Donohue v Gately
[2022] VSC 758
•2 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
PRACTICE COURT
S ECI 2022 04846
| GERARD J DONOHUE | Plaintiff |
| v | |
| WARWICK GATELY, VICTORIAN ELECTORAL COMMISSIONER | First Defendant |
| LINDA DESSAU, GOVERNOR OF VICTORIA | Second Defendant |
| JACLYN SYMES, ATTORNEY-GENERAL OF VICTORIA | Third Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 2 December 2022 |
DATE OF JUDGMENT: | 2 December 2022 |
CASE MAY BE CITED AS: | Donohue v Gately |
MEDIUM NEUTRAL CITATION: | [2022] VSC 758 |
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ELECTIONS – Calling of general election – Issue of writs – Right of plaintiff to view writs – Validity of writs – Presumption that writs validly issued – Proceeding dismissed – Electoral Act 2002 ss 61, 64; Evidence Act 2008 s 153(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First and Second Defendants | Mr L Brown, Crown Counsel for the State of Victoria with Ms A Wharldall | Victorian Government Solicitor’s Office |
HIS HONOUR:
Mr Gerard J Donohue commenced this proceeding on Thursday of last week, 24 November, two days before Election Day in the 2022 State Election. In his originating motion, he claimed that as a resident of Victoria he had requested from the first defendant, the Victorian Electoral Commissioner, that he be able to view:
The original and/or view a copy of the original hand-signed Writ of the Governor of Victoria in the form stipulated in [the] Electoral Act 2002, (the Act) in Section 61, in the form of Schedule 1 to the Act, (the Electoral Writ) and provided to the First Defendant in accordance with Section 64 of the Act, and a copy of the same be produced/provided to the Plaintiff.
The First Defendant has failed and/or refused to allow the Plaintiff to view and provide the said copy of the Electoral Writ to the Plaintiff.
The Second Defendant [The Governor] is in the position of being responsible for signing the said Electoral Writ and providing a copy [of the] same.
The Third Defendant is the most senior law officer in the Victorian Government, representative of the people, the electors of Victoria and is in the position to provide a copy of the Electoral Writ.
Mr Donohue sought the issue of a writ of mandamus forthwith seeking a copy of the writ, and failing compliance with the orders sought an urgent injunction to prevent the conduct of the election. His summons sought orders that:
The Plaintiff as an elector on the election roll claims that as a resident elector of Victoria that he is entitled to view a copy of the original hand-signed Writ that establishes and is the basis upon which the Victorian State Elections, and the gazetted proclamation scheduled to be held on 26 November 2022 are to be conducted.
On Friday afternoon, 25 November, the eve of the election, I heard initial submissions from Mr Donohue and counsel for the first defendant and adjourned his summons until today. I did not adjourn the case to today just for a mention, but to hear the summons and the proceeding as a whole. I consider that the case should be determined today because, whatever its outcome, it needs to be decided quickly. It benefits Mr Donohue and everyone else interested in this proceeding that it be determined today and the Court has sought to enable that to occur.
As I have made clear a number of times this morning, the only issues that I can decide are Mr Donohue’s claims made in his originating motion and summons. Mr Donohue has filed affidavits stating that he had not been able to view or obtain a copy of the writ when he requested it from election officials. He also relies on another person’s affidavit who states that he could not sight the writs at a Mount Waverley voting centre.
The first defendant, the Victorian Electoral Commissioner, relied on an affidavit by Mr N Sayegh, who is a lawyer in the Victorian Government Solicitor's Office. He said that on 29 November he accessed the website of the Victorian Electoral Commission and selected the heading ‘Misinformation: the 2022 State election is not legitimate because the writs have not been signed and are not publicly available’ and clicked on links provided by the phrase ‘digital copy available for viewing’ and two documents under the heading ‘2022 state election writs’. He downloaded those documents and exhibited copies to his affidavit. He was informed by the Director, Electoral Integrity and Regulation at the Victorian Electoral Commission that the documents were copies of the writs for the 2022 Victorian State Election held by the Commission.
The primary issue in Mr Donohue’s case is whether he was entitled to view or obtain copies of the writs or view the original writs. That issue is now academic, because he received copies of the writs as exhibits to Mr Sayegh’s affidavit. In addition, counsel has provided him this morning with copies of the writs which bear the signature of the Victorian Electoral Commissioner, as having received the writs on 1 November 2022.
The election has now been held and the Court cannot issue orders to prevent it from occurring even if grounds for such orders were established. By the hearing on 25 November, more than a million Victorians had already voted. But, as they were argued, I will consider Mr Donohue’s claims, principally about his right to obtain copies of the writs or view the original writs, but also an argument I permitted him to make about the validity of the writs.
Section 61(1) of the Electoral Act 2002 (the ‘Electoral Act’) requires the Governor to issue writs for a general election. The evidence establishes that the Governor has done that. The main argument Mr Donohue made this morning was that the copies of the writs that Mr Sayegh produced had not been indorsed by the Electoral Commissioner with the date of their receipt as is required by s 64(a), which states:
64 Duties of Commission on receipt of writ
If a writ for an election is received by the Commission under section 61, the Commission must –
(a) indorse on the writ the date of its receipt; and
(b) publicly advertise –
(i) receipt of the writ; and
(ii)the final nomination day and election day named in the writ; and
(iii)the office of the appropriate election manager.
