Bourne v Murphy

[1997] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S195 of 1996

B e t w e e n -

CHRISTINE BOURNE

Applicant

and

ALICE MURPHY

First Respondent

ANTHONY BOUNADER

Second Respondent

E.I. DICKSON

Third Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 1997, AT 11.30 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friend, MR P.E. KING, for the applicant.  (instructed by Smallwood Cathcart)

MR S.C. ROTHMAN, QC:   If the Court pleases, I appear with my learned friend MS N.H. RUDLAND,  for the first respondent.  (instructed by Geoffrey Edwards & Co)

MR J.S. WHEELHOUSE:   If the Court pleases, I appear for the second and third respondents.  (instructed by the Crown Solicitor for New South Wales)

DAWSON J:   Yes, Mr Bennett.

MR BENNETT:   The first point is extremely short, your Honours.  It concerns the word “irregularity”.  We have prepared a schedule, copies of which I hand to your Honours, which shows the extent to which the word “irregularity” is used in Acts dealing with elections in the context of challenges and your Honours will see that covers the whole first page and the top third of the second page.  It includes the South Australian and Queensland Electoral Acts as well as numerous Industrial Relations Acts, Local Government Acts and Acts of that sort.  Surprisingly, there is no case which discusses the simple question whether, if a returning officer makes a decision in relation to the formality of a ballot paper, which is on some test or another subject to be challenged and the result may be affected, that is an irregularity. 

KIRBY J:   This is a challenge to a 1995 election?

MR BENNETT:   Yes, your Honour.

KIRBY J:   When does the next regular election of the council take place?

MR BENNETT:   Four years, your Honour.

KIRBY J:   So it comes up in 1999?

MR BENNETT:   Yes, your Honour.

KIRBY J:   Your client has been in office until now by stay orders, is that correct?

MR BENNETT:   Yes, your Honour.

KIRBY J:   So she is still there?

MR BENNETT:   Yes, your Honour.  We would submit that is an important question, a question on which there is no direct authority ‑ ‑ ‑

DAWSON J:   But the meaning of the word will differ from context to context, Mr Bennett.

MR BENNETT:   Yes, your Honour, it does.  But in the context of elections and Acts dealing with elections, it is a word which, to some extent, may be regarded as a term of art.  We would submit that it is simply not appropriate to apply it to this sort of case.

But may I go to the second point which I need to say a little more about and which, in a sense, ties in with that.  Your Honours have in the material which was provided before the hearing the regulations under the Local Government Act.  Your Honours will see that regulation 73 provides that a ballot-paper is informal if certain matters occur, one of which is if:

it has not been completed in accordance with the directions -

and there is a qualification about it not being informal -

if, in the opinion of the returning officer, the elector’s intention is clearly indicated -

One then goes to regulation 77, two pages on, and subregulation (4) ‑ this is dealing with the scrutiny, says:

the returning officer must:

(a) reject any ballot-paper classed as formal by the presiding officer if, in the returning officer’s opinion, it is informal;

and vice versa.  So the ultimate test is the opinion of the returning officer, whether you are under subregulation 73(4) or generally.  Now, what happened here was the trial judge said, “I’m in as good a position as the returning officer.  I will look at all these.  In this case where the returning officer said it was a seven, not a one, I don’t agree.  I think it was a one.  This one is valid.  This one is invalid” and so on.  That was the approach of the trial judge.  The approach of Justice Priestley, who dissented and found in our favour, was that you apply the Wednesbury test, which we submit is correct.  Applying the Wednesbury test he held that only one of the 22 challenged votes was formal on the basis that all the others a reasonable returning officer could have come to the opposite conclusion.  Indeed, in relation to some of them he said, “Even if I applied putting myself in the position of the returning officer, I’d take that view.” 

Justice Cole held that you apply the Wednesbury test to a regulation 73(4) challenge and a “put yourself in the shoes of the returning officer” test to a 73(1) challenge.  With respect, that cannot be right because of the terms of 77(4) which makes even the 73(1) determination something which depends on the returning officer’s opinion.  The result is he classified things in that way and, in some cases, relied on the fact that it was simply a matter of “I’m in as good a position as the returning officer”.  Justice Beazley, finally, said she agreed with us that you apply the Wednesbury test but then applied it and held that most of these decisions were so unreasonable that no reasonable person could have come to them.

