Henderson v Verschoor - [2017] SADC 32

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HENDERSON v VERSCHOOR & ORS
[2017] SADC 32
Judgment of His Honour Auxiliary Judge Muecke
7 April 2017
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS - PETITION
Court of Disputed Returns
A supplementary election for the office of Area Councillor for the Corporation of the City of Adelaide was held between 22 October 2015 and 7 December 2015.
Sandy Verschoor was elected.
Kelly Henderson, another candidate, filed an Election Petition seeking a declaration that the Election is void.
HELD: Petition dismissed.
Local Government (Elections) Act 1999 (SA) s 8, s 10, s 40, s 48, s 58, s 59, s 61, s 65, s 67, s 69, s 70, s 71, s 73, s 75, s 76; City of Adelaide Act 1998 (SA); Criminal Law Consolidation Act 1935 (SA); District Court Civil Rules 2006 (SA) r 12, r 193, r 117, r 104, referred to.
Aldridge v Electoral Commissioner of SA & Ors [2010] SASC 194; Bradbery v Hay [2011] NSWSC 623; Fels v Davies [2009] WASC 138; Gunter v Hollingworth [2002] FCA 943; Re Berrill’s Petition and Boothby (SA) (1978) 19 ALR 254; Re Cheminchuk (Unreported, High Court of Australia, Court of Disputed Returns, 28 October 1993); Scott-Irving v Oakeshott [2009] FCA 487; Smith v Australian Electoral Commission [2008] FCS 953; Wheeley v Australian Electoral Commissioner [2005] FCA 473, considered.

HENDERSON v VERSCHOOR & ORS
[2017] SADC 32
Court of Disputed Returns: Election Petition

MUECKE ADCJ: A supplementary election (“the election”) for the office of Area Councillor for the Corporation of the City of Adelaide (“the Council”) was held in the period between 22 October 2015 and 7 December 2015 pursuant to the Local Government (Elections) Act 1999 (SA) (“the Elections Act”) and the substituted provisions of Schedule 1 of the City of Adelaide Act 1998 (SA) (“the COA Act”).
Pursuant to s 10(1) of the Elections Act, the Acting Electoral Commissioner (“the Commissioner”) was the returning officer. The Commissioner appointed a deputy returning officer for the purpose of the election. The Commissioner engaged seven electoral officers, being employees of the Council, to assist in the conduct of the supplementary election.
There were 13 candidates for the election.
Pursuant to the Elections Act and the COA Act, voting papers could be issued and returned personally or by post. The close of voting was set at 12 noon on “polling day” being 7 December 2015.
The scrutiny and count of ballot papers commenced at 2.00 pm on 7 December 2015 at the Meeting Hall, 25 Pirie Street, Adelaide following the receipt, processing and preliminary scrutiny of voting paper envelopes returned up to 12 noon that day.
In accordance with s 48 of the Elections Act after the counting of first preference votes, no candidate had obtained a number of votes equal to or greater than the quota. Each candidate with the least number of votes was thereafter excluded with their preferences transferred to the continuing candidates until only two candidates remained.
At 12.14 pm on 8 December 2015 the Deputy Returning Officer made a provisional declaration that Sandy Verschoor (“the respondent”), as the continuing candidate with the higher number of votes, had been elected.
On 8 January 2016 Kelly Henderson (“the applicant”) filed in this Court, as a Court of Disputed Returns, an Election Petition (“the Petition”).
Pursuant to s 67 of the Elections Act a Court of Disputed Returns is constituted of a District Court Judge. The procedure and powers of the Court of Disputed Returns are the same as those of the District Court when exercising its civil jurisdiction. The Court has jurisdiction to hear any petition addressed to it disputing the validity of an election under the Elections Act, and it will not call into question the eligibility of a person whose name appears on the voters roll as an elector to be a candidate for election (s 69 of the Elections Act).
Pursuant to s 70 of the Elections Act a petition to the Court must set out the facts relied on to invalidate the election and set out the relief to which the applicant claims to be entitled.
A copy of the petition must be served on any person declared elected in the disputed election; and if it is alleged that the election is invalid on account of any act or omission of an electoral officer – if the Electoral Commissioner was the returning officer – the Electoral Commissioner; and the council.
Pursuant to s 71 of the Elections Act the Court must sit as an open court. Its powers include a power to compel the attendance of witnesses and the production of documents; to examine witnesses on oath, affirmation or declaration and to receive evidence on affidavit or by statutory declaration with the consent of the parties to the proceedings. Subject to the Elections Act and the Rules the Court may determine its procedure in each case.
The Court has power to declare, amongst other things, that a person who was returned as elected was not duly elected and to declare an election void. It may dismiss or uphold a petition, in whole or in part, and it may amend or allow the amendment of a petition or reply.
The Court may exercise all or any of its powers on such grounds as the Court in its discretion thinks just and sufficient. The Court is not bound by the rules of evidence. The Court must act according to good conscience and the substantial merits of the case without regard to legal technicalities. A decision of the Court is final and without appeal.
Under s 73 of the Elections Act the Court cannot declare an election void, or that a candidate returned as elected was not duly elected, on the ground of an illegal practice found by the Court to have been committed unless the Court is satisfied, on the balance of probabilities, that the result of the election was affected by the illegal practice. If a certain illegal practice is found by the Court to have been committed, the illegal practice will be taken to have affected the result of the election unless the contrary is proved on the balance of probabilities.
Pursuant to s 75 of the Elections Act the Court may, on the application of the council, allow the council to intervene in the proceedings. The Court may only allow that if it is satisfied that it is fair and reasonable that the council participate in the proceedings. If a council is allowed to intervene in the proceedings, it may intervene in the manner and to the extent directed by the Court and on such conditions as the Court may direct.
A party to proceedings before the Court may appear personally or be represented by counsel (s 76 of the Elections Act).
