Woodhouse v Marano

Preliminary

1. This matter was first heard on 18 May 2018. On that occasion the Tribunal was constituted by Principal Member Titterton. Evidence was tendered, witnesses cross-examined, written submissions were received and oral submissions made. The Tribunal's decision was reserved.
2. Regrettably, the matter should have been heard by the Tribunal constituted by three Divisional Members of the Tribunal: Civil and Administrative Tribunal Act 2012 (NSW) (NCAT Act), cl 6(2) of Sch 5. The matter was listed for directions on 6 June 2018.
3. On 6 June 2018, the parties agreed that the matter should be reheard by a Tribunal consisting of Principal Member Titterton and two other Divisional members, with the evidence tendered on 18 May 2018 and the transcript of the proceedings being made available to the new panel. The parties also agreed that there was no need for a further hearing, and that the matter could be determined "on the papers": NCAT Act, s 50(2).
4. The President of the Tribunal, Justice Wright, subsequently directed pursuant to s 27(2) of the NCAT Act that the further hearing take place with the Tribunal constituted by Principal Member Titterton, Senior Member Lucy and General Member Bolt.

Grounds of the Application

1. The application was filed on 7 December 2017. While that application attached a document setting out some grounds for the relief sought, the full grounds for relief are set out in the Points of Claim filed 28 March 2018.
2. It is common ground that: 1. Mr Marano is not a resident of Woollahra or of Paddington Ward and does not himself own property in Woollahra. He is a resident of the City of Sydney residing in Roslyn Gardens Elizabeth Bay; 2. the only connection to Woollahra which could make Mr Marano eligible to stand for election to Woollahra Council is that he was nominated as a "nominee" of a company which owns land in Woollahra, Conalec Holdings Pty Ltd (Conalec Holdings), has three directors and at all material times had three directors; 3. Mr Marano has no role in Conalec Holdings and is not a director, a secretary or a shareholder of Conalec Holdings.
3. Relevantly, the grounds articulated in the Points of Claim are: There are two primary grounds upon which the Applicant seeks to appeal this appointment: (a) A single director cannot legally bind a company where there are three directors and accordingly until either (i) two directors signed the Nomination Claim form or (b) a contemporaneous ratification by the Company at a Board Meeting confirms Mr Van Cooney was authorised to sign the Form on behalf of the Company a valid nomination has not occurred in this case. (b) Even if this appointment as nominee was valid, there are public policy grounds to prohibit appointment of nominees where they do not declare their interest when matters have previously come before Council in relation to the property they have used for nomination and there is a clear conflict of interest. In this case, no disclosure of interest or withdrawal from voting was made by Mr Marano in relation to DA226/2011 - [XXXXX] Paddington which was considered by Council (with Mr Marano in attendance) on 29 January 2013. Despite being a nominee of the Company and using this as the sole basis for his very election to Council, he did not declare his interest and instead voted in favour of a very significant development application, appearing to act as a disinterested Council member when considering this application, despite clearly having a connection to the property. It appears the Company previous to this DA and subsequent to this DA nominated Mr Marano as its nominee as a quid pro quo for favourable treatment by Council including Mr Marano voting in favour of its own DA on 29 January 2013.
4. The reference to "the Company" is a reference to Conalec Holdings Pty Ltd (Conalec Holdings), referred to above.
5. We shall refer to these two grounds as "the valid nomination ground" and the "failure to declare an interest ground". Mr Woodhouse submits that the conduct the subject of each of these grounds is conduct which falls within the meaning of "irregularity" referred to in s 329(2)(a) of the Act.
6. The reference to "the Company" is a reference to Conalec Holdings Pty Ltd (Conalec Holdings), referred to above.

