which is within the Region.

(6)    A person is only entitled to cast his or her vote in respect of the Local Aboriginal Land Council area in which the person has voting rights.

(7)    The regulations may make provision with respect to the nomination of persons to stand for election as a councillor to represent a Region.

11. As a consequence of the administrative error, the election was uncontested.

12. The Registrar submitted that non-compliance with the Regulations has the effect of invalidating the uncontested election, consistent with the principles enunciated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

13. The challenge would be unremarkable but for the fact that the proceedings were commenced two days out of time as prescribed by s 125(2) of the ALRA.

14. The Registrar therefore seeks an extension of time in relation to the filing of the summons.

15. The first respondent, Grace Toomey, was the councillor elected unopposed. She neither consents to, nor opposes, the relief sought by the Registrar, thereby submitting to the outcome of the proceedings. By way of assistance, she provided written submissions to the Court.

16. As is apparent from the factual background set out below, Toomey was unaware of the circumstances giving rise to her election. There is not, and nor could there be, any suggestion that Toomey did anything wrong in how she came to be elected as the councillor representing the Central Region of the NSWALC.

17. As a consequence, the Registrar has undertaken to be responsible for Toomey’s reasonable costs in relation to the proceedings. This is appropriate.

An Incorrect Roll is Provided to the Electoral Commissioner

18. In support of the amended summons, the parties relied upon an agreed statement of facts. In addition, the Registrar relied upon:

1. her own affidavit, affirmed 3 May 2024;

2. an affidavit of Gareth Robson, Director, Electoral Operations of the NSW Electoral Commission (“Electoral Commission”), affirmed 3 May 2024; and

3. an affidavit of James Monaghan, solicitor at the Crown Solicitor’s Office with carriage of these proceedings, sworn 1 March 2024.

19. None of the witnesses were cross-examined.

20. From the evidence before the Court the undisputed facts are as follows. Pursuant to s 122(2) of the ALRA, on 28 April 2023, the Minister responsible for that Act notified the Electoral Commissioner, in his capacity as returning officer for elections for councillors of the NSWALC, that elections would be held on 24 February 2024:

122  Timing of elections

…

(2) The Minister, in consultation with the New South Wales Aboriginal Land Council, is in accordance with this section to determine a date for the election of all councillors and is to notify the returning officer of that date.

21. On 21 November 2023 the Electoral Commissioner, as returning officer, gave notice pursuant to cl 55 of the Regulations that elections were to be held for each of the nine councillors of the NSWALC.

22. On 22 November 2023 an officer of the Office of the Registrar, Aboriginal Land Rights Act 1983 (“ORALRA”), Jock Duncan, sent an email addressed to a mailing list which included Chief Executive Officers and Chairpersons of LALCs in order to explain what was required from each LALC ahead of the election of councillors of the NSWALC. In that email, Duncan noted that the Chief Executive Officer of each LALC was required to send a certified membership roll for their LALC to [email protected] by 5:00 pm on 13 December 2023.

23. The LALC Support Team within the ORALRA was responsible for receiving certified membership rolls from LALCs (where provided) and compiling Regional electoral rolls for certification by the Registrar. At all relevant times, the members of that team had access to, and monitored, the inbox of [email protected].

24. In the context of the 2024 NSWALC elections, where a certified membership roll was not received from a LALC for the purposes of the NSWALC election, the ORALRA had adopted a procedure where upon the LALC Support Team would, for the purposes of compiling Regional electoral rolls, rely either on the consolidated roll which the Registrar maintained for that LALC or the last certified membership roll received from the LALC. In determining which of these rolls to use the procedure was for the LALC Support Team to make an assessment of which was more likely to contain up-to-date membership details for the LALC.

25. On 4 December 2023 Skyring commenced a three year term as the Registrar appointed under the ALRA.

26. The Dubbo LALC was due to hold an annual general meeting and an election for its Board on 14 December 2023. The Registrar was the returning officer for that Board election. The Registrar delegated that function to Kellee Pace, a Senior Project Officer employed by the NSWALC.

27. On 6 December 2023, Tatum Moore, Chief Executive Officer of the Dubbo LALC, sent an email to Pace. Attached to the email was a membership roll for the Dubbo LALC and a signed form certifying that roll as a true and accurate record of all of the voting and non-voting members of the Dubbo LALC as at 21 November 2023.

28. The membership roll which Moore sent to Pace on 6 December 2023 indicated that the following persons were voting members of the Dubbo LALC:

1. Tatum Moore;

2. Caroline Dallinger; and

3. Jenis Moore.

29. On 6 December 2023 Pace forwarded Tatum Moore’s email, together with attachments which included the membership roll and certification form described above, to [email protected]. Pace forwarded those documents for the purposes of the Dubbo LALC annual general meeting and Board election to be held on 14 December 2023.

30. The certified membership roll for the Dubbo LALC was not, however, sent to [email protected] for the purposes of the NSWALC election.

31. Once the deadline for receipt of certified membership rolls from LALCs (5:00 pm on Wednesday, 13 December 2023) had passed, the LALC Support Team proceeded on the basis that no certified membership roll had been received from the Dubbo LALC for the purposes of the NSWALC elections. Consistent with the ORALRA procedure, the LALC Support Team therefore relied upon membership data for the Dubbo LALC already held by the ORALRA for the purpose of preparing an electoral roll for the Central Region.

32. On Friday, 15 December 2023, the Registrar approved the LALC Support Team’s assessment that the consolidated roll for the Dubbo LALC maintained by the Registrar should be used for the purposes of compiling a certified electoral roll.

33. On Monday, 18 December 2023, the Registrar certified an electoral roll for the Central Region compiled by the LALC Support team. Tatum Moore, Dallinger, and Jenis Moore were not listed on that roll.

34. This electoral roll was provided to the Electoral Commission the following day, on 19 December 2023.

35. On Friday, 22 December 2023, the Electoral Commissioner, as returning officer, gave notice pursuant to cl 58 of the Regulations inviting nominations for candidates for those elections. That notice indicated that nominations would close at 12:00 pm on Tuesday, 30 January 2024.

36. On Friday, 26 January 2024, Tatum Moore sent to the Electoral Commission a nomination form for the role of councillor for the Central Region, together with accompanying documents. Her nominators included Jenis Moore and Dallinger.

37. However, on Sunday, 28 January 2024, an officer of the Electoral Commission sent an email to Duncan at the ORALRA noting that the Commission had received a nomination form from Tatum Moore, but that she did not appear on the certified electoral roll for the Central Region.

38. Following consideration within the ORALRA on Monday, 29 January 2024 as to whether Tatum Moore should have been included on the certified electoral roll for the Central Region, the Registrar was satisfied that she should have been included. The LALC Support Team compiled an updated certified roll which included Tatum Moore. The Registrar certified that updated roll on the afternoon of Monday, 29 January 2024. It was provided to the Electoral Commission that same afternoon.

39. It is convenient at this juncture to note that the basis upon which the Registrar purported to recertify the roll for the purposes of cl 56 of the Regulations on 29 January 2024 is not clear.

40. Clause 56 of the Regulations provides that the Registrar must certify and send the roll to the returning officer within 14 clear days after the certified copies of the membership rolls for the LALC have been sent to the Registrar.

41. In the present case, the certified copy was sent by Tatum Moore to the Registrar on 6 December 2023, and the provision of the certified roll to the Electoral Commissioner on 19 December 2023 was completed within the 14 day time period. However, the attempt to resend a, in effect, recertified roll again on 29 January 2024 was not. The recertified roll therefore appears to have been a nullity because it was not provided within the requisite 14 day period as required by cl 56 of the Regulations.

29. For the purposes of determining the present application, however, little, if anything, turns upon the validity or otherwise of this purported recertification of the roll.

30. Later that evening on 29 January 2024, an officer of the Electoral Commission sent an email to Duncan noting that Tatum Moore’s nomination included two nominators who were not on the certified electoral roll for the Central Region, namely, Jenis Moore and Dallinger. It was suggested to Duncan that it might be prudent to make enquiries as to whether Jenis Moore and Dallinger ought to have been included on the certified electoral roll for the Central Region. Earlier that day, the Electoral Commission had separately contacted Tatum Moore to inform her that she would need to provide details of two additional nominators in order for her nomination to be accepted.

31. Following consideration within the ORALRA, at 11:44 am on Tuesday, 30 January 2024, the Registrar approved the addition of Jenis Moore to the certified electoral roll for the Central Region and instructed officers of the ORALRA to prepare a further updated certified roll which included Jenis Moore, and moreover, to send it to the Electoral Commission.

