- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Elisala v Electoral Commission Queensland & anor  QSC 273
ELECTORAL COMMISSION QUEENSLAND
JOEL GEORGE GAIDAN
Court of Disputed Returns
Supreme Court sitting as the Court of Disputed Returns
5 September 2012 (ex tempore)
4 September 2012
ELECTIONS – where candidates must have lived in their division for the two years preceding nomination – whether the elected candidate had complied with this requirement
Burnett Shire Council & Ors v Galley  QSC 490.
Re Kiwat  2 QdR 531.
Tanti v Davies (No 3)  2 QdR 602.
Local Government Act 2009 (Qld) s 152.
Local Government Electoral Act 2011 (Qld) ss 26, 144.
D de Jersey for the applicant
C Klease for the first respondent (written submissions only, no appearance at hearing)
R Perry SC for the second respondent
MacDonnells Law for the applicant
Crown Solicitor for the first respondent (written submissions only, no appearance at hearing)
Miller Harris Lawyers for the second respondent
HIS HONOUR: The second respondent, Mr Joel Gaidan, was the only candidate for election as councillor for Division 2 of the Torres Strait Island Regional Council in the local government election held on Saturday, 28 April 2012. Division 2 is the small Torres Strait island, Dauan Island, located nearby to Saibai Island, not far from the Papua New Guinea mainland.
Subsequent to the election, the returning officer gave notice that Mr Gaidan was elected unopposed. Mr Terenzo Elisala disputes the election of Mr Gaidan before this Court of Disputed Returns. He asserts Mr Gaidan was not qualified to be a candidate because he had not, for the two years preceding the election nomination day, lived in the division, a requirement of qualification contained in s 152(3)(c) of the Local Government Act 2009 (Qld). He seeks orders that Mr Gaidan be taken not to have been elected and that a new election be held.
This is one of three similar applications arising out of the local government elections in the Torres Strait held earlier this year. Prior to this week, I had already decided one such application - see Bero v Electoral Commission of Queensland & Anor  QSC 222. In that matter, I engaged in a lengthy analysis of the relevant law. I will here adopt the applicable legal principles identified in Bero without reciting the analysis in full. This matter was, for convenience, heard in conjunction with, though as a separate application from, the third of the applications I have mentioned, namely Day v Electoral Commission of Queensland & Noah (438 of 2012). I yesterday upheld that application and ordered a new election.
Before the hearing of any of the three applications, a preliminary point was raised as to whether the Court of Disputed Returns has jurisdiction to hear and determine the application. I ruled that it did - see Bero v Electoral Commission of Queensland & Anor; Day v Electoral Commission of Queensland & Anor; Elisala v Electoral Commission of Queensland & Anor  QCS 201 delivered 31 July 2012.
The critical factual issue in the proceeding arises out of s 152(3) of the Local Government Act which provides:
"A person is qualified to be another councillor of the Torres Strait Island Regional Council only if the person:
(a)Is an Australian citizen; and
(b)Is a Torres Strait Islander or an Aborigine; and
(c)On the nomination day for the election has lived in the particular division for which the person is to be candidate for the 2 years immediately before the nomination day; and
(d)Is not disqualified from being a councillor because of a section in this division."
To attract this Court's intervention, the applicant must prove that Mr Gaidan had not lived on Dauan Island in the division for which he was to be a purported candidate for the two years immediately proceeding 27 March 2012, the nomination date.
In Bero, in interpreting the meaning of s 152(3) and the words "lived in the … division … for the 2 years immediately before the nomination day", I had regard, inter alia, to the purpose of the provision and the context in which it appears in the Act. In particular, I noted there is no similar requirement to s 152(3) and s 152(1) which relates to councillors of local governments other than the Torres Strait Island Regional Council.
Why was such a qualification introduced? On one view, the high mobility of those who live in the Torres Strait as between other islands and the mainland would arguably make this qualification more difficult to meet for the Torres Strait Island Regional Council than many other Queensland councils.
