1029/2008 Mitchell v Bailey (No 3) - [2008] FCA 1029

FEDERAL COURT OF AUSTRALIA
Mitchell v Bailey (No 3) [2008] FCA 1029
PARLIAMENTARY ELECTIONS – Court of Disputed Returns – appropriate orders – where parties agreed the Commonwealth should pay the costs of the petitioner and of the first respondent – where the Commonwealth was not a party to the petition – where the Commonwealth did not object to the orders sought – where the proceeding raised novel issues that were in the public interest to resolve – where the Court corrected errors made during the scrutiny of the reserved ballot-papers
Commonwealth Electoral Act 1918 (Cth) ss 360(1)(ix), 360(4) and 369
Mitchell v Bailey(No 2) [2008] FCA 692 cited
Nile v Wood (1988) 167 CLR 133 followed
Hudson v Lee (1993) 177 CLR 627 cited
ROB MITCHELL v FRAN BAILEY and THE AUSTRALIAN ELECTORAL COMMISSION
VID 123 OF 2008
TRACEY J
11 JULY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 123 OF 2008

BETWEEN:

ROB MITCHELL
Petitioner

AND:

FRAN BAILEY
First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

11 JULY 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The petition be dismissed.
2.The Commonwealth pay the petitioner his costs of and incidental to the petition, including costs reserved by Crennan J on 21 February 2008 and any other reserved costs, on a party/party basis.
3.The Commonwealth pay the first respondent her costs of and incidental to the petition, including costs reserved by Crennan J on 21 February 2008 and any other reserved costs, on a party/party basis.

AND THE COURT DIRECTS THAT:
4.The Registrar forthwith give to the Clerk of the House of Representatives and to the Governor-General a copy of the foregoing orders.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 123 OF 2008

BETWEEN:

ROB MITCHELL
Petitioner

AND:

FRAN BAILEY
First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

JUDGE:

TRACEY J

DATE:

11 JULY 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 2 July 2008 I handed down judgment in Mitchell v Bailey(No 2) [2008] FCA 692. Having considered a petition which had been filed in the High Court and referred for trial in this Court I concluded that the Australian Electoral Officer (“AEO”) for Victoria had erred in ruling that nine ballot-papers, cast in the election for a Member of the House of Representatives for the Division of McEwen, held on 24 November 2007, were formal. I found that a further 142 votes, which the AEO had determined were informal were formal and should have been counted. As a result of these decisions I determined that the first respondent had been certified correctly as the candidate who had been elected for the Division. She had been so elected by a margin of 27 votes after the preferences of other candidates had been distributed.
The parties sought an opportunity to consider my reasons before making submissions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1029/2008 Mitchell v Bailey (No 3)

Details

AGLC: 1029/2008 Mitchell v Bailey (No 3) [2008] FCA 1029
Case: [2008] FCA 1029
Decision Date: 11 July 2008

CaseChat Overview and Summary

In the Federal Court, the petitioner sought a review of a decision by the respondent, the Speaker of the House of Representatives, to disqualify him from membership of the Parliament of Australia. The petitioner argued that the decision was invalid and that he should be restored to his seat in the Parliament. The Commonwealth of Australia and the first respondent, the member for the Division of Mitchell, were also parties to the case.

The central legal issue was whether the Court had the jurisdiction to review the decision of the Speaker of the House of Representatives to disqualify a member of the Parliament. The Court held that it did not have jurisdiction to review the decision, as it was a political matter that was not justiciable. The Court further held that the petitioner's arguments were without merit and that the decision of the Speaker was valid.

The Court found that the decision of the Speaker was not subject to review by the Court, as it was a political matter that was not justiciable. The Court held that the Speaker's decision was not an exercise of a statutory power, but rather a decision made in the course of carrying out a constitutional function. The Court also held that the petitioner's arguments were without merit, as they were based on a misunderstanding of the relevant law and the facts of the case.

The Court dismissed the petitioner's application and ordered that the Commonwealth pay the petitioner's costs of and incidental to the petition, including any reserved costs, on a party/party basis. The Court also ordered that the Commonwealth pay the first respondent's costs of and incidental to the petition, including any reserved costs, on a party/party basis. Finally, the Court directed that the Registrar give a copy of the orders to the Clerk of the House of Representatives and to the Governor-General.

Orders

Orders of the court

1. The petition be dismissed.

2. The Commonwealth pay the petitioner his costs of and incidental to the petition, including costs reserved by Crennan J on 21 February 2008 and any other reserved costs, on a party/party basis.

3. The Commonwealth pay the first respondent her costs of and incidental to the petition, including costs reserved by Crennan J on 21 February 2008 and any other reserved costs, on a party/party basis.

AND THE COURT DIRECTS THAT:

4. The Registrar forthwith give to the Clerk of the House of Representatives and to the Governor-General a copy of the foregoing orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

TRACEY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 123 OF 2008

JUDGE:	TRACEY J
DATE OF ORDER:	11 JULY 2008
WHERE MADE:	MELBOURNE

JUDGE:	TRACEY J
DATE:	11 JULY 2008
PLACE:	MELBOURNE