Christian v Griffiths

REASONS FOR JUDGMENT 1 This is an application pursuant to s 46 of the Legislative Assembly Act 1979 (NI) (the Legislative Assembly Act) by which the petitioner disputes the validity of the election of the respondent Rhonda Griffiths at the election of nine members of the Legislative Assembly of Norfolk Island held on 17 March 2010. 2 Section 46 of the Legislative Assembly Act relevantly provides: 46. (1) A person who was entitled to vote at an election may, not later than 90 days after the declaration of the poll in respect of that election, dispute the validity of the election by petition addressed to the Supreme Court. (2) The petition shall - (a) set out the facts relied on in support of the petition; (b) set out the relief to which the petitioner claims to be entitled; and (c) be signed by the petitioner. (3) The Supreme Court shall not hear a petition unless the provisions of subsection 46(2) have been complied with. ... (5) In hearing the petition, the Supreme Court shall sit in open court and, in addition to exercising any other powers that it has, may - (a) declare that a candidate who was declared to have been elected was not duly elected whether by reason that he was not a person qualified to be a candidate for election or for some other reason; (b) declare that a candidate who was not declared to have been elected was duly elected; (c) declare an election to be void; or (d) dismiss or uphold the petition in whole or in part. (6) In hearing the petition, the Supreme Court - (a) is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks just; and (b) shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. ... (8) Where the Supreme Court declares the election to be void, the Administrator shall issue a writ for a fresh election. 3 The proceeding has been commenced by petition signed by the petitioner who was entitled to vote at an election for the Legislative Assembly of Norfolk Island and who was a candidate at that election. The petitioner asserts that at the time of the respondent's nomination for the election and at the time of the election, the respondent did not hold the qualifications required by s 38(d) of the Norfolk Island Act 1979 (Cth) (the Norfolk Island Act) in that the respondent had not been ordinarily resident within the Territory of Norfolk Island for a period of five years immediately preceding the date of the nomination. The petition asserts that the respondent was ordinarily resident in New Caledonia and not in Norfolk Island during part of the period of five years immediately preceding the date of her nomination. 4 The petitioner seeks the following orders: (A) A Declaration that the Respondent was not duly elected to the Legislative Assembly of Norfolk Island at the election by reason that she was not a person qualified to be a candidate for election. (B) A Declaration that the Petitioner was duly elected at the election. (C) An Order that the Respondent pay the Petitioners (sic) costs of and incidental to this Petition. (D) Such other Order or Orders as the Court deems fit. 5 The petitioner seeks in paragraph 2 a declaration that he was duly elected. The Court is apparently empowered by s 46(5)(b) of the Legislative Assembly Act to make such a declaration. I say "apparently" because the provisions of s 46A(1)(b) of the Legislative Assembly Act may contradict the provisions of s 46(5)(b). If any relief were to be granted to the petitioner, the apparent inconsistencies in the two provisions would need to be addressed. 6 The petition complies with s 46(2) of the Legislative Assembly Act and the Supreme Court therefore is not precluded from hearing the petition: s 46(3). Neither the Administrator nor the Returning Officer has intervened in the proceeding: s 46(4). 7 Section 38 of the Norfolk Island Act addresses the qualifications necessary for election as a Member of the Legislative Assembly. It provides: Subject to section 39, a person is qualified to be a candidate for election as a member of the Legislative Assembly if, at the date of nomination: (b) he or she has attained the age of 18 years; and (ba) he or she is an Australian citizen; and (c) he or she is entitled, or qualified to become entitled, to vote at elections of members of the Legislative Assembly; and (d) he or she has such qualifications relating to residence as are prescribed by enactment for the purposes of this paragraph or, if no such enactment is in force, he or she has been ordinarily resident within the Territory for a period of 5 years immediately preceding the date of nomination. 8 Section 39 addresses disqualifications for membership of the Legislative Assembly, but that section is not relevant in the present case. 9 The relevant paragraph for the purpose of the petition is paragraph (d) of s 38 which requires that a person is qualified to be a candidate if at the date of nomination that person has been ordinarily resident within the Territory for a period of five years immediately preceding that date. 10 In accordance with my directions both the petitioner and respondent filed affidavits to which they exhibited the evidence upon which they rely. No other affidavits have been filed. The petitioner cross-examined the respondent on her affidavit. It will be necessary to refer to that evidence. 