Kwok v Mothersole [2019] NSWSC 1415

Kwok v Mothersole [2019] NSWSC 1415

The court held that a lack of knowledge of the election, if honestly and reasonably based, can constitute a sufficient reason not to vote for the purposes of s 312 Local Government Act 1993 (NSW). The legislation does not exclude the availability of honest and reasonable mistake of fact as a defence. The appeal did not establish a pure question of law as required.

Parties
Plaintiff: Simon Kwok; Defendant: John Mothersole
Jurisdiction
Australia
Judgment Date
18 October 2019
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
Compulsory Voting, Sufficient Reason for Failing to Vote, Appeal on Question of Law, Local Government Elections
Criminal Law Election Law Compulsory Voting Sufficient Reason for Failing to Vote Appeal on Question of Law Local Government Elections

Case Brief

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Parties

Simon Kwok

Plaintiff

John Mothersole

Defendant

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether an elector's lack of knowledge of the election date constitutes a sufficient reason not to vote under s 312 Local Government Act 1993 (NSW)
  2. 2 Whether an honest and reasonable mistake of fact is available as a defence to failing to vote

Ratio Decidendi

The court held that a lack of knowledge of the election, if honestly and reasonably based, can constitute a sufficient reason not to vote for the purposes of s 312 Local Government Act 1993 (NSW). The legislation does not exclude the availability of honest and reasonable mistake of fact as a defence. The appeal did not establish a pure question of law as required.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • To the extent to which Mr Mothersole may otherwise be entitled as a self-represented litigant, the plaintiff is to pay the defendant's legal costs.