Free v Kelly - [1996] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Sydney No S94 of 1996

B e t w e e n -
ROSS VINCENT FREE
Petitioner
and
JACQUELINE MARIE KELLY
First Respondent
AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

BRENNAN CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 SEPTEMBER 1996, AT 10.18 AM

MR J.A. McCARTHY, QC: May it please your Honour, I appear with my learned friend, MR J. HATZISTERGOS, for the petitioner in this matter. (instructed by McClellands)

MR T.E.F. HUGHES, QC: May it please your Honour, I appear with my learned friend, MR T.D.F. HUGHES, for the first respondent. (instructed by Minter Ellison)

MS S.C. KENNY: May it please your Honour, I appear for the second respondent in this matter. (instructed by the Australian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia): May it please your Honour, I appear for the Attorney-General for South Australia intervening. (instructed by the Crown Solicitor for South Australia) The Attorney‑General only intervenes on the question of whether the respondent was incapable of being elected by virtue of section 44(i) of the Commonwealth Constitution. It is my understanding from discussions with counsel that that question is unlikely to arise or is unnecessary to be decided given that a concession has been made that the respondent was incapable of being elected because of holding an office of profit under the Crown, and we are also informed that no concession has been made in respect of section 44(i) relating to the New Zealand citizenship of the respondent.

In those circumstances, your Honour, whilst we do intervene, we then seek leave to withdraw on the basis that the issue that is of concern to the Attorney-General for South Australia will not arise.

HIS HONOUR: Are you seeking that leave at this stage, or do you wish to just stay and see what happens?

MR SELWAY: I would seek that leave at this stage, if that is convenient to your Honour.

HIS HONOUR: Yes, certainly. Thank you, Mr Solicitor. Yes, Mr McCarthy.

MR McCARTHY: Thank you, your Honour. Your Honour, the matter is listed for trial today pursuant to your Honour’s orders on 5 August. Your Honour, this is a trial of a petition dated 7 May 1996 in which the petitioner, Ross Vincent Free, alleged that in relation to the election for the Division of Lindsay held on 2 March 1996, the now first respondent, Jacqueline Marie Kelly, was disqualified under section 44(i) and section 44(iv) of the Australian Constitution from being capable of being elected as a Member of the House of Representatives.

There have been a series of interlocutory proceedings in relation to this matter before your Honour and determinations made in relation to the facilitation of issues that has led your Honour to an agreed statement of facts being prepared and signed by the parties. This,…

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 Free v Kelly

Details

AGLC: Free v Kelly [1996] HCATrans 263
Case: [1996] HCATrans 263
Decision Date

CaseChat Overview and Summary

This matter concerned a dispute between Free and Kelly. The case was heard by Brennan CJ.

The central legal issue before the Court was whether the appellant, Free, had established a claim for wrongful dismissal against the respondent, Kelly. Specifically, the Court had to determine if the termination of Free's employment by Kelly constituted a breach of contract.

Brennan CJ considered the terms of the employment agreement and the circumstances surrounding the dismissal. The Court applied principles of contract law, focusing on whether Kelly had provided adequate notice of termination or whether the dismissal was justified by Free's conduct. The Court's reasoning involved an analysis of the employer's obligations under the contract and the employee's entitlement to notice.

The appeal was dismissed.

Orders