Hyde v Electoral Commissioner of South Australia
[2023] SADC 143
•27 October 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA & ANOR
[2023] SADC 143
Judgment of his Honour Judge Burnett
27 October 2023
LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ELECTIONS - DISPUTED ELECTIONS AND OUSTER - JURISDICTION AND POWERS OF COURT
LIMITATION OF ACTIONS - GENERAL MATTERS - AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD - GENERALLY
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - GENERALLY
By a petition lodged on 16 December 2022, the petitioner, Mr Alexander Hyde, has challenged, pursuant to Part 13 of the Local Government (Elections) Act 1999 (the Elections Act), the validity of an election in which the second respondent, Mr Jing Li, was elected as a councillor for the Central Ward of the Corporation of the City of Adelaide.
On 22 March 2023, the petitioner took out an interlocutory application in which he sought, to the extent necessary, leave to file an amended petition. On 27 March 2023, he filed a further application in which he sought an extension of time pursuant to s 48(1) of Limitation of Actions Act 1936 (the Limitation Act) to lodge the amended petition. A further amended petition was lodged on 26 June 2023 pursuant to leave granted on 14 June 2023 and 20 July 2023. The respondents opposed the lodging of the amended petitions but indicated that they were content to proceed on the basis that the question of leave be determined at trial.
The parties sought to have the questions of leave to file the amended petitions and whether leave should be revoked determined at the commencement of the trial. That necessarily included determination of the question whether the petitioner was entitled to an extension of time to file the petition to the date when the amended petitions were lodged.
Held: 1. On the proper construction of the Elections Act, the power to amend a petition is found in 71(1)(i) of that Act and not under the Uniform Civil Rules 2020.
2. The Court has no power under the Elections Act to allow an amendment which sets out new facts relied on to invalidate the election which were not included in the original petition and which were made outside the 28 day period prescribed by s 70(1): Crafter v Webster (1979) 23 SASR 61 applied; The Owners of the Ship “Sin Kobe Maru” v Empire Shipping company Inc (1994) 181 CLR 404 discussed.
3. The amendments raise, with the exception of the further matters set out in paragraph [6] pf the amended petitions, new facts relied upon to invalidate the election: Firstmac Ltd v Hunt & Hunt (a firm) [2018] QSC 258 applied.
4. Section 48(1) of the Limitations of Action Act 1936 applies to permit the time to lodge a petition under the Elections Act to be extended: Crafter v Webster (1979) 23 SASR 61 applied.
5. In the exercise of discretion, it is in the interests of justice that the Court extend the time for the filing of the amended petitions to 26 June 2023: Ulowski v Miller [1968] SASR 277; Hall v Carney (No 3) [2021] SASCA 37 applied. An order extending time is made.
6. It follows that the application to revoke leave to amend the petition is refused.
Local Government (Elections) Act 1999 (SA) s 57, 61, 64, 67, 69, 70, 71; Uniform Civil Rules 2020 (SA) r 69; Local Government Court of Disputed Returns Rules 2000 (SA) r 5(2)(c); Limitation of Actions Act 1936 (SA) s 48; Legislation Interpretation Act 2021 (SA) s 3; Admiralty Act 1988 (Cth) s 4(2); Electoral Act 1929 (SA) s 170(1)(e); Electoral Act 1907 (WA); Commonwealth Electoral Act 1918 (Cth) s 185, 187; Trustee Act 1936 (SA) s 29, referred to.
Crafter v Webster and Guscott (1979) 23 SASR 61; Firstmac Ltd & Ors v Hunt & Hunt (a firm) [2018] QSC 258; Ulowski v Miller [1968] SASR 277; Hall v Carney (No 3) [2021] SASCA 37, applied.
The Owners of the Ship “Sin Kobe Maru” v Empire Shipping company Inc (1994) 181 CLR 404; Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand 2008] HCA 42; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; 220 CLR 472; Cameron v Fysh (1904) 1 CLR 314; Maude v Lowley (1874) LR 9 CP 165; In the Matter of a Petition by Helen Therese Berrill and of a Poll for the Electoral Division of Boothby SA (1978) 52 ALJR 359; Weldon v Neal (1887) 19 QBD 394; Aldridge v The Electoral Commissioner and Ors [2010] SASC 194; Sykes v Australian Electoral Commission [1993] HCA 36; (1993) 115 ALR 645; Crafter v Webster (No 2 (1980) 23 SASR 321; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Hall v Carney (No 3 [2021] SASCA 37; Rundle v Salvation Army (South Australia Property Trust) [2007] NSWSC 443; In the Matter or Hyde [2023] SASC 146; Beverage Bottlers (SA) (in liq) v Abode Enterprises Pty Ltd [2009] SASC 272; Malavazos v Govcorp Finance Ltd [2022] SASC 44, discussed.
HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA & ANOR
[2023] SADC 143Court of Disputed Returns
Introduction
The respondents seek an order that the leave granted to the petitioner to lodge the amended petitions be revoked. That application involves a determination of the question whether the petitioner is entitled to an extension of time to file the petition to the date when the amended petitions were lodged. The parties agreed that I should decide that question as well.
The application requires consideration of the circumstances in which a person who, pursuant to ss 69 and 70 of the Local Government (Elections) Act 1999 (SA) (the Elections Act), has lodged a petition with the Court of Disputed Returns to invalidate an election, may amend that petition outside of the 28 day period set out in s 70.