KIRBY J:   You have just demonstrated that this is a matter on which, putting it not too finely, there is a clash of different opinions and different approaches.  It is not a very neat way to hand up an issue.  The issue of opinion of the returning officer or opinion of the administrator is something that comes up quite often in the refugee or migration cases, so it is not something that we have not visited, and here we do not have a clean vehicle which is presenting the issue.  We have got different opinions of the primary judge, different opinions of each of the judges of appeal.  It is a.....sort of a case.

MR BENNETT:   The final issue is clear, your Honour.  The final issue is:  does one apply a Wednesbury test when one sees those words or not?  If the Court is with me on that, the matter can be sent back for the application or it can be worked out in accordance with the decision.

KIRBY J:   By the time it went back, the next election would have been held and over with.  These are the practicalities of this long saga of litigation.

MR BENNETT:   But, your Honour, if my client is correct in her ultimate contention, that is no injustice.  The injustice is done if leave is refused and she is removed from office halfway through her term, having been properly elected.  That has to be weighed against the countervailing injustice that if she loses after a further period of some months, she is in office for a further period.  That is a problem inherent in the delays of litigation.

KIRBY J:   What happens under the Local Government Act?  Is there a new election for the casual vacancy or is there a new - they move up the next candidate?

MR BENNETT:   There was some controversy about the form of order to be made.  The effect of it is that - in fact, there were different orders made by the trial judge and the Court of Appeal.  Those issues do not arise as a matter of the special leave application.

KIRBY J:   No, but what would happen if we confirmed the decision of the Court of Appeal?

MR BENNETT:   The effect is there is a recount under the orders which have been made, which involves various matters depending on ‑ ‑ ‑

KIRBY J:   A recount by the returning officer?

MR BENNETT:   I am sorry.  Under the trial judge’s order there was a recount which involves fresh matters of chance occurring in relation to which candidate - which votes are taken when preferences are distributed.  The Court of Appeal’s order was that there be a by-election. 

KIRBY J:   So if we confirm the Court of Appeal, it goes back to the people.

MR BENNETT:   Not really, your Honour, in ‑ ‑ ‑

KIRBY J:   It is not a bad solution, is it, given that this was a very close election.

MR BENNETT:   No, but it does not go on the same basis.  It does not go with us having the same chance we would have in a full election because of the preference structure.  It goes on a very different basis.

KIRBY J:   It is a natural thing that you would wish to hold on to your office and it is proper that you should put it up, but it was, (a), a very closely run election in the sense that the difference was very small.  It was a matter upon which the returning officer, the primary judge and each of the judges of appeal reached different views.  Is not the better solution simply to let the matter go back to the people?

MR BENNETT:   It does not go back to the people, your Honour, because what goes back to the people is merely two places, not the whole council, which means that ‑ ‑ ‑

KIRBY J:   Yes, but that is your client and, presumably, she would have the right to submit herself.

MR BENNETT:   She does, your Honour, but the way the numbers work, there is a difference between her prospects of success in a full council election and her prospects of success in a by-election for two candidates, being from a party which is not ‑ ‑ ‑

KIRBY J:   You are intruding political considerations.

MR BENNETT:   It makes a difference between being re-elected and not being re-elected.  But we would submit that it does not solve the problem to send it back in that way, the problem which we raise.  If we were validly elected, that deprives us ‑ ‑ ‑

TOOHEY J:   Are you finished answering Justice Kirby, Mr Bennett?

MR BENNETT:   I just have one thing to say.  The effect of that is that if we were validly elected, we are in effect deprived of the opportunity to serve this term for practical purposes.

TOOHEY J:   You referred to regulation 77(4).  It is not that subregulation that determines informality, is it?  In a sense, that is a direction to the returning officer as to what he or she must do.  Informality is really determined by a different provision, is it not, by regulation 73?

MR BENNETT:   We would say regulation 73 determines formality but regulation 77 determines the manner of determining formality.

TOOHEY J:   Maybe.  It is just that it is not entirely clear to me that this is a Wednesbury situation, having regard to the existence of regulation 73 in which the criteria for informality is spelt out.  If it were not for the subsequent subregulation it would seem to be an open-ended inquiry if the matter went on appeal.  You seek to read that down by reference to the subsequent subregulation.  But it is possible to read the two together in such a way that does give a court a general power of review.

