‘Hail Mary’ attempt to reopen council court case
Lawyers for Adelaide City Councillor Jing Li asked for the long-running council election court case to be reopened in what former councillor Alexander Hyde’s lawyer called a “Hail Mary”.
On Friday, Li’s lawyer Mark Hoffmann KC asked District Court Judge Michael Burnett to reopen the case rather than declare the 2022 Central Ward election void.
This comes after Judge Burnett’s ruling last month that on the balance of probabilities, illegal practices did impact the council election.
Jing Li was elected as a Central Ward councillor at the last council election in November 2022, winning against Hyde, a former Deputy Lord Mayor and current SA Liberal Party director, by 24 votes.
Hoffmann said they identified “misapprehensions” in the findings and that the judgment’s reference to “unascertained” votes were grounds to reopen.
“We’ve identified what appears to be misapprehensions or inconsistencies in the reasons and we do so with great respect,” Hoffmann said in court on Friday.
Hyde’s lawyer, Simon Ower KC, opposed Hoffman’s application to reopen, calling it a “Hail Mary pass”.
“This is what the Americans call, in North American gridiron, a Hail Mary pass,” Ower said.
“At the end of the game, the ball is being thrown in order to try [to] achieve a different outcome.”
The judgment reads that there were an “unascertained number of ballot papers collected and filled in” by Trinity Zhang.
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Hoffman said the conclusion about Zhang’s involvement was founded on “hearsay evidence”.
Zhang doesn’t face any charges in this matter.
Councillor Carmel Noon, who could be affected if the court orders a by-election, told the court that Zhang is “absolutely, profusely denying this”.
Noon presented an affidavit from Zhang, which said the content of the Judge’s report and subsequent media coverage has caused him distress.
“All of a sudden, he sees himself in a report, he sees himself in an article in the Australian on Monday, he’s suffering severe mental health issues,” Noon told the court.
Judge Burnett said unless Noon was applying to reopen the case, which would be “unusual” given she was not party to the proceedings, Zhang’s affidavit isn’t relevant to her submission.
“You can’t just put an affidavit forward to say things are different unless your application was to reopen the case in some way, except if it’s someone who hasn’t been a party to the proceedings it would be a very unusual application to make,” Judge Burnett said.
Judge Burnett reserved his decision, and the matter will return to court Friday, April 11.
Affected councillors
(L–R) Deputy Lord Mayor David Elliott, councillors Simon Hou, Jing Li, Carmel Noon. Pictures: City of Adelaide
Noon, Li, Deputy Lord Mayor David Elliott and Councillor Simon Hou were elected to Central Ward in 2022.
Elliott, Noon and Hou have not been accused of any wrongdoing.
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During Friday’s hearing, Noon became a joint party to the court proceedings to make a submission as a councillor that could be affected by the orders.
She requested to be excluded from participating in a by-election and said she was “duly elected”.
“I was duly elected in 2022, I was the first one elected and had nothing to do with the illegal ballot papers, and I would like to be removed from the decision if the Central Ward is going to be affected,” she said.
“I do think byelection is of great cost to ratepayers and we actually have another election coming up within 18 months and that really concerns me as a councillor that our ratepayers will be footing the bill twice.”
Ower told the court there should be a supplementary election for all positions in Central Ward.
He said that there is an “insufficient basis” to “isolate” Noon or any one member and exempt her from a potential re-election.
Alison Doecke KC, representing the electoral commissioner, told the court it is appropriate for a supplementary election to be held.
Councillor attempts to put council into ‘caretaker mode’
Councillor Henry Davis called a special council meeting on March 25, requesting that the council be put into caretaker mode and rescind Elliott’s appointment to the Deputy Lord Mayor position and Noon’s role as chair of the council’s City Planning, Development and Business Affairs Committee.
These roles are remunerated, and Davis previously told InDaily it would be “unfair” for the councillors to continue in roles of authority when a by-election could be called.
According to the Local Government (Elections) Act, councils are only required to commence caretaker mode – a period where no major decisions are made by elected members – ahead of general elections.
The Adelaide City Council has not previously commenced caretaker mode for supplementary elections.
Davis failed to raise a quorum, so the special meeting did not go ahead on March 25 .
Councillors Mary Couros, Arman Abrahimzadeh, Mark Siebentritt and Lord Mayor Jane Lomax-Smith were the only elected members in attendance.
Councillors Phillip Martin, Janet Giles and Keiran Snape did not attend the special meeting and said it was because it would be “inappropriate” given that the matter remains before the court.
“We were mindful of acting in a way that would not offend the court,” they said in a statement.
Councillors Noon, Elliott and Hou did not attend because it would be a conflict of interest given that the matter involved their seats.
The matter will return to the council meeting on Tuesday, April 8.
