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 direction of the Commissioner: s 296(2). In turn, the returning officer is to appoint one or more electoral officers: s 296(3). Stan Day was appointed Returning Officer for this election.

7 Parked outside and near the Council polling booth on the Tuesday, Wednesday and Thursday of the week immediately before the election was a blue Datsun sedan, decorated in graffiti-style bearing the words (on the passenger’s side):

(…) Disposal Expert

Mayor 10 yrs experience?

Proven record?

Graffiti free town?

Or gamblers and Toughies!

Hmmm

8 On the driver’s side was written:
Toughies?

A Gambler?

Or

Mayor 10 yrs experience?

Proven record!

Graffiti free town!

9 Displayed from a window of the Datsun was a poster urging voters to: “Vote 1 Jan McWilliams” and another urging a vote for Ted Bickford. Next to Mr Bickford’s poster were the words, “Graffiti Ted” against a background of a painted brick wall.

10 At all material times the Datsun was parked near Council chambers although it was moved from time to time. Council chambers are located opposite a major shopping centre and the two are separated by a busy road. For much of the time the Datsun was parked directly behind a vehicle prominently displaying electoral material supporting Mr Tuffy.

11 Mr Bickford was known in the Tuncurry /Foster area by the nickname “Graffiti Ted” for his voluntary work in removing graffiti. His daughter was the owner of the Datsun and her fiancé, Michael Collins had spray painted the offending graffiti.

12 The ballot paper issued in this election listed candidates in eight groups. Group A and Group B were identified on the ballot respectively as “Labor” and “The Greens”. Group C to Group G inclusive were not identified by the name of any party or organisation. Nine ungrouped candidates were listed on the ballot.

13 Voters had the option of voting in one of two ways. They could either record an ‘above the line’ vote for a particular ticket or a ‘below the line’ vote for individual candidates. An above the line vote was recorded by placing the number 1 above the line in the voting square for the Group A or B, C, D, E or F Group. A below the line vote was recorded by writing 1 to 13 below the line in the squares opposite the names of individual candidates, in order of preference.

14 Group G candidates, in the order they appeared on the ballot paper, were Mr Chadban, Mrs McWilliams, Terry Groves and Mr Bickford. The word “independent” appeared under each of the names of each member of Group C.

15 Grouped under Group F were seven candidates headed by Mr Tuffy. The word “independent” also appeared under the name of each member of that group.

16 Two Group G candidates were elected: Mr Chadban and Mrs McWilliams. Mr Tuffy was the only candidate elected from Group F.

17 It is common ground that Mr Tuffy is not a gambler nor does he have a reputation to be.

Procedural Issue: Scope of the application

18 On the first day of hearing, Dr Wells made application to effectively broaden the scope of the alleged irregularity set out in the initiating applications made in respect of Mr Chadban and Mrs McWilliams, lodged in the ADT on 22 April 2004. These fresh allegations included that Mr Chadban authorised, printed and distributed 700 copies of ‘Election Alert’ on the reverse side of the ‘How to vote’ card for Karen Hutchinson, an ungrouped independent candidate elected in the March 2004 election. He further asserts that Electoral Alert contained misleading information that was intended to intimidate voters and that it did not comply with a large number of provisions of the Act and the Elections Regulation 1998. These allegations are detailed in the Applicant’s opening submissions (Exhibit A1).

19 It is common ground that these allegations were not raised in the initiating applications. Those applications focussed exclusively on the offending material displayed on the Datsun sedan. Dr Wells explained that these new allegations had only come to light after documents were produced in the course of these proceedings. It would be a substantial injustice, he contended, if these new and most serious matters were ignored in these proceedings.

20 An earlier application lodged in respect of Mrs Hutchinson was dismissed by O’Connor, K DCJ on the ground that it had not been made within the three-month statutory time limit prescribed by s 329(3) of the Act.

21 It is trite law that the Tribunal is a creature of statute and does not have the power to inquire into matters at large that take its interests. Section 37 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) provides that the Tribunal has jurisdiction to act as the primary decision-maker if an enactment so provides.

22 Section 329 gives the Tribunal the power to entertain an application to dismiss a person from civic office and provides:

(1) Any person may apply to the Administrative Decisions Tribunal for an order that a person be dismissed from civic office.

