Courtice v Australian Electoral Commission

[1990] FCA 125

Re: BRIAN WILLIAM COURTICE
And: AUSTRALIAN ELECTORAL COMMISSION; BRONWYN ANNE MADDEN and FRANK HIBBLE
No. Qld G25 of 1990
FED No. 125
Practice and Procedure - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Practice and Procedure - jurisdiction of Federal Court as to decisions under Commonwealth Electoral Act - whether jurisdiction conferred on Supreme Court implicitly repealed Federal Court's power under Judicial Review Act - consideration of cross-vesting legislation.

Administrative Law - judicial review - decision to accept nomination of a candidate for the House of Representatives - allegation nomination lodged after closing time - question of fact.

Administrative Decisions (Judicial Review) Act 1977, ss.5 and 10

Commonwealth Electoral Act 1918, ss.170, 172 and 383

HEARING

BRISBANE

#DATE 6:3:1990

Counsel for the applicant: Mr W. McMillan

Solicitors for the applicant: Peter Channell and Associates

Counsel for the 2nd respondent: Mr. G. Fryberg QC and

Mr. J. Batch

Solicitors for the 2nd respondent: Australian Government Solicitor Counsel for the 3rd respondent: Mr C.J.L. Brabazon QC and

Mr G.H. Brandis

Solicitors for the 3rd respondent: Lister, Mann and Ffrench

ORDER

1. The application by Brian William Courtice be dismissed.

2. The applicant pay the costs of the second and third respondents, to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The urgent matter before me is an application, purporting to be made under the Administrative Decisions (Judicial Review) Act 1977, to review decisions of the first respondent made under the Commonwealth Electoral Act 1918. The application for the order of review says that the applicant is aggrieved because the second respondent, who is an officer of the first respondent, the Australian Electoral Commission, received a certain nomination for election of a member of the House of Representatives - that of the third respondent - after the hour of nomination, which was 12 noon on 2 March 1990.

1. The application goes on to say that the second respondent did not reject the nomination and that the first respondent intends to publish, print and distribute a ballot paper containing the name of the third respondent, Mr Hibble. The question arises whether the Court has jurisdiction to entertain the matter. Mr McMillan, who has appeared for the applicant, says that whatever may have been the position apart from the Administrative Decisions (Judicial Review) Act, which was enacted in 1977, this Court has jurisdiction under that Act.

2. The argument which Mr McMillan advances can stand with the assumption that prior to the passage of the Judicial Review Act in 1977 there was no jurisdiction. Indeed, it makes no difference to his argument whether or not the Commonwealth Electoral Act, prior to 1977, gave exclusive jurisdiction to the High Court in such a matter as this, or whether the Act simply excluded or purported to exclude such a matter as this from the jurisdiction of any Court.

3. Mr McMillan says that the Judicial Review Act 1977 catches the decisions in question here. He points to two provisions of the 1977 Act which bear upon the matter, namely s.4 which says:
   "This Act has effect notwithstanding
   

anything contained in any law in force at the commencement of this Act."

This, as I said during the course of this argument, appears to create a presumption in favour of amendment or repeal of earlier laws, and Mr McMillan refers to s.10 of the 1977 Act, which I will come to shortly. The argument which was advanced in favour of the proposition that the Court has no jurisdiction was that only the High Court can consider such a matter because of the provisions of s.353 of the Act which says:

"The validity of any election or return

may be disputed by petition addressed to the Court of Disputed Returns and not otherwise."

1. Reference was made to authority in support of the proposition that the words of such a provision as that encompass the validity of steps essential to an election. The two cases upon which particular reliance was placed were McDonald v. Keats (1981) 2 NSWLR 268 and Osborne v. Shepherd (1981) 2 NSWLR 297. It appears to me unnecessary to discuss whether or not those decisions should be followed. I merely point out that, if they are correct, then in New South Wales there seems to be an odd gap in the electoral law because, as I understand the provisions to which Powell J. referred, the Court of Disputed Returns cannot enter upon any question until there has been an election.

2. However that may be, it is clear that the law as laid down in Osborne v. Shepherd is irrelevant to the Commonwealth Electoral Act. That is so because in 1983 a special power to enjoin (positively or negatively) contraventions of the Act was inserted in the Commonwealth Electoral Act; that was done by s.138 of the Commonwealth Electoral Legislation Amendment Act 1983, which was assented to on 22 December 1983.