The petitioner, Mr Alexander Hyde, submits that the application to amend a petition is governed by s 71(1)(i) of the Elections Act which confers a broad power of amendment. The petitioner submits that the power under s 71(1)(i) is not constrained by the limitations imposed under s 70(1)(d) of the Elections Act or under the Uniform Civil Rules 2020 (UCR) 69.1 in relation to new causes of action instituted after the expiry of the relevant limitation period. If that is not correct, the petitioner submits that UCR 69.1, as informed by rule 5(2)(c) of Local Government Court of Disputed Returns Rules 2000 (Election Rules), applies and either he does not need leave to lodge an amended petition, as the amendments were made prior to discovery being made and did not add a new cause of action (except in the case of paragraph 5(a)(iii)) or if the amendments added a new cause of action, those further allegations arise out of the same facts or substantially the same facts as were pleaded in the Original Petition, such that leave should be granted and backdated to the date when the Original Petition was lodged. Fourthly, the petitioner submits that s 48(1) of the Limitation of Actions Act 1936 (SA) (the Limitation Act) applies such that the Court may extend the time within which the petition was to be lodged. The petitioner submits that in the exercise of its discretion under s 48(1), the Court should extend time.
The first respondent, the Electoral Commissioner of South Australia (the Commissioner), and the second respondent, Mr Jing Li, both seek orders that leave to lodge the amended petitions be revoked. They submit that s 70 of the Elections Act requires the petition to be lodged within 28 days and to set out the facts relied upon to invalidate the election. They contend that there is no power (other than under s 48 of the Limitation Act) to permit amendments to the petition that were made after the 28 day period and allege new facts that are relied upon to invalidate the election. That is the case, they submit, whether s 71(1)(i) or UCR 69 is relied upon as the basis for seeking leave. The respondents accept that the decision in Crafter v Webster and Guscott[1] (Crafter v Webster) is authority for the proposition that the Limitation Act can apply to extend the time of the lodging of a petition but say that in the exercise of its discretion, the Court should refuse to grant the extension.
[1] (1979) 23 SASR 61.
The following matters therefore arise for determination:
(1)The proper construction of the Elections Act. Three issues arise:
a. Is the power to amend a petition found in s 71(1)(i) of the Elections Act or UCR 69 and the Election Rules?
b. Having regard to the time limit imposed by s 70(1)(d) to lodge a petition within 28 days, does the Court have a discretion to permit an amendment under s 71(1)(i) or UCR 69 to set out new facts relied on to invalidate the election which were not included in the Original Petition and which were made outside the 28 day period prescribed by s 70(1);
c. Does s 48(1) of the Limitation Act apply to extend the time to lodge the petition under the Elections Act?
(2)Do the amendments set out new facts relied on to invalidate the election?
(3)If, on the proper construction of the Elections Act, the Court has a discretion to grant an amendment, or properly construed, the amendments do not set out new facts relied upon to invalidate the election, should the Court in the exercise of its discretion permit the amendments, even though they were made outside of the 28 day period;
(4)If the effect of the amendments is to set out new facts relied on to invalidate the election that are statute barred, and the Court finds that UCR 69.2 applies, do the amendments to the petition arise out of the same or substantially the same facts as set out in the Original Petition such that the Court should order, pursuant to UCR 69.2(2), that the amendments relate back to the date that the petition was first lodged;
(5)If the Limitation Act applies to a petition lodged under s 70 of the Elections Act, should the time to lodge the amended petition be permitted in the exercise of the Court’s discretion.
Background and procedural history
In October and November 2022, the City of Adelaide conducted an election under the Elections Act. That election included an election for councillors for the Central Ward. The election was conducted by way of postal vote. Postal voting packages were sent to electors in the period from about 14 October 2020 to 20 October 2020. Voting closed on 10 November 2020.
There were a number of candidates for the election of councillors for the Central Ward including the petitioner and the second respondent.
On 18 November 2022, four candidates were returned as elected for the Central Ward including the second respondent. The petitioner was an unsuccessful candidate.
By a petition lodged on 16 December 2022 (the Original Petition) under the Elections Act, the petitioner sought relief that included declarations that the elected persons, including the second respondent were not duly elected and a declaration that the election of the council for the Central Ward was void.
On 10 January 2023, the second respondent applied to be joined to the proceedings. Both the Commissioner and the second respondent were granted short extensions of time to file their response to the petition.
On 22 March 2023, the petitioner took out an interlocutory application in which he sought, to the extent necessary, leave to file an amended petition. On 27 March 2023, the petitioner filed a further application in which he sought an extension of time to file the amended petition. Given the reliance on the Limitation Act, the respondents indicated that the amendment remained opposed but that they were content to proceed on the basis that the issue be determined at trial. Leave was granted to the petitioner to file the amended petition on 29 March 2023.
On 24 April 2023, the matter was listed for trial to commence on 26 June 2023.
That trial date was vacated at a hearing on 14 June 2023. No party formally sought the vacation of the trial, but it was apparent to all parties and the Court that the trial was not ready to proceed. The Commissioner had filed a supplementary list of documents on 8 June 2023 (the Commissioner had filed earlier lists of documents on 29 March 2023 and 12 April 2023) in which he discovered further enrolment forms which required assessment by the petitioner and which ultimately became the subject matter of a supplementary report by the expert retained by the petitioner. That report was served on 19 June 2023. Both respondents indicated that they were intending to provide an answering expert report.
At the hearing on 14 June 2023, the petitioner was granted leave to lodge a further amended petition within 7 days and subsequently on 20 July 2023, the Court ordered that the time to file the further amended petition be extended to 26 June 2023.
The further amended petition, revision 2 of the petition, was lodged on 26 June 2023.
A new trial date was fixed for 17 October 2023.
Facts relied upon to invalidate the election.