(2) On any such application, the Tribunal may order the dismissal of a person from civic office:

(a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or

(b) …

(3) 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 commenced more than 3 months after the date of the person’s election or appointment to that office.
23 There is no provision in the Tribunal Act or the rules made pursuant to that Act, requiring parties to set out their case by way of “pleadings”. A person making an application under s 329 is required to make an application in the approved form (Schedule 1, clause 14(1) of the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 (the Tribunal Rules) and s 42(b) of the Tribunal Act.) The approved form issued by the Registrar under clause 8(2) of the Tribunal Rules for applications made under s 329 of the Act requires the applicant to set out the “grounds for making the application”. While the approved form requires the grounds of application to be identified there is no requirement to identify the alleged rule or regulation claimed to constitute an irregularity.

24 The Tribunal has broad powers to determine its own procedure: s 73(1) of the Tribunal Act. Section 73(3) instructs it to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form: s 73(3). The Tribunal is at the same time bound by the rules of natural justice: s 73(4).

25 A determination of whether the Applicant should be bound by the irregularity as described in the initiating application requires a balance of what, at times, may appear to be the conflicting directives enshrined in s 73 - on the one hand, to ensure that technicalities and legal form do not prevail over substance, while at the same time affording each party procedural fairness.

26 There is no blanket rule that parties in this jurisdiction are bound by their “pleadings” or initiating application. Whether such rule should apply can only be determined on a case-by-case basis. Parties are required to define their case to enable the Tribunal to determine the issues that divide them, and to prevent cases becoming mired in side issues. It is also a question of procedural fairness. Parties are entitled to know the cases against them.

27 Here, neither party was legally represented. The Application clearly identifies the Datsun as the sole irregularity. The recasting of the irregularity to include the new matters raised by Dr Wells was not announced until the first day of hearing. Taking into account this and other relevant factors, we were not persuaded that the fresh irregularities should be permitted to form part of the application.

Applicant’s case

28 The Applicant asserts that the graffitied Datsun constitutes an advertisement and as a consequence those persons responsible for its distribution and or exhibition breached provisions of the Elections Regulation including r 109(1)(b) and r 111(1). That potential breach, he argues, constitutes an irregularity for the purpose of s 329 for which all Group G candidates are liable through the operation of s 308A of the Act.

29 In the alternative, he submits that the display constitutes an “irregularity”, namely a departure from a rule, established practice or generally accepted principle governing the conduct of an election.

30 The Applicant also identifies the following irregularities:

o The display by Mrs McWilliams of an election poster, which did not comply with the requirement to display the name of the printer and the address where it was printed (s 151E(1)(b) of the Parliamentary Electorates and Elections Act 1912).

o The display by the Respondents of an election poster, namely the graffitied Datsun, that did not comply with r 110(1) of the Elections Regulation and s 151B (1) of the Parliamentary Electorates and Elections Act. These provisions make it an offence to exhibit an electoral poster larger than the “prescribed size” (not more than 8000 square centimetres).

Issues

31 An irregularity for the purposes of s 329(2) extends to an irregularity affecting the conduct of the election which includes the whole proceeding from the first step taken by the returning officer to the declaration of the result (per Bell J in Roberts v Jeffrey & ors [2003] NSWSC 162 at [49]). The parties agree that in determining whether Mr Chadban and /or Mrs Mc Williams ought to be dismissed from office, we should adopt the two-step approach advocated by Beazley JA in Bourne v Murphy (1996) 92 LGERA 329 at 358. Accordingly, in respect of each purported irregularity we must ask:

First, does it represent a potential breach of any provision of the Act or the Election Regulations?

If not, was it “a departure from some rule, established practice or generally accepted principle” per Gibbs CJ in R v Gray; Ex parte Marsh (1985) CLR 351 at 368 and adopted by Beazley JA in Bourne v Murphy at 358.

If there was an irregularity, was it of such a nature either separately or in combination with any other irregularity, that the result of the election was thereby uncertain?

Finally, if the answer to the above question is in the affirmative, should the Tribunal order that Mr Chadban and / or Mrs Mc William be dismissed from office?

