Isaac v Nannelli [2004] NSWADT 233

CITATION: Isaac v Nannelli [2004] NSWADT 233 DIVISION: General Division APPLICANT PARTIES: Andrew Isaac REPONDENT Owen Nannelli FILE NUMBER: 043201 HEARING DATES: 29/09/2004 SUBMISSIONS CLOSED: 09/29/2004 DATE OF DECISION: 10/14/2004

BEFORE: Hennessy N - Magistrate (Deputy President); Chesterman M - ADCJ (Deputy President); Montgomery S - Judicial Member APPLICATION: Joinder of Parties MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Local Government Act 1993 CASES CITED: Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd & Ors (1994) 121 ALR 373; Allan v Transurban City Link Ltd (2001) 183 ALR 380; Control Investments Pty Limited v Australian Broadcasting Tribunal (1980) 50 FLR 1; Childs v Crompton [2003] 2 Qd R 26; Galt and Anor v Flegg and Anor [2003] QSC 290; Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262; Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738; Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062 APPLICANT P Waite, agent for Mr Isaac REPRESENTATION: D Clark, solicitor for Mr Downey RESPONDENT B Woolf, solicitor ORDERS: Mr Downey is joined as an applicant to these proceedings.

Introduction 1 On 27 March 2004 local government elections were held across New South Wales. The results of the election for Hornsby Shire Council were declared on 7 April 2004. Councillor Owen Nannelli was among those elected to Council. Mr Andrew Isaac, who was not elected, applied to the Tribunal to dismiss Councillor Nannelli from office because of alleged irregularities in the manner in which he was elected. Mr Downey, another unsuccessful candidate, applied to the Tribunal to be joined as an applicant. The Tribunal has a discretion to join a person as a party to proceedings if we are satisfied that "the interests of the person are likely to be affected" by the Tribunal's decision. (Administrative Decisions Tribunal Act 1997 (ADT Act) s 67(4).) 2 Mr Waite, who is Mr Isaac's agent, requested that all parties appear without legal representation. Parties are entitled to have legal representation in these kinds of proceedings subject to the qualification that if the Tribunal considers it appropriate, it can restrict lawyers to making written submissions (ADT Act s 71). It is not appropriate to restrict the scope of legal representation in this case because it is in the public interest that any irregularity in the manner in which Mr Nannelli was elected be exposed. Lawyers are generally better able to present evidence and make relevant submissions than non-lawyers. Should Mr Downey be joined as an applicant? 3 Introduction. We must decide whether or not Mr Downey's interests are "likely to be affected" by the Tribunal's decision and, if so, whether we should exercise our discretion to join him as an applicant. These proceedings have been brought under s 329 of the Local Government Act 1993 which gives "any person" the right to apply to the Tribunal for an order that another person be dismissed from civic office. 4 Identification of Mr Downey's interests. Mr Downey stood for election as part of "Group G", comprising three independent candidates, none of whom was elected. Mr Downey was listed third on the ticket and received only 31 votes in comparison with 428 primary votes received by Mr Browne who was listed first on the Group G ticket. Prior to the election, members of Group G negotiated with Mr Nannelli's group - Group F - for the distribution of preferences. On polling day members of Group G formed the view that Mr Nannelli's group was circulating three different how-to-vote cards at least one of which did not allocate first preferences to Group G as they understood had been agreed. According to Mr Downey, this how-to-vote card had not been registered with the State Electoral Office. These "irregularities" are very similar to those alleged by Mr Isaac in relation to his group, Group A. If Mr Nannelli is dismissed from office, a by-election would take place and any constituent, including Mr Downey, could choose to put himself or herself forward as a candidate. 5 Meaning of interests likely to be affected. The meaning of the words "interest" and "affected" are to be interpreted in the light of the scope and purpose of the relevant statute. (Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd & Ors (1994) 121 ALR 373 per Gummow J at 395; Allan v Transurban City Link Ltd (2001) 183 ALR 380 per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ at 384.) Mr Woolfe relied on the decision in Alphapharm to draw an analogy between the interests of commercial competitors, which were not regarded as sufficient in that case to join the competitors, and the interests of electoral competitors such as Mr Downey and Mr Nannelli. The flaw in Mr Woolfe's submission is that the basis of the Federal Court's decision in Alphapharm was not that the interests of a competitor can never be sufficient, but that the interests of the person seeking to be heard must be relevant to the interests with which the legislation is concerned. The aim of the legislation under consideration in Alphapharm was to ensure that drugs imported into Australia were safe and suitable for human use. The respondent's interests were purely commercial and therefore not relevant to the interests which the legislation was designed to protect. In this case, Mr Downey's interests are consistent with the broad public interest objectives with which s 329 of the Local Government Act is concerned. 6 Section 329 allows the Tribunal to scrutinise the manner in which a person has been elected and to dismiss that person from office if there has been an irregularity. The public interest purpose of the legislation and the fact "any person" has standing to commence proceedings, suggest that the interests of a person seeking to be joined as a party should not be interpreted narrowly. Nevertheless it is still necessary for the person's interests to be greater than those of a member of the general public (Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd & Ors (1994) 121 ALR 373 per Davies J at 382). Furthermore, a mere belief that a particular type of conduct should be prevented or a particular law observed is not sufficient. (Control Investments Pty Limited v Australian Broadcasting Tribunal (1980) 50 FLR 1 per Davies J at 8.) 