Abbotto v Cwealth Electoral Comm - [1997] HCATrans 117

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
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Melbourne VIC 3001
Phone (03) 9672 5608
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  O/N 9631
  A 27.5.97
  A 29.5.97

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF DISPUTED RETURNS

MELBOURNE OFFICE OF THE REGISTRY

No. M37 of 1996

BETWEEN:JOHN MURRAY ABBOTTO

Petitioner
- and -

AUSTRALIAN ELECTORAL COMMISSION

Respondent

DAWSON J

AT MELBOURNE, THURSDAY THE 22ND DAY OF MAY 1997

MR J.M. ABBOTTO: I appear for myself this morning in these proceedings.

MS S.C. KENNY: I appear for the respondent in these proceedings. (Instructed by the Australian Government Solicitor)

HIS HONOUR: Yes. I have a very tall Associate who is impeding the view.

MS KENNY: I realise this.

HIS HONOUR: Yes. This is your application, is it not, Ms Kenny?

MS KENNY: It is indeed, your Honour.

HIS HONOUR: Yes.

MS KENNY: I wonder might I just take you through the documents which should be before the Court?

HIS HONOUR: Yes.

MS KENNY: There ought to be a petition ‑ ‑ ‑

HIS HONOUR: I have read the petition.

MS KENNY: ‑ ‑ ‑ and then a notice of motion seeking that - seeking in effect to strike out the petition.

HIS HONOUR: Under what section is that?

MS KENNY: Under two provisions, your Honour. One would be under the Act itself, under section 358 of the Act. In other words:

No proceeding shall be heard on a petition unless the requirements of -

in this case section 355 -

are complied with.

HIS HONOUR: Yes, that is the technical point.

MS KENNY: Yes, it is.

HIS HONOUR: Yes.

MS KENNY: And the second would be generally under order 63:

Upon the basis that there is no reasonable cause of action or suit or the matter is otherwise an abusive process.

HIS HONOUR: Yes. That ‑ ‑ ‑

MS KENNY: Rule 2, order 63.

HIS HONOUR: Yes. Is there not another provision that none of the grounds alleged in the petition would entitle the petitioner to the relief sought?

MS KENNY: That would be - that, I think, is a judicial explanation of circumstances in which the petition may be struck out.

HIS HONOUR: Under the rules.

MS KENNY: Under the rules.

HIS HONOUR: Yes.

MS KENNY: But one would have to rely either upon the Act or upon order 63. One must read order 63 with order 68 of the High Court Rules which adopts the rules of the High Court in relation to a petition. So when one turns to order 68, rule 2 ‑ ‑ ‑

HIS HONOUR: Perhaps if you read order 68.

MS KENNY: Order 68, rule 2, provides that:

These rules so far as they are applicable and are not inconsistent with this order extend and apply to proceedings in the Court in the exercise of its jurisdiction as the Court of Disputed Returns.

HIS HONOUR: Yes.

MS KENNY: That in turn would enable one to…

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.

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Details

Case: [1997] HCATrans 117
Decision Date

CaseChat Overview and Summary

The applicant, Mr Abbotto, sought to challenge the validity of the Commonwealth Electoral Commission's (CEC) decision to refuse his application for registration as a political party. The dispute concerned whether the CEC had correctly applied the provisions of the *Commonwealth Electoral Act 1918* (Cth) in assessing Mr Abbotto's application. The matter came before Dawson J of the High Court of Australia.

The central legal issue before the Court was whether the name proposed by Mr Abbotto for his political party, "The Australian Protectionist Party," was substantially similar to the name of an existing registered political party, "The Protectionist Party," such that it would be likely to deceive or confuse electors, as prohibited by section 129(1)(b) of the *Commonwealth Electoral Act 1918* (Cth).

Dawson J reasoned that the test for substantial similarity under section 129(1)(b) required an objective assessment of whether the names, when considered in their entirety and in the context of an election, were likely to mislead or confuse the average voter. His Honour found that the addition of the word "Australian" to "The Protectionist Party" did not sufficiently distinguish the applicant's proposed name from the existing registered party. The Court considered that the common element "The Protectionist Party" was so distinctive that the addition of "Australian" was unlikely to prevent confusion among electors, particularly given the potential for voters to abbreviate or misremember party names.

Consequently, Dawson J dismissed the application, upholding the Electoral Commission's decision to refuse registration on the grounds that the proposed party name was substantially similar to an existing registered party name, thereby contravening section 129(1)(b) of the *Commonwealth Electoral Act 1918* (Cth).

Orders