Duffy v Da Rin

Duffy v Da Rin - [2014] NSWCA 270 - NSWCA 2014 case summary — Zoe

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] In April 2012, the appellant, Kevin Michael Duffy, began staying at his son's home in Orange. He did so in order to run for election as a councillor on Orange City Council. The appellant, however, continued to regularly visit his previous residence, which was outside the boundaries of Orange City Council. On 17 July, the appellant lodged a form with the Australian Electoral Commission to change his residency to his son's address. On 8 August, he nominated for election as a councillor on Orange City Council. He was elected on 15 September. On 7 December, the respondent, John Da Rin, applied to the Administrative Decisions Tribunal (now the Civil and Administrative Tribunal) to have the appellant dismissed from office because of an irregularity in the manner of his election: Local Government Act 1993 (NSW), s 329. A person is qualified to be nominated, and hold, civic office if they are entitled to enrol as an elector: ss 274, 306. The respondent alleged the appellant was not entitled to enrol as he was not a "resident of a ward" or area (if the area has no wards: s 273): s 266(1)(a). Section 269(1) of the Local Government Act provides that a person is a resident if they are entitled to enrol on a roll for an electoral district under the Parliamentary Electorates and Elections Act 1912 (NSW) ("State Elections Act") and that the person's "place of living" described on that roll is within the area or, absent such a description, the person's "place of living" is in the area. Section 269(3) further provides that a "place of living includes the place of residence to which a person temporarily residing elsewhere intends to return in order to continue living there." Because the State Elections Act requires that a person has lived at an address for at least one month before enrolling (s 22), the appellant needed to establish he had satisfied the residency requirements of s 269 since 17 June. The Tribunal held that s 269 had not been satisfied as the appellant's continuing connection with his previous residence demonstrated that the property in Orange was not his "place of living". The issue on appeal was whether the Tribunal had erred in law by determining "place of living" by reference to the appellant's continuing connection with his previous residence. The Court (Basten JA, Meagher and Ward JJA agreeing) held, allowing the appeal:

Section 269 does not prevent a "place of living" from being somewhere a person is only at temporarily; s 269(3) is merely protective of a person's intention to treat a place as their "place of living" when they are temporarily residing elsewhere. The phrase "place of living", however, is not confined to simply determining whether the period of occupation for the minimum term specified has been satisfied without any reference to purpose or future intention: [36]-[37], [40]-[42]
Matters of fact and degree are involved when determining "place of living" and the purpose of a person's presence at (or absence from) a particular location is by no means irrelevant. The Tribunal was permitted to consider the appellant's continuing connection with his previous residence: [43]-[44], [50] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 applied. The Queen v The Mayor of Exeter (Dipstale's Case) (1868-69) LR 4 QB 114; Fox v Stirk and Bristol Electoral Registration Officer [1970] 2 QB 463; Tanti v Davies (No 3) [1996] 2 Qd R 602; Burnett Shire Council v Galley [2000] QSC 490; 112 LGERA 93; Bero v Electoral Commission Queensland [2012] QSC 222; 190 LGERA 304 considered.
The weight accorded to that continuing connection indicates, however, that the Tribunal misunderstood its task as one of comparing two possible places of living and determining whether the connections with one either outweighed the connections with the other or were sufficiently substantial to prevent the other constituting a place of living. The assessment of "place of living" is governed by the statutory requirement of living at the place for one month prior to enrolment. The fact that a person does not intend to permanently live somewhere does not in itself preclude it from being a "place of living" for the purposes of s 269: [55]-[57] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 considered.

