Dent v Australian Electoral Commissioner

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FEDERAL COURT OF AUSTRALIA

Dent v Australian Electoral Commissioner [2008] FCAFC 111

CORRIGENDUM

ARTHUR DENT v AUSTRALIAN ELECTORAL COMMISSIONER and DARYL WIGHT

VID 52 OF 2008
VID 269 OF 2008
VID 271 OF 2008

FRENCH, TAMBERLIN & MANSFIELD JJ
19 JUNE 2008 (CORRIGENDUM 18 JULY 2008)
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 52 OF 2008
VID 269 OF 2008 VID 271 OF 2008

BETWEEN:

ARTHUR DENT
Appellant/Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSIONER
First Respondent

DARYL WIGHT
Second Respondent

JUDGES:

FRENCH, TAMBERLIN & MANSFIELD  JJ

DATE OF ORDER:

19 JUNE 2008 (CORRIGENDUM 18 JULY 2008)

WHERE MADE:

ADELAIDE

CORRIGENDUM

1.Order 3 is amended to delete the words “Arthur Langer” there appearing and to substitute therefore the words “Albert Langer”.

I certify that the preceding numbered paragraph is a true copy of the Corrigendum herein of the Honourable Justices French, Tamberlin & Mansfield.

Associate:

Dated:        18 July 2008

FEDERAL COURT OF AUSTRALIA

Dent v Australian Electoral Commissioner [2008] FCAFC 111

ELECTIONS – electoral Roll – whether a person registered as an itinerant elector under s 96 of the Commonwealth Electoral Act 1981 (Cth) may be eligible to make a request under s 104 that that person’s address not be shown on the electoral Roll

Commonwealth Electoral Act 1981 (Cth) ss 57, 83, 90A, 90B, 93A, 96, 101, 102, 104, 166, 184A, 387
Electoral and Referendum Regulations 1940 (Cth), reg 12(1), 12(2)

Howard v Australian Electoral Commission [2000] FCA 1767 cited
Jess v Scott (1986) 12 FCR 187 applied
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 applied
Peczalski v Comcare (1999) 58 ALD 697 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited

ARTHUR DENT v AUSTRALIAN ELECTORAL COMMISSIONER and DARYL WIGHT

VID 52 OF 2008
VID 269 OF 2008
VID 271 OF 2008

FRENCH, TAMBERLIN & MANSFIELD JJ
19 JUNE 2008
ADELAIDE (HEARD IN MELBOURNE)


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 52 OF 2008
VID 269 OF 2008
VID 271 OF 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ARTHUR DENT
Appellant/Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSIONER
First Respondent

DARYL WIGHT
Second Respondent

JUDGES:

FRENCH, TAMBERLIN & MANSFIELD JJ

DATE OF ORDER:

19 JUNE 2008

WHERE MADE:

ADELAIDE (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.The appeal from the orders of the Court made on 14 December 2007 be dismissed.

2.The application for an extension of time within which to appeal from the costs order made by the Court on 1 November 2007 be refused.

3.The application for an extension of time within which to appeal from the decision of the Administrative Appeals Tribunal made on 23 November 2007 is granted, limited to the issue as to whether the Administrative Appeals Tribunal erred in law in deciding that the applicant, having been enrolled on the Roll in the name Arthur Langer under s 96 of the Commonwealth Electoral Act 1981 (Cth), was not eligible to make a request under…

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Details
Case
[2008] FCAFC 111
Decision Date

CaseChat Overview and Summary

The case of Dent v Australian Electoral Commissioner involved Arthur Dent, who sought to be enrolled as an elector under the name Arthur Dent and to have his address withheld from the electoral roll. The Australian Electoral Commission (AEC) refused his enrolment application and rejected his nomination for a Senate election, leading to a legal challenge by Dent. The primary legal issues included whether the AEC's decision to refuse enrolment under the name Arthur Dent was lawful and whether the rejection of Dent's Senate nomination was justified. The Federal Court was tasked with determining the validity of the AEC's decisions and the applicability of statutory provisions.