11 The petitioner is a resident of Norfolk Island and was enrolled and entitled to vote at the election for the Legislative Assembly of Norfolk Island on 17 March 2010. He has served four terms as a Member of the Legislative Assembly and has been appointed as an Executive Member on four separate occasions. Nine candidates were to be elected at the 2010 election: s 31(2) Norfolk Island Act. The petitioner was an unsuccessful candidate at the election, at which he received the 10th highest number of votes. 12 The petitioner has exhibited to his affidavit a bundle of documents which have been obtained from the Administration. He has exhibited records which show the respondent's movements to and from Norfolk Island during the period from 28 June 1986 until 20 December 2009. Importantly, he has exhibited copies of the respondent's Norfolk Island arrival and departure immigration forms in respect to the period from 21 December 2003 to 20 December 2009. 13 The respondent was nominated as a candidate for election on 15 February 2010. Nominations of candidates for that election closed on 17 February 2010. The relevant period then for the purpose of ascertaining whether or not the respondent had the qualifications necessary under s 38(d) of the Norfolk Island Act is the period 15 February 2005 to 15 February 2010: s 38(d) Norfolk Island Act. 14 The respondent's immigration movements were: Departure Arrival Absent Days 19.1.05 11.12.05 299 (but relevantly 15.2.05) 15.1.06 1.2.06 17 15.2.06 28.9.06 225 28.9.06 24.12.06 87 31.3.07 4.4.07 4 3.5.07 6.5.07 3 3.10.07 7.10.07 3 28.5.08 8.6.08 10 16.7.08 3.8.08 18 10.9.08 15.9.08 5 13.2.09 20.2.09 7 1.4.09 6.4.09 5 31.5.09 18.6.09 18 20.8.09 26.9.09 37 13.12.09 20.12.09 7 15 It is clear that she was mainly absent from Norfolk Island in 2005, being absent for 299 days. In 2006 she was absent for 328 days. In 2007 she was only absent for 10 days; in 2008 she was absent for 28 days; and in 2009 she was absent for 74 days. 16 The petitioner has also exhibited the respondent's husband's movements between 21 November 1988 and 19 July 2009. Again, relevantly, the period under inquiry is the period between 15 February 2005 and 15 February 2010. During that time Mr Griffiths was absent from Norfolk Island for two substantial periods of time; between 19 January 2005 and 18 December 2005 (333 days) and between 15 February 2006 and 5 November 2006 (263 days). Otherwise he was mainly on Norfolk Island apart from one period of 17 days and another period of 21 days. 17 The petitioner has also exhibited a document which shows that the respondent was assessed for the purposes of an annual levy under the Absentee Land Owners Levy Ordinance 1976 between 2002 and 2007. 18 The respondent is aged 46, having been born in New Zealand on 29 March 1964. She is of Pitcairn descent, her maiden name being "Buffet" which is one of the original eight Pitcairn families who arrived on Norfolk Island in 1856. Her father, Harry Buffet, was born on Norfolk Island. Her family returned to Norfolk Island in 1974 when she was 10 years of age. In 1976 she was granted residency status pursuant to the Immigration Ordinance 1968-1974. Her passport is endorsed indicating her status as a permanent resident of Norfolk Island. 19 The respondent completed her education at the Norfolk Island Central School in 1979 and in 1980 departed Norfolk Island to travel and seek employment. Between 1980 and 1988 she worked in Australia and New Zealand and, in particular, between 1981 and 1984 as an airwoman in the Royal New Zealand Air Force. She said that during those eight years she returned to Norfolk Island regularly, sometimes for extended periods of up to six months. She said she has always regarded Norfolk Island as her home. I accept that evidence. It is consistent with her conduct and behaviour. She met her husband in 1987 and in 1988 returned to Norfolk Island because she was pregnant and wished to raise her family as residents of Norfolk Island so that her children would know and live their Norfolk Heritage. I also accept that evidence. She has three sons; Bradley born in 1989, Michael born in 1991 and Daniel born in 1994, all of whom still live on Norfolk Island. 20 In 1994 she and her husband purchased their current home at Douglas Drive, Norfolk Island from her uncle, Charles George Buffet. The house was bought with the assistance of a Westpac loan. In 1996 she and her husband purchased an adjoining property which was formerly part of the original Buffet family property. They borrowed part of the purchase funds on a 15 year Investment Property loan. They live in the house and still own the adjoining property. 