AFTER months of court battles, councillor Kevin Duffy has won the right to remain on Orange City Council.
The NSW Court of Appeal handed down its judgment on Friday morning, quashing the NSW Civil and Administrative Tribunal’s (NCAT) decision in December to dismiss him.
Orange Ratepayers’ Association member John Da Rin contended he was not a resident of Orange at the time of his nomination and NCAT found Cr Duffy had been irregularly elected.
The decision to uphold Cr Duffy’s appeal means no $120,000 bi-election will be necessary and he will be able to serve the full council term to September 2016.
In addition, costs for the Court of Appeal case were awarded to Cr Duffy and NCAT’s decision in June to award costs from the earlier case to Mr Da Rin has also been set aside.
Due to the amount of time taken to resolve the challenge to Cr Duffy’s election, NCAT will be ordered to dismiss the matter and consider further applications for orders.
Justices John Basten, John Meagher and Julie Ward found NCAT approached the matter with the wrong understanding of Cr Duffy’s eligibility requirements.
“The error of the tribunal was to accord particular significance to connections with the Borenore property as diminishing the significance of physical occupation of premises at Orange,” the judgment said.
The judgement noted Cr Duffy only had to occupy the Orange residence for a month prior to the close of council nominations.
“It may be that short periods of absence during that relatively short period would be significant, but the mere fact that the place of living was not intended to be maintained permanently or indefinitely would not by itself preclude that place being a ‘place of living’ for the purposes of the Local Government Act,” it said.
Cr Duffy welcomed the decision and said it had come as a relief to his family.
“If there’s any good to come out of it, there should be a total review of the legislation on the eligibility to stand,” he said.
“In the cemetery in Orange, there are my great-grandparents, my grandparents, my parents and my daughter and Orange is where my doctor is and my work is - we need to be able to have a say in our community and change needs to happen.”
Barrister Duncan Brakell, who acted for Mr Da Rin, said it could be worth pursuing in the High Court of Australia and further discussions would occur during the next week.
“If it’s left unchallenged, it’s precedent binding on all the tribunals and courts from now on,” he said.
“You could stay in a place four or five nights a week with no intention of living there permanently and still be entitled to nominate for council and you only have to live there for a month - I can’t see how that could be your real place of living and yet that’s the outcome on the judgment.”
Orange Ratepayers’ Association president Colin Young said the association would support Mr Da Rin in the event costs needed to be covered.