Hudson v Entsch

[2005] FCA 300

FEDERAL COURT OF AUSTRALIA

Hudson v Entsch [2005] FCA 300

ANTHONY JOSEPH HUDSON v THE HONOURABLE WARREN ENTSCH MP AND AUSTRALIAN ELECTORAL COMMISSION

QUD 46 OF 2005

DOWSETT J
14 MARCH 2005
CAIRNS

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 46 OF 2005

SITTING AS THE COURT OF DISPUTED RETURNS
ON REMITTER FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

ANTHONY JOSEPH HUDSON
PETITIONER

AND:

THE HONOURABLE WARREN ENTSCH MP
FIRST RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

14 MARCH 2005

WHERE MADE:

CAIRNS

THE COURT ORDERS THAT:

1.        Paragraphs 1-8 of the petition filed 18 February 2005 be struck out;

2.        Paragraphs 12-31 of the petition filed 18 February 2005 be struck out;

2.Further proceedings in connection with the petition filed on 18 February 2005 be limited to pars 9-11 thereof. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 46 OF 2005

SITTING AS THE COURT OF DISPUTED RETURNS
ON REMITTER FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

ANTHONY JOSEPH HUDSON
PETITIONER

AND:

THE HONOURABLE WARREN ENTSCH MP
FIRST RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
SECOND RESPONDENT

JUDGE:	DOWSETT J
DATE:	14 MARCH 2005
PLACE:	CAIRNS

REASONS FOR JUDGMENT

1. At the election held on 9 October 2004, the first respondent was the successful candidate in the electoral division of Leichhardt. The petitioner was entitled to vote in that division. The relevant writ was returned on 11 November 2004. By petition filed in the High Court on 2 December 2004, the petitioner sought an order to the effect that the first respondent had not been duly elected and that his election should be declared void. By summons filed on 10 January 2005, the second respondent sought leave to appear and other relief, including remitter to this Court and dismissal of the petition. On 7 February 2005, the matter was remitted to this Court. I have, today, heard the application for dismissal of the petition. Counsel for the second respondent submitted, in effect, that the petition did not allege grounds which were capable of leading to the relief sought and/or that it did not comply with s 355 of the Commonwealth Electoral Act 1918 (Cth) (the “Electoral Act”). I have concluded that a substantial part of the petition must be struck out. That, of course, will narrow the issues for determination at the hearing. I will not give detailed reasons for my views. If necessary, I will do so at a later stage.

2. Section 355 of the Electoral Act provides relevantly:

   ‘Subject to section 357, every petition disputing an election or return in this Part called the petition shall:
   (a)      set out the facts relied on to invalidate the election or return;

   (aa)subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief.

   (b)contain a…