21 In 1997 she first stood for election for the Legislative Assembly of Norfolk Island but was not elected, falling 11 votes short. 22 Some time shortly after, she enrolled as an external student for a Bachelor of Arts degree in Social Anthropology at Massey University in New Zealand. In 2006 she was awarded a Bachelor of Arts degree majoring in Social Anthropology and Politics. 23 Prior to obtaining her degree she represented Norfolk Island in indigenous and cultural activities at local, regional and international levels in the South Pacific and in Europe. She attended a number of meetings and conferences in 1998 and 1999. 24 In September 2000 she applied for and obtained a position as Cultural Affairs Advisor with the Secretariat of the Pacific Community (SPC). She was obliged to sign a contract for a period of three years. The SPC is an international intergovernmental organisation which has its headquarters based in New Caledonia. It was formed in 1947 by the Canberra Agreement, the signatories to which were six participating states which administered territories in the Pacific; namely, Australia, France, New Zealand, the Netherlands, the United Kingdom and the United States of America. Presently, 22 island countries and territories are also members. SPC is an international organisation to which the International Organisations (Privilege and Immunities) Act 1993 (Cth) applies. SPC entered into an agreement with France in 1953 in an agreement known as the Angammare Agreement. That agreement provides SPC officers and employees with privileges and immunities that are like international conventions which apply to similar organisations throughout the world. Article 16 of that agreement applied to her. It provides: Officials of the Commission shall: a) be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity, and within the limits of their authority; b) be exempt from taxation on salaries and emoluments, unless the member States agree to a system whereby the salaries and emoluments in question would be taxed by the Organisation itself, and subject to the possibility of the French Government's taxing its own nationals; c) be immune, together with their spouses and dependents, from immigration restrictions and aliens' registration formalities; d) enjoy the same privileges in respect of exchange facilities as are accorded to officials of comparable rank forming part of diplomatic missions to the French Government; e) be given, together with their spouses and dependents the same repatriation facilities in times of international crisis as diplomatic envoys; f) have the right to import their furniture and personal effects at the time of first taking up their post, without paying customs duties in the French territory where they are domiciled, in the discharge of their functions. 25 Whilst she was stationed at SPC headquarters in New Caledonia, her home, she said, remained in Norfolk Island. Her Norfolk Island domicile was recognised by SPC in her letter of appointment. Her presence in New Caledonia was temporary. 26 Her original contract with SPC expired in 2003 but she was offered a three year extension which expired in 2006. Again, her letter of appointment recognised Norfolk Island as her place of domicile. She said Norfolk Island remained her home and permanent place of residence. I accept that evidence. She said that her residence in Noumea was always intended to be temporary and only for the duration of her contract with SPC. I also accept that evidence. 27 Whilst in New Caledonia, she and her family occupied a house in the SPC compound which provides housing for SPC officials only. The SPC compound is regarded, she says, as international land the same as diplomatic embassies. She was subject to the same privileges and immunities which extended to SPC under the Angammarre Agreement: see Article 16. She was not entitled to residency status and nor did she have a permit to live in New Caledonia and, in those circumstances, was not obliged to comply with the immigration laws of that country. She was entitled to remain in New Caledonia as an SPC official. She did not pay taxes, rates or levies. 28 Her status was like that of a diplomat. She enjoyed an immunity from legal process for acts done in her official capacity and within her authority. She was not subject to local taxation. She was also not subject to immigration laws. A diplomat is not subject to the same laws as the citizens of the country in which the diplomat is stationed. A diplomat or a person who enjoys diplomatic status does not become part of the society in which the diplomat lives. She was not therefore part of the society in which she was temporarily present as a "diplomat". 29 During her term with the SPC and as part of her role as a Cultural Advisor, she was obliged to travel extensively through the Pacific, which she did. Whilst she was stationed in New Caledonia a proportion of her salary was paid direct by SPC to her husband's and her Norfolk Island bank account to meet loan repayments on the house and land. She said she always regarded her period in New Caledonia as temporary and her employment with SPC as educational training. I accept that evidence. 