The Court considered whether the AEC had correctly applied the relevant provisions of the Commonwealth Electoral Act 1981 (Cth) in denying Dent's enrolment application and the subsequent nomination rejection. The Court reviewed the decisions of both the Federal Court and the Administrative Appeals Tribunal (AAT), assessing the AEC's adherence to the statutory framework and the factual basis for its decisions. The Court found that the AEC had appropriately applied the law and that the AAT's determination on the enrolment issue was correct. Regarding the claim for damages, the Court concluded that Dent had no viable grounds for such a claim as the AEC had not breached the Electoral Act.

The Court dismissed the appeal against the Federal Court's decision to summarily dismiss Dent's proceedings and denied an extension of time for appealing the costs order. However, the Court granted an extension of time to appeal the AAT's decision concerning Dent's request under section 104 of the Electoral Act, focusing on the issue of whether the AAT erred in law. The appeal on this specific issue was to be heard immediately, with further written submissions allowed from both parties.

In conclusion, the Court's final orders included dismissing the appeal against the summary dismissal and the costs order, granting an extension of time to appeal the AAT's decision on the enrolment request, and reserving costs pending the outcome of the appeal on the specific issue identified.

Orders

Orders of the court

1. The appeal from the orders of the Court made on 14 December 2007 be dismissed.

2. The application for an extension of time within which to appeal from the costs order made by the Court on 1 November 2007 be refused.

3. The application for an extension of time within which to appeal from the decision of the Administrative Appeals Tribunal made on 23 November 2007 is granted, limited to the issue as to whether the Administrative Appeals Tribunal erred in law in deciding that the applicant, having been enrolled on the Roll in the name Arthur Langer under s 96 of the Commonwealth Electoral Act 1981 (Cth), was not eligible to make a request under s 104 of that Act for his address not to be shown on the Roll and time to institute the appeal is extended to 19 June 2008.

4. The appeal on the issue identified in Order 3 hereof be heard instanter and the appeal be taken to have been instituted by the document entitled “Notice of Appeal” filed on 25 January 2008 with effect from 19 June 2008, subject to:

(a) the first and second respondents within 14 days may make such further written submissions in answer to the applicant’s submissions on the issue as they may be advised;

(b) the applicant within a further 14 days may make such written submissions in reply to any such further submissions of the respondents as he may be advised;

and judgment on the appeal referred to in Orders 3 and 4 hereof is otherwise reserved.

5. The first and second respondents within 14 days may make such written submissions on the costs of the appeal and of the applications as they may be advised.

6. The applicant may within a further 14 days make such written submissions on the costs of the appeal and of the applications as he may be advised.

7. The costs of the appeal and of the two applications and of the appeal for which leave has been given by Order 3 hereof be reserved to the date when judgment on the appeal referred to in Orders 3 and 4 hereof is otherwise reserved.

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

On 31 October 2007, Mr Dent was informed that his application for enrolment under s 96 of the Act under the name Arthur Dent had been refused, because that was not the name by which he was usually known: see s 93A(2)(b), and because enrolment under the name Arthur Dent was contrary to the public interest: see s 93A(3), as it would result in “a name on the electoral Roll that is not supported by any evidence of identity”. It also followed that his request under s 104 of the Act was refused. On 1 November 2007, Mr Dent’s nomination to be a candidate for the election to the Senate was rejected because it did not comply with s 166(2) of the Act, as the nomination did not specify a name under which he was then enrolled. He was not on the Roll at all at that time.THE DECISIONS NOW SUBJECT TO CHALLENGE Those decisions led to proceedings in the Court. On 31 October 2007, Mr Dent applied in the normal way by application supported by affidavit for orders that the Australian Electoral Commission (the AEC) enrol him as an elector under the name Arthur Dent, pursuant to his electoral enrolment application of 16 October 2007, and secondly that he be enrolled, pursuant to his request, with his address not to be shown on the electoral Roll and as a general postal voter (that is, for his address not to be disclosed pursuant to s 104 of the Act). He also sought damages and costs. That proceeding came on for urgent interlocutory relief on the day it was instituted. Ryan J on that date declined to grant interlocutory relief in terms of the principal relief which Mr Dent claimed. At the time the matter first came before Ryan J on 31 October 2007, no decision had been made by the AEC or its relevant officer Daryl Wight whether to accept or reject Mr Dent’s application to be enrolled as an elector under the name Arthur Dent, or for his address not to be shown. The matter was adjourned overnight so that such a decision could be made. Those decisions were made by Mr Wight on behalf of the AEC on 31 October 2007 in the terms referred to above. The decision to refuse interlocutory relief is not the subject of this appeal or of any application for an extension of time to appeal. On 1 November 2007, by proceedings commenced orally and which then came to be included in the application of 31 October 2007 by amendment, Mr Dent also applied for relief arising from the rejection of his nomination as a candidate for the Senate. The nomination had been lodged with the AEC at 11 am on 1 November 2007, and was apparently regular other than the nomination being in the name of Arthur Dent. Urgent interlocutory relief was sought, in effect to direct the acceptance of the nomination. It was urgent as nominations for the Senate election closed at midday on 1 November 2007 the following day. As the decision had earlier been made that Mr Dent was not entitled to be enrolled under the name Arthur Dent, Jessup J declined to grant interlocutory relief. His Honour ordered Mr Dent to pay the costs of that interlocutory application. His Honour also, as usual in such circumstances, required and received an undertaking that proceedings would be formally instituted in that matter promptly following the oral application. That undertaking was honoured by amending the existing proceeding commenced on 31 October 2007 by including orders seeking declarations that Mr Dent was entitled to be enrolled under the name Arthur Dent and so pursuant to s 166(2) of the Act was entitled to have his nomination as a candidate for the Senate accepted and that he is a candidate for election to the Senate. As Mr Dent now accepts, the election having taken place, the issue as to his entitlement to have had his nomination for election to the Senate accepted is moot. The amended claim also included a claim for exemplary damages against the AEC and Mr Wight for the rejection of the nomination.