However, the Torres Strait islands are remote compared to many other Queensland council regions and it is unsurprising that it is regarded as important that its councillors actually live in those remote islands in order to maintain a properly informed connection with the islands and Islanders they represent and maintain a properly informed understanding of the cultural circumstances which have evolved in those remote islands.
Reflecting that special aspect of the Torres Strait Islands local government area, the explanatory notes in respect of the Local Government Bill 2009 said of this newly introduced qualification:
"These additional qualifications reflect the cultural and other circumstances of this council and the representation by councillors who understand this”.
Text and context
A consideration of the text and context of the provision tends to confirm the purpose of the provision is to ensure candidates have actually lived in the division for a prolonged period of time preceding nomination. As I observed in Bero:
“The meaning of "lived" in s 152(3) does not fall to be considered in isolation. Context is important. The words "lived in a particular division for the two years immediately before the nomination day are all important. They require the person to have actually lived in a geographic sense in the division and done so for the two year period. This underscores the need to have regard to the reality of where the person lived and not merely their subjective view of where their place of residence was or where it was they called home”.
I referred in Bero to Tanti v Davies (No. 3)  2 Qd R 602 in reasoning that the critical question must surely be where as a matter of objective fact was the nominee living, not where did he want to live.
There may be circumstances during a two year period where a person who lives at one place may be occasionally absent from it, staying elsewhere from time to time during that two year period. Would that mean the person has not lived at the place for two years?
The question is one of degree, as was observed by Holmes J in Burnett Shire Council & Ors v. Galley  QSC 490. Her Honour observed at paragraph 41:
"While I accept that the word “lives” must not connote the same degree of permanence as ”resides”, I consider that there must be some element of continuity in a person's occupation of premises for the purpose of eating, sleeping, bathing and carrying on the other activities of everyday life to warrant a conclusion that he or she lives there. It is a question of degree whether a use of premises short of daily occupation is of sufficient proportions to amount to living there”.
Duration of absences
An important aspect of that question of degree is the duration of a person's absence from the place they are allegedly living at. That aspect was considered by Dowsett J in Re Kiwat  2 Qd R 531. That matter was concerned with residing rather than living at a place, although it was dealing as here with a two year requirement. In the course of his decision, Dowsett J referred to the approach of Williams J in the matter of O'Brien, No 6 of 1985, Cairns Registry, judgment delivered 20 March 1985, where there was an absence for all of a six month residency qualification period. In contrast, in Kiwat it was an absence from the island residence totalling six months over two years, in pursuit of trochus diving work, the calling of the relevant nominee.
Kiwat was concerned with residency rather than living somewhere, but it demonstrates how lengthy absences may not necessarily detract in a determinative way from the force of other evidentiary indicia which tends to indicate a person is still remaining living in a place. It is useful to bear firmly in mind the evidentiary indicia or detail associated with actually living somewhere to determine the nature or quality of Mr Gaidan's presence on the island.
This is a case in which there was strong evidentiary indicia that Mr Gaidan was living at Dauan Island. Indeed, it is not disputed he had lived there for many years. It is unnecessary to recite that evidence, and sufficient to emphasise that he had for many years lived there, in what was, on any view, the longstanding family home of him, his wife and his children.
Time does not stand still for any family though, and over time their older children went off to boarding school at Townsville. Then their youngest child, as a result of athletic prowess, had an important opportunity to attend school in Townsville, though not as a boarder. The decision was taken that Mrs Gaidan would move to Townsville and live there with the daughter who was to be attending school there.
The applicant's case is that Mr Gaidan moved with them and thus ceased living on Dauan Island. The second respondent's case is that he went to Townsville occasionally, but remained living on Dauan.
The evidence of both sides is vague in differing respects. Further, perhaps because there was evidence-in-chief by way of affidavit, neither side's witnesses were the subject of direct challenges. That is, there was little cross-examination from either side taking their opponent's witnesses to task directly on their key points of difference. As unfortunate as that is, it is necessary to determine the case based on the evidence which has been adduced before me. In any case where the evidence overall is not particularly precise, it is, of course, important not to speculate and equally important to bear in mind that the applicant carries the onus of proof on the balance of probabilities.
