Freemantle v O'Neill & Ors

[2010] HCATrans 316

[2010] HCATrans 316

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS 

Office of the Registry
Sydney No S248 of 2010

B e t w e e n -

GRAHAM FREEMANTLE

Petitioner

and

DEBORAH O’NEILL

First Respondent

AUSTRALIAN LABOR PARTY (NSW BRANCH)

Second Respondent

AUSTRALIAN ELECTORAL COMMISSION

Third Respondent

Office of the Registry
  Sydney             No S249 of 2010

B e t w e e n -

GREGORY BRISCOE‑HOUGH

Petitioner

and

D. MELHAM MHR

First Respondent

AUSTRALIAN LABOR PARTY (NSW BRANCH)

Second Respondent

AUSTRALIAN ELECTORAL COMMISSION

Third Respondent

Office of the Registry
  Sydney             No S250 of 2010

B e t w e e n -

ROBYN PEEBLES

Petitioner

and

SEN LEE RHIANNON

First Respondent

THE AUSTRALIAN LABOR PARTY

Second Respondent

AUSTRALIAN ELECTORAL COMMISSION

Third Respondent

Office of the Registry
  Sydney             No S251 of 2010

B e t w e e n -

ANDREW GREEN

Petitioner

and

DAVID BRADBURY

First Respondent

AUSTRALIAN LABOR PARTY (NSW BRANCH)

Second Respondent

AUSTRALIAN ELECTORAL COMMISSION

Third Respondent

Summonses for directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 25 NOVEMBER 2010, AT 9.54 AM

Copyright in the High Court of Australia

__________________

MR P.E. KING:   If the Court pleases, for the petitioners.  (instructed by James R G Bell)

MS K.A. STERN:   May it please the Court, I appear for the third respondent in each of the four matters, namely, Freemantle v O’Neill, Peebles v Rhiannon, Green v Bradbury and Briscoe‑Hough vMelham & Ors.  (instructed by Australian Government Solicitor)

MR A.D. LANG: May it please the Court, I appear for the first respondent in matter S248 of 2010 and the second respondent in that matter, the first respondent in S251 of 2010 and also the second respondent, but only for the second respondent in matter S250 of 2010. (instructed by Slater & Gordon Lawyers)

MR T. MOLOMBY, SC:   If it please the Court, I am retained by the first respondent in matter S250 of 2010.  MS K. LONGIN appears with me.  (instructed by Gerard Gooden Solicitor)

HIS HONOUR:   Which one is that, Mr Molomby?

MR MOLOMBY:   That is the one involving Senator Elect Rhiannon.

HIS HONOUR:   Yes.  This is the Senate matter?

MR MOLOMBY:   That is the Senate matter, your Honour.  Your Honour, just so your Honour knows, Ms Rhiannon has not yet been formally served.  No complaint is made of this, but I should tell your Honour that the roll which I have here in that she has not yet been served ‑ ‑ ‑

HIS HONOUR:   Yes, I understand.

MR MOLOMBY:   She has been supplied informally with the material and I have it and I am here today to assist the Court and if no point is taken as to the absence of service, I certainly do not take it.

HIS HONOUR:   There seem to be some – now, your client was a candidate for The Greens, was she not?

MR MOLOMBY:   That is correct, your Honour.

HIS HONOUR:   Is there some difficulty, as you see it, from the submissions which seem to complain about Labor Party activity?

MR MOLOMBY:   Your Honour, it is said in the outline of submissions that there is no dispute, or no available dispute, about the facts.  The first respondent disputes every fact alleged in that so‑called statement of facts except for her name and that she was reasonably elected to the Senate.  The petition against her ‑ ‑ ‑

HIS HONOUR:   She takes her seat when?

MR MOLOMBY:   In July next year, your Honour.  Your Honour, might I place on record the petition against her is, in our submission, vexatious and scandalous and I put that on record from the start.  I do not seek to say any more about it, your Honour, for the moment unless your Honour wishes me to develop that.

HIS HONOUR:   Yes, thank you, Mr Molomby.  Now, 249, which is the matter involving Mr Melham, that is not proceeding, is it?

MR KING:   That is correct, your Honour, and we have served in accordance with rule 32.05 a newspaper advertisement giving notice of withdrawal of that petition and it has not been served.