The Petition
The applicant was an unsuccessful candidate in the election.
In the petition she set out 11 paragraphs under the heading “STATEMENT OF FACTS”. She set out these paragraphs under a number of sub-headings. Her preliminary paragraphs [1] to [6] inclusive were under the headings “The Election” and “Initial results of the Election”. Not many of the facts referred to in these preliminary matters were in serious contention.
The matters the applicant set out in paragraphs [7] to [11] in the Petition were the subject of a number of hearings before the Court.
In paragraph [7], under the heading “Non-postal Voting Procedures and lack of scrutiny”, the applicant alleged that, “contrary to the requirement for all voting to be postal, the Electoral Commission counted a large number of votes that were neither postal votes nor directly received by electoral officers by arrangement with individuals entitled to vote pursuant to Part 8” of the Elections Act.
The applicant alleged in this paragraph that the Council “collected ballot papers (votes) via ballot boxes in the Adelaide City Council Customer Centre 25 Pirie Street”. The applicant alleged certain “PARTICULARS” of this allegation.
In paragraph [8], under the heading “Council staff interference in Election”, the applicant alleged that the Council’s staff interfered in the election, “including by treating some candidates less favourably than others, and carrying out unlawful removal of validly authorised and approved electoral material within the City of Adelaide”. The applicant alleged in the one subparagraph under this heading that the Council’s “staff interfered with, removed, and destroyed Kelly Henderson electoral material”.
In paragraph [9] of the Petition, under the heading “Contraventions of the Act”, the applicant alleged that seven contraventions of the Elections Act had occurred. She alleged the contraventions were as follows:
(a)A breach by an electoral officer of s 65 of the Elections Act which “provides that an electoral officer must not fail, without proper excuse, to carry out his or her official duties in connection with the conduct of an election or pole (sic)”.
(b)Section 58 of the Elections Act was contravened. That provides that a person “who dishonestly exercises, or attempts to exercise, and vote at an election or poll to which that person is not entitled is guilty of an offence”.
(c)Section 58(2) of the Elections Act was contravened. That provides “that a person who dishonestly influences or attempts to influence the result of an election or poll is guilty of an offence”.
(d)Section 59 of the Elections Act was contravened. That “provides that a person must not hinder or interfere with the free exercise or performance by another person of a right under the Act”.
(e)Section 61(1) of the Elections Act was breached. That “provides that a person who is a candidate for election or acting on behalf of such a candidate (whether with or without the candidate’s authority) must not act as an assistant to a person voting at the election”.
(f)“The place of Counting was altered without sufficient notice or reason and proper scrutiny was not permitted”.
(g)“The ballot was not carried out solely by postal voting”.
Whilst in each of the seven subparagraphs of paragraph [9] of the Petition the applicant set out what she referred to as “PARTICULARS”, whether or not they were full and proper particulars so as to give proper notice of the facts on which the applicant relied in the Petition was the subject of applications and submissions before the Court. The same applied to what the applicant asserted to be a statement of facts in the allegations or assertions she made in those paragraphs.
The applicant’s final paragraphs [10] and [11] of the Petition were set out under the heading “The result of the Election was likely to be affected”. She alleged that it was “beyond a reasonable doubt or, in the alternative, probable that the result of the Election would have been different had the contraventions of the Act not occurred”; and that “the Court should be satisfied that the result of the Election would have been affected, and that it is just that the Election should be declared void and a fresh election held”.
In her relief, the applicant asked the Court to make the following orders:
1. A declaration that, pursuant to the Act, that the Election is void.
2. A declaration that a fresh Election be held.
In the Petition, the applicant indicated that it was to be served upon the respondent, the Acting Electoral Commission, and the Adelaide City Council.
The Petition came before the Court, constituted by his Honour Judge Chivell, on 8 February 2016. The applicant and the respondent appeared in person. The Council appeared through counsel, seeking to intervene in the proceedings before the Court. The Electoral Commissioner appeared through counsel, seeking to be joined as a respondent to the proceedings.
His Honour Judge Chivell heard first the applications to intervene and to be joined as a respondent.
The applicant opposed the Council’s application. She submitted that the conduct of officers of the Council was “under referral to SAPOL because interference with electoral material during an election period is an offence”, and therefore the Council should not be joined to defend the action of their officers without the outcome of SAPOL’s investigations being known. She submitted that the Council should take no part in the action and it would be “highly inappropriate and bring the Council into disrepute” if the Council defended the conduct of its officers.
Mr D Mazzachi, of counsel for the Council, submitted that the application to intervene was to make general submissions to the Court as to the state of the law as it applies to matters that the applicant had called into question. He submitted that another interest of the Council concerned the particular relief sought by the applicant. He submitted that, in addition to seeking an order that the election already held be declared void, the applicant was also seeking an order for a fresh election to be held. He submitted that whilst the Court had power to declare the election void, in the particular circumstances of the case before the Court the Court could not order the Council to proceed to a fresh election. This was the result of a provision of the Elections Act that provided that where the election concerned a supplementary election, as in the case here, the supplementary election created by the resignation of a member of a council who was elected in the last general election, as is this case, if the election is declared void by the Court the Council must appoint a person to fill the vacancy rather than a fresh election being held. In that way, it was submitted, the Council had an interest in the proceedings before the Court.
Following submissions in reply by the applicant, the Court ordered that the Council be allowed to intervene in the proceedings. The Court accepted the submissions of the Council that it had legitimate legal interests in the Petition before the Court. The Court indicated that it may be that the Council may be vicariously responsible for the acts of its employees, as well as carrying a principal liability for certain matters raised in the Petition. The Court indicated that whilst it recognised that the Council stands independent of elections, the Elections Act recognises that there are certain situations where councils may have an interest in proceedings before the Court of Disputed Returns. The Court considered it relevant that the Elections Act provided that there was no appeal from a finding of the Court of Disputed Returns. Finally, the Court acknowledged that s 75(3) of the Elections Act allowed the Court to give directions as to the extent of any intervention by the Council.