Mr Woodhouse's evidence

1. Mr Woodhouse's evidence consisted of an affidavit he swore on 26 January 2018. He sets out a short history of Woollahra Council's rejection of a proposal to build a "large, concrete skateboard park" in Rushcutters Bay Park. He says that he lodged an objection to the proposal, and therefore has a "vested interest" in the Council's handling of the issue, "its decision-making process and Mr Marano's role".
2. Mr Woodhouse became aware that Mr Marano was not a resident with the Woollahra Municipality, and that the Australian Electoral Roll showed that he lived within the City of Sydney municipality. `
3. The affidavit concludes with submissions from Mr Woodhouse that:

• he lodged the present application "in the public interest", which he says was "the only avenue available", to clarify Mr Marano's position;
• the public has a right to be satisfied that all those who hold public office and receive emoluments are validly elected and acting lawfully and ethically in the public interest.

1. The facts deposed to by Mr Woodhouse otherwise appear sufficiently in our findings of fact set out below.
2. Mr Woodhouse was briefly cross-examined by Mr Miller. Mr Woodhouse agreed that he was "vehemently opposed" to the skateboard park development. Mr Woodhouse was asked why he had brought the application. He said that he thought that there was a "big question" over Mr Marano's status. Mr Woodhouse wanted to "test" that eligibility. Mr Woodhouse also said that he thought there had been a conflict in Mr Marano voting on a development application submitted by Conalec Holdings to Woollhara Council in 2013. Mr Woodhouse denied that he had had any "animus" against Mr Marano, or that he was motivated by any political purpose in bringing the application. Mr Woodhouse denied that the allegation contained in his original application, namely that there was a "reasonable possibility that a fraud [had] been committed" by Mr Marano, was outrageous.

Mr Marano's evidence

1. Mr Marano relied on:

• two affidavits that he had sworn respectively on 26 March and 1 May 2018;
• an affidavit of Mr Darel Hughes unsworn but filed 4 May 2018; and
• an affidavit of Mr Van Cooney also unsworn and filed 4 May 2018.

Mr Marano's affidavits

1. Much of Mr Marano's first affidavit consists of submissions, not evidence. It is Mr Marano's belief that Mr Woodhouse's application had been brought for an improper purpose, namely the purpose of seeking to "pressure" him in his deliberations as councillor in respect of the skateboard park.
2. Mr Marano was briefly cross-examined by Mr Mak. Relevantly, Mr Marano denied that he had ever received any payments from Conalec Holdings. He denied that he had ever been asked for favours by Conalec Holdings, or anyone on its behalf. He denied that he had or ever had had any role or duties with or for Conalec Holdings. He said that he had only met Mr Cooney once, for 30 minutes, in the circumstances set out by Mr Hughes in his affidavit. He agreed that he had made no enquiries to see what properties Conalec Holdings owned, or whether it was a property developer.

