Bell v Culleton

[2017] HCATrans 204

[2017] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Perth   No P43 of 2016

B e t w e e n -

IAN BRUCE BELL

Petitioner

and

RODNEY NORMAN CULLETON

Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON THURSDAY, 19 OCTOBER 2017, AT 11.29 AM

Copyright in the High Court of Australia

MR I.B. BELL appeared in person.

MR B. LEVET:   May it please your Honour, I appear with MR G.C. CORR, for the respondent.  (instructed by Maitland Lawyers)

MR C.L. LENEHAN:   May it please the Court, I appear for the Attorney‑General, intervening in that matter.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  What I thought I would do is I would identify what I have in front of me in terms of the relevant moving documents and then each of you can tell me whether I have got it wrong.  So, in P43 it seems to me the relevant documents are the election petition filed on 7 September of last year, the summons for directions filed by Mr Bell on 1 November and then the amended summons on 14 November, together with the revised outline of submissions of 14 November.

I then have the summons filed by the Attorney‑General for the Commonwealth of 15 September this year, together with an affidavit of Mr Gatehouse and an outline of submissions filed on the same day.

Then, putting aside documents which were filed but are not relevant, as I understand the position, I then have an outline of submissions from Mr Culleton of 16 October, an affidavit of service with exhibits of 18 October and, finally, a list of authorities which was filed today.

MR LENEHAN:   Yes, your Honour, and I apologise for the lateness of the list of authorities.

HER HONOUR:   That is all right.  Am I missing any document that I need to have consideration of in relation to P43 from that which I have listed?

MR LEVET:   No, your Honour.

MR LENEHAN:   Not from the Attorney’s perspective.

MR BELL:   No, your Honour.

HER HONOUR:   Great, achieved one objective of the day.  All right, it seems to me, Mr Bell, that the best way I think it might be to deal with this matter is to listen to Mr Lenehan’s application, for you then to respond to it and to also address your summons for directions at the same time.

MR BELL:   Yes, your Honour.

HER HONOUR:   Great.  Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  So, in relation to the election petition matter, we have noted in the written submissions at paragraphs 7 and 6 that there were a number of formal defects which would in the normal course of things be regarded as insuperable, but what we go on to say is that your Honour does not need to determine that issue because there are some more fundamental difficulties with the relief as it is effectively pleaded.  As your Honour has seen from the written submissions, broadly we say the petition seems to seek two things.  First, it seeks an order that Mr Culleton was disqualified and then seeks to have the Court make effectively consequential orders for the filling of that vacancy, and you see that in prayers 1, 3 and 4 although, immediately stopping there, 3 and 4 also seem to have in mind a broader project which is to suggest that all 12 Senate seats may have become vacant, and I will come back to that.

But, staying with the question of Mr Culleton’s disqualification and consequential orders, your Honour will have seen that the Attorney says that that is entirely overtaken by this Court’s decision in Re Culleton [No 2] where the Court answered questions under a reference under section 376 of the Electoral Act to the effect that former Senator Culleton’s seat was vacant by reason of section 44(i) and that vacancy was to be filled by a special count.

As your Honour knows, following that decision, orders were ultimately made by Chief Justice Kiefel and Justice Keane on 10 March 2017, and the transcript is included in our list of authorities.  In that decision, Senator Georgiou was declared duly elected as the senator for the place for which Mr Culleton was returned.  We say, in light of all of that, there is no tenable basis for now either reopening those decisions or for revisiting either the question of Mr Culleton’s qualification or the question of how his vacancy should be filled. 

Now, that then leaves I think what I have described as the more ambitious project relating to all 12 senators.  That argument, as we understand it, is put on two bases and the Attorney’s submission is that neither of those bases is viable.  First, at least in the pleaded case, that is, by reference to the petition, Mr Bell seems to rely solely on the fact that Senator Culleton was returned despite being incapable of being chosen.