His Honour Judge Chivell then dealt with the application by the Commissioner that the Electoral Commissioner be joined as a respondent to the Petition. The applicant indicated that her understanding was that “by being served the Electoral Commissioner was a party” to the proceedings before the Court.
The Court ordered that the Electoral Commissioner be joined as a respondent to the Petition.
It was then noted that the Elections Act provided that if a person or party proposed to contest the Petition, that person or party must within 14 days after service lodge with the clerk of the Court, and serve on the applicant, a reply. That reply must “set out the facts on which the applicant proposes to rely” and “ask for any relief to which the applicant claims to be entitled”.
Ms N Schwarz, of counsel for the Electoral Commissioner, then indicated that the Commissioner would be lodging a reply. She raised, however, as a preliminary matter and to put the applicant on notice, that the Commissioner was likely to raise issues that the Petition did not comply with s 70 of the Elections Act in that the applicant made broad allegations about breaches of the Act but there was a lack of particularisation of the facts relied upon by the applicant. She submitted, for example, that the identity of persons who were not provided with voting papers was not provided. She submitted that there were other parts of the Petition which lacked clarity and lacked allegations as to facts.
Mr Mazzachi supported Ms Schwarz’s submissions. He submitted that the lack of “full facts” in the Petition made it difficult for the Council to formally reply.
His Honour Judge Chivell suggested that the Commissioner and the Council address their concerns to the applicant by correspondence and the matters they had raised could be addressed when the matter was next before the Court.
His Honour Judge Chivell also asked the applicant to give some thought to the question as to whether the Court could, as a matter of law, order the Council to hold a fresh election if it declared the earlier election void. The applicant indicated that she would give some thought to that.
The applicant then raised two matters.
First, she raised “discovery”. She indicated that she “was a Catch 22”. She indicated that she had sought material from the Commissioner but she was not able to obtain that material prior to commencing her action in the Court of Disputed Returns. She submitted that that information was “crucial to my presentation and my case and was not available to me until there was an action in the Court”. She indicated that she would she would need that information. She sought discovery.
His Honour Judge Chivell indicated that she might consider particularising her requests for discovery in writing so that that may be done informally as a first step, “in the same way as the Council and the Commissioner would be writing to her with their requests for particulars”.
Secondly, the applicant sought direction from the Court as to whether she was to serve the Petition on the other candidates in the election. She asked his Honour to make an order that she serve the other candidates with the Petition. His Honour declined to do that, although he indicated that the applicant was free to send them a copy of the Petition. It would then be for them to come to the Court to ask to participate in the proceedings.
The respondent then informed the Court that she had not filed a reply and she had not determined whether or not she would.
The Court adjourned to 7 March 2016 at 2.15 pm.
On 7 March 2016 the matter came before me. The applicant and respondent appeared in person. The second respondent (the Commissioner) and the intervenor (the Council) were both represented by counsel.
Mr Mazzachi informed me that he had written to the applicant on 17 February 2016 seeking that she provide further and better particulars in relation to the Petition. He said that he also requested that the applicant indicate whether she was in the possession of any documents or materials that would be of assistance to the Court in the matter. He indicated that he had not received a response to that letter from the applicant.
The applicant informed me that she was intending to respond to the letter but that she was awaiting a response from the Commissioner. She indicated that she had not “received any information from them whatsoever including none of the information that I requested before the proceedings were commenced”.
Ms D Seal, of counsel for the Commissioner, informed me that her client intended to respond to the applicant but that several attempts to get the applicant to clarify exactly what she was seeking from her client had been unsuccessful. She indicated that the Commissioner would ask the applicant to provide a list of exactly what she was seeking in writing. She indicated that her client did not fully understand the applicant’s request “about preferences of ballots not distributed”.

Ms Seal submitted that the facts upon which the applicant was relying were lacking and that had been identified in the Reply filed on behalf of the Commissioner.
That Reply was filed by the Crown Solicitor on 22 February 2016.
In that Reply the Commissioner responds to the Petition’s preliminary matters. Paragraph [7] of the Reply responds to paragraph [7] of the Petition, which related to “Non-postal Voting Procedures and lack of scrutiny”. The Reply alleges facts relating to the issue of voting papers, the return of voting papers, ballot boxes, and other similar matters. It asserts facts relating to the scrutiny of returned voting papers and the rejection of certain voting paper envelopes during the process.
Paragraph [8] of the Reply responds to paragraph [8] of the Petition which related to “Council staff interference in Election”. The Reply says that the matters raised by the applicant are not within the knowledge of the Commissioner and that those matters do not amount to a breach of the Elections Act or the COA Act.
Paragraph [9] of the Reply responds to paragraph [9] of the Petition which related to “Contraventions of the Act”. In respect to each of the allegations made by the applicant, the Commissioner says that the Petition does not set out facts which would support the allegation made of contraventions of various provisions of the Elections Act. The Commissioner denies any breaches of the Elections Act or the COA Act.
Paragraph [10] of the Reply responds to paragraph [10] of the Petition which related to “Effect of the result of the Election”. The Reply says that the applicant has not set out sufficient or any facts to support the allegations of contraventions of the Elections Act. The Reply pleads that the Court does not have power under the Elections Act to order that a fresh election be held. Rather, s 8 of the Elections Act would apply.
When Ms Seal concluded her initial submissions on 7 March 2016, Mr Mark Hamilton appeared before the Court. He wondered if he “could approach and be heard”. He indicated that he wished to be heard as one of the candidates who was unsuccessful in the election. He thought that he was “eliminated at the elimination before last”. That is, he “was the last party candidate eliminated, then there was a contest between Ms Verschoor and Ms Nguyen”.
