Horn v Electoral Commissioner

[2016] HCATrans 149

[2016] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P25 of 2016

B e t w e e n -

DIETER HANS GUSTAV HORN

Plaintiff

and

ELECTORAL COMMISSIONER

Defendant

Application for an order to show cause

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON THURSDAY, 23 JUNE 2016, AT 2.58 PM (WST)

Copyright in the High Court of Australia

MR D.H.G. HORN appeared in person.

MR C.L. LENEHAN:   May it please the Court, I appear with MS J.E. TAYLOR for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, Mr Horn, you have commenced an application in this Court in which you are seeking an order of mandamus against a party called the “Australian Electoral Commissioner” – we will come to that in a moment – and you have filed an affidavit in support of that and the other side, the defendant, has filed a summons seeking, essentially, the dismissal of your summons because you have had a go at this before.  So that is what we are probably going to have the argument about today.

Now, just as a preliminary matter, they do make the point that there is not an entity called the “Australian Electoral Commissioner”.  There is the Australian Electoral Commission and that has a chairman, and the Electoral Commissioner and the Electoral Commissioner has certain duties under the Act.  I suspect that the proper defendant would be the Electoral Commissioner.  That is the person you want to do these things.  Is that right?

MR HORN:   Yes.

HIS HONOUR:   I will just check with Mr Lenehan to see if – that is your submission, is it not?

MR LENEHAN:   It is, your Honour, yes.

HIS HONOUR:   Yes, all right.  So are you happy to amend the name of the defendant to the “Electoral Commissioner”?

MR HORN:   Yes, your Honour.

HIS HONOUR:   Yes, all right.  So that is the first thing we will do.  The name of the defendant is amended to the “Electoral Commissioner”.  Right.  Now, just so we get the record straight, Mr Horn, you have filed an affidavit in support of your summons of your application and that sets out some of the history of the matter and there are exhibits showing photographs of the current form of polling booth and photographs of a kind of – or voting compartment and photographs of a kind of voting compartment that you think would comply with the Act.  Is that right?

MR HORN:   Yes, that is right.

HIS HONOUR:   All right.  Now, Mr Lenehan, do you have any objection to that affidavit being read for the purposes of these proceedings?

MR LENEHAN:   No, your Honour.

HIS HONOUR:   Yes, all right.  So we will treat that as in evidence, Mr Horn.  Mr Horn, the Electoral Commissioner, in support of his summons, has also filed an affidavit sworn by Michael Lynch.  Have you seen that?

MR HORN:   Yes, I have.

HIS HONOUR:   Do you have any objection to that going into evidence?  It is just so far as it is factual.

MR HORN:   No, the facts are correct, I would say.

HIS HONOUR:   Yes, all right.  Well, on that basis that affidavit of Michael Lynch will also be read.  So that goes into evidence as well.  So we now have, if you like, the facts that both sides are relying upon before us.  We now have a summons to deal with by the Electoral Commissioner seeking that your proceeding be dismissed as an abuse of process of the Court and essentially - we will hear from Mr Lenehan in a moment, but essentially, I think, the argument is that you ran this same argument before Justice McKerracher back in 2007 and that you are now coming back for a second bite of the same cherry.  So what I am going to do is I will hear from Mr Lenehan first about why he thinks your application should be dismissed as an abuse of process and then I will hear from you in reply.  Is that all right?

MR HORN:   Yes.

HIS HONOUR:   All right.  Yes, Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  Your Honour, I should make clear at the outset that my client does not seek costs.  In the summons we did.  We no longer do.

HIS HONOUR:   Thank you very much.

MR LENEHAN:   Our essential point, as your Honour has seen, is that Mr Horn is seeking to relitigate issues that were determined against him, first by Justice McKerracher in the decision that your Honour has referred to, and then in criminal proceedings heard in the Western Australian Magistrates Court and on an appeal by the Western Australian Supreme Court.  Those proceedings concern Mr Horn’s failure to vote in the 2007 and 2010 elections.

HIS HONOUR:   Mr Lenehan, I would have thought that the proceedings most directly relevant for the purposes of your abuse of process argument would be the proceeding before Justice McKerracher, would it not?

MR LENEHAN:   Yes, I accept that, your Honour, and I will ‑ ‑ ‑

HIS HONOUR:   That puts them in parallel with that judgment of Justice Gageler’s, to which you are referring, I think.

MR LENEHAN:   Yes, I accept that, your Honour, and I will focus on that decision.  I know your Honour is aware of that decision because you have referred to it in the reasons on the application by Mr Horn for leave to issue a proceeding, which your Honour issued on 17 June 2014, so I do not propose to take your Honour through that decision in any detail. 

