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 (g) (Constitution).
3 The changes to the Electoral Act 1907 since the last WA State General Election of 2021 did not give the WA Electoral Commissioner the authority that he maliciously, mistakenly, or improperly exercised in disenfranchising tens of thousands of voters from being able to choose a representative of the Western Australia Party to represent them in either houses of Parliament; plus over 2,000 members and supporters of the Western Australia Party from being able to nominate for election into either House of Parliament by the Western Australia Party; or to vote for a candidate endorsed by the Western Australia Party, because by his wrongful actions the Western Australia Party was prevented from participating in the 2025 WA General Election and was only officially recognised immediately after the return of the writs for the 2025 WA General Election, when it had previously lodged all necessary information since 5 February 2024, more than 12‑months earlier.
4 Due to the further incompetence and errors occurring on the day of the election on 8 March 2025, widely acknowledged by the WA Electoral Commissioner Robert Kennedy, and details of which are presently under investigation by Right Honourable Malcolm McCusker KC, there were members improperly declared elected to the Legislative Council that ought not to have been declared elected and other members that ought to have been declared elected had this election proceeded in the correct lawful way.
5 There were thousands of voters not enrolled to vote at the “close of rolls” who were later allowed to vote in this election when they should not have been. Due to this new “whole-of-state” election of the Legislative Council, the greatly diminished quota value (less than 2.7%) enabled many otherwise ineligible voters to participate and affect the final result when they should not have participated, and thousands of voters turned away or not participating due to the WAEC running out of voting papers, delays and long queues, etc at numerous polling places on the election day.
After being notified of it, the Hon Attorney General for Western Australia sought leave, which was granted, to intervene in the Petition.
The Hon Attorney General then filed on 6 August 2025 a Chamber Summons for summary determination of the Petition (Chamber Summons).
These reasons address that application for summary determination.
By agreement, the Chamber Summons was heard before any other substantive argument was had on the Petition.
On the hearing of the Chamber Summons, the Hon Attorney General read an affidavit of Kristian Rhain Ostle, an officer of the Western Australian Electoral Commission, without objection.
The Hon Attorney General's submissions[1] relied on the following facts (none of which is disputed by Mr Fels):
[1] Filed 6 August 2025 and dated 5 August 2025.
[7]The Governor issued a writ to the Electoral Commissioner (Commissioner) directing the Commissioner to proceed with an election for the whole of State electorate to elect all 37 members of the Legislative Council on 5 February 2025.[2]
[8]The writ specified that the last day for the return of the writ was 6 May 2025.
[9]On that same day, the Governor issued a writ to the Commissioner directing the Commissioner to proceed with elections in all the electoral districts to elect one member of the Legislative Assembly for each district.[3]
[10]On 13 February 2025 the Petitioner nominated, and that nomination was accepted, as an independent candidate for the Legislative Assembly Electoral District of Churchlands.[4]
[11]The Petitioner ran as an independent candidate for the Legislative Assembly Electoral District of Churchlands and was ultimately unsuccessful in his candidacy.[5]
[12]The Petitioner did not run as a candidate in the election for the whole of State electorate of the Legislative Council.[6]
[13]The Petitioner lodged the Petition on 27 May 2025 via eCourts. The Petition is not attested to by either of the witnesses and where the Petitioner has typed his name in the space otherwise reserved for the Petitioner's signature.
[14]The header to the Petition notes that the Petitioner will email the 'scanned signed Petition & Prayer for relief witnessed by Felly Chandra and Richard Eldridge' and that he can 'hand deliver the original to the registry if required'.
(footnote references are as per the original save that page numbers have been added)
[2] Affidavit of Kristian Rhain Ostle affirmed 5 August 2025 (Ostle Affidavit) [8(b)], Annexure KRO2 at page 15.
[3] Ostle Affidavit [8(a)], Annexure KRO1 at page 12.
[4] Ostle Affidavit [28] - [34], Annexure KRO6 at page 22, Annexure KRO7 at page 23.
[5] Ostle Affidavit [35] - [42], Annexure KRO8 at page 25, Annexure KRO9 at page 26 and Annexure KRO10 at page 28.
[6] See Ostle Affidavit [43] - [48], Annexure KRO11 at page 31, Annexure KRO12 at page 41 and Annexure KRO13 at page 42.
I find those facts proven and have proceeded accordingly.
