Colson v Mousley - [2006] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application)
In the Matter of ANANGU PITJANTJATJARA YANKUNYTJATJARA LAND RIGHTS ACT 1981
COLSON v MOUSLEY & ORS
[2006] SADC 135
Reasons for Decision of His Honour Judge Clayton
14 December 2006
PROCEDURE
ELECTIONS - PETITION TO COURT OF DISPUTED RETURNS
Petition required to be lodged within twenty-eight days after return of writ for election - petition lodged within prescribed time - whether amendment of petition should be allowed after expiration of prescribed time.
The petitioner applied to amend a petition by adding a further basis for invalidating the election of the second respondent to the Board of Anangu Pitjantjatjara Yankunytjatjara.
HELD: (1) Amendment pursuant to r53.01 prevented by rule in Weldon v Neal;
(2) Amendment did not add a cause of action which arises out of the same, or substantially the same, facts as the original cause of action and r53.03(c) did not apply; and
(3) Extension of time under section 48 of Limitation of Actions Act 1936 refused because of excessive delay in the context of the petition and prejudice to the second respondent.
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 Schedule 3, Part 4, s21; Limitation of Actions Act 1936 s48; 1987 District Court Rules r53.01 & 53.03(c), referred to.
Crafter v Webster & Anor (1979) 23 SASR 61; General Motors Holden's Ltd v Di Fazio (1979) 53 ALJR 678; Weldon v Neal (1887) 19 QBD 394; Swietlik v Central Linen Service (1991) 56 SASR 569 per Cox J at 577; Brook v Flinders University of SA (1988) 47 SASR 119; Ulowski v Miller [1968] SASR 277 per Bray CJ at 280, considered.

COLSON v MOUSLEY & ORS
[2006] SADC 135

By a petition dated 23 December 2005, Mr Colson has challenged the validity of an election in which Mr Thompson was elected to the Executive Board of Anangu Pitjantjatjara Yankunytjatjara (“APY") pursuant to section 9 of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. Anangu Pitjantjatjara Yankunytjatjara is the body corporate charged with the administration of lands which are described in Schedule 1 to the Act and are vested in it. Anangu are persons who are members of the Pitjantjatjara, Yankunytjatjara or Ngaanyatjarra people and are traditional owners of the lands.
In the petition Mr Colson seeks an order that the election of Mr Thompson to the Executive Board for the Anilalya/Turkey Bore electorate be declared invalid on the basis that Mr Colson had lodged his nomination with Mr Trembath, the relevant electoral official for the Iwantja electorate and Amuruna/Railway Bore/Witjintitja/Wallatinna electorate, instead of Ms Peta Butler, the relevant electoral official for the Anilalya/Turkey Bore electorate.
On 28 November 2006 Mr Colson made an application for leave to file and serve an amended petition. The application was made pursuant to rules 3.04, 53.01, 55.11 and 67.01 of the 1987 Rules. The proposed amendments include the insertion of three new paragraphs into the petition namely:
9.Further, the election materials published by the First Respondent fail to satisfy the requirements of Schedule 3, Part 2, Clause 5 of the Act in that the election materials;
9.1Do not adequately describe the election process;
9.2     Do not include Ngaanyatjarra persons as being eligible to nominate and vote in the Anangu Pitjantjatjara Yankunytjatjara (“APY") Executive Board elections;
9.3     Do not specify that a person wishing to nominate for election as a member of the Executive Board for a particular electorate must lodge their nomination with the relevant electoral official.
10.The First Respondent did not fulfil its obligations under Sub-section 9(6)(b) of the Act regarding the proper conduct of the elections in that the:
10.1   Nomination form produced by the First Respondent for use in the APY Executive Board elections does not refer to Ngaanyatjarra persons;
10.2   Nominations manual provided by the First Respondent to relevant electoral officials does not instruct the officials to include, receive nominations from, or allow to vote, Ngaanyatjarra persons.
11.The Petitioner contends that the election process conducted by the First Respondent for the Anilalya/Turkey Bore electorate thus fails to satisfy the requirements of the Act, and therefore:
11.1   The result of the election for the Anilalya/Turkey Bore electorate is not representative of the entire voting population; and
11.2   The election for the Anilalya/Turkey Bore electorate is void.
In addition, a second declaration is sought by the amendment, namely a declaration that the election for the Anilalya/Turkey Bore electorate is void.
I mention in passing that if the grounds set out in paragraphs 9 and 10 were correct there would be a basis for holding that the entire election of the Executive Board in 2005 and not just the election for the Anilalya/Turkey Bore electorate was void.