HIS HONOUR:   Right.

MR KING:   We therefore ask that your Honour make the orders which are attached to the summons and the submission filed in accordance with the direction of the Court.  I have the affidavit of publication of the withdrawal notice.....and to the Court.

HIS HONOUR:   What do you say about the Electoral Commission’s costs?

MR KING:   I have nothing to say about that, your Honour.

HIS HONOUR:   Do you seek costs?

MS STERN:   Your Honour, yes.

HIS HONOUR:   Very well.  In matter S249 of 2010, I grant leave pursuant to rule 32.05 of the High Court Rules to withdraw petition No S249 of 2010 and the petitioner will pay the costs of the third respondent.

MR KING:   Just in relation to what Mr Molomby said and the issues of service, there has been some very curious correspondence between his client and Mr Bell in relation to the issues of service.  I have an affidavit of that correspondence and the attempts to serve Ms Rhiannon, if needs be, and I have it here available to hand up.

HIS HONOUR:   All right.  Just hang on to it for a minute.  Is there any reason why I should not refer all these proceedings to the Federal Court under section 354(2)?

MR KING:   In my submission, yes, your Honour.

HIS HONOUR:   Why?

MR KING:   Can I hand to your Honour a redraft of the questions that were attached to the summons.

HIS HONOUR:   This is exactly the point, you see.

MR KING:   Yes. 

HIS HONOUR:   The High Court should simply not have to spend its time dredging around trying to get these petitions in proper form.  If they are to be in proper form, they should be in proper form immediately. 

MR KING:   The questions that we have raised, your Honour, are really four in number.  They go to an issue of form, an issue of the secrecy of the ballot ‑ ‑ ‑

HIS HONOUR:   The threshold question, Mr King, is the complaints made against you by various other parties that 355(a), amongst other things, has not been complied with.

MR KING:   What has been said about that by the ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ set out the facts.  There is a ‑ ‑ ‑

MR KING:   ‑ ‑ ‑ third respondent ‑ ‑ ‑

HIS HONOUR:   Just a minute.  Do not talk over me. 

MR KING:   Sorry, your Honour.

HIS HONOUR:   There is a decision of Justice Gaudron which seems to be in point, I would have thought.

MR KING:   Yes, in Webster v Deahm, your Honour, yes.  We believe we have taken that into account.  Can I just say this, your Honour.  Ms Aickin in her submissions, which we only received yesterday – Ms Stern, I beg your pardon – which we only received yesterday, indicated that they would seek particulars of a certain type and we have no objection to the provision of those particulars.  She also indicated that they may serve a notice of motion regarding the relief sought in subparagraph (iii) of the petition.  Bearing in mind the way in which Ms Stern puts that point, we probably have no difficulty with withdrawing subparagraph (iii) of the petition.

HIS HONOUR: But all these matters could be thrashed out in the Federal Court, Mr King. Section 363A enjoins a speedy decision and speedy decisions are facilitated by prompt interlocutory steps and they are more easily dealt with in the Federal Court than here because there are rather more numerous members of that body than there is of this Court.

MR KING:   Indeed.  Can I just put to your Honour these two propositions on that point.  There are, we say, in this matter, at the end of the day - which is really about documents and it is not about contested questions of fact contrary to what Mr Molomby has said to your Honour - two important questions deserving of consideration or that may attract the attention of the Full Court at the outset of the matter ‑ ‑ ‑

HIS HONOUR:   You cannot attract them at the outset, Mr King.  That is the problem.  I would never make an order sending anything up to the Full Court which was in a factual ambiguous state.

MR KING:   Yes.  What I had in mind, or what I would respectfully propose is this, that there be a short adjournment with a view to us serving a notice to admit facts in relation to issues which we think are, in truth, not in issue and cannot be in issue.  We have, your Honour, attached to the document that I have just provided to your Honour attached, for example, the Robertson postal voting form.  This is the key document.  Ultimately it is the contrast between that and annexure B, which is the approved form, which address the form issue, which is the first question.  Now, that, I acknowledge, does not involve a constitutional question, but if upon an examination of essentially the facts of and concerning that form the Court were minded to accede to our arguments, then we say without more there should be a recount in the election.

