Bradbery v Hay - [2011] NSWSC 623

Supreme Court

New South Wales

Medium Neutral Citation: Bradbery v Hay [2011] NSWSC 623
Hearing dates: 20 June 2011
Decision date: 27 June 2011
Before: Simpson J
Decision:
Amended Petition dismissed.

Catchwords: COURT OF DISPUTED RETURNS - petition disputing election of member of legislative assembly - claim for declaration that election result 'void' - allegations in the nature of fraud - Notice of Motion seeking order that petition be dismissed for defects of form - non-compliance with requirements of Parliamentary Electorates and Elections Act 1912 - failure to state occupation of attesting witnesses - failure adequately to state facts relied upon - petition invalid - petition dismissed
Legislation Cited: Parliamentary Electorates and Elections Act 1912
Cases Cited: Cameron v Fysh [1904] HCA 49; 1 CLR 314
Fels v Davies [2009] WASC 138
In the Matter of a Petition by Helen Therese Berrill and of a poll for the Electoral Division of Boothby (SA) (1978) 52 ALJR 359
Nile v Wood [1988] HCA 30; 167 CLR 133
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Re Ceminchuk (HCA, 28 October 1993, unreported, Court of Disputed Returns)
Rudolphy v Lightfoot [1999] HCA 61; 197 CLR 500
Sykes v Australian Electoral Commission [1993] HCA 36; 115 ALR 645; 67 ALJR 714
Yates v Unsworth (NSWSC, 8 July 1988, unreported, per Needham J)
Category: Principal judgment
Parties: Gordon Bradbery (Petitioner)
Noreen Hay (First Respondent)
Electoral Commissioner of New South Wales (Second Respondent)
Representation: Counsel:
J Healey (Petitioner)
B McClintock SC (First Respondent)
M Izzo (Second Respondent)
Solicitors:
Access Law Group (Petitioner)
Holding Redlich (First Respondent)
I V Knight, Crown Solicitor (Second Respondent)

File Number(s): 2011/126749

Judgment

On 26 March 2011 an election for the Parliament of NSW took place. On 5 April 2011, Ms Noreen Hay was declared elected in the electorate of Wollongong. The candidate with the second highest number of votes was Mr Gordon Bradbery. A margin of 674 votes separated the two.

On 18 April 2011, purportedly under s 155 of the Parliamentary Electorates and Elections Act 1912 ("the Act"), Mr Bradbery filed in this Court a document entitled:

"NOTICE OF DISPUTED ELECTION (OR RETURN) OF A MEMBER OF THE LEGISLATIVE ASSEMBLY"

The document named Ms Alison Dunn, Returning Officer for the Seat of Wollongong, as first respondent, and the Electoral Commissioner of NSW as the second respondent.

Mr Bradbery claimed, pursuant to s 161(1)(vii) of the Act, a declaration that the election was [absolutely] void.

On 18 May 2011 by leave granted on the same day by Grove AJ, Mr Bradbery filed a document entitled:

"AMENDED PETITION"

The amendment substituted Ms Hay as the first respondent, and retained the Electoral Commissioner as second respondent. No amendment was made to the relief sought.

The Amended Petition was fixed for hearing on 20 June 2011. At the outset of the hearing, senior counsel who appeared for Ms Hay made an oral application for its "summary dismissal". That application…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Bradbery v Hay

Details

AGLC: Bradbery v Hay [2011] NSWSC 623
Case: [2011] NSWSC 623
Decision Date: 27 June 2011

CaseChat Overview and Summary

Bradbery brought a petition against Hay, contesting the latter's election to the Legislative Assembly. The petitioner sought a declaration that the election result was void due to alleged electoral fraud. Hay responded by filing a Notice of Motion, arguing that the petition should be dismissed because it did not comply with the requirements of the Parliamentary Electorates and Elections Act 1912. Specifically, Hay pointed to the failure to state the occupation of the attesting witnesses and the inadequacy of the facts stated in support of the petition. The Court of Disputed Returns was tasked with deciding whether the petition complied with the statutory requirements and, if not, whether this was sufficient to render the petition invalid and dismiss it.

The court considered the statutory requirements for a petition disputing an election. It was clear that the petition did not include the occupations of the attesting witnesses, which was a mandatory requirement under the Act. Additionally, the court found that the petition did not adequately state the facts upon which the petitioner relied to support their claim of electoral fraud. The court held that these deficiencies rendered the petition invalid and dismissed it. The court found that the failure to state the occupations of the attesting witnesses was a significant defect that went to the form of the petition, as required by the Act. Furthermore, the court found that the petitioner's failure to adequately state the facts amounted to a failure to substantiate the claims made, which was another mandatory requirement for a valid petition.

In light of the findings, the Court of Disputed Returns dismissed the petition. The court held that the defects in form and substance of the petition were fatal, and as such, the petition could not stand. The petitioner's claims of electoral fraud were not considered on their merits, as the court determined that the petition did not comply with the statutory requirements. The court dismissed the petition and made no orders regarding the election result, leaving the outcome of the election unaffected by the petition.

Orders