3. The point then becomes a fairly narrow one, and is whether or not, accepting as it seems one must, that the Administrative Decisions (Judicial Review) Act 1977 gave this Court power to do what is asked, that situation changed on 22 December 1983. I say that not only because of s.4 of the 1977 Act, to which reference has already been made, but because, as Mr McMillan has helpfully pointed out, the schedule to the 1977 Act expressly excludes certain decisions under the Commonwealth Electoral Act 1918 and those decisions do not include those of the sort which Mr McMillan seeks to challenge.

4. Coming to what seems to me to be the real point of the challenge to jurisdiction, the question arises whether s.383 of the Federal Court Act, as it has now become, which confers jurisdiction on the Supreme Court of a State or Territory to grant an injunction of the kind sought here, implicitly repealed pro tanto the provisions of the 1977 Act which inter alia gave this Court such power.

5. It is unnecessary, for the purposes of these reasons, to set out s.383 at length and is enough to say that it enables the Supreme Court of a State or Territory to grant an injunction restraining contravention of the Act either by ordering a person to refrain from doing something or by ordering positively that he do something. It seems to me clearly to cover this case and, as I have said, to put an end to any suggestion that orders of this kind cannot be made under the Commonwealth Electoral Act. Sub-section 10 says:
   "The powers conferred on a prescribed
   

court under this section are in addition to and not in derogation of any other powers of the court whether conferred by this Act or otherwise."

This makes it plain that the section does not take away any power which a Supreme Court would otherwise have had. What is not so plain is whether the section takes away the power which the Federal Court would otherwise have had. It appears to me that an argument of some weight can be advanced against this Court's having jurisdiction, because sub-s.(9) says:

"An appeal lies to the Federal Court of

Australia from a judgment or order of a prescribed court exercising jurisdiction under this section."

A prescribed court, as I mentioned, means a Supreme Court of a State or Territory. It would seem a little odd if the statute which gives this Court appellate jurisdiction on appeal from a Supreme Court exercising the injunctive power should contemplate that, contemporaneously, the Court should have original jurisdiction under a previous statute.

1. The matter seems to turn largely upon the construction of another provision on which Mr McMillan relied, s.10 of the 1977 Act, which makes the rights of which he wishes to take advantage expressly additional to and not in derogation of any other rights of review whether by the Federal Court or by another court.

2. The expression "review" is defined by sub-s.(3) to include the grant of an injunction, and the argument is that, whatever one might otherwise have thought about s.383, the provisions of s.10 of the Judicial Review Act make it clear that, if one has a right under another statute or under the general law to seek a review from the Supreme Court, then that is not to be taken as derogating from the right granted by the 1977 Act. I note that sub-s.10(2) gives this Court a discretion to refuse relief on the ground that there is an alternative remedy.

3. Section 10 of the Judicial Review Act has a rather different effect from s.4, to which I referred earlier. Section 10 is not in terms confined to rights arising under laws which precede the 1977 Act. It appears to me capable of applying to rights to obtain relief under later as well as earlier laws.

4. The probability that the Parliament intended, when enacting s.383 (as it has become), the Federal Court's appellate power expressly granted by that provision to co-exist with the power to grant original relief may not be thought to be high. Nevertheless, it is not easy, I think, for those who say the Court has no jurisdiction to overcome the fairly clear effect of s.10 of the Judicial Review Act.

5. Mr Mcmillan conceded, of course, that whatever s.10 says, it could have been and might have been implicitly repealed pro tanto by s.38; that is, even if s.10 purported to create a permanent right to apply under this Act, whatever any later statute said, that in itself could be repealed wholly or partially.

6. Before stating my conclusion, it is necessary to mention one other matter, and that is that Mr McMillan said that if the provisions of s.383 put him out of this Court, he would then wish to apply under the cross-vesting legislation. The provisions to which Mr McMillan referred are those under which the State and Commonwealth vested extensive jurisdiction in certain of each other's Courts.

7. The difficulty which Mr McMillan faces with that argument is that the State legislation only gives the Federal Court jurisdiction with respect to "State matters". It does not give the Federal Court jurisdiction with respect to federal matters, and State matters are defined in such a way as to exclude matters where the Supreme Court has jurisdiction by reason of a law of the Commonwealth. Therefore (incongruously, some might think) the argument is that the only superior Court, which cannot hear Commonwealth electoral disputes - obviously federal matters - is the Federal Court.

8. The incongruity of that, however, cannot solve the other problem, which depends upon the question of implied repeal. I do not propose to discuss the authorities concerning implied repeal, except to say that although there has been held to be implied repeal often enough, it appears to be a result at which Courts arrive with some hesitation.

9. It should be added that the exception to the power of the Court under the Judicial Review Act as to review of certain decisions under the Commonwealth Electoral Act came into law by the very statute which introduced what has now become s.383.

