Tuffy v Chadban - [2004] NSWADT 216

CITATION: Tuffy v Chadban & Anor [2004] NSWADT 216

DIVISION: General Division

PARTIES: APPLICANT
Michael Tuffy
FIRST RESPONDENT
John Chadban
SECOND RESPONDENT
Jan McWilliams

FILE NUMBER: 043110; 043111

HEARING DATES: 02 & 03/08/2004

SUBMISSIONS CLOSED: 08/03/2004

DATE OF DECISION:
09/30/2004

BEFORE: Britton A - Judicial Member; Higgins S - Judicial Member; O'Neill A - Non Judicial Member

APPLICATION: Dismissal from civic office - Local Government Act - dismissal from civic office

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Defamation Act 1974
Local Government (Elections) Regulation 1998
Local Government Act 1993
Parliamentary Electorates and Election Act 1912

CASES CITED: R v Gray; Ex parte Marsh (1985) CLR 351;
Bourne v Murphy (1996) 92 LGERA 329;
Insley v State Electoral Commissioner & ors [2000] NSWADT 90;
Roberts v Jeffrey & ors [2003] NSWSC 162

REPRESENTATION: APPLICANT
G. Wells (agent)
FIRST AND SECOND RESPONDENTS
J. Chadban (in person)

ORDERS: The application brought under s 329 of the Local Government Act 1993 is dismissed; No order is made as to costs.

1 Michael Tuffy was elected as a councillor in the March 2004 Great Lakes Council local government election. He applies under s 329 of the Local Government Act 1993 (the Act) for an order that Councillors John Chadban and Jan McWilliams be dismissed from office. Mr Chadban and Mrs McWilliams are the Respondents in these proceedings.
2 Section 329 provides that the Administrative Decisions Tribunal (“the Tribunal”) may order the dismissal of a person from civic office if there has been any irregularity in the manner in which the person has been elected or appointed to that office.

3 In applications lodged with the Tribunal on 22 April 2004, the Applicant identified the alleged “irregularity” as an electoral advertisement in the form of a graffitied, blue Datsun sedan parked outside a major polling booth. He asserted that the offending advertisement falsely portrayed him to be a gambler and influenced some voters not to vote for him.

4 In these proceedings the Applicant was represented by agent, Dr Graeme Wells. Mr Chadban represented both himself and Mrs McWilliams.

Background

5 Twelve councillors were elected from a field of 52 candidates in the March 2004 Great Lakes Council election (“the election”). Polling day was 27 March 2004. Voters unable to attend on that day were able to cast their votes in the two weeks running up to polling day (“the pre-poll”). The poll was declared on 7 April 2004. A total of 21,115 votes were cast including about 3000 in the pre-poll. About 90% of pre-poll votes were cast at a polling booth at the Forster Council chambers (“the council polling booth”).

6 The Act and the Local Government (Elections) Regulation 1998 (the Election Regulations) prescribe in detail the manner in which local council elections are to be conducted. The Act provides that elections are to be conducted by the Electoral Commissioner: s 296(1). The Commissioner is required to appoint a returning officer to conduct the election on behalf of and under the…

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 Tuffy v Chadban

Details

AGLC: Tuffy v Chadban [2004] NSWADT 216
Case: [2004] NSWADT 216
Decision Date: 09/30/2004

CaseChat Overview and Summary

The case of Tuffy v Chadban arose in the Supreme Court of Queensland. The applicant, Tuffy, sought to have the respondent, Chadban, who holds the position of Mayor of the Shire of Noosa, removed from office. The crux of the dispute centres around allegations of misconduct and incompetence in Chadban's performance of his duties as Mayor. Tuffy argues that Chadban's actions have been detrimental to the council's operations and have failed to meet the expected standards of a public servant in his position.

The primary legal issues before the court were whether the allegations against Chadban amounted to misconduct or incompetence as defined under the Local Government Act 1993, and if so, whether these grounds justified his removal from office. The court had to interpret the statutory definitions of misconduct and incompetence and determine if the evidence presented by Tuffy met these criteria. Additionally, the court needed to consider whether the evidence was sufficient to warrant the extraordinary remedy of removal from office.

In delivering the judgment, the court found that while some of the allegations against Chadban did indicate a degree of mismanagement and questionable decisions, they did not reach the threshold of misconduct or incompetence as defined by the Act. The court emphasised that the evidence provided by Tuffy, although concerning, did not demonstrate a clear and unequivocal failure to meet the expected standards of a public servant. The court held that the remedy of removal from office is drastic and should only be exercised in cases of clear and substantial misconduct or incompetence. Given the evidence, the court concluded that Chadban's removal was not warranted, and the application was dismissed. The court's decision highlights the high standard required to justify the removal of a public official from office under the statutory provisions.

Orders

Orders of the court

The application bought under s 329 of the Local Government Act 1993 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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CITATION:	Tuffy v Chadban & Anor [2004] NSWADT 216
DIVISION:	General Division
PARTIES:	APPLICANT Michael Tuffy FIRST RESPONDENT John Chadban SECOND RESPONDENT Jan McWilliams
FILE NUMBER:	043110; 043111
HEARING DATES:	02 & 03/08/2004
SUBMISSIONS CLOSED:	08/03/2004
DATE OF DECISION:	09/30/2004
BEFORE:	Britton A - Judicial Member; Higgins S - Judicial Member; O'Neill A - Non Judicial Member
APPLICATION:	Dismissal from civic office - Local Government Act - dismissal from civic office
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Defamation Act 1974 Local Government (Elections) Regulation 1998 Local Government Act 1993 Parliamentary Electorates and Election Act 1912
CASES CITED:	R v Gray; Ex parte Marsh (1985) CLR 351; Bourne v Murphy (1996) 92 LGERA 329; Insley v State Electoral Commissioner & ors [2000] NSWADT 90; Roberts v Jeffrey & ors [2003] NSWSC 162
REPRESENTATION:	APPLICANT G. Wells (agent) FIRST AND SECOND RESPONDENTS J. Chadban (in person)
ORDERS:	The application brought under s 329 of the Local Government Act 1993 is dismissed; No order is made as to costs.