ON APPEAL FROM THE SUPREME COURT OF Local Government-Alderman-Ouster-Election-Personation- Unduly elected
-Onus of proof-Sydney Corporation Act 1902 (N.S.W.) (No. 35 of 1902), secs. 21, 40, 54, 56. SYDNEY, May 2, 3, 4
Sec. 21 of the Sydney Corporation Act 1902 (N.S.W.) provides that " There shall be two aldermen for each ward, who shall be elected by the persons on the roll for such ward." Sec. 40 provides that (1 and 2) before voting at an election a person claiming to vote shall make and subscribe before the presiding officer a declaration to the effect that he is entitled to vote in respect of the particular name which appears upon the roll, that (3) no question
shall be put to any person applying to vote other than the question whether he is the person whose name appears upon the roll, that (4) every person wilfully making a false answer to such question or making a false declaration shall be deemed to be guilty of a misdemeanour, and that (5) no person shall be allowed to vote unless he makes the required declaration and (if asked) answers the question satisfactorily, ' (6) Provided always that no person shall be excluded from voting at an election unless it appears to the presiding officer that the person claiming to vote is not the person whose name appears on the roll, or that he has previously voted at the same election within the same ward, or otherwise contrary to this Act." Sec. 54 provides that Any
who votes or attempts to vote in or for any ward, in respect of which he is not qualified, or who personates or attempts to personate any other person for the purpose of voting at any such election, shall be guilty of a misdemeanour, and be punished accordingly." Sec. 56 provides that "1 If it appears upon affidavit that any person declared to be elected
an alderman has been unduly elected
the Supreme Court, or any Judge thereof, may grant a rule or order calling upon such person to show cause to the Court why he should not be ousted of the said office. (2) Upon the return of such rule or order, if it appears to the Court that such person so elected
was unduly elected Held, by Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ. (Griffith C.J. and Barton J. dissenting), that under the Sydney Corporation Act 1902 a person declared to have been elected as an alderman does not appear to be unduly elected within the meaning of sec. 56 of the Act if nothing more appears than that votes given by personators have been accepted and counted and that the number of those votes is greater than the difference between the number of votes cast for that person and the number of votes cast for the unsuccessful candidate declared to have received the next highest number of votes.
Observations by Griffith C.J. as to the effect…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bridge v Bowen [1916] HCA 38
Case
[1916] HCA 38
Decision Date
CaseChat Overview and Summary
The case of *Bridge v Bowen* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from an election for alderman in the City of Sydney, where the appellant, Clarence Walter Bridge, was declared elected. Samuel Bowen, a defeated candidate, sought to have Bridge ousted from office, alleging that the election was unduly elected.
The central legal issue before the High Court was the interpretation of section 56 of the *Sydney Corporation Act 1902* (N.S.W.), which provided for the ouster of an unduly elected alderman. Specifically, the Court had to determine what constituted an "unduly elected" person in circumstances where votes cast by personators were accepted and counted, and the number of such votes exceeded the difference between the votes received by the elected candidate and the candidate with the next highest number of votes.
A majority of the High Court, comprising Isaacs, Higgins, Gavan Duffy, Powers, and Rich JJ., held that an election does not, under the *Sydney Corporation Act 1902*, appear to be unduly elected merely because votes cast by personators have been accepted and counted, and the number of these votes is greater than the difference between the votes for the elected candidate and the next highest candidate. The Court reasoned that the common law principle for avoiding an election requires a demonstrable likelihood that the result has been affected by the irregularities, and in the context of a secret ballot where votes cannot be identified, it is impossible to prove affirmatively that the personated votes altered the outcome. Therefore, the mere fact that personated votes were counted, even if sufficient to potentially change the result, was not enough to establish that the election was unduly elected under section 56. Griffith C.J. and Barton J. dissented, arguing that the intrusion of unqualified voters sufficient to affect the result should, by common law, render an election void.
The High Court allowed the appeal, reversing the decision of the Supreme Court of New South Wales and discharging the rule nisi for ouster.