MR BENNETT:   That is an issue, your Honour, on which I have a majority.  Mr Justice Cole determined the matter in the way your Honour indicates.  Justices Beazley and Priestley determined the matter in the way I am submitting.

TOOHEY J:   Yes.

MR BENNETT:   But that is squarely the issue.  If your Honours go back to the page I handed up, the three pages, your Honours will see, starting a third of the way down page 2, and going down to the end of page 3, are other Acts which contain references to the opinion of the returning officer in various contexts.

TOOHEY J:   Yes, but in some cases it may be that it is the opinion of the returning officer that determines whether there has been an irregularity.  What I am asking you to consider is whether that is the appropriate way of reading these regulations.

MR BENNETT:   Otherwise one does not, we would submit, give full force to the words “in the returning officer’s opinion”.

KIRBY J:   But that is only in one subclass.  Subregulation (1) of regulation 73 is emphatic and general as to the tests of informality and suggests that it is an objective question.

MR BENNETT:   Your Honour, if regulation 73 stood on its own, we would respectfully agree with what your Honour puts to me.  If your Honour goes to 77(4) we submit that is the way 73(1) is determined, or part of the way.

TOOHEY J:   I would query that because regulation 77 really is a machinery provision, is it not, which dictates what the presiding officer must do and what the returning officer must do.  In identifying what the returning officer must do he or she must reject any ballot-paper if, in his or her opinion, it is informal.  But that does not foreclose the power of the court on review to consider simply by reference to regulation 73 whether there has been an irregularity or not.

MR BENNETT:   We would submit that the 73(1) question is determined by a procedure which ends with an opinion and, therefore, the judicial review is limited to Wednesbury challenge or irrelevant considerations or matters of that sort, of course.

TOOHEY J:   They are the two ways of looking at it, I suppose.

MR BENNETT:   Yes, they are.  But it is an issue on which the Court of Appeal divided 2:1, and 2:1 in my favour, your Honour, on that issue.  We would submit that it is ‑ ‑ ‑

KIRBY J:   There is a lot of law on elections.  They come up generally through Courts of Disputed Returns and for this Court’s function in that regard we get more than ample opportunities to look at electoral law in that context on a national basis, not on the basis of a local government of New South Wales only.

MR BENNETT:   There are provisions which are, as I have indicated, general in their application throughout Australia.  It is questions of the representation of the people, certainly on a local council, but nevertheless on a body of some importance.  There are differences below and, we would submit the issue is one of importance and one of importance in the future.  It is not very difficult, we would submit, for the two questions of law - the meaning of “irregularity” and the effect of the reference to opinions as to which test one applies - to be determined.

The final issue concerns costs.  May I just say this about costs.  What happened here, we would submit, is quite inconsistent with what this Court said in Free v Kelly.  In Free v Kelly, which is in the bundle your Honours have  ‑ ‑ ‑

KIRBY J:   That was after the Court of Appeal decision.

MR BENNETT:   Just before, I am told, your Honour.  If your Honours go to the back page of Free v Kelly, which is the second-last page of the bundle, the right-hand column, your Honours will see:

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 -

That was this case because the opposing candidate challenged and the Commissioner was one of the respondents.  We were another, one of the defendants.

cases in which the Commission intervenes -

that does not arise -

cases where the Commission adopts a partisan stance supporting one party -

Well, here, of course, the Commission supported us.

and cases where the Commission merely makes appropriate reference to 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 -

Now, what was done, here the Commission is sued, along with us.  The plaintiff is successful.  We appeal, naming both the Commission and applicant as respondent and we fail in that appeal.  We, and not the Commission, are ordered to pay the costs of the successful plaintiff.  Now, the reasoning of Justice Cole in refusing to make an order is at page 141.

KIRBY J:   Was Free v Kelly argued?

MR BENNETT:   No, it was not.

KIRBY J:   It had not come to notice at that time?

MR BENNETT:   I am sorry, I am wrong in saying that.  I am told it was mentioned.  Now, your Honours see on page 141, the top of the page:

As between Miss Bourne -

that is my client -

and the returning officer and the Electoral Commissioner, each was a defendant in the proceedings before McInerney J commenced by Miss Murphy.  Miss Bourne did not join either the Electoral Commissioner or the returning officer -

One asks why should she?  She is a co-defendant in a claim to set aside the election where she and the returning officer ‑ ‑ ‑

KIRBY J:   Presumably as a vehicle for getting an order for costs against ‑ ‑ ‑

MR BENNETT:   That seems a surprising step to have to ‑ ‑ ‑

KIRBY J:   How can you make an order for costs against a non-party?

