Borsak v Cheung [2006] NSWADT 5 (9 January 2006)

Last Updated: 7 March 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Borsak v Cheung [2006] NSWADT 5


PARTIES: APPLICANT
Cheryl Anne Borsak
RESPONDENT
Kwai Lin (Karin) Cheung



FILE NUMBERS: 043210

HEARING DATES: 13/12/04, 21/12/04, 17/01/05, 07/02/05, 12/08/05

SUBMISSIONS CLOSED: 12/08/2005



DECISION DATE: 09/01/2006

BEFORE: O'Connor K - DCJ (President)Rice S - Judicial MemberBolt M - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Commonwealth Electoral Act 1918 (Cth)
Electoral Act 1992 (Qld)
Local Government (Elections) Regulation 1998
Local Government Act 1993
Local Government Act 1993 (Qld)
Parliamentary Electorates and Election Act 1912
Parlimentary Electorates and Elections Regulations 2001

CASES CITED: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Council of the New South Wales Bar Association v LI [2005] NSWCA 415
Wykanak v Rockdale City Council [2001] NSWLEC 65
R v Gray; Ex Parte Marsh [1985] HCA 67; (1985) 157 CLR 351
Bourne v Murphy (1996) 92 LGERA 329
R v The Mayor of Exeter; Dipstale’s Case (1868) LR (QB) 114
Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217
Inland Revenue Commissioners v Lysaght [1928] AC 234
Fed Cmr Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93
Gregory v Fed Cmr Taxation (1937) 4 ATD 397
R v Mayor of Exeter; Wescomb’s case (1868) LR 4 QB 110
Fox v Stirk and Bristol Electoral Registration Officer [1970] 3 WLR 147
Burnett Shire Council v Galley [2000] QSC 490
Tanti v Davies (No 3) [1996] 2 Qd R 602
Hipperson v Newbury Electoral Officer [1985] QB 1060
Koitaki Para Rubber Estates Ltd v Commissioner of Taxation [1941] HCA 13; (1941) 64 CLR 241

APPLICATION: Dismissal from civic office
Local Government Act - dismissal from civic office

MATTER FOR DECISION: Principal application


APPLICANT REPRESENTATIVE: APPLICANT
S Docker of counsel instructed by Public Interest Advocacy Centre

RESPONDENT REPRESENTATIVE: RESPONDENT
A J O'Brien of counsel instructed by Pigott Stinson Ratner Thom, solicitors

ORDERS: 1. The Tribunal orders that the respondent be dismissed from the civic office of Councillor, Municipality of Ashfield
2. Parties to make submissions on the applicant’s application for costs, in accordance with directions.


Reasons for Decision:

REASONS FOR DECISION

1 The applicant has applied for the dismissal of the respondent (Ms Cheung) from the office of Councillor, Municipality of Ashfield, representing the South Ward of the municipality. Ms Cheung was elected at the election held on 27 March 2004.

2 Section 329(1) of the Local Government Act 1993 (LGA) permits ‘any person’ to apply to the Tribunal for ‘an order that a person be dismissed from a civic office’. A ‘civic office’ (s 3) means, as relevant to this case, ‘the office of councillor or mayor’. Under sub-s (2)(a) the Tribunal may make such an order if:

‘(a) ...there has been any irregularity in the manner in which the person has been elected or appointed to that office.’

3 (In this decision the following laws are referred to: Local Government Act 1993 (NSW): LGA; Local Government (Elections) Regulation 1998 (NSW): LGER; Parliamentary Electorates and Elections Act 1912 (NSW): PEEA; Commonwealth Electoral Act 1918 (Cth): CEA.)

4 The hearing of the evidence was held over several days between December 2004 and February 2005.

5 The principal provisions governing the election of councillors are found in Chapter 10 (How are people elected to civic office?) of the LGA. The PEEA also contains relevant provisions. It is not in dispute that Ms Cheung is generally qualified to vote in State and Commonwealth elections (she meets age and citizenship requirements and lives in the State): see generally PEEA s 20(1) to (5).

6 The hearing proceeded on a common assumption by the parties and the Tribunal as to the relevant law – that it must be shown that the person elected was a resident of the ward for which the person had stood on the day that the rolls closed for the election, that day being 16 February 2004 (LGER, cl 8), or at least within one or three months of that date (this difference being linked to the differing pre-election residency requirements for voting under State and Commonwealth electoral law). Residence was seen as involving a question of fact as to the actual or real place of living of the nominee. As a consequence the evidence at hearing focused on the living circumstances of Ms Cheung in the period leading up to the making of her nomination and the closing of nominations.

7 The applicant claimed that Ms Cheung was not a resident of the address given by her on her nomination form (35 Carrington Street, Summer Hill) but in fact lived outside the municipality, at the home unit she owned in Hurstville. Ms Cheung’s reply was that she resided at Summer Hill during the week, and regularly returned, usually only on weekends, to her unit at Hurstville. Her husband lived there. She also agreed that she made the unit available to the members of her wider family when they visited from Hong Kong; and she socialised with them there when they were in Australia.

8 In the course of its deliberations after the proceedings concluded, the Tribunal formed the tentative view that the relevant provisions had been misconstrued. Its tentative view was that there was no requirement under the LGA that the candidate live in the ward at, or close to, the date of nomination or the closing of the rolls. All that was required by the law, the Tribunal thought, was that there be formal correspondence between the address that the candidate gave in his or her nomination form and the record of the address contained in the electoral roll. It did not matter, on this view, whether the candidate actually lived at the given address at the time of nomination.

The Law

9 On 16 June 2005 the Tribunal stated its question of law, after consultation with the parties and the Electoral Commissioner, and made directions for the filing of submissions. The Crown Solicitor’s Office made submissions on behalf of the Electoral Commissioner and the applicant made submissions in reply. The respondent supported the Electoral Commissioner’s submissions. The Tribunal held a further hearing in relation to these submissions on 12 August 2005. In addition the Tribunal had before it the original written submissions of the applicant and the respondent.

10 The question was as follows:

Does the law governing the election of councillors require that a candidate for election as councillor actually reside at the address shown on the nomination form, or is it sufficient that the address shown merely correspond at the date of the closing of the roll for the election to the address shown on the electoral roll, and that the address be an address in the municipality?
(In examining this Question, please consider also the operation and effect of s 303 [of the Local Government Act 1993].)

11 We will refer first to the Electoral Commissioner’s submissions and then to the applicant’s submissions.

12 Electoral Commissioner’s Submissions: The Electoral Commissioner’s submissions commence by referring to the requirements in LGA s 306 for nomination for civic office. Section 306 provides relevantly:

‘306 Nominations
(1) A person who is not duly nominated is not eligible for election as a councillor, or for election by the electors of an area as mayor.
(2) To be duly nominated for election as a councillor for an area, or for election as mayor of an area by the electors of an area, a person must be enrolled as an elector for the area, and must be qualified to hold that civic office, at the closing date for the election. [‘Area’ means the municipality: LGA, Dictionary.]
(3) A person may not be nominated for election as a councillor for more than one ward.
(4) A nomination is to be proposed to and made by the returning officer as prescribed by the regulations and may be withdrawn by the nominee as prescribed by the regulations.
(5) A nomination is to be rejected if the returning officer has not been paid the deposit prescribed by the regulations for the nomination or (if none is prescribed) a deposit of 50 per cent of the deposit required to be deposited under the Parliamentary Electorates and Elections Act 1912 for the nomination of a candidate for election to the Legislative Assembly.
(5A) However, if a group that comprises more than 5 candidates:
(a) proposes the nomination of all members of the group, and pays the deposit for the nomination of all members of the group, at the same time, and
(b) has lodged a claim under section 308A (2),
the amount of the deposit for each candidate included in the group is 5 times the deposit for one candidate divided by the number of candidates in that group.
(6) If a returning officer rejects a proposed nomination and the nominated person applies in writing for an explanation of the rejection, the returning officer must provide the nominated person with a written explanation within 7 days.
(7) A deposit may be refunded in accordance with the regulations.’

13 ‘Enrolled’: The submissions then refer to PEEA s 3(1) which provides that ‘enrolled’ means ‘named on the electoral roll in force and applicable for the time being’. The submission then is that ‘presumably’ ‘enrolled’ in s 306(1) has a similar meaning. They continue: ‘If that is correct, the only relevant matter is whether the person’s name appears on the roll of electors for the area at the closing date’. It is clear that Ms Cheung met this requirement. There is no dispute that her name appeared on the electoral roll for the South Ward as at 16 February 2004.

