Council’s legal costs revealed in long-running election case
A councillor that acted for one of the parties in the long-running Central Ward court case has criticised the council’s almost $100,000 spend so far. See the timeline.
The Adelaide City Council has spent about $97,000 on legal costs so far regarding the matter of Alexander Hyde v Electoral Commissioner, Jing Li that is before the Court of Disputed Returns.
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.
Adelaide City Council is not a party to the case but has sent a lawyer to attend more than 40 separate court hearings between December 16, 2022 and March 7, 2025, costing $25,816.
The council has also paid $70,830.53 in further costs relating to legal advice about the matter.
South Ward Councillor Henry Davis, a tax lawyer, said these costs were “unbelievable”.
“For the council to spend $100,000 it may well be legitimate, and it may well have been necessary, hence why I asked for report as to why the administration thought it was appropriate to spend $100,000 on a matter when we didn’t make a single submission to the court or produce a single affidavit or prepare any documents for the matter,” Davis said.
At the Adelaide City Council meeting on Tuesday, Davis moved that the council seek legal advice about recovering these costs from “any parties responsible for the election illegalities”.
InDaily can reveal Davis was previously on retainer for Hyde in the legal proceedings and told then-CEO Clare Mockler in 2023 that he should “always be excluded from any conversation regarding the proceedings”.
Davis told Mockler he was acting for Hyde on a “limited retainer for the purposes of investigating some matters relating to the proceedings”, which ended on June 19, 2023.
Councillor Janet Giles told the meeting on Tuesday that the council decided it would not be a direct party to the court proceedings, a decision Davis missed because he had a conflict of interest.
Davis told InDaily he does not currently have a conflict of interest, he has never been paid by Hyde, and his actions in the past month are acceptable because “the proceedings are over”.
A judgement was handed down in March, but the judge has reserved his orders, with the matter returning to court on Friday.
This is Davis’ second attempt since March for the council to act on the matter.
He first expressed his intention to rescind appointments from all Central Ward councillors who could face re-election and called a special council meeting that didn’t go ahead last month due to a lack of quorum.
Davis told InDaily his questions for the council are “forward looking” and “there’s no advantage to me”.
“It’s a separate matter, right? So, if I was moving a motion to pay myself money, for example, then, then that would be a conflict but the matter at hand is, what do we do going forward, not what has happened in the past,” he said.
Davis said he filed an application in June 2023 for Hyde for discovery of documents “because [Hyde] needed it done quickly” and Davis “ceased to act in that matter quickly thereafter”.
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In an email from Mockler to Davis in June 2023, obtained by InDaily via a Freedom of Information request, Mockler wrote it was Davis’ responsibility to ensure he does not use any council information “which is not otherwise available to the public in furtherance of Mr Hyde’s petition or as part of your ‘investigation’”.
Davis maintains he has not used any legal information to his advantage in council nor any council information in his involvement in the proceedings.
Davis also requested the council adopt its caretaker policy, report a detailed breakdown of legal fees and rescind appointments of Councillor Jing Li from Adelaide Botanic High School and the Australia Day Council of SA.
Lomax-Smith did not accept the points about caretaker mode because it would be “ultra vires” and beyond the council’s policies.
She also did not allow rescinding appointments to be voted on in the meeting due to “procedural unfairness”.
Councillors Mary Couros, Arman Abrahimzadeh were in favour of Davis’ original intentions, but they did not get up.
The wording that eventually passed in the meeting said, “it is not proper practice to comment on or act on matters which are currently being considered by the court”.
Once the court orders are made, council will seek legal advice pertaining to any actions or costs, which be done confidentially if need be.
Councillors Phillip Martin and Keiran Snape participated in the vote but did not speak on the topic because they did not want to be seen doing anything that could offend the court ahead of its orders.
“A time-consuming exercise”: A timeline of the 2022 council election court action
If the court rules that there should be a by-election in Adelaide City Council’s Central Ward, that will mean seven councillors across two councils will have been affected by illegal practices or voting system errors in 2022.
Three separate instances of alleged illegal practices were identified after the 2022 council election, the most substantial taking place in Adelaide’s Central Ward that has been playing out in court between Hyde, the Electoral Commissioner and Li.
In preparation for the case, the Electoral Commissioner discovered an error in the computer system used to count votes, which affected three councillors in the Adelaide Plains. The court made it’s orders in the matter of the Adelaide Plains nearly two years after the election. The Central Ward matter is awaiting orders.
According to a report from the Electoral Commission of South Australia (ECSA), there were 570 total complaints received about alleged breaches of electoral law in the 2022 election period, up 53.6 per cent from the previous election year in 2018.
The timeline below maps out all the actions since the 2022 council elections.
14-20 October 2022: Voting material is mailed out to electors
November 2022: Two people are pictured opening ballot packs outside Morphett Street apartments
Photos of two unidentified men handling ballot packs outside Vision apartments on Morphett Street. Photos: supplied
- The pictures, published by The Advertiser in November, became a significant piece of evidence in the case of Hyde v Electoral Commissioner, Jing Li.
- Li’s lawyers told the court there was no evidence they were holding Central Ward ballot packs, that they weren’t entitled to the ballot packs, or that they were connected to Li.
- Four CBD apartment blocks, including the Vision apartment building pictured, were the subject of investigation by ECSA.
