Alexander Hyde v Electoral Commissioner of South Australia, Jing Li (No 4)

[2025] SADC 37

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

ALEXANDER HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA, JING LI (NO 4)

[2025] SADC 37

Judgment of his Honour Judge Burnett  

11 April 2025

LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ELECTIONS - DISPUTED ELECTIONS AND OUSTER - JURISDICTION AND POWERS OF COURT

LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ELECTIONS - DISPUTED ELECTIONS AND OUSTER - PROCEDURE - COSTS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - REASONS FOR JUDGMENT

On 7 March 2025, the Court delivered reasons (Reasons) in which it found that there had been illegal practices that affected the result of the 2022 periodic election for the Central Ward of the City of Adelaide. The Court gave the parties the opportunity to consider the Reasons and make submissions as to the final orders that should be made including whether a declaration should be made that the election was void. Further, the second respondent made an application that the Court should correct and vary its Reasons so as to address alleged inconsistencies and apparent oversights when making its ultimate findings and should re-open the hearing so as to enable the parties to address whether certain conduct amounted to a contravention of s 58(1) of Local Government (Elections) Act 1999 (SA)(the Elections Act).

Held:

(1) The Court has power until judgment is perfected to correct an error or oversight: Smith v New South Wales Bar Association (1992) 176 CLR 256; McAdam v Robertson (1999) 73 SASR 360 applied. The power to correct an error is an aspect of a re-opening, the extent of which will depend on the nature of the error that has been identified. The Court may grant leave to re-open a case where there is good reason to consider that there has been a misapprehension of facts by the Court: Autodesk Inc v Dyason (No 2) (1992) 176 CLR 300 applied.

(2) A case may be re-opened where a party has been denied procedural fairness; Autodesk Inc v Dyason (No 2) (1992) 176 CLR 300; Green v Ellul (No 3) [2019] SASCFC applied.

(3)     The second respondent has not established grounds for the Court to vary or correct the Reasons or to re-open the proceedings in respect of the identified issues. The second respondent’s application is dismissed.

(4) Given the findings made by the Court that there were illegal practices that affected the result of the election, the appropriate order is to declare void the 2022 periodic election for the Central Ward of the City of Adelaide. The election for the Central Ward of the City of Adelaide was conducted under the Elections Act by way of proportional voting for a multiple member constituency. A supplementary election for one councillor would fill the vacant place by a preferential voting system for a single member constituency. The manifest purpose of the proportional voting system would be defeated if an election was held for only one councillor: Re Wood (1988) 167 CLR 145, NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2022] NSWSC 282 applied.

(5) The power under s 71(2) of the Elections Act to declare an election void is discretionary. Matters such as the cost and inconvenience and disruption caused to other persons are matters of significant weight for the Court to consider when exercising its discretion. They are not sufficient to override the fundamental right of candidates to be elected in accordance with the wishes of the electorate. The fundamental right to have a democratically elected council that was elected under the statutory regime imposed by the Elections Act, will almost invariably prevail over other interests, NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2022] NSWSC 282, Bourne v Murphy (1996) 92 LGERA 329 applied.

(6) Under 78(1) of the Elections Act, the Court has a broad discretion as to costs. It is appropriate to make an order that the second respondent pay the petitioner’s costs of and incidental to interlocutory application FDN 107 on a solicitor client basis. That application concerned an earlier application of the petition to re-open which was made because of a failure on the part of the second respondent to make proper discovery. Exempted from the order as to costs are two ancillary applications that were not pursued by the petitioner.

(7) As to the balance of the costs, subject to certain carve outs, the second respondent is to pay 70% of the petitioner’s costs on the standard costs basis and the first respondent is to pay 30% of those costs on the standard costs basis. The first respondent had a statutory role under the Elections Act. The first respondent responded to allegations made against him in the petition in relation to the further scrutiny that he undertook (which were not sustained). The first respondent also assisted the Court in providing evidence about the conduct of the election and the voting. However, the first respondent’s role in these proceedings was not limited to those matters and he took an active position in opposing the petition. In those circumstances, it was appropriate that he bear some proportion of the costs of the petitioner: Richards v Paddy & Ors (No 2) [2016] SADC 21, Free v Kelly (1996) 185 CLR 296 considered.

The Local Government (Elections) Act 1999 (SA) ss 48, 48(1)(c), 58(1), 61(1), 64(1), 64(2), s 71(6), 71(1)(f), 71(2), 73(2), 78(1); Uniform Civil Rules 2020 (SA) rr 172.1, 186.1, referred to.
Smith v New South Wales Bar Association (1992) 176 CLR 256; McAdam v Robertson (1999) 73 SASR 360; Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288; Mackellar Mining Equipment Pty Ltd v Thornton (2019) 367 ALR 171; Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; Autodesk Inv v Dyason (No 2) (1992) 176 CLR 300; Green v Ellul (No 3) (2019) 132 SASR 364; NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2022] NSWSC 282; Australian Electoral Commission v Johnston & Ors (2014) 251 CLR 463; Re Wood (1988) 167 CLR 145; Australian Electoral Commission v Johnston (2014) 251 CLR 463; Simmons v Tully & Sanders [2003] SADC 108; Bourne v Murphy (1996) 92 LGERA 329; Richards v Paddy & ORS (No 2) [2016] SADC 21; Free v Kelly (1996) 185 CLR 296; SkyCity Adelaide Pty Ltd v Treasurer of South Australia (No 2) [2024] SASCA 18; Friend v Solly (1847) 10 Beav 329, 50 ER 608; Prince Alfred College v ADC (2016) 258 CLR 134, applied.

ALEXANDER HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA, JING LI (NO 4)
[2025] SADC 37

Court of Disputed Returns

Introduction

1. On 7 March 2025, the Court delivered reasons (Reasons) in respect of a petition lodged by the petitioner, Mr Hyde (the petitioner or Mr Hyde), with the Court of Disputed Returns. In the Reasons, the Court found that there had been illegal practices that affected the result of the 2022 periodic election for the Central Ward of the City of Adelaide. The Court did not make final orders as it was appropriate to give the parties time to consider the Reasons and make submissions as to what orders should be made. Ms Carmel Noon, who was one of the persons elected as a councillor for the Central Ward of the City of Adelaide, was granted leave by the Court to be joined for the limited purpose of making submissions as to the final orders that should be made.

2. Further, the second respondent, Mr Li (the second respondent or Mr Li), in his written submissions sought orders that the Court should:

   (1)correct and vary its reasons for judgment so as to address alleged inconsistencies and apparent oversights when making its ultimate findings;

   (2) re-open the hearing so as to permit the parties to address:

   (a) whether the ballot papers depicted in exhibit P7 were such as to amount to a contravention of s 58(1) of the Local Government (Elections) Act, 1999 (SA) (the Elections Act) ;

   (b) whether the statutory presumption in s 73(2) was enlivened by unascertainable ballot papers.

3. Although no formal interlocutory application was brought by the second respondent and no affidavit evidence filed, it is appropriate to deal with that part of the submissions as an application to correct and vary the reasons for judgment and as an application to re-open.

4. These reasons will therefore deal with first, the application of the second respondent as that will determine whether it is appropriate to make final orders, secondly, the final orders and thirdly, the question of costs.

   Principles as to correcting and varying reasons and re-opening

5. There is no doubt that the Court has power until judgment is perfected  to correct or vary its reasons to correct an error or oversight.[1] It appears from the decisions in Smith v New South Wales Bar Association (Smith)[2] and McAdam
   

   [1]    Smith v New South Wales Bar Association (1992) 176 CLR 256, [27]; [1992] HCA 36.

   [2] Ibid.

   [3] (1999) 73 SASR 360; [1999] SASC 169.

   v Robertson[3] that the power to correct an error is an aspect of a re-opening, the extent of which will depend on the nature of the error that has been identified. In the present case, where there is no application to adduce further evidence, the extent of the proposed re-opening is limited to hearing submissions and correcting the alleged error or oversight. Whether the correction of an error or an oversight is an aspect of re-opening (as the above authorities suggest) or part of the implied or incidental powers under s 71 of the Elections Act or under rule 186.1 of the Uniform Civil Rules 2020, does not have any practical effect in the present case as both require identification of an error or misapprehension of facts on the part of the Court. The second respondent accepted this position when it submitted that irrespective of the source of the Court’s power to recall and vary and correct its reasons, the test was satisfied because of the misapprehensions or oversights of the Court that affected the Court’s ultimate findings.