The facts that were set out in the Original Petition to invalidate the election were:
(1)On 27 May 2022, at a meeting of the international student community, the second respondent offered a bribe to a person to influence the vote of that person at an election, contrary to s 57(1)(b) of the Elections Act (paragraph 5(a) of the Petition);
(2)On 27 May 2022, at a meeting of the international student community, the second respondent offered a bribe to persons with a view to interfere with the due course of an election, contrary to s 57(1)(c) of the Elections Act (paragraph 5(b) of the Petition);
(3)On occasion or occasions between 14 October 2022 and 10 November 2022, persons, acting on behalf of the second respondent, acted as an assistant to a person voting in the election by picking up the voting packs in apartments in the Central Ward including from four identified apartment buildings contrary to s 61(1) of the Elections Act (paragraph 5(c) of the Petition);
(4)On occasion or occasions between 14 October 2022 and 10 November 2022, persons, acting on behalf of the second respondent, had in their possession or attempted to gain possession of postal votes for the election contrary to s 61(4) of the Elections Act (paragraph 5 (d) of the Petition);
(5)The conduct set out in sub-paragraphs (1)-(4) above, when taken as a whole, constituted a coordinated scheme to illegally affect the outcome of the election for the benefit of the second respondent such that the election was not a free and fair election contrary to the common law of elections (paragraph 7 of the Petition).
In the amended petition, revision 1 (being the amended petition lodged on 30 March 2023) and in the amended petition, revision 2 (being the amended petition lodged on 26 June 2023), the petitioner set out further facts:
(1)To the allegation of bribery set out in paragraphs 5(a)(i) and (ii) of the Original Petition, he further pleaded that “separately or in the alternative cumulatively to the allegations” [of bribery that had been made in paragraph 5 (a) of the Original Petition], that Belle Property Adelaide City were agents for a number of landlords in the Central Ward, such properties including tenancies leased by members of the Adelaide international student community and that in about July 2022, the second respondent gifted expensive bottles of wine to staff of Belle Property Adelaide City with a view to influencing them to register such landlords and/or tenants as enrolled Central Ward voters and have them vote for him contrary to s 57(1)(b) of the Elections Act. (paragraph 5(a)(iii) of revision 1 and revision 2);
(2)To the allegation made in paragraph 5 (c)(ii) of the Original Petition, that on occasions between 14 October 2022 and 10 November 2022 persons acting on behalf of the second respondent, acted as an assistant to a person voting in the election by picking up voting packs in apartments in the Central Ward including from four identified apartment buildings contrary to s 61(1) of the Elections Act, a further allegation that the voting packs were picked up from four additional apartment buildings referred to as the “visited apartment buildings” (paragraph 5 (c)(ii) of revision 1 and revision 2);
(3)To the allegation made in paragraph 5 (c)(iv) of the Original Petition that on occasions between 14 October 2022 and 10 November 2022 persons acting on behalf of the second respondent had in their possession or attempted to gain possession of postal votes of the election contrary to s 61(4) of the Elections Act, further statements that those persons took possession of voting packs from the initial four identified apartment buildings and also from the four visited apartment buildings (paragraph 5(c)(iv) of revision 1 and revision 2) and in revision 2 a further five other specified buildings were nominated;
(4)An additional plea that at least 73 identified persons made a statement in a declaration that was false and misleading contrary to s 64(1) of the Elections Act. The particulars of that allegation were that the signature on the declaration was different from the signature on the application for enrolment and therefore that a person forged the signature on the envelope of the declaration (paragraph 5(e) of revision 2);
(5)A further allegation that those matters constituted the 73 identified persons as marking a ballot vote in contravention of s 64(2) of the Elections Act and dishonestly exercising a vote at the election to which they are not entitled contrary to s 58(1) of the Elections Act (paragraphs 5(f) and 5(g) of revision 2);
(6)Amendments to paragraph 6 which provided further detail about how the above legal practices affected the result of the election. senior counsel for the petitioner in his oral submissions indicated that the matters set out in paragraph 6 do not raise a new cause of action (or set out the facts relied on to invalidate the election) and are relevant only to show the election result was affected. A reading of revision 2 indicates that paragraph 6 does not form any part of the petitioner’s allegations that there had been illegal practices or breaches of the Elections Act or the common law of election.
Hearing of the application
At trial, the parties have all agreed that they wished the issue of the amendments to be determined at the commencement of the trial so that the issues in dispute could be fixed. The parties also agreed that the issue of the application by the petitioner for the extension of time to lodge the petition be determined.
Given the respondents expressly reserved their rights when the amendments were made, I propose to approach the matter on the basis that the petitioner bears the onus of satisfying the Court that the amendments should be permitted and that leave should not be revoked. The petitioner bears the onus of persuading the Court that an extension of time should be granted.
The affidavits filed by the petitioner in support of the application to amend did little more than annex the proposed amendments. They did not provide any reason for the amendments and the petitioner did not rely upon them for the purposes of this application.
By consent, the petitioner gave oral evidence as to the circumstances in which the amendments were made. He was cross-examined by counsel for the Commissioner and by senior counsel for the second respondent.
The respondents did not adduce any evidence except that the second respondent tendered one email from the petitioner to the Commissioner dated 25 October 2023.