But, in essence, we say that there were relevantly two issues that were decided by Justice McKerracher:  first, an issue as to the proper constructions of the Commonwealth Electoral Act and, in particular, section 206 and section 233, and on that point we note, in particular, that Mr Horn’s contention that the Act require that a curtain or a door cover the front of the voting compartment was not accepted by his Honour and you see that in particular at paragraph 47 of his Honour’s reasons; and second, we say an issue was determined against Mr Horn in that proceeding regarding the application of the statute to the facts as found by his Honour and that is the question as to whether the arrangements that were proposed to be put in place by the AEC for the 2007 election, that is, construction of voting compartments, but also as to matters such as queues, satisfied the requirements of the Act and, again, that was determined against Mr Horn.

Mr Horn could have appealed from that decision, of course, to the Full Federal Court pursuant to section 24(1) of the Federal Court of Australia Act – he did not, and nor, of course, did he seek by way of special leave to appeal to this Court.

What we then say, your Honour, is that that puts this case within what your Honour in Aon described as a relitigation case.  If your Honour looks at Mr Horn’s prayer for relief in the application for the notice to show cause, you see that the prayer for relief – this is at the top of page 2 – refers to, amongst other things, requiring:

lawfully constructed voting compartments that can be closed by a door or curtain, similarly as shown in –

an exhibit to Mr Horn’s affidavit, that is the issue of construction that I have identified.  Secondly, if you go down the page to ground 3, Mr Horn says:

But the AEC does not abide by the first part of section 206, because the voters, and that includes me, are not screened from observation while they are marking their ballot papers.

That is the second issue that I have identified, being the issue of whether the arrangements proposed by the AEC, which are the same in this election as were in place in the 2007 election, comply with the Act.  As your Honour said in Aon it is well established that the abuse of process principles potentially apply to that class of case and your Honour referred to the authority of Reichel v Magrath as long ago establishing that proposition.

Those principles, as we have noted in our submissions, are to be applied in any circumstances in which the use of the court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.  Now, I cannot rely on the first leg of that because it is the Commissioner in these proceedings, and it was the Commission in the proceedings before Justice McKerracher, but we say, for the reasons that we have identified in the written submissions, that this is a case where the administration of justice would be brought into disrepute.

We identify with more specificity why that is at paragraphs 23 to 28 of our submissions.  In essence, and drawing on what was said by Justice Gageler in Plaintiff S3, we say first, it would be inconsistent with the nature of the judicial power of the Commonwealth already exercised by Justice McKerracher in that matter to allow Mr Horn to revisit those issues that have been determined against him, that to permit such a course would, as in Plaintiff S3, subvert the statutory processes that existed for appeal and for appeal to this Court by special leave, and that none of that should be countenanced because it would, of course, undermine the central and pervading tenet of the judicial system identified in D’Orta, that is that controversies once resolved are not to be revisited except in exceptional cases.

Accordingly, and as in S3, we seek to have the Court dismiss the matter under rule 27.09.4(c). Those are my submissions, your Honour, unless you have any questions.

HIS HONOUR:   Now, I know you do this in an alternative setting, but you also submit, do you not, that Justice McKerracher got it right?

MR LENEHAN:   We do, your Honour.  Does your Honour wish me to develop that – I propose only to rely on my written submissions in that regard.

HIS HONOUR:   Well, I see that you set out really at paragraphs 32, 33 and 34 the argument about that.

MR LENEHAN:   Yes.  So your Honour sees there from 32 through to about 37 the construction argument that we say his Honour got correct.  We say it necessarily flows from that that if his Honour’s construction of the Act is correct, the consequence is that there is no tenable basis for seeking the relief that Mr Horn seeks in this case because, as I have said, and as is clear from the evidence of Mr Lynch, the arrangements proposed for this election are the same and that seems to be undisputed by Mr Horn.  We also rely, even if we are wrong on that, in paragraph 41 on a discretionary ground identified by his Honour ‑ ‑ ‑

HIS HONOUR:   I do not think we need to get into the discretionary question.  It is just in the context of the summary dismissal.  Yes, all right, thank you.  Now, Mr Horn, some of what was just said by Mr Lenehan might have gone over your head a little bit.

MR HORN:   Yes.

HIS HONOUR:   The essence of it, as I said before, they say you have already had this issue effectively determined by Justice McKerracher in the Federal Court and they rely upon a case decided by Justice Gageler in another context, a migration context, where somebody took a case to the Federal Circuit Court and lost there and then tried to take the same case again in the original jurisdiction of this Court.  That person was stopped from continuing in this Court as it was an abuse of process because they are really relitigating the same point that they lost in the other court. 