10. I have come to the conclusion that I must reject the challenge to the Court's jurisdiction, and I hold that the Federal Court still has, as I suppose one would expect as a matter of common sense, jurisdiction to determine this federal matter.
    (His Honour then heard evidence and argument on the facts.)

11. This is an application under the Administrative Decisions (Judicial Review) Act 1977 seeking review of a decision made under the Commonwealth Electoral Act 1918. The decision relates to a nomination of a Mr Hibble as a candidate in the forthcoming election for the House of Representatives. The statute provides, by s.170 that "No nomination shall be valid unless the nomination paper is received after the issue of the writ and before the hour of nomination," and that hour is defined by s.175 to be 12 noon. The contention of the applicant (Mr B.W. Courtice) is that Mr Hibble's nomination was a little late and that therefore the nomination was not valid.

12. Section 172 of the Commonwealth Electoral Act requires a nomination to be rejected if s.170 is not complied with, but sub-s.(2) reads in part as follows:
    "No nomination shall be rejected by reason of
    

any formal defect or error in the nomination, if the officer to whom the nomination is made is satisfied that the provisions of section 170 have been substantially complied with."

Here the suggestion is made that the nomination paper was received very shortly after noon and it has been contended on behalf of the officer concerned, Ms Bronwyn Madden, that the saving provision applies, if there was any lateness. The other legal question which may be involved is the application of s.5 of the Administrative Decisions (Judicial Review) Act. Mr McMillan said that he relied primarily upon s.5(1)(h), that is, the ground that there was "no evidence or other material to justify the making of the decision." Mr McMillan's point simply was that if, in fact, the nomination was too late then nothing could justify a decision to accept it. It appears to me that these two legal questions, that is, whether or not lateness is capable of being overlooked under s.172(2) and whether s.(5)(1)(h) of the Judicial Review Act has any application, are not the primary points. The matter which must first be determined is whether or not it is correct, as the applicant says, that the nomination was too late.

1. It is common ground that Mr Hibble came too late to the relevant office and that he initially presented a nomination form which was incomplete. He left the office to have it completed and subsequently returned and handed his then complete nomination paper to the respondent, Ms Bronwyn Madden. I say his "then complete nomination paper" without having overlooked the circumstance that in a minor respect there was still an error in the paper; that, however, is not now in issue.

2. The question simply is whether, as the applicant says, the nomination paper was received by Ms Madden after the hour of 12. A number of witnesses have given evidence, some both orally and on affidavit, some only on affidavit, with respect to that point. It seems to me that it is not necessary to deal with all of them, but only with those whose evidence seems to me to be most material. They fall into three categories. The only person who might claim to give any relevant independent evidence is Mr Noel Dorron, a photographer who was in the office at the time. He recalls that a person whom he now knows to be Mr Hibble came in and that a pregnant lady, who was obviously the second respondent, took Mr Hibble into her office and somebody made a remark about cutting it fine. His recollection is that Mr Hibble came in a short time after Mr Dorron heard an officer of the Australian Electoral Commission say that time would be taken from the clock on the wall, which had been checked with Telecom and that the time on the clock was then right on 12 noon. Mr Dorron's evidence is somewhat indirect; he does not claim to have looked at the clock himself. If what he says is right, then it is rather puzzling that anyone would have said the time was right on 12 noon when, on the case for the respondents, the time was then prior to 12 noon.

3. The second category of evidence is that of Ms. Cheryl Bellert, who is the electorate secretary to the applicant and the third category consists of officers and other employees of the Commission who were present at the time. These witnesses, that is Cheryl Bellert and the Australian Electoral Commission employees, are interested, in the sense that Cheryl Bellert is connected with the applicant and the persons who were employed by the Commission are, as Mr McMillan rightly points out, able to be thought to have some reason to support the decision which was made.

4. Having that deficiency, that is these witnesses may be thought to have some interest, they remain the only direct witnesses on the critical question of the time. Cheryl Bellert says, to come to the essential point of her evidence, that an employee of the Commission, a Mr Beath, said to her, "Cheryl, we go by the clock in this office. We have had the time checked with Telecom and this is the right time. It has just gone noon now." Mr Beath, in fact, gave evidence in support of his having had the time checked and the clock adjusted, but he denied having made this remark to Miss Bellert.
   Her affidavit goes on:
   "(7) . . . I looked at the office clock and saw
   

it was after 12 midday and the second hand was ticking between the 10 and 5 seconds indicators.

(8) A short time later Mr Hibble entered the office quickly. I did not look at the clock when he came in."