Ratio Decidendi

Legal Principle Established

The matters now before the Court are:1.an appeal, or alternatively an application for leave to appeal (if leave is necessary), from the decision of Gordon J on 14 December 2007 summarily dismissing the proceeding (involving both the original claim and the amended claim);2.an application made on 28 April 2008 for an extension of time within which to appeal from the costs order made by Jessup J on 1 November 2007; and3.an application made on 28 April 2008 for an extension of time within which to appeal from the decision of the AAT given on 23 November 2007.CONSIDERATION(1) The summary dismissal of the proceeding The issues before Gordon J on 14 December 2007 on the summary dismissal motion, and the orders made are set out in [11] above. Her Honour said that the first two issues were moot because the election had been held and because the AAT had determined the issue whether Mr Dent should be enrolled as an elector and, if so, whether it should be under the name Arthur Dent with an address not to be shown on the electoral Roll. In support of that conclusion, her Honour referred to the hearing before the AAT. She noted that the AAT had accepted a number of witnesses called by Mr Dent that he is known as Arthur Dent amongst those with whom he is acquainted, including his doctor, a lawyer, members of his family and his friends, and that he has some documents in that name as well as having engaged in proceedings in the Victorian Civil Administrative Tribunal under that name. Her Honour then quoted a brief passage at the conclusion of that section of the reasons of the AAT as follows:On the basis of Mr Dent’s note on his application for enrolment, I find that the name shown on his driver’s licence and on his certificate of Australian citizenship is Albert Langer.Her Honour then continued:In light of that history I see no benefit to be gained by further evidentiary hearings or trial in this Court. As the extract from the decision of the AAT makes clear, there is no real issue of relevant fact in dispute; rather, the dispute is over the legal significance of those facts. Moreover, the outcome of that legal dispute has already been resolved by this Court and by the AAT in a manner unfavourable to the applicant. As such, the application is hopeless and bound to fail. The issue concerning s 104 of the Act was addressed in the following paragraph of Her Honour’s reasons:If the applicant is dissatisfied with the decision of the AAT, he has a remedy by way of appeal. The extent that the applicant contends that the AAT’s decision was incomplete on the grounds that it did not address the effect of s 104 of the Electoral Act, that contention is unfounded: see Dent [2007] AATA 1985 at [82] ff. Again, if the applicant is dissatisfied with that aspect of the AAT’s decision, he has a remedy by way of appeal. As to the claims for damages and exemplary changes, her Honour said:[A]ssuming that the applicant could somehow articulate a common law or statutory right of action against the respondents for damages in connection with a past breach of the Electoral Act (an assumption that is by no means free of doubt), any such claim would nevertheless fail because it is clear that the respondents did not in fact breach the Electoral Act. The reasons why that is so were stated at length by Ryan J and the AAT, reasons which I adopt. (References omitted.)