Insley -v- State Electoral Commissioner & ors [2000] NSWADT 90

Insley -v- State Electoral Commissioner & ors [2000] NSWADT 90

The Tribunal, having re-assessed challenged ballot papers and found misclassifications amounting to irregularities that affected the result, determined that s329 of the Local Government Act 1993 requires dismissal from civic office where it cannot be satisfied the poll declared truly represents the voters' will. The Tribunal does not have power to substitute the applicant for the incumbent, and so the only available order is dismissal of the third respondent from office.

Parties
Applicant: Terry Insley; First Respondent: State Electoral Commissioner; Second Respondent: Returning Officer for Comenarra Ward, Ku-ring-gai Municipal Council; Third Respondent: Elaine Malicki
Jurisdiction
Australia
Judgment Date
17 July 2000
Procedural Posture
Application for Dismissal From Civic Office / Merits Decision
Outcome
Third respondent dismissed from office as councillor of Ku-ring-gai Municipal Council due to irregularity affecting the election result.
Legal Topics
Council Elections, Irregularity in Election Process, Judicial Review of Election Administration, Formality of Ballot Papers, S329 Local Government Act, Discretion on Relief
Administrative Law Local Government Law Electoral Law Council Elections Irregularity in Election Process Judicial Review of Election Administration Formality of Ballot Papers S329 Local Government Act +1 more

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Parties

Terry Insley

Applicant

State Electoral Commissioner

First Respondent

Returning Officer for Comenarra Ward, Ku-ring-gai Municipal Council

Second Respondent

Elaine Malicki

Third Respondent

Procedural Posture

Application for Dismissal From Civic Office / Merits Decision

Legal Issues

  1. 1 Meaning of 'irregularity' under s329(1)(a) of the Local Government Act 1993
  2. 2 Entitlement of the Tribunal to review decisions by the returning officer concerning ballot formality
  3. 3 Approach to be taken by the Tribunal in reviewing contested ballot papers

Ratio Decidendi

The Tribunal, having re-assessed challenged ballot papers and found misclassifications amounting to irregularities that affected the result, determined that s329 of the Local Government Act 1993 requires dismissal from civic office where it cannot be satisfied the poll declared truly represents the voters' will. The Tribunal does not have power to substitute the applicant for the incumbent, and so the only available order is dismissal of the third respondent from office.

Court Disposition

Third respondent dismissed from office as councillor of Ku-ring-gai Municipal Council due to irregularity affecting the election result.

Orders

  • That the third respondent be dismissed from her office as councillor of Ku-ring-gai Municipal Council.