7 Mr Downey is not just a member of the public in the context of these proceedings, nor does he merely hold a belief that any irregularity in the manner in which a candidate was elected should be exposed. He is a constituent of the Council and was an unsuccessful candidate for election. As a constituent, he is entitled to vote in Council elections and to put himself forward as a candidate. Like all electors, Mr Downey has a direct interest in being represented by people who have been lawfully elected. While we are satisfied that Mr Downey's interests as a constituent are likely to be affected by the Tribunal's decision, in case we are wrong, we will also deal with the question of whether he has a separate interest as an unsuccessful candidate. 8 Mr Woolfe, representing Mr Nannelli, submitted that since Mr Downey only received 31 first preference votes, he had no chance of being elected. Consequently, his interests as an unsuccessful candidate would not be affected even if Mr Isaac were dismissed. If it is likely that an unsuccessful candidate would have been elected but for the "irregularity", their interests will be affected by a decision to dismiss the successful candidate. In Childs v Crompton [2003] 2 Qd R 26 at 28, there were only two candidates for a particular division in a Local Government election and the margin was 21 votes. Douglas J found that the unsuccessful candidate had a direct interest in the impeachment of the successful candidate's occupation of the office. 9 There is also some authority for the more general proposition that the interests of any unsuccessful candidate are sufficiently affected to give that person standing to challenge the election of a successful candidate. In Galt and Anor v Flegg and Anor [2003] QSC 290, Galt sought a declaration that a pre-selection plebiscite selecting Flegg as the Liberal Party candidate for a State seat was void. Galt was an unsuccessful candidate for pre-selection. Moynihan SJA noted that Galt's standing to bring the application was not seriously in issue and in his view he had a sufficient interest in the determination of the case. The decision does not say whether or not Galt was the only other candidate or what the margin was between the candidates. 10 While there was no possibility that Mr Downey would have been elected but for the "irregularity", he was part of a group of candidates, including Mr Browne, who attracted a high proportion of votes. These circumstances provide a sufficiently close nexus to conclude that Mr Downey's interests as an unsuccessful candidate are likely to be affected by the Tribunal's decision. Discretion 11 The next question is whether the Tribunal should exercise its discretion to join Mr Downey as an applicant. The Tribunal must take into account the interests of all the parties in determining these proceedings in a fair, efficient and timely manner. Factors which suggest that Mr Downey should not be joined as a party include: · joinder will result in some increase in the length of the hearing and a consequent increase in the costs to the parties ( Control Investments Pty Ltd v Australian Broadcasting Tribunal 50 FLR 1; Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment (1986) 10 ALD 262; Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738); and · Mr Downey's interests are similar to those of Mr Isaac. 12 Factors which suggest that Mr Downey should be joined as a party include: · the fact that Mr Isaac consents to Mr Downey being joined; · Mr Downey has provided an explanation for not bringing an original application within the mandatory time limit; and · Mr Downey would be legally represented. 13 Although joining Mr Downey will increase the costs to Mr Nannelli, that increase should not be significant given that the issues that Mr Isaac and Mr Downey will be raising are similar. Although Mr Downey knew about the Directions Hearing on 3 August, he did not apply to be joined as a party until 27 August, that is 5 months after the poll was declared. Mr Downey provided some evidence of ill health and other circumstances which explain the delay. In addition he said he was attempting to negotiate with Mr Isaac about the presentation of the case but was unsuccessful in obtaining a commitment from Mr Isaac about his role in the proceedings. It is relevant that Mr Downey has provided an explanation for not lodging an application in his own name within the mandatory time limit of 3 months. ( Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062 ). If Mr Downey had simply failed to commence proceedings himself without any reasonable explanation for that failure, it could be argued that joinder would have the effect of circumventing the mandatory time limits. 14 Mr Nannelli submitted that this evidence is not specific enough to substantiate that delay, but we are satisfied that Mr Downey did not merely sit on his hands and wait for someone else to commence proceedings. 15 Legal representation. Joining Mr Downey would mean that at least one of the applicants would be legally represented. Legal representation arguably increases the likelihood that any irregularity that has occurred will be exposed. Conclusion 16 Mr Downey's interests as a constituent of the Council and as an unsuccessful candidate for election are likely to be affected by the Tribunal's decision. In our view the factors in favour of joinder, particularly the fact that Mr Isaac consents, outweigh those against. In those circumstances, we order that Mr Downey be joined as an applicant to these proceedings.

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