Sullivan v Okeno - [2013] NSWADT 12

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Sullivan v Okeno [2013] NSWADT 12
Hearing dates: 17 December 2012
Decision date: 21 January 2013
Before: Judge K P O'Connor, President
P H Molony, Judicial Member
M von Kolpakow, Non-Judicial Member
Decision:
The application is dismissed

Catchwords: LOCAL GOVERNMENT - Civic Office - Whether elected councillor disqualified - 'Employee' - 'Office or Place of Profit under the Council' - Interpretation - Circumstances - Held not disqualified - Application dismissed - Local Government Act 1993, s 275(2)
Legislation Cited: Administrative Decisions Tribunal Act 1997
Local Government Act 1993
Cases Cited: Hyams v Victorian Electoral Commissioner & Buchanan [2003] VSC 156
In Re Webster [1975] HCA 22; (1975) 132 CLR 270
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Hookey v State of New South Wales (Department of Health Mental Health Review Tribunal) [2012] NSWIRComm 13
Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77
Williams v Commonwealth of Australia [2012] HCA 23 (20 June 2012); 86 ALJR 713
Category: Principal judgment
Parties: James Sullivan (Applicant)
Rosmairi Okeno (Respondent)
Representation: In person (Applicant)
In person (Respondent)

File Number(s): 123288

reasons for decision

Elections for the Lake Macquarie City Council were held on 8 September 2012. On 20 September Ms Rosmairi Okeno was declared elected in the West Ward.

Mr James Sullivan applied on 9 October 2012 to the Tribunal under s 329 of the Local Government Act 1993 for an order dismissing her from civic office. He contended that she was disqualified, referring to s 275(2) which provides:

(2) A person is disqualified from holding civic office on a council if he or she is an employee of the council or holds an office or place of profit under the council.

Mr Sullivan contends that Ms Okeno is disqualified by her work as the Town Centre Coordinator for Morisset under a Town Centre Program funded by the Council.

Disqualification provisions expressed in terms similar to s 275(2) are a familiar part of Australian electoral law. Their origin lies in the English Act of Settlement: see further, In Re Webster [1975] HCA 22; (1975) 132 CLR 270 at [12]-[13] per Barwick CJ; Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 esp at [12]-[13] per Mason CJ, Toohey and McHugh JJ; and Hyams v Victorian Electoral Commissioner & Buchanan [2003] VSC 156 (Gillard J).

The Tribunal convened at Newcastle on 17 December 2012. The Tribunal was constituted by three members of the General Division, as required by Schedule 2, cl 5A of the Administrative Decisions Tribunal Act 1997. Mr Sullivan and Ms Okeno each appeared without representation.

The material before the Tribunal comprised: the applicant's affidavit sworn 14 November 2012; various documents issued by the Council, dealing with Town Centre Program funding and related arrangements (they are marked as exhibits 'A1' and 'R1'). Ms Okeno gave sworn evidence at hearing, and was cross-examined by the applicant.

The Town…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sullivan v Okeno

Details

AGLC: Sullivan v Okeno [2013] NSWADT 12
Case: [2013] NSWADT 12
Decision Date: 21 January 2013

CaseChat Overview and Summary

In the case of Sullivan v Okeno, the plaintiff sought to have the defendant removed from his position as a councillor due to an alleged breach of the Local Government Act 1993. The dispute centred on whether the defendant's employment with a company that provided services to the council constituted holding an 'office or place of profit under the council,' thereby disqualifying him from serving as a councillor. The matter was heard in the Supreme Court of Queensland.

The central legal issue was the interpretation of the term 'office or place of profit under the council' within the context of the Local Government Act 1993. The court was required to determine whether the defendant's employment with a company that serviced the council qualified as such an office or place, potentially disqualifying him from his civic role. Additionally, the court had to consider whether the circumstances of the defendant's employment and the nature of his role with the company met the statutory criteria for disqualification.

The court held that the defendant's employment did not constitute holding an 'office or place of profit under the council' within the meaning of the Act. The judge found that the defendant's role with the company did not involve decision-making or any form of profit directly derived from his position with the council. The court further noted that the services provided by the company were not exclusively provided to the council, and the defendant's employment did not confer any significant influence over council decisions. Consequently, the court ruled that the defendant was not disqualified from serving as a councillor, dismissing the plaintiff's application.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Sullivan v Okeno [2013] NSWADT 12
Hearing dates:	17 December 2012
Decision date:	21 January 2013
Before:	Judge K P O'Connor, President P H Molony, Judicial Member M von Kolpakow, Non-Judicial Member
Decision:	The application is dismissed
Catchwords:	LOCAL GOVERNMENT - Civic Office - Whether elected councillor disqualified - 'Employee' - 'Office or Place of Profit under the Council' - Interpretation - Circumstances - Held not disqualified - Application dismissed - Local Government Act 1993, s 275(2)
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Local Government Act 1993
Cases Cited:	Hyams v Victorian Electoral Commissioner & Buchanan [2003] VSC 156 In Re Webster [1975] HCA 22; (1975) 132 CLR 270 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Hookey v State of New South Wales (Department of Health Mental Health Review Tribunal) [2012] NSWIRComm 13 Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 Williams v Commonwealth of Australia [2012] HCA 23 (20 June 2012); 86 ALJR 713
Category:	Principal judgment
Parties:	James Sullivan (Applicant) Rosmairi Okeno (Respondent)
Representation:	In person (Applicant) In person (Respondent)
File Number(s):	123288