14 ‘Qualified’: The submissions then deal with the second limb – ‘qualified to hold’ civic office. The submissions refer to LGA s 266(1). This provision provides:

‘266 Who has the right to be enrolled as an elector?
(1) A person who is entitled to vote at an election of members of the Legislative Assembly or an election of members of the Commonwealth House of Representatives is entitled to be enrolled as an elector for a ward if:
(a) he or she is a resident of the ward, or
(b) he or she is not a resident of the ward but is an owner of rateable land in the ward, or
(c) he or she is an occupier, or ratepaying lessee, of rateable land in a ward.
(2) A person who is disqualified by section 21 of the Parliamentary Electorates and Elections Act 1912 from having his or her name placed or retained on a roll under that Act is subject to the same disqualification in relation to a roll under this Act.’

15 The submission is, therefore, that the nominated person must in the relevant sense be a resident at the closing date. It is noted that s 266(1) is in Part 1, ch 10 of the LGA. Therefore the special meaning given to ‘resident’ by s 269(1) of the LGA becomes applicable. It is this provision which is at the heart of the Tribunal’s concern over whether the LGA requires actual residence at the time of nomination. Section 269 provides:

‘269 Who is a "resident" for the purposes of this Part?
(1) For the purposes of this Part, a person is a resident of a ward if:
(a) the person is, within the meaning of the Parliamentary Electorates and Elections Act 1912, enrolled on the relevant date on the roll for an electoral district, and
(b) the person’s place of living as described on that roll is in the ward or (in the case of a person whose place of living is not described on that roll) the person’s place of living is in the ward.
(2) The relevant date for the purposes of this section is:
(a) the date on which the claim for enrolment is made, if the claim is for inclusion in the roll of residents of the ward, or
(b) the closing date for the election referred to in Part 4, if the claim is for the purpose of voting at the election.
(3) In this section, place of living includes the place of residence to which a person temporarily residing elsewhere intends to return in order to continue living there.’

16 The submissions continue:

‘Thus to be qualified to hold civic office the person’s name must at the closing date appear on the roll for an electoral district and, inter alia, the person’s place of living as described on that roll must be in the ward or if the place of living is not described on that roll, the person’s place of living must in fact be in the ward.’

17 As a consequence of the above examination, to be duly nominated for election a person’s name must, at the closing date, appear on the roll of electors for the area and, inter alia, the name must also appear on the roll for an electoral district and the person’s place of living as described on the roll for an electoral district must be in the ward or if the place of living is not described on the roll for an electoral district, the place of living must be in the ward.’

18 The submissions then look at the question of whether the candidate’s actual place of living or residence at the closing date needs to be in the ward. The Commissioner’s submission is that: ‘Nothing examined in the preceding paragraphs stipulates where the candidate must actually live or reside at the closing date, except in the situation where the ‘place of living’ is not described on the roll for an electoral division.’

19 If these submissions are correct then it is of no legal importance where a candidate for election to civic office actually lives at the time of nomination or, more precisely, as at the date of the closing of the rolls. It is enough that the ward for which the candidate nominates is one which corresponds with the candidate’s address as given on the current electoral roll. The candidate can, it seems, actually live somewhere else outside the ward.

20 If this is correct, then Ms Cheung duly nominated regardless of whether her actual place of living was the address shown on the electoral roll, 35 Carrington Street, Summer Hill, or somewhere else.

21 Particulars to be included in Nomination Form: LGA s 306(4) requires:

‘(4) A nomination is to be proposed to and made by the returning officer as prescribed by the regulations and may be withdrawn by the nominee as prescribed by the regulations.’

22 The submissions refer to LGER cl 21 which requires:

‘21 Nomination proposals
(1) A candidate for election is to be proposed for nomination in a nomination paper:
(a) in Form 2 by at least 2 proposers (other than the candidate) who are enrolled in respect of the same ward or area as the one in respect of which the candidate is proposed for nomination, or
(b) in Form 3 by the registered officer for a political party registered in the Local Government Register of Political Parties.
(2) Each candidate must be proposed on a separate nomination paper.
(3) A nomination paper is not valid unless the person proposed for nomination in the paper has completed and signed the Form of Consent included in the paper.
(4) A nomination paper is not in Form 2 or 3 unless:
(a) it has printed on the back, or on an attached sheet, sections 274, 275, 276 and 283 of the Act, and
(b) it is accompanied by a candidate information sheet which is in such form that the requirements of section 308 (1) of the Act can be satisfied, and
(c) if the nomination proposal is for an ordinary election, it is accompanied by a statistical information sheet as specified in those forms.
(5) A nomination paper must be delivered, sent or transmitted by facsimile so as to reach the returning officer by 5 pm on the second-last day before the nomination day (for example, by 5 pm on the Wednesday before a nomination day that falls on a Friday). The returning officer must give a receipt for it if asked to do so.
(6) On receipt of a nomination paper, the returning officer must endorse on it the date and time of receipt.
(7) The general manager is to supply a reasonable number of copies of Forms 2 and 3 free of charge to any person who applies for them.
(8) A deposit for a nomination proposal is to be paid in cash or by a cheque issued by a bank, building society, credit union or other financial institution but not by way of personal cheque. The deposit must be paid by 5 pm on the day 2 days before the nomination day.

23 The submissions refer to the contents of Forms 2 and 3, and also to the requirement in cl 21(4)(b) that the form be accompanied by a ‘candidate information sheet’. The Forms appear in Schedule 8 to the LGER. Form 2 is the form by which a person is proposed by election, where the proposers are electors in the ward; and Form 3 is the form for that purpose, where the proposer is a registered officer for a registered political party. In both instances the Forms require the inclusion of the ‘full residential address’ of the nominee.

24 The requirements in relation to the ‘candidate information sheet’ are found in cl 22:

‘22 Candidate information sheets
(1) The matters prescribed for the purposes of section 308 (2) of the Act which are to be included in a candidate information sheet are the proposed candidate’s full name and full residential address.
(2) Nothing in this clause prevents the inclusion of other matters (such as the proposed candidate’s date of birth, occupation, trade and professional qualifications, membership of organisations, the registered party (if any) which has endorsed the proposed candidate, statements as to the proposed candidate’s policies and beliefs, and other qualifications relevant to the proposed candidature).
(3) A candidate information sheet must be written or typed on a form supplied by the returning officer or an electoral official. The form is to consist of one side of an A4 sheet of paper.’

25 It will be seen that these requirements require in particular the giving of the ‘full residential address’.

26 The question arises as to the meaning to be given to ‘full residential address’.

27 The submissions continue:

‘It would not seem to be open to derive the meaning of ‘full residential address’ in the Regulation from the meaning of the different word ‘resident’ in s 269. Section 269 states that the definition of ‘resident’ is for the purposes of Part 1 of Chapter 10, which is concerned with voting. Presumably, the Regulation [LGER] was made with appreciation of the term ‘place of living’ in the LGA but the draftsman chose to refer to ‘full residential address’. However, a person’s ‘residential address’ would ordinarily refer to the address at which the person usually lives.
Nothing in the Regulation [LGER] seems to require that the ‘full residential address’ stated on Forms 2 and 3 or the candidate information sheet must be the same as the candidate’s residential address at some other time, and in particular at the closing date for an election (that is, the date prescribed by the regulations for the closing of the roll of electors for the election). Nothing in the LGA or the Regulation seems to require that a candidate actually reside, at the closing date for an election, at the ‘full residential address’ stated in the nomination paper.’

28 The submissions then go on to deal with the supplementary issue raised by the Question of Law – the operation and effect of LGA s 303 (Making of claims for inclusion in the roll). They commence by referring to LGA s 298 which provides:

‘298 Residential roll
(1) The Electoral Commissioner is to keep a roll for each area of persons who, in the opinion of the Electoral Commissioner, are entitled, in accordance with Part 1, to be enrolled as electors because they are residents of the area.
(2) The Electoral Commissioner may use the roll used for elections of the Legislative Assembly or for Commonwealth elections as a basis for the residential roll.
(3) The Electoral Commissioner is to confirm as the residential roll for an election the roll referred to in subsection (1) if, in the Commissioner’s opinion, the roll contains the names of the persons who on the closing date are qualified for inclusion in the residential roll as electors.’