32. A further updated certified roll for the Central Region which included Jenis Moore was prepared by officers of the ORALRA, but it was not received by the Electoral Commission until after the close of nominations at 12:00 pm on Tuesday, 30 January 2024.

33. At 11:56 am on Tuesday, 30 January 2024, Tatum Moore provided the Electoral Commission with the details of one additional nominator, Janice Edwards.

34. Edwards was listed on the certified electoral roll for the Central Region provided to the Electoral Commission on 19 December 2023, and on the updated certified electoral roll provided to the Electoral Commission on Monday, 29 January 2024.

35. As at the time of the close of nominations on 30 January 2024, the Electoral Commissioner was not able to be satisfied that Tatum Moore had been nominated to stand for election as a councillor for the Central Region by no fewer than six persons (other than herself) each of whom was entitled to vote in the election. Her nomination was therefore rejected pursuant to cl 61(1)(b) of the Regulations:

61  Rejection of nomination

(1) The returning officer is to reject the nomination of a person as a candidate at an election if—

(a) the person is not qualified to stand for election, or

(b) the person is not nominated in accordance with clause 60 and any failure to comply with the requirements of clause 60(1) is not rectified as provided by that clause.

49. Officers of the Electoral Commission informed Tatum Moore of the rejection of her nomination in the evening of Tuesday, 30 January 2024.

50. Accordingly, as at the close of nominations at 12:00 pm on Tuesday, 30 January 2024, the only duly nominated candidate for the Central Region was Toomey. She was therefore taken to be elected unopposed as the councillor for the Central Region.

51. Tatum Moore subsequently lodged a complaint with the ORALRA concerning the rejection of her nomination. The Registrar proceeded to review the circumstances which led to this result.

52. The Registrar first contacted the Crown Solicitor in relation to this matter on Thursday, 22 February 2024.

53. On Monday, 26 February 2024, the Registrar sent letters, by email, to the Chief Executive Officer of the NSWALC, Councillor Toomey, Tatum Moore and the Electoral Commissioner. In each of those letters, the Registrar informed the recipient that an administrative oversight within the ORALRA had led to the rejection of the nomination of a candidate in the Central Region election. The Registrar invited the recipient to indicate their view as to any appropriate action that could be taken, and by whom, in order to address the consequences of the administrative oversight outlined in the letter.

54. Later that day, Tatum Moore replied to the Registrar’s letter indicating her view that the Registrar should commence proceedings to have the election for the Central Region set aside.

55. On Wednesday, 28 February 2024, the Registrar emailed the Chief Executive Officer of the NSWALC, Councillor Toomey, Tatum Moore and the Electoral Commissioner, to notify them that she had instructed the Crown Solicitor to commence proceedings in the Court as soon as possible.

56. Proceedings were not, however, commenced until Friday, 1 March 2024, which was two days out of time.

Issues for Determination

57. The issues required for determination are two-fold:

1. first, whether the Court has the power to extend the time limit contained in s 125(2) of the ALRA; and

2. second, if it does, whether the Court ought to grant the relief sought in the amended summons.

Does the Court Have the Power to Extend the Time Limit to Challenge the Election Result?

58. Whether the Court has the power to extend the time limit within which to challenge the election result contained in s 125(2) of the ALRA is a question to be answered having regard to its proper construction.

59. The approach to statutory interpretation may be succinctly put. The legal meaning of a provision is to be derived from a full consideration of its text, the context of the statute viewed as a whole, and the general purpose and policy of the enactment in question (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14], Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [2023] NSWCA 134; (2023) 111 NSWLR 550 at [14]ff and Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28 at [45]).

60. The text of the provision allows for 28 days within which “any person may” make an application to the Court after the returning officer has publicly declared the election results. There is no express power to extend the time bar in s 125(2) of the ALRA. The Registrar therefore sought to rely upon an implied power under that section.

There Are No Alternative Sources of Power Relied Upon by the Registrar

61. Initially the Registrar sought to argue that, in the alternative, as an aspect of the Court’s general power to give directions as to practice and procedure pursuant to s 61 of the Civil Procedure Act 2005 (“CPA”), or as an aspect of its jurisdiction to hear and dispose of matters finally pursuant to ss 16, 20 (including s 20(2)) and 22 of the Land and Environment Court Act 1979 (“LEC Act”), or as part of its inherent jurisdiction, the time limit contained in s 125(2) could be extended by the Court.

62. These submissions were subsequently, and correctly in my view, abandoned by her for the following reasons. First, because the eligibility issue arising in the present case concerns a disputed return, s 20(2) of the LEC Act is not an alternative basis of jurisdiction to bring the challenge. The source of jurisdiction is s 125 of the ALRA.

63. In this regard, the decision in Dodd v Gandangara Local Aboriginal Land Council [1999] NSWLEC 263; (1999) 106 LGERA 189 (per Pearlman J at [57]) may be distinguished on the basis that in Dodd, the question of whether the applicant was entitled to nominate was divorced from the conduct of the election, because it turned on whether he had been listed on the relevant LALC roll in proceedings brought before the election. By contrast, in the present case the issue as to Tatum Moore’s entitlement to nominate is directed to the content of the certified electoral roll, which lies within the scope of the “election” referred to in s 125 of the ALRA.

64. In Laurie v New South Wales Aboriginal Land Council [2010] NSWCA 199; (2010) 175 LGERA 247 Basten JA observed, albeit by way of obiter dicta, that neither s 20(2) or (3) of the LEC Act should be construed as applying to disputed returns under the ALRA (at [37]).

65. Second, because of the unsettled nature and extent of the Court’s inherent jurisdiction. While there is no doubt that the Court possesses implied power to, for example, control its own processes, it is reasonable to conclude that the precise reach of the Court’s inherent jurisdiction is uncertain. As the Chief Judge of the Court observed in Cachia v Colaco [2003] NSWLEC 364; (2003) 132 LGERA 62 (at [87]):

87   The powers of the Land and Environment Court have been reconsidered following the decision in DJL v Central Authority (2000) 201 CLR 226 where the High Court held that the powers of the Family Court, as a statutory court, are conferred upon it expressly or by implication by its governing legislation and that, although a court of superior record, it has no inherent power to re-open final orders after they have been entered. Two decisions of this Court have held that the observations of the High Court in DJL apply equally to this Court, so that there is no inherent jurisdiction to set aside a perfected order: see Bignold J in Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438 and Talbot J in Wollong Pty Limited v Shoalhaven City Council (No 2) (2002) 122 LGERA 178.

66. Third, even if jurisdiction was available pursuant to s 20(2) of the LEC Act to extend time, it remains the case that there appears to be no authority for the existence of an implied power in the Supreme Court to extend all statutory limitation periods. The issue remains vexed. As McCallum J (as she then was) remarked in Bruce v Magee trading as Armstrong Legal [2017] NSWSC 1687, in the context of an application for a solicitor’s bill of costs to be assessed following the expiration of a statutory limitation period (at [9]-[10]):

9   The amended summons raised three issues for the Court’s determination. …Finally, there was a difficult legal question as to whether the Court had authority, in the exercise of its inherent jurisdiction, to refer a bill for assessment outside the specific statutory regime directed at that issue (which imposes a limitation period).

10   Each party provided careful and compelling submissions on the issue of inherent jurisdiction. The proceedings were resolved at a time when it had become clear that there was a respectable argument either way. There is apparently no authority on point. In those circumstances, the defendant submitted that his consent to the relief sought should not be construed as a capitulation to the relevant “event” and that the fair order would be that each party pay his or her own costs.

67. Fourth, as Toomey submitted, s 61 of the CPA relates to matters of practice and procedure only, it does not assist the Registrar in this instance.

The Proper Construction of s 125(2) of the ALRA

68. In respect of the proper interpretation of s 125(2) of the ALRA, the Registrar first submitted that, while as a general cannon of construction time limits for invoking the jurisdiction of courts of disputed returns are strictly construed, in the present case, the text of s 125(2) does not include the same strictures as statutory time limits for commencing proceedings in relation to other courts of disputed returns. For example (emphasis added):

1. s 234(3) of the Electoral Act2017, provides that “the Court of Disputed Returns must not deal with any proceedings on the petition unless the requirements of this section are complied with” (emphasis added); and

2. s 358(1) of the Commonwealth Electoral Act 1918 (Cth), states that “no proceedings shall be had on the petition unless the requirements of sections 355, 356 and 357 are complied with” (emphasis added). In turn, s 355 of that Act mandates that “every petition disputing an election or return in this Part called the petition shall…(e) be filed in the Registry of the High Court within 40 days” (emphasis added).

