Clampett v Wensley - [2009] QSC 164

SUPREME COURT OF QUEENSLAND

CITATION:

Clampett v Wensley and Ors [2009] QSC 164

PARTIES:

LEONARD WILLIAM CLAMPETT

(applicant)

AND

HER EXCELLENCY PENELOPE WENSLEY, GOVERNOR OF QUEENSLAND

(first respondent)

AND

ANNA BLIGH, PREMIER OF QUEENSLAND

(second respondent)

AND

DAVID KERSLAKE, ELECTORAL COMMISSIONER OF QUEENSLAND

(third respondent)

FILE NO/S:

BS4123 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Court of Disputed Returns at Brisbane

DELIVERED ON:

17 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2009

JUDGE:

Atkinson J

ORDER:

1.        The first and second respondents are removed            from the proceeding;

2.        The originating application is dismissed;

3.        The applicant must pay the costs of the first,            second and third respondents of and incidental to            the originating application.

CATCHWORDS:

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – GENERALLY – Where applicant filed an originating application disputing the election of the legislative assembly – where respondents made an application to dismiss the originating application – whether originating application could be summarily dismissed – whether the originating application complied with the Electoral Act 1992 (Qld) – whether the first and second respondents were joined properly to the proceeding

Electoral Act 1992 (Qld) ss 123, 127, 128, 129, 130, 133, 136
Currency Act 1965 (Cth)
Commonwealth Electoral Act (Cth) 1918

Judiciary Act 1903 (Cth), s 40

Caltabiano v Electoral Commission of Queensland (No. 2) [2009] QSC 138, followed
Clampett v Hill [2007] QCA 394, cited
Clampett v Kerslake (Electoral Commissioner of QLD) [2009] QCA 104, followed
Featherston v Tully [2002] SASC 243, cited
Hansen v Australian Electoral Commission [2000] FCA 606, cited
Muldowney v Australian Electoral Commission (1993) 178 CLR 34, followed
Re Skyring’s Application (No. 2) (1985) 50 ALJR 561, cited
Re Surfers Paradise Election Petition [1975] Qd R 114, cited
Rudolphy v Lightfoot [1999] HCA 61, cited
Sharples v Arnison [2001] QCA 518, cited
Skyring v Electoral Commission of Qld [2001] QSC 080, cited
Smith v Australian Electoral Commission [2008] FCA 953, cited

The Queen v The Minister for Justice and Attorney-General of Queensland, ex parte Alan George Skyring Supreme Court of Queensland, 17 February 1986, unreported, cited

COUNSEL:

A A J Horneman-Wren for the first and second respondents

M Hinson SC for the third respondent

SOLICITORS:

Applicant self represented in person
Crown Solicitor for the first and second respondents

Crown Solicitor for the third respondent

On 20 April 2009 the applicant, Leonard William Clampett, filed what was referred to as an “election petition” in the Supreme Court of Queensland sitting as the Court of Disputed Returns. It is not in fact a petition but an originating application. The first respondent was described as “Her Excellency Penelope Wensley, Governor of Queensland”, the second respondent as “Anna Bligh, Premier of Queensland” and the third respondent as “David Kerslake, Electoral Commissioner of Queensland”.

On 29 April the first and second respondents applied to the court for the following orders:

“That the…

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 Clampett v Wensley

Details

AGLC: Clampett v Wensley [2009] QSC 164
Case: [2009] QSC 164
Decision Date: 17 June 2009

CaseChat Overview and Summary

The case of Clampett v Wensley involved an originating application filed by the applicant, Clampett, disputing the election of the legislative assembly. The respondents, Wensley and two others, sought to dismiss the originating application. The central issue before the court was whether the originating application could be summarily dismissed, whether it complied with the Electoral Act 1992 (Qld), and whether the first and second respondents were properly joined in the proceeding.

The court examined the procedural requirements outlined in the Electoral Act 1992 (Qld) and found that the originating application did not comply with these requirements. Additionally, the court determined that the first and second respondents were not properly joined to the proceeding as they did not hold the necessary standing in relation to the dispute. Consequently, the court ruled that the first and second respondents should be removed from the proceeding.

As a result, the originating application was dismissed. The applicant was also ordered to pay the costs of the first, second, and third respondents related to the originating application. The court's decision highlights the importance of adhering to statutory requirements and ensuring proper joinder in electoral disputes.

Orders

Orders of the court

1. The first and second respondents are removed from the proceeding;

2. The originating application is dismissed;

3. The applicant must pay the costs of the first, second and third respondents of and incidental to the originating application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Clampett v Wensley and Ors [2009] QSC 164
PARTIES:	LEONARD WILLIAM CLAMPETT (applicant) AND HER EXCELLENCY PENELOPE WENSLEY, GOVERNOR OF QUEENSLAND (first respondent) AND ANNA BLIGH, PREMIER OF QUEENSLAND (second respondent) AND DAVID KERSLAKE, ELECTORAL COMMISSIONER OF QUEENSLAND (third respondent)
FILE NO/S:	BS4123 of 2009
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Court of Disputed Returns at Brisbane
DELIVERED ON:	17 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2009
JUDGE:	Atkinson J
ORDER:	1. The first and second respondents are removed from the proceeding; 2. The originating application is dismissed; 3. The applicant must pay the costs of the first, second and third respondents of and incidental to the originating application.
CATCHWORDS:	CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – GENERALLY – Where applicant filed an originating application disputing the election of the legislative assembly – where respondents made an application to dismiss the originating application – whether originating application could be summarily dismissed – whether the originating application complied with the Electoral Act 1992 (Qld) – whether the first and second respondents were joined properly to the proceeding Electoral Act 1992 (Qld) ss 123, 127, 128, 129, 130, 133, 136 Currency Act 1965 (Cth) Commonwealth Electoral Act (Cth) 1918 Judiciary Act 1903 (Cth), s 40 Caltabiano v Electoral Commission of Queensland (No. 2) [2009] QSC 138, followed Clampett v Hill [2007] QCA 394, cited Clampett v Kerslake (Electoral Commissioner of QLD) [2009] QCA 104, followed Featherston v Tully [2002] SASC 243, cited Hansen v Australian Electoral Commission [2000] FCA 606, cited Muldowney v Australian Electoral Commission (1993) 178 CLR 34, followed Re Skyring’s Application (No. 2) (1985) 50 ALJR 561, cited Re Surfers Paradise Election Petition [1975] Qd R 114, cited Rudolphy v Lightfoot [1999] HCA 61, cited Sharples v Arnison [2001] QCA 518, cited Skyring v Electoral Commission of Qld [2001] QSC 080, cited Smith v Australian Electoral Commission [2008] FCA 953, cited The Queen v The Minister for Justice and Attorney-General of Queensland, ex parte Alan George Skyring Supreme Court of Queensland, 17 February 1986, unreported, cited
COUNSEL:	A A J Horneman-Wren for the first and second respondents M Hinson SC for the third respondent
SOLICITORS:	Applicant self represented in person Crown Solicitor for the first and second respondents Crown Solicitor for the third respondent