6. There is no dispute that under s 71 of the Elections Act and Uniform Civil Rules 2020 (UCR) 186.1, the Court has the power to reopen the proceedings. The power is discretionary, but exceptional, and is to be exercised according to the public interest in maintaining the finality of litigation.[4]  The overriding principle is that the Court must consider whether the justice of the case, taken as a whole, favours granting leave to re-open the case.[5]

   [4]    Briggs on behalf of the Boonwurrung People v State of Victoria  (Briggs) [2024] FCA 288, [20]; Mackellar Mining Equipment Pty Ltd v Thornton (Mackellar) (2019) 367 ALR 171, [58]; [2019] QCA 77 ; Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1, [17]; [2012] VSCA 232.

   [5] Briggs, (above), [22]; Mackellar (above), [59].

7. The caution displayed by the courts in ordering a matter to be re-opened is consistent with the objects of the UCR and maintaining public confidence in the efficiency of the judicial system.[6] This point was made by the Victorian Court of Appeal in Spotlight Pty Ltd v NCON Australia Ltd[7] where the Court observed that if applications to re-open were regularly allowed, they would add enormously to the inefficiencies in the administration of justice.

   [6]    Mackellar (above), [59].

   [7]    Spotlight (above), [17].

8. The categories of cases where a Court may grant leave to re-open a case include cases where there is good reason to consider that there has been a misapprehension of facts by the Court.[8]  If there has been a misapprehension of facts, then the justice of the case will require leave to be granted to re-open.

   [8]    Autodesk Inv v Dyason (No 3) (1992) 176 CLR 300, 302.

9. In Smith[9] (a case involving an application to re-open because of a factual error by the Court of Appeal in its reasons for judgment), Brennan, Dawson, Toohey and Gaudron JJ observed that the power to re-open is discretionary and that although it exists up to the time of entry of judgment, it is to be exercised according to the public interest in maintaining the finality of litigation.[10]

   [9] (1992) 176 CLR 256, [27]; [1992] HCA 36.

   [10] Ibid.

10. In Smith, Brennan, Dawson, Toohey and Gaudron JJ held:

    It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected (1) For early cases see, for example, Abbott v. Feary (1860) 6 H and N 113 at pp 118-119 [1860] EngR 898; (158 ER 47, at pp 49-50); In re Suffield and Watts; Ex parte Brown (1888) 20 QBD 693, at p 697. As to more recent cases see, for example, Texas Co. (Australasia) Ltd. v. Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382, at p 457; Pittalis v. Sherefettin (1986) QB 868, at p 879.). Part 40, r.9(1) of the Supreme Court Rules (N.S.W.) also provides that "(that) Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment". The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation (2) Wentworth v. Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, at p 684. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review (3) Marinoff v. Bailey (1970) 92 WN (NSW) 280, at p 284; National Benzole Co. Ltd. v. Gooch (1961) 1 WLR 1489, at pp 1492-1494. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal (4) State Rail Authority of N.S.W. v. Codelfa Constructions Pty. Ltd. [1982] HCA 51; (1982) 150 CLR 29, at pp 38-39, 45-46; Wentworth v. Rogers (No.9) (1987) 8 NSWLR 388, at pp 394-395. It is important that it be understood that these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened, as this case was.

    It is said in Ritchie's Supreme Court Procedure that the power to review a judgment in a case where the order has not been entered will not ordinarily be exercised "to permit a general re-opening" (5) Ritchie's Supreme Court Procedure, New South Wales, vol.1, p 2855. As a general statement that is correct, both as to whether leave to re-open will be granted and, if it has been, as to the nature of the review involved. But it is a general statement only and, once a matter has been re-opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken. Very little will be required in a case where, for example, all that is involved is a mathematical error in the calculation of some particular item of loss or damage. And, in the case of a factual error, the extent of the review will vary depending on whether the error goes to the heart of the matter or whether its significance is confined to some discrete subsidiary issue.

11. Doyle CJ in McAdam v Robertson[11] provided further guidance as to what type of mistaken apprehension of facts is required. Doyle CJ held that, following Smith, there was a discretionary power to re-open in cases where the Court had delivered reasons but orders had not been perfected. Doyle CJ referred to the decision of the High Court in Autodesk Inc v Dyason (No 2) (Autodesk)[12] which involved an appeal before the High Court where the High Court had delivered reasons, but the orders had not been perfected. The respondent in that case sought an order to re-open on the ground that the Court review or hear three identified issues that through no fault of the respondent, had not been the subject of submissions.

    [11] (1999) 73 SASR 360; [1999] SASC 169.

    [12] (1993) 176 CLR 300; [1993] HCA 6.

12. Doyle CJ quoted[13] the following passage from Mason CJ in Autodesk:[14]

    These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.

    [13] (1999) 73 SASR 360, [37]; [1999] SASC 169.

    [14] (1993) 176 CLR 300, 302-302; [1993] HCA 6.

13. Doyle CJ concluded in McAdam v Robertson:[15]

    In the light of those two decisions I proceed on the basis that the relevant principles are those stated by the majority in Smith. I consider that the observations of Mason CJ and Brennan J in Autodesk provide reliable guidance in relation to the exercise of the jurisdiction. I refer in particular to their observations that the jurisdiction is not exercised to enable a party to improve upon the argument that it has put, or merely to demonstrate that a decision is wrong. However, I proceed on the basis that a misapprehension in a significant respect as to the facts or the law may be a basis for the exercise of the jurisdiction, but in the light of what I have just said that cannot be a misapprehension which would be demonstrated only by persuading the Court to change its mind on something that it had already decided. I also proceed on the basis that the jurisdiction will not necessarily be exercised in the same way by an intermediate court of appeal and by a final court of appeal, although I do not attempt to identify any relevant distinctions here. I merely make the point that, in the case of the Full Court, the ability to apply to the High Court for special leave to appeal is a relevant matter that will tend to confine the exercise of the jurisdiction.

    [15] [1999] SASC169, [38].

14. It also follows from the Autodesk that a case may be re-opened because a party was denied procedural fairness. That was made clear by the Full Court in Green v Ellul (No 3):[16]

    It can be seen the authorities emphasise that the discretion conferred upon the Court to recall its own judgment, where the judgment has not been perfected, is closely confined. The circumstances in which the Court will reopen a judgment which it has pronounced are rare. The power is to be exercised with great caution. Further, the Court will be reluctant to exercise the power where there is available a right of appeal. Finally, where the basis upon which the Court is invited to exercise the power is a denial of procedural fairness, the Court will not do so unless it is satisfied the party moving for the exercise of the power was denied a sufficient opportunity to argue the point upon which the judgment was entered. A sufficient opportunity to argue the point is given when the point is logically involved in a proposition that has been raised in the course of argument.

    [16] (2019) 132 SASR 364, [32]; [2019] SASCFC 23.

1. In the present case, by virtue of s 71(5) of the Elections Act, there is no right of appeal from a decision of the Court of Disputed Returns. The petitioner submitted that the absence of a right of appeal should be regarded as a neutral factor. I do not agree. The passages in Smith (above) and Green (above) suggest that there may be less reluctance to permit a re-opening where there is no right of appeal.

2. It follows from the above analysis, that the following principles apply:

   (1)the power to re-open is discretionary, but exceptional. It can be exercised up to the entry of judgment and, as in this case, after reasons have been delivered, but prior to the perfection of the judgment;

   (2)the Court is to exercise the power if the justice of the matter requires the case to be re-opened;

   (3)the Court is to exercise the power having regard to the public interest in the finality of litigation;

   (4)one of the categories where an order for re-opening may be made is where there has been or there is good reason to consider that there has been a mistaken apprehension of the facts;

   (5)that jurisdiction is not to be exercised to re-agitate arguments or because all arguments were not put or to merely show that the decision was wrong;

   (6)there must be a misapprehension in a significant respect as to the facts but cannot be a misapprehension which would be demonstrated only by persuading the Court to change its mind on something that it had already decided;

   (7)the Court will permit a re-opening where there has been a denial of procedural fairness such that a party did not have the opportunity to make submissions or adduce evidence on a particular issue;

   (8)in a case of denial of procedural fairness, the Court must be satisfied the party moving for the exercise of the power was denied a sufficient opportunity to argue the point upon which the judgment was entered. A sufficient opportunity to argue the point has been given when the point is logically involved in a proposition that has been raised in the course of argument;

   (9)Where there is no right of  appeal, the Court should not be confined in the exercise of its discretion to rectify an apparent error arising from some miscarriage in its judgment.