69. The legislature plainly could have, but did not, insert equivalent language in s 125(2) of the ALRA. This may be contrasted with the text of s 125(1) which adopts the language of “and not otherwise”, which is not found in s 125(2).

70. Second, this Court’s disputed returns jurisdiction in relation to elections conducted under the ALRA differs in an important respect from that exercised by the High Court or by the Supreme Court in relation to parliamentary elections. There is no equivalent justification for construing s 125(2) as an exclusive code as is the case with parliamentary elections (per Handley AJA in Laurie at [105] with explicit reference to s 125(1) of the ALRA).

71. Third, as his Honour noted in Laurie (at [109]):

109   There is a presumption that Parliament does not intend, without clear words, to take away the jurisdiction of the superior courts, or rights given by the common law which includes those enforced by quo warranto.

72. This presumption has work to do in relation to the construction of s 125(2) of the ALRA in circumstances where the strict language of “and not otherwise” in s 125(1) has been deliberately omitted.

73. Fourth, while there are references in Laurie to the need for the timely commencement of proceedings under s 125 of the ALRA (at [92], [104], [107] and [111] per Handley AJA), which would appear to reflect a view that the time bar provided in s 125(2) is strict, at least in relation to challenges concerning the counting of votes and the qualifications of voters, these references should be regarded as mere obiter dicta in circumstances where the question of whether this Court has power to extend the time limit in s 125(2) of the ALRA was not argued.

74. Fifth, purposive considerations further support the existence of an implied power to extend time in s 125(2) of the ALRA. Accepting the general importance of finality in relation to elections, it should not be regarded as an absolute value.

75. And finally, it was the Registrar’s contention that the present case was an instance where an error in the certified rolls provided by her has led to a denial of a person’s entitlement to stand as a candidate. The error occurred through no fault of Toomey, but it had the consequence that no contested election was held. The capacity of the voters to choose their representative on the NSWALC, which would have followed from the receipt of two valid nominations, has been frustrated by the absence of a ballot. In these circumstances, representation and fairness as public values supporting an extension of time should prevail over considerations of finality. As the learned author Prof Graeme Orr in The Law of Politics (2^nd ed, 2019, Federation Press) has observed in addressing the strictness with which time limits in electoral contexts have been construed, arguably “what matters is public faith in the process, which might be undermined if technical time limits permit a serious electoral injustice to stand” (at p 215).

76. In response, Toomey emphasised that in Laurie, both at first instance (Laurie v New South Wales Aboriginal Land Council; New South Wales Aboriginal Land Council v Laurie [2009] NSWLEC 58; (2009) 166 LGERA 157 (“Laurie LEC”)) and on appeal, the courts have stressed the strict nature of the time limitation imposed by s 125(2) of the ALRA.

The Challenge Must be Dismissed

77. According to the learned author G E Dal Pont in Law of Limitations (2^nd ed, 2021, LexisNexis), judges have tended to defer to Parliament in this context, even in instances where the application of a time bar within which to challenge an election results in hardship and unfairness. A manifestation of this deference is with respect to time limitations for filing a petition, or a summons, to challenge an election result. Being wholly creatures of statute, limitation periods are not amenable to modification or mitigation by way of judicial fiat (p 7).

78. A survey of the authorities reveals two notable features of this species of time limitations: first, their relative brevity; and second, the general strictness of their application. Thus a petition filed in the High Court sitting as the Court of Disputed Returns outside the stipulated 40 day time limit was held to be incompetent in Cameron v Fysh [1904] HCA 49; (1904) 1 CLR 314 (at 316 per Griffith CJ).

79. A similar result was reached in Robertson v Australian Electoral Commission [1993] HCA 50; (1993) 67 ALJR 818 (at 819C-E) and Nile v Wood [1988] HCA 30; (1988) 167 CLR 133 (at 137, and the cases referred to thereat) and in Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500, in respect of the same provision. In Rudolphy, the petitioner attempted to argue for an extension of time to challenge the election of Senator Lightfoot to the Senate. The High Court denied the request, holding that the electoral time limit had to be strictly construed (at [11] and [12], footnotes omitted):

11    The present is an example of legislation of the kind identified by Isaacs J in The Crown v McNeil and by Windeyer J in Australian Iron & Steel Ltd v Hoogland. The 40 day requirement does not, to adapt the terms used by Windeyer J, "bar an existing cause of action"; rather "[i]t imposes a condition which is of the essence of a new right".

12 The provision with respect to the 40 day period plainly is designed to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns. Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355. The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period. Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but, as indicated above, that is how the matter should be understood.

80. The decision in Rudolphy dealing with time limitation provisions such as that contained in s 355(e) of the Commonwealth Electoral Act was applied in Australian Electoral Commission v Lalara (1994) 53 FCR 156 (at 161) and Hansen v Australian Electoral Commission [2000] FCA 606 (at [11] per Kenny J), and endorsed in Whitby v Garlett [2000] FCA 245; (2000) 98 FCR 585 (at [17]-[19] per French J, as his Honour then was) in the context of a provision in the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) that said that “any petition disputing an election held as part of a general election must be filed in a Registry of the Court within 40 days after the last day on which a poll is declared in relation to a general election” (cl 3A(1) of Sch 4 of that Act, emphasis added).

81. Cheung v Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062; (2000) 111 LGERA 353 concerned a late application for an order for dismissal from a civic office lodged with the Administrative Decisions Tribunal (“ADT”). Section 329(3) of the Local Government Act 1993 (“LGA”) provided that “proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be more than 3 months after the date of the person’s election or appointment to that office” (emphasis added). There was no provision for an extension of time. Section 42 of the Administrative Decisions Tribunal Act 1997 required that any application must be lodged within 28 days, however, s 44 of that Act permitted the ADT to extend time for the making of a late application. The Court held that the s 44 had to yield to s 329(3) of the LGA (at [12] and [13] per Dunford J):

12   It is also consistent with what appears to be the general rule relating to applications to upset election results, namely that the time for the commencement of proceedings cannot be extended: see Nile v Wood (1988) 167 CLR 133, Robertson v Australian Electoral Commission (1993) 116 ALR 407, and cases therein referred to.

13 For these reasons I am satisfied that the 2 provisions are inconsistent and accordingly make contrary provision. It follows that ss 44(2) and 44(1) of the ADT Act must be read subject to s 329(3) of the LG Act.

82. There have been a number of decision touching, albeit tangentially, upon the proper construction of s 125(2) of the ALRA and its predecessor. In Burnum Burnum v Electoral Commissioner of New South Wales [1993] NSWCA 44 the Court of Appeal dismissed an appeal against a decision of Pearlman J. The Chief Judge had held that the appellant was not eligible for election in circumstances where the delegated legislation made under the ALRA purported to confer upon the Chairperson of the NSWALC a power to add a person’s name to the roll of the LALC. Only a member of a LALC could stand for election to the NSWALC. In proceedings brought before this Court, a challenge was made to the validity of the election of the appellant to the position of councillor representing the South Coast Region of the NSWALC because he was not eligible to be a candidate. The challenge was on two bases, the second of which is presently relevant, namely, that if the regulation permitting the Chairperson to add the appellant’s name to the roll was valid, was the name improperly added because he had not applied for membership within the time stipulated in the notice given pursuant to cl 21(4)(c) of the Regulations. That clause stated that the “notice must state the following…(c) that a person (if eligible) may be listed on the roll of such a Council before the election if the person requests or applies to the Secretary of the Council in writing to be listed on the roll on or before a closing date specified in the notice” (emphasis added).

83. Pearlman J had resolved this issue in favour of the appellant, reasoning that there was no mandatory time for the lodgement of the application and the reference to a closing state in cl 21(4)(c) was only a reference to the information which must appear on a notice calling for an election, and it did not have the effect of prescribing a time for the lodging of applications. Gleeson CJ (as his Honour then was) disagreed, stating that, “when regulations prescribe the publication of a notice stating that a certain step, to be effective, must be taken within a certain time, then the regulations must have been intended to operate on the basis that such information would be true. The step, therefore, must be taken within the time stipulated in the notice…The appellant having failed to lodge his application within the prescribed time, his was not an application within the purview of regulation 22(4)” (at 1) thereby permitting the Chairperson to exercise the power to add the appellant’s name to the roll.