Mr Hyde gave evidence as to the circumstances in which he sought leave to file the first amended petition, revision 1 and the second amended petition, revision 2. He said:
(1)An interlocutory application was lodged to file revision 1 of the Original Petition on 27 March 2023 and revision 1 was subsequently filed on 30 March 2023;
(2)An interlocutory application was lodged to file revision 2 of the Original Petition on 26 June 2023;
(3)As to the amendments made to paragraph 5(a)(iii) (which concern the allegation of bribery through the gift of a bottle of wine to staff of Belle Property, real estate agents, Mr Hyde said that he had heard rumours and innuendo about this allegation in December 2022 but that it was not until January/February 2023, following further investigations, that it was at a point that it should be included in the petition. In cross-examination, he said that it was not until he spoke to Ms Hui in about February 2023 that he spoke to a source close to the alleged bribery. He said witnesses were reluctant to come forward about these matters;
(4)As to the amendments made to paragraph 5(c)(ii), Mr Hyde gave evidence that the inclusion of the further four apartment blocks arose as a result of receipt of the Commissioner’s first affidavit (filed on 31 January 2023) and his own further analysis of the electoral roll and ascertaining that a lot of international students resided at those apartment buildings. He said that as a result of the Commissioner’s affidavit, it became clear to him that the Commissioner did not possess the application forms for the enrolment of voters. He then subsequently examined the roll and determined that there were international students at those apartments who had lodged supplementary enrolments. He said that he had visited those locations during the course of the election and did not notice voting packs there. In cross-examination, Mr Hyde accepted that he had access to the electoral roll from being a candidate of the election and that he was able to decipher from the roll during the course of the election, the addresses to which voting packs had been sent. He said that he could have discerned where voting packs had been sent prior to 10 November 2023 (when voting closed) but did not discern it necessarily. Mr Hyde admitted in cross-examination that he sent an email to the Commissioner on 25 October 2023 when he referred to information that he had received that someone had collected voter packs from Vision Apartments (one of the four apartment blocks referred to in the Original Petition) and that his examination of the roll indicted that there were a number of other apartment blocks with large numbers of newly enrolled international students (being the other three apartment blocks named in the Original Petition).
(5)As to sub-paragraph 5(c)(iv), (and the reference to a further group of apartment blocks), Mr Hyde gave evidence that this amendment arose out of the Commissioner’s discovery and that it became clear that a number of students were enrolled at those addresses as well;
(6)As to sub-paragraphs 5(e), (f) and (g) (the allegations that false or misleading declarations were made on postal voting papers), Mr Hyde gave evidence that those allegations were made following the discovery by the Commissioner of the applications for enrolments and then the expert report prepared by Mr McGinn on behalf of the petitioner in which he compared the signatures on the applications for enrolment and the signatures on the voting declarations. Mr Hyde said that the Commissioner gave discovery in three tranches: the first on 30 March 2023, the second on 13 April 2023 and the third on 8 June 2023. He said some seven or eight hundred applications for enrolment were discovered by the Commissioner in the second tranche of discovery (13 April 2023) and a small set on 8 June 2023.
Mr Hyde gave evidence about the circumstances in which the amendments were made to paragraph 6 of the Original Petition. As a result of my finding that paragraph 6 did not involve the allegation of new facts relied upon to invalidate the election, the allegations in paragraph 6 do not require an extension of time under the Limitation Act. Those amendments arose out of:
(1)the Commissioner’s discovery and correspondence between the parties as to the level of scrutiny applied by the Commissioner (paragraph 6(c)(iv)),
(2)provision of the Commissioner’s first affidavit (paragraph 6(c)(v), paragraph 6(c)(i)(6) and paragraph 6(c)(9));
(3)conducting further investigations including further analysis of the electoral roll (paragraphs 6(c)(i)(8) and paragraphs 6(c)(13), (16) and (17));
(4)a matter of correction (paragraph 6(c)(10));
(5)further analysis of the electoral roll in the context of the Commissioner’s first affidavit and understanding aspects of the investigation that the Commissioner had undertaken (paragraph 6(c)(11)).
Statutory Framework
The determination of the application depends on the construction of a number of provisions of the Elections Act, the Uniform Civil Rules and the Limitation Act.
Part 13 of the Elections Act establishes a Court of Disputed Returns which, in the case of local government elections, is constituted by a District Court Judge. S 67(5) of the Elections Act provides:
Subject to this Part, the procedure and powers of the Court are the same as those of the District Court when exercising civil jurisdiction.
Section 70 sets out the procedure upon the petition. It provides:
(1) A petition to the Court must:
(a)set out the facts relied upon to invalidate the election; and
(b)set out the relief which the petitioner seeks; and
(c)be signed by a candidate at the election in dispute or by an elector for that election; and
(d)be lodged with the clerk of the Court within 28 days after the conclusion of the election; and
(e)be accompanied by the prescribed amount as security for costs.
(2) …
(3) If a person or council served under subsection (2) proposes to contest the petition, the person or council must, within 14 days after service, or such further time as may be allowed by the Court (on application made either before of after the expiration of the period of 14 days), lodge with the clerk of the Court and serve on the petitioner, a rely.
(4) A reply must:
(a)set out the facts on which the applicant [sic] proposed to rely; and
(b)ask for any relief to which the applicant [sic]claims to be entitled;
(c)be signed….
Section 71 sets out the powers of the Court. It provides:
(1) The Court must sit as an open court and its powers include the following:
(a)to adjourn;
(b)to compel the attendance of witnesses and the production of documents;
(c)to examine witnesses on oath, affirmation or declaration;
(d)with the consent of the parties to the proceedings, to receive evidence on affidavit or by statutory declaration;
(e)subject to this Act and the rules, to determine its procedure in each case;
(f)to declare-
(i)that a person who was returned as elected was not duly elected; and
(ii)that a candidate who was not returned as elected was duly elected;
(g) to declare an election void;
(h)to dismiss or uphold a petition, in whole or in part;
(i)to amend or allow the amendment of a petition or reply;
(j)to punish contempt of its authority by fine or imprisonment.
(2) The court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(3) The Court is not bound by the rules of evidence.
(4) The Court must act according to good conscience and the substantial merits of the case without regard to legal technicalities.
(5) A decision of the Court is final and without appeal.
Section 73(1) provides that a Court cannot declare an election void or that a candidate was not duly elected on the ground of an illegal practice found by the Court to have been convicted unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the illegal practice. Section 73(2) then states that if an illegal practice under ss 57, 58 or 59 has been found 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.