   Counting of votes

3. The second respondent has submitted that the Court clearly misapprehended the relevant number of ballot papers required to be found to have been submitted in contravention of the Elections Act. The second respondent submitted that 37, not 24, ballot papers were required to affect the result of the election. It was submitted that the Court overlooked the uncontested evidence of the Commissioner that 37 ballots were required to result in the 24 vote margin in the election. The first respondent, the Electoral Commissioner of South Australia (the first respondent or the Commissioner), neither supported nor opposed the position advanced by the second respondent.

4. The Court proceeded in its Reasons on the basis that the petitioner had to show on the balance of probabilities that 24 votes had been affected by illegal practices given that the margin in the election was 24 votes: Reasons at [385]. That is the correct number of votes.

5. The contention of the second respondent that 37 ballots were required to result in the 24 margin is not correct and is contrary to the methodology of the count which is set out in s 48 of the Elections Act as explained in exhibit P4, the evidence of the 104 counts of votes shown in exhibit 1R4A and the evidence of the Commissioner, Mr Sherry. The second respondent did not during the course of the trial or in closing make any submission that 37 votes were required to affect the result of the election. The first respondent during closing submissions said:

   and that then Jing Li was elected as the fourth placed candidate by a margin of 31 votes, of course that was ultimately corrected in terms of the evidence again at Exhibit 1R4A where the margin is 24 votes at the 84^th count. It’s 24 votes of course but it's on 37 ballot papers because we’re now at a fractional and the transfer value was less than one”.[17]

   [17] T 1053.

6. The submission is not addressing the exclusion of 24 votes before count 83 because of illegal practices (which exclusion would occur at count 1). The first respondent went on to submit “and that’s true whether or not we’re dealing with a margin of 31 votes or 24 votes.”[18]

   [18] T 1054.

7. The methodology referred to in exhibit P4 and the results set out in exhibit 1R4A provides evidence that the margin is 24 votes, and that number of votes is required to affect the outcome. Exhibit P4 states that Mr Hyde was excluded at count 83. That had the consequence that at count 84, Mr Hyde’s votes begin to be distributed to the other candidates who have not already been excluded.

8. As directed by s 48 of the Elections Act, the count proceeds on the basis that first preference votes of candidates are counted. The candidate with the least number of votes is excluded and their votes are transferred, at full value, to the next candidate in accordance with the preferences indicated in the ballot paper. This process continues until a candidate obtains the quota of votes needed to be elected. At that stage, the above quota votes of that candidate are transferred, at a fractional value, in accordance with the preferences nominated by the voter on the ballot paper.

9. After count 83 of exhibit 1R4A, the total difference between Mr Hyde and Mr Li was 24 votes: 623 to 599. In count 83, the above quota votes of Ms Noon are distributed. There are 69 votes above quota (728 votes compared to the quota of 659 votes). Mr Sherry explains in his evidence in chief[19] that the transfer value of those ballots transferred is 0.09478 which is calculated by dividing 69 (the above quota votes of Ms Noon) by 728 votes (the total votes that Ms Noon received). That is explained in exhibit P4.

   [19] T 880.

10. In the second column of count 83, all of Ms Noons’ ballot papers (not votes) are notionally transferred. The transfer value is then applied to those papers to determine the number of votes that are transferred. This is because it cannot be determined which ballot papers contain the above quota votes. Therefore, in the second column of count 83, the papers distributed are 139 to Mr Li and 124 to

    
    

    Mr Hyde. Applying the transfer value of 0.09478, the votes distributed are 13 to Mr Li and 11 to Mr Hyde (Mr Li-139 x 0.0947=13.1633)(Mr Hyde-124 x 0.0947

    
    

    = 11.7). Mr Sherry explains this in his evidence in chief.[20]

    [20] T 884-885.

11. Therefore, the votes for Mr Li increases from 610 (the votes after count 82) to 623 and the votes for Mr Hyde from 588 (after count 82) to 599. The difference in the votes increases from 22 to 24. The Commissioner acknowledged this in exhibit P4 when he stated:

    As a result, at the conclusion of this distribution, Alexander Hyde was excluded with a total of 599 votes (712 ballot papers), 24 votes less than Jing Li’s total of 623 votes (749 ballot papers).

12. It is clear from this statement that the reference to 712 and 749 ballot papers respectively, is a reference to how the 599 votes of Mr Hyde and the 623 votes of Mr Li have been calculated. The reference to 37 ballots required to bridge the gap (in exhibit P4) is not a reference to the number of votes required to “bridge the gap”. Instead, it is a reference to the position reflected after count 83 where Mr Li has an initial (after count 82) 610 votes (on 610 ballot papers) and 13 further votes (on 139 ballot papers). Mr Hyde had, after count 82,  an initial 588 votes (on 588 ballot papers) and 11 further votes (on 124 ballot papers).

13. However, if the starting point of Mr Li is 24 fewer votes (after count 82) (because of the number of votes that are excluded because of illegal practices), then Mr Li and Mr Hyde end up with the same number of votes, despite the number of ballot papers notionally allocated due to the above quota votes. Up to count 83, there has been no transfer of votes at less than full value (because there has been no transfer of above quota votes). After count 83, if 24 votes were excluded (at full value), then Mr Hyde and Mr Li receive the same number of votes. Therefore, 24 votes are required to affect the result of the election. Exhibits P4 and 1R4A and s 48 of the Elections Act mandate this conclusion.

14. The second respondent submitted that the above analysis was not addressed by the Court in its Reasons. There was no need for the Court to address those matters because there was no submission that the margin was other than 24 votes. Further, to correct and vary the Reasons, the second respondent must show that the Court has made an error or proceeded on a misapprehension of facts or that there is good reason to consider that it has done so. The above analysis demonstrates that there is no error or misapprehension of facts.

15. The conclusion at [385] of the Reasons is correct. It is not correct to say that the uncontested evidence was that 37 ballots were required to result in the 24 vote margin. The second respondent has not shown that the Court has made an error or proceeded on a mistaken apprehension of the facts or that there is good reason to consider that the Court has done so. It follows that, on this ground, the second respondent has not established any ground for re-opening or varying and correcting the Reasons.

    Ballot papers provided by Mr Bai to Mr Jin

16. The second ground relied upon by the second respondent in support of his submission that the Court proceeded on a mistaken apprehension of fact was that the Court appeared to have overlooked its finding at [298] which is said to be directly contradictory and inconsistent with its findings at [384(2)] and [385].

17. In paragraph [384(2)], the Court found that the more probable inference was that the 10 votes (which were handed by Mr Bai to Mr Jin) were cast in favour of the second respondent. The second respondent submits that finding is inconsistent with the finding at [298] where the Court held that it was not possible to determine on the evidence whether the ballot papers were signed or unfilled when they were handed to Mr Jin.

18. Paragraph [298] of the Reasons is addressing the position at the time when the ballot papers were handed from Mr Bai to Mr Jin when observed by Mr Hou. The evidence given by Mr Hou at Reasons [140] was that he could not say whether the ballot papers were opened or not when he saw Mr Bai hand them to Mr Jin. Therefore, there was no finding that the declarations relating to those 10 ballot papers were falsely signed and those ballot papers did not form part of the contraventions of s 58(1), ss 64(1) and 64 (2): see Reasons at [365].

19. The Court’s findings as to the 10 ballot papers are set out at Reasons [379] and [380]. In those paragraphs, the Court found that the 10 ballot papers were returned with votes cast in favour of the second respondent. Therefore, it is those findings which led to the findings at Reasons [384(2)] and [385] that the 10 votes were cast in favour of the second respondent. There is no inconsistency between Reasons [298] and those findings. The findings at Reasons [298] do not address in whose favour those votes were ultimately cast.

20. It follows that there was a proper basis to include the 10 ballot papers when determining whether the votes affected the result of the election. The Court has found that there were contraventions of ss 61(1)(a person, acting on behalf of a candidate, acting as an assistant to a person voting at the election) and 61(4) of the Elections Act (a person, acting on behalf of a candidate, being in possession of ballot papers) by Mr Bai and Mr Jin in relation to the 10 ballot papers. That finding, contrary to the second respondent’s submission at paragraph [24] of its written submissions, is not dependent on a finding by the Court that the 10 ballot papers were not completed by the voters entitled to vote. The findings at Reasons [379] and [380] were that the 10 ballot papers were collected and returned with votes cast in favour of the second respondent.

21. It follows that the second respondent has not shown that the Court proceeded on an error or mistaken apprehension of the facts or that there is good reason to consider that the Court has proceeded on such an error or misapprehension. The Court has not overlooked its earlier findings when making the findings at [384(2)] and [385] of the Reasons. Therefore, on this ground, the second respondent has not established any grounds for re-opening or for the Court varying or correcting the Reasons.