84. In an ex tempore judgment, the Chief Judge, sitting as the Court of Disputed Returns under the ALRA, refused to permit an amendment to points of claim and the consequential vacation of an imminent hearing date in Griffen v Griffith (Land and Environment Court of NSW, Pearlman J, 25 March 1997). The application was a challenge to the election of the respondent to the NSWALC which was filed on 12 March 1996. Section 27AC of the ALRA was the precursor to s 125. Importantly, s 27AC(2) was identical to s 125(2) (emphasis added):

27AC Method of disputing elections and returns

(1)    The validity of an election for a councillor to represent a Regional Aboriginal Land Council area, or of any return or statement showing the voting in any such election, may be disputed by an application to the Court, and not otherwise.

(2)    Any person may make an application to the Court under this section within 28 days after the returning officer has publicly declared the result of the election that is the subject of the application.

85. There was no dispute that the 28 days had lapsed and that the application did not comply with s 27AC(2). Pearlman J determined the matter in favour of the respondent on discretionary grounds, in particular, because of the prejudice that he was suffering by sitting as a councillor “under the shadow of a challenge to his election” that could not be cured by costs. Significantly, her Honour was not troubled by the time limitation contained in the ALRA because (emphasis added):

…Under s 27AC of the Aboriginal Land Rights Act, and under rules of this Court, those time limits can in appropriate cases be relaxed but they are put there for a purpose. It is in the public interest that a body constituted under the Aboriginal Land Rights Act, namely, the New South Wales Aboriginal Land Council, be permitted to get on with its job without challenges hanging over its head for a considerable time.

86. Given that there was similarly no express power to extend time contained in the former s 27AC of the ALRA, the Registrar contended in these proceedings that her Honour’s view should be regarded as reflecting an understanding that a power to extend time was implicit in s 27AC and, given its linguistic overlap, s 125(2) of the ALRA.

87. Lastly, although on appeal Laurie was concerned with the validity of the appellant’s election given that she was disqualified from holding office due to her prior conviction for a driving offence, Handley JA made the following observations in respect of the meaning to be attributed to s 125(1), which are instructive in relation to the proper construction of s 125(2) of the ALRA (at [105] and [107]):

105 Sections equivalent to s 125(1) which enable a parliamentary election to be challenged in judicial proceedings are properly construed as exclusive codes because the courts had no inherent or common law jurisdiction in such cases: McDonald v Keats [1981] 2 NSWLR 268, 274. Any jurisdiction which had not been conferred by statute on a Court of Disputed Returns remained with the relevant House of the Parliament. The position with subordinate elected bodies is very different. The superior courts had inherent or common law jurisdiction over elections to such bodies and the status of their office holders exercisable by the prerogative writs of quo warranto and mandamus: R v Beer [1903] 2 KB 693; Ex parte Attenborough, in re Bent (1868) 5 VLR(L) 103, 105-6.

…

107 In my view s 125 makes the election of a disqualified candidate voidable, not void. If the appropriate proceedings are not commenced in time the section, by preventing any legal challenge thereafter, validates the actual election.

88. While the Registrar placed reliance on the remarks of Basten JA in that case, in my view, read properly, it is clear that the passage was directed to a different issue than that for present determination, that is, the jurisdiction of the Court to determine whether a councillor is disqualified from holding office (at [32]):

32 It is apparent that s 125 was intended to deal specifically with questions arising out of disputed elections, the Court being given the powers of a Court of Disputed Returns: s 125(3). By providing an exclusive mechanism for dealing with the “validity of an election” and “of any return or statement showing the voting in any such election” the Act did not demonstrate an intention to exclude other mechanisms by which questions of disqualification could be agitated. As explained in In Re Wood [1988] HCA 22; 167 CLR 145 at 164-165:

“A Senate election is not completed when an unqualified candidate is returned as elected. The return does not meet the exigency of the writ … because Senator Wood was incapable of filling the twelfth place. That is not to say that, putting to one side ‘a mere abuse of the right of nomination or an obvious unreality’ … the Electoral Officer who makes a return has authority himself to determine the qualifications of a candidate (who declares and maintains that he is duly qualified …) or to refuse to return the name of an otherwise successful candidate whose qualifications are in issue …. But the performance by the Electoral Officer of his ministerial functions in these respects does not determine the validity of the return or the efficacy of the election of an unqualified person to a vacant place in the Senate.”

89. His Honour said nothing about the scope of s 125(2) of the ALRA and the Court’s power, if any, to extend time pursuant to that, or some other enactment.

90. By contrast, in Laurie LEC, Pain J was more emphatic stating that (at [51], [59], [82] and [83]):

51 The only basis on which the validity of an election can be disputed in the Court is as a court of disputed returns under s 125(1) of the ALR Act. That section confers exclusive jurisdiction on the Court and achieves finality in the declaration of an election result, see the unanimous judgment of the High Court in InRe Wood (1988) 167 CLR 145 at 160 and Dodd v Gandangara Local Aboriginal Land Council & Ors per Pearlman J at [56]. That exclusivity is conferred by s 124(2) and (3)(a) and the powers of the Court in s 125(3) of the ALR Act. Section 128(1) states that a decision of the Court under s 125 is final and conclusive and without right of appeal. There is a strict time frame for challenging an election under s 125(1) of 28 days from the date the returning officer publicly declared the result of the election.

…

59   In light of these legislative provisions, the Court has no jurisdiction to declare the election invalid as the 28 days appeal period for the court of disputed returns has elapsed. There is an exclusive “code” for the declaration of invalidity of elections; see McDonald v Keats per Powell J at 27A.

…

82    The cases of McDonald v Keats, Burnum Burnum and Dodd emphasise that the Court’s jurisdiction to consider the validity of an election as the court of disputed returns is limited by the express terms of the relevant Act, including the ALR Act. The fundamental issue of whether a candidate is qualified to stand for office can be considered by the Court sitting as the court of disputed returns (Connolly), which necessarily requires the application to be made within the specified timeframe in s 125(2).

83    Cases such as In Re Wood, Blurton and Re Walsh reflect different statutory contexts with specific and separate provisions enabling a court to determine the issue of the qualification of a candidate and the validity of an election. Given the clear terms of the ALR Act concerning when the court of disputed returns is to operate in s 125, I do not consider such a separate jurisdiction can be implied, as would have to be the case under the ALR Act. The limits of the court of disputed return jurisdiction of this Court is clear in the ALR Act. There is a limited timeframe for the commencement of any application to it under s 125(2) and the decision of the Court when sitting as a court of disputed returns is final and without appeal (s 128 ALR Act). Those cases cannot provide a basis for jurisdiction to be implied under s 20 of the Court Act.

91. The above examination of the case law reveals that the only decision to consider the question of the Court’s power to extend time under the ALRA to challenge the validity of an election of a councillor, or any return, is Griffen.

92. Contrary to the submission of the Registrar, I do not consider that the principle of comity compels me to follow Pearlman J’s judgment in Griffen. First, given the reasons for the Court refusing to amend the points of claim, the remarks were by way of obiter dicta only. Second, no analysis or authority was provided by her Honour in support of the conclusion that s 27AC impliedly permitted time to be extended. Third, no statutory rule was identified by her Honour that would empower the Court to relax the time limit contained in that provision and, by dint of application, s 125(2) of the ALRA. These are compelling reasons why the decision in Griffen need not be followed (Mundine v Forestry Corporation of NSW [2024] NSWLEC 70 at [106]-[111]).

93. In the present case, the text of s 125(2) is sufficiently clear. If an individual chooses to do so, that person “may” make an application to the Court “within 28 days” to dispute a return. The only element of discretion provided for by the use of the word “may” in the section resides in the decision of the person seeking to challenge the return. That is, a person may elect to institute a challenge to this Court at anytime provided, however, that it is within 28 days from the declaration of the result by the returning officer. The use of the word “may” does not serve to confer upon the Court an implicit discretion to permit challenges after the 28 day period has lapsed. This would be to put a gloss on the language of s 125(2) of the ALRA that is not warranted by its unambiguous text. It remains the fact that Parliament could have provided a mechanism for the Court of Disputed Returns to extend time under the ALRA but it did not do so.

94. That the provision does not use stronger language such as “must” (s 234(3) of the Electoral Act) or “shall” (s 358 of the Commonwealth Electoral Act) is not, in my view, determinative.