10 November 2022: Voting closes
11 November 2022: ‘Voting irregularities’ identified
- Electoral Commissioner Mick Sherry announced he’s investigating ‘voting irregularities’ in three council elections, including 90 votes in Central Ward.
12 November 2022: Scrutiny and counting of votes begin
14 November 2022: Sherry says “criminal” activity was behind 23 rejected city council votes
28 November 2022: Final formal declaration of results, candidates notified
8 December 2022: The public is told of election results
15 December 2022: Rex Patrick announces he’ll fight Lord Mayor election results
Graphic: Jayde Vandborg
- Rex ran against Lomax-Smith for Lord Mayor and lost by 52 votes. He said Lomax-Smith ran a “professional and respectful campaign” but was taking the matter to the Court of Disputed Returns to address whether voting irregularities impacted the count.
- Rex enlisted the help of Davis as his instructing solicitor. Rex told InDaily in 2022 that Davis offered his services “pro bono”.
30 March 2023: Davis opts out of council briefings on the Hyde v Electoral Commissioner, Li proceedings
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June 2023: Davis files for discovery of documents for Hyde
19 June 2023: Davis alerts council he is no longer acting for Hyde
- In a confirmation sent June 26, Davis told Mockler that though his retainer with Hyde has ended, he “should always be excluded from any conversation regarding the proceedings”.
5 October 2023: Adelaide Plains Councillor John Lush resigns
- This leaves a vacancy on the council and triggers a byelection.
- Since Lush resigned within 12 months of the last election, the seat was filled by recounting votes from the 2022 election.
- Carmine Di Troia was the successful candidate.
December 2023: ECSA discovers a computer error that affected Adelaide Plains elections
- The error was discovered while preparing for the City of Adelaide Central Ward court matter.
- The error was in the settings for computer counts for 25 elections, it did not affect the candidates elected in 24 of these elections.
February 2024: Electoral Commissioner files with the court
- Commissioner files two petitions with the court after identifying an error in the settings of the computer software used to count votes.
- This affects three Adelaide Plains councillors, two who were elected in 2022 and Di Troia.
23 January 2024: Hyde tells court he ‘may not’ stand for council again
Hyde is a former Deputy Lord Mayor of Adelaide and is the current state director of the SA Liberal party. Photo: Tony Lewis / InDaily
- Hyde made the comment while giving evidence in the Court of Disputed Returns in his case against the Electoral Commissioner of South Australia and Central Ward councillor Jing Li.
31 January 2024: Commissioner defends ‘ad hoc’ scrutiny measures of disputed ballots
- Sherry made the comments while giving evidence in the Court of Disputed Returns.
2 February 2024: Closing arguments are heard for Hyde v Electoral Commissioner, Li
17 April 2024: Hyde bids to reopen case to allow City of Adelaide emails to be received as evidence
6 May 2024: Emails and WeChat messages are produced and translated from Mandarin
- Hyde’s lawyers argued the communications show Li facilitated the voting of about 593 non-citizen residents in the 2022 council election.
- Li’s lawyers said the emails and messages do not reveal any illegal practices.
- Lawyers for the Electoral Commissioner said this was a “time-consuming exercise”.
17 September 2024: Judge agrees to reopen case to include new documents
2 December 2024: Court rules in Adelaide Plains case
- The Court declared Terry-Anne Keen and Eddie Stubing not duly elected in the November 2022 council elections due to a computer error.
- The court declares Councillors Mel Lawrence and Brian Parker duly elected, and they are sworn into council on December 2.
- “It is unfortunate that both the Council and the good folk caught up in these proceedings, through no fault of their own, have had to endure 12 months of uncertainty before a determination could be handed down,” Adelaide Plains CEO James Miller said at the time.
19 December 2024: Court rules for third affected Adelaide Plains councillor
- Carmine Di Troia, who was elected October 2023 after another councillor resigned, is declared not duly elected.
- A recount is ordered by the court.
9 January 2025: Adelaide Plains councillor re-elected
Terry-Anne Keen
- Terry Anne Keen is duly elected as the newest councillor of Adelaide Plains, replacing Carmine Di Troia’s old seat after the court found Di Troia not duly elected.
- Keen was one of the councillors who was found not duly elected in the original November 2022 election but did receive enough votes in the recount for the seat that was vacated in October 2023.
7 March 2025: Judge rules illegal practices did impact the 2022 Adelaide City Council election
“I am satisfied on the balance of probabilities that more than 24 votes were cast in favour of the second respondent where there had been illegal practices,” the judgment read.
11 March 2025: Davis calls for a special meeting to rescind appointments of Central Ward councillors
(L–R) Deputy Lord Mayor David Elliott, Simon Hou, Jing Li, Carmel Noon are the four Central Ward Councillors who could be facing a by-election. Pictures: City of Adelaide
- Davis gives notice that he intends to call a special meeting to rescind appointments from all Central Ward councillors and that the council should be put into caretaker mode ahead of the court’s orders.
- Three other members were elected to Central Ward in 2022, Deputy Lord Mayor David Elliott and councillors Carmel Noon and Simon Hou.
- Elliott, Noon or Hou have not been accused of any wrongdoing.
04 April 2025: Lawyers for Li ask for the long-running case to be reopened
- Hyde’s lawyer calls it a “Hail Mary”.
- At the court hearing on April 4, Noon requested to be exempt from participating in a by-election.