Mr Hughes' affidavit

1. Mr Hughes is a chartered accountant. From 1987 to 1999 he was a councillor of Woollahra Council. He has been a member of the NSW Division of the Liberal Party of Australia for over 35 years, and has been the President of the Party's Woollahra Local Government Conference for over 10 years. That Conference is responsible for seeking and preselecting candidates to stand at local government elections for the Woollahra Council.
2. Mr Hughes acted in the 2012 and 2017 Local Government elections as the campaign manager for the Liberal Party's endorsed candidates for Woollahra Council. For the purposes of elections, the Woollahra Council area is divided into five wards and each ward elects three councillors, a total of 15 candidates for the whole council area. For the 2012 election, there was an expectation that the Party would be able the gain enough votes for eight or more councillors to be elected. As Conference President and the Campaign Manager it was Mr Hughes' responsibility to ensure that a total of 15 Liberal endorsed candidates were nominated, even if a number of them stood little chance of being elected. One of the Party members he approached was Mr Marano. Mr Hughes had known Mr Marano for over five years, as he was the President of one of the branches in the conference. Mr Hughes had a good opinion of Mr Marano and believed that, in the event that Mr Marano was elected, he would perform the duties of a councillor well.
3. Shortly before the close of nominations and the formation of groups for "above the line" voting purposes for the 2012 election, Mr Hughes realised that Mr Marano lived outside the boundary of the Woollahra Municipality and, from a residential point of view, was not qualified to stand as a candidate for election to the Woollahra Council. However, Mr Hughes was aware of the non-residential roll of electors and that companies that owned property in a council area could nominate a person to be included on the non-residential roll for election purposes. He asked Mr Marano if he knew of a company which could appoint him to the non­-residential roll of electors. Mr Marano indicated that he did not, and as time was running out, Mr Hughes sought to locate such a company.
4. That company was Conalec Holdings, owned by Mr Van Cooney and his two brothers. Mr Hughes was aware that Conalec Holdings owned property within the Woollahra Municipality. Mr Hughes approached Mr Cooney to ask him if Conalec Holdings would be prepared to nominate Mr Marano for inclusion on the non-residential roll. Mr Cooney said that he did not know Mr Marano or anything about him but, based on Mr Hughes' recommendation, he would be prepared to meet Mr Marano.
5. Mr Hughes subsequently met with Mr Cooney in his office and introduced Mr Marano to him. Following that meeting, Mr Cooney advised Mr Hughes that Conalec Holdings was prepared to qualify Mr Marano as a candidate for the 2012 Council elections. Mr Cooney completed the appropriate paperwork on behalf of Conalec Holdings. As a result Mr Marano nominated as the "No. 2" Liberal candidate in the Cooper Ward of Woollahra Council in the 2012 elections.
6. Mr Marano was again nominated as the nominee of Conalec Holdings in the 2017 election.
7. Mr Hughes was cross-examined by Mr Mak about these and other matters. In summary, he confirmed and amplified his affidavit evidence. Mr Hughes denied that any promise was given Conalec Holdings about Mr Marano's participation on Council. He disagreed that the nomination of Mr Marano by Conalec Holdings was "an unusual" or an "extremely unusual" situation.

Mr Cooney's affidavit

1. Relevantly, Mr Cooney states that since his appointment as a director in March 1998, with the consent of his co-directors, he has managed the everyday affairs of Conalec Holdings. In doing so, he has accepted various documents on behalf of Conalec Holdings. However, prior to doing so he consults his co-directors, in informal board meetings, regarding any consent or the granting of any authority on behalf of Conalec Holdings. He states that it is a firm policy of the directors that decision of the board is unanimous.
2. Mr Cooney states at [7] of his affidavit, and was not cross-examined about this statement, that on no occasion did either he or his co-directors have any communication with Mr Marano directly or indirectly about the skateboard park in Rushcutters Bay Park. He also states that the Development Application which was approved on 29 January 2013 (the subject of the failure to declare an interest ground) was never acted upon by Conalec Holdings, and expired on 30 January 2018.

Factual Findings

1. On the basis of the filed evidence and the cross-examination we make the following relevant findings. As already referred to above, it is common ground, and we find that Mr Marano:

• is not a resident of Woollahara or of Paddington Ward and does not himself own property in Woollahra;
• was nominated as a "nominee" of Conalec Holdings. At all material times Conalec Holdings has had three directors;
• has no role in Conalec Holdings and is not a director, a secretary or a shareholder of that company.