Mr Elisala deposed in his affidavit:
"Prior to 2009, when the TSIRC was established, and there was still the Dauan Island Community Council, Mr Gaidan and his family lived on Dauan Island.
Around this time, Mr Gaidan and his family moved to Townsville for a family matter. For the last two Christmas breaks he has come to Dauan Island for holidays and stayed for a few weeks and maybe up to a month.
Dauan Island is a small community and everyone knows when someone arrives at Dauan Island or leaves Dauan Island.
Mr Gaidan lived in Townsville until a couple of days prior to the election on 28 April 2012, Mr Gaidan moved back to Dauan Island and started residing in the house where he had previously lived.
Mr Gaidan's family is still living in Townsville."
It is important that I not read this evidence as if Mr Elisala is making the legal judgment of whether or not a person was living at a place. What is called for from a witness is not the judgment I have to make, but the information that can allow me to make it. Observations such as "Mr Gaidan's family is still living in Townsville" are, with respect, unhelpful without more. It is the facts not the conclusions the witness has drawn that are relevant. As is apparent from the above passage, there is little factual detail proferred. That is not to criticise Mr Elisala or his lawyers, because the difficulty with evidence of this kind is that it is calculated at proving a negative.
The difficulty remains, though, that despite the small size of the island, people who think they know the business of others may be wrong. Where all bar one member of a household move away, people might wrongly perceive the whole household has gone. Where one member of a household does stay and has health problems, the signs of the individual’s presence may not be as obvious as the presence was when that individual was healthy, and other family members were living there with him.
Here, it is clear that the march of time caught up with Mr Gaidan, not only because his children's education progressed and saw them leave, but because of Mr Gaidan's health issues. During the era of concern he endured a health saga relating to his knee which required an operation. That was not his only health problem. Other health issues likely to reduce his activity levels are the subject of records of his attendance on the local medical clinic on 28 May 2009, 16 July 2009, 3 January 2011, 8 January 2011, 11 January 2011, 1 February 2011, 6 September 2011, 5 April 2012, 5 May 2012. Obviously the earlier and the latter dates fall outside the period I am directly concerned with.
For completeness, I note there is also a record for 21 December 2010, but it is susceptible to a reading that it may have been a record made as a result of a telephone consultation. There is no real doubt that the other dates I mentioned relate to physical attendances at the clinic, save for 11 January 2011 which expressly makes reference to a home visit upon Mr Gaidan.
These records suggest Mr Elisala either missed or forgot a presence other than at Christmases, namely the presence in September 2011. More importantly, they explain in conjunction with the knee problem why Mr Elisala might not have seen Mr Gaidan about the place despite Mr Gaidan being home. They also explain why Mr Gaidan's house, particularly the lawn and garden, may have appeared not to have been regularly attended to.
David Elisala deposed, inter alia:
"In 2009, Joel moved to Townsville with his family.
Prior to moving to Townsville Joel's wife was employed by the Dauan Island Community Council. In 2009, the Dauan Island Community Council was replaced with the Torres Strait Island Regional Council and Joel's wife lost her job.
Prior to moving to Townsville Joel was a Chairperson of Dauanalgaw, a Native Title Body. I became a director of Dauanalgaw in 2009 and at that time Joel told me he was leaving the organisation and would be residing in Townsville.
After Joel moved to Townsville the organisation tried to contact Joel to seek assistance with an issue the organisation was involved in. We did not have any contact details for Joel and the only communication we had was with Joel through his brother, Jeffrey Gaiden (sic).
I am aware that after moving to Townsville Joel visited Dauan Island occasionally. Joel would visit for a week or two at a time. I did not always see Joel during his visits but the island is a small community and I was usually told when Joel was on the island".
As to David Elisala's reference to Mr Gaidan telling him he was leaving the organisation and would be residing in Townsville, it is not given with precision other than it was in 2009. As is readily apparent from the evidence, there is no doubt that Mr Gaidan was in Townsville for an extended period in 2009. The difficulty for the applicant, of course, is that is not the period with which I am concerned.
