Donohue v Victorian Electoral Commission
[2015] VSC 98
•24 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
COURT OF DISPUTED RETURNS
S CI 2015 00338
| GERARD JOSEPH DONOHUE | Petitioner |
| v | |
| VICTORIAN ELECTORAL COMMISSION | Respondent |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 February 2015 |
DATE OF JUDGMENT: | 24 March 2015 |
CASE MAY BE CITED AS: | Donohue v Victorian Electoral Commission |
MEDIUM NEUTRAL CITATION: | [2015] VSC 98 |
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COURT OF DISPUTED RETURNS – Election petition – Abuse of process – Petition and statement of issues irrelevant or scandalous – Allegations in petition and statement of issues not proven – Petition not compliant with s 135(1)(a) of the Electoral Act 2002 (Vic) – Petition dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The petitioner appeared in person | ||
| For the Respondent | Ms K Evans of Counsel | Peter Stewart Victorian Government Solicitor Level 25, 121 Exhibition Street, Melbourne 3000 |
HIS HONOUR:
Introduction
Mr Gerard Joseph Donohue (‘the petitioner’) is an elector in the Victorian Legislative Assembly district of Gippsland South and in the Eastern Victoria Region of the Legislative Council. He attended at the Leongatha early voting centre on 27 November 2014 seeking access to the electoral writs issued for the general election in Victoria (‘the State general election’) to be conducted on 29 November 2014 (‘election day’).
On 21 November 2014, the petitioner had sought to make application by originating motion for an injunction from the Supreme Court of Victoria seeking to restrain the State general election from being held. On 27 November 2014, McMillan J refused to direct the Prothonotary to seal and accept the proposed originating motion for filing.
By a petition filed on 28 January 2015 (‘the petition’) in the Supreme Court of Victoria, acting as the Court of Disputed Returns for the purposes of the Electoral Act2002 (Vic) (‘the Act’), the petitioner seeks that the writs issued for the State general election in both the Legislative Council and the Legislative Assembly be produced in the Court, a declaration that the election is void and other relief.
Notice of the petition was given to each of the successful candidates in the State elections in which the petitioner was entitled to vote; that is, the successful candidates in the Eastern Victoria Region and the successful candidate in the Gippsland South district. At the return of the petition, the Victorian Electoral Commission (‘the Commission’) appeared to oppose the petition.
The petitioner requested that the Court recuse itself on the basis that the petitioner or an acquaintance had commenced or would commence a prosecution against the Court. This request was refused.
Statement of Issues
The petitioner set out his claims in a document entitled ’Statement of Issues‘ (‘the statement of issues’). In the same language as set out in the statement of issues, these claims were as follows:
1.The calling and conducting of the recent State election with invalid election writs.
2. The removal of Her Majesty Queen Elizabeth the Second, Her heirs and successors and subjects from statute law within the State of Western Australia.
3. The omission of calling and conducting the respective statutory and mandatory referendums informing and involving the electorate relating to such removal.
4. The enactment of Acts that are inconsistent with the Constitution of the Commonwealth of Australia creating invalidity.
5.The creation of invalid Acts and activation and use of such invalid Acts creating criminal offences.
6.The involvement of respective State Governors in the concealment of the criminal removal of Her Majesty and substitution of the Governor of Western Australia beginning 1 January 2004.
a.Governor John Sanderson (WA)
b.Governor Ken Michael (WA)
c.Governor Malcolm McCusker (WA)
d.Governor Kerry Sanderson (WA)
7. The illegal and criminal removal of Her Majesty creates the twin criminal offences of treason defined in law as breach of Allegiance and misprision of treason. Such offences are both common law and statue law in both State and Commonwealth Codes in addition to common law.
8.The involvement of the major political parties in the creation and concealment of such invalid Acts by non-compliance to the stated referendum requirements.
9.The issue of Senate writs by State Governors after 1 January 2004 flowing from the criminal removal of Her Majesty.
