1. The Tribunal interprets the word 'election' in section 311(b) of the Local Government Act 2022 (Vic) (the Act) to mean the election concerning the relevant ward of a council election, here the Yallourn Ward of the Latrobe City Council.
2. The Tribunal finds, as agreed by the parties, that none of the persons named in Schedule 1 below (the Previous Applicants) were electors in the election for the Yallourn Ward in the 2024 Victorian local government elections.
3. Therefore, the Tribunal finds that none of the Previous Applicants were entitled to apply under section 311(b) of the Act seeking a recount of the votes in the Yallourn Ward.
4. Under sections 127 and 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), the application in this proceeding is amended such that the Previous Applicants are removed as parties in this proceeding. The above named applicants are the applicants on the application form, who are joined as the applicants in this proceeding (the Applicants).
5. The address for service for the Applicants is the address details provided by Mr Gregory Hansford. VCAT will send orders and correspondence only to Mr Hansford. VCAT expects that all correspondence to the Tribunal and to the Victorian Electoral Commission (VEC) from the Applicants will come from Mr Hansford.
6. By 10 January 2025, the Applicants are to provide evidence and submissions in support of their application to stay the declaration of the election in the Yallourn Ward, noting submissions opposing the stay are provided by the VEC in its submissions dated 13 December 2024.
7. On 13 January 2025 or shortly after, having considered the above material, VCAT will decide the scheduling of a stay hearing, including giving the VEC relatively short notice of a time in which to make further submissions opposing the stay.
8. By 24 January 2025, the Applicants are to provide to the Tribunal and to the VEC, evidence and submissions on which they intend to rely at final hearing.
9. By 14 February 2025, the VEC is to provide to the Tribunal and the Applicants its evidence and submissions on which it intends to rely at final hearing.
10. The application is listed for a one day Zoom final hearing starting at 10:00am on 13 March 2025.

1. The Tribunal directs that the VEC provide a copy of these orders and reasons to the two candidates for the 2024 Yallourn Ward election.
2. The parties are directed to respond promptly to any registry requests for information (including about their access to technology) and to cooperate with VCAT's requirements for the conduct of the hearing.
3. The parties must be available to participate in the hearing which may start at or after the scheduled start time and to remain available until the hearing ends.
4. All contact with VCAT must include the VCAT case number, and the date and time of the hearing and be copied to all other parties (unless otherwise ordered).

1. On 26 October 2024, local government elections were held across Victoria, as the Local Government Act 2020 (Vic) (the Act) requires to happen every four years.
2. In the Yallourn Ward of the Latrobe City Council, the first count of the votes led to the provisional result, on 6 November 2024, that Mr Graeme Middlemiss, a long-standing local councillor, would be re-elected, with 2,031 first preference votes. Ms Steph Morgan attracted 2,027 first preference votes, being the only other candidate. Two hundred and seventy two votes were deemed informal.
3. Given the close result, the Victorian Electoral Commission (VEC) decided that a recount of the votes should occur. The 8 November 2024 recount resulted in seven votes previously counted to Mr Middlemiss being deemed informal. The recount resulted in Ms Morgan being declared the elected candidate (the Declaration) (still 2,027 votes) with Mr Middlemiss losing seven votes, to a reduced total of 2,023 votes.
4. The VEC refused Mr Middlemiss' 11 November 2024 request for a third 'deciding' count and made the Declaration.
5. On 27 November 2024, VCAT received an application from 11 electors who had voted in the 2024 election for the Latrobe City Council. As is seen below, the fact that they were not voters in the Yallourn Ward of the Latrobe City Council was important. Mr Gregory Hansford, representing himself and the ten other electors lodged the application.
6. The application was made under section 311(b) of the Act, which in part says that within 14 days of the declaration of the result of an election, ten persons who were entitled to vote at the election who dispute the validity of the election may apply to VCAT for review of the declaration of the result of the election.
7. Some days before VCAT received the application, Mr Hansford had contacted the VCAT registry advising that ten or more electors were considering making an application to VCAT under section 311(b) and seeking advice on how to do so. Broadly speaking, VCAT advised that the application would need to be made in the name of ten or more electors, providing their residential addresses and contact details. The issue of whether the electors needed to be electors voting for the relevant council or electors in a ward of the relevant council was not discussed.
8. This application is the first application received by VCAT by ten or more electors since the enactment of the Act and the 2020 and 2024 local council elections.
9. Mr Hansford had checked the VEC website and the VCAT website. Neither specified that electors wishing to contest an election in a given ward must be electors for that ward. Mr Hansford continued on the basis that the electors needed to be electors for the relevant council.
10. VCAT scheduled a directions hearing in this case on 4 December 2024. The VCAT orders scheduling the directions hearing contained the following remarks:

The application in this [case] is made on the basis that 11 named persons in an application submitted by Mr Gregory Hansford on behalf of himself and 10 other persons, were entitled to vote at the election and seek review of the declaration of the result of the election that [Ms Morgan][1] was declared the winner in the [Yallourn Ward] in the 2024 elections for the Latrobe City Council.

The Tribunal invites the Victorian Electoral Commission to consider notifying candidates (successful or otherwise) in that election of the directions hearing next Wednesday 4 December 2024, inviting them to attend the directions hearing, providing the Zoom link which will be sent to the parties in this [case].

There is the potential that a candidate or candidates will seek to be joined as a party in this [case].

At this stage, the Tribunal will email each of the 11 applicants on their individual email addresses, copied to the other parties.

The applicants may wish to consider advising the Tribunal at the directions hearing of a single email address (perhaps Mr Hansford's email address) which can be used as an address for service for all 11 applicants.

1. At the Wednesday 4 December 2024 directions hearing, Mr Hansford appeared to represent himself and the other ten applicants. The VEC was legally represented.
2. The VEC agreed to VCAT extending the time in which the application could be made by one day, to 27 November 2024. While the 14 day time limit for making applications is important, here the VEC and VCAT accepted that efforts were being made to make the application well within the 14 days.
3. However, the VEC applied for VCAT to dismiss the case under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) on the basis that an application under section 311(b) of the Act must be made by ten or more persons who were entitled to vote at the election in the ward, concerning which the applicants dispute the validity of the election (not voters from any ward in the election for council).
4. The applicants foreshowed an application by them to amend the application to include ten or more voters in the Yallourn Ward, intended to overcome the above issue. The VEC advised that it would oppose that application.
5. The applicants also foreshadowed an application to stay the Declaration. The VEC advised that it would oppose that application.
6. At the end of the directions hearing, VCAT scheduled a further directions hearing on 17 December 2024 and set timelines for:
   • The VEC to provide to each of the candidates for the Yallourn Ward, notice that the application in this case has been made, a copy of the application and a copy of the orders;
   • Mr Hansford to apply to amend the application such that the application will be made by ten or more persons who were entitled to vote at the election in the Yallourn Ward, who dispute the validity of the election in the Yallourn Ward;
   • The parties to make submissions; and
   • Either candidate for the Yallourn Ward to apply to be joined as an interested party in this case.
7. On Friday, 6 December 2024, Mr Hansford provided the names of 13 applicants who were entitled to vote at the election in the Yallourn Ward (the New Electors).
8. He later told the Tribunal that he was able to respond so quickly because he is well known as politically active in his local community, including via social media.
9. Before the 17 December 2024 directions hearing, the VEC provided an affidavit from Mr Keegan Bartlett, Director, Electoral Integrity and Regulation at the VEC, providing evidence that the 11 applicants were not electors in the Yallourn Ward and the New Electors were electors in that ward.

