Briscoe-Hough v Tegg and Ors

NCAT Occupational|2018-02-15|Before: Dr J, Gregory J

Introduction and background

By application filed in the Tribunal on 12 September, 2017 the applicant, Gregory J Briscoe-Hough sought orders under section 329 of the Local Government Act 1993 NSW ("the Act") and unspecified Regulations seeking substantially that the first respondent, Warren Tegg, the second respondent, Constantine Hindi, and the third respondent, Lupco Konjarski, be dismissed from the office of councillor of the Mortdale Ward of the Georges River Council. They had been so elected at an election held on 9 September, 2017 to which they had been declared elected on 16 September, 2017. The application also sought certain orders against a named fourth respondent, Gavin Tenant, the Returning Officer and a fifth respondent, Greg Copson, an Election Manager, both of whom had involvement in the election of the first to third respondents through the NSW Electoral Commission.
Consent directions and orders were made by a Principal Member of the Tribunal on 28 November, 2017 by which, inter alia, the application against the fourth and fifth respondents was dismissed.
When the proceedings came on for hearing on 15 February, 2018 an application was made by the Electoral Commissioner of NSW ("the Commissioner") to be joined as a party to the proceedings. The application was made on the basis that the Commissioner would be able to provide assistance to the Tribunal and act as an effective contradictor in circumstances where the applicant foreshadowed that as part of his case, he wished to raise arguments concerning the nature and extent of the duties and responsibilities of the former fourth and fifth respondents, as being relevant to our consideration of the determination of these proceedings. None of the parties raised any objection to this application being granted, and because we apprehended that the assistance of the Commissioner to be provided through Ms H Sims of the Crown Solicitor's Office would be helpful, we joined the Electoral Commissioner.

The substance of the applicant's application

The basis for the application is to be found in section 329 of the Act which is in the following terms; 329 CAN THE HOLDER OF A CIVIC OFFICE BE DISMISSED? (1) Any person may apply to the Civil and Administrative 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) if the person is disqualified from holding civic office. (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. (4) If the proceedings are based on the ground that a person is disqualified from holding civic office, the Tribunal may refuse to order the dismissal of the person from that office if it is satisfied: (a) that the facts and circumstances giving rise to the disqualification are of a trifling character, and (b) that the acts which gave rise to that disqualification were done in good faith and without knowledge that the person would incur disqualification by doing those acts. (5) Subsection (4) does not apply to a person who is disqualified from holding civic office by a decision of the Civil and Administrative Tribunal under section 482 or by a decision of the Governor under section 440B.
The applicant's case was confined to the provisions of section 329(2)(a). This directs attention to the necessity to find that there has been an irregularity in the manner in which the three named respondents, or any of them, has been elected. We shall return to the meaning to be assigned to the words of this subsection later, because it was the subject of considerable debate and contention in the proceedings. The applicant alleged that there were errors in the contents of nomination forms completed by the respondents which, in the circumstances, would constitute an irregularity in the manner in which they had been elected. The applicant further alleged that he had nominated to participate in the same election in the same Ward as a councillor, and that his nomination had been incorrectly rejected by officers of the Electoral Commission. It was asserted by him that his having been inappropriately precluded from participating in the election created an irregularity in the manner in which the respondents had been elected. This was because the alleged irregularity that resulted in him not having participated in the election ballot enhanced the prospect of election of all of the other candidates which itself constituted an irregularity for the purpose of section 329 of the Act. Furthermore, the applicant asserted that in some manner the agents of the Electoral Commission had failed to assess and process his nomination form in a proper and timely fashion, had presumably thereby precluded him from correcting any deficiency in his nomination form, had inappropriately dealt with a withdrawal of nomination form and these matters had also created an irregularity in the same manner.

