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Green v Bradbury

Green v Bradbury

Case [2011] FCA 71 3 February 2011

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FEDERAL COURT OF AUSTRALIA
Green v Bradbury [2011] FCA 71

Citation: Green v Bradbury [2011] FCA 71

Parties: ANDREW GREEN v DAVID BRADBURY, AUSTRALIAN LABOR PARTY (NSW) and AUSTRALIAN ELECTORAL COMMISSION

File number(s): NSD 1668 of 2010

Judge: EMMETT J

Date of judgment: 3 February 2011

Catchwords: ADMINISTRATIVE LAW – court of disputed returns – electoral petition filed – validity of election disputed – whether petition set out facts relied upon to invalidate election or return – whether petition set out facts capable of supporting allegation of bribery, corruption or undue influence – whether petition set out facts capable of supporting allegations of other illegal practices – whether petition set out facts bearing upon the casting or counting of votes – whether petition set out facts demonstrating that the result of the election was likely to have been affected – whether political party correctly joined as respondent to petition

Legislation: Commonwealth Electoral Act 1902 (Cth) ss 194, 196, 200
Commonwealth Electoral Act 1918 (Cth) ss 184, 188, 189, 192, 194, 195A, 326, 327, 328, 338, 352, 353, 354, 355, 358, 359, 360, 362, 363A, 364, 365, 368, 369, 375, 533
Constitution ss 48, 49
Crimes Act 1914 (Cth) s 28

Cases cited: Cole v Lacey (1965) 112 CLR 45
Hansen v Australian Electoral Commission [2000] FCA 606
Kelly v Campbell [2002] FCA 1125
Maloney v McEacharn (1904) 1 CLR 77
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Sykes v Australian Electoral Commission (1993) 115 ALR 645
Watson v J & A G Johnson Limited (1936) 55 CLR 63
Webster v Deahm (1993) 116 ALR 223
Whitby v Garlett (2000) 98 FCR 385

Date of hearing: 31 January 2011 and 1 February 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 65

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 1668 of 2010

BETWEEN:
ANDREW GREEN
Petitioner

AND:
DAVID BRADBURY
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 1668 of 2010

BETWEEN:
ANDREW GREEN
Petitioner

AND:
DAVID BRADBURY
First Respondent

AUSTRALIAN LABOR PARTY (NSW)

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 Green v Bradbury

Details

AGLC: Green v Bradbury [2011] FCA 71
Case: [2011] FCA 71
Decision Date: 3 February 2011

CaseChat Overview and Summary

The case of Green v Bradbury involved a petition filed in the Court of Disputed Returns challenging the validity of an election. The petitioner contested the election results, alleging various grounds for invalidity, including bribery, corruption, undue influence, and other illegal practices. The court was tasked with determining whether the petition met the statutory requirements for a valid electoral petition and whether it sufficiently outlined the facts that could substantiate the allegations of misconduct. The petitioner also sought to join an official of the relevant organisation as a representative party for the members of the organisation and requested that Mr Dastyari be joined as a respondent.

The court examined whether the petition complied with the relevant sections of the electoral legislation, specifically sections 355(a) and 355(aa). These sections require that a petition must set out the facts relied upon to invalidate the election or return, and those facts must be capable of supporting the allegations of bribery, corruption, undue influence, or other illegal practices. Additionally, the petition must demonstrate that the result of the election was likely affected by these practices. The court also considered the appropriateness of joining the petitioner's requested parties as respondents.

The court concluded that the petition did not meet the statutory requirements. It was found that the petition failed to adequately set out the facts necessary to support the allegations of misconduct, nor did it demonstrate that the result of the election was likely affected. Consequently, the court ruled that the petition did not comply with sections 355(a) and 355(aa) of the electoral legislation. The court dismissed the petition and ordered that no proceedings be had on it. The matter was to be listed for further directions concerning 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Petitioner sought in the alternative that an official of the relevant organisation be joined as a representative party for the members of the organisation. For the same reasons, it would have been inappropriate for Mr Dastyari to be joined.CONCLUSION I have concluded that the petition in its present form does not comply with s 355(a) or s 355(aa). The Petitioner has asked that, before any order is made on the motions, he be given the opportunity of considering my reasons. However, there is no dispensation under s 358(2) that could overcome the deficiencies in complying with s 355(a). It follows that there should be an order that there be no proceeding had on the petition and that the petition be dismissed. I propose to hear the parties further on the question of costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Green v Bradbury [2011] FCA 71

Most Recent Citation

Freemantle v O'Neill [2011] FCA 72

Cases citing this decision · 4 of 4 shown

Baini v Liberal Party of Australia NSW Division
[2023] NSWSC 837 Para 5

…f the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 at [47]; Green v Bradbury (2011) 191 FCR 417; [2011] FCA 71 at [2], [61] (Emmett J); Diaz v Ruddock; Attie v Ruddock [2021] NSWSC 881 at [10]-[12] (Kunc J).…
Garbett v Liu
[2019] FCAFC 241 Para 4

…v Lalara (1994) 53 FCR 156 at 165-166; Shaw v Wolf (1998) 83 FCR 113 at 134-135; Kelly v Campbell [2002] FCA 1125 at [20]-[21]; Green v Bradbury [2011] FCA 71; 191 FCR 417 at 428 [53]; Scott-Irving v Oakeshott [2009] FCA 487; 256 ALR 442 at 451 [40]. Whilst these cases are unanimous that a higher requirement th…
In the matter of an application by Andrew Green for leave to issue a proceeding
[2011] HCA 5 Para 4

…gs be had on the petition and that the petition be dismissed. Written reasons for judgment were published on 9 February 2011[1]. [1] Green v Bradbury [2011] FCA 71.…
Freemantle v O'Neill
[2011] FCA 72 Para 8