[6]

Grounds of appeal 6The appellant struggled to identify a ground of appeal which did more than challenge the factual findings made by the Tribunal. At the commencement of the hearing, counsel identified afresh three matters said to raise questions of law he sought to rely on. 7The first matter was that the Tribunal had applied a "residency" test in place of the narrower "place of living" test identified in s 269 of the Local Government Act. This characterisation was not entirely apt: in fact the complaint was that a "residency" test was more stringent than the "place of living" test, requiring additional subjective considerations which, according to the second matter relied on, were said to be irrelevant. 8The second matter identified was error on the part of the Tribunal in taking into account irrelevant considerations, including: (a) the appellant's motivation for moving to Orange; (b) the degree to which he had severed connection with his former place of living; (c) the ease with which he could have returned to his former place of living, and (d) his subjective belief as to the location of his "home". (Although the last point (d) identified his subjective belief that Orange was his home, the reference and intended complaint, was that the Borenore property was his "home": Reasons of Tribunal at [24].) One difficulty with the challenge to the Tribunal taking these matters into account was that each of them was expressly relied on by the appellant in his primary evidence, being his affidavit of 30 April 2013. 9The third matter relied upon should be identified in terms: "3. Having found that: (a) in the period 29 April to 8 August 2012 the appellant moved into a spare room in his son's property in Orange, which had a single bed [27]; (b) the appellant took 'personal effects' with him to Orange, including clothing, personal items such as deodorant, toothpaste, laptop, books and photos [27]; (c) the appellant spent all but four nights 'or so' in the property at Orange [33], and his wife sometimes stayed overnight at that property [36] did the Tribunal err in law by failing to find that the property in Orange was, in the period 17 June to 8 August 2012, the appellant's place of living?" 10As explained in oral argument, the third matter was intended to raise the proposition that, having made those findings of fact, no other conclusion was open to the Tribunal than that the appellant had demonstrated that his place of living was, at the relevant time, in Orange. If that proposition were made good, it would justify both an order setting aside the order made by the Tribunal and an order that the respondent's application be dismissed. 11For the reasons set out below, the appellant's contention that the Tribunal misconstrued the relevant legislative provisions should be accepted, though not altogether for the reasons articulated by him. The further proposition that the findings in fact made warranted dismissal of the application to the Tribunal should not, however, be accepted. It would appear to follow that the matter must be remitted, now to the Civil and Administrative Tribunal of New South Wales ("NCAT"), for reconsideration. However, there is a live issue as to whether such a course is necessary and appropriate, given the period of almost two years since the challenged election. 12In order to identify the legal error, as more clearly articulated in oral submissions, it is necessary to refer briefly to the factual findings made by the Tribunal and then to the scheme of the legislation.

[8]