1. Mr Woodhouse is a local resident in Woollhara Council local government area. He is an architect, and takes what he describes as a "keen interest in the amenity and heritage" of his local area, including Rushcutters Bay Park. A development proposal for the skateboard park in Rushcutters Bay Park was rejected by Woollhara Council in 2017, but was subsequently approved on 26 February 2018. Mr Woodhouse opposes this development.
2. Mr Marano was first elected to Council in 2012, and re-elected in September 2017. On both occasions, Mr Marano was nominated as a nominee elector for and by Conalec Holdings.
3. On 31 July 2017, Woollhara Council processed a Nomination Claim in respect of Mr Marano. In that Nomination Claim, Conalec Holdings nominated Mr Marano as its nominee elector. The Nomination Claim was signed by Mr Cooney on 26 July 2017, who declared himself to be a director of Conalec Holdings and authorised by it to make the nomination.
4. Mr Cooney was a director of Conalec Holdings at the time, and had been a director since March 1998. Mr Cooney was authorised by the directors of Concalec Holdings to complete the Nomination Claim and to nominate Mr Marano as the nominee elector of Conalec Holdings.
5. The nomination of Mr Marano as nominee elector for Conalaec Holdings was facilitated by Mr Darel Hughes, the 2012 and 2017 Local Government campaign manager for the Liberal Party. Mr Hughes was aware of the non-residential roll of electors and that companies who owned property a council area could nominate a person to be included on the Non-Residential roll for election purposes. Mr Hughes asked Mr Marano if he knew of a company which could appoint him to the non­-residential roll of electors. As Mr Marano did not know of such a company, Mr Hughes sought to locate one.
6. The company identified by Mr Hughes was Conalec Holdings, owned by Mr Cooney and his two brothers. Mr Cooney was appointed as a director of Conalec Holdings in March 1998. With the consent of his co-directors, he has managed the everyday affairs of Conalec Holdings since that time.
7. Mr Hughes met with Mr Cooney in his office and introduced Mr Marano to him. Following that meeting, Mr Cooney advised Mr Hughes that Conalec Holdings was prepared to qualify Mr Marano as a candidate for the 2012 council elections. Mr Coonney subsequently completed the Nomination Claim on behalf of Conalec Holdings.
8. At some point, Mr Woodhouse became aware that Mr Marano was not a resident with the Woollahra Municipality, and that the Australian Electoral Roll showed that he lived within the City of Sydney municipality. He made enquiries of Woollahra Council which revealed Mr Marano was not enrolled on Council's Residential Roll but was recorded on its non-residential (Business) Roll.
9. On 30 November 2017, Mr Mak, a solicitor then acting for Mr Woodhouse in a "pro bono" capacity, sent Mr Marano an email. Mr Mak informed Mr Woodhouse that Mr Woodhouse had raised questions regarding Mr Marano's eligibility to "run as a candidate" in the Council elections. Mr Mak said that his email "lays out the evidence collated by myself and Mr Woodhouse". The email identifies two issues. The first is that the appointment of nominees "appears to relate solely to receiving and issuing correspondence on behalf of the owner [ie Conalec Holdings], not eligibility to run in elections in their own right". Mr Mak stated that "it appears from the legislation that a majority shareholder or controlling director of accompany owning land in the Council municipality may run for office - but not a mere nominee".
10. The second issue identified in the email was that Conalec Holdings had lodged a development application in respect of a residential/commercial property it owned in Paddington on 3 June 2011, which was considered by Woollahra Council in 2013. The email states that it appears that Mr Marano was a councillor at the time and "did not stand aside when this matter was considered despite what clearly appears to be a conflict of interest".
11. The emails asked for a response by Monday 4 December 2017. Mr Marano did respond by 4 December 2017. In an email to Mr Mak, he wrote that he had "no intention of responding" to Mr Mak's email "in any detail", as "my eligibility to serve on Woollhara Council has been approved by the General Manager, so I have therefore asked him to respond to you instead".