On the secret ballot issue there is an important question of principle, we respectfully submit, and that is whether sections 7 and 24 of the Constitution, or the implied freedom of political communication is engaged with respect to any provision which impairs the secrecy of the ballot. We think, with respect, that in circumstances where again a short adjournment with the production of the relevant documents by a subpoena, which we have prepared – we did present it to the Registry last week but, quite properly, the Registry said it would be more appropriate to bring it up today.

In essence, what we say about that secrecy of the ballot point is that the election was affected by the relevant illegal practice or if, as appears to be contended by the respondents, their conduct was saved by a provision of the Electoral Act, then we say that that provision is a law of the Commonwealth which impairs the secrecy of the ballot and that, we say, is the appropriate question for referral. 

The misleading and deceptive conduct issue does not give rise to any further question of fact either because again it is a matter of examining the documents.  Then the final issue is the entitlements issue and we acknowledge that it is necessary for the production of some further documents by the subpoena process which we have mentioned.  But again, there is a constitutional issue in relation to that and that is whether or not the use of parliamentary entitlements after the dissolution of the House is an illegal practice for the purposes of an election and that is ‑ ‑ ‑

HIS HONOUR:   Why is it a constitutional question?

MR KING: That is engaged by sections 48 and 49 of the Constitution, your Honour, the meaning of the word “allowance” and/or “privilege” and “power” and the dissolution section, section 28. I cannot take it any further than that, your Honour. Of course these are important matters to all the parties and matters of impression.

HIS HONOUR:   The candidates who were elected in the House petitions, they have taken their seats, I assume.

MR KING:   They have, I assume, yes.

HIS HONOUR:   And have voted, I assume.

MR KING:   They may have, yes.  In the Senate matter they have not.

HIS HONOUR:   No, not in the Senate.

MR KING:   No.  We would think that if the election – the result of our petition is this, that either there is a recount without the need for a bi‑election or, alternatively, there will be a bi-election – in the assumption that there is a bi-election for the Senate, it would presumably occur at the same time.  But it is not suggested, as I understand it, your Honour, that any vote of the House that has occurred, simply because these two have been assumed to be members, would be otherwise affected.  It is not our understanding that is the result of the law.

HIS HONOUR:   So far.

MR KING:   So far, yes.

HIS HONOUR:   These petitions were presented within time, I take it?

MR KING:   They were, yes.

HIS HONOUR:   How close to the end of the time?

MR KING:   Close to the end, your Honour.

HIS HONOUR:   What is the explanation for the delay?

MR KING:   Well, your Honour, it was necessary to collate the material, and that is not always easy to do, and to formulate the questions in the petition and the statement of facts and that required a fair bit of attention.  The petitioner, Freemantle, and indeed, Green, do not live in Sydney so it took some time to access them and get their material, but I do acknowledge it was at the end of the 40-day period.

HIS HONOUR:   Thank you.

MR KING:   Your Honour, can I just say one other thing in relation to material we received yesterday from the first respondent.  We note that the Court had indicated that material should have been served by Tuesday, but we do not take any point about that, but we do ask your Honour to note that what my friend says in paragraph 11 is simply in error.  An illegal practice may affect the result without proof of affectation – although indeed in this particular case there is proof of affectation because of the difference in the numbers – where the illegal practice has been conducted by the candidate itself.  That is section 362(3)(a) and my friend’s submission is in error, with respect. 

There are some other matters raised in those submissions which I will not deal with at the moment.  They give notice of a conditional appearance but do not put on the notice of motion that is required by the rules in relation to such conditional appearances.

HIS HONOUR:   You seem to have joined the Australian Labor Party as a respondent.

MR KING:   We have and can I explain why, your Honour?

HIS HONOUR:   Well, it is unincorporated association, is it not?

MR KING:   I appreciate ‑ ‑ ‑

HIS HONOUR:   It has been pretty clear since Cameron v Hogan (1934) 51 CLR 358.

MR KING:   Yes.  Can I explain why, your Honour, and we would seek, pursuant to the rules, in relation to that issue a short – an opportunity, having obtained the production of the relevant documents, namely, the identity of the person who was the so‑called Robertson postal voting centre which, so far as our researches have taken it, indicate that it is registered with the Australian Labor Party New South Wales Branch.  We have not been able to identify the actual person with whom it is registered other than that entity. 