30 Her husband and son Bradley returned from New Caledonia to Norfolk Island in October 2006 so that Bradley could commence Term 1 of Year 12 on Norfolk Island. The respondent and her other two sons returned in December 2006. 31 The respondent was first enrolled on the Electoral Roll in August 1991. On 17 August 2001 she received a letter from the Returning Officer advising her that as she had been absent for more than 150 days during the period of 240 days leading up to the 2001 election her name had been removed from the Electoral Roll. On 13 February 2007 she attempted to have her name reinstated on the Electoral Roll but her application was refused because she had not been present on Norfolk Island for 150 days of the 240 days immediately before the application. She was reinstated to the Electoral Roll on 16 October 2009. 32 She has deposed that since her engagement with SPC she has used the experience gained on Norfolk Island. In August 2009 she was appointed by the then Chief Minister as a member of the Norfolk Island Cultural Heritage Committee. In November 2008, when the Council of Elders was formed, which included two representatives from each of the original eight families for the purpose of supporting Norfolk Island's culture and language, she was selected by the Buffet family to be one of the two representatives of that family, along with the current Chief Minister David Buffet. She was subsequently elected Vice President of the Council. 33 She said in her affidavit: 29. During the period I was stationed in New Caledonia I regarded Norfolk Island as my home and place of permanent and ordinary residence. I regarded residing in the SPC Compound at New Caledonia as temporary only for the duration of my employment with SPC which I regarded more as vocational education, experience and training rather than as a job. I verily believe that I was ordinarily resident on Norfolk Island for a period of 5 years immediately preceding the date of my nomination including during the period I was stationed at New Caledonia. 34 As I have said the respondent was cross-examined. The respondent was an impressive witness in cross-examination. She did not seek to argue her case but answered every question straightforwardly and frankly. I have no hesitation in accepting her as a truthful witness. To be fair to the petitioner, the petitioner did not contend otherwise. 35 The respondent frankly admitted that on two occasions in 2003 and 2006 when she left Norfolk Island she completed her departure card advising that she intended to leave Norfolk Island permanently. I am satisfied and I find that when she included that information on her departure card it was an error on her part. She also admitted that on some occasions she put as her home address SPC Noumea and on other occasions her mother's address of Norfolk Island, rather than her home address at Douglas Drive on Norfolk Island. I do not think that the information given by the respondent on her departure cards is evidence of her state of mind as to where she lived or resided. 36 She admitted that for a period of time she was levied by the Government as an absentee landowner and paid those levies. However, I do not think her evidence showed that she thought that she was ordinarily resident anywhere other than on Norfolk Island during the relevant period. 37 She has said in her affidavit, and in the end result her evidence on this point was not uncontested, that at all times she regarded Norfolk Island as her home and her permanent place of residence. I have already indicated that I accept her evidence. She wanted to do the work which she did on New Caledonia which, of course, was work that could not be carried out within the Territory. Her work obliged her to leave Norfolk Island. 38 I shall deal with one argument put by the respondent before I get to what was the real issue. 39 The respondent submitted that if a person has been ordinarily resident for any period of five years before the date of nomination that person would have satisfied the test in s 38(d) of the Legislative Assembly Act. I cannot agree. The period against which the person's residence is to be measured must be the period of five years before the date of nomination. That is made clear by the use of the word "immediately" in s 38(d). In my opinion, a person who was ordinarily resident within the Territory for a period of five years but not for the five years immediately preceding the date of nomination would not be qualified to be a candidate. The only relevant period which needs to be examined is the period relating back five years from the date of nomination. That does not mean that other periods of residency are not relevant. Those periods of residency might help to understand whether the person was ordinarily resident within the relevant period. 