MR BENNETT:   It is not a non-party.  They are co-defendants.  There can be a Bullock order, for example.  There is no reason why one cannot order one defendant to pay another defendant’s costs. 

and I see no basis upon which she should be ordered to pay their costs of those proceedings.  On appeal by her, however, she did join them as respondents to the appeal.  However on the appeal, in substance the fourth and fifth respondents supported the appellant ‑

So we do not get an order for costs because they supported us.  Your Honours, in my respectful submission, they are both considerations which do not lead to the refusal of an order for costs.  The only person at fault in this case is the Commissioner, the Commission and its officers.  The two candidates are in no way at fault.  There cannot be any suggestion they are at fault.  The Commission is held to have acted wrongly and been guilty of an irregularity.  Why should it not pay everyone’s costs?

KIRBY J:   These are powerful arguments, but it is a discretionary matter and the judges in the Court of Appeal considered all the issues.

DAWSON J:   You would not suggest that costs of itself would warrant special leave?

MR BENNETT:   What I would suggest is this, your Honour.  Your Honours have granted special leave in relation to costs in public interest litigation and the general factors in relation to it, in a case called Oshlack which is likely to be heard, we are told, in August or September this year.  Now, your Honours, what we would ask, if your Honours otherwise refuse special leave, we would ask either that your Honours grant special leave on the costs issue and have the matter heard with Oshlack or stand over the application for special leave until Oshlack has been determined and if the decision in Oshlack clearly indicates the error in the approach taken in this case, then of course it would merely be a matter of some formality to have the appeal allowed in this case.

TOOHEY J:   But you are not putting this, are you, in terms of public interest litigation?  It is litigation which directly affects the individuals concerned.  The other case is one in which, as I recall, relates to litigation which is really brought to establish some question of public interest.

KIRBY J:   You are here for your client.  You seem to be reluctant to go back to the public.

MR BENNETT:   Your Honour, in my respectful submission, it is true that my client has an interest, of course she does, as I suppose in environmental litigation the plaintiff may have some interest, but the primary matter at issue is the public interest.  The primary matter at issue is the representation of the people in accordance with the proper result of an election.  In my

respectful submission, there is a strong element in such a case suggesting that costs ought not necessarily to be ordered against unsuccessful parties, particularly when they are defendants.  All we were there for was because we were the successful candidate who had an interest in defending the decision.

TOOHEY J:   I can see a lot of force in that, Mr Bennett, but you are asking this Court to grant special leave, which is a rather different question.

MR BENNETT:   Your Honour, it is an extremely short question.  The argument would take less than an hour.  In my respectful submission ‑ ‑ ‑

TOOHEY J:   That has never been a basis for a grant of special leave, has it?

MR BENNETT:   No, your Honour, but there is error of principle ‑ ‑ ‑

KIRBY J:   Promises are not always kept.

MR BENNETT:   There is error of principle in what has been said at page 141 and, in my respectful submission, it is not inappropriate that the issue of costs would be regarded as of sufficient importance generally, in these cases, to justify a grant of special leave.

TOOHEY J:   I take it there is no sort of machinery provision in the Act whereby - or otherwise whereby a person can be compensated by way of costs in these sort of circumstances.

MR BENNETT:   No, your Honour, there is not, and the Commission is the party at fault, I stress.  If the Court pleases.  Might I be permitted, before your Honours pronounce the order, to say one other thing, and that is that Mr Justice Cole, at page 143, specifically applied his own decision in Oshlack as one of the reasons for his decision, that being the case which your Honours granted leave in.

DAWSON J:   Mr Wheelhouse, what is your position here?

MR WHEELHOUSE:   My instructions are not to make any submission in relation to the application for leave and, as I apprehend it, that includes any submission in relation a question of whether or not special leave should be granted in relation to the question of costs.  I am limited in that regard, your Honour.

DAWSON J:   You do not make any submissions in relation to special leave?

MR WHEELHOUSE:   No, I do not, your Honour.  They are my specific instructions.

TOOHEY J:   You do make a submission that if special leave is refused, you should have your costs of this application, do you not?

MR WHEELHOUSE:   Your Honour, it is put slightly differently to that.  My learned friend has made an application that my clients pay the costs of this application in any event and we oppose that order being made.