12. On 6 December 2017, Woollhara Council's Director of Corporate Services, Mr Stephen Dunshea, sent an email to Mr Mak, copied to Mr Woodhouse and Mr Marano. That email relevantly states: I refer to your email of 30 November 2017 to Councillor Anthony Marano. Your email was referred by Councillor Marano to Council's General Manager for response in relation to inclusion of Mr Anthony Marano of Elizabeth Bay on the Roll of Non-Residential Owners of Rateable Land for the Paddington Ward in connection with the September 2017 Woollahra Municipal Council Elections. I advise that Council dealt with the matter of Mr Marano's nomination in terms of Chapter 10 [How are people elected to Civic Office) under the Local Government Act 1993, specifically having regard to Section 270 [Who is an "owner of rateable land" for the purposes of this Part?), section 299 [Non-residential roll) and section 303 [Making of claims for inclusion in the roll) of the Act. As Acting General Manager at the time, I was satisfied that the inclusion of Mr Marano on the Non-Residential Roll for the Paddington Ward in connection with the September 2017 Woollahra Municipal Council Elections was undertaken in accordance with the requirements of the Act. Further, the NSW Election Commission verifies the eligibility of the applicant Mr Marano, as an elector. Being an eligible elector, Mr Marano is entitled to stand for election as a councillors (refer to the attached information of the NSW Electoral Commission Website http://www.elections.nsw.gov.au/candidates and parties/eligibility/local government elections which states: Anyone who is entitled to vote at elections for a council is eligible to stand for election as a councillor or as the Mayor for a council (if the Mayor is popularly elected). You must be: • at least 18 years old and an Australian citizen (or a British subject on an Australian roll on 25 January 1984) and • on the relevant electoral roll for the council's area. (That is the residential roll, the roll of non-resident owners of rateable land or the roll of occupiers and rate paying lessees.)"
13. As to the disclosure of the conflict of interest point raised by Mr Mak, Mr Dunshea states that he had spoken with Mr Marano, and that Mr Marano had acknowledged that a disclosure of interest relating the Conalec Holdings Development in Paddington should have been disclosed at the Council Development Control Committee Meeting on 29 January 2013. Mr Dunshea stated that, notwithstanding the oversight by Mr Marano in not recognising the interest, the Development Control Committee, under delegation of Council, adopted the Council Assessment Officer's recommendation by a vote of five councillors for the motion and two councillors against the motion.
14. Mr Mak responded to Mr Dunshea, later that day. He states: . . . It is well known practice that if there are two or more directors at least two must sign to legally bind [Conalec Holdings] (see section 127 of the Corporations Act) or a board resolution must be made to authorised [sic] one director to sign on behalf of [Conalec Holdings]. . . . Did you receive a copy of a board resolution authorising the single director to sign on behalf of [Conalec Holdings]? If not could you please obtain one?
15. Mr Mak concludes with the following statement: I acknowledge a properly authorised nominee appears to be eligible to stand as a Councillor under section 270 of the Local Government Act. However unless a board resolution is provided it remains the fact that Mr Marano does not appear to have been validly appointed as a nominee to begin with.
16. The following day, 7 December 2017, the present application was filed in the Tribunal. A "Notice of Representation by legal practitioner or agent" was also filed that day, identifying Mr Mak as Mr Woodhouse's legal representative.
17. At 16:52 that day Mr Dunshea sent Mr Mak an email attaching a letter from Conalec Holdings dated 7 December 2017, signed by Mr Cooney. The letter relevantly states: . . . I am able to say that I have had authority from my co-directors both being my brothers to act on behalf of our family company and make "every day" decisions on behalf of [Conalec Holdings]. This authority has been in place since my brothers and I inherited the family company [Conalec Holdings] from our parents. My co-directors were fully aware of the original nomination of Mr Anthony Marano and I had without reservation continued authority to make decisions on behalf of [Conalec Holdings] and nominating Mr Anthony Marano was within my authority.
18. Shortly afterwards, that letter was responded to by Mr Mak on behalf of Mr Woodhouse. Mr Mak's describes Mr Cooney's response as "insufficient", because "it is the same person making the comment". Mr Mak says that "the simple solution" is for Mr Cooney to make a copy of the relevant board resolution available. Mr Mak concludes by saying that he understood that Mr Woodhouse had lodged an application with the Tribunal.