The state of the evidence of David Elisala is also detracted from because, on analysis, the entirety of the information advanced about the organisation trying to contact Mr Gaidan through his brother appears to be hearsay. It is also lacking in logical force given the absence of any information, one way or the other, as to what the actual communication was with the brother, when it was and thus what, by way of inference, should have resulted. Evidence of this nature is too vague for an application of this kind.
A further aspect of David Elisala's evidence that is obviously problematic is the proposition that he did not always see Mr Gaidan during his visits, but was usually told when he was on the island. The difficulty is one does not know what one does not know. The assumption that Mr David Elisala must always have been told something about when Mr Gaidan was at the island is unsustainable.
That much seems to have been conceded by him in evidence. He was asked in cross-examination, "You have really no idea, do you, how often Joel came to the island after 2009?" His response was, "No”. The tone with which it was delivered made plain that he was agreeing, he really had no idea. It was a reasonable concession to make.
The third witness relied upon by the applicant was Thomas Mooka who deposed:
"A few years ago Joel left Dauan Island and moved to Townsville. Joel did not tell me he was moving but Dauan Island is a small community and everyone knows when someone arrives at Dauan Island or leaves Dauan Island.
After Joel moved to Townsville he would return to Dauan Island occasionally to visit for a week or so. Joel would then return to Townsville.
Joel has a property on Dauan Island where he would stay during his visit.
I would drive past Joel's house every one or two months and saw that there was no-one living there.
Until 10 July 2012, I was a Shop Assistant at the local IBIS shop and Joel would regularly visit the shop when he returned to Dauan Island or I would see him at the other shop on Dauan Island or at the Council office so I knew when Joel was visiting Dauan Island”.
As to the latter chain of logic, he agreed in cross-examination that it is not unheard of for people to enlist others to go to a store to buy groceries on their behalf.
The presence in his affidavit of the proposition that he was not told by Joel that Joel was moving but that everyone knows when someone arrives or leaves, confronts the difficulties I have already discussed, particularly bearing in mind the significant change in living circumstances experienced by Mr Gaidan when he was at Dauan. Those circumstances include the fact that it was no longer a household of multiple persons, but rather just of him, and that he encountered health difficulties during the era, all of which would make it significantly less obvious to an observer driving by, one way or the other, whether someone was home.
In making those observations about the evidence from the applicant's witnesses, I do not for a moment suggest that they were in any way falsely representing what they understood to be the position. It is not a case in which I detect any obvious sign of dishonesty by any of the witnesses. The difficulty with their evidence rather lies in to what extent it provides reliable information as to whether in fact Mr Gaidan was living on the island.
It needs to be borne in mind to the extent that at least some of the evidence, albeit with the problems I have identified, tends to suggest significant periods of absence that it falls not to be considered in isolation, but to be considered in conjunction with the evidence of the second respondent's witnesses.
Turning to the second respondent's witnesses, it is obviously significant that on their evidence Mr Gaidan's physical home and its contents continue to be at Dauan. It was his wife who he helped set up with accommodation down in Townsville and he provided a car in that context. The only address that he changed was his driver's licence address.
This, he explains, was done to avoid difficulty with the police should he be pulled over there when he was driving. The unstated inference of course is that he foreshadowed that, in explaining to police that in truth he did not live in Townsville but was living at Dauan Island, it may become an encounter in which, depending on the personality of the police involved, he might not be believed. It is unsurprising that he thought it safer to avoid the risk of difficulty with a disbelieving police officer simply by ensuring that he held a licence that had a Townsville address. Thus he could, if pulled over whilst in Townsville, produce it and avoid unnecessary argument. While the applicant sought to make something of this evidence, my impression was that it was entirely unremarkable.
An important aspect of the second respondent's witnesses' evidence is chronology, particularly as to the time spent away, the duration and the reason. I found Mrs Gaidan's evidence markedly more helpful than Mr Gaidan's on this front. He struggled to provide evidence about movements as informative as his wife's evidence was. This is not to criticise Mr Gaidan, who explained his first language was not English.