Mr Hamilton informed me that his “understanding was that there is some allegation of fraud and that that fraud is the tip of a greater iceberg”. He said there was a second question as to whether or not potential fraudulent activity made a difference to the outcome of the election. He submitted that, in this regard, “the distribution of preferences of the last three or four candidates would be crucial”. He submitted that “it would be very useful if the preferences of Ms Nguyen and Ms Verschoor were in fact counted, which they weren’t, because they were the surviving candidates, to see what would happen if, in fact, they had finished further down the list and then one or other of those candidates’ preferences had been distributed…”. He said that he suspected “that that is the material matter. That’s really all I wanted to say”. He added, however, that he presumed that the Council would want to know what the preferences were and what support each candidate received if the Council was “faced with a task of filling a vacancy that was declared in these proceedings”.
The respondent then informed me that she had not yet filed a reply, partly because the particulars of the Petition had not been supplied. She submitted that “none of the assertions in the Petition appear to be aimed at me directly or my behaviour and as such I didn’t feel that there was much response that I could add until I actually see what would come through in terms of requests”.
The applicant then responded that “we have, in effect, what is a catch-22”. She said that she was not able to obtain from the Commissioner the information she needed to fully detail the particulars in her Election Petition. She said that it appeared that the Commissioner was trying to withhold information and that “it would be ludicrous to assert that the Electoral Commissioner is not fully aware of what I have requested”. She then referred to having requested “the specific details of the preferences not distributed of all the ballots that were allocated to the two final candidates”. She said that the Court and the other candidates do not, at the moment, have any knowledge of:
…what the implications are of either of those candidates having been excluded at an earlier point in the election and their preferences being redistributed. That is, if the votes had been inaccurately counted or invalid or fraudulent votes had been counted, I would put to the Court that the outcome of the election would have been different and we can’t know what the outcome would have been unless we know what the preferences were that are currently not disputed and therefore not known to anyone but the Electoral Commission and their staff.
The applicant submitted that what was required to be determined were the ballots that were fraudulently lodged and, in some instances, ballots that were lodged by people who didn’t receive their ballots. She submitted that she was aware of two electors who did not receive their ballot papers, although she could not give me their names because she did not have them with her. She said that she had requested from the Commissioner validation and verification of the declaration flaps (the declaration slips) and “the checking off of all of the declaration slips in the voting process against the date of birth and the signature of the entitlement to vote”. She said that she had asked for all of the ballot papers and all of the declaration flaps. She said she had not been provided with anything. She referred to the preferences and to her belief that Ms Verschoor “would have been eliminated earlier in the election process and would not have been appointed to the Adelaide City Council”.
I was informed by Ms Seal that the Commissioner had written to the applicant noting that the Petition refers to matters where facts have not been alleged and asking her to provide those facts. That request followed the request that had been made to the applicant by the Council which was more particular in its nature.
Mr Mazzachi then informed me that his letter of 17 February 2016 sets out in significant detail what the Council sought by way of additional particulars. He submitted that what would “need to occur would be in essence a recount … because … the distribution of preferences is, in effect, meaningless without knowing who you are distributing to”. It “would involve disclosure of all of the ballots”. He submitted that the Commissioner holds all of the ballots and they could be made available to the Court. Alternatively, the Court could direct the Commissioner to undertake a new count as part of that process. That is within the power of the Court. However, “in the absence of an indication as to what or how many votes and which votes that the (applicant) is asserting should not have been counted, and given the fact that once they have been counted they can’t be identified, that would have to be a numerical significant number…”. Alternatively, the votes that should have been counted would have to be identified, although that does not appear to be part of the Petition.
I then asked the applicant why I should not direct her to answer the Council’s letter to her dated 17 February 2016. She replied that the information requested by the letter is information that Mr Mazzachi should have obtained from his own client. She submitted that the Council was fully aware of their unlawful conduct. She later submitted that the Council’s request of her to “identify the occupants on East Terrace that didn’t receive ballot papers” were matters that she had requested clarification in writing from the Commissioner, and she was awaiting the Commissioner’s response. She said that she had asked the Commissioner “for information in writing and I have not received a substantive response”.
I then, by order, directed the applicant to provide the particulars sought by Mr Mazzachi on behalf of the Council in his letter to her dated 17 February 2016. I directed her to do so by 5.00 pm on Monday 4 April 2016.
Upon my making that direction, the applicant asked that the Commissioner provide the information she had requested and that the Commissioner do so “by two weeks prior to that date please”. I indicated that I would not do so, but that I would reconsider that request when the hearing resumed at 2.15 pm on 5 April 2016.
The applicant informed me that she did not have with her the documents in which she requested information from the Commissioner. I asked her to send to Ms Seal at the Crown Solicitor’s Office, with a copy to the Court, those documents in which she sought information from the Commissioner, and a reference to any telephone call and to whom, in which she sought other documents.
The hearing resumed on Tuesday 5 April 2016. Initially there was no appearance of the applicant. There was no appearance of the respondent. Ms Schwarz appeared for the Commissioner and Mr Mazzachi appeared for the Council.
I was informed by Ms Schwarz that the applicant had not complied with the direction I had given on 7 March 2016 that she particularise the Petition. I was informed that there had been no further correspondence from the applicant, either to the Commissioner or to the Council.
Ms Schwarz submitted that in order to comply with the Elections Act there needed to be a more precise articulation of the facts relied upon to invalidate the election. It was her submission that if they are not to be supplied the Petition should be dismissed. She asked that that matter be listed before the Court at some later time in view of the applicant’s non-attendance. Mr Mazzachi supported that submission. I listed the matter to be further heard on 14 April 2016 at 2.15 pm, when I indicated I would consider any application by the respondents to dismiss the Petition.
The applicant then appeared, apologised and asked that she be permitted to make an application in private. I refused that application.
