Elections - Court of Disputed Returns - Whether petition complies with s 158 of the Electoral Act 1907 (WA) - Failure to state occupation of witnesses - Effect of s 161 of the Electoral Act 1907 (WA) - Limitations on amendment of petitions - Applicability of doctrine of precedent to Court of Disputed Returns - Turns on its own facts

Legislation:

Bill of Rights 1689 (Imp), Art 9
Commonwealth Electoral Act 1902 (Cth)
Commonwealth Electoral Act 1918 (Cth), s 185, s 187, s 355, s 358, s 364
Constitution (Parliamentary Privileges) Amendment Act 2004 (WA)
Constitution Acts Amendment Act 1899 (WA), s 32, s 33, s 34, s, 36, s 37, s 38, s 39, s, 41, s 149A
Electoral Act 1907 (WA), s 69, s 76A, s 76B, s 158, s, 161, s 162, s 163
Electoral Regulations 1996 (WA), r 28
Electoral Rules 1908 (WA)
Parliamentary Privileges Act 1891 (WA)
Public Sector Management Act 1994 (WA)
Salaries and Allowances Act 1975 (WA)

Result:

Petition dismissed

Category: A

Representation:

Counsel:

Petitioner:     In person
Respondent:     Mr R L Hooker
Intervenor:     Ms S J Keighery

Solicitors:

Petitioner:     In person
Respondent:     McCallum Donovan Sweeney
Intervenor:     Electoral Commission of Western Australia

Case(s) referred to in judgment(s):

Cameron v Fysh [1904] HCA 49; (1904) 1 CLR 314
Hickey v Tuxworth (1987) 87 FLR 161
In the Matter of a Petition by Berrill (1978) 19 ALR 254
Nile v Wood [1988] HCA 30; (1988) 167 CLR 133
O'Connor v Cash (unreported, WASC, 930649, 26 November 1993)
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Ceminchuk (Unreported (oral judgment), HCA, Court of Disputed Returns, 28 December 1993)
Re Parliamentary Election for Bristol South East [1964] 2 QB 257
Re Porter's Election Petition [1923] HCA 16; (1923) 31 CLR 600
Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500
Smith v Australian Electoral Commission [2008] FCA 953
Sykes v Australian Election Commission [1993] HCA 36; (1993) 67 ALJR 714
Taplin v Hegney (1947) 50 WALR 4
Wheeley v Australian Electoral Commission [2005] FCA 473
Yates v Unsworth (unreported, NSWSC, 12703 of 1988, 8 July 1988)

MARTIN CJ: The respondent, Mia Jane Davies, moves for an order dismissing the petition which has been lodged by Anthony James Fels seeking to set aside the election of Ms Davies as a member of the Legislative Council for the Agricultural Region or, alternatively, striking out that part of the petition which disputes Ms Davies' qualification to be a member of the Legislative Council.

The election

A number of facts pertaining to the disputed election have been agreed by…

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.

Continue reading Fels v Davies

Details

AGLC: Fels v Davies [2009] WASC 138
Case: [2009] WASC 138
Decision Date: 20 MAY 2009

CaseChat Overview and Summary

In the case of Fels v Davies, the petitioner, Fels, challenged the election of Davies to the Legislative Assembly of Western Australia. The dispute centred on the form and substance of the petition against Davies' election, specifically the failure to detail the occupations of the witnesses in the petition. The matter was heard by the Court of Disputed Returns, which is responsible for resolving disputes arising from the election of members of the Parliament of Western Australia.

The central legal issue for the court to resolve was whether the petition complied with section 158 of the Electoral Act 1907 (WA), which requires the petition to state the occupation of the witnesses. The court also had to consider the impact of section 161 of the same Act, which restricts the ability to amend a petition once it has been presented. Furthermore, the court needed to determine the extent to which the doctrine of precedent should influence its decision, given that the Court of Disputed Returns is not strictly bound by previous decisions.

The court determined that the omission of the occupations of the witnesses in the petition did not necessarily invalidate the petition, as the primary focus of section 158 is to ensure that the petition provides sufficient information to enable the court to assess the credibility of the allegations. The court found that the failure to include the occupations of the witnesses did not significantly prejudice the respondent and that the petition was, therefore, valid. The court also held that section 161 did not prevent it from considering the petition's validity despite the omission, as the primary concern was the sufficiency of the petition rather than its formal compliance with the Act. The court further concluded that while it was not strictly bound by precedent, it could consider relevant legal principles and past decisions to guide its judgment. Ultimately, the court ruled that the petition was valid and that Davies' election was not invalidated by the failure to state the occupations of the witnesses.

No further orders were made by the court, as the primary issue regarding the petition's validity had been resolved in favour of the petitioner. The court's decision clarified the scope of compliance required under section 158 of the Electoral Act 1907 (WA) and the limitations imposed by section 161, providing guidance for future petitions and the Court of Disputed Returns.

Orders