Section 79 provides that the Chief Judge of the District Court may make rules regulating the practices and procedure of the Court of Disputed Returns. Such rules were made and are referred as the “Local Government Court of Disputed Returns Rules 2000”. These rules are very brief. The rules provide for the form in which the petition and the reply must be lodged. Rule 5(1) states that:
Except as is expressly or impliedly otherwise provided by the Act or these Rules and subject to any contrary directions of the Court, all proceedings under Part 13 of the Act will be governed by Part II of the District Court Rules 1992.
Rule 5(2) goes on to say that for the purposes of applying Part II of the District Court Rules to proceedings under Part 13 of the Elections Act, a petitioner is the equivalent of a plaintiff and a petition is the equivalent of a summons and statement of claim.
Pursuant to s 36)(2) of the Legislation Interpretation Act 2021 (SA), a reference to a legislative instrument is a reference to such an instrument as amended from time to time and if replaced (within the meaning of s33(3)), as replaced and amended from time to time. Therefore, in this case, the reference to Part II of the District Court Rules 1992 should be read as a refence to Part 9 of the UCR.
Relevantly, UCR 69 provides:
[69.1]
(1) Subject to subrule (2), a party may amend a Claim or pleading … at any time up to 14 days after the last date on which lists of documents are due to be filed by operation of these Rules or order of the Court.
(2) A party may not amend under this rule of the amendment would add a cause of action that is statute barred or withdraw an admission.
(3) If the party makes an amendment under this rule, another party may apply for an order disallowing the amendment in whole or in part on the ground that, if leave had been sought to make the amendment, it would have been refused.
(4) On an application under subrule (3), the onus will be on the party seeking disallowance of the amendment to persuade the Court that it should be disallowed.
[69.2]
(1) A party may amend a Claim or pleading…
(a) by consent; or
(b)with the leave of the Court.
(2) If leave is granted to amend a Claim or pleading-
(a)to add a cause of action that is statute barred;
(b)-(c)…
the amendment takes effect on a date fixed by the Court not earlier than the date on which the application for leave to amend was made or foreshadowed unless the Court makes an order under subrule (3).
(3) The Court may order that the amendment relate back to the date on which the claim the subject of the amendment was instituted-
(a)If subrule (2a) applies-if the new cause of action arises out of substantially the same facts as the original cause of action; or
(b) …
Construction of the Elections Act
The primary argument of the petitioner was that s 71 of the Elections Act gave a power to amend a petition even if the amendments were made after the 28 day period specified in s 70 and raised new facts which were to be relied upon to invalidate the election. The petitioner further submitted that there was no basis to confine the power of amendment outside of the 28 day period to cases where no new facts were relied upon. Further, the petitioner submitted that some of the amendments were particularisation of existing facts that were contained in the Original Petition and were not properly characterised as new facts for the purpose of considering the amendments.
The respondents submitted that when read as a whole, the Elections Act required the facts relied on to invalidate the election to be set out in a petition which was lodged within 28 days after the conclusion of the election. There was, it was therefore submitted, no power to amend the petition outside of the period to allege new facts. The respondents further submitted that the amendments set out in revision 1 and revision 2 were properly characterised as raising new facts upon which the petitioner relied to invalidate the election.
The first issue to be determined is where the power to amend a petition resides.
The petitioner submitted that the power to amend is found in s 71(1)(i) of the Elections Act which provides an express power to amend or allow the amendment of a petition.
The Commissioner submitted that the power to amend was subject to the UCR and in particular UCR 69.1 and 69.2. The Commissioner submitted that s 67(5) of the Elections Act refers to procedural variations contained in the Act such as costs in s 78. The Commissioner submitted that the power provided in the rules was not inconsistent with s 71 in that power conferred by s 71 was expressed in such broad terms and at such a level of abstraction, that it should not be construed as limiting the power to amend under the UCR.
The second respondent accepted the power to amend a petition is found in s 71 and not UCR 69.
In my view, the power of the Court to grant the amendments is found in s 71 of the Elections Act and not in the Uniform Civil Rules. Section 71 gives the Court an express power to allow an amendment. That power is, pursuant to s 71(2) a discretionary power, to be exercised on such grounds as the Court in its discretion thinks just and efficient. The power must be exercised judicially.
Section 67(5) expressly qualifies the statement that the procedure and powers of the Court are the same as those of the District Court when exercising its civil jurisdiction by including the proviso “Subject to this Part”. Section 71 imposes a different test for an amendment than the UCR. The power to permit an amendment under UCR 69 may be inconsistent with the power under s 71(2). Section 71(2) requires a discretion to be exercised on such grounds as the court thinks just and efficient. UCR 69 is more prescriptive and permits an amendment made before discovery but if that amendment adds a cause of action that is statute barred, then a party may not make that amendment except with leave of the Court or by consent. In such a case, the Court may order, pursuant to UCR 69.3(a), that the amendment relate back to the date on which the claim was originally instituted if the new cause of action arises out of substantially the same facts as the original cause of action.
It is common that statutes will express a discretionary power in broad terms. That does not mean that the detail of how that power is to be exercised should be supplemented by resort to some other source of power.
The next matter of construction is whether the power to allow an amendment of a petition alleging new facts is confined to cases where the 28 day period to lodge a petition which set out the facts relied on to invalidate the election had not expired.
The petitioner submitted that to restrict the operation of s 71(1)(i) to cases where a petitioner did not set out new facts which would invalidate the election would constitute an implied restriction on the power set out in that section to amend or allow the amendment of a petition. In other words, the power of amendment should not be circumscribed by an implied limitation when the words of the section were clear.
