Harding v Quirk
[2016] QSC 72
•19 March 2016
SUPREME COURT OF QUEENSLAND
CITATION:
HARDING -V- QUIRK & Anor [2016] QSC 72
PARTIES:
ROD HARDING
(Applicant)
V
GRAHAM QUIRK
(First Respondent)
AND
LINCOLN FOLO
(Second Respondent)
FILE NO/S:
2999/16
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
19 March 2016
DELIVERED AT:
Brisbane
HEARING DATE:
19 March 2016
JUDGE:
Byrne SJA
ORDER:
Application dismissed
CATCHWORDS:
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – TO RESTRAIN BREACH OF LEGISLATION – Where the applicant seeks injunctive relief pursuant to division 7 of part 9 of the Local Government Electoral Act 2011 to restrain the respondent from distributing a pamphlet at the Queensland local election on 19 March 2016.
LOCAL GOVERNMENT – REGULATION AND ADMINISTRATION – ELECTIONS – CONDUCT OF ELECTIONS – ELECTORAL OFFENCES – Whether the pamphlet is an unauthorized how-to-vote card.
Local Government Electoral Act 2011 s 180, division 7 of part 9, Schedule
COUNSEL: E P Mac Giolla Ri for the applicant
P Hastie and A J Stoker for the respondent
SOLICITORS: CRH Law for the applicant
Swain Roberts for the respondent
HIS HONOUR: This is an application for an injunction the effect of which would be to restrain the distribution of a handbill or pamphlet. The injunction is sought on the basis that it may be granted pursuant to division 7 of part 9 of the Local Government Electoral Act 2011 on the footing that the document is an unauthorised how-to-vote card.
The document has not been authorised by the Electoral Commission for distribution.
So the question is whether it is a “how-to-vote card” as defined in the Schedule to the Act.
A “how-to-vote card” relevantly means a handbill or pamphlet that includes something apparently intended to represent part of a ballot paper – see the definition in paragraph (a)(i)(B) – or which otherwise directs or encourages the casting of preference votes, other than first preference votes, in a particular way – see paragraph (a)(iii).
The document is said to constitute a how-to-vote card on more than one basis.
First, the applicant contends that it directs the casting of other than first preference votes in a particular way or that it encourages the casting of other than first preference votes in a particular way.
Secondly, it is said that the document was “… something apparently intended to represent a … part of a ballot paper”.
The document is admittedly a handbill or pamphlet. It contains the words “we need your support to keep Brisbane on the right track”. Beneath is a photograph of the candidate for Lord Mayor, Mr Graham Quirk. To the left of his photograph, these words appear: On the first line “Just Vote”, and then the figure 1 within a square, which, in appearance and configuration, is reminiscent of the kind of box that is typically included on ballot papers for an elector to use to signify the vote. On the second line is the word “Graham”; on the third “Quirk”; beneath that, “For Lord Mayor”; and beneath that appear the words “Team Quirk” with a reference to the political party to which Mr Quirk belongs: the LNP.
This document does not direct or encourage the casting of other than first preference votes in a particular way. It says nothing about the way in which other than first preference votes should be cast. Rather, the reader is encouraged only to cast a first preference vote. There is, therefore, no substance in the contention that the document is a “how-to-vote card” by reason of the operation of the definition in subparagraph (a)(iii).
Of more difficulty is the question of whether the document includes something apparently intended to represent a part of a ballot paper.
It is suggested that the combination of the name of the candidate in close proximity to the letter 1 inside the square evidences the offence created by S.180 of the Act of distributing an unauthorised “how-to-vote card”.
There is, as it happens, evidence concerning what those responsible for the handbill had in mind: a concern to avoid engaging those provisions of the legislation which prohibit the unauthorised distribution of how-to-vote cards. But the pertinent intention is to be judged by enquiring (at least principally) about the appearance of the document. This is emphasised by the use of the word “apparently” to precede “intended” in the paragraph (a)(i)(B) definition.
The document is not one which includes something apparently intended to represent a part of a ballot paper. Instead it is, as Mr Hastie put it, an exhortation to electors as to the identity of the candidate who should be supported, coupled with encouragement not to cast other than a first preference vote.
There is no evidence of the particular ballot paper in use in respect of this election. However, ballot papers, it is notorious, would include a square in which the elector would signify his or her choice by inserting a number.
There is, I accept, some similarity between the handbill and what a ballot paper once competed by an elector might contain: the name of the candidate in relatively close proximity to the number 1 within the square.
This looks to be reminiscent of part of a typical ballot paper, because something in the handbill would likely be found in an unfilled ballot paper: the square.
But I do not regard the document as including a representation of part of a ballot paper as such.
The mere fact that there is that similarity between the handbill and what I am content to assume is a ballot paper- that both contain a square into which a figure would be inserted by the elector- is not, in my view, sufficient to warrant the inference that the handbill includes something apparently intended to represent a part of any ballot paper as distinct from mere encouragement to the voter to vote in a particular way.
The application is, therefore, dismissed.
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