29 Section 303 then deals with the procedure by which the Electoral Commissioner forms the opinion that a person is entitled to be enrolled:

‘303 Making of claims for inclusion in the roll
(1) A person may lodge with the Electoral Commissioner (in the case of the residential roll) or the general manager (in the case of another roll):
(a) a claim for the inclusion of his or her name in the roll or for the amendment of any particulars entered in the roll against the name, or
(b) an objection to the inclusion in the roll of his or her name or the name of another person, or
(c) an objection to the inclusion in the roll of specified particulars entered against his or her name or the name of another person.
(2) Within 7 days after the lodging of a claim for inclusion in, or of an objection to an entry in, a roll, the Electoral Commissioner or general manager:
(a) is to decide whether the claim or objection is to be allowed or disallowed, and
(b) as soon as practicable, is to make such entries in, or alterations to, the roll as give effect to the decision, and
(c) is to serve notice of the decision on the claimant or objector and, in the case of an objection, on any other person to whom the objection relates.
(3) A person dissatisfied with the decision of the Electoral Commissioner or general manager may apply to the Administrative Decisions Tribunal for a review of the decision.
(4) The Electoral Commissioner or general manager is to make as soon as practicable such entries in the appropriate roll as are necessary to give effect to the decision on an application to the Administrative Decisions Tribunal.
(5) Despite this section, the roll of electors is not to be altered between the closing date for an election and the end of polling day.’

30 The submissions note that the roll is a composite roll. In local government elections there is a residents roll and a roll covering people entitled to vote on another basis (typically because they own rateable property in the municipality). The submissions refer to the objection procedure set out in s 303(2); and, most importantly, that the roll of electors is not to be altered between the closing date for an election and the end of polling day (s 303(5)).

31 The submissions close as follows:

‘It is therefore open to a person to make an objection to the Electoral Commissioner pursuant to s 303 of the LGA applying for removal of another person’s name from the roll on the basis the person is not entitled to have their name included. However, if an objection were to be prompted by the full residential address of a candidate stated in the nomination paper, the roll of electors could not be altered before the end of polling day. No objection so prompted could result in the alteration to the roll before the end of polling day.
While s 303 provides a process for objection to the inclusion of a name on the roll with a right of review by the ADT, the scheme of the LGA seems to be that the Electoral Commissioner confirms the rolls as at the closing date and the rolls cannot be altered at the end of the polling day. It would seem the intention is not to permit anyone to go behind the rolls after the closing date so far as the election is concerned. There appears to be no power in the ADT to review the accuracy of the particulars contained in the roll used in an election where the election of a candidate is challenged.’

32 Applicant’s Submissions: The Applicant’s submissions in reply to the Electoral Commissioner’s submissions accept the Electoral Commissioner’s description of the nomination requirements and the electoral roll requirements. The submissions note that the Electoral Commissioner’s opinion as to eligibility to vote must be derived from the process that is followed in relation to the Commonwealth and State electoral rolls. This is also the Tribunal’s understanding – the residential roll is simply derived as a by-product of the processes followed in compiling the Commonwealth and State rolls for the districts that overlap with the relevant municipal area.

33 The submissions note that as there is no separate process in the LGA by which electors must provide the Electoral Commissioner with further information for the purpose of confirming the residential roll for a local government election. We agree with the submissions that as a consequence the Electoral Commissioner’s opinion is based on the information on the roll for the State or Commonwealth election.

34 The submissions then go on to note that these rolls have strict residential requirements. The following provisions in the PEEA, which governs the State roll, are referred to: s 26, that a roll must be maintained for each subdivision and district, which sets out the ‘residence’ of each elector; s 3(3), ‘residence’ means ‘place of living’; and in particular a series of requirements the effect of which is that once a person, otherwise eligible, has lived in a subdivision for one month, he or she is required to make a claim for enrolment or transfer their current enrolment to their new electorate, ss 33(1) and (2), 33(3), 34(1), and a failure to do so is subject to penalty, s 34(3) and (4).

35 It is then noted that the law governing the Commonwealth roll has provisions similar to those of the PEEA in CEA, Parts VI and VII (see especially ss 81-83, s 99, s 101). Importantly, the submissions contend:

‘Both the Cth Act and the NSW Act require that electors on their rolls live in the subdivision in respect of which the roll is kept. In both cases electors must transfer their name to the roll of a subdivision to [which] that elector has moved and stayed for 1 month.
Accordingly, in forming the necessary opinion under s 298 of the LGA in respect of the residential roll, the Electoral Commissioner may act on the assumption that the State or Commonwealth rolls contain references to the residences of the persons named on the roll.’

36 The submissions then refer to the requirement that a person be qualified to hold civic office if he or she is entitled to be enrolled as an elector: LGA s 274(a). The submissions refer to s 266 (criteria relating to entitlement to enrol – entitlement to vote at a Commonwealth or State election; and being a resident of the ward) and s 269(1) (criteria for being resident of a ward – they include the requirement that a person’s place of living be ‘as described’ on the roll). The submissions note, in particular, PEEA, s 20(6) which provides:

‘20 Qualification of electors
... (6) An elector, other than a relevant elector, is not entitled to vote at an election as an elector of the subdivision of the district in respect of which the elector is enrolled unless the real place of living of the elector was, at some time within the 3 months immediately preceding polling day for that election, within that subdivision. ...’

37 Accordingly, it is submitted that the candidate must have a ‘real place of living’ in the ward within 3 months of polling day. The submissions note that the Electoral Commissioner did not address this argument though they were in the submissions handed up by the applicant on 7 February 2005, and furnished to the Commissioner.

38 The applicant’s submissions are also critical of the Electoral Commissioner’s submissions on broader grounds. The applicant refers to the modern approach to statutory construction, as outlined by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey, Gummow JJ:

‘the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. ... [I]nconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.’

39 There are many similar pronouncements in decisions of the NSW Court of Appeal, a recent example being in Council of the New South Wales Bar Association v LI [2005] NSWCA 415 per Spigelman CJ at [13]:

‘13 The approach to statutory construction adopted by the Appellant involves a narrow literalism of a character that has long been rejected. It is divorced from the contemporary approach to statutory construction which pays particular regard to the purpose of the legislative scheme, both at common law, and as reinforced by the express obligation to promote the purpose or object underlying an Act, required by s33 of the Interpretation Act 1987.’

40 The applicant’s consistent submission in the course of these proceedings has been that duties, functions and powers of local government are all focussed on their areas, and it follows that the LGA should be construed such that the electors of councillors (and in turn those that stand for council) should actually reside in the relevant municipal area. The applicant criticises the Electoral Commissioner’s interpretation of the words of s 269(1) as being too literal. As we understand the submission, the applicant’s view is that it is not enough to satisfy requirements (a) and (b) of s 269(1) that a person is as a matter of form ‘enrolled on the relevant date’ on the roll for an electoral district that covers the ward (requirement (a)) and that the place of living ‘as described on that roll’ is in the ward (requirement (b)). It must be shown, as we understand the applicant’s submissions, that the person is validly enrolled on the relevant date on the roll. It follows that if he or she is not validly enrolled then requirement (b) need not be considered. On the other hand if the matter falls to be determined entirely by reference to requirement (b), it is necessary to consider what the person’s real place of living is.

41 The applicant’s submissions concede, as we interpret them, that LGA s 269(1)(b) does not stipulate (adopting the word used by the Electoral Commissioner) that a person reside in the ward, but then contends that ‘[t]his approach ignores context, purpose and object of the LG Act’. The submissions refer to s 269(3) which, to reiterate, provides:

‘(3) In this section, place of living includes the place of residence to which a person temporarily residing elsewhere intends to return in order to continue living there.’

42 It is submitted that this partial definition should be taken into account when construing s 269(1)(b).

43 The submissions criticise the Electoral Commissioner’s construction as producing an absurd result. It is said that such a result would be contrary to PEEA s 33(3) and s 34(3) which provide, respectively:

‘33(3) Subject to sections 20A–20C and Division 18 of Part 5, no person is entitled to have his or her name placed on more than one roll or upon any roll other than the roll for the subdivision in which the person lives, or to have his or her name placed on a roll in respect of any address other than the address at which the person is living at the date of lodgment of the claim.’
‘34(4) If a person (including a person whose residence, in pursuance of a request made under section 38A, is not entered on a roll) changes residence from one address in the subdivision for which the person is enrolled to another address in that subdivision, the person shall, within 21 days after the date of making the change, give notice in writing of the new address to the registrar for the subdivision.’

44 The submissions accept that an invalidly enrolled person would not be prevented from voting if they were on the roll when the rolls closed. But it is said that ‘it does not follow that such a person should be allowed to be a candidate’. The principle of the finality of the rolls for voting purposes should, it is said, not be permitted to affect the approach taken in determining whether candidates have satisfied eligibility requirements.

45 The submissions then repeat, essentially, the argument that the Tribunal is entitled to look at the validity of the candidate’s enrolment, going beyond mere matters of formal compliance with the LGA.