10.The issuing of House of Representatives writs by the Governor-Generals in the period immediately after 1 January 2004 creating invalid House of Representative writs.
a.Former Governor-General M. Jeffery
b.Former Governor-General Q. Bryce
11.The evident fact that both Quentin Bryce and Governor Alex Chernov are Knights of St John of Jerusalem or Knights of Malta opens up the Constitutional involvement of a foreign power.
12.The purported enactment of the Australia Act in 1986 and prior State Request Acts, but, omitting all respective statutory and mandatory referendums informing and involving the electorate in the purported Acts, thereby creating invalidity and as such nullifying any and all purported grants of power emanating from the Australia Act.
13.The Constitutional infraction of Section 44(i) of the Constitution of the Commonwealth of Australia by Mr R. Hawke in that Mr R. Hawke during his time as a politician at the time was an honorary citizen of Israel.
14.The Constitutional infraction of Section 44(i) of the Constitution of the Commonwealth of Australia by Mr Tony Abbott in that Mr Abbott has not renounced United Kingdom citizenship as set out in the High Court Judgement of Sue v Hill (1999).
15.The involvement of Freemasonry within Australia and the United Kingdom Masonic warrant to open and operate Masonic Lodges within Australia in relation to the High Court Judgement in Sue v Hill (1999) declaring that the United Kingdom is a foreign power, thereby placing the United Kingdom Masonic warrant currently operating within Australia into the same Judgement as Heather Hill endured.
16.The admission by High Court Judges that in relation to the Sue v Hill (1999) matter the issue should have originated by resolution from either the Senate or House of Representatives because of Section 47 of the Constitution of the Commonwealth of Australia.
17.The infraction of the entire content, purpose and operation of Section 51 of the Constitution of the Commonwealth after the criminal removal of Her Majesty and the concealment of this.
18.The critical point of the availability of intra-State banking within Section 51(xiii) of the Commonwealth Constitution but the non-application of this Constitutional right.
19.The criminal converting and trading of Australian Birth Certificates on world stock exchanges without the knowledge nor consent of each Australian named on such Birth Certificate criminally converted to trading bonds.
A.The receiving entity (the trustee) is Fidelity Investments (USA); such entity also trades all court room transactions inclusive of all lawyers trust accounts, involving every lawyer, magistrate and judge in the criminal offence of trading Australians on world stock exchanges via Fidelity Investments using CUSIP or QCINS references.
20The definition and implication of Constitutional Corporation and Section 51(xx) Commonwealth Constitution in relation to the Australian Federal Police granted by Section 3AA Crimes Act 1914 (Cth) – State offences with a Federal aspect.
21.The judicial concealment of all such issues and criminal offences by the following Victorian Supreme Court Judges in the period 10 November 2014 up to and inclusive of present.
a.Justice Garde
b.Justice Forrest
c.Justice McDonald
22.It is to be noted that the concealing of any indictable offence is in itself the offence.
23.It is also to be noted that Constitutional points or issues can be raised at any point in litigation.
24.It is also to be noted that Mr Mark Pedley sits in the Supreme Court, Court of Appeal as the Judicial Review Officer to handle and/or suppress all grand jury lodgements and/or grand jury documents. In the year 2004 Mr Pedley was the Deputy Director of the Commonwealth Public Prosecution Office subject to Damian Bugg, the Director.
25.The issue of the Early Voting Centres and the requirement for declarations by electors under the Victoria Electoral Act 2002.
26.The elevation of Justice Geoffrey Nettle from the Victorian Supreme Court (Court of Appeal – Full Court) to the High Court after the judicial concealment of certain facts stated in this statement of facts by Justice Nettle.
27.The criminal offence set out at Section 34 Crimes Act 1914 (Cth) in relation to judges and magistrates exercising federal jurisdiction with a personal interest.
28.Federal jurisdiction is vested in every court the instant a Constitutional issue comes into play (refer the Kable transcript – High Court).