The applicant then requested “adjustment of the process pursuant to the Disability Discrimination Act to afford me reasonable access to the process and reasonable adjustment to allow me to assist the Court”. She submitted that that was because she suffers “recurring and ongoing symptoms in association with anything to do with the Corporation of the City of Adelaide…”. She submitted that she suffers “severe and extreme anxiety in relation to these matters as a result of the Council having been joined as a party”. She submitted that she has some symptoms of “avoidance, that I try and block out the Council as a self‑defence mechanism and as a protective mechanism”. She submitted that that was not something that was voluntary or deliberate. She submitted that the Council’s being joined to the action was “very damaging to my peace of mind and very detrimental to my being able to function at all”. She referred to going without sleep for several days and being unable “to search for the documents in relation to the Court process”. She submitted that she was unable to respond because Norman Waterhouse was the firm involved in an earlier legal proceeding when they represented the Council in the Federal Court.
When I indicated to the applicant that I was not too sure exactly what she wanted me to do, whether she wished me to remove the Council as a party or remove Mr Mazzachi of Norman Waterhouse, she responded that she asked “to be able to be given some time to seek assistance”. She indicated that she would like to provide the particulars sought in a letter from Norman Waterhouse which I ordered she supply, but that she “hadn’t been able to do that yet”. She said that that was because: “I’m worried about Norman Waterhouse and the Corporation in a court process”. When I asked if whether, I gave her another three weeks, she would be able to provide the particulars, she responded that:
a longer period would be detrimental to me. A shorter period would be more beneficial because out of any interaction with Council and Norman Waterhouse in a court setting I come out of the process completely exhausted. It takes me days to recover because I am completely, totally exhausted.
I then indicated that I could adjourn the matter to Tuesday 12 April 2016. That was accepted by everyone. I indicated to the applicant that if she had not provided the particulars sought by then she was likely to be met with an application for the Petition to be dismissed.
The applicant indicated that she would write to Mr Mazzachi by 5.00 pm on Monday 11 April 2016 setting out the particulars sought in the letter she received from him. She would send to Ms Schwarz details of the material that she had sought by letter or by oral communication. Ms Schwarz then told me that she had received a letter from the applicant just before the matter was called on that day, 5 April 2016, which she had not had an opportunity to fully consider.
Upon the resumption of the matter at 2.22 pm on 12 April 2016 I was informed by Mr Mazzachi that he received from the applicant at 1.44 pm that day an emailed letter which purported, in part, to be in response to his letter of 17 February 2016. I indicated that I had received a copy of that as I was leaving my office to go to court. Mr Mazzachi submitted that the document did not respond fully to his letter of 17 February 2016. He handed to me a copy of his letter as I had not previously received a copy of it.
Mr Mazzachi submitted that, although he had not had a lot of time to consider the letter in detail, a cursory reading of it indicated that whilst there appears to be some substance in some of the responses, a number of other matters raise further questions. He submitted that the applicant’s suggestion was that it was the Council or the Commissioner that hold relevant information. He submitted that the imputation was that they are not matters for the applicant to respond to because they are already matters within the knowledge of the Council or the Commissioner.
Mr Mazzachi’s submission was that the applicant’s reply is not sufficient to comply with the terms of my order. It does not respond in whole to all of the matters raised in his letter and some responses create “potentially further deficiencies in the way in which the particular allegations are sought to be pleaded”.
Mr Mazzachi informed me that he had discussed with Ms Schwarz whether to press an application for the Petition to be struck out. He referred to r 12, r 193, r 117, and r 104 of the District Court Civil Rules 2006 (SA) (“the Rules”). He submitted that “the proper conduct of the action is being prejudiced by the repeated failures of the (applicant) to properly disclose a cause of action and particularise her claim with sufficient certainty, so as to enable the Commissioner and the Council, and indeed the respondent to properly respond to the claim”.
Mr Mazzachi noted that the Court could dispense with requirements of the Rules so as to allow him to make an oral application that the Petition be struck out.
Ms Schwarz informed me that her client was in the same position as Mr Mazzachi’s.
The applicant then submitted that she was “in a very difficult position”. She submitted that the information she asked the Commissioner to provide had been denied to her in the preparation of the Petition, and since her petition has not been made available to her. She said that continues to be the case.
The applicant informed me that she had made some progress with replying to the request for further particulars. However, “it’s a very very time-consuming process, and the process of cross-referencing is difficult as well”. She submitted that a response required that she “sift and weight what it is that they’ve requested, that they actually already don’t have access to, whereas I think that it’s been provided, or can’t be provided by myself”. She submitted that the task of providing the particulars was “not something that can be done very quickly”. She referred to having thousands of photographs which she had to go through to try and find certain information. When I pointed out that she had asked me to list the matter earlier so that she could get things done, she replied: “Yes, I believe I asked for it to be listed earlier so that I could be assisted to progress the matter in a way that would help me to best assist the court”. She informed me that she would not have been able to provide the information sought in any event by a later date, although she agreed that she did not tell me that the previous week.
The applicant suggested that in requesting further information the Council was “playing a game of holding information that they know explains those grounds, that they’re expecting me to go in and obtain or detail those things, which they already hold or they already know”.
I informed the applicant that there may, subject to the discussions about particulars, ultimately be a hearing of the Petition. She was the applicant in the Court. At the hearing she would have to adduce evidence by calling witnesses or tendering documents which she asserted support the allegations she had made in her petition. She is the one who asserts the facts which she says support the relief that she seeks from the Court. She will have to produce that evidence. The current discussion was to try and identify what that was so that no one would be taken by surprise at any hearing. I asked her whether she asserted that the letter she has provided “moments ago, fully answers the questions in Norman Waterhouse’s letter”. She said that “It does not. It’s progress towards”. She said that she would need two weeks to complete it, although in some instances she could not provide names and positions because her requests for that information to the Council have been fruitless.