DAWSON J:   But in the event of special leave being refused?

MR WHEELHOUSE:   We would then ask for costs in the usual way.

DAWSON J:   Although you have taken no part in the proceedings.

MR WHEELHOUSE:   Your Honour, we are here to meet the application that I have just indicated to you, that my clients pay the costs of this application in any event, even if special leave is refused.  So that is the reason why we are here.  Otherwise we would not be here.

DAWSON J:   We are a bit premature then.

MR WHEELHOUSE:   Can I indicate, though, that Free v Kelly was argued below, page 139 of the book it is quite clear.

TOOHEY J:   I am sorry, Mr Wheelhouse, can I just clarify that point with you.  Where does it appear that the applicant seeks an order that your client pay the costs of this application in any event?

MR WHEELHOUSE:   Your Honour, it appears at page 162 of the application book under Part V, Costs of Application.  If one goes to 163 you will see that there is a conclusion, “In the premises”.

TOOHEY J:   Yes, thank you.

DAWSON J:   Thank you, Mr Bennett.  The Court need not trouble you, Mr Rothman.

MR ROTHMAN:   Your Honour, can I just make one comment.  I would agree with my learned friend that we would not seek costs against my

learned friend in relation to his application, if that is a matter that is troubling the Court or that that order would be made.  I am bound to say that ‑ ‑ ‑

DAWSON J:   You are not going to seek costs.

MR ROTHMAN:   No, your Honour.

DAWSON J:   Very well.

This application concerns the construction of section 329(1) of the Local Government Act 1993 (NSW) and, in particular, the meaning of the word “irregularity” in the context of that section. The construction of that provision does not raise any question of principle which would warrant the granting of special leave. Otherwise, having regard to the course which the proceedings have taken and the practical nature of the questions involved, the matter is not an appropriate one for special leave. The question of costs would not, of itself, in this case warrant special leave being granted. Special leave to appeal is accordingly refused.

MR BENNETT:   Your Honours, I seek an order that the Commission pay the costs of the applicant.  Logically it would be the costs of all parties of this application.  The basis is this, that the Commission is the party at fault.  The Commission conducted the litigation below and supported its decision, thereby encouraging my client to continue and to incur costs and, indeed, to become liable for costs.  In this Court, the Commission has declined to join with us in seeking special leave and in maintaining that position.  We would submit that it is appropriate in all the circumstances that it meet the costs of all parties.

DAWSON J:   Yes, Mr Wheelhouse.

MR WHEELHOUSE:   There may be cases where an application for special leave has the consequence that a respondent gets some collateral advantage if the leave is granted.  Your Honours, we say that this is not such a case.  This is a case where the presence of the second and third respondents in this application is brought solely as a result of this application before us.  Otherwise the second and third respondents have been prepared to be bound by the decision of the Court of Appeal and thus the determination by the Court of Appeal, in the exercise of its discretion in relation to the entirety of the costs of both the trial and of the appeal, in my respectful submission, ought not to be open to challenge in this application.

KIRBY J:   But by the order that is confirmed, the finding is confirmed that the source of the problem was, putting it in very general and not judgmental terms, the mistakes that occurred by your client.  That would seem to fall within the principles that the Chief Justice mentioned in Free’s Case and would seem to attract the order that you should bear the costs.  After all, these are two candidates and you are the person charged with the conduct, according to law, of the election.  Why would it not be appropriate that you bear the costs?  It is, in the general sense, in the public interest that the matter be aired.  It has come to this Court; it has been finalised.  Why should the public purse not bear the costs that have been ‑ ‑ ‑

MR WHEELHOUSE:   Your Honour, the ultimate determination was one of fact in relation to which minds may differ.  Although that was an error of fact that gave rise to the issue of whether or not a particular vote, when cast, was formal or informal, in my respectful submission, the fact that an error of fact was made or an error of declaration was made by a returning officer fulfilling his duty in the appropriate way ought not throw up the result that if that error of judgment has been made, an order of costs ought to be visited against that returning officer carrying out his administrative task in the way that he regarded as appropriate and in relation to which no criticism as to his honesty or methodology has been made.

DAWSON J:   Do you have anything to say, Mr Bennett?

MR BENNETT:   No, your Honour.

DAWSON J:   The application is refused and there is no order as to costs.

AT 12 NOON THE MATTER WAS CONCLUDED