The rules relating to the election and the disputing of returns are set out in the Third Schedule to the Act. The Court of Disputed Returns is constituted of a District Court judge and is given jurisdiction to hear and determine any petition addressed to it disputing the validity of an election under the Act. Sub-rules 21(1) and (2) provide:
21    Procedure upon petition
(1)     A petition to the Court must-
(a)      set out the facts relied on to invalidate the election; and
(b)      set out the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by an elector for that election; and
(d) be lodged with the clerk of the Court within 28 days after the conclusion of the election; and
(e)     be accompanied by the prescribed amount as security for costs.
(2)     A copy of the petition must be served on-
(a)      any person declared elected in the disputed election; and
(b)      Anangu Pitjantjatjara Yankunytjatjara; and
(c) if it is alleged that the election is invalid on account of an act or omission of an electoral official - the returning officer.
Following the issue of the petition a reply was filed by Ms Mousley, the Electoral Commissioner, on 6 January 2006. At the same time she filed an affidavit setting out the factual background. The matter then remained dormant for many months.
On 2 March 2006 the Registry of the District Court forwarded a Proof of Service form to solicitors, Hunt & Hunt, for Mr Colson to complete. On 21 August 2006 the court advised the parties that a preliminary hearing was set for Wednesday, 20 September 2006. On 19 September 2006 APY filed a Notice for Specific Directions seeking leave to be allowed to intervene. The preliminary hearing did take place on 20 September 2006.
An affidavit of Ms Morley, sworn 18 September 2006, set out the factual background and stated:
Mr Thompson was duly nominated and elected as a member of the APY Executive Board on November 28, 2005, and has been in that position for almost 12 months.
Mr Thompson is a valued member of the Executive Board of Anangu Pitjantjatjara Yankunytjatjara who actively participates in our monthly Executive Meetings.
... Mr Thompson has regularly attended governance training sessions for our Executive members...
Members of the Board are required by section 9(9) to commence a course of training related to corporate governance within three months of being elected. Ms Morley also deposed that Mr Thompson is a member of the building infrastructure planning and development sub-committee, the finance sub-committee, and the land management sub-committee. The affidavit said that APY had not been served with the petition and that APY had been unable to locate the petitioner who did not presently reside on the APY Lands. His whereabouts were unknown.
On 20 September 2006 Mr Berg of Hunt & Hunt appeared for the petitioner. He said his firm had only just been instructed, although his firm had previously given Mr Colson some assistance. Counsel represented each of the first and the second respondents and APY was represented via a telephone link. The matter was adjourned for two weeks to enable the petitioner’s legal advisers to consider the affidavit of the Electoral Commissioner and to obtain instructions.
On 28 September 2006 Hunt & Hunt filed a Notice of Change of Address for Service. The petition had been lodged by Mr Colson in his own right and his address for service was shown in the petition as “PMB Turkey Bore via Alice Springs NT”.
After a disputed hearing on 4 October 2006 and 11 October 2006, I ordered that APY should be allowed to participate in the proceedings as an intervener. Ex tempore reasons for that decision were delivered on 11 October 2006.
After the reasons for the decision were delivered on 11 October 2006 there was a discussion about the future of the petition. Counsel for Mr Colson sought an order for discovery. A timetable was fixed whereby the parties were required to make discovery within 21 days and the respondents were given a further 14 days to file any further affidavits. The preliminary hearing was adjourned to 21 November 2006.
On 29 November 2006, counsel for the petitioner advised that he had recently received instructions to make an application to amend the petition. The application to amend, which was opposed by the Electoral Commissioner and Mr Thompson, was listed for hearing on Friday, 1 December 2006.
I have set out the history of the petition because the question of delay is relevant to the exercise of my discretion to allow the amendment.
Counsel for the petitioner relied first upon Rule 53.01, secondly upon Rule 53.03 and thirdly section 48 of the Limitation of Actions Act 1936.
Reference was made to Crafter v Webster & Anor[1], which was concerned with a petition to a Court of Disputed Returns pursuant to the Electoral Act 1929-1976. That Act also required that a petition should be lodged within 28 days after the return of the writ for the election. The Full Court held that the Court of Disputed Returns was authorised by section 48 of the Limitation of Actions Act 1936 to exercise its discretion to allow an amendment of the petition but that there was no other discretion to permit the amendment by the addition of new grounds which were relied upon to invalidate the election after the expiry of the period of 28 days. The court referred to the decision of the High Court of Australia in General Motors Holden’s Ltd v Di Fazio[2] where it was held that section 48 permitted the extension of a time limit where a statute required proceedings to be commenced within a specified period. The court said that but for section 48 the ability of the court to extend the time would be inhibited by the Weldon v Neal[3] principle.
[1] (1979) 23 SASR 61
[2] (1979) 53 ALJR 678
[3] (1887) 19 QBD 394
In my opinion the right to amend which is now provided by 1987 Rule 53.01 is subject to the principle established in Weldon v Neal. In that case Lord Esher MR said at page 395:
We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so.