46 The submissions continue:

‘[T]he task of construing the meaning of ‘resident’ should be done in the context of analysing the position of the proposed candidate as if they were applying for enrolment on the residential roll on the closing date. Such a person, if they were actually applying for enrolment would be obliged to give their actual place of living if they were not already on a NSW Act electoral roll. It would be absurd result [sic] if that person’s address was taken to be the address on the NSW roll even if it was incorrect just because they happened to be on a NSW Act electoral roll.’

47 The submissions note that in the case of Commonwealth and State elections there is an express provision providing that a candidate need not live in the electorate for which he or she stands: CEA ss 99(4) and 163; PEEA s 79. The submissions note that the LGA and the PEEA are silent on the position in relation to local government. The approach of the Commonwealth and State is given as a reason for assuming therefore that the LGA intended that the candidate live in the electorate (the ward) as there is no provision to the contrary.

48 The submissions conclude by pointing to other features of the LGA which point towards this being the correct assumption: the ‘full residential address’ requirement in the nomination forms and the candidate information sheet; the provision in s 267(3) expressly dealing with the situation where a person changes residence within a ward, and that it does not effect on the entitlement to vote (which carries the implication that a change of residence to outside the ward would be unacceptable) and the provision (s 739) allowing for omission of the person’s place of residence from the roll, read in combination with the words in s 269(1)(b) dealing with this situation. As to that situation, s 269(1)(b), to reiterate, provides:

‘(1) For the purposes of this Part, a person is a resident of a ward if: (b) ... or (in the case of a person whose place of living is not described on that roll) the person’s place of living is in the ward.’

49 The applicant’s contention is that it would be an absurd result to require of the person who happens to have been granted address suppression that they actually live in the ward, while allowing the earlier words in (b) dealing with the person with a disclosed address to be read so as to impose a different and less strict requirement, those words, to reiterate being: ‘a person is a resident of a ward if: ... (b) the person’s place of living as described on that roll is in the ward ...’.

50 The Respondent’s Submissions: Initially as noted the respondent accepted, though some doubt was expressed, that there was a requirement under the relevant law that she live in the ward at or at least within a reasonable period (one to three months) of the date of the closing of the rolls. Her case was conducted on the basis that she did have, as her actual place of living, 35 Carrington Street, Summer Hill at the time of nomination, and certainly within the period of one to three months prior to nomination. In response to the question of law, the respondent did not put in any new written submissions, but relied on those of the Electoral Commissioner.

Assessment

51 While, as is reflected in the Electoral Commissioner’s response to our question of law, the matter is less than clear, our view is that the electoral law read as a whole requires that a person who votes in a council election be a current resident of the area, perhaps with the qualification that if they have moved out of the area within the last month (see PEEA) or within the last three months (see CEA) they may retain an entitlement. Moreover, in our view a clear implication can be drawn from the provisions that current residence at the time of nomination is the requirement in relation to a candidate for civic office.

52 In looking at the question of the requirements for candidacy for civic office in local government, it is a mistake, we think, to focus entirely on the provisions of the LGA. The provisions of the LGA must, as Mr Docker has sought to do in his submissions, be read in light of the general electoral law of the State (PEEA) and the Commonwealth (CEA). For example, the Electoral Commissioner’s responsibilities in relation to the creation of the local government electoral roll (the composite roll made up of residents and persons entitled to vote in local government elections on another basis, for example as property owners in the area) is directly linked to the procedures and rules governing the creation of the State and Commonwealth roll. As is well known, electoral offices exercise responsibilities under all three laws. There is no division of electoral administration arrangements in Australia, in contradistinction, for example, to the federation of the United States.

53 There is a joint roll used for Commonwealth, State and local government elections. Under s 84 of the CEA and s 21B of the PEEA, the State Governor and Commonwealth Governor-General may make arrangements for the preparation, alteration, and revision of rolls of electors for State and Commonwealth elections. Section 21AB of the PEEA defines "State election" to include local government elections for the purposes of s 21B. Such arrangements have been entered into and given legislative effect (see for example cl 6 of Parliamentary Electorates and Elections Regulation 2001).

54 The use of a joint roll means that the provisions of the PEEA dealing with the rolls are essential to the effective operation of the LGA. For example, the PEEA gives the registrar the power to remove the name of a deceased elector (s 39(1)(c)), whereas the LGA does not deal with this matter at all. Similarly, the PEEA addresses questions of fraud, allowing the Commissioner to remove a person’s name from the roll if enrolment was secured with a false statement (s 39A), whereas there are no provisions dealing with this situation in the LGA.

55 The primacy of residence, as the basis of the right to vote, is reflected, as Mr Docker has pointed out, in numerous provisions of electoral law, especially the capstone Commonwealth and State laws. It is unfortunate, we think, that there is not great clarity on this matter in the LGA. There are, for example, many provisions in the PEEA which indicate that there is a connection between a person’s residence and their eligibility to vote in a particular area.

· Section 3(3) equates "residence" with "place of living" in the PEEA for the purposes of provisions relating to the preparation, alteration or revision of rolls;

· Section 20(2) creates a connection between a person’s enrolment in a subdivision and the person’s entitlement to vote at elections for the district;

· Section 20(6) restricts entitlement to vote to electors whose "real place of living" was within the relevant subdivision within the three months before polling day;

· Section 20(7) provides that electors who have changed address within the subdivision do not lose their qualification to vote on that basis;

· Sections 20A and 20B create a limited exception to the residence principle, allowing overseas electors to vote if they intend to return to Australia within three years;

· Section 20C creates another limited exception to the principle that an elector must reside in a particular subdivision in order to vote there in the case of itinerant electors;

· Section 26 provides that there are separate rolls for each subdivision and that they will set out each elector’s residence except in cases relating to the exceptions in ss 20A-20C;

· Section 33(1) and (2) provide that where a person has lived in a subdivision for one month he or she is entitled to be enrolled in that subdivision;

· Section 33(3) provides that, with limited exceptions, a person can only have his or her name placed on the roll in respect of the address at which the person is living;

· Section 34 makes it compulsory for an elector to transfer his or her enrolment within 21 days of becoming entitled to be enrolled in a new subdivision and creates an offence when the elector does not do so;

· Section 38A permits a person to request that his or her residence not be shown on the roll, but only where it affects the personal safety of a person;

· Section 39(2) allows the registrar to alter the roll to correct the situation where an elector’s name has been incorrectly placed on the roll for the wrong subdivision, although not after the issue of a writ for an election;

· Section 39A gives the Electoral Commissioner the power to remove the name of a person from a roll, where that person secured enrolment using a false statement;

· Section 51 creates an offence where a witness signs a claim for enrolment or transfer of enrolment without being satisfied that the statements contained in the claim (including statements about residence) are true;

· Sections 79(3A) and 81B(3A) require nominations for State elections to state the candidates place of residence as enrolled;

· Section 99A allows persons whose name appears, but whose residence does not appear, on the roll to vote only if they make a declaration of residence;

· Section 100 provides that the returning officer may ask a person claiming to vote "Is your place of living within the district" in order to determine whether to reject his or her claim to vote.

56 In the LGA s 275(3) is a provision that strongly supports this analysis. To reiterate, it provides:

‘(3) A person is not disqualified from holding a civic office only because, while holding the civic office, the person ceases to be a resident in the area, to own property in the area or to be an occupier or ratepaying lessee of rateable land in the area.’

57 The necessary implication of this provision is that up until the point of ‘ceasing to be a resident in the area’ the office holder is required to be a resident of the area.

58 The meaning given to resident for voting purposes in s 269(1)(b) applies to Part 1 of the Chapter, and this provision appears in Part 2. Section 275(3) is therefore to be accorded the ordinary meaning of resident, which in a local government context we see as being a resident within the municipality.

59 Our view is like that expressed by Bignold J of the Land and Environment Court in Wykanak v Rockdale City Council [2001] NSWLEC 65. In that case the Council had exercised a statutory power given by the LGA to close a meeting on the basis that it had an item affecting a ‘resident’ before it. The person affected challenged his exclusion from the meeting, arguing that he was not a ‘resident’ in the relevant sense, as he lived outside the municipality. The Court upheld the challenge. The Council contended that ‘resident’ in the context of the LGA could include a person resident outside the bounds of the municipal area. Bignold J ruled that resident must refer to persons who live within the boundaries of the municipality, and observed at [25]:

‘In the context of the LG Act which focuses attention on local government and local communities, there is, in my view, a necessary implication that the reference to ‘resident or ratepayer’ in s 10A(2)(b) is a reference to a resident or ratepayer within the relevant local government area’.

