Lucas -v- Pascale [2000] NSWADT 23

Set aside by Appeal : Set aside by appeal on 19/6/2000 Remitted back to Tribunal

CITATION: Lucas -v- Pascale [2000] NSWADT 23 DIVISION: General Division APPLICANT Gary John Lucas PARTIES: RESPONDENT Antonio Pascale FILE NUMBER: 993283 HEARING DATES: SUBMISSIONS CLOSED: 03/06/2000 DATE OF DECISION: 03/13/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Dismissal from civic office - Local Government Act - dismissal from civic office MATTER FOR DECISION: Preliminary decision as to application being out of time and the joining of the Electoral Commissioner as a party to proceedings LEGISLATION CITED : Local Government Act 1993 CASES CITED: APPLICANT M Collins, solicitor REPRESENTATION: RESPONDENT V Parisi, solicitor

N Abadee, barrister for Electoral Commissioner ORDERS: 1. The application is not out of time.; 2. The Electoral Commissioner is not joined as a party to these proceedings.

Reasons for Decision

Introduction 1 Mr Lucas, has applied to the Tribunal under s 329 of the Local Government Act 1993 (the Act) for an order that Mr Pascale, be dismissed from office as a civic officer with Liverpool Local Council. Mr Lucas alleges that Mr Pascale should be dismissed because of an irregularity in the manner in which Mr Pascale was elected. The irregularity alleged is that Mr Pascale gave his place of residence at the time of his nomination for the election as an address in Liverpool, when he was actually living at Taren Point. 2 This decision concerns two preliminary issues; firstly whether the application is out of time and secondly whether the Electoral Commissioner should be joined as a party. I have made a decision "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Is the application out of time? 3 Section 329(3) of the Act provides that: Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person's election or appointment to that office. 4 Mr Lucas lodged his application on 21 December 1999. His submission is that the date of Mr Pascale's election or appointment to office is the day that the Returning Officer declared him to be elected. Since this occurred on 22 September 1999, less than three months before the application was lodged, the application is within time. Mr Pascale's submission is that the date of the person's election is the election day itself. Since the election was held on 11 September 1999, Mr Pascale says that the application is out of time. 5 In my view, the "date of the person's election" is the date that the person is declared to be elected, not the date of the election itself. This conclusion is consistent both with the plain meaning of the words in the legislation and with the purpose of the provisions. Section 233(1)(a) of the Act provides that: The office of councillor commences on the day the person elected to the office is declared to be so elected. 6 Councillor is defined in the dictionary to the Act to mean "a person elected or appointed to civic office." Regulation 87(1) and (2) of the Local Government (Elections) Regulation 1998 (the Regulation) provides that: (1) The Electoral Commissioner is to approve of the returning officer's declaring the election in writing as soon as practicable after the notification of the result of any recount or it becomes clear that no recount will be required. (2) The declaration is to be signed by the returning officer and is to state the number of votes recorded for each candidate, the names of the candidates declared elected (being the names under which those candidates were nominated by the returning officer) and the ward or area for which they have been elected. 7 The plain grammatical meaning of the words "the date of the person's election" is the date of the election of the person. It is not the date of the election itself. The only possible date of the election of the person is the date the person is declared to be elected. 8 This interpretation is consistent with a purposive construction of the legislation. The purpose of s 329(3) is to provide a reasonable time limit on a person's right to challenge an irregularity in the manner in which a councillor has been elected. It is not consistent with this purpose for the time to start running even before the person knows whether a particular councillor has been elected. 9 I do not accept the respondent's view that the use of the word "election" in Chapter 10 of the Act always means the election held on a specific day. The use of the possessive form - person's election - means that it is not the election day itself but the date of the election of the person. Should the Electoral Commissioner be joined as a party? 10 The Electoral Commissioner submitted that he or she should be joined as a party to these proceedings. The respondent opposed this application. The applicant did not oppose it. 11 Under s 67(4) of the ADT Act: The Tribunal may, by order, make a person who is not a party to proceedings for an original decision or review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision(or are affected by the reviewable decision). 12 The Electoral Commissioner made written submissions filed on 22 February 2000 in relation to this issue. I agree with the legal principles set out in that submission and will not repeat them here. I also accept the Electoral Commissioner's description of his role in Local Council Elections. 13 Section 21A(1)(a) of the Parliamentary Electorate and Elections Act 1912 provides that "The Governor shall appoint an Electoral Commissioner for New South." The responsibilities of the Electoral Commissioner are to administer that Act and the provisions of any other Act in relation to certain matters. The Electoral Commissioner has the powers, authorities, duties and functions conferred or imposed by legislation. 14 The Electoral Commissioner is a statutory office holder with specific powers and functions provided in legislation. He or she does not have any powers or interests independent of such legislation. The mere fact that these proceedings will involve issues which relate to the functions of the Electoral Commissioner does not mean that he or she has any legal or other "interests" which are likely to be affected. 15 The Tribunal may make decisions in relation to the interpretation of legislation which the Electoral Commissioner administers. Any such decision will be available to the Commissioner. 16 Although I am not satisfied that the Commissioner has any interests which are likely to be affected by these proceedings, he or she may still have a role. The Tribunal has the power, under s 83 of the ADT Act to call any witness of its own motion in any proceedings. Depending on the issues in each particular case, it may be appropriate for the Tribunal to call the Electoral Commissioner.

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.