Alleged Irregularity One: the Datsun advertisement

32 Before proceeding to consider whether the display of the graffitied Datsun constituted an irregularity, we briefly comment on the issue of liability, the source of much comment in these proceedings. The Applicant asserts that each Respondent is jointly and severally liable for the misconduct (in respect of the election) of the other members of Group G. He contends that each Group G member was responsible for the offending Datsun advertisement. The Respondents assert that they did not authorise or endorse the offending display.

33 Had any person or persons been prosecuted for a breach of the Act or the Elections Regulation, the issue of liability would of course be critical. Proceedings brought under s 329 of the Act, however, are administrative not criminal in nature. It is not necessary for the Applicant to establish that either Respondent participated in the alleged irregularity. It is enough to fall within the first limb of Bourne v Murphy to establish that an “irregularity” occurred. See for example Bourne v Murphy and Insley v State Electoral Commissioner & ors [2000] NSWADT 90 where the respondent councillors were dismissed from office on account of an “error” in the counting of the votes but played no role in the irregularity.

Regulation 109(1)(b)

34 Regulation 109(1)(b) of the Election Regulations makes it an offence for a person to print, publish or distribute a ‘how to vote’ card, electoral advertisement, notice, handbill, pamphlet, or card, containing an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in, or in relation to, the casting of his or her vote.

35 For conduct to be caught by this provision it must be established, first, that the Datsun in whole or part, constituted a how to vote card, electoral advertisement, notice, handbill, pamphlet, or card; second, that it was published, printed or distributed by a person; third, that it contained a statement; fourth, that the statement was incorrect or untrue; fifth, that such statement was intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote.

36 Electoral Advertisement Regulation 109(1)(b) is broadly cast and catches a wide range of material including electoral advertisements. “Electoral advertisement” is not defined in the Act or the Elections Regulation. In the absence of any definition the words “electoral” and “advertisement” are to be given their ordinary and natural meaning. In determining whether the Datsun constitutes an “electoral advertisement”, the vehicle as whole must be taken into account. That includes the signage together with the electoral posters of Mrs McWilliams and Mr Bickford.

37 In our view, the Datsun constitutes an “electoral advertisement”. Whatever the precise meaning conveyed or intended to be conveyed, it advertised the candidature of Mr Bickford and Mrs McWilliams and urged (possibly confusingly) voters to give each their number one vote.

38 Published, printed or distributed The Datsun advertisement was communicated to voters and members of the public. We are satisfied that it was published and /or distributed for the purpose of r 109(1)(b).

39 False or Misleading Statement The more difficult issue is whether the “advertisement” contained a false or misleading statement. This is a question of fact to be determined by asking what would the reasonable voter have understood, taking into account the context in which the “statement” appeared and the surrounding facts and circumstances.

40 The Applicant’s case is that the Datsun advertisement expressly or by inference conveyed the representation that he was a gambler and a “toughie”. In addition he contends it conveyed the meaning/threat that he should be disposed of “perhaps in the Minnibah tip site”.

41 The Respondents contend that any meaning conveyed by the car is at best obscure. They refute the contention that it represents Mr Tuffy to be a gambler and argue that it is simply absurd to suggest that it contains a statement to the effect that Mr Tuffy be “disposed of”.

42 Gambler statement The evidence before us is that a number of people who saw the Datsun advertisement understood it to convey the message that Mr Tuffy was a gambler. Among this group were Mr Tuffy himself, his wife and daughter. While each might have held the honest belief that that was the case, their view, is of limited assistance. None qualify as the “reasonable voter”. All could be expected to be particularly sensitive and alert to any attack on the Applicant’s integrity.

43 However, the evidence before us reveals that the Tuffy family were not alone. Mr Tuffy’s evidence was that about seven people responded to a notice he put up after the election asking anyone who had seen the blue Datsun to contact him.

44 Mrs Wheeler and Roberts each gave evidence that they had seen the car and considered it to be “offensive and derogatory against Mr Tuffy”. Les Antal had not seen the car but said that before the election he overheard people in a shop saying Mr Tuffy was a “shifty gambling type of person”. Messrs Nurcombe and Cassa each claimed that they had been led to believe, after seeing the car, that Mr Tuffy was a gambler and had changed their vote on that account. Mrs Ramsly said she had come forward after hearing the issue discussed on ABC radio and felt tricked as she too had been led to believe that Mr Tuffy was a gambler. With the exception of Mrs Wheeler and Roberts all of these witnesses claimed they had no previous association with Mr Tuffy, though a number conceded that they had met him.