60 This understanding is reflected in the requirements as to what the nominee must provide by way of information in their nomination form and candidate information sheet. Those requirements are ones of importance. For example LGA s 308(1) requires that: ‘(1) A nomination of a candidate for election to a civic office is to be accompanied by a candidate information sheet in the form of a statutory declaration made by the candidate.’ The importance of these forms being accurately completed is reinforced by the offence provisions. LGER cl 89 provides that a person must not make a declaration which the person knows to be false in respect of a matter for which a declaration is required by the LGER. Clause 90 provides that a person must not make a false statement in a paper relating to an election or poll, or in information supplied to the Electoral Commissioner in relation to electoral rolls.

61 We agree with the Electoral Commissioner that the requirement that full residential address be disclosed in the nomination form and the candidate information statement does not bear the special meaning given to residence by s 269(1)(b). This is another requirement requiring the candidate to disclose his or her present actual place of living. In our view one function of such a requirement is to enable the Commissioner to satisfy himself that the candidate is eligible to stand, and to serve the wider purpose of letting the public generally know something of the background of the community, and importantly whether he or she is a member of the local community.

62 We also think that considerations as to the nature of representative democracy must guide the interpretation of the various provisions. The LGA has as one of its purposes (s 7):

‘(c) to encourage and assist the effective participation of local communities in the affairs of local government.’

63 A diagram appears in a note at the foot of this provision which sets out schematically ‘the system of local government in New South Wales’ depicting the relationship between the ‘local community’ and the other organs of local government in New South Wales (council, council administration, Local Government Commission, the Minister) and then shows linkages to the Parliament of New South Wales. The starting point, at the top of the diagram, is a box marked ‘Local community’.

64 It would be a very strange result therefore, as Mr Docker has submitted, if the legislative scheme for election as councillor allowed for the election of a person who was not a current resident of the area, and might have no other connection with the area other than that their name appeared on the local electoral roll with an address in the area.

65 Section 269(1)(b). This is the provision that has caused us concern, and on its face, stands in the way of the interpretation we have adopted. There is a clear difference between the words ‘as described in’ used in the clause relevant to this case and the words ‘is in’ used in dealing with the other situation (address suppression). As already noted, it is enough for a person whose name appears on the roll to be treated as a ‘resident of a ward’ if their ‘place of living as described on that roll is in the ward’. The Parliament links residence to the public record.

66 This is understandable when the context in the legislation in which the provision appears is taken into account. The title of Chapter 10 is ‘How are people elected to civic office?’. The first part, Part 1, had the title ‘Who may vote?’. This part is dealing with the particular question, as we see it, of the basis for casting a vote in a municipal election. Section 269(1) disposes of the question of residence for voting purposes by simply requiring that the person be enrolled on the relevant date within the meaning of the PEEA and that by providing that the address shown on the roll must be one within the ward. The entitlement to be enrolled under the PEEA is the dominant requirement. The second requirement in s 269(1)(b), as we see it, is simply a subsidiary requirement.

67 The key question remains that found in s 269(1)(a) – whether the person is enrolled within the meaning of the PEEA. In this way, we are taken back to a consideration of the provisions of the PEEA.

68 A function of s 269 in the scheme of the legislation is reflected in its heading – ‘Who is a resident for the purpose of this Part’, i.e. Part 1 (Who may vote?). It is not determinative of who may stand. Section 269(1)(b) is a practical measure designed to assist the voting process. Electoral staff and others interested in the eligibility of a voter will have a public roll before them with a disclosed address for most voters. They simply have to be satisfied when a voter presents that the address shown in the roll is also in the ward. On the other hand if the address is not shown in the roll (because it is suppressed), then the staff need some other means to satisfy themselves that the voter has an address in the ward (so, presumably, the voter needs to provide some current proof of residence at an address within the ward, such as driver’s licence, gas bill or the like, or make a declaration to that effect). This, in our view, is the likely explanation of the different approaches revealed in this provision.

69 It does not in our view bear on the meaning to be accorded to the word ‘resident’ elsewhere in the legislative scheme. The subject of ‘Who may be elected?’ is dealt with at Part 2. The ‘extended’ meaning of ‘resident’ of Part 1 (found in s 269(1)(b) is not applicable here. The opening provision of Part 2, to reiterate, is s 274:

‘274 What are the qualifications for civic office?
A person is qualified to hold civic office if:
(a) the person is entitled to be enrolled as an elector, and
(b) the person is not disqualified from holding civic office by this Act, and
(c) the person is not prevented from being elected to civic office by section 276 (2).’

70 The principal requirement is ‘entitlement’ to be enrolled as an elector. That matter is governed, substantially, by the requirements found in the PEEA. This provision should also be read alongside s 275, in particular s 275(3), as previously noted. Section 275 deals with the grounds for disqualification. Reading this provision together with s 275, it is clear we think that the entitlement to stand must start with a valid enrolment under the PEEA, and in the case of a person standing for office, there is a necessary implication, as we see it, drawn from s 275(3) and such provisions as those relating to nomination that the candidate be a current resident of the area.

71 As to s 303, we accept that the usual mechanism for challenging the validity of an enrolment is that provided by the objection procedure. If the invalidity comes to notice after the rolls are closed nothing can be done until they are reopened. This seems, again, to be a strange result. If for example people impersonated dead people whose names had not been removed from the roll and voted, this would be an irregularity that might lead to a case in a court of disputed returns or this Tribunal. The present is another case of that kind. The applicant claims that due to matters unknown to the electoral officials at the time of nomination, a candidate was allowed to stand who was not eligible.

‘Irregularity’

72 Gibbs CJ has stated that an ‘irregularity’ refers to conduct ‘in the manner in which the person has been elected or appointed to office’ that involves a departure from ‘some rule, established practice, or generally accepted principle governing the conduct of the election’ (R v Gray; Ex Parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 368). For the court to intervene by way of an order in relation to the irregularity the conduct must be ‘such that the result of the election is thereby uncertain’ (per Beazley JA in Bourne v Murphy (1996) 92 LGERA 329 at 358).

73 In our view, the failure of a candidate to demonstrate that they are a resident of the area at the time of nomination is a fundamental irregularity, breaching an established principle governing the conduct of the election, and rendering the outcome uncertain.

Nature of the Inquiry

74 We do not see a case such as this as one where the applicant bears any onus. ‘Any person’ is entitled under the LGA to challenge the credentials of a councillor. The councillor is then required, as we see it, to satisfy the Tribunal, on balance, that she or he has a place of living or residence within the area. (The councillor could move at an early stage for summary dismissal if the applicant produces no arguable evidence in support of an application, and the councillor has clear evidence to the contrary. This was not such a case.)

75 We will now refer briefly to the case law on place of living and residence, and then go on to examine the evidence.

‘Place of Living’ or ‘Residence’

76 The issue of a person’s residence, or place of living, involves questions of ‘fact’ and ‘degree’, as was noted long ago by Blackburn J in a case about the entitlement of an elector to vote at a municipal election, R v The Mayor of Exeter; Dipstale’s Case (1868) LR (QB) 114 at 115. There are utterances to similar effect in tax law cases involving the same issue: for example, Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217, Inland Revenue Commissioners v Lysaght [1928] AC 234 and Fed Cmr Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93.

77 Mr O’Brien, for Ms Cheung, submitted that it was not unusual for persons to have more than one place of living, and this is the situation that applies to Ms Cheung. Mr Docker, for the applicant, acknowledged that the possibility of being a concurrent resident in two places has often be recognised in tax cases (where different tax consequences may apply depending on residence): see, for example, Gregory v Fed Cmr Taxation (1937) 4 ATD 397 (Dixon J).

78 We note that the same possibility (that a person may have more than one residence) has been recognised in English electoral cases such as Dipstale’s case, another old case decided on the same day as Dipstale’s case – R v Mayor of Exeter; Wescomb’s case (1868) LR 4 QB 110 and Fox v Stirk and Bristol Electoral Registration Officer [1970] 3 WLR 147 at 153 per Lord Denning MR.

79 Mr Docker submitted that the provisions of the LGA, read as a whole, required that a person be resident for electoral and nomination purposes in only one place. In our view the LGA does not go so far as to specify that a person may only have one residence or place of living for enrolment purposes. What it does is restrict a person to one vote in such an instance, subject only to any entitlement he or she may have as a ratepayer in another municipality. The one vote principle is recognised in the following provisions. LGA s 266(1) also gives an entitlement to vote as electors for a ward to: a person who is ‘not a resident of the ward but is the owner of rateable land in the ward’ and a person who ‘is an occupier, or ratepaying lessee, of rateable land in a ward’ (s 269(1)(a) and (b)). Persons who qualify under more than one heading are only entitled to one vote in the same municipality: LGA s 268.