    Five ballot papers in exhibit P7

22. The third ground relied upon by second respondent for its contention that the Court had proceeded on a misapprehension of facts was that the Court’s findings at Reasons [384(1)] that the 5 ballot papers shown in exhibit P7 that were cast in favour of the second respondent and therefore affected the result of the election cannot stand with the evidence relating to the Commissioner having conducted further scrutiny in respect of all ballots submitted by persons enrolled on the supplementary roll who gave their address as Vision on Morphett apartments. The effect of the submission of the second respondent was that the finding of the Court was inconsistent with the evidence relating to the Commissioner’s investigation and the Court’s acceptance of that evidence.

23. The second respondent submitted that the Commissioner accepted 66 votes following the further scrutiny (of the 90 votes that were the subject of the further scrutiny) and 18 of those votes accepted came from Vision on Morphett. The second respondent submitted that in respect of those 18 votes: (1) one voter, who appeared in appendix A to the petition confirmed with the Commissioner that they had voted personally; (2)  two voters were not on the supplementary roll and could not have had their enrolment lodged by the second respondent; (3) 15 voters were enrolled by the second respondent; (4) 12 of those 15 those voters were interviewed by the Commissioner’s staff and confirmed that they had voted personally; (5) the remaining 3 voters were accepted because the Commissioner’s staff were satisfied on the examination of the relevant enrolment forms and ballot papers that the details matched.

24. The contention by the second respondent that these matters provide grounds for re-opening or correcting or varying the Reasons fails for a number of reasons:

    (1)The contention is simply a further argument on the evidence which could have been, but was not, put at trial;

    (2)The Court, in its Reasons, dealt with the further scrutiny undertaken by the Commissioner;

    (3)The findings by the Court are not inconsistent with the further scrutiny;

    (4)The findings by the Court are not dependent on a finding that the ballot papers shown in exhibit P7 were collected from Vision on Morphett Apartments.

25. As to the first matter, the submission made by the second respondent is a further argument relating to the 5 ballot papers and therefore is not a proper ground for re-opening. It was open for the second respondent to have made those submissions at trial, but it did not do so.

26. As to the second matter, the Court found at Reasons [184] that the Commissioner was undertaking a review in the very limited time available. It was not a detailed investigation. The interviews that formed part of the scrutiny were telephone interviews conducted by City of Adelaide staff who were staff assisting the Commissioner. At Reasons [189], the Court found that the investigation by the Commissioner and its results did not assist in determining the issues that arise from the petition. The Court held that irrespective of the findings by the Commissioner, it was for the Court to determine whether the contraventions had occurred on the evidence before it.

27. As to the third matter, the evidence from the Commissioner’s investigation is not a sufficient reason to provide a justification for a finding that the Court has proceeded on a mistaken apprehension of facts. The results of the further scrutiny conducted by the Commissioner do not lead to a conclusion that the findings at Reasons 384(1) and 385 (in so far as they include the 5 ballot papers) that the ballot papers were cast in favour of the second respondent were made in error or in oversight of the results of the investigation by the Commissioner. There is no inconsistency between the findings and the results of the Commissioner’s investigations.

28. There were a further 13 ballots from Vision on Morphett that were returned from voters on the House of Assembly roll (exhibit 1R48). Coupled with the votes where there had been no acknowledgment by anyone that they had voted, it is clearly possible that the two persons shown in exhibit P7 had collected 5 ballot papers from Vision on Morphett.

29. As to the fourth matter, the Court found at Reasons [297] that the 5 ballot papers shown in exhibit P7 were cast in favour of the second respondent. There was also a finding at Reasons [138] that the inference could be drawn that the 2 persons in exhibit P7 had a pre-arranged meeting and were collecting ballot papers from that address. There were further findings at [226]-[231] that the 2 persons in exhibit P7 were acting on behalf of the second respondent. The Court found at Reasons [332] that in respect of the 5 ballot papers, the more probable inference was that the ballot papers had been filled in by persons other than the persons entitled to vote. The matters relied upon to draw this inference did not include the fact that the ballot papers were collected from the Vison on Morphett Apartments. In other words, even if had been established that papers could not have been collected from Vision on Morphett (which has not been established) that does not affect the findings of contravention. Irrespective of where the ballot papers have been collected, there have been breaches of ss 61(1), 61(4) and 64(1) and (2) and 58 by the persons in exhibit P7.

30. It follows that the second respondent has not shown that the Court proceeded on a mistaken apprehension of the facts or that there is good reason to consider the Court has done so. The Court has not overlooked the evidence of the Commissioner in relation to the further scrutiny nor did the evidence provide any reason to doubt the findings made by the Court. Therefore, on this ground, the second respondent has not established any grounds for re-opening or varying or correcting the Reasons.

    Ballot papers collected by Mr Zhang

31. The fourth ground relied upon by the second respondent was that the finding made by the Court at Reasons [384(3)] that Mr Zhang knocked on apartment doors and collected unfilled ballot papers and completed them is not consistent with the evidence of the Commissioner with respect to ballots returned from Realm Apartments and addressed at Reasons [178] and exhibit 1R44. The effect of the submission is that Mr Zhang could not have collected unfilled ballot papers from Realm Apartments because that conclusion is contrary to the evidence relating to the Commissioners’ investigation.

32. The contention by the second respondent that these matters provide grounds for re-opening or correcting or varying the Reasons fails for a number of reasons:

    (1)The contention is simply a further argument on the evidence which could have been, but was not put at trial;

    (2)The Court, in its Reasons, dealt with the further scrutiny undertaken by the Commissioner;

    (3)The findings by the Court are not inconsistent with the further scrutiny;

    (4)The findings by the Court was that Mr Zhang’s activities were not limited to collecting unfilled ballot papers from Realm Apartments.

33. As to the first matter, the submission by the second respondent is a further argument relating to Mr Zhang and the unfilled ballot papers and therefore is not a proper ground for re-opening.  This argument could have been put at trial but was not.

1. As to the second matter, as previously discussed, the Court considered in its Reasons, the further scrutiny undertaken by the Commissioner.

2. As to the third matter, the second respondent relies on exhibit 1R44 which shows that 15 ballot papers were returned from Realm Apartments. The second respondent conducted an analysis of these ballot papers and submitted that 12 votes were accepted from the supplementary roll and of those five were enrolled by the second respondent. Of those five, three voters spoke to investigators and confirmed that they had voted. The Commissioner accepted the votes relating to the further 4 ballot papers.

3. However, Mr Sherry gave evidence that the ballot papers that were the subject of his investigation, did not include some of the ballot papers returned from Realm Apartments because Realm Apartments is situated at 15-17 Austin Street and only the address at 15 Austin Street was caught in the further scrutiny.[21]  Exhibit 1R48 shows that a further 36 ballot papers were received from Realm Apartments, 29 ballot papers from voters on the House of Assembly roll and 7 ballot papers from voters who were registered on the supplementary roll but used the address of 17 Austin Street. Senior counsel for the second respondent confirmed that the second respondent’s analysis of the ballot papers returned from Realm did not include ballot papers that either used the address of 17 Austin Street or the House of Assembly roll.

   [21] T772, 909-910.

4. It cannot be said in these circumstances that the finding made in relation to Mr Zhang collecting unfilled ballot papers is inconsistent with the results of the further scrutiny conducted by the Commissioner.

5. As to the fourth matter, the Court’s finding, based on the evidence of Mr Ong was that Mr Zhang’s activities were not limited to Realm Apartments. The Court found at Reasons [161](repeated at Reasons [253] and [369]) that Mr Zhang in fact helped collect unfilled ballot papers from student’s apartments especially in the Realm Apartments by knocking on students’ doors to collect unfilled ballot papers. The evidence from Mr Ong was that Mr Zhang told him that he, Mr Zhang, helped collected unfilled ballot papers from student apartments. One off the top of my head was Realm.[22]

   [22] T303.

6. The second respondent further submitted the relevant student apartments were limited to the 4 apartments buildings initially identified in 5.c.1.1 of the petition namely Kodo, Penny Place, Realm and Vision on Morphett and referred to exhibit P26 where on 25 October 2022, Mr Hyde wrote to the Commissioner saying the roll indicated that there were a number of other apartments buildings with a large number of newly enrolled international students and referred to Kodo, Realm and Penny Place (in addition to Vision on Morphett).