45 Mr Collins’ evidence was that it had been his intention, in decorating the car, to help Mr Bickford “get his name out” in the electorate. He said he did this because he was feeling “a bit defensive” as someone in his family was being attacked. He claimed he had not discussed the project with any of the candidates before he started work.

46 He denied that the gambler reference was directed at Mr Tuffy and claimed it came to mind after reading an article “Anyone for CARDS” (sic), on the Saturday before polling day. His evidence was that the only thing he could now recall from that article is that it called Mr Bickford a “joker”.

47 Mr Collins also said “toughies” was a reference to those people saying it was time to get rid of the mayor. He denied that “toughies” was intended to be a homonym of “Tuffy’ for toughies though he did agree it was a play on words. He said he thought the person/people putting damaging material around about Mayor Chadban were “toughies”.

48 In answer to a question from the Tribunal, Mr Collins said it had been his understanding that Mr Tuffy was the instigator of the campaign against the mayor in the run-up to the election and one of his key opponents.

49 In a statutory declaration tendered by the Applicant, Lynette Lawry, the editor of Great Lake News and one of the candidates elected to council, stated that the March 2004 edition of the newspaper that carried the “Anyone for CARDS” article was not distributed in the Tuncurry area until Tuesday 23 March 2004 or three days after Mr Collins claimed to have started work on the car. Shiony Neal, who claimed to have distributed that edition of the newspaper, corroborated that claim. Mr Collins said that when he worked on the car he had been residing in Foster, not Tuncurry.

50 The article by Lynette Lawry noted that there were 52 candidates for election to the Great Lakes Council and commented that “This is equivalent to a pack of cards without a joker…” She then extended the card game metaphor by describing candidates and their groups in terms of the jargon of bridge and other games. For example, she commented that the ALP group had “only one king in their hand”. The Greens were “six green queens led by the Queen of Clubs (trees)”. Group C, a conservative group, was led by “an Ace in the form of Len Roberts.” She modestly described herself as “the Queen of Hearts … a recognised winner”, belonging to a conservative group. In relation to Mr Tuffy’s group she said:

Group F the extreme right is a hand that has changed colour from red to black. Led by Mike Tuffy, formerly in the ALP right hand is best described as a wildcard and is likely to trump the Alp (sic) Left. Not know how the hand will be played out but some of the lesser numbers are likely to aid the wildcard’s destruction of the ALP hand. Likely to return to Sussex Street and ALP hands after the game is over. Should be a winner.
51 It is not entirely clear whether Mr Collins had had a chance, as he asserts, to see the article before he painted the Datsun with the graffiti in question, but if he had there is only a tenuous link at best between the article and what he wrote on the car. Although the article referred to “winning cards”, “trumps”, “discards”, being “totally euchred” and the “draw pile”, there was no specific reference to gambling as such and certainly no suggestion in the article that Mr Tuffy, as opposed to any other candidate or member of a group of candidates, was associated with gambling or was likely to be irrationally inclined to risk-taking or profligate with ratepayers’ funds if elected to council. Although it is possible that the article started a train of thought in Mr Collins’ mind, the graffiti he produced had nothing to do with the relatively light-hearted and good-humoured, if somewhat laboured, metaphor developed by Ms Lawry in her article.

Did the graffiti constitute an untrue “statement”?

52 The Macquarie Dictionary (1st ed, Sydney, 1981) defines “statement” to mean “1. something stated. 2. a communication or declaration in speech or writing setting forth facts, particulars, etc… 5. the act or manner of stating something.” A statement can be made in a number of ways. A rhetorical question is a device used to convey the answer to itself. It is in fact a statement in the form of a question and is used for dramatic effect. For example, the Commonwealth Bank now advertises its products with the slogan “Which bank?” In that context the question conveys the answer and therefore is a statement of fact.