80 So while there are good arguments, we think, based on the theory of representative government, in our view the LGA does not expressly, or impliedly, go so far as to mandate that a person may only have one place of living or residence. The way the matter is addressed by local government law is to restrict residential enrolment to one address in the State; and then, if called upon, to require the elector to show that he or she has that place as a place of living at the relevant time.

81 Mr Docker noted that it is not possible for a person to be enrolled on a residential basis simultaneously as an elector at two different places. We agree that this emerges from PEEA s 33.

82 We were referred to many cases in submissions. Mr Docker took us to Burnett Shire Council v Galley [2000] QSC 490, a case construing the expression ‘lives in’ under the Local Government Act 1993 (Qld) per Holmes J at [41]; and Tanti v Davies (No 3) [1996] 2 Qd R 602 per Ambrose J at 636-637, construing the term ‘real place of living’ in s 105(3) of the Electoral Act 1992 (Qld).

83 While some of the case law, for example Burnett Shire Council at 102 and Tanti v Davies (No 3) at 637 and 639, suggests that ‘place of living’ has a less stringent connotation than ‘resides’, we are inclined to the view, that having regard to the scheme of the LGA and the way the words ‘place of living’ and ‘resides’ are used in the provisions we have referred to, that no substantial distinction need be drawn in dealing with this case. See further the definition in the PEEA at s 3(3):

‘(3) A reference (however expressed) to residence or reside:
(a) in any provision of this Act relating to the preparation, alteration or revision of rolls, or
(b) in any regulation, form or electoral paper relating to or used in connection with the preparation, alteration or revision of rolls,
shall be read as a reference to place of living or live, as the case may be.’

84 A ‘residence’ or a ‘place of living’ is, in our view, a place where a person leads their ordinary day to day life, understood in the full sense of meeting the physical needs of daily life (sleeping, eating, recreation) and the emotional needs of daily life (relationships with friends and loved ones, entertaining visitors and the like).

85 Other factors may also be relevant to this assessment such as whether the person has an economic stake in the place (owns or rents the place); or whether the person keeps personal possessions there. Another way of putting the matter is to ask whether the place under notice is one that the objective observer would see as the person’s home, or one of their homes (see Hipperson v Newbury Electoral Officer [1985] QB 1060 at 1072; Fox v Stirk and Bristol Electoral Registration Officer at 477).

86 Our approach is consistent with that taken by Holmes J in Burnett. He spoke in the broad way we have of the incidents of daily life, especially private life, that together provide a basis as to a conclusion as to a person’s real place of living, in instances where a person spends time in more than one place. The extent of the individual’s financial connection to the place claimed to be a ‘residence’ was seen as a material factor in Gregory v Fed Cmr Taxation at 399 per Dixon J.

87 The two English municipal election cases, already mentioned, have some relevance to the present discussion. In those cases the court reviewed enrolment decisions made by the electoral officer (the local mayor) to which there had been objections. In Wescomb’s case, Blackburn J held that the test of residence is ‘whether there has been such a degree of inhabitance as to be, in substance and in common sense, a residence’ (at 113). His Honour found that a man who had been in the municipality about 20 times over the prior year and had stayed in a furnished room for a period of four to ten days on each occasion (overall total, therefore, somewhere between 80 and 200 days), was qualified as a resident, and entitled to vote. In the next case, Dipstale’s case, the man carried on a business from rooms in a house in the municipality, and he visited it every work day. He had exclusive use of a furnished bedroom there. He said he sometimes slept there. Blackburn J held that the man did not inhabit the house in Exeter; rather there was only the occupation of an office where the man sometimes slept.

88 Mr Docker submitted that no regard should be had to work factors in deciding where a person lives. We would not go that far, but we agree to this extent, the fact that one is staying somewhere for work-related reasons would normally only be a subordinate factor in assessing whether the place can be said to be the person’s ‘place of living’. The main factors are those of a social and domestic kind to which we have referred.

89 The following concise statement from Williams J in a tax case, Koitaki Para Rubber Estates Ltd v Commissioner of Taxation [1941] HCA 13; (1941) 64 CLR 241 captures the idea we are driving at well:

‘The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns but by reference to where he eats and sleeps and has his settled or usual abode’.

The Evidence

90 The Tribunal received evidence from:

Ms Cheung and her husband, Paul Lechowski
The owner of the Summer Hill house (Mr Peter Sandas); and his daughter in law, Mrs Patricia Sandas
Friends of Peter Sandas who regularly visited his home (Mr Steven Spiliotopoulos, Mr Peter Moudafas)
Neighbours living near the Summer Hill house (Mr John Wasley, Ms Gerda Lai/Pawlitschki, Mr D R Lockwood, Ms Melissa McCann, Mr John Tzortzis)
Constituents who said they had visited Ms Cheung at Summer Hill to discuss Council matters (Ms Yvonne Leabeater, Mr George Karam)
Persons who said they had dropped Ms Cheung off near the Summer Hill house (Mr Edward Cassidy, Councillor; Mr Lloyd Birdsall, former convenor, local Neighbourhood Watch group)
Acquaintance of Ms Cheung as to a statement made by her in 1998 re her intentions as to living in Ashfield area (Dr Wu)
A neighbour at Hurstville, Mr John Whittle

91 Documentary evidence included:

Telstra Service Phone records for number, which we will refer to as ‘XX’, put in first four digits, leased by Ms Cheung at 3 Pembroke Street Ashfield for period 11 December 2003 to 21 July 2004; and for same number leased by Ms Cheung at 35 Carrington Street, Summer Hill for period 21 July 2004 to 16 November 2004
Telstra Service Phone records for number leased by Mr Lechowski at the Hurstville unit for period 1 April 2003 to 31 March 2004
Telstra Mobile Phone account records for Ms Cheung’s Council Issued phone for period 1 April 2003 to 31 March 2004
Directory Listing information from Optus relating to Mr Lechowski and Ms Cheung, relating to 2003 and 2004 period
Change of Address Request by Ms Cheung, Australia Post, 30 March 2001. Other Miscellaneous Records containing addresses given by Ms Cheung
Neighbourhood Watch group meetings for the Summer Hill area (evidence as to frequency of meetings after 28 November 2003 – also, oral evidence from S/C Johnstone; evidence as to frequency and attendance by Ms Cheung – also oral evidence from Mr Lloyd Birdsall; minute book recording attendances at meetings, showing first attendance on 28 February 2000, and regular attendances in 2001, 2002, and regular attendances up to August 2003. There are no recordings of meetings after 24 November 2003; also oral evidence from Mr George Karam).

92 Lechowski/Cheung Evidence: Ms Cheung bought the Hurstville unit in her name in 1999, subject to mortgage. It is a one-bedroom unit, but has a sun-room which can be used as a second bedroom. Mr Lechowski lives in the unit and is active in the body corporate and the residents’ committee.

93 Ms Cheung and Mr Lechowski commenced living together in December 1996 and married in December 2000. There are no children. Ms Cheung referred in her affidavit to the places where she had lived over the last ten years or so. She referred to her connections with the Ashfield area, including involvement in the Chinese Association. Ms Cheung stated that she had lived at Summer Hill since January 2000 with the exception of a period of 9 months between May 2001 and February 2002 when she rented a home unit at Tintern Road, Ashfield and, more recently, for the period May to July 2004 when she lived at 3 Pembroke Street, Ashfield. The issue in this case is what could be said to be her place of living immediately preceding 16 February 2004; so the period she nominates at Pembroke Street is not strictly relevant.

94 At para [11] she gave the following explanation in support of her assertion that she and her husband live at separate addresses:

‘My husband and I choose to live as we do as this arrangement suits us both. Through this arrangement I have the opportunity to pursue my career in local government matters and that also enables me to put in long hours both in my permanent employment in an office job in the city (York Street) and on Council and Chinese community matters.’

95 At hearing she said that in fact she and her husband had not lived together on a day to day basis since mid-2000, six months before they got married. She said in evidence that she stayed in a room set aside for her at Peter Sandas’ home in Summer Hill during the week, so that she could attend to her Council duties and community activities, which often occurred in the evening. This arrangement also enabled her to be available to constituents. She agreed that she regularly returned to Hurstville on week-ends.

96 Ms Cheung also suggested at hearing that there was a degree of estrangement between herself and Mr Lechowski. She said, for example, that she stays in the unit’s bedroom, he in the sun-room, when she stays overnight at Hurstville. At hearing Mr Lechowski said the same as to this matter. On the other hand, Mr Lechowski’s affidavit depicted a happy relationship; and there was no suggestion in Ms Cheung’s affidavit of any unhappiness.