That, the Attorney says, as your Honour will have seen from the written submissions, is no tenable basis for invalidating the election of all elected senators because that, of course, would fly directly in the face of what was in fact held in Re Culleton [No 2] at paragraph 43 where this Court reaffirmed what had been held earlier in Re Wood, that is, an election is not voided if an unqualified candidate stands and, as I said before, the Court then went on to determine that a special count was in fact the appropriate way to fill that vacancy.  We have given references to similar passages from the authorities, including Re Wood and also Re Day [No 2].  So, that first basis for saying that all 12 senators are somehow – that there should be an election in respect of all 12 senators cannot be…..

There seems to be a second basis that is now put forward and that seems to be, as we understand it, identified in the submissions of yesterday, although your Honour does not find it anywhere in the petition.  That apparently relies upon the amendments that were made to the Commonwealth Electoral Act by the Commonwealth Electoral Amendment Act 2016 and your Honour will recall that the Court considered that in Day v Australian Electoral Officer (2016) 90 ALJR 639, which is also on our list.

Although it does not clearly emerge from the written submissions, what appears to be said by Mr Bell is that those amendments are at odds with either the requirement of section 7 of the Constitution, the requirement that the Senate be directly chosen by the people or, alternatively, because it amounts to some sort of effective disenfranchisement, and in the passages that we have given your Honour in Day, that is, paragraphs 50 and 54, your Honour would recall that a similar argument was advanced in that matter by Senator Day, was rejected by this Court and the submission that the Attorney makes is that those arguments would similarly be bound to fail here.  So, for those reasons, the Attorney says that the electoral petition should be dismissed on a summary basis.  In the submissions we have referred to rule 27.09.04 ‑ ‑ ‑

HER HONOUR:   It is not right, is it?

MR LENEHAN:   Well, I think your Honour is right there and anticipating what I am about to say.  I think section 360(1) ‑ ‑ ‑

HER HONOUR:   I think that is the only basis upon which you could seek dismissal.

MR LENEHAN:   Yes, I think I have to accept that, your Honour.

HER HONOUR:   Just one moment, please, Mr Lenehan.  Mr Bell, is there someone there at your end who is flicking papers in front of you?

MR BELL:   Not that I am aware of, your Honour.

HER HONOUR:   Okay, thanks, Mr Bell.  Have a seat, thank you.

MR LENEHAN:   Thank you, your Honour.  Exactly, your Honour, I think that is the provision that we would be relying on.  Alternatively, if your Honour is not minded to dismiss the matter, you will have seen that we suggest that it be remitted to the Federal Court under section 354(1) of the Electoral Act.  Those are the submissions that I wish to make on the electoral petition, your Honour.

HER HONOUR:  Thank you.  You do not seek costs, do you?

MR LENEHAN:   I do not, your Honour.

HER HONOUR:   Thank you.  Mr Levet.

MR LEVET:   Your Honour, we adopt paragraphs 6 and 8 of my learned friend’s submissions in respect of that and support the summary dismissal.

HER HONOUR:   And do you seek costs?

MR LEVET:   Yes, your Honour.

HER HONOUR:   All right.  Mr Bell.

MR BELL:   Your Honour, I first of all do not have a copy of the submissions that have just materialised together in the last day that have just been addressed.

HER HONOUR:   I do not quite understand that.  What submissions are you referring to?  The ones that were filed that Mr Lenehan relies upon were filed on 15 September 2017.

MR BELL:   I believe then it was just the list of authorities that has come to notice recently.

HER HONOUR:   I see.

MR BELL:   Your Honour, there are several issues and in my outline of argument they are listed towards the end I think.  On page 4 ‑ ‑ ‑

HER HONOUR:   Yes.

MR BELL:   ‑ ‑ ‑ on the latter half, those four issues are what I would suggest militate against any dismissal because, apart from anything and everything else, those issues are not yet determined.  The referral to the Senate was essentially on identical grounds to what I raised and at the call‑over last November in front of then Chief Justice French I raised the issue and I checked with him that he did have in front of him an affidavit I had filed about a week before pointing out that, instead of assuming that the application was incompetent in that respect, it had been impossible for me at the time of filing to get hold of the court records from the court in New South Wales that was the nub of the whole issue on the Culleton matter and only when ‑ simply because the court, despite it being a criminal matter and justice needing to be done and seen to be done, I could not get hold of the record.  They would not disclose it without a subpoena.