1. At the next directions hearing, Mr Hansford advised:
   • If VCAT decided that 'electors' in the Act means electors for an entire council, the then current electors would continue with their application;
   • If VCAT decided 'electors' means electors within a particular ward, the New Electors would apply to 'replace' the previous applicants; and
   • In either case, the application for stay of the Declaration until VCAT decided this case, would be pressed.
2. With Mr Hansford not a lawyer and not legally represented, much of the directions hearing was taken up with Ms Batten of Counsel for the VEC making submissions on the legal issues before the Tribunal, referring to written submissions the VEC had previously provided, with discussion on those legal issues largely between her and me.
3. At the end of the directions hearing:
   • I decided that 'entitled to vote at the election ' means entitled to vote in a given ward, here the Yallourn Ward. Therefore, none of the then current electors were eligible to make the application to VCAT concerning the Declaration. I struck them out as applicants in this case;
   • I reserved my decision on whether, under sections 127 and 60 of the VCAT Act, this case would continue with the New Electors being the applicants;
   • As Mr Hansford by this stage was acting as lay advocate for the New Electors, and matters had become more complex, given the responsibilities of anyone acting for another person to have full consent of those being represented, I gave him the opportunity to obtain that consent from the New Electors; and
   • I ordered that by 1:00pm the next day, Mr Hansford, representing the New Electors, was to advise the Tribunal and the VEC as to whether:
     • the New Electors seek to continue with this case; and if yes
     • whether the New Electors, if successful in continuing, seek a stay of the Declaration.
4. If the application to amend by the New Electors remained on foot, the Tribunal's decision on whether to make the requested amendment, such that this case would continue with the New Electors as applicants in the case was reserved.
5. If the New Electors' application was withdrawn, this case would be dismissed.
6. The orders included remarks that if the New Electors sought to continue with this case and VCAT amended the application in this case such that it continues, the Tribunal was likely to direct that the New Electors provide evidence and submissions by 24 January 2025, that the VEC provides its evidence and submissions by 14 February 2025, with a hearing to be scheduled on or after 21 February 2025.
7. The timeline was 'set' because it is important that disputes concerning local council elections be heard and decided by VCAT as soon as possible.
8. On 18 December 2024, Mr Hansford advised that given the limited time, while he had not succeeded in talking to all the New Electors, he advised that they wished to continue with the case. Since then, Mr Hansford has not advised VCAT to the contrary. The Tribunal understands the New Electors seek to become the applicants in this case.
9. In his 18 December email, Mr Hansford advised in summary:
   • The, by then, previous electors and the New Electors did not dispute the narrower interpretation of the term 'electors', noting that the application by electors not in the Yallourn Ward had been made in good faith on information available at the time;
   • Therefore, the previous electors agree that they were not entitled to have made the application and so to continue as applicants in this case;
   • The New Electors seek a stay of the Declaration. The Latrobe City Council would soon set the budget for the next four years. If the New Electors succeed in their application, the electors who voted for Mr Middlemiss will have proved to have been denied their voice in those budget decisions;
   • Concerning the foreshadowed timeline for the New Electors to provide evidence, if they succeeded in their application to become the applicants in the case, quoting from the email:

On behalf of the 13 voters, former Cr Graeme Middlemiss has been approached and he has agreed to offer expert evidence - written and in person - as to what transpired on, and following, the election. He said he is prepared to supply copies of emails between himself and the VEC re his asking for a recount of the election result and their reply that he was ineligible to do this. He is also prepared to write and sign a statutory declaration in regard to what transpired around the election and its aftermath. He has expressed the view that he was not given his legal entitlement, as a candidate, to a recount.

1. On 18 December 2024, Mr Middlemiss wrote to VCAT saying he wished to give evidence in this case, had requested a third recount and felt, 'deprived of justice and considered an appeal to VCAT'. He wrote that he did not, given what he understood to be the significant cost involved and, 'my observations (over many years) of VCAT decision-making practice'. Mr Middlemiss also wrote that he was unaware of the original application in this case until after the first directions hearing.
2. I now provide reasons for the issues previously decided and on the reserved issues.
3. Given the priority in advising the parties of the Tribunal's orders, orders and reasons, not proofread, were sent to the parties on 24 December 2024. This is the now proofread published version.

Electors means electors in a given local council ward

1. Section 311 of the Act says:
   1. Application to VCAT for review

Within 14 days of the declaration of the result of an election -

(a) a candidate in that election who disputes the validity of the election; or

(b) 10 persons who were entitled to vote at the election who dispute the validity of the election; or

(c) the VEC -

may apply to VCAT for a review of the declaration of the result of the election.