Legislative scheme 16The critical provision for the purpose of the current proceedings is s 269 of the Local Government Act, which is set out below at [18]. It provides a definition of the term "resident of a ward". The main relevance of that term in Ch 10, Pt 1 (being the Part referred to in s 269(1)) is the identification of persons entitled to be enrolled as electors, as provided by s 266. 266 Who has the right to be enrolled as an elector? (1) A person who is entitled to vote at an election of members of the Legislative Assembly or an election of members of the Commonwealth House of Representatives is entitled to be enrolled as an elector for a ward if: (a) he or she is a resident of the ward, or (b) he or she is not a resident of the ward but is an owner of rateable land in the ward, or (c) he or she is an occupier, or ratepaying lessee, of rateable land in a ward. (2) A person who is disqualified by section 25 of the Parliamentary Electorates and Elections Act 1912 from having his or her name placed or retained on a roll under that Act is subject to the same disqualification in relation to a roll under this Act. 17To be elected as a councillor, a person must be nominated: s 306(1). To be nominated the person must be enrolled as an elector for the area: s 306(2). (Where an area is not divided into "wards", councillors are elected for an area - s 278 - and Ch 10, Pt 1 "applies to the area in the same way as it applies to a ward": s 273.) Further, to be nominated, the person must be qualified to hold civic office at the closing date for the election: s 306(2). A person is qualified to hold civic office if he or she is "entitled to be enrolled as an elector" and is not disqualified: s 274. 18Following that statutory chain, the appellant could not stand and be elected as a councillor unless he was, at the closing date for the election, entitled to be enrolled as an elector, for the purposes of s 266(1). To be enrolled he had to be a resident of the area, as defined in s 269. 269 Who is a "resident" for the purposes of this Part? (1) For the purposes of this Part, a person is a resident of a ward if: (a) the person is, within the meaning of the Parliamentary Electorates and Elections Act 1912, enrolled on the roll for an electoral district, and (b) the person's place of living as described on that roll is in the ward or (in the case of a person whose place of living is not described on that roll) the person's place of living is in the ward. (2) (Repealed) (3) In this section, place of living includes the place of residence to which a person temporarily residing elsewhere intends to return in order to continue living there. 19Accordingly, the applicant's "place of living" had to be within the area: s 269(1)(b). 20Because of the specific requirements of s 266(1), the rolls required to be kept for local government elections are separate from the rolls for State and Commonwealth elections: see Local Government Act, ss 298-301. However, it is also a requirement of s 269 that a person, to be a resident of an area, be enrolled on the relevant date on the roll for an electoral district under the State Elections Act. The "relevant date" used to be defined in s 269(2), but no longer is. It was accepted by the Tribunal that the roll for the Orange City Council election in September 2012 closed on 30 July 2012 and that that was the relevant date for the purposes of s 269: at [4]. 21The State Elections Act provided an entitlement to enrolment pursuant to s 22, which relevantly read: 22 Who is entitled to be enrolled? (1) A person is entitled to be enrolled for a district if: (a) the person: (i) has attained 18 years of age, and (ii) is an Australian citizen, and (b) the person lives at an address in that district and the person has lived at that address for at least one month before the enrolment. ... (4) Subject to subsection (2), a person is not entitled to be enrolled: (a) on more than one district roll, or (b) in respect of any address other than the address at which the person is living at the date: (i) that the person forwarded his or her claim for enrolment or transfer of enrolment, or (ii) that the Electoral Commissioner enrolled the person. 22Pursuant to s 23, an elector who is enrolled for a district is entitled to vote at an election for the Assembly for that district. 23It was common ground that the appellant changed his address on the electoral roll to the Orange address on 17 July 2012. From that date it may be assumed that his place of living, for the purposes of s 269(1)(b), was described on the roll as the Orange address. Although he was not then moving into a new State electorate, it was assumed that his entitlement to be enrolled at that address depended on him having lived at that address for at least one month before the enrolment: s 22(1)(b) of the State Elections Act. For this reason, the appellant accepted that the relevant period within which he was required to have a place of living in Orange was from 17 June 2012 until the date he nominated for election, namely 8 August 2012. (The Tribunal found that the relevant period was from 29 April 2012, when the appellant moved to the Orange property, until 8 August 2012, but nothing turned on the discrepancy.) 24Section 269(3) provides that a place of living (only for the purposes of that section) includes a place to which a person intends to return, although temporarily residing elsewhere. That concept does not directly fit with s 22(4)(b) of the State Elections Act, which prevents a person being enrolled in respect of an address other than that at which the person is living at that time. Further, there is a potential discrepancy between the two limbs of s 269(1)(b). Under the first limb, the requirement appears to be that the person's place of living as described on the roll is in the ward (or area). The second limb, however, requires that the person's place of living be in the ward (or area), which allowed a factual challenge on the basis that the place of living was not in the ward. Because no copy of the roll was put in evidence before the Tribunal, it may be assumed that the proceedings were conducted on the basis of the second limb.

[9]