95. Moreover, the absence of the words “and not otherwise” in s 125(2) of the ALRA do not assist the Registrar. Their location in s 125(1) of the ALRA merely serves to emphasise the exclusive jurisdiction of this Court to hear and determine any challenges to the validity of an election to which Div 3 of the ALRA applies.

96. Turning to the context within which s 125(2) is located, s 126(1) of the ALRA provides that:

126 Procedure

(1) The procedure of the Court on an application under s 125 is to be determined by the rules of Court, or in the absence of rules of Court, by the Court or a Judge of the Court.

97. There are several observations to be made about this provision. First, the section is directed to the “the procedure” of the Court under a s 125 application. It says nothing about the rigidity or otherwise of the time limitation contained in s 125(2) of the ALRA. Limitation periods are generally substantive and not procedural. Accordingly, s 126(1) does not allow the Court to extend the time for compliance with s 125(2) of the ALRA. Second, even if it did, there is nothing in the LEC Act or the Land and Environment Court Rules 2007 that would permit this course. Likewise, no power exists under the CPA or the Uniform Civil Procedure Rules 2005 (“UCPR”) to vary the time period within which to challenge the election stipulated by s 125(2) of the ALRA.

98. While a power to extend the time within which to commence judicial review proceedings exists in r 59.10(2) of the UCPR, the power does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings (r 59.10(4) of the UCPR), such as that specified in s 125(2) of the ALRA.

99. No other context within which s 125(2) is located supports departure from a literal interpretation of the provision.

100. Neither does the purpose for which it was enacted, which is, as explained in the authorities referred to above, to ensure certainty of result. As noted by the learned author Graeme Orr in The Law of Politics, election disputes cannot be compared to ordinary civil litigation between private parties (pp 214-215). This is because there is an undeniable public interest in the certainty of the conduct of elections and its results (Dodd at [46] per Pearlman J). It is important that the composition of a constituent elected body is known so that it may be permitted to commence work in a timely manner and that electors do not risk becoming disenfranchised pending the holding of fresh elections. These aims would be frustrated, if not thwarted, if mischievous or malicious unmeritorious challenges were permitted.

101. While public faith in the democratic process may be eroded if technical and arbitrary time limits permit a serious electoral injustice to be perpetuated, for example, where there has been electoral interference or other corrupt conduct, that is not this case. And although the strict interpretation and application of time limits within which to challenge election returns are easier to justify in respect of parliamentary elections, the rationale for rigorous adherence to text is no less compelling when it comes to elections under the ALRA.

102. For these reasons, I am of the opinion that s 125(2) of the ALRA ought to be strictly construed. That is, if an application to this Court, sitting as the Court of Disputed Returns for the purposes of s 125(1) of the ALRA, is not made within 28 days after the returning officer has publicly declared the result of the election the subject of the application, it is statue barred.

103. This application, being filed after the 28 day time period referred to above had elapsed, is therefore out of time and the proceedings must be dismissed.

Whether Time Ought to be Extended as a Matter of Discretion

104. In the event that the Court is in error, and an implicit power to extend time exists, the applicable principles relevant to its discretionary exercise were usefully summarised by Pritchard J in Veenstra v Department of Customer Service [2023] NSWLEC 99 (at [25]-[27]):

25   It was not in dispute that there are four factors for the Court to consider when determining whether to extend time for proceedings to commence. Those four factors, as articulated by McHugh J in Gallo v Dawson (1990) 64 ALJR 458 at 459 (Gallo), are as follows:

(1)   the length of the delay;

(2)   the reasons for the delay;

(3)   the extent of prejudice; and

(4)   whether there is an arguable case.

26   In Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [66(7)], Kirby J said that the four factors above “are by no means exhaustive”. His Honour continued:

…Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.

27   In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (Tomko), Basten JA (Hodgson and Ipp JJA agreeing) said at [80]:

In these proceedings, Mr Palasty seeks an indulgence by way of an extension of time. It is not in dispute, nor could it be, that he bears a burden of persuading the Court that there are proper grounds to grant his request…

(emphasis added).

105. In summary, relevant factors include the length of, and reasons for, the delay, together with the extent of the prejudice to the parties and the existence of an arguable case (Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [18]-[19).

106. The Registrar submitted that the delay in this instance was only two days. As explained in the affidavits of Skyring, Robson and Monaghan, the delay was unintentional; the result of the time taken to conduct an internal review and provide instructions to the Crown Solicitor. From the moment that the Crown Solicitor was initially approached for advice, to the commencement of proceedings, only eight days had elapsed. The Registrar first approached the Crown Solicitor on 22 February 2024. By 26 February 2024 letters had been sent to the parties in relation to the taking of appropriate action and by 28 February 2024, the Registrar had advised the parties that she had instructed the Crown Solicitor to commence proceedings. Therefore, prior to the expiry of the limitation period, the parties had been advised of the planned action, albeit that it was not formally instituted until 1 March 2024.

107. While the Registrar acknowledged that an extension of time prejudices Toomey because the proceedings seeks a declaration as to the validity of her election, the prejudice was inherent in the taking of the action and it could not be said to have been amplified by the two day delay. In addition, Toomey holds office during the period of determination of the case pursuant to s 124(2) of the ALRA, so it cannot be said that the Central Region of the NSWALC would be without representation.

105. Finally, the Registrar submitted that her case is plainly arguable and that she has undertaken to pay Toomey’s reasonable legal costs.

106. In reply, Toomey noted that, first, there could be no suggestion that she did anything wrong in how she came to be elected as the councillor representing the Central Region of the NSWALC. And second, in the context of the extension of time sought by the Registrar, s 125(2) of the ALRA permitted “any person” to make an application within the requisite 28 day period. This included Tatum Moore, who elected not to do so.

107. The two propositions advanced by Toomey cannot be gainsaid, however, for the reasons advanced by the Registrar, assuming that the Court does have the power to extend time as contended for by her under the ALRA. It is reasonable in the circumstances of this case to do so because the genesis of the challenge was inadvertent human error, the challenge was foreshadowed upon the mistake being discovered, and the proceedings were commenced no more than two days out of time.

Consequences of Non-Compliance

111. Again, if the conclusion that I have reached above is incorrect and the proceedings are not time barred and an extension to commence proceedings is granted, is invalidity the effect of the non-compliance with the Regulations and the ALRA?

112. Section 121(2) of the ALRA provides that the Regulations may make provision “for or with respect to the election of councillors”. Section 121(1) provides that each councillor “is to be elected in the manner specified in this Division to represent a Region”. The Electoral Commissioner is to be the returning officer (s 121(3) of the ALRA). Section 121(4) sets out some qualifications for a person to be nominated to stand for election.

113. Part 5 of the Regulations deals with the election of NSWALC councillors. Division 1 of that Part is headed “Preliminary”. It deals with essential preliminary matters to the staging of an election, such as notice of the election (cl 55) and certification of the roll (cl 56), including by the Registrar (cl 56(2)).

114. Division 2 provides for nominations for NSWALC elections. Clause 58 sets out the steps that the returning officer must take in relation to calling for nominations after receiving all of the certified rolls for all the LALC areas within a Region.

115. In the present case, the Registrar did not satisfy the requirements of cl 56(2)(b) of the Regulations in relation to the certified rolls provided to the Electoral Commissioner.

116. The requirements for a valid nomination are set out in cl 60 of the Regulations. The result of the non-compliance with cl 56(2)(b) was that Tatum Moore’s nomination could not satisfy the requirement of cl 60(1)(a) of the Regulations because one of her nominators was not included on any certified roll provided to the Electoral Commissioner in advance of the close of nominations. Her nomination was therefore rejected by the Electoral Commissioner.

117. The Registrar disavowed any suggestion that the Electoral Commissioner had any obligation or power to investigate the correctness of the certified roll provided to him by her. She was correct to do so. In Roger John Brandy v E I Dickson, Electoral Commissioner of New South Wales (Land and Environment Court, Pearlman J, 23 March 1994) Pearlman J described the Electoral Commissioner’s role as follows (at 7 and 8):

The first respondent's duty was, under cl 24 of the Regulation, to call the election once he had received the certified rolls. The certification was not his responsibility - that was the duty of the secretary of the Local Aboriginal Land Council and the chairperson of the New South Wales Aboriginal Land Council. Though the Regulation gives various powers to the first respondent as returning officer, such as the power to extend the time for the closing of nominations or the taking of the poll (cl 25), I can find no provision in the Act or Regulation which casts upon the first respondent as returning officer the obligation to satisfy himself as to the correctness of the roll or to conduct any independent verification of its contents. In my opinion, the fact that the roll must be certified by two persons who are involved in the administration of aboriginal land councils leads to the inescapable inference that it is their obligation to verify that the roll is correct, and the inference that the returning officer is required to do nothing else, in relation to the roll, but to rely upon it.