There are a number of cases which say that it is an abuse of process of the court to try to relitigate something which has already been decided against you.  So that is the argument you are facing and that is on the basis, of course, that – and so far as I can see, this part is correct, that the factual circumstances in 2007, the kind of voting compartment they were using then, is the same kind of voting compartment as has been used in the last three elections and as you are complaining about now.  They say well the facts have not changed, the law has been decided against you and you should not be allowed a second bite of the cherry.  So that is the argument.  Would you like to address me on that?

MR HORN:   Your Honour, I understand that the High Court has original jurisdiction in mandamus cases ‑ ‑ ‑

HIS HONOUR:   That is correct.

MR HORN:   ‑ ‑ ‑ which is guaranteed to me, to any other citizen under section 75(v) of the Constitution. Now, I can only say that for many years I have tried to compel the Australian Electoral Commission through a long series of court cases to provide me with polling booths that shall have separate voting compartments constructed so as to screen the voters, and that includes me, from observation while they are marking the ballot papers, as is decreed in section 206 of the Commonwealth Electoral Act 1918.

However, this was to no avail, forcing me, forcing me as a last resort in my own, and in the public, interest to lodge this mandamus application in the High Court of Australia which has original jurisdiction in mandamus cases.  All these efforts have been, of course, in vain.

Under the Commonwealth Act, 75(v), all Australian citizens have the right to exercise said right and lodge an application in the High Court for a writ of mandamus if that citizen has tried in vain to obtain justice in the lower court.  This would, in particular, apply to a citizen like me who has tried in an exceptionally long series of court cases stretching for 10 years and who, in addition, is an elderly, un‑financial pensioner, self‑representing himself much of the time and having no legal education.

I am seriously aggrieved by the defendant’s argument that I am a person who is abusing the process of the court, particularly that not only have I carried out my legal efforts in my own interest, but even more so in the ultimate interests of the Australian public.  I therefore, your Honour, am asking you to dismiss the defendant’s submission that these proceedings are an abuse of the Court.

HIS HONOUR:   Now, can I just say a couple of things to you?  First of all, the term “abuse of process” does not mean that you are – does not have any sort of moral reflection on you.  It is a legal term and it covers a wide range of situations, including relitigation.  Now, a person can sincerely believe they have the right to come to a court and yet still be abusing the process in the legal sense.  So I know that – it is an old‑fashioned term and it sounds like it involves some sort of negative judgment on you as a person, but it does not involve that.  It is really a question of whether you should be permitted to come again.  Now, the other thing is this.  When you invoked the jurisdiction, when you went to the Federal Court – okay – you were seeking mandamus there as well.

MR HORN:   No.

HIS HONOUR:   Well, you were seeking declaration and mandamus, I think.

MR HORN:   May I interrupt you there, your Honour?

HIS HONOUR:   Yes, please.

MR HORN:   In the decision by Justice McKerracher in Horn v Australian Electoral Commission WAD 208 of 2007, point 72, if anyone could find that, point 70 it reads under – I will read that because I copied it from there – should I start reading that out?

HIS HONOUR:   I am sorry, what are you wanting to read to me?

MR HORN:   I have it here, but it should be on the document as well under point 72.

HIS HONOUR:   Which document is that – the judgment of Justice McKerracher?

MR HORN:   Yes.

HIS HONOUR:   Paragraph 72, all right.  Just a minute.

MR HORN:   Yes, yes.

HIS HONOUR:   Yes.

MR HORN:   It reads, under the headline of “Availability of mandamus or an order in the nature of mandamus” and it reads as follows – I will read it out:

The Commission submits for various reasons that mandamus does not lie as a form of relief available to Mr Horn.  As I am completely satisfied that there is no foreshadowed breach of the Electoral Act by the Commission, it is unnecessary, given the urgency of this matter, to consider this submission.

I say that Justice McKerracher did not even consider issue a mandamus decree in this case because the election was the next day.

HIS HONOUR:   Well, I think the position is this, that you were claiming mandamus, you were claiming a declaration. He said because you cannot succeed on the question of law about section 206 we do not even get to the question whether, for other reasons, even if you had succeeded, mandamus would have been unavailable. That is, I think, the way that is stating it. It is just a matter of how the case fell out.