Statutory construction and error of law 25The relevant qualification relied on by the appellant was being "a resident of the ward" in which he was elected, that phrase being defined to mean that his "place of living is in the ward". The terms of the Local Government Act do not expressly draw the distinctions relied upon by the questions of law set out above. In substance the appellant needed to establish an error of law on the part of the Tribunal in construing the language of ss 266 and 269 of the Local Government Act. 26On one view, there is nothing in the language, the statutory context, or the scheme of the Local Government Act which suggests that the phrase "place of living" has any technical meaning, nor that it is a term of art. Unless the Tribunal gave it some narrower meaning than that which it would ordinarily bear, arguably no error of law would arise: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 395. However, the appellant submitted that, while the concepts of residence and place of living involve ordinary English words, not used in a technical sense or as terms of art, the dispute as to the scope and meaning of those terms arises in, and must be governed by, their specific statutory context. To the extent that their meaning is in dispute, the submission continued, the exercise of construction should properly be understood to involve a question of law: Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564 at [51]-[54] (Lindgren J; Branson and Mansfield JJ agreeing). 27This submission should be accepted. As explained by Leeming JA (with the concurrence of Ward and Emmett JJA) in Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 at [75], "The legal meaning may diverge from its literal or grammatical meaning, especially in the (self-selectingly contestable) cases that reach courts. Words do not have a "natural" meaning that can be determined in isolation. As Lord Hoffman said in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spigelman CJ, Weinberg AJA and Simpson J agreeing) and Dale v The Queen [2012] VSCA 324 at [73] (Weinberg, Harper and Whelan JJA): "[I]n some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts, their meaning will be different but no less natural." 28The phrase "a person's place of living" provides an example of that principle. It is not the language of everyday discourse, but it is meaningful in its statutory context. Its primary point of reference is the place "described on the roll" kept under the State Elections Act. Section 22 of that Act speaks of the person who "lives at" an address and "has lived at" the address for one month. Further, the State Elections Act allows for an objection to be taken on the ground that "the address for which a person is enrolled is not the person's real place of living": s 32(1)(b). (See also s 46(2)(a).) 29In Agfa-Gevaert at 397, after noting Lord Hoffmann's remarks that it is erroneous to seek the meaning of individual words, unaffected by context or syntax, the joint reasons continued (perhaps a little elliptically): "If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law." 30Where, as is common, words used in a statute derive shades of meaning from their context and the syntax of the sentence in ways which are significant for the case in hand, resolving their meaning will be a question of law. Adopting that approach, the appellant has raised a question of law.

[10]

