RESIDENTS may avoid going back to the polls for an Orange City Council by-election if Cr Kevin Duffy’s decision to appeal his dismissal from office is successful.
The Administrative Decisions Tribunal (ADT) ordered Cr Duffy’s dismissal on December 9 after it upheld a complaint lodged by John Da Rin and found at the time of his nomination for council the former Cabonne councillor was ineligible for election as he was not a resident of the Orange local government area.
Since then Cr Duffy has continued in his role as an Orange councillor and on Friday lodged an appeal with the Supreme Court following advice from his solicitor.
He believes it could take three to six months for the Supreme Court to decide on the appeal, while the barrister representing Mr Da Rin, Duncan Brakell, believes it is unlikely to be heard until April.
In the meantime, Cr Duffy will remain on the council.
“We were extremely surprised and disappointed [at the dismissal],” Cr Duffy said.
“We were very confident before.”
Mr Da Rin’s application for Cr Duffy to pay more than $63,000 in legal costs is still pending before the ADT and Cr Duffy risks adding to his legal bill if the Supreme Court action is unsuccessful, but he says he is bankrolling the appeal on his own.
“I do think it’s worth it because we disagree with the decision and that’s what the case is,” he said.
“There will be no winners in this situation, the ratepayers will lose out hugely it could be between $100,000 and $120,000 for another election.”
Mr Da Rin said he was unsurprised Cr Duffy had chosen to appeal, but believed it would be difficult for the councillor to retain his place on the council.
Under the Local Government Act, Cr Duffy’s appeal must be based “on a question of law”, not on a matter of fact, which Mr Da Rin believes will make it “a lot tougher” for the appeal to be upheld as both parties had agreed the case was based on a similar case when an Ashfield councillor was dismissed from office.
“He’s not the sort of person that would lie down, [but] he would be maybe leaving himself open to other evidence being provided,” he said.
“He’s appealing because he wants to string this out as long as he can... his barrister obviously feels a different judge will look at this differently which surprises me.”
Since the ADT handed down its decision, Cr Duffy has been cagey about where lives, but on Friday said he was still living with his son and purchased a home in Dalton Street as an investment in early 2013 making him eligible to recontest is seat if a by-election is called.