53 Statements may not be literal. They may, for example, be made by implication. In the days before cigarette advertising was banned, the Winfield brand used the slogan, “Anyhow, have a Winfield” which soon became abbreviated to “Anyhow…” It was plain to most observers precisely what the word “Anyhow…” meant in that context. The representation was implied. A statement may also be made sarcastically, that is, by using words (usually of praise) to convey the opposite of the literal meaning. For example, someone might refer to a politician as “Honest Politician X” meaning to convey by the statement that the politician is dishonest.

54 Defamation lawyers make their livings from proving (or seeking to deny) adverse imputations against character conveyed by implication within a representation. One does not need a degree in linguistics, semiotics or, indeed, in law to recognise that language is frequently layered and complex and capable of bearing multiple interpretations. A statement or representation may, of course, be read in a number of ways depending on the circumstances. In defamation law, a person has a cause of action if a defamatory imputation against him or her is published even if it is conveyed by innuendo. (See s 9 Defamation Act 1974).

55 In our opinion, the use of the homonym “Toughies”, in the context of a display of election material, was intended and could only have been intended to refer to Mr Tuffy and his group. The rhetorical device of combining references to “gamblers and toughies” clearly carried imputations that Mr Tuffy and his group were tough, crude, people prone to excessive gambling and therefore likely to be poor councillors if elected. The questions “Or Gamblers and Toughies? Hmmm?”, “Toughies? A Gambler?” in the context were obviously rhetorical questions making the statement that Mr Tuffy was a gambler and therefore, by comparison with the mayor who had ten year’s experience, a poor candidate for council.

56 As conceded by the Respondents, Mr Tuffy is not a gambler. It follows that the statement was both false and misleading. That it was also capable of misleading voters is proven by the fact that there is evidence that at least a small number of voters was persuaded that Mr Tuffy was a gambler. We are satisfied that the Datsun advertisement contained an untrue statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote.

Minimbah tip site

57 The Applicant contends that the advertisement also stated that he should be “disposed of” in the Minimbah tip site. He asserts this is clear from the words “Disposal expert?” Apparently the tip had been the subject of some controversy in the run up to the election and Mr Tuffy and his team had campaigned against it.

58 The parties disagree as to whether the prefix “A” or “the” preceded the words “Disposal expert?” In our view regardless of whether “the” or “A” was written before “Disposal expert?” it does not convey the meaning claimed by the Applicant. Nor could we be satisfied that Mr Collins intended to make such statement. None of the witnesses who gave evidence that they had changed their vote on the strength of the gambler statement indicated that they understood the graffiti to state that Mr Tuffy should be disposed of. Alleged Irregularity Two: Omission of reference to printer

59 The second irregularity identified by the Applicant is Mrs McWilliams’ failure to comply with s 151(1)(b) of the Parliamentary Electorates and Elections Act by distributing an election poster (Exhibit R7, Document 10) that did not display the name of the printer and the address where it was printed. It is not in issue that the offending poster was a poster to which s 151E applied that is, among other things, it contained “electoral matter” as defined by s 151B.

60 The offending poster contains a large photo of Mrs McWilliams under which was written: “Your experienced voice in Council”. Beneath those words in small print was written: “Printed and Authorized by J McWilliams, Oasis Pde, Tuncurry”.

61 Mrs McWilliams’ evidence, accepted by us, is that she printed the poster on a commercial photocopier housed in her home garage. Accordingly there is no breach of s 151E.

Alleged Irregularity Three: size of poster

62 The third alleged irregularity is the size of the Datsun advertisement. By the operation of r 110(1) of the Elections Regulation and s 151B of the Parliamentary Electorates and Elections Act it is an offence for any person to post up or exhibit any poster that exceeds “the prescribed size”, namely more than 8000 square centimetres. “Poster” is broadly defined to mean any electoral matter printed, drawn or depicted on any material whatsoever: s 151B(6) Parliamentary Electorates and Elections Act.

63 The Applicant must establish, first, that the graffitied Datsun constituted a poster and second, that it exceeds the prescribed size. Poster is broadly defined to mean “any electoral matter printed, drawn or depicted on any material whatsoever and where any electoral matter is printed, drawn or depicted in sections, such sections, both severally and collectively, shall be deemed to be a poster”(s 151B(6)). It seems us that the graffiti painted on the Datsun constitutes a poster.