Principles

1. Section 329(2)(a) of the Act refers to "any irregularity in the manner in which the person has been elected or appointed" to civic office. The word "irregularity" is not defined in the Act. In R v Grey; Ex parte Marsh (1985) 157 CLR 351, Gibbs CJ discussed the meaning of 'irregularity' in relation to an election for office bearers for a union and said at 367-368 that: [t]he notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election.
2. In Bourne v Murphy (1996) 92 LGERA 329; [1996] NSWCA 59, Beazley JA explained the concept of "irregularity" a little further when she stated at [358]: "... it is not any irregularity which suffices for the purpose of s 329. Rather, it must be an irregularity such that the result of the election is thereby uncertain: see Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582 (my emphasis)."
3. Bridge v Bowen involved the election result in the 1915 City of Sydney Council elections. Thirteen persons had impersonated enrolled electors, 12 of whom did not vote. It was not possible to determine the candidates for whom the impersonators had voted. The Full Bench of the NSW Supreme Court, held that the appellant was not duly elected, and made an order nisi for ouster pursuant to s 56 of the Sydney Corporation Act 1902 (NSW). By majority, the High Court of Australia allowed the appeal and the order for ouster discharged. The leading judgment was that of Isaacs J, with whom Gavan Duffy and Rich JJ agreed. Isaacs J reviewed the authorities and stated at 623-624 that: (1) The election of an officer - in other words, his selection by the constituency - may be attacked only for a defect which affects him. (2) If the defect strikes at the entire election, either because there was no real election at all or because some official irregularity has occurred, he is affected because his title is claimed through it, and he must meet the defect if he can. (3) If there has been no real election, his selection so-called is necessarily void. (4) If there has been any official irregularity in the conduct of the election, where the law requires absolute and strict adherence or where the irregularity is so great as to depart substantially from a directory enactment, his selection so-called is void unless he can show the result could not have been affected by it. (5) Where the defect complained of does not strike at the election as an entirety, but is confined to some breach of law in individual instances, then he is not necessarily affected, and is not affected at all unless he or his majority is shown to be connected with the defect. (6) If the law does not provide any means of so affecting him he is not affected, and, as his selection cannot be regarded as unduly made, it must rest where it is.
4. The Tribunal recently referred to Justice Beazley's comments with approval in Briscoe-Hough v Tegg [2018] NSWCATAD 108 at [47] and [48]; and Kelly v Smith [2018] NSWCATAD 122 at [21] to [22]. In Briscoe-Hough the Tribunal noted that that a relevant "irregularity" for the purposes of s 329 of the Local Government Act 1993 may arise at any point during the electoral process and that it may relate to the performance of a statutory function or power by the Commissioner or a returning officer. However, there must be a nexus between the alleged irregularity and the election of the official in relation to whom the Tribunal has received an application for removal under s 329 of the Act.