I then dispensed with any procedural requirements that would prevent the second respondent and the intervenor from making an oral application to dismiss the Petition. The Commissioner and the Council each made such an application. I listed those applications to be heard at 2.15 pm on Thursday 21 April 2016, notwithstanding the applicant informing me that she did not think “that’s sufficient time for me to obtain legal advice”.
On 19 April 2016 the Council’s solicitors filed in court written submissions for dismissal of the Petition.
On 20 April 2016 the Commissioner’s solicitors filed a summary of argument in support of the application that the Petition be summarily dismissed.
Just before noon on 21 April 2016 there was emailed to the Court an affidavit of Mark Eric Hamilton. That was emailed by Mr Hamilton. He indicated that he had sworn it at the request of the applicant.
At some time on the day of the hearing on Thursday 21 April 2016, which commenced at 2.23 pm, a document headed “FURTHER PARTICULARS” was emailed to the Court by the applicant. By the start of the hearing I had not received a copy of that document. Ms Schwarz provided a copy of it to me. It was ultimately filed by the applicant on 27 April 2016. At the hearing were the applicant, the respondent, Ms Schwarz for the Commissioner, and Mr Mazzachi for the Council.
Ms Schwarz submitted that it was not appropriate for the Court to receive the “FURTHER PARTICULARS” document as it was well out of time. She submitted that the argument for this day should proceed on what had already been filed. She submitted further that, even if the matter was to proceed on the basis that the “FURTHER PARTICULARS” be received, that document does not address the issues related to the Petition. By way of example, Ms Schwarz referred to the final page of the document where there are multiple references to the applicant referring to her not knowing the details of matters and the circumstances of other matters. Ms Schwarz submitted that that “exemplifies the deficiencies in the Petition as it currently stands in that there are allegations being made without any basis for them”.

Ms Schwarz also objected to my receiving Mr Hamilton’s affidavit. She submitted that it had no relevance. It detailed correspondence between Mr Hamilton and the Commissioner around the time of the election and that did not bear upon my consideration of the adequacy of the Petition.
The applicant informed me that her understanding was that Mr Hamilton’s affidavit was being filed through her, and that in it Mr Hamilton:
… lays out his concerns with the election process, his requests for a recount, and his belief … that … had the election not happened in the way that it happened with the number of votes that were in question that there would have been a different outcome, or it was at least very likely that there would have been a different outcome.
The applicant informed me that she was to file the affidavit of Mark Hamilton and that she was going to do that “today”. It was ultimately filed on 26 April 2016, after I had reserved my decision.
I then asked the applicant whether or not she agreed that this Court cannot make an order that another election be held if the Court was of the view that the election was void. She said that she agreed that the Court could not order another election. She said that her understanding was that if the election was declared void, the Council could then make an appointment. There was then discussion between me and the applicant about any role of the Commissioner if the Court was to declare the election void. She referred to her hope that the Commissioner would refund the cost of running the election to the Council, and that the Council could use “those funds as it sees fit to select another candidate”.
I ruled that I would receive Mr Hamilton’s affidavit upon the applicant undertaking to file it.
Upon my so ruling I was informed by the first respondent that she had not seen Mr Hamilton’s affidavit, although she had received the submissions of the Commissioner and the Council. The applicant indicated that it was an oversight on her part not to have copied the first respondent in to receiving Mr Hamilton’s affidavit.
I then called on Ms Schwarz to make any further submissions she wished to make in addition to, or in supplementation of, her written submissions on the Commissioner’s application to dismiss the Petition.
Ms Schwarz submitted that her application was essentially put on two bases. She relied on matters of form and matters of substance in respect of the Petition. She had set out and referred to the authorities upon which she relied.
Mr Mazzachi, on behalf of the Council, then submitted that his written submissions were complementary to the submissions made on behalf of the Commissioner.
Mr Mazzachi referred to “the importance of expediency” in hearing matters of this nature. He submitted that the Court had “been far more generous with the petitioner in terms of the leniency that it has afforded to her” than the time given in previous cases.
Mr Mazzachi submitted that the importance of the adequacy of facts upon which a petition relies cannot be understated. He referred to the mandatory requirement “must” in s 70 of the Elections Act that required a petition to set out the facts relied on to invalidate an election.
Mr Mazzachi referred to the Hamilton affidavit and submitted that “the fact that evidence might be able to be led to support an assertion cannot save an invalid petition”. He submitted that neither the Commissioner nor the Council should have to wade “through the petition … in some sort of attempt to … find grounds within it and facts within it that might justify a finding by the Court that the election is invalid”.
The respondent, Ms Verschoor, then informed me that she had not made a submission herself because she believed that the matters before the Court are for the Commissioner to resolve and not her personally. She indicated that she supported the Commissioner in having the Petition dismissed.
The applicant then sought clarification from me regarding two authorities referred to by Mr Mazzachi regarding costs. I indicated to her that she might make her submissions on the issue for which that day’s hearing was set, being whether or not I should dismiss the Petition. I indicated that the costs question only arose if I did and, that if I did, she might assume that the Council would ask for costs but that the Commissioner would not.
The applicant then submitted that she had not had “any reasonable opportunity to respond or to frame an argument” in response to the two written submissions which had “hit [her] with a hailstorm of these various cases”. She indicated that she had also had no opportunity to make written submissions to the Court, as she had received the written submissions from the other parties only the day before when she had a full day of commitments. She said that she had not had a chance to research the cases. She said that she would make the best response that she could but would “appreciate the opportunity to make a written submission and a reasonable amount of time to prepare one”.
The applicant said that she would do her best to make submissions.
The applicant submitted that non‑disclosure of certain information to the candidates within a required timeframe that the Petition must be lodged “is evidence of the election not having been carried out in accordance with the Act”. She submitted that if “the theft or the removal of an election sign without the notice of the candidates” is considered a defect in the Petition, then that defect results from an offence under the Criminal Law Consolidation Act 1935 (SA). She submitted that “for a criminal act to be used as the basis to reject a petition … would be a very, very serious finding…”.
