Featherston v Tully

Case [2002] SASC 243

FEATHERSTON v TULLY
[2002] SASC 243

Full Court:  Mullighan, Williams and Bleby JJ

  1. MULLIGHAN J                 I would answer the questions in the Case Stated as proposed by Bleby J for the reasons which he has given.  I agree with those reasons and there is nothing which I can usefully add.

  2. WILLIAMS J       I have read the reasons for judgment prepared by Bleby J who has comprehensively reviewed the legal principles.  Subject to the undermentioned comments I agree with his analysis and with the answers which Bleby J would give to the formal questions.

    1      The nature of the Court’s jurisdiction

  3. In my opinion the jurisdiction exercisable pursuant to s 103(2) of the Electoral Act 1985 (SA) has been conferred on the Supreme Court and not upon a judge as persona designata.  To adopt the language of the Privy Council in Gilbertson v South Australia [1978] AC 722 at 786 “their meaning is clear and unequivocal and … the character of the jurisdiction … provides no justification for giving to [Supreme Court] of the Electoral Act anything but its ordinary meaning.” (Gilbertson’s case was decided by reference to jurisdiction given to the Full Supreme Court under s 86(2) of the Constitution Act 1934 (SA)).

  4. Counsel for Mr Tully based an argument upon Holmes v Angwin [1906] 4 CLR 297 to support his contention that this jurisdiction is conferred upon a judge as persona designata.  Mr Featherston relied upon Sue v Hill (1999) 199 CLR 462 to advance a contrary submission. In my opinion the principles in these two cases may be reconciled. However, some explanation is required as to why an attempted appeal to the High Court from a State Court of Disputed Returns does not attract the judicial power of the Commonwealth (see Holmes v Angwin) although the High Court’s own exercise of jurisdiction as Court of Disputed Returns for the Commonwealth does attract that power (see Sue v Hill).

  5. The Supreme Court as the Court of Disputed Returns exercises judicial power but nevertheless, the subject matter of its orders do not fall within “the judicial power of the Commonwealth” for appellate purposes under Chapter III of the Australian Constitution.  When exercising this jurisdiction the Court is to be regarded as being part of the electoral machinery to determine on behalf of the Parliament of South Australia questions as to the validity of an election; the first duty of every representative body is to verify the identity of those who are to compose that body; in discharging this function the Court is therefore not concerned with the ordinary rights of parties as litigants.  In my opinion it is not inconsistent with this special characterisation (for appeal purposes) of the jurisdiction of the Court of Disputed Returns under the Electoral Act of South Australia to treat the High Court as being empowered under Chapter III to determine similar questions (at first instance) under the CommonwealthElectoral Act 1918 (Cth) in exercise of the judicial power of…

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AGLC
Featherston v Tully [2002] SASC 243
Case
[2002] SASC 243
Decision Date

CaseChat Overview and Summary

The case of Featherston v Tully involved a challenge to the election results for the electoral district of Hammond in South Australia. The petitioner, Featherston, was an unsuccessful candidate in the election held on 9 February 2002, which was part of a general election. Featherston sought a declaration that the election was void on the grounds that irregularities had occurred during the election process, and that these irregularities had deprived him of his opportunity to be elected. The Court of Disputed Returns, established under the South Australian Electoral Act, was tasked with deciding whether the election should be declared void based on the petitioner's claims.

The court had to determine if the function of the Court of Disputed Returns was repugnant to or inconsistent with the exercise of judicial power of the Commonwealth, considering that the Supreme Court is mentioned in section 73 of the Australian Constitution. The court also needed to decide whether the matters alleged in the petition constituted irregularities that would justify declaring the election void. Additionally, the court had to assess if the allegations of defamation and the application of certain sections of the Constitution Act were relevant to the petitioner's claims.

The court concluded that the Court of Disputed Returns did not exercise judicial power of the Commonwealth in this instance and that the nature of the jurisdiction did not compromise the judicial institution. The court found that the allegations of irregularities did not justify declaring the election void, as the Court of Disputed Returns was the appropriate body to determine whether the electors had been denied the opportunity to elect the candidate of their choice. The court also found that the allegations of defamation were to be dealt with by the application of section 107(4) of the Electoral Act and that the application of section 83 of the Constitution Act was irrelevant to the petitioner's claims.

In conclusion, the court answered the questions upon the case stated in the manner proposed by Bleby J, affirming that the election for the seat of Hammond was not void. The petitioner's claims of irregularities and defamation did not meet the legal thresholds required to declare the election invalid.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MULLIGHAN J WILLIAMS J
A question was raised in the case stated as to whether the function of the Court of Disputed Returns is repugnant to or inconsistent with the exercise of the judicial power of the Commonwealth. As I have already observed I do not consider that under the South Australian Electoral Act the Court of Disputed Returns exercises judicial power of the Commonwealth in this instance although the Supreme Court is a body which is especially mentioned in s 73 of the Australian Constitution. I do not consider that the nature of the jurisdiction is such as would compromise the judicial institution in the manner discussed in Kable v DPP (NSW) (1996) 189 CLR 51.5 Conclusion In my opinion the matters alleged in pars 12-18 and par 19 of the petition respectively do not give rise to “irregularities” but the Court of Disputed Returns is the appropriate body to decide whether the effect of the material is such that (in accordance with common law principles) the electors have been thereby denied the opportunity of electing the candidate of their choice. Paragraphs 20-22 of the petition allege defamation; the Court of Disputed Returns will deal with this topic by the application of s 107(4) of the Electoral Act (SA). Paragraphs 23-28 of the petition rely upon the application of s 83 of the Constitution Act (SA). That section is directed at the task of the Electoral Boundaries Commission and is irrelevant to the manner in which a candidate for election or Member of Parliament conducts himself or herself so as to give rise to a ground for complaint upon the present petition. For these reasons I answer the questions upon the case stated in the manner proposed by Bleby J.BLEBY J: Background The petitioner was an unsuccessful candidate in an election for the electoral district of Hammond in the House of Assembly of the Parliament of the State. The election was part of a general election held on 9 February 2002. The petitioner was the candidate endorsed by the Liberal Party. Mr Lewis was the winning candidate and was declared duly elected. He represented a group known as the Community Leadership Independence Coalition Party. Besides the petitioner and Mr Lewis, there were three other candidates: one representing the Australian Labor Party (Mr McLaren) and two other candidates representing minor parties. Upon the scrutiny of the votes cast, the petitioner had gained the highest number of first preference votes, but not an absolute majority. The preferences of the two candidates representing the minor parties, having gained the lowest number of first preferences, were progressively distributed, leaving the petitioner, Mr Lewis and Mr McLaren (in that order) but still with the petitioner without an absolute majority. Mr McLaren’s preferences were then distributed, resulting in Mr Lewis winning the election. The petitioner has filed a petition addressed to the Court of Disputed Returns under Pt 12, Div 2 of the Electoral Act 1985 (“the Act”), in which he seeks a declaration that the election for the seat of Hammond was void.

Ratio Decidendi

Legal Principle Established

Established by: MULLIGHAN J, WILLIAMS J

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