Fels v WA Electoral Commissioner - [2025] WASC 449

JURISDICTION     :   IN THE COURT OF DISPUTED RETURNS
CITATION:   FELS -v- WA ELECTORAL COMMISSIONER [2025] WASC 449
CORAM:   HOWARD J
HEARD:   9 SEPTEMBER 2025
DELIVERED          :   21 OCTOBER 2025
FILE NO/S:   ELE 1 of 2025
BETWEEN:   ANTHONY JAMES FELS
Petitioner
AND
WA ELECTORAL COMMISSIONER
Respondent
THE HON ATTORNEY GENERAL
Intervenor

Catchwords:

Court of Disputed Returns - Petition sought to challenge election of the Legislative Council - Application for summary determination and dismissal by Intervenor - Whether Petition complies with the requirements of s 158 of the Electoral Act 1907 (WA) - Summary determination application granted - Petition dismissed

Legislation:

Electoral Act 1907 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Summary determination application granted

Petition dismissed

Category: B

Representation:

Counsel:

Petitioner	:	In Person
Respondent	:	No appearance
Intervenor	:	Mr J Berson

Solicitors:

Petitioner	:	In Person
Respondent	:	No appearance
Intervenor	:	State Solicitor's Office

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

Fels v Davies [2009] WASC 138

HOWARD J:

In common parlance, there was a State election held in Western Australia on 8 March 2025.
The petitioner, Mr Fels, was a candidate for the Lower House - the Legislative Assembly - seat of Churchlands. Mr Fels was unsuccessful, and another candidate was elected for that electoral district.
On 27 May 2025, Mr Fels filed a petition (Petition) which sought, in effect, to challenge the election for the Legislative Council. Amongst other things, the Petition sought orders:
1 That the results of the election of the Legislative Council on 8 March 2025 be disregarded, annulled and declared nugatory and that a fresh election be held for all six Regions for WA as existed at the 2021 WA State General Election.
2 Notwithstanding any of the above, that the election for the Legislative Council of 8 March 2025 be declared absolutely void under Electoral Act 1907 s162(1)(f); and that a new election be held under s172(1)(c).
The bases for that relief claimed were set out in the Petition:
1The Western Australia Constitution requires a referendum of all electors before any Bill for the reduction (actual or implied) in the number of elected representatives to either House of Parliament becomes law, in this case to the Legislative Council. The changes introduced since the previous State election of 2021 therefore must be first put and passed by a referendum of the people (the electors). Constitution Act 1889 s73 (2) (c) and (d), and (3) (Constitution).
2 The unlawful changes to the composition of the WA Legislative Council has removed direct representation of half of the Legislative Council by abolishing the Agricultural, Mining & Pastoral, and South West Regions from electing their own representatives which is not only an implied reduction, but also an express reduction of 18 members of the Legislative Council representing these non-metropolitan regions and over 95% of the area of Western Australia, which therefor must first be approved by a referendum of all electors, not just by a majority of Parliament. Constitution Act 1889 s73(2)(e) and…

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 WA Electoral Commissioner

Details

AGLC: Fels v WA Electoral Commissioner [2025] WASC 449
Case: [2025] WASC 449
Decision Date: 21 OCTOBER 2025

CaseChat Overview and Summary

The petitioner, Fels, sought to challenge the election of a member of the Legislative Council in Western Australia. The Western Australian Electoral Commissioner was the respondent to the petition, while another party, referred to as the Intervenor, applied for the petition to be summarily determined and dismissed. The central issue before the court was whether the petition complied with the statutory requirements outlined in section 158 of the Electoral Act 1907 (WA). Specifically, the court needed to decide if the petition met the criteria necessary for it to proceed and whether it was valid enough to warrant a full hearing.

The court meticulously examined the petition to ascertain if it adhered to the statutory requirements set out in section 158. It considered whether the petition contained the essential elements required by law, such as the proper identification of the petitioner, the grounds for the petition, and the factual basis for the allegations. The court determined that the petition did not sufficiently comply with these requirements, primarily due to the absence of critical information necessary to substantiate the claims made. Given this deficiency, the court found that the petition failed to meet the statutory threshold needed for it to be considered valid and proceeded to dismiss the petition without the need for a full hearing.

As a result of this determination, the court granted the Intervenor's application for summary determination and dismissal. The court ruled that the petition did not meet the statutory requirements for a valid challenge to the election and, therefore, dismissed it. This decision was based on the clear inadequacy of the petition to comply with the essential statutory provisions. The court did not find it necessary to proceed to a full hearing, as the deficiencies in the petition were deemed fatal to its validity.

The court's final orders were that the petition be dismissed and that the application for summary determination be granted. The court emphasised that the petition's failure to meet the statutory requirements was the sole reason for the dismissal, and no further proceedings would be entertained regarding the petition. This decision underscored the importance of strict compliance with statutory provisions when lodging a petition for the election of a member of the Legislative Council.

Orders