The first ground agitated by the Chamber Summons was that the Petition did not comply with s 158 of the Electoral Act 1907 (WA) (Act). That is:
[31]There are two requirements of s 158 that the Petition fails to meet:
(a)first, it is not signed by a candidate at the election in dispute (s 158(3));
(b)second, it does not adequately set out the facts relied on to invalidate the election [or] return (s 158(1)).
[32]Further, there is a question as to whether Petition has been attested by 2 witnesses as required by s 158(4) as the filed version of the Petition lacks the requisite signatures.[7] (emphasis in the original)
[7] Attorney General's submissions filed 5 August 2025.

Statutory provisions relevant to the validity of the Petition

Sections 157, 158, 161 and 163 of the Act relevantly provide:
157.Validity of election or return, how to dispute
(1)The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns, and not otherwise.
(2)A judge of the Supreme Court sitting in open Court shall constitute the Court of Disputed Returns.
158.Content of petition to Court of Disputed Returns
Every petition disputing an election or return, in this Part called the petition, must —
(1)set out the facts relied on to invalidate the election or return;
(2)contain a request for the relief the petitioner claims to be entitled to;
(3)be signed by a candidate at the election in dispute;
(4)be attested by 2 witnesses whose occupations and addresses are stated;
(5)be filed in the Central Office of the Supreme Court within 40 days after the return of the writ.
…
161.No proceedings on petition unless it complies with law
No proceedings shall be had on the petition unless the requirements of the preceding sections are complied with.
…
163.Court's functions in relation to status of roll and electors' entitlement to be included on roll
(1)The Court must inquire whether or not the requisites of section 158 have been observed ...
…
The Hon Attorney General submits that:
1.the Petition disputes the election for the Legislative Council;[8]
2.Mr Fels was a candidate at an election, namely for the electoral district of Churchlands;[9] and
3.Mr Fels was not a candidate for the election of the Legislative Council and so the Petition did not comply with s 158(3) of the Act.[10]
[8] Attorney General's submissions dated 5 August and filed 6 August 2025 [34].
[9] Attorney General's submissions dated 5 August and filed 6 August 2025 [36].
[10] Attorney General's submissions dated 5 August and filed 6 August 2025 [56].
The interpretation and application of the requirements of s 158 of the Act were considered by Martin CJ in the last matter in this State's Court of Disputed Returns: Fels v Davies [2009] WASC 138.
The Chief Justice concluded that:
1.the jurisdiction conferred on the Court of Disputed Returns was 'strictly limited';[11] and
2.the validity of any Petition, and the jurisdiction of the Court, depended upon strict compliance with the statutory requirements.[12]
[11] Fels v Davies [89].
[12] Fels v Davies [49], [54], [89]. I have not recited the authorities considered by the Chief Justice.
Mr Fels did not contend that the Chief Justice was incorrect in those conclusions. With respect, I have followed that approach to the requirements of s 158 of the Act. For the avoidance of doubt, that is because I regard them as being plainly correct.
The question in the first submission made by the Hon Attorney General as to the Petition's non‑compliance with s 158 of the Act is whether Mr Fels was a candidate at the election in dispute within the meaning of s 158(3) of the Act.
While, as I have noted above, the election on 8 March 2025 is, and was, generally described as a State election, that is not the position under the Act.
By s 4 of the Act, 'election' means:
A [Legislative] Council election[13] or an election in a [electoral] district [for the election of a member of the Legislative Assembly].[14]
[13] This insertion reflects the definitions of 'Council' and 'Council election' in s 4 of the Act.
[14] These insertions reflect the definitions of 'Assembly' and 'district' in s 4 of the Act.
Further, the distinction between elections in the electoral districts of the Legislative Assembly and an election in the Legislative Council is also apparent from the definition of 'general election' in s 4 of the Act which provides:
(a) in relation to the [Legislative] Assembly, means the elections in the districts the writ for which is issued under section 64(1) or (2);
(b) in relation to the [Legislative] Council, means the election for the [Legislative] Council the writ for which is issued under section 64(3).
Section 64 of the Act deals with writs for elections:
1.in the electoral districts (commonly called seats) of the Legislative Assembly in ss 64(1) and (2); and
2.for the Legislative Council separately in s 64(3).