40 The petitioner contended that the respondent's absence from the Territory in 2005 and 2006 meant that the petitioner was not ordinarily resident in the Territory during the relevant period. The petitioner argued that as a matter of fact the respondent was not qualified to be a candidate for election as a member of the Legislative Assembly: s 38 Norfolk Island Act. It was argued that she was not duly elected because she was not a person qualified to be a candidate: s 46(5) Legislative Assembly Act. 41 The respondent put two further arguments in addition to the one mentioned above. First, as a matter of fact, the respondent was ordinarily resident within the Territory in the relevant period. Secondly, the respondent could be ordinarily resident at two different places at the one time and the respondent was ordinarily resident in both Norfolk Island and New Caledonia in 2005 and 2006, and therefore the respondent was ordinarily resident within the Territory during the relevant period. 42 These contentions raise for consideration whether the respondent has been ordinarily resident within the Territory of Norfolk Island for a period of five years immediately preceding the date of nomination and whether she could be and has been ordinarily resident in two places in that period. 43 In my opinion the question whether a person is ordinarily resident in a place is a question of degree and a question of fact: Levene v Commissioners of Inland Revenue [1928] AC 217; Inland Revenue Commissioners v Lysaght [1928] AC 234. In the firstmentioned case, Viscount Cave LC said at 222: My Lords, the word "reside" is a familiar English word and is defined in the Oxford English Dictionary as meaning "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place." No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word "reside". In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure. Thus, a master mariner who had his home at Glasgow where his wife and family lived, and to which he returned during the intervals between his sea voyages, was held to reside there, although he actually spent the greater part of the year at sea: In re Young 1 Tax Cas. 57; Rogers v Inland Revenue 1 Tax Cas. 225. He said at 223-224: In such cases the question is one of fact and of degree, and must be determined on all the circumstances of the case: Reic v. Inland Revenue Commissioners 1926 S. C. 589; 10 Tax Cas. 673. If, for instance, such a man is a foreigner who has never resided in this country, there may be great difficulty in holding that he is resident here. But if he is a British subject the Commissioners are entitled to take into account all the facts of the case, including facts such as those which are referred to in the final paragraph above quoted from the case stated in this instance. 44 In Inland Revenue Commissioners v Lysaght [1928] AC 234, Viscount Sumner said at 243-244: My Lords, the word "ordinarily" may be taken first. The Act on the one hand does not say "usually" or "most of the time" or "exclusively" or "principally" nor does it say on the other hand "occasionally" or "exceptionally" or "now and then," though in various sections it applies to the word "resident," with a full sense of choice, adverbs like "temporarily" and "actually." I think the converse to "ordinarily" is "extraordinarily" and that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not "extraordinary." Having regard to the times and duration, the objects and the obligations of Mr. Lysaght's visits to England, there was in my opinion evidence to support, and no rule of law to prevent, a finding, that he was ordinarily resident, if he was resident in the United Kingdom at all. No authority was cited requiring special consideration on this head. Grammatically the word "resident" indicates a quality of the person charged and is not descriptive of his property, real or personal. To ask where he has his residence is often a convenient form of inquiry but only as leading to the question "then where is he resident himself?" I think this distinction, though often pointed out, has too often been overlooked in the arguments in the reported cases. 45 Viscount Sumner said at 245: One thinks of a man's settled and usual place of abode as his residence, but the truth is that in many cases in ordinary speech one residence at a time is the underlying assumption and, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question. For income tax purposes such meanings are misleading. Residence here may be multiple and manifold. A man is taxed where he resides. I might almost say he resides wherever he can be taxed. 46 The House of Lords again considered the meaning of the words ordinarily resident in Reg v Barnet London Borough Council; Ex parte Nilish Shah (1983) 2 AC 309. In that case the question was whether a student had been ordinarily resident for a period of three years preceding the first year of the student's course within the meaning of the Education Act 1980. 