My strong impression is that both were being truthful witnesses. Mrs Gaidan was simply able to better articulate the chronological detail than Mr Gaidan, although even of her it has to be said that it took some doing. There were signs of probable error both her affidavit and Mr Gaidan’s. To the extent that there were some inconsistencies between their oral evidence and affidavits, I had the distinct impression that flowed from the well-known challenge inherent in lawyers taking accurate statements from Indigenous or Islander persons rather than any dishonesty.
At worst for the Gaidans, the chronological sequence (to which I will shortly turn) was of dubious reliability only as to the fine detail. Despite the vagaries and inconsistencies in the evidence of the second respondent’s side, it was on any view more informative than the witnesses of the applicant. That is unremarkable as well. Mr Gaidan and his wife lived this experience. They do not, as the applicant's case does, rely upon what they expect they would have noticed and recalled about the activity of others; it is they who lived the activity. I do not think they lied or exaggerated in their evidence.
The general information I now recount is that which I am satisfied is reliable, although I appreciate, of course, the Gaidans do not carry the onus of proof.
In about August 2009, Mr and Mrs Gaidan travelled to Townsville with their youngest child in order to ensure that Mrs Gaidan and the child were provided with, and settled into, accommodation for the long-term purpose of Mrs Gaidan and her youngest child living in Townsville while the youngest child went to school. It appears that towards the end of that year, around Christmas, Mrs Gaidan broke her ankle and Mr Gaidan helped her whilst she recovered. He eventually went back to Dauan in around March or April of 2010.
Given the first movement down there was in August 2009, that constituted a very lengthy absence from Dauan Island. Had it fallen during the two year period the outcome of this case is concerned with, the outcome of the case might well be different. But it did not. None of the absences during the two year period with which I am concerned were of that duration.
It appears, then, that Mr Gaidan returned to Dauan in around March or April of 2010 and was there for a period that, at best, is likely to have been two months or so before returning to Townsville. He returned to Townsville in around May of 2010, coming back for a leg X-ray, but stayed longer because his wife developed an infection in her foot. Her admission and discharge dates are 19 May 2010 and 11 June 2010, respectively. Following her discharge, there was a recovery period at home for which Mr Gaidan stayed to assist her for a period. It appears he went back to Dauan in around September. So it is that the period I have just described whilst he was away from Dauan seems to have been approximately four months, driven, in the first instance, by his own medical needs and driven, in the second instance, by his wife's medical needs.
Having returned to Dauan in about September 2010, he returned to Townsville some time around October or November for a knee appointment and was there about three weeks. This was one of the areas of evidence that was to an extent ambiguous. At one stage of cross-examination it seemed there may have been two trips to Townsville at this stage, namely a return in September, and again a return in October/November in relation to the same knee problem. Ultimately that evidence is so confused, I take the view there was likely only a single trip around that October/November mark, lasting about three weeks. That then brings us to a cumulative total so far, during the period with which I am concerned, of about four months and three weeks.
Mr Gaidan returned to Dauan in around October/November 2010 through well into 2011. Indeed, as I have mentioned, the medical records demonstrate clearly that he was present on Dauan in January. He returned to Townsville in around March of 2011 for a knee operation. He stayed there for around six weeks to two months. I will estimate it to be two months for the purpose of the present exercise. That gives rise to a cumulative total so far, for absence from Dauan Island during the two year period, of six months and three weeks.
He returned to Dauan probably around May or June 2011. Before then, returning mid year back to Townsville for an appointment - a medical appointment again for his knee - for a period of around three weeks. Adding that absence to the cumulative total of absences gives rise to a running total of seven and a half months.
He then went back home to Dauan Island and remained there, it seems, for quite a while. Indeed, we know he was most certainly there in September because one of the medical clinic's records demonstrate that to be so. It appears he did not return to Townsville then until about January of 2011, bringing the children back for the purpose of them starting the new school year, from which it might be inferred the return trip was probably more towards late than early January.
He stayed, on the evidence, until March of 2011. He explained in evidence that he could not get back earlier and was really prohibited from getting back earlier because he could not afford the airfare. I estimate his period away in this visit to have been approximately two and a half months.