7. That letter does not suggest that the only student apartments (not international student apartments) that Mr Zhang was referring to was limited to those apartments. Mr Ong at T 302 refers to meeting Mr Zhang in one of the student apartments in North Terrace. Mr Hou at T 175 says that he didn’t visit any of the student apartments. The fact that Mr Zhang did not specify what he meant by student apartments is not a reason to reject his evidence. In fact, the reference to “student apartments” is equally applicable to describe apartment blocks occupied by students.

8. The Commissioner’s further scrutiny into ballots received from Realm Apartments does not call into question the findings made that are reliant on the evidence of Mr Ong about his conversation with Mr Zhang. It does not follow (as contended by the second respondent, that because the Court is unable to find a finding as to how many ballot papers were collected by Mr Zhang, that the Court cannot be satisfied that a vote was dishonesty exercised.

9. The second respondent has not shown that the Court proceeded on an error or mistaken apprehension of the facts or that there is good reason to consider that the Court did so. The Court did not overlook evidence relating to the further scrutiny nor did that evidence provide any reason to doubt the findings made by the Court. Therefore, on this ground, the second respondent has not established any grounds for re-opening or for correcting or varying the Reasons.

   Procedural fairness

10. The second respondent submitted that he was denied procedural fairness and that the Court should permit the parties to re-open and address:

    (1)whether the ballot papers depicted in exhibit P7 amounted to a contravention of s 58(1);

    (2)whether the statutory presumption under s 73(2) was enlivened by unascertainable ballot papers.

11. The second respondent submitted that the petitioner’s case was specific to the 73 persons identified in appendix A and did not include the ballot papers depicted in exhibit P7, or the ballot papers collected by Mr Zhang.

12. The Court found at Reasons [365] that there had been contraventions of s 58(1) of the Elections Act in relation to:

    (1)the 16 instances of contraventions (in relation to the persons named in appendix A of the petition);

    (2)the 5 ballot papers being handled by the persons in the black jacket and the blue jumper in exhibit P7 and;

    (3)Mr Zhang collecting an unascertained number of unfilled ballot papers from apartments and subsequently filling them in or arranging for them to be filled in.

13. The second respondent’s contention that he was denied procedural fairness deals only with the second and third matters referred to in the preceding paragraph. It therefore does not call into question the finding that there had been a contravention of s 58(1) but only the number of the ballots that are the subject of that finding. This will have relevance to the question of whether the results of the election was affected by the contraventions of s 58(1). That is a hypothetical question if the findings that there were other illegal practices that affected the result of the election stands. The Court has already found that the other illegal practices occurred and affected the result of the election and that there was no reason to correct or re-open those findings. That finding means that the second respondent’s contention that it was denied procedural fairness in relation to that aspect of the contravention of s 58(1) that dealt with the ballot papers depicted in exhibit P7 and the ballot papers collected by Mr Zhang does not have any legal consequence.

14. In any event, there has been no denial of procedural fairness. The petitioner included the allegations in his petition and made submissions about this evidence in his closing submissions. The petitioner included the allegations in relation to exhibit P7 ballot papers and the papers collected by Mr Zhang in its pleading in relation to the contravention of s 58 of the Elections Act.

15. At paragraph 5.g of the petition, the petitioner pleads:

    5.g On occasion or occasions between 14 October 2022 and 10 November 2022, some 73 persons not known to the Petitioner dishonestly exercised vote at the Election to which that person was not entitled in contravention of section 58(1) of the Act:

    5.g.1 Refer to and repeat the facts set out at paragraph 5(e)(i) to (vi);

    5.g.2 In the premises, it may be inferred that the persons who forged the signature on the envelope also marked the vote on the ballot papers enclosed in the envelope and thereby exercised a vote at the Election to which that person was not entitled.

16. In paragraph 5.e.vi of the petition, the petitioner:

    refers to and repeats the facts set out above at 5.c.i to 5.c.v and says that it may be inferred from the above particulars that further forgeries occurred.

17. Those facts set out in paragraphs 5.c.i to 5.c.v. include the allegations in respect of exhibit P7 (in paragraph 5.c.iv) and Mr Zhang collecting unfilled ballot papers  (in paragraph 5.c.v.2). The effect of the incorporation of those paragraphs into paragraph 5.g is that, by reason of those matters, the Petitioner says that it may be inferred that further forgeries occurred (beyond the 73 persons specified in appendix A).

18. The second respondent further specially pleaded to that allegation. In paragraph 5.7.2 of his further amended response (which repeated the plea at paragraph 5.5.6), the second respondent’s plea was that he did not know and could not admit the allegations and further says that the inference alleged was speculative and not logically available. The inference is a reference to the inference that there were further forgeries by reason, inter alia, of the allegations in respect of exhibit P7 and Mr Zhang.

19. The petitioner also made submissions concerning the breaches of s 58(1) involving Mr Zhang and the persons in exhibit P7. In his written submissions in reply filed on 16 February 2024 at [147], the petitioner submitted that:

    As to  the first respondent’s  submission that the determination as to  paragraphs 5.e, 5.f and 5.g rise and fall together and rely on solely as to  the expert evidence, with respect this is based on a misunderstanding of the petitioner’s case that overlooks the pleadings at 5.e.vi and 5.f.i and 5.g.i which plead the matters in 5.c.1-5.c.v. The expert evidence does not stand alone, it is connected with and bolstered by the other evidence  discussed above at [62]-[134] [the evidence of the other illegal practices including exhibit P7 and Mr Zhang], (going to the Petition at 5.c.1-5.c.v) as to the commission of the following particular illegal practices per the:

    147.1 Petition at 5.e. that person/s made a statement in a declaration on the postal voting papers that they knew to be false or misleading in a material respect, in contravention of s 64(1) of the Act;

    147.2 Petition at 5.f. that persons (not being a person to whom the ballot papers was lawfully issued) marked a vote on a ballot paper, in contravention of s 64(2) of the Act; and

    147.3 Petition at 5.g. That persons dishonestly exercised a vote at the Election out of a contravention of section 58(1) of the Act.

20. These written submissions were filed in February 2024 prior to the re-opening of the case as a result of the further documents discovered by the second respondent.  At the time when these written submissions were filed, the second respondent objected to the submissions as including matters that were not properly the subject of reply. The Court observed that the submissions went beyond matters in reply, but having seen them, the Court had effectively no choice but to accept them and give the other parties the right to respond.[23]  In any event, the parties made further closing submissions on 28 October 2024 following the tendering of a further 1954 pages of further documents. In those further oral submissions, the petitioner in his closing address, specifically relied upon both sets of written submissions and the oral submissions made previously.[24]

    [23] T 1112.

    [24] T 1197.

21. The petitioner also made further submissions in its written submissions in reply relating to the evidence concerning exhibit P7 and Mr Zhang in relation to the contraventions of s 58(1) of the Elections Act. Those submissions were:

    (1)the evidence relating to Mr Zhang collecting unfilled ballot papers went to establishing illegal practices and the extent of the votes impacted by the various illegal practices even where the rebuttable presumption [in relation to the s 58(1) breach] did not exist (paragraph [72] of the petitioner’s written submissions in reply);

    (2)the rebuttable presumption operates in respect of the evidence relating to Mr Zhang collecting unfilled ballot papers, at least as it applies to make out a contravention of section 58(1) of the Act (paragraph [70] of the petitioner’s written submissions in reply);

    (3)the evidence relating to Mr Zhang collecting unfilled ballot papers also supported findings of a number of illegal practices pleaded in the petition, including Petition at 5.g. That persons dishonestly exercised a vote at the Election out[sic] a contravention of section 58(1) of the Act (paragraph [67.5] of the petitioner’s written submissions in reply);

    (4)the evidence relating to exhibit P7 was sufficient evidence, in and of itself, of several of the illegal practices, including s 61(1) and 58(1) (paragraph [104] of the petitioner’s written submissions in reply).

22. In oral reply submissions made on 16 February 2024 (before the reopening), the petitioner submitted that his case was circumstantial, and all evidence had to be considered in light of the evidence in exhibit P7.[25]

    [25] T 1103-1104.

23. The second respondent made submissions  in his closing address about the hearsay nature of Mr Zhang’s statement to Mr Ong.[26] In her oral address, counsel for the second respondent made submissions about the evidence of Mr Ong and his conversation with Mr Zhang and Mr Zhang “pouring his heart out and admitting he’s doing all these things that are amounting to illegal practices.”[27]

    [26] Written submissions on the law at [28]-[30].

    [27] T 1088-1089.

24. In these circumstances, there has been no denial of procedural fairness. The matters complained of were pleaded in the petition, responded to by the second respondent in his further amended response and the subject of submissions by the petitioner.

