NSW Electoral Commissioner v Kempsey Shire Council

(Revised from transcript)

1. These reasons should be read together with the judgment of this Court in NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2022] NSWSC 282 ("Judgment (No 2)").
2. At the conclusion of those reasons, I noted that these proceedings would be stood over until today in which I would hear submissions about the forms of order necessary to give effect to the judgment, including the timing of any declarations concerning the voidness of the subject elections. I also stated that I expected to be advised by the NSW Electoral Commissioner (the "Electoral Commissioner") of what steps, if any, are proposed to be taken to address the issue of the costs and expenses thrown away by the candidates in the December 2021 elections in the subject councils. I made that observation in a context where I did not express any conclusion one way or another about the Court's power to grant any relief in respect of that subject matter.
3. Since that time all the parties, including the unrepresented parties, have diligently applied themselves to addressing the matters in Judgment (No 2). Proposed short minutes were provided and agreed upon by the Electoral Commissioner and the subject councils. Save for the matters that I will address, they are either agreed to, or not opposed, by the other defendants.

Timing of Declarations

1. The first issue that has to be addressed is the timing of any declaration as to the voidness of the subject elections. In the ordinary course the timing of a declaration that a particular step taken under a statute was void is usually of little moment because it has already, in effect, been determined to not be of legal effect. However, in this case, by reason of s 318 of the Local Government Act 1993, the timing of any such declaration is of significance because it then engages a requirement to hold an election within three months of the declaration being made.
2. The scope of the Court's power to delay making the declaration is relatively limited, but at least it extends to considering the various practical matters that I will shortly describe. The Court received submissions and evidence about the matters affecting the timing of the declaration and any consequent election. It was clear from the Electoral Commissioner's submissions that it is proposed that when such a declaration is made the election would be held towards, if not at the end of, the three-month period.
3. From the Electoral Commissioner's perspective there were two particular constraints. The first is a requirement not to hold any council election on the same Saturday as a federal election. It is generally inappropriate for a court to engage in speculation about the timing of when a federal election may occur. At this point, however, it can at least be stated with some reasonable certainty that there must at the very least be a half‑Senate election by no later than 21 May 2022. For my part, I see a practical difficulty in otherwise making orders that would have the effect that there would be a substantial overlap between the election period for a local council and any type of federal election.
4. The other constraint is the school holiday period in July, the effect of which was that, if an election could not be held before 2 July 2022, it would have to be held at the end of July 2022. Added to this were various issues the subject of evidence from the subject councils concerning their budgetary and other processes which pointed to difficulties in holding the elections in May or June 2022.
5. The end result is, that the only course is to make the declarations but delay their coming into effect until 3 May 2022. This will enable the various issues I have identified to be accommodated for in a new election date. It will also allow some time for the defendant councillors to pursue a proposal being put in place by the Electoral Commissioner to meet their electoral expenses before they make the difficult decision as to whether they will run for election again.
6. Accordingly, I will make orders declaring the elections void. However, they will be subject to further orders that that declaration not take effect until Tuesday 3 May 2022. So far as the form of the declarations is concerned, I am satisfied that they reflect the conclusions in the principal judgment.

Costs

1. The next issue that arose concerned the appropriate order as to costs. The Electoral Commissioner has reached a consent position with the three councils to pay their costs on an indemnity basis. A notation to the proposed orders records that that part of the costs order which is on an indemnity basis is in partial resolution of a contractual claim advanced by those councils for the recovery of their expenses thrown away by setting aside the election.
2. The Electoral Commissioner also proposes to pay the legal costs of the proceedings of the other defendants on an ordinary basis. The solicitor for the eighteenth defendant, Ms Wright, made an application that that order be varied so far as her client is concerned so that the costs are paid on an indemnity basis. In usual circumstances, costs are ordered to be paid on the indemnity basis where there has been either some matter in which a party has conducted the proceedings in a materially deficient way, or where an offer made by the parties seeking the order was rejected and then exceeded.
3. There is no suggestion that the Electoral Commissioner did not conduct the proceedings in anything other than a proper fashion. However, Ms Wright points to a written offer expressed to be without prejudice save as to costs made on 25 January 2022 expressing a willingness to consent to the orders sought in the summons on the basis that the Electoral Commissioner pay a sum just in excess of $19,000 to reimburse her for her electoral campaign expenses thrown away and her costs of the proceedings as agreed or assessed. The difficulty with making an order for indemnity costs on the basis of that offer is that at this point there is no legal basis for concluding that her client is entitled to that sum by way of reimbursement for her expenses thrown away. I will order that the Electoral Commissioner pay Ms Wright's client's costs on the ordinary basis.

Electoral Expenses

1. This leaves the question of electoral expenses. I have been provided with a copy of an email sent on behalf of the Electoral Commissioner outlining a proposal for the making of act of grace payments under s 5.7 of the Government Sector Finance Act 2018. At this point, I have no reason to believe that that proposal will not be pursued in good faith. I will accommodate this by standing the matter over for what is hopefully a brief mention or directions on Thursday 5 May at 9.30am. Whether the Court will be in a position to take any substantive step in relation to that aspect of the proceedings then, cannot be stated at this point.

Orders

1. Accordingly, the Court will make Orders 1 to 4 in the short minutes of order dated 29 March 2022 signed on behalf of the plaintiff, the first, tenth and thirteenth defendants. The Court will also order that, pursuant to Uniform Civil Procedure Rule 36.4(1)(b) and 36.4(3), Orders 1 and 2 are not to take effect until Tuesday 3 May 2022 and further order that the proceedings stand over for mention at 9.30am on Thursday 5 May 2022.
2. The Court declares void the following elections of councillors held on 4 December 2021: a. the election of each of the second to ninth defendants as councillors of Kempsey Shire Council; b. the election of each of the eleventh and twelfth defendants as councillors of the City of Shellharbour Council (Ward A); and c. the election of each of the fourteenth to twenty-second defendants as councillors of Singleton Council.
3. The Court declares that the effect of the declaration in [1.] is that the returning officer is to hold another election as if a casual vacancy had occurred in the civic office of each of the councillors the subject of [1.], and candidates purporting to have been elected at the void elections continue to hold office as if duly elected until that other election is held.
4. The plaintiff is to pay the costs of these proceedings of the second to ninth, eleventh, twelfth, and fourteenth to twenty-second defendants on an ordinary basis.
5. The plaintiff is to pay the costs of these proceedings of the first, tenth and thirteenth defendants on an indemnity basis.
6. Pursuant to Uniform Civil Procedure Rule 36.4(1)(b) and 36.4(3), Orders 1 and 2 are not to take effect until Tuesday, 3 May 2022.
7. The proceedings are stood over for mention at 9.30am on Thursday, 5 May 2022.

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