The additional copies of the writs that counsel for the first and second defendants produced this morning establish that the Electoral Commissioner did make the necessary indorsement on the writs.
In any event, the Electoral Act does not state expressly or impliedly that a failure to indorse the writs as s 61 requires would invalidate the prior action of the Governor in issuing the writs.[1] The Governor’s issuing of the writs is a step that occurs before the Electoral Commissioner receives them. Once the Governor issues the writs, a general election must be held.
[1]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
In any event, the writs have been placed on the Commission’s website and counsel stated that copies of them with the Electoral Commissioner's indorsement will be placed on the website.
Mr Donohue did not refer me to any law that entitles him to receive or view copies of the writs or view the original writs. It may be that the Freedom of Information Act1982 permits a citizen to obtain copies of the writs, but that Act requires a request for access to documents and no issue about any such request was raised in this proceeding.
So far as the validity of the writs is concerned, counsel for the first and second defendants also referred to the provisions of s 153(2) of the Evidence Act 2008, to establish that the effect of the notices notified or published in the Victorian Government Gazette was to establish the validity of the issue of the writs. Those notices stated:
PROCLAMATION
I, Linda Dessau AC, Governor of Victoria, with the advice of the Premier, the Honourable Daniel Andrews MP, do, by this Proclamation, declare that I have today ordered that writs be issued according to law for the election of Members to serve in the Legislative Assembly of Victoria, and for Members to serve in the Legislative Council of Victoria.
Given under my Hand and the Seal of the State of Victoria on this first day of November 2022.
LINDA DESSAU
The Honourable Linda Dessau AC
Governor
By Her Excellency’s Command
DANIEL ANDREWS MP
Premier of Victoria
NOTICE OF ELECTION
I give notice that the Governor of Victoria has issued writs for the election of Members to serve in the Legislative Assembly of Victoria, and for members to serve in the Legislative Council of Victoria, specifying the following dates:
Date of issue of writs 1 November 2022
Date for the close of the rolls 8 November 2022
Final nomination day 11 November 2022
Election day 26 November 2022
Return of the writs On or before 17 December 2022
By Her Excellency’s Command
The Governor’s Office
1 November 2022
ALEXANDRA DEBELJAKOVIC
Clerk of the Executive Council
As a result of the publication of the Proclamation and the Notice of Election, it is to be presumed that the Governor’s act in issuing the writs was duly done on 1 November 2022. Section 153(2) of the Evidence Act 2008 states:
153 Gazettes and other official documents
…
(2) If –
(a) there is produced to a court –
(i) a copy of any government or official gazette (by whatever name called) of this State, the Commonwealth, another State, a Territory or a foreign country; or
(ii)a document that purports to have been printed by the Government Printer of this State, or by the government or official printer of the Commonwealth or of a State or Territory; or
(iii)a document that purports to have been printed by authority of the government or administration of this State, the Commonwealth, another State, a Territory or a foreign country; and
(b) the doing of an act –
(i)by the Governor-General or by the Governor of a State or the Administrator of a Territory; or
(ii)by a person authorised or empowered to do the act by an Australian law or a law of a foreign country—
is notified or published in the copy or document —
it is presumed, unless the contrary is proved, that the act was duly done and, if the day on which the act was done appears in the copy or document, it was done on that day.
In summary, on the basis of the matters raised in Mr Donohue’s originating motion, his summons and his submissions, he has not established any legal right to obtain or view copies of the writs or view the original writ. In any event, Mr Donohue has been provided with copies of the writs in the exhibits to Mr Sayegh's affidavit and by the further copies provided at the hearing this morning. The other issue raised as to the potential invalidity of the writs because of a failure to comply with s 64(a) of the Electoral Act, even if it were proved, does not establish that the writs were invalid. In any event, I am not satisfied that Mr Donohue has established that there has been any failure to comply with s 64(a).
Mr Donohue raised other issues not stated in his originating motion. He wished to issue subpoenas but had insufficient time to do so. But it was unclear how the documents he sought might have assisted his case. I considered whether I should adjourn the proceeding for a few days, to allow further submissions to be put, but having heard the nature of the further submissions that Mr Donohue foreshadowed, I am satisfied that they are not relevant to the issues that he raises in his originating motion.
Towards the end of his submissions, Mr Donohue sought to tender an affidavit made in 2013 which had no bearing on the issue of the writs by the Governor. I did not accept that tender because amongst other things, as the affidavit was made in 2013 and this is 2022, it had nothing to do with whether or not the writs had been issued validly. Litigation raising particular issues for decision cannot be used to argue other matters.
A court can only consider the issues that the parties have raised and, as I have said a number of times this morning, the issue Mr Donohue asked the court to decide was whether he, as an elector, was entitled to view, or be provided with, copies of the writs or to view the original writs. I determine that he has not established that he was, but in any event, he has now received copies of the writs.
Mr Donohue has not established the grounds that he raises in his originating motion or his challenge to the validity of the writs.
The proceeding is dismissed.
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