The applicant's primary argument

The applicant, in the course of the presentation of his case, focused attention on what he characterised as his primary submission. This related to the fact that he had nominated for the same election in the same Ward as the three named respondents, and that his nomination had been inappropriately processed. It was this which he said constituted an irregularity for the purpose of section 329 of the Act and upon which his case for dismissal of the three respondents and the consequential holding of fresh elections was based.
Each of the second and third respondents, and the Electoral Commissioner complained that they had difficulty in understanding the basis for the applicant's case. We also encountered difficulty in this regard. This is because the applicant expressed himself in cryptic language, making it difficult to comprehend and deal with such factual matters as form the basis for this primary argument.
As best we understood the factual basis for the applicant's case gleaned from a number of written submissions and supporting documentation and his oral presentation, he had signed a Nomination Form for Councillor dated 9 August, 2017. It appears to have been received by the Returning Officer at 11:37 AM that day. There is a handwritten notation which appears to have been signed by the Returning Officer at 11:37 AM on the same day that the Statutory Declaration which formed part of the Nomination Form had been incorrectly completed by the authorised witness who had failed to indicate whether or not he had seen the applicant's face or had known the applicant for at least 12 months or had confirmed his identity using an identification document. We deduce from information provided by the applicant that the nomination form was rejected. In written submissions the applicant raised the question whether there was an irregularity which was constituted by the failure of the Returning Officer to consider whether the nomination form had been appropriately completed and was valid in accordance with "regulation", unspecified, and whether the Returning Officer had made any assessment of the "alleged irregularity" and provided any opportunity to the applicant to amend or correct it. The submission asked whether, in the circumstances, the form had been "properly processed" by the Returning Officer. Finally, the submission asked whether the deficiency created by the failure of the authorised witness to specify which of the alternative methods of identification were used was assessed and processed, presumably by the Returning Officer prior to noon that day. We shall assume that the reference to "noon" has some significance in the nomination process, although this does not appear to be identified in the applicant's material.
The applicant then referred to a Withdrawal of a Candidate form which he appears to have lodged with the Returning Officer at 11:59 AM on 9 August, 2017. This form constituted a withdrawal of his previous nomination. There is a notation on it indicating that a candidate might withdraw a nomination by providing a signed notice in that form to the Returning Officer before the close of nominations at 12 noon on the "Nomination Day". A Nomination Cover Sheet which appears to have been completed by the Returning Officer and forwarded to the Head Office of the Electoral Commission with reference to the applicant's nomination of 9 August, 2017 received at 11:37 AM contains the notation "Nominee's authorised witness….. didn't cross out relevant sections of 1 and 2 - he subsequently withdrew as a candidate one minute before close of nominations." In his submissions the applicant raised a question whether his withdrawal form was lodged prior to, at, or after the close of nominations and dealt with in accordance with Regulation 295. Presumably, this is a reference to the provisions of Part 11 of the Local Government (General) Regulation 2005 which requires the attendance of the returning officer at the place of nomination on the nomination day to announce any withdrawals of nominations and cancel the nomination papers of persons who have withdrawn. The returning officer is then required to nominate persons for election whose nomination papers he or she believes to be valid and to have not been cancelled. It may be assumed, therefore, that in some way the applicant is challenging compliance by the Returning Officer with the provisions of this regulation on 9 August, 2017, but in a manner which is not specified and is incapable of being comprehended by reference to any written submissions of the applicant and any documents produced by him in support of this application.
Finally, the applicant said in one of the documents filed by him; "Irrespective of the timing of the withdrawal, was it valid in light of the actions of the Election Manager who, without statutory authority, threatened the termination of the applicant's spouse's employment should the applicant proceed with nomination?" Nowhere have we been able to detect any material of any kind which would support this allegation, let alone provide any factual context.