47 Lord Scarman delivered the leading speech with which the other members of the House agreed. His Lordship said that the two earlier decisions of the House of Lords had authoritatively determined the natural and ordinary meaning of the words. He said at 343: Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinary resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration. At 344 he said: There are two, and no more than two, respects in which the mind of the "propositus" is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is. And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled. He concluded, again at 344: The legal advantage of adopting the natural and ordinary meaning, as accepted by the House of Lords in 1928 and recognised by Lord Denning M.R. in this case, is that it results in the proof of ordinary residence, which is ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind. Templeman L.J. emphasised in the Court of Appeal the need for a simple test for local education authorities to apply: and I agree with him. The ordinary and natural meaning of the words supplies one. For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose. 48 The first two decisions in the House of Lords were considered in a bankruptcy case by Burchett J in Vassis Ex parte; Leo Lung (1986) 9 FCR 518. His Honour referred to Viscount Sumner's speech at 245 and said that s 43 of the Bankruptcy Act 1966 (Cth) must be referring to the first of the two meanings given by Viscount Sumner, being a person's settled and usual place of abode. 49 In Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194, Lockhart J said at 198: To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word "ordinarily" connotes a comparison, a measure of degree. A person may have more than one residence, but he is not necessarily ordinarily resident in each of them. The question must be determined for the purposes of s 43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of "ordinary residence" for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression "ordinarily resident in" connotes some habit of life, and is to be contrasted with temporary or occasional residence: see Levene and Lysaght. As Lord Warrington said in Levene (at 232): " 'Ordinarily resident' means according to the way a man's life is actually ordered." The concept of ordinarily resident cannot be stated in definite terms; each case must be determined on its facts and after taking into account all relevant matters: see the Canadian case of Thomson v Minister for National Revenue (1946) SCR 209 per Estey J at 231. It depends on the facts of each case whether the debtor is ordinarily resident in Australia at the time of the commission of the relevant act of bankruptcy. At first blush it may seem strange to say that a person can be ordinarily resident in more than one country at the same time; but on closer analysis it is not. Plainly you cannot be physically present in more than one place at the same time. But the lifestyles of people vary greatly. Some people in the ordinary pursuit of their lives regularly or customarily live in more than one place, each of which has an element of permanence about it and is not merely a place of casual or intermittent resort. 50 His Honour's statement has been treated as settled law in Australia: Restom v Battenberg [2007] FCA 46, affirmed in Battenberg v Restom [2007] FCAFC 195. 51 There is no reason to think that the word "resident" does not have its ordinary English meaning which, like the verb, is to dwell permanently or for a considerable time in a place or to have one's residence at one's usual abode. "Ordinarily" may be contrasted with extraordinarily: Inland Revenue Commissioner v Lysaght [1928] AC 234. The word ordinarily suggests the need for a comparison. It requires a measurement against the person's residency for the whole period. It connotes a form of degree: Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194. Ordinarily may be thought of as usually or commonly, rather than unusually or uncommonly, rarely or casually. But in the end the test is whether the person is ordinarily resident. Whether the person will be ordinarily resident will be a question of degree in the circumstances of the case. 52 That does not mean that a person cannot be absent from a place and still not be ordinarily resident in that place. For example, if a person lived in one place but was obliged by his or her employment to work in another place and stay in that place then that person may still be ordinarily resident in the place where he or she lived. A person may still be ordinarily resident in a place even when he or she is absent. 