So it may be necessary, your Honour, for an order under rule 21 removing the second respondent and substituting the person who indeed was the subscriber to and the controller of the Robertson postal voting centre, but we would deal with that once the notice of motion contemplated by the rules in relation to conditional appearances was addressed and once the documents that relate to that which are the subject of our subpoena were produced.  Your Honour, Mr Bell has prepared those subpoenas.

HIS HONOUR:   They will not be being issued this morning, Mr King, I can tell you.

MR KING:   If the Court pleases.  We have them if needs be.

HIS HONOUR:   Yes, Mr Lang.

MR LANG:   Your Honour, my clients have filed and served an outline of submissions in relation to these matters.  As your Honour will have seen, in our submission, there are two fundamental defects with the petitions in their current form.  The first defect relates to the status of the second respondent in each matter.  As your Honour has indicated, the difficulty there is that that party is not a juristic person.  It is an unincorporated association and it cannot sue or be sued in its own name and we have referred to venerable authority in relation to that matter.

More significantly, your Honour, the petitions in their current form do not comply with the requirements of the Commonwealth Electoral Act 1981 and, in particular, section 355(a) and perhaps paragraph (aa).  Your Honour, in our submission, it would be more expeditious for the preliminary issue of the validity of the petitions to be determined, as the Court has suggested, by the Federal Court of Australia and we therefore submit it would be appropriate for the matters to be referred to the Federal Court so that that preliminary issue of the validity of the petitions can be determined as to the first question.  Then the other matters raised by my learned friend, Mr King, can then be considered.  Your Honour, I am very happy to take the Court through the outline of submissions ‑ ‑ ‑

HIS HONOUR:   No, I have read them, thank you.

MR LANG: If I could just say one thing in relation to undue influence, your Honour. There is no possible basis on which any of the conduct alleged in these petitions could constitute undue influence within the meaning of the Act, neither under section 28 of the Crimes Act 1914 nor under section 327 of the Commonwealth Electoral Act.  It is simply not possible.  In relation to the difficulty my learned friend has suggested arises with our submissions, the phrase in section 362, “likely to be affected”, applies both to paragraph (a) and paragraph (b) of subsection 362(3).  Does your Honour have section 362?

That paragraph, the proviso, if that is the right word, “was likely to be affected”, that applies equally to paragraphs (a) and (b).  It does not apply to simply one of them.  Your Honour, as a very minimum, I mean, these petitions need to state as a fact what the result of the election was, how many votes my clients were successful by, what the margin was, how many postal votes are in dispute.  There can be no possible factual basis on the petitions in their current form for the election likely to have been affected.  It is not possible, your Honour.

Finally, your Honour, in relation to what I might call the Senate petition, your Honour, that is No S250 of 2010, where my client is only the second respondent, the first respondent, represented by my learned friend, Mr Molomby, that is Senator Elect Lee Rhiannon, contrary to the whole basis on which that petition is currently drawn, she is not, was not a candidate of the Labor Party and the petition in its current form, with respect, is a dog’s breakfast.  It cannot be responded to properly.

HIS HONOUR:   Do not stoke up Mr Molomby again.

MR LANG:   Perhaps more significantly, your Honour, one of the forms of relief sought in the Senate petition is alternatively to declare the election in the Division of Banks absolute void.  It is assumed by my clients that what is actually meant there is that the alternate relief sought by the petitioner – sorry, your Honour, this is in paragraph 6 of the relief in the Senate petition.  It is assumed that what is actually sought here is to void or avoid the entire election of senators in New South Wales. 

Now, if that is the case, there are a number of other people who have a pretty significant interest in that issue and they ought to be parties to this matter.  There will be a number of ALP senators, a number of Liberal senators who will want to have some say about this, and this petition in its current form is a mess, to say the least, your Honour. 

The problems in the Robertson and Lindsay petitions are perhaps not as immediately evident, your Honour, but they are as significant from the conceptual point of view as the problems with the Senate petition.  As I say, your Honour, I am happy to address the Court further on those defects, but as we have indicated in our submissions, we are joined with the Australian Electoral Commission in submitting that it is appropriate that these matters be referred to the Federal Court for hearing and determination.  If your Honour pleases.

