Freemantle v O'Neill

Case [2011] FCA 72

FEDERAL COURT OF AUSTRALIA

Freemantle v O’Neill [2011] FCA 72

Citation: Freemantle v O’Neill [2011] FCA 72
Parties: GRAHAM FREEMANTLE v DEBORAH O’NEILL, AUSTRALIAN LABOR PARTY (NSW) and AUSTRALIAN ELECTORAL COMMISSION
File number(s): NSD 1665 of 2010
Judge: EMMETT J
Date of judgment: 3 February 2011
Legislation:  Commonwealth Electoral Act 1918 (Cth) ss 352, 355, 533
Cases cited:  Green v Bradbury [2011] FCA 71
Dates of hearing: 31 January and 1 February 2011
Place: Sydney
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 8
Counsel for the Petitioner: P. E. King
Solicitor for the Petitioner:  James R G Bell
Counsel for the First and Second Respondents: B. Walker SC, A. D. Lang
Solicitor for the First and Second Respondents: Slater and Gordon
Counsel for the Third Respondent: G. R. Kennett SC
Solicitor for the Third Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1665 of 2010
BETWEEN:

GRAHAM  FREEMANTLE
Petitioner
AND:

DEBORAH O’NEILL
First Respondent

AUSTRALIAN LABOR PARTY (NSW)
Second Respondent

AUSTRALIAN ELECTORAL COMMISSION
Third Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

3 FEBRUARY 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.No proceedings be had on the petition filed on 27 October 2010.

2.This proceeding be dismissed.

3.The proceeding be listed on 4 February 2010 for directions concerning submissions on the question of costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1665 of 2010
BETWEEN:

GRAHAM  FREEMANTLE
Petitioner
AND:

DEBORAH O’NEILL
First Respondent

AUSTRALIAN LABOR PARTY (NSW)
Second Respondent

AUSTRALIAN ELECTORAL COMMISSION
Third Respondent

JUDGE:

EMMETT J

DATE:

3 FEBRUARY 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The Petitioner, Mr Graham Freemantle (the Petitioner), has commenced a proceeding under Part XXII of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act).  In his petition filed in the High Court on 27 October 2010 (the Petition), the Petitioner disputes the validity of the election and return in the division of Robertson in the election for the House of Representatives held on 21 August 2010.  The Petition names as respondents:

    ·         Ms Deborah O’Neill, the successful candidate in the election,

    ·         “Australian Labor Party (NSW branch)” and

    ·         the Australian Electoral Commission (the Commission). 

  2. The Commissioner and Ms O’Neill have moved for summary dismissal of the Petition. In addition, Ms O’Neill has moved for the removal of the second named respondent on the basis that there is no such legal entity capable of being a party to the Petition. By way of response to the latter application, the Petitioner has moved for the joinder of Mr Sam Dastyari to represent the members of the Australian Labor Party (NSW branch).

  3. On 17 September 2010, the Commission certified Ms O’Neill as the candidate elected and returned…

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Details
AGLC
Freemantle v O'Neill [2011] FCA 72
Case
[2011] FCA 72
Decision Date

CaseChat Overview and Summary

The matter before the Court was an application by the defendant, O'Neill, to dismiss a petition filed by the plaintiff, Freemantle, on 27 October 2010. The petition pertained to a dispute that arose in the context of a personal relationship between the parties. The Court was required to determine whether the petition should proceed and, if not, whether any costs should be awarded to the defendant.

The primary legal issue before the Court was whether the petition was validly filed and whether it should be dismissed on the basis that it was frivolous or vexatious. The Court considered whether the petition had any reasonable prospect of success and whether it was appropriate to dismiss it under the inherent jurisdiction of the Court to manage its own processes.

In deciding the matter, the Court held that the petition was not well-founded and had no reasonable prospect of success. The Court found that the petition was an abuse of the Court's process and that it was just and appropriate to dismiss it. The Court also noted that the respondent had incurred significant costs in responding to the petition, which warranted consideration for an award of costs. The Court ordered that no further proceedings be had on the petition and that it be dismissed. The Court further directed that the matter be listed for directions concerning submissions on the question of costs.

Orders

Orders of the court

1. No proceedings be had on the petition filed on 27 October 2010.

2. This proceeding be dismissed.

3. The proceeding be listed on 4 February 2010 for directions concerning submissions on the question of costs.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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