In support of that contention, the petitioner referred to the decision in The Owners of the Ship “Sin Kobe Maru” v Empire Shipping Company Inc.[2] In that case, the Court, in a unanimous joint judgment, held:[3]
Not only do the matters upon which the argument for YSL relied not support the construction for which it contends, but two other matters tell strongly against a reading down of s 4(2)(a) and (b). The first and more significant is that a statutory definition should be approached on the basis that Parliament said what it meant and meant what it said. The consequence of that is that a definition should be read down only if that is clearly required as, for example, if it is necessary to give effect to the evident purpose of the Act. The second is that s 4(2)(a) and (b) form part of a jurisdictional definition, in the sense that the definition of “proprietary maritime claim” serves to identify an area of jurisdiction conferred on or vested in the courts referred to in s 10 of the Act. It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.
There is no indication in the express words of s 4(2)(a) and (b), much less a clear indication, that the expression “a claim … relating to … ownership” of a ship should be read down in a way that would exclude a claim by which a plaintiff asserts rights which involve or may involve another's ownership. The argument to that effect must be rejected.
[citations omitted].
[2] (1994) 181 CLR 405; [1994] HCA 54.
[3] Ibid at 420.
That statement of principle was cited in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand[4] and in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd.[5]
[4] [2008] HCA 42 at [55]; (2008) 237 CLR 66.
[5] [2004] HCA 59; (2004) 220 CLR 472 at [27].
Both respondents submitted that there was no basis for the application of that statement of principle when construing the Elections Act and that it would be contrary to the decision in Crafter v Webster.[6]
[6] (1979) 23 SASR 61.
There are three reasons why I do not consider the statement of principle set out in Owners of Sin Kobe Maru to be applicable in the present case. First, the petitioner’s submission construes s 71(1)(i) in isolation and not in the context of the whole of the Elections Act and in particular s 67(5) and s 70. Secondly, and related to the first reason, the statutory provision under consideration in Owners of Sin Kobe Maru was a specific provision giving the Federal Court jurisdiction over the dispute. In contrast, the provision in s 71(1)(i) was of a very general nature. Thirdly, the submission of the petitioner is contrary to the Full Court in Crafter v Webster.[7]
[7] Ibid.
Turning to the first of these matters, s 70 imposes a strict requirement of 28 days to lodge a petition which sets out the facts relied upon to invalidate the election. There are good policy reasons why Parliament set a strict requirement, namely the need for an expeditious resolution of a dispute so as to disrupt the operations of the Council to the least extent possible. Other provisions evidence that intention. The Court is not bound by the rules of evidence[8] and must act according to good conscience and the substantial merits of the case without regard to legal technicalities,[9] and a decision of the Court is final and without appeal.[10] Further, s 70(3) expressly permits the time in which a respondent or the Council may file a reply to be extended: there is no similar provision in respect of the petition.
[8] Elections Act s 71(3).
[9] Ibid, s 71(4).
[10] Ibid s 71(5).
Therefore, the general power to amend in s 71(1)(i) must be read subject to the strict time limit imposed by s 71.
Secondly, the decision in Owners of Sin Kobe Maru does not mandate a different conclusion. That case involved a jurisdictional question: was the dispute in question a maritime claim within the meaning of s 4(2) of the Admiralty Act 1988 (Cth) such that the Federal Court had jurisdiction to determine the matter. Under that Act, a maritime claim could be either a general maritime claim or a proprietary maritime claim. The Court rejected arguments that the provision should be read down because of the statutory context or because of the practice and general principles of Admiralty matters. In this case, it is the statutory context which permits s 71(1)(i) to be read down to limit the general power of amendment to cases where no new facts are relied upon to invalidate the election.
Thirdly, Crafter v Webster involved consideration of almost identical provisions in the Electoral Act 1929 (SA) in relation to a petition to the Court of Disputed Returns in relation to the validity of an election for a member of the House of Assembly. The matter came on first before Mitchell J who referred two questions of law to the Full Court. The first of these involved the construction of the power of amendment: “Having regard to the limitation of time for lodging a petition contained in s 170(1)(e) of the Electoral Act [the equivalent of s 70(1)(d) of the Elections Act] have I a discretion to permit the amendment of the petition by adding the above mentioned paragraphs 21A, 21B and 21C”.
All parties agreed that as a matter of the strict application of stare decisis, this Court is not bound by the decision in Crafter v Webster, it being a decision under a different Act and not being a decision in the same hierarchy of courts (there being no appeal from a decision of this Court, acting as the Court of Disputed Returns). However, the parties also agreed that in practical terms, the decision of the Full Court, would be so highly persuasive and would guide this Court in construing the Elections Act, unless this Court can be persuaded that the decision in Crafter v Webster was distinguishable.
I agree that the effect of the decision in Crafter v Webster should be approached in the way set out in the preceding paragraph.
In Crafter v Webster, the Full Court held that s 170(1)( e) of the Electoral Act (the equivalent of s 70(1)(d) of the Elections Act) imposed a rigid time limit for the presentation of the petition.[11] Section 177(1)(ha) of the Electoral Act provided the same broad power of amendment and was in the same terms as s 71(1)(i) of the Elections Act. The Full Court referred to the decision in Cameron v Fysh[12] where Griffith CJ held that to allow the amendment would be practically extending the time for filing the petition. The Full Court also referred to Maude v Lowley[13] where the Court held that the introduction of an additional allegation would far exceed the jurisdiction of the court as it would change the petition from one offence as originally pleaded to two offences. The introduction of the additional allegation made it in effect a new petition.[14] Crafter v Webster was also a case involving the addition of new facts relied upon to invalidate the election.
[11] (1979) 23 SASR 61 at 63.
[12] (1904) 1 CLR 314; [1904] HCA 49.
[13] (1874) LR 9 CP 165.
[14] Ibid at 173.
Senior counsel for the petitioner sought to distinguish the decision in Crafter v Webster by submitting that the Electoral Act, which was the relevant legislation in that case, included section 171 which provided that:
No proceedings on the petition shall be proceeded with unless the requirements of section 170 of this Act are complied with.