97 Mr Lechowski’s affidavit referred to the mutual support they had given each other, he in relation to her political career, she in relation to his computer business. It referred to her coming home from Summer Hill on weekends, and doing the usual chores of domestic life. He said they went out regularly together on a Saturday night to the local Catholic Club. He said they went shopping together on weekends and sometimes attended social activities associated with her position. He said that Ms Cheung also sees nieces and nephews at that time who are staying, and noted that from April 2001 to April 2002, Karin’s niece had stayed there, and recently (around November 2004) a nephew had stayed for six weeks.

98 Mr Lechowski referred more fully at hearing to the help that Ms Cheung had given him in relation to the establishment of his computer business. This was clearly an important development in their recent life together. Ms Cheung assisted him in setting up the business. He had had to give up industrial work in the late 1990s as a result of an accident, and had requalified to enter this field. She is a director and shareholder of the company through which the business is conducted. The business bears the name of one of Ms Cheung’s nephews, Mr Koman, who stayed at Hurstville for some time (Koman Computer Services). Mr Lechowski built up the business working from home at Hurstville before establishing an office in July 2004 at Belmore Street, Burwood. The registered address of the company initially was the address of the unit at Hurstville, and since moving to Burwood it has been 35 Carrington Street, Summer Hill.

99 In other evidence Ms Cheung referred to doing such things around the unit at Hurstville as gardening, cleaning, putting out the garbage and catching up with family and visitors. This accorded with evidence given by a neighbour at Hurstville, Mr John Whittle, a witness called by the applicant. Moreover, when cross-examined about the state of the relationship, Ms Cheung spoke of still being in love with Mr Lechowski even though there had been difficulties. We detected no animosity between them when each of them gave evidence.

100 It is plain that they have given each other of lot of support in pursuing their respective careers. Ms Cheung gave evidence of the work she had done from 2001 to 2004 in support of Mr Lechowski’s setting-up of his computer service business. Mr Lechowski gave evidence of the support he had given Ms Cheung in her political career over the years (leafletting and the like, including at the 2004 election). It is also clear that they are content to live apart from each other if that assists Ms Cheung in pursuing her political career.

101 In our view Ms Cheung invented the suggestion that they had not lived together since marriage as a way of bolstering her case that her residence is Summer Hill. We have disregarded that suggestion. It is clear, we consider, that Ms Cheung and Mr Lechowski continue to have a satisfactory, supportive relationship; and while they may sometimes spend time apart from each other, they are not alienated or separated in the marital sense. She referred, for example, to him frequently dropping her off at Summer Hill in the last year.

102 In our view the evidence of Ms Cheung and Mr Lechowski supported the conclusion that Hurstville was a place of living for Ms Cheung in the sense discussed in the cases – the place where a person carries on his or her broader social and domestic life.

103 Ms Cheung’s assertion that Summer Hill was also a place of living sufficient to constitute a residence for the purpose of the LGA depended on the following evidence:

(a) the provision of an exclusive room for her use by the owner of the house at Summer Hill
(b) the frequency of her presence there
(c) the activities she engaged in there.

104 As to (a), what emerged at hearing was that Ms Cheung has, over many years, had a close relationship to the Sandas family. Around 1998/1999 she met Patricia Sandas, who lives in Ashfield, at Liberal Party activities in the area. Patricia is married to Terry, a son of Peter Sandas, the owner of 35 Carrington Street, Summer Hill. Around the time she first stood for Council in 2000 she stayed regularly at Patricia Sandas’s. Later she moved to Peter Sandas’s. Initially she had the front bedroom in that house, and later she moved to the third bedroom two rooms back from the front bedroom. She has office facilities there (telephone, fax, computer). There is a wardrobe where she keeps clothes. She does not pay any rent.

105 She moved out of the house in the period when Peter Sandas returned to Greece for a nine month holiday. During that time she rented a flat in Tintern Road.

106 We are satisfied that during the main months of 2003 until about November of that year she did have an exclusive use arrangement with Mr Sandas in respect of the room. We are not certain what the situation was for some months after that. Our reason for doubt is that the records produced at hearing showed that the office phone at Summer Hill was moved from that address to 3 Pembroke Street, Ashfield (the Passas residence) during that period. It was returned to Summer Hill in July 2004.

107 As to (b) (the frequency of her presence at Summer Hill) the evidence given by Peter Sandas, his friends and neighbours in Carrington Street was, for the most part, unsatisfactory.

108 As to (c) (the activities she engaged in there), there was evidence (mainly the phone records, and some neighbour evidence) supporting the conclusion that Ms Cheung did office work there regularly; but very limited evidence of her having any wider connection to Summer Hill of a social or domestic kind.

109 Moreover, none of this evidence showed Ms Cheung as frequenting or staying regularly at Summer Hill in the period November 2003 to February 2004.

110 We now turn in detail to the evidence as to the frequency of her presence, and the nature of her activity, at Summer Hill.

111 Peter Sandas gave evidence through an interpreter. He is a widower with four adult children, one of whom (Helene) lives in Greece. He is almost 90 years and in sound health. He confirmed that Ms Cheung had vacated the room at his request in approximately May 2001 and returned in February 2002. During that time he had visited Greece for 9 months, and the home was occupied by a Filipino family, made up of the parents and two children.

112 Mr Sandas stated that Ms Cheung stayed there on a seven-day a week basis. He gave a very thin description of Ms Cheung’s personal activities at No 35. He spoke of her coming and going from her room, and sleeping there. He referred to her helping out occasionally with washing and ironing his clothes, and some cleaning. He said he conversed with her in broken English. There was no evidence that she ever used the place for entertaining her family or friends.

113 The regular visitors of Mr Sandas gave evidence (Mr Steven Spiliotopoulos and Mr Peter Moudafas). One, Mr Moudafas tended to call around in the morning; the other Mr Spiliotopoulos in the afternoon after picking up his grand-daughter from school. Mr Spiliotopoulos would play cards with Mr Sandas. They each gave evidence of Ms Cheung coming and going, and having a room there. Each of them called on Mr Sandas two or three times a week. Both asserted that she was a seven-day-a-week resident. When asked to recall any recent absences of some duration they did not recall, until prompted, her absence for most of April 2004 when she went to Hong Kong to visit her mother.

114 Even Ms Cheung did not put her case as high as being a seven-day-a-week resident of No 35. The evidence given by Mr Sandas and his friends was, we consider, contrived and exaggerated. We have not placed any weight on it.

115 Neighbours living in the vicinity of 35 Carrington Street, Summer Hill gave evidence. They came from No 26 (Mr Wasley), No 29 (Ms Pawlitschki, also known as Lai), No 41 (Mr Lockwood, who was also renovating a house he owned at No 30), No 37 (Ms McCann) and No 21 (Mr Tzortzis). All of the evidence was non-specific as to dates and times.

116 Of these people Ms Pawlitschki, Mr Lockwood and Mr Tzortzis had lived in the street for many years. They were all acquainted with Mr Peter Sandas. Apart from Mr Tzortzis who is Greek, they reported difficulty in conversing with Mr Sandas due to his limited English. They spoke well of him as a neighbour.

117 Ms Pawlitschki and Mr Lockwood said they had only occasionally seen Ms Cheung in and around the Sandas residence. Ms McCann, the immediate neighbour, spoke of having heard Ms Cheung in the backyard on weekends on occasions, and having seen her working in her study/bedroom.

118 Mr Lockwood and Mr Wasley (the latter had been in the street since about mid-2003) had the most active presence in the street of those that gave evidence in terms of being out and about in their front gardens or walking around the local area. Mr Tzortzis’ evidence was brief, vague and non-specific.

119 The neighbour evidence, including that given by Ms McCann and Mr Tzortzis who were called by Ms Cheung, did not assist Ms Cheung’s case. It did not reveal any pattern of regular activity or movement consistent with her claim that No 35 was her residence or place of living.

120 Mr Birdsall, who had organised the area Neighbourhood Watch group and had also been a campaign worker for Ms Cheung, gave evidence. The Neighbourhood Watch Group had last met regularly in 2001 and 2002. He said that on occasions he had dropped Ms Cheung off late at night after the meeting at the front gate of No 35.

121 Neighbourhood Watch records of meetings were also produced. This was of little value. They recorded Ms Cheung as attending six of the first seven meetings of 2003, but not the final two meetings held 27 October 2003 and 27 November 2003. The records simply locate Ms Cheung in the Ashfield area for that purpose, and sheds little light of the question of her place of living.

122 The most instructive locator evidence was that obtained by the applicant through summonses leading to the production of Ms Cheung’s telephone records. They covered the months from October 2003 to 27 March 2004.