The applicant then referred to the fact that the Elections Act required that postal voting be used and that “ballot boxes cannot run rogue”. She submitted: “They are not at liberty to be placed at will willy-nilly anywhere that anybody should take a whim into their hands to think that they should be set”. She referred to the State Electoral Act 1985 (SA) stipulating that polling booths must be established, and that electors have rights to receive ballot papers. That Act also provides power to open a ballot box and that ballot boxes must be kept secure. She submitted that the Elections Act does not refer at all to “ballot box”, and the Act does not contain “any protective provisions or constraints or requirements about the management of the box, the ballot box”. She referred to the Elections Act containing:
… no powers to construct the protective zone of the polling place where it is. No powers to open it if it should be so unfortunate as to receive a ballot. No powers for securing it, no, to keep it closed – …
She submitted that this meant that every election was void.
The applicant referred to other provisions in the Elections Act including those relating to scrutiny of the voting papers “to provide for the integrity and confidence in the election, not just for the candidates, but also for the electors”.
The applicant submitted, in summary, that the election was not conducted in accordance with the Elections Act.
When I suggested to the applicant that what she was submitting to me might appear to be addressing the merits of her petition and not whether or not I should dismiss the Petition, she submitted that what she was trying to do was to submit that the matters to which she referred are disclosed in the Petition. She said that she was submitting that the fact that the election was not conducted under the Electoral Act, “is a very, very serious thing; it is neither frivolous nor vexatious”. She submitted that this matter “is a very serious matter and a test case in this State about the holding of elections in accordance with the law … not by some random means that is defined by reference to some other Act or to a practice that people are familiar with under some other heads of power … So the Electoral Commission has to obey the law”.
The applicant then made submissions about the removal of and interference with her electoral signs contrary to Council policy, and the fact that the Council failed to remove Ms Verschoor’s signs. She referred to other matters that required:
… very serious consideration because if that is the case, if it is the case that the Electoral Commissioner cannot have to have regard to the legislation that actually applies in this election, but can pick and choose from whatever means that he likes, then we do not have a rule of law in South Australia, we have anarchy and that anarchy is striking at the very, at the very foundation, of our principles of democracy, which is a free and a fair and a lawful election.
The applicant submitted that this election was unlawfully conducted. She submitted: “There is clear reason for the Court to declare the election void and to fall back to retire gracefully I would say on to the secondary procedures of the Act and trust that in future having learnt from this that the Act would be given more attention and hopefully followed with complete rigor”. She closed by reiterating “that the further submissions that the counsel for the Electoral Commissioner and the Council I think mistake the case entirely”. She submitted that they mistook the case, and they misstated the case. She added: “It is not for them to tell me what my case is”.
Applications to dismiss the Election Petition
The Elections Act requires that a petition to this Court must set out the facts relied on to invalidate the election (s 70(1)(a)).
In Aldridge v Electoral Commissioner of SA & Ors [2010] SASC 194, former Chief Justice Doyle said in relation to provisions similar to s 70(1)(a), s 70(3) and s 70(4) of the Elections Act:
[6]Provisions in substantially the same form are found in equivalent legislation in other States, although that legislation often adds that no proceedings are to be had on a petition that does not comply with the statutory requirements. This provision is not found in South Australia.
[7]I consider that, in the exercise of its inherent powers, the Court can and should require that a petition be in a form that permits the Court and the respondents to identify the issues raised by the petition, and the allegations that are made. In other words, not only must the petition set out the facts relied on to invalidate the election, but it must also identify with reasonable particularity the grounds of complaint and the allegations to be made.
…
[12]It is not enough for the petitioner to allege breaches of sections of the Act in general terms. The particular breach has to be identified, and the facts relied upon to prove the breach must be stated.
…
[15]It is a matter for the Court to determine how far the petition must go in this respect. It need not set out all of the details. But, for a start, one must be able to identify the particular breach of the section that is alleged. And the facts that are stated must include what might be called the essential facts, those from which the alleged breach might be found. …
In Fels v Davies [2009] WASC 138, Martin CJ said in relation to similar provisions:
[81]It is clear from these decisions that there is a long and unbroken line of authority in this and other jurisdictions which confirms that the provisions of the Act to which I have referred are to be construed in accordance with their natural and ordinary meaning, with the result that:
(a) failure to comply strictly with the requirements of s 158 of the Act renders a petition invalid and deprives the court of jurisdiction to entertain any proceedings on it; and
(b) the power given to a Court of Disputed Returns to amend a petition does not extend to an amendment made for the purpose of overcoming a failure to strictly comply with the requirements imposed by s 158 of the Act.
[82]The line of authority to which I have referred is so well established that it is reasonable to infer that if it had been the intention of the Parliament that the Act should be construed otherwise than in accordance with that line of authority, express provisions having that effect would have been included within the Act.
In his written submissions for dismissal of the Petition in this case, Mr Mazzachi submitted that “there is a public interest in a proper challenge to the result of an election being dealt with on the merits and decided” (Aldridge v Electoral Commissioner of SA & Ors [2010] SASC 194 at [50]-[51]). He submitted that s 70(1)(a) of the Elections Act “requires a petition to set out the facts which are relied upon to invalidate the election”. He then set out the following 10 points, with citations upon which he relied to support that submission. I reproduce those 10 points as they have greatly assisted me in determining these applications for summary dismissal, and hopefully they may assist others.
1.A challenge to the result of an election must be made promptly, clearly and must be supported by a statement of facts relied on (Aldridge v Electoral Commissioner (SA) [2010] SASC 194, at [50]-[51]).
2.Whether or not this requirement is met is a statutory, jurisdictional or threshold issue (See Fels v Davies [2009] WASC 138 at [81] and Bradbery v Hay [2011] NSWSC 623 at [19]-[27] regarding substantially equivalent Western Australian and New South Wales provisions. See also Aldridge v Electoral Commissioner (SA) [2010] SASC 194, at [6]-[7]).