29.The judicial corruption involving the concealment of all Grand Jury Applications lodged at the Victorian Supreme Court Criminal Jurisdiction prior to any purported abolition of such grand jury statute right, inclusive of the ten Grand Jury Applications lodged in March 2008 relating to Justice Nettle and the involvement of Mr Mark Pedley in the concealment of such, meaning the collusion between the Office of Public Prosecutions (Cth) and the Victorian Supreme Court in particular the Full Court or Court of Appeal.
The petitioner relied on 29 affidavits sworn by himself and other deponents and the exhibits thereto. The affidavits covered a wide range of matters and included as exhibits statutory extracts of the Commonwealth Constitution; Imperial, Commonwealth, Victorian and Western Australian legislation; court documents and transcript extracts from other proceedings; various photographs; copies of official documents and details about Freemasonry. They also included extracts of some documents filed in the Rigoni proceedings.[1] The affidavits and exhibits were received subject to objection by the Commission.
[1]Rigoni v Victorian Electoral Commission [2015] VSC 97.
The petitioner separately tendered a number of other documents including court documents and transcript in other proceedings, as well as postal receipts and documents relating to the 2013 federal election. This material was also received subject to the Commission’s objection. The Commission’s objections are well founded as to most or all of the affidavits, exhibits and documents relied on by the petitioner. In the end, it is not necessary to finally determine these objections as the affidavits, exhibits and documents sought to be relied on by the petitioner make no difference to the ultimate result.
The Commission tendered and relied on the affidavit of Ms Elizabeth Williams. Ms Williams has been the Deputy Electoral Commissioner for the State of Victoria since 2005, and is also the manager of the Elections Branch of the Commission, with responsibility for contractual and operational aspects of election services.
Election Results
Ms Williams gave evidence as to the election results for the Legislative Assembly Gippsland South district and the Legislative Council Eastern Victoria Region. This evidence was not disputed. I accept this evidence and set out its substance.
Election results
To be elected within a District for the Legislative Assembly, a candidate must achieve an absolute majority of formal votes (more than 50%). If no candidate has an absolute majority of votes after first preferences have been counted, preferences are distributed, by excluding the candidate with the least number of first preference votes first and distributing their ballot papers according to the next preference on the ballot paper. The process of excluding candidates with the least number of votes continues until a candidate achieves an absolute majority. This is called the preferential counting system.
To be elected within a Region for the Legislative Council, a candidate must achieve a quota. A quota is a proportion of formal votes that is relative to the number of vacancies. In Victoria there are five positions within each Region to be filled. The quota is determined by calculating formal votes/(vacancies+1). Therefore the quota is 1/6th or 16.67% of the formal vote. Once a candidate is elected, any votes in excess of the quota (surplus) are distributed to continuing candidates. If there are remaining vacancies to be filled and all surpluses have been distributed, candidates with the fewest votes are progressively excluded and their ballot papers transferred to continuing candidates. This is a proportional representation counting system.
Gippsland South District election results
Six candidates contested the election in Gippsland South District for the 2014 State election. This is the District in which the Petitioner is enrolled.
The successful candidate in that election was the Hon Peter Ryan, who resigned from the Legislative Assembly on 2 February 2015. A by-election is currently underway to fill the vacancy.
Eastern Victoria Region election results
Forty-six candidates contested the election for the Eastern Victoria Region where 5 vacancies were to be filled. This is the region in which the Petitioner is enrolled. The forty-six candidates comprised 16 groups and four ungrouped candidates.
The total number of first preference votes was 436,788 giving a quota of 72,799.
…
Candidates O’DONOHUE (Liberal) and SHING (Australian Labor Party) achieved a quota on first preferences and were elected. Candidate O’BRIEN (The Nationals) achieved a quota from the distribution of the surplus of candidate O’DONOHUE (at distribution 2).
The fourth elected candidate was BOURMAN (Shooters and Fishers Party) at distribution 182 as a result of the exclusion of candidate RONALDS (Liberal). At the point where the decision to exclude candidate RONALDS was made, the critical margin was 9,231.