1. The section does not say whether, 'entitled to vote at the election' means anyone entitled to vote for a given local council or entitled to vote in a given ward for a local council, where there are more than two wards.
2. As said at the end of the 17 December directions hearing, I had considered and accepted the statutory interpretation of the term 'entitled to vote at the election' in section 311(b) of the Act, taking into account the use of that term throughout the Act, where unless there is clear contrary intention by Parliament, a word should be given the same meaning throughout a piece of legislation.
3. Section 311 is to be considered in the context of the whole Act.
4. Section 3(3) relevantly says that election means a general election conducted under section 257.
5. Section 257(2)(a) says that a general election is an election which is to be conducted in each ward of a council.
6. Section 3(3) defines ward as a subdivision of a municipal district (if the municipal district is subdivided).
7. Returning to section 311, section 311(a) says that a 'candidate' in 'that election' may apply to VCAT for review. That candidate is a candidate for an office of councillor for a ward (as defined by section 3(1)).
8. As the VEC submitted, applying a broader meaning would lead to absurd outcomes.
9. First, once an application is made under section 311, VCAT has broad powers such as to declare an election void under section 312(1)(c) of the Act. If election in section 311 means election of the whole council, then if a candidate in a ward or ten electors in a particular ward applied to VCAT for orders that the election was void, VCAT orders would void the entire local council election, not just the election for a given ward.

1. Second, a candidate in an election may request a copy of the voters' roll for the ward for which the candidate has nominated, under section 252(1) of the Act. Unless the particular council's electoral structure is unsubdivided, which is addressed by the definition of 'ward' in the Act, Parliament clearly intends only the voters' roll for the ward to be relevant for the purpose of conducting the election campaign (see section 252(3)), not the roll for the entire council.
2. Third, candidates in an election can appoint scrutineers to represent their interests in a count for the election - the entitlement to appoint scrutineers and associated procedures for scrutineers to attend and observe election processes in the Local Government (Electoral) Regulations 2020 (Vic) can only be read in respect to the ward election. If a candidate was entitled to appoint scrutineers for an election for any ward for the council, this could lead to an unmanageable number of scrutineers.
3. Fourth, if election in section 311 has the broader meaning, a candidate in a given ward could make multiple applications seeking to overturn results in other wards.
4. None of the previous electors were enrolled in the Yallourn Ward. They were not entitled to apply to VCAT.

Should VCAT order that the New Electors be the applicants in this case?

1. Section 127 of the VCAT Act says that at any time the Tribunal may order that a document in a case is amended. This can be done on the application of a party or on the Tribunal's own initiative.
2. The purpose of section 127 is to enable documents to be amended where it is just and appropriate to do so, in the interest of acting fairly and according to the substantial merits of the case as required by section 97 of the Act.
3. As discussed in Pizer's Annotated VCAT Act,[2] the power over many VCAT cases has been described as 'wide ranging', 'discretionary and unrestricted' and able to be used to transform the nature of the application itself.
4. In this case, VCAT has that power to transform the actual application which gave rise to this case.
5. Related to that power, is VCAT's power under sections 60 and 60A of the VCAT Act to add and remove parties in a case, even where all the original applicants in the case are removed and replaced with new applicants.
6. The VEC submitted (focusing on section 60 where the same submissions can be equally focused on section 127):
   • To replace the Previous Applicants with the New Electors would circumvent section 311, frustrating the 14 day time limit where Parliament intends that election results may only be challenged within a very limited time frame;
   • The Tribunal should not take such action unless there was a compelling reason to do so; and
   • There are no such compelling reasons here; potential applicants to the Tribunal should be diligent and take reasonable steps to be informed of a decision and concerning their rights to apply for review at VCAT.
7. While VCAT has broad powers, it should only exercise a power such as under section 127 with great caution.
8. In my view, if this was a case where a person wishing to understand what was required to make an application under section 311(1)(b), could learn that 'persons who were entitled to vote at the election' means entitled to vote in the relevant ward, there would be no basis to take action under section 127.
9. Parliament intends that applicants under section 311 take action quickly and that any disputes concerning elections be determined as quickly as possible, where finality in election results as soon as possible is essential.
10. Parliament also provides for a relatively small number of electors to make application to VCAT to contest the result of a local government election. That important right should not be denied in the circumstances of this case.
11. Here, Mr Hansford who took on the role of organising an application to contest the result of the Yallourn Ward, acted diligently to discover what was required to apply to VCAT. None of his research informed him that, 'entitled to vote at the election' in section 311(1)(b), meant entitled to vote in the Yallourn Ward.
12. If the Act clearly said that, or the VEC website said that, or the VCAT website said that, or on making enquiries with VCAT, VCAT staff had said that (meaning no criticism of any of those sources of information), as demonstrated by Mr Hansford, on learning of this then potential requirement within two days providing the names of 13 electors in the Yallourn Ward, he would have done that in the first place.
13. It should be noted that if for example I had decided that section 127 does not extend to the amendment made here, the new applicants could make or have made a fresh application to VCAT. While they would be outside the 14 day time limit, given the circumstances there would be strong basis for them to seek an extension of time for an order under section 126 of the VCAT Act such that the new application would proceed.