53 When determining the question of fact and degree, regard may be had to the subjective intention of the person whose "ordinary residence" is the subject of the inquiry. In Logue v Hansen Technologies Ltd (2003) 125 FCR 590, Weinberg J discussed the three House of Lords' cases. After saying that the decisions stood for the proposition that a person may be able to have two ordinary residences, he said at 599: What these cases, and others like them seem to establish is that the test for ordinary residence depends to a significant degree upon the state of mind of the person whose residence is in question. The language used in a number of the cases focuses upon whether the person habitually and normally resides in the jurisdiction, and does so for a settled purpose. 54 The third decision in the House of Lords does recognise the subjective intention of the person whose residence is under inquiry but only in the two respects mentioned by Lord Scarman in Reg v Barnet London Borough Council 2 AC 309 at 344. First, the person must voluntarily reside at the place. Secondly, the person must intend to continue to live at the place for a period, although not necessarily permanently. 55 The subjective intention of the person who claims to be ordinarily resident in a place cannot be determinative of the question. The person must have an intention to reside there and to ordinarily reside there, because without that intention that person could not be said to be ordinarily resident at that place. But the inquiry is not limited to the claim of the subjective intention. The question is a matter of fact and degree, and the objective facts and circumstances of residence will also be relevant for the purpose of determining what is the person's ordinary place of residence. 56 Chief Justice Beaumont had to consider the construction of s 38(d) of the Norfolk Island Act in Sanders v Nobbs [1999] NFSC 3. The question in that case was whether the respondent, who had accepted an agricultural position in the Northern Territory in January 1966 and who had lived with his family and worked in the Northern Territory between that date and December 1993 when he returned to live on Norfolk Island, was ordinarily resident in the Territory of Norfolk Island in the period April 1992 to April 1997. In the period between February 1968 and June 1969 the respondent lived and studied in Armidale, New South Wales. Between June and August 1969 the respondent lived on Norfolk Island. He had during the period between 1991 and 1993 visited Norfolk Island each second year at Christmas for a period of time. Two of his children were born whilst he was in the Northern Territory. His children were educated in the Northern Territory. The respondent enrolled to vote in the Northern Territory. Indeed, he stood for election. Whilst he lived in the Northern Territory he was not enrolled to vote in the Territory of Norfolk Island. 57 His Honour approved the statement of principles in Vassis 9 FCR 518and Re Taylor 37 FCR 194, and said: The settled course of authority previously mentioned instructs that if a man's home is in a particular territory, a merely temporary absence will not prevent his being "ordinarily resident" in that territory; that it is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent it being proper to continue to regard him as ordinarily resident there; and that if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established, provided only that it is adopted voluntarily and for a settled purpose. In other words, as Lockhart J put it, "[t]here must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently". His Honour went on to say: In my opinion, as a matter of legal principle, a person cannot be "ordinarily resident" in two places at the one time. Hence, the comparison and measure of degree mentioned by Lockhart J. In making this evaluation for present purposes, the Court must choose between the two possibilities - the Northern Territory or Norfolk Island. In my view, the primary facts here lead inevitably to the conclusion, one of characterisation of conduct, rather than feelings or attachment, that between 1968 and 1993, the respondent's permanent home was the Northern Territory, notwithstanding his temporary (and regular) absences in Norfolk Island for several months over the Christmas holiday period. The facts that the respondent owned property on the Island and conducted a grazing operation there, cannot, in my opinion, affect this conclusion. 58 With respect I agree with Beaumont CJ. Because it is a previous decision of this Court, I should also follow it unless I thought the decision to be plainly wrong, which clearly I do not. It seems to me that a person cannot be ordinarily resident at two different places over a period of time. If as a matter of logic a person could be ordinarily resident at more than one place over a period of five years, then a person could be ordinarily resident at any number of places. If that were so, the word "ordinarily" would have ceased to govern the word "resident". A person may be ordinarily resident at a particular place over a period of time without living in that place over the whole of that time. But if when that person is living elsewhere that person is ordinarily living at that other place, as a matter of logic that person could not be at the same time ordinarily living at the first place. 