Misconstruing "place of living" 31To establish legal error the appellant submitted that the Tribunal had adopted a concept of "residence" which was artificial and deflected attention from the real question of where a person lives. Further, the Tribunal had given consideration to inherently uncertain subjective considerations, such as the person's purpose and intention, rather than the objective indicia of where the appellant lived. 32Although the written submissions assayed such a course, it was not open to the appellant to complain that the Tribunal erred merely in using the words "resident" and "residence", that being the language of the statute: ss 266(1), 269 and 275(3). The phrase "place of living", used in the definition of a resident, required a focus on the practical physical aspects of residence, but the Tribunal understood that the concepts of residence and place of living were equated for the legislative provisions in issue. That approach was correct. 33Nevertheless, at least in one respect the language of s 269(1)(b) is unclear. On one view, if the relevant electoral roll describes a "place of living" for a person, which is within the relevant ward, that may be an end of the matter. If it does not, there will be a factual question as to whether the person's place of living is in the ward. The alternative construction requires that the factual question be answered in each case. Thus, if as a matter of fact the person's place of living is not the place described on the roll, the first limb is not satisfied: that an address within the ward is described on the roll is beside the point. On that approach, both limbs depend upon the correct identification of the "place of living". 34The second interpretation seems to render the first limb of par (b) otiose. However, the first interpretation would render a statement on the electoral roll sufficient, whatever the true factual situation, although objection could be taken under the State Elections Act, s 32. That intention is by no means clearly expressed. A third possibility is that the electoral roll is determinative if the location described is within the relevant ward, but not if it is outside the ward. In the latter case, a person can, nevertheless, demonstrate the factual circumstances which satisfy a place of living within the ward. As a practical matter that construction is unattractive: the apparent intention of the legislative scheme for elections is to allow people to place themselves on a roll for a particular ward, which will allow them to vote in that ward. On the manner in which the case was run in the Tribunal, it is not necessary for this Court to resolve these questions. 35However, the Tribunal relied heavily upon its decision in Borsak v Cheung [2006] NSWADT 5. The principal issue in that case turned on the operation of s 269(1)(b). In Borsak the Tribunal invited submissions from the Electoral Commissioner as to whether, if a person's place of living was in fact described on the roll and fell within the relevant ward, that was sufficient to demonstrate qualification for enrolment. It was accepted, by way of contrast, that the place of living was to be identified as a fact, pursuant to the second limb, if not identified on the roll as within the ward. Following an extensive review of the State Elections Act, the relevant regulations and nomination forms, the Tribunal concluded that the factual issue could be raised as an "irregularity", even if the address identified on the electoral roll was within the relevant ward. Aspects of the reasoning were questionable, but the conclusion explained why no issue was raised in the present case as to the operation of the apparently separate limbs of s 269(1)(b). 36At the heart of the appellant's case were two propositions. The first was that, as a concept, "place of living" involved physical occupation of premises as living quarters, without any need to refer to any purpose or future intention. For that reason, findings that the appellant in fact lived in a room in his son's property in Orange for a period in excess of the statutory one month period sufficed. The correlative proposition was that, in common usage, residence implied a greater element of continuity and purpose. Thus, as s 269(3) recognised, one could maintain a place of residence whilst temporarily living elsewhere. 37The second proposition central to the appellant's case was that the terms of s 269(3) were not engaged. Thus, that provision did not mandate that a person's place of living be the place of residence to which he or she intends to return when temporarily residing elsewhere; rather, the provision was protective of the person's intention where he or she wished to treat that place as a place of living, whilst temporarily absent, and in that sense was permissive. Thus, it was submitted, at least for the purposes of that section, a person need not change his or her enrolment details when temporarily living elsewhere, so long as there was an intention to return. Where, as in this case, the person wished to be enrolled at the place where he or she was living (albeit temporarily) that was permitted and s 269(3) had no operation. 38On one view, the reasoning of the Tribunal appears to accept that s 269(3) has a mandatory operation, rather than a permissive operation dependent upon an election by the person concerned. That would explain the significant references to the evidence of the appellant that he considered the Borenore property to be his "home"; the emotional connection (of all members of the family) to that property; the principal reason for his shift to Orange being to stand for election; the limited personal items that he took with him, and the fact that his wife remained in Borenore. Each of those factors might readily be seen as reflecting an assumed need to determine whether he was a person who was merely temporarily residing elsewhere, so that his place of living remained Borenore. 39On the other hand, there was no express suggestion in the reasoning of the Tribunal that it was approaching the matter on this (or any other) understanding of s 269(3). That it spent some time discussing the connections with the Borenore property may have reflected the fact that the appellant placed that material before the Tribunal (presumably as relevant to its task) and the Tribunal merely accepted that it was so relevant. More importantly, it is necessary for the appellant to establish that the Tribunal's reliance on, or use of, this material was erroneous as a matter of law. 40The appellant's construction of s 269(3) should be accepted. Read in context, it does not require that the place of living of a person temporarily absent from that place and in fact living elsewhere, necessarily remains the person's place of living. It is better understood as permissive in the sense that it allows the person temporarily absent to maintain the address to which he or she intends to return as the relevant "place of living" for the purposes of the section. Indeed, although it is not necessary to decide the matter for present purposes, it may have been intended to reflect the entitlement of a person to be enrolled whilst not living at an address in the district, despite s 22(1)(b) of the State Elections Act, if within one of the several classes of persons identified in s 22(2) of that Act. 41However, the factors taken into account by the Tribunal were factors which it was entitled to take into account in assessing the appellant's "place of living", regardless of s 269(3). 42It is generally undesirable to substitute words for those used in the statute; on the other hand, it is helpful to note the different concepts with which that referred to in the statute may be compared and which may assist in setting the boundaries of the statutory language. Thus, the phrase "place of living" has an element of regularity or continuity which would not be satisfied by a stay of several nights, or even three or four weeks, in a holiday resort. A person who lives and works in the city, but has a holiday house on the coast, depending on the regularity of the visits, is unlikely to establish a place of living in the holiday house. However, neither regularity nor continuity is necessarily indicative of a "place of living". A person who regularly visits and stays with ageing parents in another city may not establish a "place of living" in the parents' home. On the other hand, a person who lives in the country but works fulltime in a city and has an apartment in the city may have two places of living (if the statute permits that).