Some relief from the Weldon v Neal principle is now provided by rule 53.03 which provides that an amendment out of time may be permitted in the circumstances which are described in the rule. That rule reads:
Where an application for leave to amend is made after any relevant period of limitation has expired, the court may, nevertheless, grant leave, on such terms as it things fit:
(a)to correct the name of a party, notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party, if the Court is satisfied that the mistake was genuine and not intended to mislead;
(b)to alter the capacity in which a party brings or opposes a proceeding, if the capacity after the amendment is made is one in which, at the date of issue of the originating proceeding, a party might have brought or opposed the proceeding; or
(c)to add or substitute a new cause of action, if the new cause of action arises out of the same, or substantially the same, facts as the original cause of action.
Subparagraphs (a) and (b) have no application to the present case. To fall within subparagraph (c), the application must be to add a new cause of action which arises out of the same or substantially the same facts as the original cause of action. Counsel for the petitioner argued that the cause of action raised by the proposed amendment did arise out of the same or substantially the same facts in that both the original claim and the proposed new claim put in issue the same electoral process.
Paragraph (c) of rule 53.03 distinguishes between causes of action and facts. The criterion is not that the causes of action should be the same or substantially the same, but that the facts should be the same or substantially the same. In my opinion, the facts which have been pleaded are not the same or substantially the same as the facts which it is proposed to add by the amendment. The existing claim relies upon the fact that Mr Thompson lodged his nomination with Mr Trembath rather than Ms Butler. The proposed amendment refers to election materials (paragraph 9), a nomination form and a nominations manual (paragraph 10). The allegation in the proposed paragraph 11 is that the election process failed to satisfy the requirements of the Act. In my opinion the proposed amendment does not satisfy the requirements of sub-rule 53.03(c). See Swietlik v Central Linen Service[4].
[4] (1991) 56 SASR 569 per Cox J at 577
The question then arises as to whether the proposed amendment should be permitted pursuant to section 48 of the Limitations of Actions Act 1936? In Brook v Flinders University of SA[5], von Doussa J said at 122:
In its application to statute-barred claims, s 48 primarily addresses the predicament of a plaintiff who has not instituted proceedings before the claim became statute-barred (see subs (4)), although it is clear that s 48 may also be invoked to extend time in respect of a new cause of action which is to be added to an existing action: Crafter v Webster (supra).
[5] (1988) 47 SASR 119
Von Doussa J observed that rule 53.03 was primarily intended to provide for a different situation, namely cases where proceedings had been issued within time, but the period of limitation had since expired. He said that if an amendment was made under rule 53.03 the amendment would relate back to the date on which the proceedings were first instituted. Rule 53.03 is to be contrasted with section 48 which extends the time for the institution of proceedings.
If the pleadings were amended pursuant to rule 53.03 the claim would not be subject to a plea that it was out of time. Once an amendment is permitted pursuant to rule 53.03 the failure to comply with the time limitation becomes inconsequential. However, section 48 is directed at a different subject matter. Whereas rule 53 is concerned with the amendment of pleadings, section 48 is concerned with extensions of the time within which proceedings are to be issued. Strictly, if the petitioner was to rely upon section 48 he should seek an order that the time within which the petition be issued be extended to the present time. If such an order was made the petition could then be amended pursuant to rule 53.01 because there would be no Weldon v Neal impediment.
Counsel for the petitioner argued that the application to amend could be allowed under section 48(1) of the Limitation of Actions Act 1936. However, there is no reference to section 48 in either the application or the proposed amendment.
In Brook v Flinders University of SA, von Doussa J distinguished between an application to amend made by interlocutory application before a trial and an application for an extension of time. His Honour said (at page 124) that where the proposed amendment is one to include a new cause of action coupled with a claim for relief under section 48 the court on the hearing of the application will not determine that claim for relief under section 48. The claim for relief under section 48 is to be determined at trial after a full investigation of the relevant facts. However, on the application to amend the court may entertain a submission by the defendant that there are facts or reasons why the section 48 relief must inevitably fail, and if such a submission is made out the proposed amendment would be futile and should not be allowed. His Honour said that if the plaintiff established an arguable case for relief under section 48 the plaintiff should be granted leave to amend so that the merits of the claim could be resolved upon the trial of the issues.
Subsection 48(4) of the Limitation of Actions Act 1936 requires that where an extension of time is sought pursuant to that section in respect of the commencement of an action the process by which the action is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to the section. The proposed amendment does not do that. To use the words of von Doussa J, the application to amend is not coupled with a claim for relief under section 48. That deficiency could presumably be cured by the amendment of the application and the addition of the necessary endorsement to the proposed amendment to the petition.
The detailed written submissions presented on behalf of the petitioner focussed upon rule 53.01. There is no reference in the written submission or the application to either rule 53.03 or section 48, but there is no reason why the petitioner should be confined to the written submissions and rule 53.01. The respondents did not object to the application being made under rule 53.03 or section 48.