The point I want to make to you is that the jurisdiction of the Federal Court which was invoked is under the Judiciary Act and that replicates the jurisdiction of this Court under section 75(v) and the reason for that is so that people can go to that lower court instead of this Court having a whole lot of people coming in for matters which they could seek in a lower court. So there is a sort of duplicate created by statute of the jurisdiction which is given to this Court by the Constitution.

MR HORN:   In the first place, your Honour, I am not aware that my pro bono lawyer, Mr Richard Hooker, in those days, applied for any mandamus decision from Justice McKerracher.  He did not do so.

HIS HONOUR:   Yes.

MR HORN:   He did not.

HIS HONOUR:   Well, he did seek, at the very least – it does seem that there was mandamus because Justice McKerracher has referred to it – but at the very least he sought a declaration that the form of voting compartments was unlawful, having regard to section 206 and section 233, the very same legal issue.

MR HORN:   Your Honour, of course I am not a person who understands these legal issues.  That cannot be expected of me.

HIS HONOUR:   No.

MR HORN:   I only can say that nothing – what the Commission has – nothing that we have seen in the defendant’s written submissions and what we have heard from the defendant just now has the power to negate or overrule the statutory decree as is expressed in section 206 of the Commonwealth Electoral Act 1918, namely, that polling booths shall have separate voting compartments constructed so as to screen the voters from observation while they are marking their ballot paper. That is the statutory decree that must be carried out by the Australian Electoral Commission in the forthcoming election on 2 July.

I am therefore asking your Honour to dismiss the defendant’s submission relating to rule 27.09.4(c) of the High Court Rules and to issue an order in the form of the writ of mandamus against the Commission that will compel the Commission to provide the voters, and that includes me, in the election to be held on 2 July 2016 with lawfully constructed polling booths that shall have separate voting compartments constructed so as to screen the voters from observation while they are marking their ballot papers, that is, lawfully constructed voting compartments that can be closed by a door or curtain, similarly as is shown in exhibit DH003 to the affidavit of the plaintiff - that lawful constructed voting compartments to be constructed to the satisfaction of the High Court.

HIS HONOUR:   All right.  Thank you, Mr Horn.

MR HORN:   Yes.

HIS HONOUR:   Mr Lenehan, do you have anything in reply?

MR LENEHAN:   Your Honour, just to be of assistance, if I could note that paragraph 8 of Justice McKerracher’s judgment makes clear that an order in the nature of mandamus was sought.

HIS HONOUR:   Yes, all right.  Thank you.  Mr Horn, what I am going to do now is I am just going to retire for a few minutes and consider what course I shall take.  I have some notes and I just want to write them up.  Thank you.

MR HORN:   Thank you very much, your Honour.

HIS HONOUR:   Adjourn briefly.

AT 3.22 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.27 PM:

HIS HONOUR:   On 27 May 2016, the plaintiff, Dieter Horn, filed an application in the original jurisdiction of this Court naming the Australian Electoral Commissioner as defendant.  There is no such office.  It seems, however, that the relief sought is against the Electoral Commissioner, and the application was amended at the commencement of the hearing to describe the defendant accordingly.

The plaintiff seeks mandamus to compel the Commissioner to provide persons voting at the federal election to be held on 2 July 2016 with “lawfully constructed polling booths that shall have separate voting compartments, constructed so as to screen the voters from observation while they are marking their ballot papers; i.e. lawfully constructed voting compartments that can be closed by a door or curtain”. 

The plaintiff has exhibited to his affidavit photographs of what he calls “lawfully constructed voting compartments that screen the voters from observation while they are marking their ballot papers”.  He seeks an order that the voting compartments to be used at the forthcoming election be constructed to the satisfaction of this Court.

The plaintiff contends that the current form of voting compartment, which does not have a door or curtain, does not comply with section 206 of the Commonwealth Electoral Act 1918 (Cth) which provides:

Polling booths shall have separate voting compartments, constructed so as to screen the voters from observation while they are marking their ballot papers, and each voting compartment shall be furnished with a pencil for the use of voters.

Section 206 is to be read with section 233 of the Electoral Act which relevantly provides:

(1)Except as otherwise prescribed the voter upon receipt of the ballot paper shall without delay:

(a)retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot paper;

(b)fold the ballot paper so as to conceal his or her vote and:

(i)if the voter is not an absent voter—deposit it in the ballot‑box; or

(ii)if the voter is an absent voter—return it to the presiding officer; and

(c)quit the booth.

Section 233(2) is not material for present purposes.

As the plaintiff acknowledged, in an affidavit in support of his application, he has tried for many years to compel the Commissioner, “through a long series of court cases”, to provide polling booths that have a separate voting compartment constructed with a door or curtain.  He set out a list of those cases in an exhibit to his affidavit and exhibited photographs of the form of voting compartment which is currently in use and which was used in the 2007, 2010 and 2013 federal elections.