The applicant's primary argument is thus based on an allegation that he may have been inappropriately excluded as a candidate for the election in circumstances where he had admittedly sought to withdraw as a candidate. There is no specific allegation that his withdrawal was directly caused either by the rejection of his nomination form or by some undue pressure placed on him related to his wife's employment. His vague references to these matters lack specificity and appear to rely on same vague inferential bases. No "irregularity" has been identified.
The focus of attention of section 329 is a person who holds civic office. By subsection (2), there are two bases for dismissal. The first refers to any irregularity "in the manner in which the person has been elected." Subsection (2) contains a composite phrase which limits the irregularity to one pertaining to the manner in which the particular person has been elected. It is therefore confined to the circumstances of that person and the electoral process which has been undertaken with respect to the election of that person. Seen in this way, section 329 of the Act clearly applies to any attack which the applicant wishes to maintain concerning the circumstances surrounding and pertaining to the election process by which each of the three named respondents was elected in terms of whether there was a relevant irregularity. As will be seen, the provisions of this section cannot be used as the basis for an attack on their election by reference to an irregularity with no proven nexus with the processes surrounding their election. If there was no relevant irregularity pertaining to the manner of their election, how can it be said that in some way there was any irregularity in the manner in which they were elected?
In the context of the applicant's primary argument, it is true that there are cases which suggest that where the totality of an election process is flawed, then the election of all successful candidates may be called into question. This may be illustrated by reference to the judgment of Beazley JA (as her Honour then was), in the NSW Court of Appeal in Bourne v Murphy [1996] NSWCA 59. In discussing the concept of an irregularity her Honour said; Meaning of "irregularity" The Macquarie Dictionary defines "irregular" to mean "not conforming to rule, or accepted principle, method, course, etc." "Irregularity" has a corresponding meaning. The Oxford English Dictionary defines "irregularity" to mean "want of conformity to rules, deviation from or violation of a rule, law or principle". The meaning of the word "irregularity" was considered by the High Court in R v Gray; ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351. Gibbs CJ stated at 368: "The notion of an irregularity in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election." It is also clear from R v Gray that an irregularity includes matters which affect the declaration of the poll. See also Re Collins; ex parte Hockings (1989) 87 ALR 656 at 657, 658 and 659. The construction of the word "irregularity" in R v Gray was in the context of the phrase "in or in connection with an election". The phrase here is "any irregularity in the manner in which the person has been elected". "Manner" is defined in the Macquarie Dictionary to mean "way of doing, being done, or happening; mode of action". The Oxford Dictionary definition is the "way a thing is done". In my opinion, subject to one further consideration, the difference in wording between s 329 and that under consideration in R v Gray makes no difference to the meaning of the word "irregularity" in s 329. However, I am of the opinion that it is not any irregularity which suffices for the purpose of s 329. Rather, it must be an irregularity such that the result of the election is thereby uncertain: see Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582. That case involved the election result for the Denison Ward in the 1915 City of Sydney Council elections. Thirteen persons had impersonated enrolled electors, 12 of whom did not vote. It was not possible to determine the candidates for whom the impersonators had voted. Section 56 of the Sydney Corporation Act 1902 (NSW) provided: "(1) If it appears upon affidavit that any person declared to be elected...an alderman has been unduly elected...the Supreme Court, or any Judge thereof, may grant a rule or order calling upon such person to show cause to the Court why he should not be ousted of the said office. (2) Upon the return of such rule or order, if it appears to the Court that such person so elected...was unduly elected...the Court may make such rule or order absolute &c." Isaacs J, having reviewed the decided cases on the point, stated at 623-4: "I condense the result [of the authorities] into the following relevant propositions:- (1) The election of an officer - in other words, his selection by the constituency - may be attacked only for a defect which affects him. (2) If the defect strikes at the entire election, either because there was no real election at all or because some official irregularity has occurred, he is affected because his title is claimed through it, and he must meet the defect if he can. (3) If there has been no real election, his selection so-called is necessarily void. (4) If there has been any official irregularity in the conduct of the election, where the law requires absolute and strict adherence or where the irregularity is so great as to depart substantially from a directory enactment, his selection so-called is void unless he can show the result could not have been affected by it. (5) Where the defect complained of does not strike at the election as an entirety, but is confined to some breach of law in individual instances, then he is not necessarily affected, and is not affected at all unless he or his majority is shown to be connected with the defect. (6) If the law does not provide any means of so affecting him he is not affected, and, as his selection cannot be regarded as unduly made, it must rest where it is."