25. The second respondent further submitted that petitioner had confined his case to the 73 persons in his oral closing made on 2 February 2024. The following is the relevant part of the address by the petitioner:[28]

    [28] T999-1000.

MR OWER:	Yes, so it's the dinner at the AGM of the Jiangsu Chamber of Commerce. Now, Mr Ong observed or overheard a conversation between Mr Zhu and Mr Li. He observed Mr Zhu hand Mr Li a wad of what were described as completed enrolment forms, and he saw them to be signed enrolment forms, and that Mr Li left thereafter.
HIS HONOUR:	So what do you make of that?
MR OWER:	Well, in and of itself
HIS HONOUR:	Nothing
MR OWER:	nothing. But, yet again, it supports that there was action taken by persons to increase the enrolment. It also supports the fact that Mr Zhu was, in the circumstances, an associate, an agent of Mr Li's campaign. So to some extent, if one looks at the wider submission or contention of vote harvesting, it can be said that in combination with the other evidence concerning execution of ballot papers by persons other than the voters and handling of ballot papers by agents of Mr Li, he corroborates a finding that there was a scheme in place to attempt to exercise votes contrary to s.58. In addition, we also submit that in combination with the wider evidence contained
HIS HONOUR:	Well, 58's not pleaded, is it?
MR OWER:	Paragraph 5G of the petition
HIS HONOUR	Right, sorry. Well, that's relating to the 73 people
MR OWER:	Yes.
HIS HONOUR:	And really, well, you're repeating 5E, which is the evidence of the handwriting.
MR OWER:	In respect of Mr Tian Par Lim, we'll simply send your Honour some transcript references in relation to that. But there was no reason to doubt his credit in relation to the matter; he really was called to support the tender of Exhibit P12.

1. This passage does not limit the claim in paragraph 5.g of the petition to the 73 people. Senior counsel for the petitioner was simply responding to a question from the Court in the context of an earlier submission in the passage quoted above and evidence corroborating a finding that there was a scheme in place to attempt to exercise votes contrary to s 58. The submission about the 73 people is referring to that corroboration. In any event, the further written submissions to which I have referred made it clear that the matters pleaded in paragraph 5.c of the petitioner (including exhibit P7 and Mr Zhang collecting unfilled ballot papers) formed part of the allegations relating to the breach of s 58 in paragraph 5.g of the petition.

2. In the circumstances described above, there has been no denial of procedural fairness to the second respondent. The allegations were pleaded and the subject of submissions made by the petitioner. The second respondent had sufficient opportunity to respond to those submissions. The second respondent has not established that the hearing should be re-opened on this ground.

   Conclusion as to the application of the second respondent

3. It follows from the above analysis of the various complaints raised by the second respondent that he has not established that the Reasons should be corrected or varied or that the case should be re-opened. The second respondent’s application should be dismissed with costs on the standard costs basis. There is no reason that costs should be awarded on an indemnity basis.

   Declaration as to invalidity

4. The petitioner seeks an order that the 2022 periodic election for the Central Ward of the Adelaide City Council be declared void. The petitioner does so on the basis of the findings by the Court of the illegal practices. The first respondent submitted that, given those findings, there was no other order that could be made. The first respondent submitted that the only appropriate relief was for the election for the Central Ward to be declared void. The second respondent submitted that the case should be re-opened or the Reasons varied or corrected, but in the event that application failed, did not make any submission as to why the declaration in the above terms should not be made or why some other order or declaration should be made.

5. Ms Noon was granted leave to be joined to the proceedings for the limited purpose of making submissions as to the appropriate order to be made. Ms Noon was the candidate elected for the Central Ward who received the greatest number of votes. It was her above quota votes that were distributed at count 83. Ms Noon did not rely on any preferences to be elected and therefore received no preferences from the second respondent. Therefore, Ms Noon had not benefited from any of the illegal practices that the Court had found to have occurred. In those circumstances, Ms Noon submitted that her election should not be declared void or in other words, only the second respondent’s election should be declared void.

6. Section 48 of the Elections Act provides for a proportional system of voting in council elections to determine the councillors that are elected. Section 48(1a) and s 48(1)(c) provides for the following system:

   (1)the number of first preference votes for each candidate is counted. A quota is determined by dividing the total number of first preference votes by one more than the number of candidates to be elected;

   (2)if after the counting of first preference votes, no candidate has obtained the quota, the candidate who received the lowest number of first preference votes is excluded and their votes are transferred (at a transfer value of 1) to the next available preference for a continuing candidate;

   (3)if, after that transfer has been completed, no candidate had received the quota, that process continues with the candidate who has received the lowest number of votes excluded, until one candidate receives the quota;

   (4)the surplus votes of a candidate who has receive the quota are transferred to the next available preference to a continuing candidate at a transfer value calculated by dividing the number of surplus votes by the number of first preference votes received by the candidate.

7. In NSW Electoral Commissioner v Kempsey Shire Council (No 2) (Kempsey),[29] Beech-Jones CJ at CL addressed the issue of whether, in circumstances where there had been a failure in the voting system, a declaration that all of the councillors were void was required or whether a declaration could be made concerning only those councillors whose own election was directly affected by the failure of the system.[30] The reason why the appropriate order of the Court may require the election of the Central Ward to be declared void and not just the individual councillors affected by the result arises from the prescription in s 48 of the Elections Act was that the proportional system of voting must be used to fill council elections for more than one position.[31] Therefore, the Elections Act requires not the election of councillors who each had the required support of a majority of the electorate but councillors who in their totality reflected the choice of the entire electorate in proportion to their numerical strength.[32]

   [29] [2022] NSWSC 282.

   [30] Ibid, [87].

   [31] Ibid, [88].

   [32] Ibid.

1. Beech-Jones CJ at CL in Kempsey referred to the decisions in Re Wood[33] and Australian Electoral Commission v Johnston & Ors (Johnston).[34] In Re Wood, the High Court (in a unanimous decision), observed that an outcome for a supplementary election was inappropriate because such an election would fill the vacant place by what would in effect be preferential voting for a single member constituency, not by proportional voting for a multiple member constituency. The manifest purpose of the proportional voting system would be liable to be frustrated if a further poll was taken in which the quota would be more than 50% of the votes cast.[35]

   [33] (1988) 167 CLR 145; [1998] HCA 22.

   [34] (2014) 251 CLR 463; [2014] HCA 5.

   [35] (1988) 167 CLR 145, 166; [1998] HCA 22.

2. In considering Johnson, Beech-Jones CJ at CL observed[36] that the final outcome was that the election of all six senators for Western Australia was declared absolutely void[37] even though the election of the first four senators was not (directly) affected by the missing votes. Beech-Jones CJ at CL observed that the invalidation of all six senators did not appear to be the subject of argument, presumably because it was accepted that the result had to follow because of the reasoning in Re Wood.[38]

   [36] [2022] NSWSC 282, [96].

   [37] (2014) 251 CLR 463, 503; [2014] HCA 5.

   [38] [2022] NSWSC 282, [96].

3. Beech-Jones CJ at CL then made the following conclusions:[39]

   These two cases are especially instructive for this case not just because of the stature of the decision maker but because they concerned what is effectively the same form of electoral system. The reasoning in Re Wood and the result in Johnston confirms that, absent statutory provision to the contrary, where a relevant defect affects the election of at least one representative in a single transferable vote system of proportional representation then the remedy cannot be, or at least should not be, to order a by‑election for the affected positions where to do so would be to impose on the electorate a different electoral system to that which has been legislated. It further follows from the reasoning in Re Wood and the result in Johnston that where the defect or error has resulted in the disenfranchisement of a material number of voters in a single transferable vote system of proportional representation and where their voting intention cannot be (properly) ascertained such that a vote count in accordance with the relevant legislation cannot be conducted, then the appropriate outcome is to void the entire election.

   In this case, the first emphasised passage in Re Wood in [citation] is especially applicable to Shellharbour City Council-Ward A. Ms Marsh was the preferred candidate of the majority of electors but the contest between Ms Edwards and Mr Bitschkat was close. To only void Ms Edwards’ election and force a by‑election for one position would effectively result in each councillor position for Shellharbour City Council-Ward A being separately elected under a single candidate optional preferential system when the LGA requires that they be elected using a proportional system of representation. Subject to considering the other discretionary matters raised by the defendants, the appropriate relief is to declare both positions void.

   With reluctance I also reach the same conclusion with Kempsey and Singleton Councils. To grant relief that resulted in by‑elections for one or perhaps two Councillor positions for each of those Councils would mean that within 18 months of their last ordinary election they would have Councillors elected under two radically different election systems. Again, subject to considering the other discretionary matters raised by the defendants, the appropriate relief is to declare all positions on both Councils void.