The written submissions of the petitioner argued that the proposed amendments can be characterised as corrections of mistakes, insertion of new paragraphs, mere consequential amendments. I do not accept that submission. For the reasons which I have already explained the proposed amendments introduce new facts and a separate basis for challenging the election. The original petition is directed at the conduct of Mr Thompson whereas the amendments are directed at the conduct of the electoral officers and the election process.
Circumstances relied upon in the written submissions are that Hunt & Hunt had only recently received “formal” instructions, discovery by the first respondent had only recently been made and there were further documents which required review, the proposed amendments stemmed from the factual issues of the existing pleadings and there had been no real delay. In addition, it was argued that the amendments are sought prior to the matter being listed for trial so that caseflow management principles are satisfied and that no real prejudice will be caused to the other parties.
In my opinion, there is prejudice to Mr Thompson. He has been acting as a Board member for more than one year and he has undergone the training required by the Act.

The claim that Hunt & Hunt had only recently received “formal” instructions is without merit. It is clear that Hunt & Hunt were involved at the time the petition was issued even though that firm was not shown on the petition as the address for service. Hunt & Hunt wrote to the Electoral Commissioner on 8 December 2005 advising that they acted for Mr Colson and requested certain material including election documentation and promotional material. They requested a reply by the following day. On 12 December 2005, the Commissioner provided the material which had been requested to Hunt & Hunt. The documents which were forwarded to Hunt & Hunt on 12 December 2005 are relevant to the proposed grounds in paragraphs 9 to 11 of the amendment. The petitioners argument that discovery has only recently been made is substantially answered by the fact that much of the material which supports the proposed amendment was provided to the petitioner or Hunt & Hunt on 12 December 2005.
There is no affidavit from Mr Colson to establish when the relevant “election materials” first came to his attention.
To the extent that some of the election materials were disclosed to Mr Colson or his representative in December 2005 there has been a real and substantial delay on his part in bringing the application to amend. The nomination form and election material should have been known to Mr Colson at the time he lodged his own nomination. Other material, such as the nomination manual, may not have been seen by Mr Colson or his representatives until after discovery was made, but that is not a fact which excuses the delay of Mr Colson in making the application because discovery was delayed by his own failure to prosecute the action. He should not benefit from his own delay.
The matters to be taken into account when exercising a discretion pursuant to section 48 of the Limitation of Actions Act 1936 were discussed by the Full Court in Ulowski v Miller[6]. Bray CJ said:
It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.
[6] [1968] SASR 277 per Bray CJ at 280
The application to amend must be considered in the context of an election to the Board of APY which is for a period of three years. A delay of about 12 months is most significant, particularly when the petition was required to be issued within 28 days. That requirement exists for an obvious reason. In this case there is both the delay of the petitioner in prosecuting the initial action as well as the delay in making the application to amend. The petitioner cannot complain if he has only recently received material on discovery when the delay in discovery was a consequence of the fact that the petitioner himself allowed the matter to become dormant. The petitioner has not provided any explanation for his delay.
I do not accept the argument that any delay is inconsequential because a trial date has not been set. It is true that Mr Thompson must answer the allegations raised by the existing petition in any event, but the addition of further grounds for setting aside the election at this very late stage would be prejudicial to him. Not only will he be at risk on two causes of action rather than one, but the ambit of the dispute and the relevant evidence would be expanded.
There would be hardship to the petitioner if he cannot argue the matters raised by paragraphs 9, 10 and 11 of the proposed amendment because he would be deprived of the opportunity to present that argument, but such hardship is not decisive of the application. In my opinion any hardship to the petitioner is offset by the prejudice to the respondents if the grounds were allowed to be argued.
There is nothing about the conduct of the respondents in the litigation which requires that the amendment be made.
In Ulowski the court exercised its discretion to allow the action to proceed notwithstanding findings that the delay was very long, the explanation perfunctory in the extreme and only slight evidence from the appellant indicating prejudice (at page 285).
I am influenced by the fact that the petition seeks to set aside an election for a period of three years when one year has already passed. The delay is therefore of greater significance than was the case in Ulowski. Mr Thompson has acted as a board member for about 12 months and has attended the training sessions. He will suffer real prejudice if the time that he has spent acting as a board member has been wasted. The Act requires the petition to be issued within 28 days. The claim is one which by its very nature should be prosecuted and disposed of expeditiously.
I have found it unnecessary to consider the second argument put by counsel for the Commissioner and APY, that is that the amendment does not disclose an arguable case. Counsel argued that there is nothing to suggest that the alleged irregularities in the election process had any effect on the outcome of the election. In my opinion the application should be dismissed for the other reasons which I have mentioned.
The application to amend by adding paragraphs 9, 10 and 11 to the petition is dismissed.
The other amendments will be allowed by consent.