Accordingly, if it could be said that by some defect the entirety of the election for the Ward of that Council was called into question, then arguably none of the three named respondents may have been validly elected and would therefore be susceptible to dismissal under section 329. However, as will become clear, we can only deal with a specified claimed irregularity, and this is not the case that the applicant has sought to make out. As we have stressed, the facts surrounding his nomination and its withdrawal are imprecise, and the manner in which any defect occurred has not been stated with any relevant or appropriate specificity.
During the course of his oral submissions we engaged with the applicant concerning this primary argument which he advanced. He endeavoured to demonstrate the impact of his exclusion from the ballot by reference to the number of votes which he had secured in another election four years previously, in which he had also been unsuccessful. He asserted, however, that there were a significant number of votes cast in his favour which at the same level would have provided him with an opportunity of being successful in the election held in September 2017.
We precluded the applicant from calling and seeking to rely on the evidence of Mr Greg Copson, the Election Manager and Mr Gavin Tennant, the returning officer and seeking to rely on whatever evidence they might provide in oral evidence for two reasons. Firstly, because, as the Intervener submitted, the applicant has not identified which breaches of the Act and Regulations would give rise to an irregularity that would attract the provisions of section 329. Indeed, he has not identified with any precision just what was the irregularity which he was asserting. His assertions, at best, are based on a number of rhetorical questions, with no specific substance. Accordingly, any attempt to examine any of the officials concerned in the election process as to the circumstances surrounding the timing of the lodgement of his nomination, the timing of notification of the deficiency, and the timing of his withdrawal of the nomination would involve the undertaking of an extensive investigative and forensic process carried out on a speculative basis and which could be characterised as "a fishing expedition." Even if some conduct on the part of either of these persons could have been called into question, it would still be necessary to identify some relevant breach of the Act or Regulations which would create an irregularity so as to form the basis of the exercise of jurisdiction and power under section 329. We have not been referred to any asserted breach of any specific provision or any other particularised matter which, if demonstrated, would constitute an irregularity. We agree with the submissions of the Intervener that this Tribunal does not have jurisdiction and power under section 329 "to conduct a free-standing enquiry" into any question raised by the applicant.
Secondly, as we pointed out to the applicant at the time, if we did permit him to pursue this aspect of his application, it would be necessary for him to demonstrate, for reasons which we shall shortly discuss, that the result of any irregularity would render the results of the election uncertain. Thus, it would be necessary to litigate the likely results of the election if the applicant had been permitted to stand. The only evidentiary material proffered by the applicant were election results for that Ward for the previous election in which the applicant had been unsuccessful. This would involve a consideration of whether and to what extent the political scene and voting patterns which applied to a Ward at that time of a Council which, incidentally, no longer exists would provide some reasonably reliable guide to what might have happened in September 2017. The well-known vagaries of the political process would require some detailed political analysis, none of which was provided by the applicant. The most the applicant could provide was his own tentative individual opinion. There was simply no relevant evidentiary basis proffered by the applicant to enable this matter to be considered by us. Accordingly, any further consideration of his primary submission would be futile.
For these reasons the primary argument advanced by the applicant must fail. These reasons should come as no surprise to the applicant, because we endeavoured to explain to him in the course of dialogue during the hearing that this was the approach which we intended adopting. Accordingly, it is necessary to consider the subsidiary arguments of the applicant which were directed to the personal circumstances of each of the respondents.