[11]

Relevant and irrelevant considerations 43The second basis of challenge was that the Tribunal took into account irrelevant considerations in deciding the case. The phrase "irrelevant considerations" is itself dependent on a construction of the statute in order to identify matters which the decision-maker is prohibited from taking into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 41 (Mason J). On one view, this constitutes but a different way of stating the same point raised above. Whether particular factors are obligatory, prohibited or available, depends on whether questions of purpose and continuity are (or are not) elements of the definition of "residence". 44The examples set out above illustrate that it may be permissible to have regard to a wide range of factors, including subjective elements of purpose and intention, in determining whether a particular location is a "place of living" for a particular individual. In common parlance one speaks of a person "staying" at a place, by way of contrast with "living" at a place. 45This is inconsistent with the somewhat simplistic submission of the appellant that a period of occupation for the minimum term specified by the legislation constituted that location as a "place of living" for the purposes of the section. The submission would appear to require the Electoral Commissioner to reject an application for enrolment from a person who owned their own house in the district, but was presently spending three weeks on vacation outside the district. Absent s 269(3) (which has no direct equivalent in the State Elections Act), on the appellant's reasoning, that person could not properly be enrolled in the district. 46Then there is the matter of authority. These provisions are not unique in this legislation. It is long-established that a place of living, like a place of residence, involves questions of fact and degree. The Queen v The Mayor of Exeter (Dipstale's Case) (1868-69) LR 4 QB 114 considered whether Mr Dipstale was qualified to be a burgess of the City of Exeter, as "an inhabitant householder". Blackburn J stated at 115-116: "The question is whether Mr Dipstale is an inhabitant householder. It is a mere question of fact whether he is or not. In all these cases it is a question of degree, more or less. There is no precise line to be drawn. A person may inhabit a place without sleeping there, or he may sleep there without inhabiting it. The fact that a person sleeps in a place is generally a very important ingredient in deciding whether he inhabits it, but it is not conclusive." 47A similar approach was adopted in Fox v Stirk and Bristol Electoral Registration Officer [1970] 2 QB 463 at 477 (Widgery LJ) and by Ambrose J in Tanti v Davies (No 3) [1996] 2 Qd R 602 at 637. Further, whilst Ambrose J dismissed the proposition that "place of living" connoted a greater degree of permanence than place of residence, being persuaded that the contrary was true, he did not doubt that a place of living involved some element of continuity. 48Holmes J in Burnett Shire Council v Galley [2000] QSC 490; 112 LGERA 93 stated at [41]: "While I accept that the word 'lives' may not connote the same degree of permanence as 'resides', I consider that there must be some element of continuity in a person's occupation of premises for the purposes of eating, sleeping, bathing and carrying on the other activities of everyday life to warrant a conclusion that he or she lives there. It is a question of degree whether a use of premises short of daily occupation is of sufficient proportions to amount to living there." 49The legislation under consideration in Bero v Electoral Commission Queensland [2012] QSC 222; 190 LGERA 304 required that a candidate have lived in the division for which he or she sought election for two years immediately preceding the nomination day. Henry J found that the person nominated (Mr Stephen) had spent a total of two and a half months within the division during the relevant two year period, having been prohibited by a bail condition from residing there for about 14 and a half months. The judge noted the importance of statutory context with respect to the specific geographic requirement for election of councillors of the Torres Strait Island Regional Council, one additional requirement being that the person be a Torres Strait Islander or an Australian Aboriginal person. He construed the statute as referring to the "objective reality" of where Mr Stephen lived, rather than his subjective view as to his place of residence or what he called home: at [59]-[60]. Under the heading "Occasional absences", Henry J referred to the passage from the judgment of Holmes J in Burnett Shire Council set out above. 50No doubt the Queensland cases must be applied with care: they involved different legislation with living requirements for councillors far in excess of those for the electorate; further, in each case a person who had not physically lived in an area for the full statutory period sought to rely upon other forms of connection to qualify. The present case was one in which, despite physical occupation, elements of connection to other premises were relied upon to diminish the significance of the physical occupation. Once it is accepted, as it should be, that "place of living" does not involve strict confinement to a particular place throughout the relevant period, there must be matters of fact and degree involved and the purpose of the person's presence at (or absence from) a particular location is by no means irrelevant.