64 While we heard no evidence of the dimensions of the offending “poster”, as a matter of common sense it seems that the combined area of the exterior of the car’s passenger and driver’s side would exceed 8000 cm. Accordingly, we find there has been a breach of r 110 of the Elections Regulation.

Is the nature of the irregularities such that the result of the election is rendered uncertain?

65 The Applicant bears the onus of establishing that the result of the election of Mrs McWilliams and or Mr Chadban was rendered uncertain on account of the proven irregularity namely, the breaches of r 109(1)(b) and r 110(1). It is insufficient to base a finding that the outcome of the election was uncertain on mere speculation or conjecture. The issue for us to determine is whether there is evidence that these irregularities either separately or in combination, rendered the election of Mr Chadban and /or Mrs McWilliams uncertain.

Counting of Votes

66 To understand the submissions of the parties it is necessary to look briefly at the method of counting votes employed in this election - that is the proportional representative system as described in Schedule 2 of the Elections Regulation.

67 Central to that system is the notion of “quota”. The quota is calculated by dividing the total number of formal first preference votes by the number of candidates to be elected plus one. Candidates who receive at least the quota of first preference votes are automatically elected. Any first preference votes received by elected candidates in excess of the quota (surplus votes) are transferred to the next candidate nominated on the ballot paper and counted towards that candidate’s vote. A transfer value is applied to the distributed votes, calculated by dividing the number of surplus votes by the preferences transferred.

68 This process continues until there are no more surplus votes to transfer. The quota remains unchanged throughout the count.

69 If, as in this case, the requisite number of councillors have not been elected and, there are no more surplus votes to transfer, the candidate with the lowest number of votes is identified and excluded from the count. Their vote is transferred to the next available preference recorded on the ballot paper. All votes transferred from excluded candidates have a value of one. That process is repeated until the requisite number of candidates have achieved through the preferences of other candidates and their own first preference votes, if any, the designated quota.

70 In this election 21,115 votes were cast, of which 19,213 were formal. A document headed “Final Count Sheet” (Exhibit R 7, document 7) sets out the results of the count.

71 Here the quota was 1481. John Chadban, Len Roberts, John Weate and Mike Tuffy exceeded the quota on first preference votes and were elected. Jan McWilliams received 568 first preference votes, which was not enough to meet the quota. Nevertheless she was elected through the transfer of surplus votes of elected candidates.

72 Following the election of Ms McWilliams, the candidates with the lowest number of total votes were excluded from the ballot. The first candidate to be excluded was R Harbach, the sixth person on Mr Tuffy’s ticket (the ticket). Michael Horcicka (number seven on the ticket) was excluded on the ninth count; Philip McAsey (number five on the ticket) was excluded on the 11th count; Keith Monifiore (number four on the ticket) was excluded on the 16th count; Graeme Spicer (number three on the ticket) was excluded on the 29th count; Irene Wheeler (number two on the ticket) was excluded on the 41st count.

73 The following candidates were elected (in order). The number of first preference votes received by each is set out below.

John Chadban


Len Roberts


John Weate


Mike Tuffy


Jan McWilliams


John Stephens


Leigh Vaughan


Col Cookson


Lynette Lawry


Carol McCaskie


Karen Hutchinson


Linda Gill

3073


2860


2792


1914


568


1225


76


77


1218


694


531


915

Submissions

74 The Respondents submit that an analysis of voting trends in the election reveals no material difference in the proportion of votes received by Mr Chadban, Mr Tuffy and Mrs McWilliams at the Forster Council polling booth during the pre-poll period or on polling day. Further, they assert that the proportion of votes each received was broadly uniform across all booths. They contend that this debunks the Applicant’s assertion that the Datsun advertisement caused Mr Tuffy and his team to lose votes to the Respondents. If that were the case, they contend, it would be reasonable to expect that Mr Tuffy’s vote would have suffered at the Forster pre-poll in comparison with other booths; yet it did not.

75 They contend that that both Respondents won handsomely while Irene Wheeler, the number two on Mr Tuffy’s ticket was still over 1,000 votes short when excluded from the ballot. Given the handsome margin each enjoyed it is simply fanciful they argue to suggest that their respective election was in any way uncertain.