…laints mirror, to a substantial degree, the complaints made by Mr Andrew Green, the petitioner in proceeding NSD 1668 of 2010 (see Green v Bradbury [2011] FCA 71) and this proceeding was heard at the same time as that proceeding. Submissions were made in both proceedings by the same counsel. It is my understandi…

View all 4 citing cases →

Cases cited in this decision · 10 of 10 shown

Kelly v Campbell
[2002] FCA 1125 Para 24

…that there is a real chance that the result of the election would be different if the allegedly illegal practice had not occurred ( Kelly v Campbell [2002] FCA 1125 at [20]).…
Hansen v Australian Electoral Commission
[2000] FCA 606 Para 1

…ood. Positive satisfaction in that regard is a condition of the Court’s power to invalidate the election ( Hansen v Australian Electoral Commission [2000] FCA 606 at [13] and Whitby v Garlett (2000) 98 FCR 385 at [20]).…
Whitby v Garlett
[2000] FCA 245 Para 1

…in that regard is a condition of the Court’s power to invalidate the election ( Hansen v Australian Electoral Commission [2000] FCA 606 at [13] and Whitby v Garlett (2000) 98 FCR 385 at [20]).…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 25

…s of construction must begin by examining the context of the provision that is being construed ( Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]).…
Webster v Deahm
[1993] HCA 38 Para 3

…ffected. In general terms, that can only be satisfied by an assertion that goes to, or bears upon, the casting or counting of votes ( Webster v Deahm (1993) 116 ALR 223 at 225). A bare assertion of undue influence does not satisfy s 355(a) in so far as that provision requires that the petition set out facts relied up…
Sykes v Australian Electoral Commission
[1993] HCA 36 Para 29

…ntial facts that are sufficient to justify a finding of invalidity ( Cole v Lacey (1965) 112 CLR 45 at 51 and Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 649). If that were not so, a petitioner might allege insufficient facts to justify relief under the Electoral Act but nevertheless contend that, a…
Cole v Lacey
[1965] HCA 11 Para 29

…to particularity. However, s 355(a) requires the setting out of essential facts that are sufficient to justify a finding of invalidity ( Cole v Lacey (1965) 112 CLR 45 at 51 and Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 649). If that were not so, a petitioner might allege insufficient facts to ju…
Watson v J & a G Johnson Limited
[1936] HCA 73 Para 5

…Party or Australian Labor Party (NSW branch) are not juristic entities and cannot be parties to any action ( Watson v J & A G Johnson Limited (1936) 55 CLR 63 at 67, 68 and 71). Unlike the case of registered organisations, such as trade unions, under the Fair Work (Registered Organisations) Act 2009 (Cth), politica…
Maloney v McEacharn
[1904] HCA 3 Para 28

…afeguard in that, if such a person improperly attested a ballot paper, that person would be liable to lose an official position ( Maloney v McEacharn (1904) 1 CLR 77 at 86-7 and 88).…
Project Blue Sky v Australian Broadcasting Authority
(1998) 194 CLR 255 Para 25

…y and fairness, are guides to its meaning. The process of construction must begin by examining the context of the provision that is being construed ( Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]).…

Legislation cited in this decision · 6

Commonwealth Electoral Act 1918 (Cth)
184, 188, 189, 192, 194, 195A, 326, 327,... 15 mentions
Commonwealth Electoral Act 1902 (Cth)
194, 196, 200 4 mentions (from Para 27)
Crimes Act 1914 (Cth)
28 2 mentions (from Para 13)
Parliamentary Allowances Act 1952 (Cth)
4, 5A 2 mentions
Parliamentary Entitlements Act 1990 (Cth)
4, 5 2 mentions
Fair Work (Registered Organisations) Act 2009 (Cth)
1 mention (from Para 5)

Citation:	Green v Bradbury [2011] FCA 71
Parties:	ANDREW GREEN v DAVID BRADBURY, AUSTRALIAN LABOR PARTY (NSW) and AUSTRALIAN ELECTORAL COMMISSION
File number(s):	NSD 1668 of 2010
Judge:	EMMETT J
Date of judgment:	3 February 2011
Catchwords:	ADMINISTRATIVE LAW – court of disputed returns – electoral petition filed – validity of election disputed – whether petition set out facts relied upon to invalidate election or return – whether petition set out facts capable of supporting allegation of bribery, corruption or undue influence – whether petition set out facts capable of supporting allegations of other illegal practices – whether petition set out facts bearing upon the casting or counting of votes – whether petition set out facts demonstrating that the result of the election was likely to have been affected – whether political party correctly joined as respondent to petition
Legislation:	Commonwealth Electoral Act 1902 (Cth) ss 194, 196, 200 Commonwealth Electoral Act 1918 (Cth) ss 184, 188, 189, 192, 194, 195A, 326, 327, 328, 338, 352, 353, 354, 355, 358, 359, 360, 362, 363A, 364, 365, 368, 369, 375, 533 Constitution ss 48, 49 Crimes Act 1914 (Cth) s 28
Cases cited:	Cole v Lacey (1965) 112 CLR 45 Hansen v Australian Electoral Commission [2000] FCA 606 Kelly v Campbell [2002] FCA 1125 Maloney v McEacharn (1904) 1 CLR 77 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Sykes v Australian Electoral Commission (1993) 115 ALR 645 Watson v J & A G Johnson Limited (1936) 55 CLR 63 Webster v Deahm (1993) 116 ALR 223 Whitby v Garlett (2000) 98 FCR 385
Date of hearing:	31 January 2011 and 1 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	65
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 1668 of 2010

JUDGE:	EMMETT J
DATE OF ORDER:	3 FEBRUARY 2011
WHERE MADE:	SYDNEY