3.The question must be determined solely by reference to what appears on the face of the petition itself as a matter of construction (Gunter v Hollingworth [2002] FCA 943, [28]; Wheeley v Australian Electoral Commissioner [2005] FCA 473, [13]; and Smith v Australian Electoral Commission [2008] FCS 953, [15]-[16] regarding substantially identical equivalent Commonwealth provision).
4.The Court can and should require that a petition be in a form that permits the Court and the respondents to identify the issues raised by the petition and the allegations that are made (Aldridge v Electoral Commissioner (SA) [2010] SASC 194, at [7]).
5.The petition must set out the facts relied on to invalidate the election and identify with reasonable particularity the grounds of complaint and the allegations to be made (Aldridge v Electoral Commissioner (SA) [2010] SASC 194, at [7]).
6.Mere conclusions of law are not sufficient to satisfy the requirements of section 70(1)(a) of the Act (Re Berrill’s Petition and Boothby (SA) (1978) 19 ALR 254, 256 per Gibbs ACJ (Stephen, Mason, Jacobs and Aickin JJ agreeing) and Aldridge v Electoral Commissioner (SA) [2010] SASC 194, at [13]).
7.A petition consisting of general, wide-ranging, imprecise or second-hand bare assertions that require the reader to deduce the facts relied upon, will not comply with section 70(1)(a) of the Act (Aldridge v Electoral Commissioner (SA) [2010] SASC 194, at [20]-[23]).
8.The fact that evidence can be [led] to support an assertion, cannot save an otherwise invalid petition (Bradbery v Hay [2011] NSWSC 623) and factual defect cannot be cured by submissions (Scott-Irving v Oakeshott [2009] FCA 487, [39] per Flick J).
9.A mere failure to properly set out the occupations of attesting witnesses in a petition is sufficient grounds to dismiss a petition (See Fels v Davies [2009] WASC 138).
10.Something as important as an election result under the Act cannot be challenged by a petition that fails to adequately identify what the allegations are, what the facts relied upon are and how the asserted irregularities could affect the election result (Aldridge v Electoral Commissioner (SA) [2010] SASC 194, at [25]).
A further submission made by Mr Mazzachi in his written submission was that the “requirement for the Court to act without regard to legal technicalities does not dispense with the requirements of the Act, nor confer jurisdiction on the Court where it has none” (Re Cheminchuk, unreported, High Court of Australia, Court of Disputed Returns, 28 October 1993, per Dawson J at p 3).
I consider points 5, 7, and 10 above to be particularly pertinent in this case.
Whilst the Petition in this case was promptly made and it did, at least on its face, allege defects in voting procedures and lack of scrutiny, interference by Council staff and several contraventions of the Elections Act, and whilst it set out what were asserted to be “PARTICULARS”, it did not, in my view, set out with sufficient particularity the issues raised by it, nor did it set out with any particularity the facts relied on for the general allegations made by the applicant. Whilst a reading of the Petition gives a general overview of some of the applicant’s case by which she asserts that the election was invalid, my view is that her Petition consisted of “general, wide-ranging, imprecise (and) second‑hand bare assertions that require the reader to deduce the facts relied upon”. Further it does not show how “the asserted irregularities could (have affected) the election result”.
My conclusion in this regard is based upon my reading of the Petition. It was reinforced during a number of hearings in which the applicant, time and time again, referred to an assertion by her that her allegations were already known by the Commissioner and/or the Council; were already admitted by either or both of them; and were within their knowledge. She maintained that she was not able to provide particulars until they informed her of them or provided them to her. She submitted that she could not provide the particulars I ordered that she provide without being provided with that information from one or other of the Commissioner or the Council, and once that was done it was going to take her more time to give particulars than she hitherto had had.
Whilst I agree with the applicant that it was not for the Commissioner or the Council to tell her what her case is, my view is that it was for her to tell the Court and the parties before the Court what her case is. In the nearly three and a half months between her Petition on 8 January 2016 and my hearing submissions on the summary dismissal applications on 21 April 2016, I considered that I was little closer to knowing what the issues raised by the Petition were and, in particular, knowing what the facts upon which the applicant sought to rely at any hearing were.
In my view, it is imperative in matters such as this, where any decision of the Court is final and without appeal; where it concerns a matter of considerable public importance involving as it does an election to the Adelaide City Council; and where there are broad allegations of unlawful conduct in relation to an election, that the Court and the parties know, with as much clarity and certainty as is reasonably possible, what the issues are and what the facts are that are said by a petitioner to be important to determine these issues.
I am satisfied and find that the applicant prepared the Petition based largely upon rumour and second-hand hearsay assertions by others, some of whom were probably unknown to her; upon a number of beliefs that she formed and developed during the election campaign which were, in some cases based upon misunderstandings of what she was told by people who were directly or indirectly involved in the election process; and/or upon a predisposition or prejudgement on her part that officials involved in the election process were prejudiced against her and possibly other candidates, and prejudiced in favour of some candidates. I am satisfied and find that as a result of these matters the applicant believed that the election process was tainted and unlawful. I am satisfied and find that when it came to the point where the applicant had to identify with some precision and particularity issues and facts upon which she was required to advance her Petition, she could not do so as she did not know what issues she could identify and advance and, in particular, she could not identify the facts that she would need to adduce in evidence to support her general, wide-ranging, imprecise and/or second‑hand bare assertions.

I am satisfied and find that the Petition does not disclose relevant essential facts. It stands no chance of success when only the allegations in it are considered. It does not contain facts that would enable the Court to find that any illegal practice has occurred on the balance of probabilities.
I am satisfied that the applicant’s delay in complying with my order to particularise her case constitutes an abuse of process by her.
Pursuant to r 117 and r 193 of the Rules I dismiss the Petition.