In 2007, after the writs had been issued for the federal election that year, the plaintiff sought similar relief on the same grounds in proceedings in the Federal Court of Australia. His application in that Court was dismissed by McKerracher J. McKerracher J construed sections 206 and 233 by reference to their evident purpose. His Honour said:

I consider that it is reasonably clear that ‘in private’ where referred to in s 233(1)(a) relates to concealing the way in which the voter has voted on the ballot‑paper as also referred to in s 233(1)(b). Consistently with this, in my view the screening of voters from observation referred to in s 206 is intended to ensure privacy of the way in which voters have marked the ballot‑paper.

Neither of the sections, in my view, could reasonably be thought to be guaranteeing voters total privacy in relation to all of the acts leading up to voting, such as adjusting how to vote papers within the booth to examine them before marking the ballot‑paper.

. . . 

There is no reason why the fact that a voter is in a booth marking a ballot‑paper as required by law should in itself be the subject of privacy.  There is every reason, however, to guarantee privacy of the manner in which the vote is exercised.  In my view that is the purpose to which the Electoral Act is directed and is consistent with both a purposive and a literal reading of the words of the two sections when taken together.

There was a sequel to that proceeding. The plaintiff was charged after the 2007 federal election under section 245 of the Electoral Act with failing to vote at it without a valid sufficient reason. He was convicted in the Perth Magistrates Court and unsuccessfully applied to a single judge of the Supreme Court for leave to appeal against that conviction. He had contended in the Magistrates Court that he had a good and sufficient reason to fail to vote, namely that sections 206 and 233(1)(a) of the Electoral Act had not been complied with and, alternatively, that he held a genuine and sincere belief that those sections had not been complied with. In the event the Court of Appeal rejected his invitation to form a different view from that formed by the magistrate adversely to him about the sufficiency of the voting compartment used at the 2007 election.

On 25 February 2014, Gageler J, acting pursuant to rule 6.07.2 of the High Court Rules 2004 (Cth), directed the Registrar to refuse to issue a proceeding lodged by the plaintiff in this Court without leave of a Justice first had and obtained. On 1 May 2014, the plaintiff filed an ex parte application for the requisite leave, raising essentially the same complaint that he raises in these proceedings. I refused that leave on the basis that it did not relate to any impending election or referendum. The question which it sought to raise was not so much one of construction as one of application to historical facts. Absent any impending election, there could be no relevant duty on the Commission and no matter enlivening the jurisdiction of the Court to grant the relief which he sought.

The current proceedings come in the shadow of a federal election. The defendant has filed a summons seeking an order for the dismissal of the plaintiff’s application as an abuse of process pursuant to rule 27.09.4(c) of the High Court Rules. The defendant contends that the plaintiff seeks to relitigate the issue that was decided adversely to him in the decision of McKerracher J in 2007.

The criteria for a permanent stay or dismissal of an application as an abuse of process, in circumstances analogous to the present case, were considered by Gageler J in Plaintiff S3 of 2013 v Minister for Immigration and Citizenship. The plaintiff in that case had initiated proceedings in the original jurisdiction of this Court seeking constitutional writs against the Minister for Immigration and Citizenship and the Refugee Review Tribunal. Of the two grounds which were raised in that application one had been determined adversely to the plaintiff in proceedings commenced in the Federal Magistrates Court of Australia, and affirmed on appeal by the Federal Court. The second ground was one which could have been raised in those earlier proceedings. Gageler J dismissed the application, applying the principle that a proceeding should be stayed as an abuse of process if its continuance were to amount to an attempt to relitigate a case already disposed of by earlier proceedings. As his Honour held, that principle applies to the invocation of the original jurisdiction of this Court under section 75(v) of the Constitution.

In this case, the plaintiff seeks to relitigate the same case that he lost in 2007, albeit it is a case brought in the context of the 2016 federal election. There has been no relevant change in the factual circumstances. This litigation is the latest episode in a long‑running campaign in which, as the plaintiff acknowledges, he has in various ways sought to invoke the courts in order to obtain the result he seeks. The decision of McKerracher J was based upon a construction of section 206 of the Electoral Act that was open and entirely consistent with its evident purpose and the context provided by section 233. This is not an appeal against that decision. It is really an attempt to have another bite at the cherry. The application should be dismissed an abuse of the Court’s process. No order as to costs is sought by the defendant.

The Court will now adjourn.

AT 3.36 PM THE MATTER WAS CONCLUDED