Melbourne Lord Mayor Robert Doyle is a step closer to seizing majority control of Victoria’s capital city council after this decision by VCAT president justice Greg Garde yesterday, which overturned an earlier decision by magistrate Michael Smith at the Municipal Electoral Tribunal.

As was explained in this Crikey piece in December, the courts are attempting to resolve how the 11th City of Melbourne councillor will be selected. Indigenous candidate Brooke Wandin was an unexpected successful candidate in the October elections, but then she resigned after the Victorian Electoral Commission declared her elected but before she was sworn in or held office.

Wandin’s former running mate, defeated Labor councillor Richard Foster, dobbed her in to the Victorian Electoral Commission for being incorrectly enrolled as a resident at his house in Kensington just hours after she was declared elected. (Wandin actually lives in Healesville, near the Coranderrk Aboriginal reservation to which her great, great uncle William Barak and his fellow Wurundjeri people were shunted off by the colonial invaders in 1863.)

As a result of the incorrect enrolment, both Foster and Wandin are facing criminal charges in the Melbourne Magistrate’s Court next month, and the VEC is arguing that there should be a recount, which assumes she had withdrawn from the contest before the election.

The majority of councillors in the previous council were not residents in the City of Melbourne, and Brooke Wandin wasn’t aware there was a problem with her enrolment when she was declared elected. She only declined to attend the swearing-in ceremony two days later when there was suddenly all this talk, partly driven by the Lord Mayor, that she might go to jail if she didn’t quickly confess to her sins.

Wandin’s decision not to get sworn in may prove pivotal in delivering Robert Doyle his cherished majority, because the VEC is emphasising that she never actually held office.

As The Age reported yesterday, Wandin’s running mate on the “Indigenous Voice on Council” ticket was Nic Frances Gilley, a former CEO of the Brotherhood of St Laurence in Australia. He is likely to be elected to replace Wandin in both the recount and the count-back scenario.

However, under the recount method proposed by the VEC and supported by Justice Greg Garde yesterday, the City of Melbourne’s complex system of Senate-style group voting tickets is also likely to result in existing councillor Michael Caiafa getting ousted from his seat and replaced by Team Doyle’s No. 4, Susan Riley.

This is different from all previous senate recounts and count-backs ordered by the High Court (including the recent case involving former One Nation senator Rod Culleton), which have only been about replacing one candidate, not throwing all the preference sequences up in the air again.

Caiafa is a Queen Victoria Market trader who received the fourth highest primary vote of 7.76% running on Phil Cleary’s ticket. The quota is 10%. If he is ousted after receiving 5617 votes and the system replaces him with the running mate of an ineligible candidate who only received 14 below-the-line votes, there will be howls of protest — and a likely Supreme Court challenge from the Cleary camp.

The recount will be conducted at 2pm tomorrow and then interested parties will have until 4pm on Friday to seek leave to join the proceedings, which will resume before Garde at VCAT at 10am next Tuesday.

However, Garde’s decision to set aside Smith’s decision and order the VEC’s preferred recount seemed quite ominous for the Cleary camp, although he didn’t go into the detailed legal arguments covered in the original decision by Smith, which rejected the VEC’s proposal for a recount and instead ordered a count-back.

The delay in selecting the 11th councillor is already influencing decisions at City of Melbourne because it has temporarily given Team Doyle majority control with the Lord Mayor’s casting vote if the vote is dead-locked at 5-5.

This has impacted homelessness policy also saw council lose quorum earlier this month when the five Team Doyle councillors declared a conflict on a planning item dealing with James Packer’s proposal to build the tallest building in the southern hemisphere on the banks of the Yarra.

This was because Crown Resorts director Harold Mitchell donated $10,000 to the Team Doyle campaign and members of the Australian Hotels Association have given close to $100,000 to the pro-pokies group over the past five years.

*Former City of Melbourne Councillor Stephen Mayne is a party to the VCAT proceedings and was not paid for this item. His submission to VCAT is available here.