Donohue v Victorian Electoral Commission - [2015] VSC 98

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 98
Decision Date: 24 March 2015

CaseChat Overview and Summary

Donohue v Victorian Electoral Commission is a case before the Court of Disputed Returns which arose out of an election petition challenging the validity of an election. The petitioner, Donohue, sought to have the election of a particular candidate declared invalid on the grounds of abuse of process, claiming that the petition and the statement of issues were either irrelevant or scandalous. The respondent, the Victorian Electoral Commission, argued that the allegations in the petition and statement of issues were not proven and that the petition did not comply with the relevant statutory requirements.

The court was required to determine whether the petition complied with the statutory requirements, and if not, whether the petition should be dismissed. The court had to consider whether the allegations in the petition were relevant and whether the petition was scandalous. The court also had to consider whether the petition was compliant with section 135(1)(a) of the Electoral Act 2002 (Vic).

The court found that the petition and statement of issues were not compliant with the statutory requirements, as they were not relevant and were scandalous. The court also found that the allegations in the petition were not proven. As a result, the court dismissed the petition, finding that it was not compliant with section 135(1)(a) of the Electoral Act 2002 (Vic). The court held that the petition was frivolous and an abuse of process, and therefore, it was not necessary to consider the other grounds of the petition.

Orders