59 I therefore reject the respondent's alternative argument that the respondent was ordinarily resident in both Norfolk Island and in New Caledonia. The question thus remains whether the respondent was ordinarily resident in the Territory of Norfolk Island during the relevant period. 60 There is no doubt that the respondent was ordinarily resident in the Territory after December 2006 when she returned to the Territory from New Caledonia after the completion of her SPC contract. After that time she was from time to time absent from the Territory but not such that it could be said she was not then ordinarily resident within the Territory. That leaves for consideration the 18 month period or thereabouts between 15 February 2005 and 24 December 2006. 61 The evidence discloses that the respondent spent a good deal of time away from Norfolk Island in her employment in 2005 and 2006 before her employment with SPC came to an end. During those periods her husband and children lived with her. They rented their house. It was necessary if she were to perform her duties that she live in New Caledonia. She could not perform her duties within the Territory. She returned to Norfolk Island whenever she was able and for her annual holidays. She was not able to live in her own house but lived with her mother. 62 Whilst she lived away she was not subject to the ordinary domestic laws that appertained to New Caledonian residents. Instead she was entitled to the privileges and immunities which attach to persons who represent a country or organisation in another country. She was not and did not become part of the society in New Caledonia. 63 The respondent's circumstances are quite different from Mr Nobbs', who became part of the Northern Territory society in which he lived. He was enrolled to vote and stood for election there. Two of his children were born in the Northern Territory and all were educated there. The land he owned on Norfolk Island was inherited from his parents while he was in the Northern Territory. 64 In this case, all of the respondent's children were born on Norfolk Island and they continue to reside there. The respondent's husband and one of her sons returned to Norfolk Island prior to the completion of her contract in New Caledonia specifically so that the son could begin an important year of schooling on Norfolk Island. Although leased out for certain periods, the family kept their house and property, and serviced their loan to a Norfolk Island institution so that they could return to it. The respondent was absent only so that she could perform her work duties, which were in the nature of short contracts, and which ultimately have been used for the benefit of the Territory of Norfolk Island. Although she was mainly absent from the Territory for the whole of that 18 month period, she said she still regarded Norfolk Island as her home, evidence which as I have said I accept. 65 In my opinion, although she was not within the Territory during most of the period, that does not mean that she was not still ordinarily resident in the Territory. Being physically present cannot be the sole test although it is relevant. I am of the opinion that the respondent was ordinarily resident during that period of 18 months because she treated Norfolk Island as her home and only absented herself for the purpose of carrying out her duties pursuant to her contract of service. She is like the sailor who is obliged to live elsewhere for long periods of time but who is still ordinarily resident where his or her home is. 66 I would dismiss the petition. 67 If I had been of the contrary view that would have led to the making of the first declaration sought. However, I would not have made the second declaration even though s 46(5)(b) would seem to permit such a course. 68 Section 46A which was enacted subsequently to s 46 impliedly repeals s 46(5)(b). It relevantly provides: 46A. (1) The Supreme Court shall not make an order - (a) by way of injunction (including an interim or interlocutory injunction), or any other order the effect of which would be to restrain the Returning Officer from conducting an election, by reason only that a person was not a person qualified to be a candidate for election; or (b) except as provided by paragraph 46(5)(a), by way of declaration as to, or otherwise in consequence of, or in any way relating to, the disqualification of a person to be a candidate for election, whether that person was declared to be elected or not. Moreover, s 46A(4) would seem to repeal s 46(5)(c) at least in part. 69 Instead I would have made an order under s 46A(5)(b). That would have led to the calling of a fresh election for the vacancy caused because s 37 of the Norfolk Island Act would operate in its terms. 70 However, for the reasons given, the petition will be dismissed. 71 I will hear the parties as to costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.