[12]

Relevant for a limited purpose 51It follows from the foregoing discussion that the impugned considerations taken into account by the Tribunal were not irrelevant for all purposes. The conventional view is that if matters to which regard is had do not fall within the category of those prohibited by statute, they will be categorised as either mandatory or permissible considerations, and a complaint as to the weight accorded to them will not invoke any possible error of law: see M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, Law Book Co, 2013) at [5.30] and [5.140]. 52However, a statement in categorical terms is primarily designed to emphasise the importance of judicial restraint in reviewing the permissible boundaries of statutory decision-making. Even the now canonical statement of principle by Mason J in Peko-Wallsend, at 41, recognised the need for a degree of flexibility: "It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power .... I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'." 53This analysis was incomplete in that it did not address the weight given to permissible considerations and any possible flexibility with respect to impermissible considerations. The significance of these omissions is that "considerations" have different qualities which are not recognised by a simple classification as permissible, mandatory or prohibited. To identify a lion and a deer as wild animals and place them together in a zoo is unlikely to provide a satisfactory outcome (at least for the deer). Two considerations may each be relevant, but may pull in opposite directions. A particular consideration may be relevant to one aspect of the reasoning process, but not to other aspects. For example, in sentencing an offender a prior criminal record is relevant, but may only be used to diminish a plea for leniency, not to increase an otherwise appropriate sentence for the particular offence. Thus a consideration which is relevant for a specific purpose or in respect of a particular issue only may be impermissibly used for a different purpose or with respect to another issue. Such misuse could constitute an error of law. 54Historical, cultural or familial ties to a particular place may help to establish that it is a place of living even when the person who claims to live there is not physically present. For an interstate truck driver or a long haul pilot, the reasons for being absent from one place and staying in another may be critical to determining the place of living. In other words, circumstances of employment will explain why a person is regularly absent from his or her "home". The fact that a person has another home, separate from the claimed place of living, as well as the distance between the two places and the time spent at each will be factors to be taken into account. The purpose for claiming to live at one place may suggest that the degree of connection is overstated or even fabricated. The relevance of particular evidence will depend on the issues identified by the parties. 55Although it is difficult to accept that the Tribunal relied on any factor which was impermissible for all purposes, the third basis of challenge adopted by the appellant suggested a more nuanced approach. Put slightly differently, the error of the Tribunal was to accord particular significance to connections with the Borenore property as diminishing the significance of physical occupation of premises at Orange, when the Orange property was occupied by the appellant as a place where he lived. The appellant was entitled to rely on his physical occupation of the Orange property. On the understanding of s 269(3) accepted above, a person can have a place of living whilst "temporarily residing" away from what might be described as his or her permanent home. No doubt some degree of continuity or permanence is required, but any assessment of that element should properly have been guided by the statutory requirement (under the State Elections Act) of living at the place for one month prior to enrolment. It may be that short periods of absence during that relatively short period would be significant, but the mere fact that the place of living was not intended to be maintained permanently or indefinitely would not by itself preclude that place being a "place of living" for the purposes of the Local Government Act, s 269. 56Thus, a member of university staff on sabbatical leave or a member of the public service on secondment, in either case for a period of a few months, might well be entitled to be enrolled for a local government election despite the fact that each intended to return to his or her permanent place of living and employment within weeks after the election. It is also relevant that a person intending to nominate as a candidate is not subject to any greater geographical constraints than a person seeking to vote at an election. Yet the finding of the Tribunal carried with it the conclusion that the appellant was not entitled to vote in the election. 57In the present case the Tribunal appears to have accepted that both the Borenore and the Orange premises constituted possible places of living and then set out to determine whether the connections with one either outweighed the connections with the other, or were sufficiently substantial to prevent the other constituting a place of living. That was not the exercise required by the statute. The use to which the factors, while not irrelevant for all purposes, were put by the Tribunal indicates that it misdirected itself as to the precise question it was required to determine. 58In these circumstances, the Tribunal approached the matter on a wrong understanding of the statutory requirements with respect to the eligibility of the appellant for civic office. The error cannot be dismissed as immaterial. The decision of the Tribunal must be set aside.