The relevant principles applying to the applicant's subsidiary argument

The approach to the application of the provisions of section 329 to the circumstances of any irregularity applying to a person who holds civic office is well-established by authority. We return to the judgement of Beazley JA in Bourne previously referred to. Her Honour was the only member of the Court to find that section 329 did not permit a discretion to apply once an irregularity had been found. However, her Honour determined that for the section to apply, the irregularity must be "such that the result of the election is thereby uncertain." And in order to so determine the court would need to be satisfied that the "evidentiary onuses" had been discharged that the election was uncertain because of the identified irregularities.
We add for completeness that of the other members of the appellate bench in that case, Priestley JA did not consider whether such a discretion applied, and Cole JA held that there was a discretion in the Court whether to apply the section once an irregularity of the requisite kind had been established. For our purposes, we are content to apply the approach of Bell J (as her Honour then was) in the NSW Supreme Court in Roberts v Jeffery [2003] NSWSC 162. Her Honour accepted the approach of Beazley JA in these terms; 61 Beazley JA in dealing with the question of whether the terms of s 329(2) conferred a discretion said at 365: "Three matters are to be noted about s 329. First, if the court is satisfied that either par (a) or (b) of subs (1) is satisfied, only one remedy is provided - namely, dismissal from office. Thus, the consequences of granting a remedy are serious. This consideration may be an indication that the granting of relief under the section is discretionary. However, the holding of a civic office is an important and serious matter. Relevantly, a person may only hold the civic office of a councillor if qualified under the terms of the Local Government Act to do so and if duly elected by electors entitled to vote in the election at which the councillor was elected. It follows that a councillor not satisfying those preconditions is not entitled to hold office under the Act. Secondly, if an irregularity under the section was constituted by a wrong classification of, for example, a single ballot-paper, it would be extraordinary if relief thereby had to be granted under the section. However, as I have already stated, before there can be an irregularity under the section, it must appear that the result would have been uncertain. Therefore, this consideration is at least neutral in determining whether relief under the section is discretionary. The final matter to note about the section is that subs (3) confers a limited discretion on the court not to dismiss from office. That discretion is limited to a case under subs (1)(b), that is, where a person is disqualified from holding public office. Section 275 specifies the circumstances in which a person is disqualified from holding public office. They include whilst a person is disqualified from being an elector, whilst a judge or whilst serving a sentence for a felony, except a sentence imposed for a failure to pay a fine. The matters relevant to the exercise of the discretion are also specified in the subsection. The matter must be trifling and good faith and lack of knowledge must be established. In my opinion, those matters indicate that, upon its proper construction, subs (1)(a) does not confer a discretion on the court to make an order. If an irregularity within the section is established, the court must order the dismissal of the person from the office. As I have found an irregularity has been established, an order dismissing the appellant from public office must be made." 62 I approach this appeal upon an acceptance of the reasoning of Beazley JA with respect to the meaning of the word "may" in s 329(2) of the LGA.
It follows that as a matter of general principle in considering the cases brought by the applicant with respect to each of the three individual respondents, it is first necessary to identify whether there has been an irregularity and, if so, whether that irregularity renders the results of the election to be uncertain.
Importantly also, in order to find that any irregularity rendered the results of the election uncertain, there must be a necessary factual basis for so determining. So much is clear, if clarity for such a fundamental proposition is necessary, from the observations of the Administrative Decisions Tribunal of NSW in Lowe v Feeney [2009] NSWADT 124. In those proceedings, the Tribunal was called upon to consider whether the fact that a candidate who had inserted her business address on the nomination form when asked to specify her place of residence had thereby created any irregularity which rendered the results of the election uncertain. The Tribunal found that there was such an irregularity, and in dealing with the necessary factual evidence concerning the effect on the outcome of the election, the Tribunal said; 28 For the purposes of this matter, it is sufficient for the Tribunal to find that there was an irregularity. This then leads to the second issue, whether because of the irregularity the result of the election is rendered uncertain. This is a matter of evidence. 29 The Tribunal recognises, as a matter of common knowledge, that a candidate's local connections can potentially be a significant factor in elections. In the Tribunal's view, such local connections include not only whether the candidate lives in the area, but also, for example, whether they work in the area, whether they have any family connections in the area, whether they were educated in the area or whether their children go to school there, and whether they have particular interests in the local area in terms of the environment, business etc. However, at issue in this case is whether there is any evidence that the irregularity in Mrs Feeney's completion of the 'Candidate Information Sheet' had any effect on the result of the Council election so as to render the result of the election uncertain. 30 There is very little relevant evidence before the Tribunal. The evidence of the election results for the fourth ward of the Rockdale LGA provided by Mr Briscoe-Hough shows that Mrs Feeney was elected by a margin of 391 votes over the next candidate. Thus, a change in the distribution of the 88 votes cast for Mrs Feeney personally (as opposed to the 1953 votes cast for the Liberal Party group of candidates as a whole), may not have had any effect on the outcome. Apart from Mr Lowe's having stated that he would not have voted for Mrs Feeney in the light of the demonstrated irregularity, there is no evidence that any other elector would have voted differently. There is also no evidence that, in this particular election, and bearing in mind Mrs Feeney's other local connections to the area, if the fact that she does not live in the area had become known to electors as a result of her correctly stating her 'Full Residential Address' on p 5 of the 'Candidate Information Sheet', this would have had an effect on the outcome. Indeed, there is no evidence that any elector examined the 'Candidate Information Sheet' prior to the election. 31 In conclusion, the Tribunal is not satisfied that because of the irregularity the result of the election was rendered uncertain. Thus, there is no basis on which the Tribunal could order the dismissal of Mrs Feeney from civic office and Mr Lowe's application is therefore refused.
We note that in those proceedings, the applicant in these proceedings appeared as agent for the unsuccessful applicant. Accordingly, there can be no doubt that at least in 2009, and hopefully to this day, the applicant was and is aware of the necessity to provide some proof of the causal nexus between the irregularity and the outcome of the election.