HIS HONOUR:   Thank you.  Yes, Ms Stern.  What do you say about what are said to be constitutional questions underlying these complaints?

MS STERN: Your Honour, they appear to be in the realm of what may be thought to be constitutional questions but it is uncertain whether, in truth, any constitutional question truly arises on the matters alleged. The difficulty is that in the submissions it is suggested that the legislation is, in fact, invalid and, in our submission, if these matters are to be considered, they certainly should be considered after the service of section 78B notices.

MR KING:   I agree with that, of course, your Honour.

HIS HONOUR:   All right.

MS STERN:   Your Honour, other than that, we simply say that this matter as a whole should be referred to the Federal Court and that there would be no merit in a very large number of questions of law being referred to the Full Court until the factual substratum has been established and it has been established whether there is compliance with section 355.

HIS HONOUR:   Yes.  You do not need tell me about that.

MS STERN:   Your Honour, unless there is any other matter upon which I could assist your Honour, those are the only matters we wanted to raise on the directions hearing.

HIS HONOUR:   Yes, thank you.  Yes, Mr King.

MR KING:   Yes, briefly in response to Mr Lang, your Honour.  The petitions do allege, contrary to his submission, that the election was affected and, indeed, the short facts in relation to each matter is or are that the if the votes cast on the ALP form are invalid, as indeed was held in Maloney’s Case by one of the first High Court sittings in relation to postal ballots, then the result will be, on a recount, a different result.  There will be no need for a bi-election.  That was the order of the Court made in Maloney. 

It is just simply an error for my friend to say that it has not been alleged that the result will be affected or, indeed, that it will not be.  I have nothing to say about the other matters.  We do submit that the question of the secret ballot provisions is an important question of principle.  It is a discrete issue arising on the papers and on the documents indeed that I have attached to the summary question that I have handed to your Honour this morning. 

It is an important question of principle.  I cannot say anything further about it than that, your Honour.  What we would submit respectfully is that there should be a short adjournment with an opportunity for the parties to consult, as we have suggested, in the proposed direction, bring the matter back in a fortnight.  If, within that time, there cannot be any resolution of the issues, we would of course in the meantime answer the particulars sought by the AEC, which we only received yesterday and still not in a proper form, then your Honour would then make a direction either to refer it to the Full Court or, alternatively, to send it to the Federal Court.  That, we think, is, with respect, the most expedient way forward.  Your Honour, I do have a copy also of the Lindsay form.  It is a colourful document, which makes good some of the points we have referred to in the petition.  I do not know if your Honour wants to see it.

HIS HONOUR:   Thank you.

MR MOLOMBY:   Your Honour, might I just say I submit that the matter should be referred to the Federal Court.  I do not seek to add anything to what has been said. 

HIS HONOUR:   Yes, all right.  Thank you.

Before the Court of Disputed Returns this morning are three petitions which form the subject of the proceedings Nos S248, S250 and S251 of 2010. It is imperative that the petitions be resolved quickly. Indeed, section 363A of the Commonwealth Electoral Act 1918 (Cth) mandates this course. The petitions were presented towards the end of the prescribed period for their presentation. They are in a form which, at the very least, appears to require attention before they could be ready for hearing. I refer in particular to matters going to the identity of respondents, the possible addition of further respondents and the need for attention to the requisites of a petition laid down by section 353 of the Act so as to engage the relief that might be given under section 362.

In all the circumstances, it is appropriate for the Court to act pursuant to section 354(1) and refer each petition for trial to the Federal Court of Australia in the New South Wales District Registry.  Accordingly, in each petition I make orders as follows:

1.The petition be referred for trial to the Federal Court of Australia New South Wales District Registry subject to the following directions:

(a)The proceeding be continued in the Federal Court as if steps already taken in this Court have been taken in the Federal Court.

(b)The Registrar of this Court provide to the proper officer of the Federal Court photocopies of all documents filed in this Court and transfer the deposit which has been lodged pursuant section 356 of the Commonwealth Electoral Act 1918 (Cth).

2.Costs in this Court of the proceeding to date be costs of the proceeding in the Federal Court of Australia.

Anything else?

MR KING:   No, your Honour.

HIS HONOUR:   I will now adjourn.

AT 10.26 AM THE MATTER WAS CONCLUDED