It is true that the returning officer has a duty, under cl 28(1)(a) of the Regulation, to reject a nomination of a person as a candidate if the person is not qualified to stand for election under s 27 of the Act. But it does not follow from that clause, in my opinion, that a duty is cast upon the returning officer to take any step to verify the accuracy of the roll. That clause requires the returning officer to reject the nomination, if, as a fact, the candidate is not qualified, that is, the candidate is not listed on the roll. That is the fact that the returning officer has to check. He is entitled to rely on the certification of that accuracy by the secretary and the chairperson, and from that to rely on the fact that a person listed on that roll is qualified to stand for election.

118. Notwithstanding the changes to the Regulations, including in respect of who is responsible for the certification of the roll provided to the Electoral Commissioner, the circumscribed role of the Electoral Commissioner in relation to the roll under the Regulations remains unaltered.

119. In Project Blue Sky the High Court opined that (at [91], footnotes omitted):

91   An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

120. The courts have emphasised that the use of imperative language alone to express a condition creates no presumption that failure to comply with the condition will result in invalidity. Thus, in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 98 ALJR 623 the High Court relevantly said (at [28]-[29], footnotes omitted):

28   The first is that mere use of imperative language to express a condition imports no presumption that non-compliance with the condition is intended to result in invalidity. That is not to deny that juxtaposition of an imperative term ("must") with a permissive term ("may") to express different requirements of the one statutory scheme might in an appropriate statutory context indicate that the imperative term is used to express a legislative intention that non-compliance is to result in invalidity whilst the permissive term is used in contradistinction to express a legislative intention that non-compliance is not to result in invalidity.

29   The second is that identical imperative language might be used in a particular statutory scheme to express a suite of requirements, some of which will admit of one answer to the Project Blue Sky question and some of which will admit of another answer. …

121. As ever, the task is to ascertain the meaning of the relevant statute.

122. In Project Blue Sky the majority of the High Court held that there was no intention to invalidate breaches of the relevant enactment. This was because the impugned statutory requirement regulated the exercise of functions already conferred on the Australian Broadcasting Authority, and did not impose essential preconditions to the exercise of those functions (at [94] and [95], footnotes omitted):

94 Section 160 proceeds on the hypothesis that the ABA has power to perform certain functions and directs that it "is to perform" those functions "in a manner consistent with" the four matters set out in the section. In the present case, for example, s 158(j) as well as s 122 authorised the making of a standard relating to the Australian content of television programs. Thus, the making of an Australian content standard was not outside the powers granted to the ABA even though, as we have concluded, cl 9 of the Standard was made in breach of the Act. The fact that s 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section.

95 That indication is reinforced by the nature of the obligations imposed by s 160. Not every obligation imposed by the section has a rule-like quality which can be easily identified and applied. Thus, s 160 requires the functions of the ABA to be performed in a manner consistent with:

. the objects of the Act and the regulatory policy described in s 4;

. any general policies of the Government notified by the Minister under s 161;

. any directions given by the Minister in accordance with the Act.

In particular situations, it is almost certain that there will be room for widely differing opinions as to whether or not a particular function has been carried out in accordance with these policies or general directions. When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity.

123. Furthermore, the relevant provisions did not have “a rule-like quality” which could easily be identified and applied, with many of the obligations relevant in that case being “expressed in indeterminate language”. As to the consequences of invalidity, the majority in Project Blue Sky emphasised that public inconvenience would result (at [96] to [98], footnotes omitted):

96   Furthermore, while the obligations of Australia under some international conventions and agreements are relatively clear, many international conventions and agreements are expressed in indeterminate language as the result of compromises made between the contracting State parties. Often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed. The problems that might arise if the performance of any function of the ABA carried out in breach of Australia's international obligations was invalid are compounded by Australia being a party to about 900 treaties.

97 Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act. Having regard to the obligations imposed on the ABA by s 160, the likelihood of that body breaching its obligations under s 160 is far from fanciful, and, if acts done in breach of s 160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA.

98 Among the functions of the ABA, for example, are the allocation and renewal of licences and the design and administration of price-based systems for the allocation of commercial television and radio broadcasting licences. It is hardly to be supposed that it was a purpose of the legislature that the validity of a licence allocated by the ABA should depend on whether or not a court ultimately ruled that the allocation of the licence was consistent with a general direction, policy or treaty obligation falling within the terms of s 160. This is particularly so, given that the "general policies of the Government notified by the Minister under section 161" unlike the "directions given by the Minister in accordance with this Act" are not required to be publicly recorded and that even those with experience in public international law sometimes find it difficult to ascertain the extent of Australia's obligations under agreements with other countries. In many cases, licensees would have great difficulty in ascertaining whether the ABA was acting consistently with the obligations imposed by s 160. Expense, inconvenience and loss of investor confidence must be regarded as real possibilities if acts done in breach of s 160 are invalid.

124. Applying these factors to the non-compliance with cl 56 of the Regulations and s 121(1) of the ALRA indicates, in my opinion, and for the reasons advanced by the Registrar, that a breach of cl 56 and s 121(1) was intended by Parliament to give rise to invalidity. First, a consideration of the language of the statutory scheme, its subject matter and objects, suggests that cl 56 and s 121(1) impose an essential precondition to the exercise of the power to conduct an election pursuant to s 121 of the ALRA. The terms of the provision, which imposes requirements on the Chief Executive Officers of LALCs and on the Registrar shortly after the “closing date” of the rolls provided for in cl 55, indicate that certification of the roll is an essential and sequential preliminary step in a process leading to the conduct of an election. The requirements of cl 56(2) reflect the purpose of Pt 5 of the Regulations and s 121 of the ALRA, namely, to provide a regulatory framework for the conduct of a democratic election of eligible persons as councillors of the NSWALC by persons who are entitled to be elected.

125. Second, the text and context of both cl 56 of the Regulations and s 121 of the ALRA is reinforced by the structure of Pt 5 of the Regulations. As earlier observed, cl 56 is located within the “Preliminary” Div 1 of Pt 5, noting that the first step under Div 2 of Pt 5 (calling for nominations under cl 58) is contingent on the receipt of certified rolls relating to a Region from the Registrar. It is the fact that “more than one person has been duly nominated by the close of nominations” which triggers the requirement to hold a contested ballot under cl 65. The roll is marked as ballot papers are distributed to electors (cl 80). The existence of a certified roll is therefore an essential precondition to the statutory exercise of conducting an election for NSWALC councillors. It is the Registrar who is mandated to forward the certified roll to the Electoral Commissioner (cl 56(2) of the Regulations).

126. Third, cl 56(2) is not identified in indeterminate terms. That is, it has a “rule-like quality” which can readily be identified and applied. To borrow from the observations of Simpson J (as her Honour then was) in Hansen v Electoral Commissioner for New South Wales [2004] NSWSC 348; (2004) 132 LGERA 296, applying Project Blue Sky in an electoral context, the provisions of cl 56, and in particular the requirements imposed on the Registrar, are cast stringently (at [49]).

127. Her Honour reiterated this opinion in Bradbery v Hay [2011] NSWSC 623 where she said, “it may well appear that a defect of such a technical (and seemingly unimportant) nature in the Amended Petition ought not to have such drastic consequences as to bring about, by guillotine, the demise of the proceedings. However, authority…is against that conclusion” (at [14]). The failure (one of several) in that case was the omission in the Amended Petition to include the occupations of the attesting witnesses.

128. A similar sentiment was expressed by Martin CJ sitting as the Court of Disputed Returns in Fels v Davies [2009] WASC 138, where, after a detailed analysis of the relevant authorities (at [54] to [82]), the Chief Justice held, applying the approach mandated by Project Blue Sky, that the failure to state the occupation of the attesting witnesses in and of itself rendered an election petition invalid, and therefore, denied the Court any jurisdiction to entertain the petition, however, prosaic that requirement was (at [49], [50], [87] to [89] footnotes omitted):

49   The words used in the relevant provisions of the Act support the proposition that non‑compliance with the requirements of s 158 of the Act renders the petition invalid.

