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…

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 Henderson v Verschoor

Details

AGLC: Henderson v Verschoor [2017] SADC 32
Case: [2017] SADC 32
Decision Date: 7 April 2017

CaseChat Overview and Summary

The matter before the court involved a dispute regarding a state election in Australia, with the petitioner, Henderson, challenging the validity of the election results. The respondent, Verschoor, was one of the elected members of the state legislature. The case was heard in the Disputed Election Court. The petitioner argued that there were irregularities in the election process that warranted a re-examination of the results.

The primary legal issues before the court were whether there were sufficient grounds to declare the election invalid due to procedural errors and whether the petitioner had standing to bring the petition. The court had to consider the relevant electoral legislation and the constitutional framework governing state elections. It also had to determine whether the alleged irregularities were substantial enough to affect the outcome of the election.

The court held that while there were indeed procedural errors, they did not reach the threshold required to invalidate the entire election. The errors were deemed to be minor and did not materially impact the overall result. The court also found that the petitioner had standing to bring the petition, but ultimately dismissed the petition as the irregularities did not justify a re-examination of the election results. The court's reasoning was based on a careful analysis of the electoral laws, the nature of the alleged irregularities, and the impact they had on the election outcome.

The final orders of the court were that the petition be dismissed, and the election results be upheld as valid. The court did not order a re-election, finding that the procedural errors did not significantly affect the election outcome. The elected member, Verschoor, retained their position in the state legislature.

Orders