The valid nomination ground

1. Mr Woodhouse concedes that a properly authorised nominee is eligible to stand as a councillor under s 270 of the Act. He submits that unless a board resolution is provided it remains the fact that Mr Marano does not appear to have been validly appointed as a nominee to begin with.
2. The relevant Nomination Claim signed on 27 July 2017 was in evidence and its relevant contents summarised above. Mr Woodhouse submits: On its face, the nomination is invalid as either two directors should have signed the form or Mr Van Cooney should have been empowered to sign pursuant to a Board Resolution at a Board Meeting. No such Board Resolution has ever been produced either by Mr Marano, the Council or Conalec Holdings Pty Ltd. The only conclusion that the Applicant could draw prior to lodging this Application is that the appointment of Mr Marano was defective as only one director authorised the nomination in circumstances where [Conalec Holdings] clearly had three directors. We note [Conalec Holdings] had the opportunity to provide a Board Resolution at any stage and has still not done so.
3. We reject that argument for the following reasons.
4. First, the question of whether a person has authority to sign a document on behalf of a corporation is a question of fact. In this respect, a board resolution is only evidence of an authorisation taking place. Section 127 of the Corporations Act 2001 (Cth), on which Mr Woodhouse relies, is an inclusive provision as to the ways in which documents may be executed by a corporation. The section does not mandate an exclusive or compulsory way of doing so. In this respect, s 127 provides: (1) A company may execute a document without using a common seal if the document is signed by: (a) 2 directors of the company; or (b) a director and a company secretary of the company; or (c) for a proprietary company that has a sole director who is also the sole company secretary - that director. Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company.
5. Section 129 in turn provides: 1. a person may assume that anyone who is held out by the company to be an officer or agent of the company has been duly appointed; and has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar company: s 129(3); 2. a person may assume that the officers and agents of the company properly perform their duties to the company: s 129(4)
6. Secondly, the evidence that Mr Cooney was authorised to sign the Nomination Form on behalf of Conalec Holdings is clear and not challenged by any probative contrary evidence. It is not now disputed that the Nomination Form was signed by Mr Cooney. Nor is it disputed that Mr Cooney was a director of Conalec Holdings at the material time.
7. Thirdly, the signature of Mr Cooney, on the Nomination Form, appears immediately above the words: "I declare that I am authorised by the entity/group to make this nomination". As this is the manner in which the Nomination Form is required, by the Council to be signed, we accept Mr Marano's submission that no question of irregularity arises.
8. Fourthly, there is no evidence that the declaration made by Mr Cooney on the Nomination Form is a false declaration, and no evidence before the Tribunal that there was misleading information in the Nomination Form.
9. In fact, the evidence before the Tribunal, and known to Mr Woodhouse on 6 December 2017, the day before he filed the present application, was that the inclusion of Mr Marano on the Non-Residential Roll was undertaken in accordance with the requirements of the Act, and that Mr Marano was entitled to stand for election as a councillor (see the email of Mr Dunshea of 6 December 2017 referred to above).
10. It follows that, at all material times, Mr Cooney was properly nominated by Conalec Holdings as its nominee, and that Mr Cooney, who signed the Nomination Form, was authorised to do so.
11. That conclusion is sufficient to dispose of the valid nomination ground.

Consideration - failure to declare an interest ground

1. The argument, as we understand it, is that the failure of Mr Marano to declare a conflict of interest while voting at a Council meeting in January 2013 constitutes an irregularity in his election to Council in September 2017.
2. Mr Mak indicated at the hearing that this ground involved a "novel" principle.
3. We agree. The submission is misconceived.
4. Such a matter is a conduct matter more properly dealt with under the provisions of Chapter 14 of the Act, Honesty and Disclosure of Interests, and, in particular:

• Part 1 (Conduct Generally): Division 3, Misconduct;
• Part 2, Duties of Disclosure: Div 3, Disclosure of pecuniary interests at meetings;
• Part 3, Complaints concerning non-disclosure and proceedings before NCAT.

1. The simple fact is that Mr Marano was elected on or about 16 September 2017. Even assuming that his failure to declare his conflict of interest in being a nominee of Conalec Holdings at a Council meeting in 2013 to be an irregularity (and in our view it is not), it cannot possibly be said that voting on the development proposal in January 2013 has some nexus with his election more than four and a half years later.