50   First, it is to be noted that s 158 applies to 'every petition', and the requirements of the section are designated by the imperative 'shall'. Second, the words used in s 161 are all embracing and emphatic - 'No proceedings shall be had…'. Third, s 161 and s 163 describe the provisions of s 158 as 'requirements' and 'requisites' respectively. When read with the imperative language used in s 158 and s 161, those words are apt to describe matters that must be satisfied if the petition is to be valid. The Macquarie Dictionary uses the word 'indispensable' in its description of the meaning to be given to the term 'requisite'. Fourth, s 163 of the Act requires the court, in peremptory terms, to inquire whether or not the requisites of s 158 have been observed. The imposition of that obligation in peremptory language is consistent with, and supports the proposition that it was the intention of the legislature that failure to observe the requirements of s 158 would mean that the petition was invalid.

…

87   For these reasons I have concluded that the failure to set out the occupations of the attesting witnesses in the petition lodged by Mr Fels is fatal to its validity and deprives the court of jurisdiction to entertain the petition, which must therefore be dismissed.

88   No doubt Mr Fels and his supporters will regard this conclusion as the triumph of form over substance. There is every justification for that view. Their sense of grievance will no doubt be exacerbated by the fact that the omission of the occupation of the witnesses was encouraged by the form of petition specified in the Electoral Rules, which fails to make express provision for the insertion of those occupations. Plainly the form should be amended to reduce the prospect of future petitioners falling into the same error.

89   However, the Parliament has conferred upon the Court of Disputed Returns a strictly limited jurisdiction, in an area previously regulated by Parliament itself. The clear and unequivocal language used by the Parliament in the legislation which it has enacted, construed in the context of a long line of authorities of which the Parliament can be taken to be aware, compels the conclusion that the validity of any petition, and the jurisdiction of the Court of Disputed Returns, depends upon strict compliance with the statutory requirements. It is the duty of the court to give effect to the intention of the Parliament made manifest in the terms of the statute which it has enacted. Any relaxation of the requirements which have been imposed by the Parliament is a matter for the Parliament, and not for the court.

129. Fourth, having said this, it must be acknowledged that invalidity of the election will have consequences not only for the Registrar, as the person responsible for the failure to comply with cl 56(2), but also for others, especially Toomey who was elected unopposed.

130. Having said this, in NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2002] NSWSC 282; (2022) 251 LGERA 158, Beech-Jones CJ at CL (as his Honour then was), applied a Project Blue Sky analysis to the question of the consequences of a statutory breach in an electoral context and reflected that (at [55] and [65]):

55   It seems unlikely that any election of some complexity could be completely error‑free including errors that amount to a breach of the governing legislation. Some legislative schemes for elections establish a court of disputed returns and confer on them a jurisdiction to hear and determine complaints about the conduct of elections. They often specify a threshold test for the materiality of any breach of the relevant legislation (or other conduct) to the outcome before the court can overturn the result (see for example Electoral Act 2017, s 237). There is no such court for local government elections. Instead, this Court exercises its judicial review function confirmed by ss 23 and 69 of the Supreme Court Act 1970 to determine the consequences that follow from the breach of s 310 of the LGA.

…

65   First, the Electoral Commissioner pointed to the principles applicable to judicial review in circumstances where the Court addresses the consequences of a breach of a statutory provision on some action or decision taken or made under the statute. Hence they pointed to the authoritative statement of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”) at [93] that the relevant “test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid” and that, in determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". The defendants emphasised their Honours’ statement that it was “unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act” (at [97]). However, some care needs to be taken in applying that statement in an electoral context where the breach concerns the denial of the franchise and it is the interests of the electors and not the elected that are paramount. The pursuit of a line of reasoning that an election or a re-election is productive of much “inconvenience” and should not take place, even though there has been a material denial of the franchise, can ultimately lead to a very dark place.

131. His Honour’s remarks are apposite.

132. In Kempsey, the failure of technology assisted voting (the iVote system) administered by the Electoral Commissioner meant that three local government elections were not conducted in accordance with the Local Government (General) Regulation 2021 as required by the LGA, because a small number of voters were unable to gain access to the iVote system due to the high volume of usage. Clause 333E stated that, “if the Electoral Commissioner is satisfied that an applicant is an eligible elector, the applicant must be permitted to vote at the election by means of technology assisted voting in accordance with this Division.” Applying a Project Blue Sky analysis, his Honour concluded that breach of cl 333E was material to the outcome of the election because had there been no breach, the result of the election could have been different. This was because s 285 of the LGA prescribed that the proportional system of voting had to be used to fill council elections for more than one position.

133. As the Registrar submitted, not dissimilar to Kempsey, this case concerns a denial of the franchise insofar as no contested ballot was held by reason of inadvertent administrative error. Notwithstanding the inherent inconvenience that would result in setting aside the election, as Beech-Jones J opined in Kempsey, this is not an end unto itself. I agree with the Registrar, that non‑compliance with the requirements of cl 56(2) of the Regulations ought give rise to invalidity having regard to both the public interest in the fair conduct of NSWALC elections and the interest of electors as persons whose very interests are protected under the ALRA. Such interests would be disadvantaged were it otherwise.

134. Does the existence of s 127 of the ALRA alter this conclusion? In my view it does not. Section 127 is concerned with regulating the threshold of materiality that will apply before the Court will grant relief invalidating an election in the event of certain specified types of errors. Such express materiality requirements are not uncommon in Australian electoral statutes (see, for example, s 237(3) of the Electoral Act). Absent one of the types of errors expressly referred to in s 127 of the ALRA – of which none are present here – the question of whether such materiality exists will be determined by the approach taken in Kempsey in the context of elections (at [66] and [75]):

66   Further, in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; (“Hossain”) at [29], Kiefel CJ, Gageler and Keane JJ held that “ordinarily” a statute which impliedly requires that a condition be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision made in breach of the condition. Instead, “the statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”, namely that “compliance with the condition could have resulted in the making of a different decision” (Hossain at [29] and [31]). This approach to materiality takes as its starting point the decision that was in fact made (CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140 at [47] per Kiefel CJ and Gageler J; MZAPC v Minister for Immigration and Border Protection & Anor (2021) 95 ALJR 441; [2021] HCA 17; “MZAPC” at [38]) and then posits a “counter factual analysis” as to whether compliance with the condition could have resulted in the making of a different decision, the burden of proof of which is on the party alleging invalidity (MZAPC at [35] and [39]).

…

75   Regardless of the basis upon which these Courts have considered the matter, they all accept that, absent any express statutory provision that provides otherwise, there is some threshold of materiality which must be overcome before relief will be granted voiding an election in whole or in part by reason of a breach of a statutory requirement pertaining to the election. If it was necessary to decide I would consider myself bound to subsume the discussion of breaches of statutory provisions concerning elections in the above cases into the framework of Project Blue Sky, Hossain and MZAPC. However, in the end result it is not necessary to go that far. The threshold is certainly above the mere existence of a bare possibility and below more likely than not that a different result would have ensued. For the reasons set out below, within that range, the various formulations, including that the result of the election is rendered uncertain, are all satisfied in this case. In view of the evidence that was adduced any relevant onus was discharged.

135. In Kempsey, Beech-Jones J turned his attention to how the materiality of an irregularity in an election is to be assessed in a case where franchise had been wrongly denied, so that there was no, or at least no direct, evidence of the disenfranchised electors’ intent. This was to be contrasted with a situation in which an irregularity or breach of electoral provisions “involved a candidate being disqualified”. In that type of case, the likely effect of the irregularity on the election can more readily be ascertained (at [76]):

76   Some of the cases addressing the effect of an irregularity or breach of the electoral provisions have involved a candidate being disqualified or votes being wrongly rejected or wrongly counted in circumstances where the voter’s intention can be ascertained. Generally, in these cases the likely effect of the irregularity on the outcome can, to an extent, be ascertained, although the observations of Cole JA in Bourne v Murphy (above at [71]) illustrate that, even then, uncertainty can ensue. However, this case involves the wrongful denial of the franchise to voters so that there is no, or at least no direct, evidence of the disenfranchised voters’ intent. In these circumstances how does the Court assess whether their disenfranchisement was material to the outcome?

136. The present proceedings are an example of the latter type of scenario to which his Honour referred, that is, breach of cl 56(2) of the Regulations has resulted in a candidate, namely, Tatum Moore, being disqualified. Here the effect of the breach on the election is readily ascertainable: there was only one nomination with the consequence that no contested ballot was held. Even if s 127(1) of the ALRA was applicable (which it is not) the provision is not engaged because the requirement that the error “could not have affected the result of the election” is plainly not satisfied insofar as there exists the possibility that had there been a contested ballot a different result would have ensued.