General factual material applying to the applicant's subsidiary arguments

Having regard to these observations we now come to deal with the circumstances pertaining to each of the three named respondents. However, by way of general preamble to the circumstances of all three respondents we shall briefly refer to the Nomination Form which is required to be completed by a person nominating for election as a Councillor. The form is divided into parts as follows; Part A Candidate Details Part B Ballot Paper Details Part C Candidate Contact Details Part D Candidate Consent Part E Candidate Information Sheet Part F Statistics Form Part G Nomination Deposit Refund Form.
There is a notation with respect to Part E, the Candidate Information Sheet, to the effect that the Electoral Commission is required to publish its contents on its website and to make it available for inspection at the office of the Returning Officer and at polling places. Predominantly, therefore, it is the information contained within this Part which is primarily sourced by electors who may wish to make enquiries of the respective candidates for election.

The first respondent

The irregularity asserted against Mr Tegg concerns the manner in which he completed his Nomination Form. In several places the person nominating is given a choice as to a number of boxes to be completed, with the instructions that a "tick" should be placed in one only of those boxes. Mr Tegg placed ticks in boxes where indicated on the first page of the form containing Parts A and B. However, when he completed the remainder of the form he placed a cross instead of a tick in each relevant box. There was no question that he had placed a cross in an incorrect box, and the asserted irregularity was confined to the use of a cross rather than a tick, contrary to the notations contained on the form.
Whether or not this conduct constitutes an irregularity arguably depends upon whether or not the instruction to place a tick in a box was merely an instruction to nominate a particular box as providing the appropriate information, or whether it constituted a mandatory requirement. For the purpose of the view that we have taken concerning the resolution of this matter it is not necessary that we so decide. We shall assume for the purpose of further discussion that the placing of crosses rather than ticks constituted an irregularity. The question then arises whether there is any appropriate factual basis for determining that the result of the election was rendered uncertain.
The primary source of information to electors about the mistake, which we assume for the purpose of present discussion, is using a cross instead of a tick, is found in the Candidate Information Sheet portion of the form. That seeks that the candidate nominate whether he or she is or is not a property developer and whether he or she is or is not a close associate of a Corporation that is a property developer. In each case the cross was inserted against the "I am not ….." section. In his submissions, the applicant stated that the mistake made by the first respondent indicated to electors that he was either, or both, "careless (and one would not value this in a Councillor)" and had used a "double negative." In oral submissions he explained that by putting a cross in the "I am not" section the first respondent was producing, in some manner in which we do not understand, a double negative. This latter assertion appears to us to be misguided and to misunderstand the concept of a double negative. In any event, the first respondent has merely placed an indication on the appropriate box, and apart from the use of a cross instead of a tick this could not possibly give rise to any misunderstanding in the minds of voters.
In connection with the assertion that in some way there would be an indication that the first respondent was "careless" and therefore have less value as a Councillor, the applicant's submission misses the point that despite the first respondent having exposed himself in some way as having been potentially "careless", he was nevertheless elected. In these circumstances we fail to understand how it could be asserted that the results of the election as they concern the first respondent could have been rendered uncertain.
The applicant asserted also that by accepting the nomination form with the use of crosses rather than ticks, the officers of the Electoral Commission and the returning officer were in breach of the provisions of the Local Government (General) Regulation 2005. The relevant Regulations are 289, dealing with Nomination proposals and 290, dealing with Candidate information sheets. Nowhere in either of these Regulations is there any indication of the use of any particular means of providing the information required to be given by candidates. There is reference to what material needs to be included and provided but not the means of doing so. In these circumstances no question of any irregularity arises which would, in some way, ground any suggestion that the election process was in any way invalid.
We conclude that the applicant has not made out any case with respect to the first respondent and the application with respect to the first respondent should be dismissed.