[13]

Costs in the Tribunal 59Section 329 of the Local Government Act authorised the Tribunal to make an award of costs under s 88 of the Tribunal Act (since repealed), in respect of proceedings under that provision on an application that a person be dismissed from civic office: s 329(6). Section 88 of the Tribunal Act, as in force when the proceedings were commenced, provided that each party before the Tribunal was to bear his or her own costs unless the Tribunal ordered otherwise: s 88(1). The Tribunal was empowered to make such an order if satisfied "that it is fair to do so", having regard to a number of specified criteria: s 88(1A). It appears that the application for costs was made on 23 December 2013: Da Rin v Duffy (No 2) at [3]. Further submissions were made after the establishment date for NCAT, being 1 January 2014. At that point, the proceedings were either "part heard proceedings" or "pending proceedings" as defined in Sch 1, cl 6(1) of the NCAT Act. On either classification, the costs provisions in the Tribunal Act continued to apply. By a judgment, not delivered until 10 June 2014, an order was made by NCAT, constituted as the Tribunal had been for the purpose of the proceedings, pursuant to the relevant transitional provisions: NCAT Act, Sch 1, cl 7 60Because the decision of the Tribunal in favour of the respondent is to be set aside, the order for costs in his favour must also be set aside. Accordingly, it is not necessary to consider whether the costs order would have been set aside even if the order of dismissal from civic office had been upheld. It is, however, necessary to note, because it may have resulted in some extra costs being incurred by the appellant, that the appellant faced a formidable procedural difficulty in seeking to appeal from the costs order independently of the substantive order. 61In accordance with the transitional provisions, the costs order was made by NCAT. Although the matter was not fully argued, it would seem that any right of appeal from the judgment of NCAT was to be found within the NCAT Act. An appeal is available, with leave of this Court, on a question of law against any decision made by NCAT: s 83(1). However, the fact that the right to appeal is granted to a party to "an external or internal appeal" or a party "on whom a civil penalty has been imposed" suggests that appeals are limited to such proceedings before NCAT: s 83(1) and (2). It would appear that none of these jurisdictions was being exercised by NCAT in the present case: NCAT Act, ss 31, 32 and 77. More broadly, the consequences of repeal of s 330 of the Local Government Act may need to be revisited by the Parliament. 62The appellant accepted that there was no right of appeal and sought to commence proceedings by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW). In the event, those proceedings were unnecessary and, if any filing fee has been charged with respect to the summons, it should be remitted.

[14]

Appropriate relief 63Accepting that the decision against Mr Duffy must be set aside, any relief consequential on that step is less clear. The appellant invited this Court to dismiss the application before the Tribunal. Such an order would be open if, on the facts as found by the Tribunal, only one conclusion were available as a matter of law. 64As already discussed, a factual finding as to a "place of living" is not reached merely by identifying the place where the person slept during a particular period and how many changes of clothes he took with him. All conduct is purposive, and the purpose for being in one place rather than another may be relevant. Where the person has a "home", the reason for staying elsewhere may well be significant. The appellant appeared to acknowledge as much in his presentation of his case to the Tribunal. His primary purposes for living with his son were twofold, namely to qualify for election to the Council and, as a matter of convenience, to facilitate his employment in Orange. A final conclusion as to his "place of living" would involve both findings as to objective facts and an evaluative judgment. 65The circumstances in which the appellant divided his time and possessions between Orange and Borenore were not in doubt. The Tribunal did not use its views as to the lack of permanency of his domestic arrangements as a basis for doubting his evidence as to the objective facts. Nor were the arrangements similar to a holiday stay or a visit to a sick relative. Indeed, the genuine purpose of qualifying to run for civic office (which implicitly was his dominant purpose) was supportive of the characterisation of Orange as the place where he was living during the relevant period. Once the search for permanency and primacy are set aside, there is no basis in the Tribunal's findings of fact which would permit the objection to be upheld. 66Without seeking to allocate responsibility for the delay, the fact that the challenge to an election for civic office remains to be resolved almost two years after the election, militates against a remittal to the Tribunal for any further proceedings on the application. In these circumstances, the appropriate course is to remit the matter with a direction that the respondent's application to the Tribunal be dismissed.

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