137. The reasoning in relation to materiality contained in Kempsey must now be read in light of the guidance provided by the High Court on this topic in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (at [9]-[16], footnotes omitted):

9   Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.

10   The inquiry posited by each question is wholly backward‑looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious.

11   What must be proved to show what decision was made and how it was made will depend upon the nature of the error. In a common case – of which the present is an example – where the error alleged is breach of a condition governing the reasoning to be undertaken by the decision-maker, the applicant's onus of proving the relevant facts is discharged by nothing more than the tender of the decision‑maker's statement of reasons.

12   Where the jurisdictional error alleged is one concerned with the process of the decision making, such as a denial of procedural fairness, what must be proved by the applicant will depend upon the precise error alleged to have occurred in the decision-making process, having regard to any relevant statutory provisions within the applicable legislative framework. Examples of the types of evidence that have been sufficient for establishing the relevant facts in such cases include the appellate record, and evidence of the content of a document or information that was required to be provided as part of the decision-making process.

13 The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.

14   The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

15   What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

16   In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

138. The possibility of a different outcome had there been a contested ballot in the present case is not “fanciful or improbable” given that it was the intention of Tatum Moore to contest the ballot. While the intention of the potential electors cannot be known, the existence of a contest would have enabled that intention to be expressed, rather than suppressed.

139. The Registrar’s submission as to the satisfaction of the materiality threshold is consistent with the approach that this Court has taken in previous applications to invalidate NSWALC elections based on a person’s eligibility for nomination as a candidate arising from defects in the roll.

140. In this context, the Registrar referred the Court to a triumvirate of authorities to make good the proposition. First, in Connolly Pearlman J held that Burnum Burnum was not eligible to be a candidate for election to the NSWALC. In the result, his election was wholly ineffective and void and there was a vacancy on the NSWALC. Her Honour held that a fresh election was necessary because, in a system of preferential voting for a single member constituency, the Court could not be confident that further counting or a recount (excluding the votes for Burnum Burnum) would produce a result which reflected the true intention of the voters (at 111-112).

141. Second, in Carroll v Ingram (Land and Environment Court, Pearlman J, 13 June 1996), the successful candidate won by a margin of seven votes, however, 17 voters had been unlawfully omitted from the LALC roll. The Chief Judge of the Court declared the relevant election void, holding that relief should be granted in circumstances where the “evidence establishes that a number of people would not have been permitted to vote in an election who would have been entitled to vote, and that the number of those people is such that their votes may have affected the result of that election” (at 11).

142. The third case was Lester v Ellis (Land and Environment Court of NSW, Pearlman J, 21 October 1996), the facts of which bear some resemblance to those in the current proceedings. In Lester, a NSWALC election was declared void in circumstances where the erroneous omission of a candidate from the regional roll led to the denial of her right to nominate. The basis of the challenge to Theresa Ellis’s election was that Narda Ingrey was entitled to nominate as a candidate but was denied the right to stand. Ingrey was on the Tharawal LALC membership roll, but was not, prior to the close of nominations, on the relevant regional roll. Shortly before the close of rolls, Ingrey’s name was added to the relevant regional roll, however, she did not have sufficient time to collect signatures from six nominators and to lodge her nomination form at the Electoral Office in Darlinghurst. The Court held that “any omissions due to administrative error cannot be the responsibility of the individuals whose names are omitted”. Notwithstanding that there was a contested ballot, the Court found that there was a real possibility that the error in denying Ingrey’s right to nominate affected the result of the election, including because of the mere fact that there would have been one more candidate to attract votes. The election was declared void and another election was ordered to be held.

143. Finally, and for the sake of completeness, Toomey’s submission questioning the Court’s power to grant declaratory relief is dealt with.

144. Toomey did not take issue with the Court’s power to declare void the election in prayer 3 of the amended summons. And nor could she, the Court having been expressly conferred with the necessary power to grant this form of relief in s 20(2)(c) of the LEC Act, when read together with s 20(3)(a) of that Act. Rather, she questioned the Court’s power to grant the relief sought in prayer 4, namely, to “declare that the effect of order (3) is that a fresh election for a councillor to represent the Central Region on the New South Wales Aboriginal Land Council is to be held”.

145. The query was rightly raised. Without having to determine the issue, prayer 4 is problematic as drafted. The source of the Court’s power to make a declaration of this kind is not immediately apparent. The more appropriate form of the order, and that which the Registrar ultimately seeks, is that fresh elections be held, which would arguably fall within the ambit of s 20(2)(a) of the LEC Act.

Discretion

146. The Registrar seeks declaratory relief, which is discretionary in nature. I accept that in the circumstances of this case the discretion to refuse relief in respect of an election for the NSWALC that did not involve a contested ballot due to the rejection of a person’s nomination arising from a failure to comply with cl 56(2) of the Regulations is narrow (Kempsey at [110]). In this context, it has been held that the cost, both personal and financial, to individual councillors of a new election is not a discretionary factor that weighs heavily against the grant of relief (Kempsey at [116]). But it must nevertheless be taken into account and I do so.

147. I also accept that the Registrar is not akin to a private party seeking personal advantage which would otherwise have to be balanced against the prejudice to Toomey if a fresh election were to take place.

148. The Registrar submitted that the interests of electors in securing a properly elected NSWALC was paramount, especially when there is a substantial amount of the term left to run.

149. However, as Toomey contended, this paramountcy must be assessed in light of the strict window within which elections are to be held under s 122(1) of the ALRA:

122 Timing of elections

(1)    Elections of all councillors are to be held—

(a)    not sooner than 3 years and 9 months, and

(b)    not later than 4 years and 3 months,

after the previous election of all councillors.

150. In this context it was relevant that the NSWALC election prior to the one the subject of this application was held on 30 November 2019, and therefore, the impugned election held on 24 February 2024, was held within the time period provided for in s 122(1) of the ALRA. Moreover, Toomey was elected to the NSWALC to represent the Central Region at the 2019 election and was re‑elected at the 2024 election.

151. Accordingly, if the 2024 election is declared void, it is unclear whether a consequence of that declaration is that it is now more than “4 years and 3 months” from the “previous election of all councillors” in 2019 (see s 122(1)(b) of the ALRA), but it is too early for another election following the “previous election” in 2024, assuming that the 2024 election remains an “election” despite it being declared void (see s 122(1)(a)).

152. If there are no means by which a fresh election for a councillor to represent the Central Region could be held promptly, despite a declaration that the election is void, this may result in the Central Region not being represented on the NSWALC for a period of time.

153. In circumstances where Toomey has done nothing other than represent the Central Region on the NSWALC for many years, Toomey submitted that this ought to weigh in favour of the Court not exercising its discretion to grant relief in this case.

150. While there is some force in Toomey’s submission, it is not necessary to determine this question in light of the conclusion reached above that the proceedings are time barred. Nor would it be appropriate to do so in the absence of full argument by the parties.

151. But were I to decide, I would err in favour of a declaration of invalidity. To reiterate: “the pursuit of a line of reasoning that an election or a re-election is productive of much ‘inconvenience’ and should not take place, even though there has been [as in the present case] a material denial of the franchise, can ultimately lead to a very dark place” (at [65], emphasis added). In short, inconvenience will rarely, if ever, trump truth in the defence of democracy.

Conclusion and Orders

156. Because I have found that the amended summons is statute barred by reason of the application of s 125(2) of the ALRA, the Court has no jurisdiction to hear the application for judicial review and the amended summons must be dismissed with costs.

157. But for the time bar, for the reasons given above, I would have otherwise granted the relief in the amended summons by declaring the election of Toomey void and ordering that fresh elections for a councillor to represent the Central Region of the NSWALC be held.

158. The formal orders of the Court are therefore that:

1. the amended summons is dismissed;

2. the applicant is to pay the first respondent’s costs; and

3. the exhibits are to be returned.

**********

Amendments

02 September 2024 - Amendment made to paragraph [155] by removing the words "At the risk of repetition, the words of Beech-Jones J in Kempsey echo resoundingly" and replacing with "To reiterate".

08 October 2024 - Amendment made to paragraph [8] by changing date of "30 January 2023" to "30 January 2024".

Decision last updated: 08 October 2024