Applicant's submissions of 19 July 2018 and the respondent's response

1. On or about 27 June 2018, the applicant filed what were described as "Further Preliminary Submissions" (FPS). The respondent objected to the Tribunal receiving the FPS, and requested a directions hearing for this issue to be agitated. The directions hearing was held on 19 July 2018. Following oral submissions, the Tribunal directed that it would receive the FPS and that, following receipt of the transcript, the respondent could respond to the FPS.
2. One of the matters raised in the FPS and agitated during the directions hearing was whether the applicant wished to correct the transcript of the hearing of 18 May 2018 and whether he could thereafter make further submissions. Mr Mak, on behalf of the applicant, indicated that the applicant did not wish to review the transcript and agreed that the applicant would not be seeking to file any further submissions.
3. The FPS raise a number of matters, which we summarise as follows.
4. The first relates to the Tribunal amending the respondent's name from Cesar Anthony Marano to Anthony Cesar Marano. This amendment was made following the request of the respondent during the course of a directions hearing. The Tribunal recalls that the applicant was not personally present on that occasion, which may explain his submission that "the Applicant is simply unaware of any relevant facts which might allow a change of name".
5. Be that as it may, the submission is irrelevant to the matters we are being asked to determine.
6. Secondly, there were lengthy submissions in respect of the meaning of irregularity. In particular, the applicant refers to the facts "in a recent Briscoe case". He submits that although not "absolutely analogous", the facts in that case were relevant as they involve claims of fraudulent enrolment, false statements and non-compliance with regulations regarding election material.
7. While the "Briscoe case" is not identified, this appears to be a reference to the Tribunal's recent decision of Briscoe-Hough v Tegg, referred to above. In that matter, Mr Briscoe-Hough had brought claims pursuant to s 329 of the Act against three councillors of the Georges River Council, the Council's returning officer and the Election Manager of the NSW Electoral Commission. Subsequently the NSW Electoral Commissioner was joined as a party/intervenor to the proceedings.
8. The Tribunal's decision appears to be of little assistance to Mr Woodhouse as: 1. the claims against the Council's returning officer and the Election Manager were dismissed pursuant to s 55(1)(b) of the NCAT Act, that is, on the grounds that those claims were frivolous or vexatious or otherwise misconceived or lacking in substance; 2. Mr Briscoe-Hough withdrew his claims against the three councillors; and 3. the Tribunal dismissed the claim against the Commissioner as being misconceived, lacking in evidence and as being "doomed to fail".
9. Thirdly, Mr Woodhouse submits that the nature of his application, being "in the public interest" is relevant to the question of costs. That may be so, but we will consider that matter, and any other matters the applicant wishes to put before us when and if any application for costs is made.
10. It may be that Mr Woodhouse is asking us to place a broader emphasis on this submission, as he submits that "the nature of the Applicant's submissions are such as to allow it to be determined in the public interest". Presumably, "it" is a reference to the application itself. If this is the case, and assuming that this is "public interest litigation", we do not consider that that is basis on which to proceed other than in accordance with the orthodox approach of making findings of fact based on probative evidence, and applying the relevant legal or legislative principles to those facts in determining the application.
11. Brief submissions in response were filed by the respondent on or about 3 August 2018. In summary, the respondent submits that these submissions are irrelevant to our considerations.
12. We have considered all of the submissions of the parties, both oral and written, in these reasons. However, the FPS have minimal relevance to the issues for determination, and we have reached our conclusions as stated.

Conclusion

1. Mr Woodhouse bore the onus of establishing that there had been an irregularity in the election of Mr Marano and, if so, whether that irregularity rendered the results of the 2017 election uncertain. For the reasons set out above, we do not accept that there was an irregularity in Mr Marano's election. There is no evidence before the Tribunal on which it could find that the information in the Nomination Claim was incorrect. On the contrary, the evidence us positively establishes that the information in the Nomination Claim was correct.
2. Nor do we find that Mr Marano's failure to declare a conflict of interest in a Council vote in 2013 constituted an irregularity for the purposes of the 2017 election.
3. However, even if we had found (which we do not) that either of these matters did amount to an irregularity, in order to find that any irregularity rendered the results of the election uncertain, there must be a necessary factual basis for so determining: Lowe v Feeney [2009] NSWADT 124. There was no such evidence before us.
4. For the above reasons, each ground of the application fails. The relief sought must be refused and the application dismissed.

Costs

1. Mr Woodhouse has been unsuccessful. In these matters, the usual rule is that each party bears its own costs: NCAT Act, s 60(1). However, costs may be awarded only if there are special circumstances warranting an award of costs: s 60(2). Section 60(3) provides: In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
2. Mr Marano has foreshadowed an application for costs. He should do so within 14 days of the date of these reasons. Mr Woodhouse may respond within a further 14 days.
3. The Tribunal's preliminary view is that the issue of costs should be determined on the papers pursuant to s 50(2) of the NCAT Act. If either party thinks otherwise, it should also address that matter in their submissions.

Orders 1. The application is dismissed. 2. The respondent is to file and serve any submissions as to costs by 23 August 2018. 3. The applicant may respond by 6 September 2018.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2018