   [39] Ibid, [97] and [104]-[105].

4. I consider that the reasoning of Beech-Jones CL in Kempsey is applicable to the determination of the relief and the nature of the declaration that the Court should make in the present case. If the Court was to make orders declaring void only the election of Mr Li, there would be the consequence, to use the words of Beech-Jones CJ at CL in Kempsey and the High Court in Re Wood, that councillors would be elected under two radically different election systems. The first three councillors would be admitted using the proportional system when the fourth councillor would be elected under a single candidate optional preferential system.

5. I have also considered whether the Court is able to exercise its power under s 71(1)(f) of the Elections Act to declare that Mr Li, who was returned as elected, was not duly elected and that Mr Hyde, who was not returned as elected, was duly elected. Both the petitioner and the Commissioner made submissions that it was not possible to make these declarations under s 71(1)(f) in that, on the findings made by the Court, it was possible to make a finding that the second respondent was not duly elected, but that it not possible to make a finding as to who was duly elected. As the Commissioner submitted, the secrecy of the ballot and the inability to identify the precise number of votes that were affected by illegal practices (beyond the 31 votes that were identified), meant that the votes could not be recounted so as to re-construct a polling result which disregarded those votes. This is not a case where the consequences were clear.

6. Section 71(2) provides that the Court may exercise its powers (which in this case, included a power to declare an election void) on such ground as the Court in its discretion thinks just and sufficient. Matters such as the cost and inconvenience of holding a new election, the disruption to the community in holding a new election and the inconvenience and disruption caused to other persons, including Ms Noon who were elected, are matters of significant weight for the Court to consider when exercising its discretion. However, as Beazley JA held in Bourne v Murphy, they are not sufficient to override the fundamental right of candidates to be elected in accordance with the wishes of the electorate. In Kempsey, Beech-Jones CJ at CL held that it was the interests of the electors and not the elected that are paramount and that it was not part of the Court’s function to make assessments whether electors are better off without a properly elected council. That means that the fundamental right to have a democratically elected council, in accordance with the relevant statutory regime, will almost invariably be of such weight that it will prevail over other interests. It does so in the present case.

7. The Court therefore makes an order that the 2022 periodic election for the Central Ward of the Adelaide City Council be declared void.

   Costs

8. Pursuant to s 78(1) of the Elections Act, the Court may make such orders for costs as it thinks fit. The Court therefore has a broad discretion as to what orders for costs it should make. Therefore, although the matters set out in Uniform Civil Rules 194.6 are relevant discretionary matters, there are, as the Commissioner submitted, further relevant considerations, such as the subject matter of the petition being concerned with the democratic process of elections under the Elections Act and the Commissioner’s statutory role under the Elections Act.

9. The petitioner seeks two costs orders. First, that the second respondent pay the petitioner’s costs of and incidental to the interlocutory application FDN 107, including all costs incurred by the petitioner as from 21 March 2024 to 28 October on the indemnity basis or on a solicitor-client basis. Secondly, subject to that first order, the petitioner seeks an order that the respondents pay the petitioner’s costs of the proceedings (i.e. the respondents are jointly and severally liable for those costs).

10. The Commissioner submitted that no order for costs should be made against him. The Commissioner submitted that he was joined as a respondent to the proceedings by the petitioner and was required to assist the Court with respect to information not otherwise available to the parties. It was further submitted that the Commissioner’s conduct did not increase the costs of the proceedings in a material manner. In the alternative, the first respondent submitted that the Commissioner should be liable to pay no more than 25% of the petitioner’s costs to be agreed or taxed. Those costs, it was submitted, should be subject to a number of carve outs, which I will address later in these reasons. The Commissioner agreed that the second respondent should bear responsibility for the costs of the interlocutory application FDN 107 as those costs were attributable to the conduct of the second respondent.

11. In the event that his application to re-open or for the Court to correct vary its reasons is not successful, the second respondent did not oppose an order that the order sought in relation to interlocutory application FDN 107, such costs to be payable on a solicitor-client basis save for an application to file an amended petition (FDN 107 later replaced by FDN 110) and leave to cross-examine the second respondent in relation to his discovery obligations (FDN 120). Both of these applications were abandoned, and it is appropriate that there be no costs orders in relation to; (1) FDN 107 (later replaced by FDN 110) in so far as it deals with the application to amend and (2) FDN 120. The second respondent further submitted that the first and second respondent should otherwise be equally responsible for costs.

12. It is appropriate that the petitioner have its costs of an incidental to  interlocutory application FDN 107 including all costs incurred by the petitioner as from 21 March 2024 to 28 October on a solicitor-client basis. There was no opposition to that order (the Court having dismissed the second respondent’s application to re-open or vary or correct its reasons). The application in March 2024 of the petitioner to re-open in FDN 107 was caused by the second respondent failing to make proper discovery. It is therefore appropriate that the second respondent pay the petitioner’s costs of that application on a solicitor-client basis.

13. As to the balance of the costs of the proceedings, the petitioner sought his costs against the Commissioner and the second respondent on the basis that he was successful in the proceedings. It is appropriate there be no order for costs in relation to the earlier application by the petitioner to amend his petition (FDN 30).

14. Senior counsel for the Commissioner referred to two cases in support of her contention that the Commissioner should not be liable for costs. The first was Richards v Paddy & Ors (No 2)[40] in which Kourakis CJ held that the exercise of the power of the Court of Disputed Returns to order costs (which in that case was sourced in the District Court Rules, but in the present case is sourced in s 78 of the Elections Act), is not governed by the same considerations that govern the exercise of the discretion to award costs in ordinary civil matters. Kourakis CJ held that subject matter of petitions is fundamentally different in character from normal civil actions and that it was the supervision of the democratic purpose of granting a limited, but very important, measure of self-governance to the aboriginal community in the APY lands. Kourakis CJ went on to hold that the community was small and impoverished and that members of the community should not be constrained in bringing petitions to raise genuine grievances about the conduct of an election because of the risk of an adverse costs order.

    [40] [2016] SADC 21.

15. The considerations identified by Kourakis CJ do not apply to the present case. The Commissioner is not in any position of disadvantage. It was not a case where the Commissioner was seeking to raise grievances. In this case, the Commissioner was defending the petition which raised factual matters relating to conduct that occurred during the course of the election for the Central Ward.

16. The second case relied upon the Commissioner was Free v Kelly.[41] In that case, Brennan CJ held:

    The Commission may be represented and heard under s 359 in at least four categories of case: cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election; cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions; cases where the Commission adopts a partisan stance supporting one party or another; and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition. It may be appropriate to make an order for or against the Commission in the first three categories of case, but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest. The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings. Being incidental to the proper performance of its statutory functions, the cost of being represented and heard ought properly to be borne as a cost of the Commission's administration. This is such a case. Expressing, as I do, appreciation of the considerable assistance that the Commission offered - not least in the preparation of an agreed statement of facts - it is appropriate to make no order with respect to the costs of the Commission.

    [41] (1996) 185 CLR 296; [1996] HCA 42.

17. The first respondent submitted that the following matters were relevant to the exercise of the discretion in this matter:

    (1)the statutory role of the Commissioner under the Elections Act;

    (2)the Commissioner did not seek to be involved but was joined as a respondent by the petitioner;

    (3)allegations were made about conduct of the Commissioner;[42]

    (4)the Commissioner’s role was contained to responding to those allegations and assisting the Court in explaining the evidence regarding the investigations that were undertaken and the process of the local government elections more generally.

    [42] Paragraphs 6.c..i.3, 6.c.i.4 and 6.c.i.5(a).

18. The first respondent submitted that the Commissioner’s role did not neatly fit into any of the four categories identified by Brennan CJ in Free v Kelly. Although, the Commissioner was joined to the proceedings by the petitioner, it is not clear why the petitioner did so. The only direct relief sought against the Commissioner was that a new election be convened by the Commissioner. That is not a necessary order and not one of the final orders sought by the petitioner.  The Elections Act determines the procedure to be adopted once an election is declared void.

19. However, I do not agree that the Commissioner’s role was limited to responding to the allegations made against it and assisting the Court. The Commissioner submitted that given the allegations against him, it was not open to the Commissioner to adopt a neutral position. I do not accept that submission. The Commissioner could have undertaken a limited role in defending or explaining the extent of  the investigation he had undertaken and the role of the scrutineers in that process and otherwise agreed to abide the event. The Commissioner did not take that approach and instead took an active role in the proceedings opposing the petition. This is evident by the position adopted by the Commissioner in the proceedings and the steps that he undertook.