The second respondent

Mr Hindi indicated in his Nomination form that he was not a property developer nor a close associate of a corporation that is a property developer.
The applicant asserts that this is an irregularity based on a number of newspaper reports in which the second respondent is variously referred to as "a 55-year-old property developer and former mayor of Hurstville", and otherwise referring to the second respondent as a property developer. We emphasise that these articles contain no reference to any underlying material or any basis which would justify the assertions made. It is possible that they may constitute "fake news". The applicant did not produce any other information or material which would prove or tend to prove that the information provided by the second respondent about these matters was incorrect. Given that the information provided by the second respondent was sworn information as required by the relevant nomination form, a challenge to the veracity of this information is a serious matter. We are not prepared to consider this matter only on the basis of the newspaper reports relied upon by the applicant as proof of such an irregularity. In any event, the second respondent denied for the purpose of these proceedings that he was either a property developer or a close associate of a corporation that was a property developer.
Accordingly, we cannot conclude on the basis only of newspaper reports which make unsubstantiated and bald assertions that we can be satisfied, to the civil standard of proof, and, if relevant, to the Briginshaw standard, that any irregularity as alleged has been committed. On this basis the application made with respect to the second respondent must fail and be dismissed.

The third respondent

Mr Konjarski was at all relevant times a member of the Liberal Party. He indicated in the Candidate Information Sheet that he was not a member of any political party. Nevertheless, on the Statistics Form, part of the Nomination form, he indicated that he was a member of the Liberal party. Only the Candidate Information Sheet was generally available to electors. In completing the Nomination form, the third respondent asked that the word "Independent" be printed below his name on the ballot-paper and we are informed that this is what occurred. In these circumstances, there was clearly an irregularity.
It then becomes necessary to consider whether that irregularity caused the result of the election to be uncertain. In order to determine this matter, it would be relevant to have regard to some evidentiary material or other reliable information about the likely impact on the results of the election if electors had known that the third respondent was a member of the Liberal Party, notwithstanding that he had indicated that he was standing as an independent. The applicant conceded that he had not provided any information which would assist us in determining this matter.
There was some material touching on this matter filed by the first respondent by way of "comment" concerning the application filed by the applicant. He said that if the third respondent had declared that he was a member of the Liberal Party it had been his intention "to invest campaign resources into bringing that fact to the attention of voters on election day." It was his belief that membership of the Liberal Party would have altered the standing of the third respondent in the eyes of the electorate, because nearly 18% of all votes cast within the relevant Local Government Area were for independent candidates. By way of further analysis he thought that "only a relatively small number of voters in this area were seeking to elect someone who was known to be a member of the Liberal Party….." We note that the first respondent does not attempt to conduct any analysis of the impact of the third respondent running for election as an independent whilst also being a member of the Liberal Party.
Counsel for the third respondent submitted that we should have no regard to the opinion of the first respondent because he had no demonstrated expertise in analysis and forecasting of voting trends. He submitted that such analysis required expertise of the kind which would normally be expected to be undertaken by someone who would be regarded as an "expert" and therefore capable of giving expert opinion.
We have very little knowledge concerning the first respondent and any expertise that he might possess in terms of analysis and forecasting of voting trends, apart from the fact that he is a member of the Australian Labor Party. Given this paucity of background information, we are not prepared to accept his opinion as having been based on adequate and appropriate expert knowledge and we are not prepared to deduce from the material which he has provided that there has been demonstrated any relevant indication that the results of the election were rendered uncertain by this irregularity.
In these circumstances, the application brought with respect to the third respondent must fail and should be dismissed.

Costs

Both the second and third respondents sought costs orders against the applicant. The question of costs was not argued before us, and we shall reserve costs.

Conclusion and orders

It follows, from the reasons given above, that this application brought by the applicant against each of the three named respondents must be dismissed.
We make the following orders; 1. Leave is granted for the Electoral Commissioner to be joined as a party to the proceedings as Intervenor 2. The application against all three respondents is dismissed 3. Costs are reserved with liberty to apply which must be exercised within one month of this date.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2018

Sydney Corporation Act 1902(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

Cited By (1)