There is no equivalent provision to s 171 in the Elections Act.
This submission of the petitioner that Crafter v Webster could be distinguished on that basis could only be accepted if either (a) the decision of the Full Court in fact relied upon s 171 and that section was central to its decision; or (b) the decision was made without s 171 being brought to its attention and the Court would have made a different decision if it had been aware of that section.
As to the first matter, it is inconceivable that the Full Court would have relied upon s 171 and yet made no reference to that section in its judgment.
Section 171 was introduced into the Electoral Act in 1969.[15] The Second Reading Speech does not provide any assistance as to why the Electoral Act was amended to include s 171. The Second Reading Speech[16] states that the amendments made at that time were introduced as a result of the Millicent electoral petition (In the matter of the petition of Martin Bruce Cameron; Cameron v Corcoran) and the judgment of the Court on that petition.[17] At that time, the Court of Disputed Returns was constituted by a Judge of the Supreme Court and four members of the House of Assembly and four members of the Legislative Council.[18] The judgment did not deal with issues relating to amendments or the time for the bringing of a petition. The amendments to the Electoral Act dealt with changing the composition of the Court and procedures of the Court.
[15] Electoral Act Amendment Act No 50 of 1969, s 46.
[16] House of Assembly 28 November 1968, p2868-2871.
[17] In the matter of the petition of Martin Bruce Cameron; Cameron v Corcoran; House of Assembly 28 May 1969 and 13 June 1968 (supplementary reasons).
[18] Electoral Act 1929 (SA), s 168.
Further, s 171 of the Electoral Act does not assist the petitioner. Section 171 imposes a jurisdictional threshold: if the petitioner does not meet that threshold, he or she is not permitted to proceed further with the petition. Therefore, if the petition does not specify any facts which could provide a justification for a declaration invalidating the election, then the petition does not meet that threshold test. That was the effect of the decision in Fels v Davies[19] where in respect of the Electoral Act 1907 (WA), Martin CJ held that a failure to comply with the requirements of the equivalent section, s 161, deprived the petition of validity and the Court of jurisdiction.[20] Section 171 has the same effect. However, s 171 does not provide any guidance as to when amendments might be permitted if that threshold is met.
[19] [2009] WASC 138.
[20] Ibid at [85].
A similar provision in the Commonwealth Electoral Act 1918 (Cth) was construed in the same way. In the Matter of a Petition by Helen Therese Berrill and of a Poll for the Electoral Division of Boothby SA[21] dealt with s 187 of the Commonwealth Act which was expressed in the same terms as s 171 of the Electoral Act (SA). Gibbs ACJ held that if the provisions of s 185 of the Commonwealth Act were not complied with (that is, the petition was not lodged within the specified period), a petition should not be allowed to proceed.
[21] (1978) 52 ALJR 359 at 360.
As to the second matter, for the reasons that I have set out in the preceding paragraph, s 171 does not assist the petitioner in its amendment application. If a similar provision was included in the Elections Act, such a provision would not provide any further reason why an amendment that was made outside of the 28 day period should be permitted.
For all of these reasons, upon the proper construction of the Elections Act:
(1)The power to amend a petition is found in s 71(1)(i) of the Act and not in the UCR or the Election Rules. The power is discretionary and to be exercised by the court on such grounds as it thinks just and sufficient;
(2)It follows that because the power resides in s 71(1), the rule in Weldon v Neal[22] (as incorporated into UCR 69.1) does not directly apply to require the Court to refuse an application to amend which introduces a new cause of action;
(3)The power to amend in s 71 does not permit an amendment to rely upon new facts to invalidate the election if the amendment is made after the 28 day period specified in s 70(1)(e). Section 70 imposes a rigid time limit for the lodging of a petition which would not be complied with if the petition was amended outside of the period alleging new facts;
(4)The power to amend in s 71 does permit an amendment which does not include new facts to invalidate the election. The power to grant the amendment must, pursuant to s 71(2), be exercised on such grounds that the Court in its discretion thinks just and sufficient.
[22] (1887) 19 QBD 394 at 395.
Do the amendments set out new facts relied on to invalidate the election?
Whether the amendments raise new facts relied on to invalidate the election raises the same or substantially the same question as to whether an amendment raises a new cause of action for the purposes of the application of the rule in Weldon v Neal and UCR 69.1. In Crafter v Webster,[23] the Full Court held that new facts which are sufficient of themselves to invalidate the election are in the nature of new causes of action.
[23] (1979) 23 SASR 61 at 64.
Bond J in Firstmac Ltd & Ors v Hunt & Hunt (a firm),[24] provides a helpful guide as to the relevant principles in determining whether a new cause of action has been added by an amendment. Bond J distilled the principles as follows:
[24] [2018] QSC 258.
First, a cause of action is the combination of the facts which are material to be established for the plaintiff to succeed.
Second, not every amendment which seeks to add to or alter that combination of facts should be regarded as an amendment which raises a new cause of action.
Third, if an amendment merely adds detail or particularity which it is reasonable to give to the defendant, then the amendment does not introduce a new cause of action. Similarly, if it was reasonably apparent from a party’s pleading that the party sought to raise a particular cause of action, an amendment which sought to remedy the fact that not all of the material facts which should have been pleaded for the plaintiff to succeed had already been pleaded, would not be regarded as a pleading which raised a “new” cause of action in this context. So, for example, an additional head of damage or a change to some aspect of damages might not be a new cause of action, but an alteration which completely changed the damages case such that it involved a different assessment of damages might be.
Fourth, locating the dividing line between (1) an amendment which introduces a new cause of action; and (2) an amendment which does not, may involve questions of degree and fine judgment which may not be straightforward and can turn on the level of abstraction at which a plaintiff’s case is described.