123 They dealt with the use made by Ms Cheung of three telephones: the landline number located at Hurstville; the landline number located at Summer Hill until 11 December 2003, but then transferred to 3 Pembroke Street, Ashfield (the Passas residence) (which we will call the ‘Summer Hill’ phone, though, as later appears, it was not at Summer Hill after 11 December 2003 until July 2004) and her Council-issued mobile. There was some difficulty in obtaining a complete picture of the calls made from these phones.

124 While the ‘Summer Hill’ and Council-issued mobile records (obtained by summons from Telstra) were complete; the Optus records relating to Hurstville were not complete in that they did not show details of outgoing calls to mobiles. It transpired in evidence that Ms Cheung was in a position to produce the accounts showing the outgoing mobile calls. She produced them in re-examination simply to show that they existed. She did have a personal mobile, as well. The use of that phone was not examined.

125 Ms Cheung was closely questioned as to the patterns of phone usage revealed by the records, particularly as to the extent of calls from the ‘Summer Hill’ phone. This evidence, in our view, clearly supported the inference that her principal base of activity for making phone calls and using the dial-up connection to her internet service provider during the period 1 November 2003 to 27 March 2004 was Hurstville. There is evidence showing phone usage activity on the ‘Summer Hill’ number, as well as dial-up activity. It is, for the most part, sporadic. There is only one period of relatively consistent, active use involving (in the case of the dial-up connection) relatively long periods of connection – for the period 4 to 8 February 2004.

126 This evidence is of significance, because the key reason that Ms Cheung gives for choosing to live at Summer Hill is a work-related one. She has Summer Hill set up as a combined study/bedroom.

127 It is reasonable, in light of the key reason she gives for having the room at Summer Hill, to expect to find related consistent usage of the phone there for the many communications that go with life as a councillor. The phone record evidence does not support such a conclusion.

128 The pattern of calls is the subject of a table given to the Tribunal by Mr Docker at hearing on 7 February 2005.

129 For example, from 11 January 2004 to 16 February 2004, Ms Cheung used her mobile only on 6 occasions. There are no calls recorded on the ‘Summer Hill’ number between 11 January 2004 and 3 February 2004. In the period 4 to 8 February 2004, there is activity, 17 calls, some of long duration involving the dial-up to the internet service provider’s number. These point to her being at the location of that telephone in that period for some significant time.

130 There is evening use of the phone on three nights in this period, perhaps pointing to her staying at the location of that telephone on those evenings. Then between 9 February and 16 February, the phone is used on two days only.

131 On the other hand the Hurstville phone is in regular use every day over the same period up to 3 February 2004. Then in the period 4 February to 14 February 2004, it is only used once on each of two days, and not at all on other days. Then on 15 February 2004 regular use of the phone resumes at Hurstville, and there is no use of the ‘Summer Hill’ phone for the period 13 February to 29 February 2004. In evidence Ms Cheung explained this as being due to her being out on electioneering, and that she was working more out of Hurstville because she was receiving support from her husband and her family who were based there.

132 While some of the phone use at Hurstville in the period to 3 February 2004 is attributable no doubt to use by other people at Hurstville, we are satisfied, having regard to the numbers called, that the most frequent user was Ms Cheung. For example, in the period 1 November 2003 to 27 March 2004 there are 51 calls from Hurstville to Ms Julie Passas, a co-ordinator of the Liberal campaign in Ashfield, at the time a fellow Councillor and fellow candidate. There are very few calls from the ‘Summer Hill’ phone to Ms Passas over the same period. This is suggestive, as was submitted by Mr Docker, that Hurstville was Ms Cheung’s base of activity during this time, both official and domestic.

133 The phone usage patterns also tend to support the conclusion that Ms Cheung was located exclusively at Hurstville on most of the 120 days that she was in Australia between 1 November 2003 to 27 March 2004 (the one month in Hong Kong being excluded from the count). The usage patterns show that only one of the two phones was used on 89 days, with 69 of those days being Hurstville and 20 days only involving the ‘Summer Hill’ phone.

134 There is a more detailed analysis of the phone use evidence in Mr Docker’s submissions at pages 14-16, with which we have no dispute.

135 Significantly, in December 2003 Ms Cheung switched the billing address for the Summer Hill number from 35 Carrington Street to 3 Pembroke Street, Ashfield (the Passas residence). The phone records show that the account was rendered to that address from 11 December 2003 to 21 July 2004 in the name, Kwai Lin Lechowski (her married name). The evidence of Ms Cheung was that all calls went to Pembroke Street. Our conclusion in light of an answer given in re-examination is that the only phone that remained active at 35 Carrington Street, Summer Hill was Mr Sandas’ own home phone.

136 This evidence in our view raises a real doubt as to whether Summer Hill was being used at all as a base of activity by Ms Cheung in the period 16 January to the date of close of nominations, 16 February 2004. If it was not being used as her office base, then it is quite unlikely we think that Ms Cheung would have been making much use of it for overnight stays. This evidence points to the calls that were being made between 4 and 10 February from what we have described as the ‘Summer Hill’ phone as in fact being made from Pembroke Street.

137 Address Records: The address records produced by the applicant showed, we consider, that Ms Cheung has frequently given Hurstville as her domestic address. The records produced by Ms Cheung showing her giving the Summer Hill address were of a minor kind – a charity donation record and a professional association membership address. Though in no way determinative of the matter before us, the address records tended to support the applicant’s case. There is again a detailed analysis of this evidence in Mr Docker’s submissions.

138 Neighbour Evidence re Hurstville: A neighbour of the Lechowski/Cheungs in the same block of units, Mr John Whittle, gave evidence. His evidence was of seeing Ms Cheung regularly coming and going from her Hurstville unit including in early 2004, being seen with her husband and members of her family visiting from Hong Kong, and engaging in activities such as attending to the garden surrounding the block of units. He referred to Mr Lechowski’s active involvement in meetings of the body corporate, and the body corporate committee. In her affidavit Ms Cheung disputed this evidence. We accept Mr Whittle’s evidence.

139 There is no satisfactory evidence establishing any frequency of use or occupation of Summer Hill by Ms Cheung in the period November 2003 to 16 February 2004. The evidence points to the possibility that she may have moved out of Summer Hill for the summer period.

140 She was cross-examined as to her long-term intentions in relation to occupying accommodation at Summer Hill. While she was evasive, in our view it was clear that her intention was to remain using Summer Hill only while she remained on Council.

Conclusions

141 While the evidence in this case occupied almost two days of hearing time, it is, in our view, clear that Hurstville is her main domestic residence. The room-use arrangement she has at Summer Hill is one of convenience designed to fit in with the emphasis of evening work in connection with Council duties, and to provide her with an office in her electorate.

142 In our view when factors of the kind mentioned are weighed up, it is plain that Ms Cheung does not reside at Summer Hill, nor can Summer Hill be described as a ‘place of living’ when our understanding of what is captured by the expression ‘living’ is taken into account.

143 In our view her only residence and place of living is Hurstville. That is where she entertains a family, that is where they are given accommodation on visits, and that is where her husband lives. That is the base from which they undertake social activities together, and that is where she undertakes some of the tasks of a shared life such as cleaning and gardening. Ms Cheung and Mr Lechowski are in no way estranged, despite some weak suggestions to the contrary by Ms Cheung. They have provided each other with ongoing support in their respective careers over many years. Ms Cheung owns Hurstville subject to mortgage. She has no financial tie to Summer Hill.

144 She has, in particular through her Greek friends, a study/bedroom in Summer Hill available to her as needed. It is a simple room, with some office equipment and a bed. She has a wardrobe with clothes there.

145 Summer Hill did not amount to a second place of living.

146 Consequently we do not accept the interpretation that Mr O’Brien sought to put on the evidence, that Ms Cheung had two places of living; and she was entitled therefore to stand for Council as one of those places of living was in South Ward.

147 This is not a situation as is seen in some tax cases. The tax cases deal with taxpayers who carried on business in different parts of the country or the world, and spent substantial periods of the year living in the vicinity of the business, sometimes moving with their families for the season or period that they are working in the other place. Sometimes they leave their family in one place and move back and forth.

148 Accordingly in our view, Ms Cheung should be dismissed from civic office. She was not eligible to nominate or be elected.

Costs

149 The Tribunal may order costs. Section 329(6) provides:

‘(6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.’

150 There is an application for costs by the applicant. We reserve our decision.

1. Applicant to make submissions in writing by 10 February 2006.
2. Respondent to reply within 14 days.

Order
1. The Tribunal orders that the respondent be dismissed from the civic office of Councillor, Municipality of Ashfield.

2. Parties to make submissions on the applicant’s application for costs, in accordance with directions.