Hirsch v Phillips - [1904] HCA 4

1 CLR 132

Bryant, referred to Rivington v. Garden, (1901) 1 Ch., 561; Pascoe v. Puleson, (1886) 54 L.T., 733; Nicholson v. Colonial Mutual Insurance Co., (1887) 8 A.L.T., 173; 13 V.L.R., 58, at p. 64. (No. 2).

GRIFFITH, C.J.--I think a claim to set aside a parliamentary election is a matter of as great importance as any that can be raised in any Court. I regard this, therefore, as a matter of importance. It is also a matter of considerable difficulty. But the difficulty has arisen from the manner in which the Act is framed, and from the action of the electoral officers in the arrangement for the election. It would be hard to make the respondent pay for those mistakes, or to pay more because of them.

I think, for these reasons, that under the circumstances of this case I ought not to make an order for taxation on the higher scale.

Solicitors, for petitioner, Quick Hyett &Rymer, Bendigo. Solicitors, for respondent, Blake &Riggall, Melbourne.

[HIGH COURT OF AUSTRALIA.]

MAXIMILIAN HIRSCH

PHAREZ PHILLIPS

WIMMERA ELECTION PETITION.

ON REFERENCE FROM THE COURT OF DISPUTED RETURNS. H. Commonwealth Electoral Act 1902 (No. 19 of 1902), secs. 139, 153; Schedule, Form

Q Election-Adjourned poll-Persons entitled to vote-Voter absent from polling place for which enrolled-Refusal of Returning Officer to receive votes of March 11, 12.

"alixent electors" - Void election.

Where, pursuant to sec. 153 of the Commonwealth Electoral Act 1902, the polling at a polling booth has been adjourned to a subsequent day, the persons entitled under sec. 139 to vote at that polling booth on signing a declaration in

1 CLR 133

Form Q in the Schedule are those who, on the original polling day, were absent from the polling place for which they are enrolled.

The words "absent from the polling place in sec. 139 mean " absent from the locality of the polling place."

The Presiding Officer at an adjourned poll refused to receive the votes of any electors claiming to vote under sec. 139 (i.e. upon making declarations in Form Q.): Held, that in order to invalidate the election on the ground of such refusal it must be shown that the number of electors entitled to vote in that manner whose votes were refused was such that the result of the election might have been affected by the refusal.

At an election for the House of Representatives for the Electoral Division of Wimmera, in the State of Victoria, held on 16th and 23rd December, 1903, there were two candidates, Maximilian Hirsch and Pharez Phillips, the latter of whom was, on 29th December, 1903, declared by the Returning Officer to have been duly elected. Hirsch thereupon filed a petition praying that it might be declared that Phillips was not duly elected, and that the election was absolutely void, or alternatively that the election might be declared void with regard to certain polling places, and that a new poll might be taken there, or that a new poll should…

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 Hirsch v Phillips

Details

AGLC: Hirsch v Phillips [1904] HCA 4
Case: [1904] HCA 4
Decision Date: 12 March 1904

CaseChat Overview and Summary

The High Court of Australia considered a dispute concerning the validity of an election, brought before it by the applicant, Hirsch, against the respondent, Phillips. The core of the disagreement revolved around the refusal of a Returning Officer to accept votes from individuals who were enrolled for a particular polling place but were absent from it on polling day. This refusal led to the election being declared void.

The central legal issues before the Court were the interpretation of sections 139 and 153 of the *Commonwealth Electoral Act 1902* (Cth) and Schedule, Form Q, specifically concerning the entitlement of "absent electors" to vote. The Court had to determine whether the Returning Officer's actions in rejecting these votes were lawful under the provisions of the Act, and consequently, whether the election was validly conducted or should be declared void due to these exclusions.

The Court's reasoning focused on the statutory language and the intent of the legislation regarding absent voters. It was held that the Act, particularly through the provisions governing absent voting and the prescribed forms, contemplated and provided for the circumstances where an elector might be absent from their designated polling place. The refusal to accept votes from these absent electors was therefore found to be contrary to the legislative scheme, rendering the election invalid. The Court applied principles of statutory interpretation to ascertain the scope of the right to vote, emphasizing that the Act intended to facilitate, rather than obstruct, the exercise of suffrage where statutory conditions were met.

Orders