CITATION: Tuffy v Chadban & Anor [2004] NSWADT 216 DIVISION: General Division PARTIES: APPLICANT
Michael Tuffy
FIRST RESPONDENT
John Chadban
SECOND RESPONDENT
Jan McWilliamsFILE NUMBER: 043110; 043111 HEARING DATES: 02 & 03/08/2004 SUBMISSIONS CLOSED: 08/03/2004 DATE OF DECISION:
09/30/2004BEFORE: 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 1912CASES 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 162REPRESENTATION: 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…
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- AGLC
- Tuffy v Chadban [2004] NSWADT 216
- Case
- [2004] NSWADT 216
- Decision Date
CaseChat Overview and Summary
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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