That, therefore, gives rise to an overall total of approximately 10 months away during the two year period. Mr Gaidan was away, on and off, for about seven and a half of those months while either he or his wife had medical problems that required treatment and nursing. He was away for two and a half of those months for the purpose of returning his children to start the new school year.
In my view, none of the evidence of Mr Gaidan's attendances in Townsville during the two year period of concern suggests that when he was back at Dauan Island during that two year period he was not living at Dauan Island. His home and his possessions of day-to-day living remained there. This reflects the reality he was living there, carrying on his daily life there. But were his absences of such a character and duration as to mean that during them, Mr Gaidan was not living at Dauan Island?
Both parties accept the section's requirement a person has lived in the division for two years ought not be read as requiring physical presence 24 hours a day, seven days a week, 365 days a year. To use an uncontroversial example, no-one would suggest a person who has travelled away from home on the island for a few weeks holiday on the mainland is, whilst on holiday, no longer living on the island.
This case presents three further examples:
(1) temporary absence to receive medical treatment, viz, the X-ray, the operation and the appointments of Mr Gaidan;
(2) temporary absence to support and nurse a loved one in need of medical treatment, viz, Mr Gaidan's support of his wife during her recuperation period;
(3) temporary absence to return children to school and start their new school year.
It will be appreciated the first two examples essentially relate to necessary medical treatment or associated recuperation. There may be instances where a person's absence for either of those purposes becomes so prolonged that it does result in a material change to where a person is living. At first blush, the overall period of seven and a-half months or so appeared particularly lengthy. However, it was not a single stretch of time and rather a series. That division emphasises it was really a series of unfortunate medical events which temporarily drew Mr Gaidan physically away from Dauan in each instance.
That they were clustered during the era I am concerned with was essentially a matter of medical fate. Mr Gaidan's absence for these purposes did not mean that during the absences he was not still living on Dauan Island. He was.
As to the third explanation for absence, starting children back at school, that would generally be an untroubling temporary absence in the present context. The problem here is the duration of the absence for that purpose extended plainly beyond what most people would regard as reasonably necessary for a family to get their children started afresh with a new school year away from home.
It will be recalled the absence was a period of about two and a-half months, rather than perhaps an absence of several weeks to a month; the latter absence being of the dimension one might regard as uncontroversial for the purpose of starting children into a new school year at another place.
The inference is inescapable that Mr Gaidan lingered longer than necessary to set the children up into the new school year. Mr Gaidan explained that he would have returned more quickly but for some financial difficulty in raising the price of his airfare. But for that evidence, I would have been inclined to conclude Mr Gaidan probably stayed on a little longer, essentially for a holiday for him with his family at Townsville. Such a finding would, in any event, have been consistent with a temporary physical absence from where he was living, rather than a change in where he was living.
As I mentioned in Bero, it is not to the point that a person may want to live somewhere but is involuntarily prevented from doing so. However, in this instance there was really no evidence either way to better inform the conclusion about whether what he was doing in Townsville for that two and a-half months was of such a nature as to show some material change so that because of an admittedly lengthy temporary absence Mr Gaidan should not be regarded during that time as a person who, nonetheless, lived on Dauan Island.
It is very much a question of degree and in this case may fairly be observed to be a finely balanced question of degree. I have approached the task with the consideration at the forefront of my mind that the ultimate question has to be whether or not the applicant has discharged its onus of proving that that absence or, indeed, any of the absences taken alone or collectively has the consequence that Mr Gaidan was not living at Dauan Island for the two years preceding nomination.
In all of the circumstances in this finely balanced question, I conclude that the applicant has not discharged that onus and that I ought not conclude, notwithstanding the absences, that during them Mr Gaidan was not living on Dauan Island.
In the circumstances, therefore, the application must be dismissed.
Costs are not sought, so no order for costs will be made.
My order is application dismissed.
- Published Case Name:
Elisala v Electoral Commission Queensland & anor
- Shortened Case Name:
Elisala v Electoral Commission Queensland
 QSC 273
05 Sep 2012
- White Star Case:
No Litigation History