As set out above, a writ for all of the electoral districts of the Legislative Assembly was issued by the Governor[15] separately from the writ issued for the election of the Legislative Council.[16]
[15] 'KRO-1' to the Ostle affidavit at page 12.
[16] 'KRO-2' to the Ostle affidavit at page 15.
It is also relevant to note that what would be commonly understood as being the one election on 8 March 2025 is defined as a 'conjoint election' in s 4 of the Act as:
conjoint election means a general election for the Council and the Assembly that both have the same polling day pursuant to writs issued on the same day
Without reciting the statutory provisions in detail, I also accept the Hon Attorney General's submissions that by the following provisions (additional to those quoted above), the Act draws the distinction between, here, an election for the district of Churchlands in the Legislative Assembly (for which Mr Fels was a candidate) and the election of the Legislative Council (the election sought to be challenged by the Petition); namely: ss 16C, 16D, 17, 40A(e), 67 and 77(2).
Taking the statutory distinction between the election for the electoral district of Churchlands for which Mr Fels was a candidate and the election for the Legislative Council, it is plain, in my view, that Mr Fels was not a candidate at the election he seeks to put in dispute by the Petition. Consequently, he could not sign a valid petition to dispute the election in the Legislative Council.
Therefore, the Petition does not comply with, or satisfy, the requirements of s 158(3) of the Act.
Applying the approach to the validity of the Petition set down by Martin CJ in Fels v Davies, that has the effect that the Petition is not valid and so the strictly limited jurisdiction of the Court of Disputed Returns has not been enlivened.
That conclusion renders it strictly unnecessary for me to consider the second argument advanced by the Hon Attorney General, namely that the Petition did not comply with s 158(1) of the Act because it did not set out adequately the facts relied upon.
In those circumstances, I do not consider it desirable that I consider those submissions further.
It is also strictly unnecessary to consider the third submission put by the Hon Attorney General, namely whether s 158(4) of the Act was complied with here and whether the Petition was 'attested by two witnesses'.
I note that, very properly with respect, the Hon Attorney General raised the issue without seeking to place great reliance upon it.
Notwithstanding that, this case demonstrates that further attention or consideration may need to be given to the interaction between the mandatory provisions of s 158(3), (4) and (5) of the Act and the Rules of the Supreme Court 1971 (WA) including O 67A r 3.
The issue arises from the fact that while a judge of the Supreme Court constitutes the Court of Disputed Returns (s 157(2) of the Act), the courts are not one and the same. Unsurprisingly, that may not be widely or immediately appreciated.
Section 158(5) of the Act provides that the Central Office of the Supreme Court is utilised as part of the Court of Disputed Returns' procedure, but that is a function which is additional to that Office's normal functions for Supreme Court matters.
For some time O 67A r 3 has required documents to be filed with the Supreme Court via ECMS and that is the system which Mr Fels utilised to file the Petition.
The Hon Attorney General submits that it is 'unclear' as to whether ECMS, and the Rules more generally, apply to the filing of a petition under the Act.[17]
[17] Attorney General's submissions filed 5 August 2025 [82], [84].
In any event, and broadly put, ECMS does not appear to allow compliance with ss 158(3) or (4) of the Act.
The difficulty for any person seeking to address a petition to the Court of Disputed Returns, and with respect for officers of the Supreme Court's Central Office, is the likely misapprehension that a petition to be filed in the Central Office of the Supreme Court under s 158(5) of the Act is to be filed in accordance with the Supreme Court Rules.
No doubt the rarity of petitions being addressed to the Court of Disputed Returns means that there is no general familiarity with the potential problem identified here.
While Mr Fels included his name and that of his 'attesting' witnesses in the Petition filed via ECMS (without signatures), that apparently was not compliant with ss 158(3) and (4) of the Act.
As will be recalled, Fels v Davies[18] was decided against the petitioner on a ground (failure to state the occupations of the attesting witnesses) which may be considered even more formal (rather than substantive) than the 'defect' just identified.
[18] Fels v Davies [87] (Martin CJ).
Given the time limit in s 158(5) of the Act, a failure by a petitioner or the Central Office to understand the issue may well render a petition invalid despite it raising a dispute of substance.
For the above reasons, I would dismiss the Petition. I will hear the parties, as is necessary, as to the form of the Orders which should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IF
Associate to the Hon Justice Howard
21 OCTOBER 2025