THE Orange Ratepayers Association’s challenge to councillor Kevin Duffy’s eligibility to be a councillor is not dead yet, with investigations starting on a possible High Court appeal.
The NSW Court of Appeal found in favour of Cr Duffy on August 15, quashing the NSW Civil and Administrative Tribunal’s (NCAT) decision in December to dismiss him.
NCAT had found he was not a resident of Orange at the time of his nomination and had been irregularly elected.
While the Court of Appeal found NCAT had erred in law by awarding significance to Cr Duffy’s connections to his Borenore property against his physical occupation of his son’s house in Orange, the court could have also erred in law, according to barrister Duncan Brakell.
“We’ve engaged a senior QC in Sydney who will prepare written advice on whether an error of law was made and if it was made, we may make a special leave application to the High Court,” said Mr Brakell, who represents the association’s John Da Rin.
Mr Brakell said the Court of Appeal’s decision would affect electoral enrolment in NSW and Queensland if it went unchallenged, but the ratepayers association’s decision to proceed would come down to the QC’s advice in a week’s time and available finances.
Costs for the cases so far remain unresolved - NCAT has been instructed to overturn its decision to award costs for the first case to Mr Da Rin, while the Court of Appeal awarded costs for the second case to Cr Duffy.
Mr Brakell said it was likely the two parties would have to cover their own costs for the NCAT case, but a High Court challenge would halt those proceedings if it went ahead.
“If you succeed in the High Court, you get the costs all the way through,” he said.