So, until I got to a directions hearing, I could not get a subpoena.  But, in any event, by then the Crown had sought the records, got the whole lot, a lot of pages, and I got the part that I needed because they then did acquiesce and give it to me, so I could not do better with the application in the first instance.

So, I stand here now without having amended at all and waiting to see what should be an amendment, and there is more in my outline about why I think that this and other matters in my two applications need to go forward.  So, far from being incompetent, the Senate ran it and five Judges in unanimity agreed with the fundamental submission.

So, we then have what should happen from here, and I am just saying that the matters are really those four on that application P43.  It is my submission that in fact – and I think it is tolerably well made out in the outline of argument I am looking at and referring to now – the matter of replacing a senator when the perhaps best expert witness in the country says it cannot be done on a recount, needs to be properly ventilated in this Court.

HER HONOUR:   So, as I understand your position, you rely on the format as set out in your outline of submissions as the reasons why this matter should either stay in this Court or be remitted?

MR BELL:   Well, remitted is to my mind, your Honour, not appropriate because this is nudging right into areas where even a Full Bench of this honourable Court has ruled, but it would appear to me that they have done it without understanding what the expert witness, perhaps the best in the country, the ABC’s man that I have cited, says, and that is because of the way the Senate vote is now structured and counted, it is not possible on a recount to allocate replacement senators without a replacement election, and that issue has been just not fully addressed and I think it needs to be addressed, and my submission is very strong, it needs to be addressed in this Court and perhaps by a Full Court because ‑ ‑ ‑

HER HONOUR:   I understand that submission.  That is the submission set out in your written submission.

MR BELL:   Yes.

HER HONOUR:   Yes.

MR BELL:   Now, the other matter is that it might be a pyrrhic victory at this stage, but Mr Culleton is due to pay whatever it is in the Common Informers Act to me as the informer.

HER HONOUR:I am not dealing with the Common Informers Act provision at the moment.  I am just dealing with the petition as the Court of Disputed Returns.  I will then adjourn and then I will deal with the other action separately, because they are in different jurisdictions.  So just deal with at the moment ‑ ‑ ‑

MR BELL:   Yes, your Honour, but ‑ ‑ ‑

HER HONOUR:   Just with the petition for the moment, and I want to keep them very clear and separate.  So, in relation to the petition, I understand your submissions which you have filed which you now rely upon.

MR BELL:   Yes.

HER HONOUR:   Do you wish to say anything else in relation to that matter?

MR BELL:   I do, and the point is made in my outline at some point.  I just want to reiterate it very briefly.

HER HONOUR:  Yes, please.

MR BELL:   That is that these two applications are actually joined at the hip and they were only separated because of uncertainty in the Registry about whether they could be run together in one application, but there is a lot of overlap.  So certainly, your Honour, I understand we will address P43 at this time.

HER HONOUR:   Thank you.  Anything else you wish to say, Mr Bell?

MR BELL:   I do not think so, thanks, your Honour.

HER HONOUR:   Thank you very much.  Anything in reply, Mr Lenehan?

MR LENEHAN:   Your Honour, only the first of those four matters arises in the electoral petition.  The others ‑ ‑ ‑

HER HONOUR:   I am sorry, I cannot quite hear you, so you will need to speak up for me.

MR LENEHAN:   I am sorry, your Honour.  Only the first of those four matters that Mr Bell has identified arise in the electoral petition.  The others seem to relate to the common informers action.

HER HONOUR:   Yes.

MR LENEHAN:   As to the first matter, that matter has in fact been determined by a Full Bench, as I said.

HER HONOUR:   Just so I am clear that we are talking about the same things, what paragraph are you looking at?

MR LENEHAN:   Paragraph 1 of what appears on page 4.

HER HONOUR:   Yes.

MR LENEHAN:   That is all I wish to say in reply, your Honour.

HER HONOUR:   All right.  What I propose to do, Mr Bell, is to consider this matter because the matter requires serious consideration, and the Court will reserve its decision and publish its judgment at a later time.

MR BELL:   Thank you, your Honour.

HER HONOUR:   The Court will adjourn as the Court of Disputed Returns and reconstitute as the High Court.  Adjourn the Court.

AT 11.45 AM THE MATTER WAS ADJOURNED