1. With this application progressing, the applicants seek a stay of the declaration of Ms Morgan as the successful candidate.
2. To succeed, they must clear three hurdles.
3. First, VCAT has decided that applications under section 311 fall within the Tribunal's original jurisdiction; see Victoria Electoral Commission v Yildiz [2022] VCAT 505 [at 55]. VCAT has two types of jurisdiction, original jurisdiction and review jurisdiction.
4. Section 50(4) of the VCAT Act says that VCAT only has power to stay decisions under review where an application is made in the Tribunal's review jurisdiction.
5. Unless the applicants persuade the Tribunal to decide differently to the Yildiz precedent and the basis on which other applications to the Tribunal following the 2024 local government elections are currently being conducted, and now decide that such applications are within VCAT's review jurisdiction, the Declaration cannot be stayed by VCAT.
6. Second, with this issue not arising at the directions hearing in this case, where a stay order is made, the situation returns to the situation before the decision which is being disputed, here the declaration that Ms Morgan is elected. Before Ms Morgan was elected, no candidate was declared the elected candidate. While perhaps if VCAT decided it had power to grant a stay and did so, it would also decide it had power to direct the VEC to declare Mr Middlemiss elected on an interim basis, whether that power to direct exists and whether it would be exercised would require careful consideration.
7. Third, if VCAT has jurisdiction, whether or not to stay the Declaration would be considered with respect to well accepted criteria.
8. Concerning a primary criteria, whether failing to grant a stay would render the application nugatory, or more commonly understood as worthless, it seems on information currently available, that would be unlikely. If Mr Middlemiss became the successful candidate, the great majority of the four-year term would still to be served. That said, Mr Hansford has put forward the concern as to Mr Middlemiss would become the successful candidate after the Council's four year budget had been set.
9. Concerning the prospect of the applicants succeeding, the VEC submits that the applicants appear to do little more than request a deciding count, whoever has two out of three counts should succeed.
10. The VEC's position is that this is not a matter of tossing a coin to determine success (my description of the VEC's position). The recount was fair and provided a fair result. The candidates were present with scrutineers. Mr Middlemiss did not apply to VCAT challenging the result. The new applicants have not pointed to any deficiency in the recount process.
11. Mr Hansford's response on this that with him having some experience in elections, he regards it as highly unlikely that on recount seven votes for one candidate, and no votes for the other candidate are deemed informal.

1. During the hearing I responded that Mr Hansford's opinion on that issue would likely have very little if any weight with the Tribunal, as he would not be in the position of offering expert opinion as a psephologist (an expert in the study of elections and voting).
2. While time will tell, perhaps that is why Mr Middlemiss now seeks to provide evidence in this case.
3. For completeness and not by way of encouragement, I note that Ms Morgan has the option of being joined as an interested party in this case.

[1] The original remark wrongly named Mr Middlemiss as the declared winner.