And she goes on to say that Ms Madden received him and he went into Ms Madden's office. Now, if that is true, then it is plain that the nomination must have been late.

1. The principal witness among the third group I have mentioned, employees of the Commission, is Ms Madden. One has the advantage, in discussing her evidence, that within an hour of the events in issue and knowing that the question of time was critical, she made a note which included this:
   

"(1) Mr Hibble came to the office @ 11.50 on Friday 2 March to nominate for the H(ouse) of R(epresentatives) for the D(ivision) of H(inkler). Section A had been completed but it was not signed by the registered office of the Liberal Party, David Fraser. Instead it was signed by James Ferguson, a local Liberal Party office holder.

(2) I returned the form to Mr H.(ibble) and told him he would need to nominate using Section B but he had to be back in the office before 12 noon. He understood this.

(3) Mr Hibble was in the divisional office before 12 o'clock."

The handwritten note then goes on:

" . . . although he was not sitting in the DRO's office."

The words "although he was not sitting in the DRO's office" are crossed out. Then it goes on:

"Obviously I took particular note of the time on the office clock which was checked earlier this morning with a Telecom timecheck."

1. Mr McMillan makes the point, which it seems to me to have some substance, that it is strange that, knowing of the critical nature of the time question, Ms Madden did not say in the note that she received the nomination paper in due time. What she does say about the time was that Mr Hibble was in the office before noon; I agree with the implication Mr McMillan has made that that feature of Ms Madden's evidence tends to help his case.

2. The other witnesses from the Commission were Elaine Joyce Readdy, Valerie Elizabeth Elmes, Brian Joseph Beath and Julie Gai Tulley. I think it is unnecessary to set out the evidence of each of them in detail, because it is enough to say that each of them claims to have looked at the clock either when Mr Hibble came in or when he was called into the office by Ms Madden and that each of them saw that the time on the clock had not yet reached noon.

3. The criticism that one may make of the evidence of these witnesses has already been mentioned; they have a reason to support Bronwyn Madden's decision, which was to accept the nomination. I take into account also that the only direct witness in favour of the applicant, Ms Bellert, was impressive and not shaken in cross-examination in any significant way.

4. I should add that much was made, and I thought more time than was warranted was spent, on the proposition that Ms Bellert could not have seen the clock from where she stood. Attempts were made to induce people to recollect most unmemorable events, namely, whether Ms Bellert moved at all to have a look at the clock. It is true that from the position that she was in at one time it was difficult to see the clock but I would not decide the case on the basis it was impossible for her to see it at the relevant time.

1. I decide the case on the basis that, having heard the witnesses who have been cross-examined and studied the written material, I remain unsatisfied that the applicant's factual proposition is made out; that is, I am not satisfied that the nomination was late. I would be very surprised, having seen Ms Bellert, if she would consciously attempt to mislead me and I do not think she has done so. I am a little troubled by the conflict of recollection between Ms Bellert and Mr Beath; it is hard to reconcile that with each of them having given a true recollection, genuinely held. Nevertheless, the onus is on the applicant and I am firmly of the view that it has not been discharged.

2. I am of opinion that the application fails on the facts, it not having been shown that there was any defect such as relied on and in particular not having been shown that the nomination was not received before 12 noon. That conclusion makes it unnecessary for me to return to the two legal questions which I mentioned briefly earlier, namely, whether or not the nomination could have been saved by the provisions of s.172(2) of the Commonwealth Electoral Act and whether it is the case, as Mr McMillan argues, that the matter falls within s.5(1)(h) of the Administrative Decisions (Judicial Review) Act.

3. Although I have some views on those matters, I have not formulated those views in such a form as to make it necessary or indeed wise to attempt to express them. The matter is one which requires expeditious handling and I have, as I said, reached a firm conclusion against the applicant, Mr Courtice. The result is that the application by Brian William Courtice will be dismissed.

4. The question of costs has arisen. The matter which has troubled me is that it seems unfortunate that Mr Courtice, in bringing an arguable case on credible information, is confronted with having to pay two sets of respondents' costs. However, having heard counsel on the matter, I have come to the conclusion that the ordinary rule must apply.

5. It was suggested that Mr Courtice need not have joined those whom he joined. I do not agree; I think he joined the proper parties. Indeed, he did not do anything wrong, but simply lost the case. It is a pity that the Commission which is in effect standing behind the second respondent, has felt it must ask for costs. But it has done so, and I think must be awarded the costs. Whether that order is enforced is, of course, a matter for the Commission.

6. The orders will be, then, that the application is dismissed and that the applicant pay the costs of the second and third respondents, to be taxed.