The fifth elected candidate was candidate MULINO (Australian Labor Party) at distribution 185 also a result of the exclusion of candidate RONALDS (Liberal).
…
Mr Donohue was enrolled to vote in Gippsland South District and the Eastern Victoria Region for the 2014 State election. I have not been able to adduce any evidence from inquiries that I have caused to be made, that Mr Donohue either did, or attempted to vote in that election.[2]
[2]Emphasis in original.
Decision
At the trial, the petitioner made oral submissions in support of each of the 29 grounds set out in the statement of issues.
Counsel for the Commission provided an outline of submissions. In substance, the Commission’s submissions are:
(1) the statement of issues and the affidavit evidence provided by the petitioner are objectionable, and are inadmissible, scandalous, and oppressive;
(2) as a result, the statement of issues and affidavit evidence should be taken off the court file under rule 27.07 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic);
(3) the petition does not comply with s 135(1)(a) of the Act, as it fails to set out any facts that dispute the election or that would, if proved, satisfy the requirement in s 139 of the Act;
(4) there is no evidence filed by the petitioner that any early vote was cast otherwise than in compliance with s 98 of the Act;
(5) the request made by the petitioner for production of the election writs is an abuse of process as:
(a) this is not a matter disputing the result of any election that took place in the State general election;
(b) the Court of Disputed Returns does not have any power to grant the relief sought; and
(c) no proper basis is advanced as to how the writs are invalid; and
(6) there is no proper basis for various paragraphs in the petition, which should be struck out.
I accept the submissions made by the Commission. The petition does not sufficiently set out the facts relied on to dispute the election contrary to s 135(1)(a) of the Act. I also accept that the allegations in the petition and the issues set out in paragraphs 1-24 inclusive and 26-29 inclusive of the statement of issues:
(1) are an abuse of process;
(2) are irrelevant, and in some cases scandalous;
(3) are not proven or substantiated by any or any acceptable evidence;
(4) raise matters beyond the powers of the Court of Disputed Returns under the Act; and
(5) should be struck out.
This leaves the petitioner with only one issue remaining – the issue termed by the petitioner in the statement of issues as ’The issue of the Early Voting Centres and the requirement for declaration by electors under the Victoria Electoral Act 2002 [sic].’
As to this issue, there are four reasons why it must also be dismissed. First, I accept the submission by the Commission that the petition does not comply with s 135(1)(a) of the Act. It does not sufficiently set out the facts relied on to dispute the election.[3] The petition makes only very general reference to early voting procedures, and the requirement for a declaration.[4] It does not set out the facts or describe with any particularity or detail why it is that the Court of Disputed Returns should declare any election invalid.
[3]See Abbotto v Australian Electoral Commission (1997) 71 ALJR 675, 677 (Dawson J); Sykes v Australian Electoral Commission (1993) 67 ALJR 714, 717 (Dawson J); Ludlam v Johnston (2014) 88 ALJR 405, 407 [12] (Hayne J).
[4]See petition pages 6-7, 9 and 10.
Secondly, the affidavits and exhibits relied on by the petitioner do not provide evidence that satisfies me that there has been any non-compliance with ss 98 or 99 – or any other provision – of the Act. Sufficient facts have not been proven by the petitioner to permit the Court to conclude that the relief sought in the petition should be granted. The petition fails for want of evidence.
Thirdly, in Rigoni v Victorian Electoral Commission,[5] I decided the similar issues raised in that petition to the Court of Disputed Returns, with the result that the petition was dismissed. I adopt those reasons as part of my reasons for decision in this proceeding.
[5][2015] VSC 97.
Fourthly, no act, matter or thing that the petitioner has shown or proven has satisfied me that that act, matter or thing affected the result of an election. As a result, the Court of Disputed Returns must not declare the election to be void in accordance with s 139 of the Act.
Conclusion
For the reasons I have given above, the petition will be dismissed.
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