20. First, in his reply (revision 2) to the petition, the Commissioner admitted at paragraph 4 that an illegal practice occurred in relation to the election but otherwise denied the candidates elected, including the second respondent, were not duly elected, that the election was  invalid, that the illegal practices affected the result of the election or that the election was not a free and fair election. The Commissioner also denied that the petitioner was entitled to an extension of time to bring certain of the allegations. The Commissioner also sought an order that the petition be dismissed.

21. Secondly, during the course of the trial, the Commissioner took an active role in cross-examining the witnesses of the petitioner. That cross-examination was not limited to matters that specifically concerned allegations concerning the conduct and investigation of the Commissioner but also concerned the allegations made against the second respondent or those acting on his behalf. Further, the Commissioner engaged a handwriting expert to contradict or at least call into question the opinions expressed by the handwriting expert called by the petitioner. The Commissioner opposed the application of the petitioner to re-open.

22. Thirdly, in his written closing, the Commissioner submitted that the petitioner had not established any of the illegal practices alleged in the petition, that the alleged illegal practices did not affect the outcome of the election, and no basis had been established to declare the election void. The Commissioner made submissions about the factual matters relied upon by the petitioner as the basis for the relief that he claimed.

23. There was some aspects of the role that the Commissioner undertook in the trial that assisted the Court and the hearing of the petition. The two affidavits of the Commissioner that were filed in the proceedings and the evidence in chief of Mr Sherry fall into this category. The information contained in that evidence concerned how the election took place and its results and was essential context for consideration of the evidence adduced by the petitioner. The Commissioner did not lead that evidence for his own purposes.

24. The Commissioner also made submissions on some topics that could be described as assisting the Court on these issues. The submissions on the use of hearsay evidence and the law regarding the common law of elections fall into this category. These are not matters which should be taken into account when making an adverse costs order.

25. Further, the Court has found that the petitioner’s criticisms of the  Commissioner’s investigation were not justified. The Court finds that the Commissioner was entitled to give evidence relating to the investigation, include scrutineers and explaining what steps were undertaken during the course of the investigation.

26. The Commissioner submitted that his conduct during the course of the trial did not contribute to the length of the time taken in resolving those issues. That is not accurate as the Commissioner took some time in cross-examining witnesses, calling a witness and making submissions opposing the petition. In a case where two parties, with separate interests, both actively oppose a claim or petition, I do not consider that one party can escape a liability for costs, in the event that their opposition fails, by saying that they did not contribute to the length of the time taken.

27. Taking into account on the one hand the active role of the Commissioner in defending the petition and on the other hand the Commissioner’s role in assisting the Court and in properly responding to the criticisms of the investigations and the findings that were ultimately made by the Court, including in relation to the Commissioner’s investigation (in which the Court dismissed criticisms of the Commissioner’s investigation), I consider that it is appropriate that an order be made that, excluding the costs on the re-opening, the first respondent pay 30% of the costs of the petitioner on the standard costs basis. It follows therefore that an order is made that the second respondent, excluding the costs that have already been ordered and the further carve out to which I refer below, pay 70% of the costs of the petitioner on the standard costs basis.

28. The Commissioner has submitted that in the event that a costs order is made against him, certain costs should be excluded. I will deal with each of those matters separately.

1. First, the Commissioner contends that the petitioner was unsuccessful in making out the bribery and should not be entitled to is costs in relation to this issue. Although I accept that the Court of Appeal in SkyCity Adelaide Pty Ltd v Treasurer of South Australia (No 2),[43] held that there was a greater preparedness to ward or deny costs on an issue basis,[44] I do not consider this to be such a case. The bribery allegations did not occupy a significant part of the trial. Further, as the petitioner submits, the evidence relating to the dinner at which the bribery was said to have been made, was required to have been led in any event.

   [43] [2024] SASCA 18.

   [44] Ibid, [17].

2. Secondly, the Commissioner submits that the disbursement relating to Mr McGinn’s report ought not be recoverable. Mr McGinn, after he prepared his  two reports became ill and was unable to give evidence. The petitioner decided to engage Mr Hobden, another expert, to prepare a report and give evidence. In substance, the report and evidence of Mr Hobden replaced the report of Mr McGinn. In these circumstances, it is not appropriate that the petitioner recovers the disbursement with respect to Mr McGinn’s report.

3. Thirdly, the Commissioner submitted that the matter be certified fit for senior counsel and junior counsel only and not for three counsel. I agree that a certificate that the matter be certified fit for senior and junior counsel. I make no further certification. The number of counsel to be allowed on a party and party taxation is a matter in the discretion of the taxing officer.[45] I observe that it was only on rare occasions that the petitioner was represented by more than two counsel in court.

   [45] Friend v Solly (1847) 10 Beav 329, 50 ER 608.

4. Fourthly, the Commissioner submitted that the petitioner should not be entitled to his costs relating to hearing on 25 January 2024. On 24 January 2024, the Court heard evidence from Mr Hobden, the handwriting expert called by the petitioner. Cross-examination of Mr Hobden was completed just prior to 3.55pm on 24 January 2024 but counsel for the second respondent sought an adjournment to the following day to allow senior counsel (who was not present in Court) to consider the transcript for the purposes of re-examination. On the following day, re-examination of Mr Hobden took only 10-15 minutes before the Court adjourned for the day. In those circumstances, the hearing on 25 January 2024 was wasted. I order that the petitioner be not entitled to his costs of the hearing on 25 January 2024.

5. Fifthly, the Commissioner submitted that an order should be made that the petitioner not be entitled to his costs of preparation for 5 days trial commencing on Tuesday 17 October 2023 when the trial did not proceed during that week because the court dealt with the extension of time argument. The trial commenced on 17 October 2023 when senior counsel for the petitioner opened his case. In the afternoon of 17 October 2023, the then senior counsel for the second respondent submitted that the Court should hear the application for the extension of time and admit the evidence that is going to be admitted in support of that application.[46] Counsel for the Commissioner submitted that he had raised at a pre-trial hearing dealing with the extension of time point up front.[47] Ultimately, senior counsel for the petitioner agreed that there be a separate determination of the amendments including the question of the extension of time.[48] Evidence was then called on the voir dire on Wednesday 18 October 2023 and the parties made submissions. Ultimately, the Court reserved its decision.

   [46] T 60.

   [47] T 65.

   [48] T 67.

6. The Commissioner made reference to some pre-trial submissions that were made on this issue. On 27 March 2023, the Commissioner accepted that the general practice in South Australia had been the extension of time points were dealt with at trial but that he wished to consider whether the contention of the petitioner that the matter be dealt with at trial was still good in light of the decision in Prince Alfred College v ADC.[49] On 29 March 2024, senior counsel for the Commissioner submitted the amendments remained opposed but that the Commissioner was content to proceed on the basis that it be determined at trial.[50]

   [49] (2016) 258 CLR 134. T4, 27 March 2023.

   [50] T4, 29 March 2024.

7. In these circumstances, I do not consider that there has been any conduct on the part of the petitioner that warrants an order that he not be entitled to all or some of the costs associated with the hearings in the week of 17 October 2023. There was no fault on the part of the petitioner that the Court acceded to the submissions of the second respondent (and ultimately accepted by the petitioner) that the extension of time point be heard first. It is ultimately a matter for the taxing officer to determine what costs that are claimed by the petitioner for work undertaken in this week should be allowed.

   Conclusion

8. For the reasons that have been expressed, the Court makes the following orders:

   (1)The application of the second respondent to re-open the case or for the Court to correct or vary the Reasons is dismissed.

   (2)The second respondent pay the costs of the petitioner of and incidental to that application on the standard costs basis.

   (3)It is declared that the 2022 periodic election for the Central Ward of the City of Adelaide is void.

   (4)The second respondent pay the petitioner’s costs of and incidental to interlocutory application FDN 107, including all costs incurred by the petitioner as from 21 March 2024 to 28 October 2024 on the solicitor-client basis within the meaning of UCR 191.1 save that there be no costs in respect of that part of FDN 107 (replaced by FDN 110) that deals with the application to file an amended petition and FDN 120.

   (5)Subject to order 4 and the matters identified in paragraphs 109 and 111 of these reasons, the second respondent pay 70% of the petitioner’s costs of the proceedings on the standard costs basis save there be no costs in relation to FDN 30.  

   (6)Subject to order 4 and the matters identified in paragraphs 109 and 111 of these reasons, the first respondent pay 30% of the petitioner’s costs of the proceedings on the standard costs basis, save there be no costs in relation to FDN 30.