76 Dr Wells submits that the analysis of voting trends relied on by the Respondents must be approached with some caution. He asserts that it is notoriously easy to manipulate statistics and the Respondent’s submissions must be approached with that in mind. Dr Wells contends that the uncontradicted evidence of some voters that they turned their backs on Mr Tuffy on the strength of the Datsun advertisement establishes that the election was rendered uncertain. He points out that it is not necessary to establish that the election results would have been different, relying on Jeffery & ors v Roberts [2002] NSWADT 57 at [53].

77 The Applicant has not specifically addressed how the failure of the poster to meet the legislative size restrictions rendered the election (of the Respondents) uncertain. We understand him to argue that that the prominence of the “poster’ is a relevant factor to be taken into account.

78 Both parties point to the voting trends in past elections to support their respective positions. The Applicant contends that based on past performance at least one other candidate in Group F, in addition to himself, should have got up. He argues that the only plausible explanation for the poor performance of his team is that “his” votes were siphoned off to Mr Chadban and his running mates because of the Datsun advertisement. The Respondents contend that it was simply fanciful that more than one member from Mr Tuffy’s team would be elected. They point to the fact that at the last election Mr Tuffy was the endorsed Labor candidate, not an independent, and therefore any analysis based on past performance is unhelpful.

Findings and conclusions

79 The evidence shows that the Datsun was clearly visible in a busy area near the Council chambers and the Forster shopping centre for about 48 hours in the week immediately leading up to polling day. We know that about 10% of votes were cast at the Council pre-poll but not the exact number cast during the period time the Datsun was on display. It is not possible to say with any accuracy how many people saw the car but it is clear that the car was parked in a busy area and we accept the Applicant’s claim that it would have been more than an insignificant number.

80 The evidence before us is that a handful of people, who otherwise intended to vote for Mr Tuffy, did not do so after seeing the car. It would be reasonable to infer that these were not the only people to change their vote after seeing the car. We cannot say, however, with any precision the number of people who saw the car and acted on it in the manner suggested by the Applicant.

81 To succeed in his application Mr Tuffy must establish on balance that the election of Mr Chadban and Mrs McWilliams was uncertain on account of the proven irregularity or irregularities. It is not enough for the Applicant to prove that he and his team lost votes on account of the gambler slur. It must be established that Mr Chadban and/or Mrs McWilliams were the beneficiaries of any redirected votes in sufficient numbers so as to render their respective election uncertain. While an indeterminate number of voters may have turned their backs on Mr Tuffy and his team, it does not follow that their votes were re directed to the Respondents. While the Datsun advertisement might have been seen by some to have been endorsed, or in some way associated with the Chadban team, it does not necessarily follow that the Respondents benefited as a result. While it is possible that they did, equally it is possible that voters who decided against voting for Mr Tuffy redirected their votes to candidates other than those on the Chadban ticket. Here over 50 candidates and seven groups stood for election. This was not a two-horse race where any loss to one group resulted in a gain for their opponent. Indeed, it is possible that some voters who saw the Datsun considered it to be gutter politics at its worst and decided not to vote for Mr Chadban and his team as a result. The evidence before us is inconclusive and we can but speculate on the extent to which if any votes were siphoned off from the Tuffy team to the Respondents.

82 In this election, Mr Chadban and Mrs McWilliams were comfortably elected. Mr Chadban received the highest number of first preference votes cast and Mrs McWilliam scored fifth place in a field of twelve successful candidates. This is not a case where each won by a small margin and even a small number of redirected votes might plausibly have rendered the outcome uncertain.

83 It may be that Mr Tuffy’s hypothesis is correct and the election of each Respondent was uncertain because of the false representation. However, there is insufficient evidence to establish that a sufficient number of voters saw the advertisement and acted upon it to the advantage of either Respondent. On balance, we cannot be satisfied that the election of either was rendered uncertain on account of the irregularities either separately or in combination. Accordingly we dismiss the application.

Costs

84 No order for costs.

Orders

The application bought under s 329 of the Local Government Act 1993 is dismissed.

No order is made as to costs.