Fifth, in locating the dividing line, the pleading should not be analysed too critically, nor read pedantically, but broadly, resolving ambiguities or doubtful expressions in favour of the pleader, and allowing inferences to be drawn from incomplete facts. Nevertheless, the required analysis should be informed by an appreciation that the policies underlying the limitations statute may be inappropriately undermined by conducting the analysis at too high a level of generality.
Sixth…
Seventh…
Eighth, the adequacy of the original pleading will always be relevant, because a plaintiff cannot be permitted to avoid the operation of the rules by pleading a hopelessly general original pleading so as to make it easier subsequently to contend that proposed amendments are either not new or arise out of substantially the same (hopelessly general) facts. …
Finally, applications in these contexts usually involve the exercise of a discretion and factors of delay and prejudice will be relevant, consistent with the principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Doyle CJ in Aldridge v The Electoral Commissioner (SA) and Ors[25] referred to the decision in Sykes v Australian Electoral Commission[26] where Dawson J observed that the dividing line between what is essential and what amounts to particularity may be difficult to draw but what was clear was that the essential facts must be sufficient to justify a finding of invalidity.
[25] [2010] SASC 194 at [16].
[26] [1993] HCA 36; (1993) 115 ALR 645 at 649.
The Court, when assessing whether a new cause of action (under the UCR) or in this case, new facts are relied on to invalidate the election, undertakes an objective analysis of the original and amended pleadings. It is an evaluative judgment rather than the exercise of a discretion.
Applying these principles to the amendments in revision 1 and revision 2 of the Original Petition:
(1)It was accepted by the petitioner and in my view, it is clear that paragraph 5(a)(iii) raises new facts that are relied upon to invalidate the petition;
(2)Paragraphs 5(c)(ii) and 5(c)(iv) can be considered together. They, with paragraph 5(c)(v) set out the basis of the allegation that persons acted as an assistant to a person voting in contravention of s 61(1) of the Elections Act. That is, there were unopened voting packs in letterboxes at specified apartments, that persons acting on behalf of the second respondent took possession of the unopened voting packs and did so in the manner described in sub-paragraph 5(c)(v).
(3)The petitioner submitted that the identification of the further apartments did not amount to new facts which were relied on to invalidate the election. The respondents both submitted that the identification of the further apartment blocks in paragraph 5(c)(ii) and 5(c)(iv) did amount to new facts. The respondents submitted that it was appropriate that, given the sections are penal provisions to view each individual instance of the alleged illegal practice as a separate count or a separate charge rather than viewed as a whole across all 14 apartment buildings.
In this case, locating the dividing line between an amendment introducing new facts and amendments that do not, involves questions of degree and fine judgment which are not straightforward.
The initial pleading was vague insofar as it relied upon apartments blocks other than the four identified apartment blocks. However, I consider there is force in the submission of the respondents that the inclusion of the further apartment blocks in fact raises new facts or in effect, new charges. This is not a case where some overall assessment is made as to whether s 61(1) of the Elections Act was contravened: rather, each of the individual occasions when possession was taken of the voting packs constitutes an alleged contravention.
I therefore consider that the amendments to paragraphs 5(c) (ii) and 5(c)(iv) raise new facts relied upon to invalidate the election.
(4)The parties all accept that the amendments to paragraph 5(e), 5(f) and 5(g) raise new facts.
(5)There was initially a dispute about the amendments to paragraph 6 of the amended petition. However, paragraph 6 does not raise matters that are relied upon to invalidate the election, rather it pleads that the illegal practices that have been identified in paragraph 5 of the amended summons affects the results of the Election. Counsel for the petitioner confirmed that the matters in paragraph 6 were not pleaded as separate facts relied on to invalidate the election. A reading of the petition reaches the same conclusion. In these circumstances, the matters cannot ground relief and therefore cannot be new matters.
It follows from the above, that the amendments to paragraph [6] only are not new facts relied upon to invalidate the election but the further matters raised in the amendments to paragraph 5(a)(iii), 5(c)(ii), 5(c)(iv) and 5(e), 5(f) and 5(g) all raise new facts. For the same reasons, if I had found that UCR 69 applied, I would have found that those paragraphs introduced a new cause of action for the purposes of UCR 69.1. However, as I have found that UCR 69.1 does not apply, I have not proceeded to determine whether the new causes of action arises out of substantially the same facts as the original cause of action as that matter, on my construction of the Elections Act, does not arise for determination.
The amendments to paragraph 6 therefore require the Court to exercise its discretion in accordance with s 71(2) of the Act. No submission was made by the respondents that in the exercise of the discretion under s 71(2), leave should be refused. The amendments referred to matters that were discovered after the election including matters how the Commissioner had dealt with the ballots and also matters that resulted from further investigations. The amendments provide clarification and further particularisation of the matters pleaded. The amendments have not caused any disruption to the hearing of the petition and none of the discretionary matters referred to in Aon Risk Services Australia v Australian National University[27] would suggest that the amendments should not be permitted.
[27] (2009) 239 CLR 175; [2009] HCA 27.
In all of these circumstances, the amendments to paragraph 6 of revision 1 and revision 2 of the petition are permitted and leave is not revoked.
Application of the Limitation of Actions Act
The petitioner contends that if the amendments are not permitted because they seek to rely on new facts to invalidate the election that were not set out in a petition that was lodged with the Court within 28 days after the conclusion of the election, that period can be extended under the Limitation Act. The petitioner further contends that the Court, in the exercise of its discretion under s 48(1) of the Limitation Act, should extend that 28 day period until the time when the revised petitions were lodged.
The position of the respondents was that consequent upon the decision in Crafter v Webster, they accepted that there was a power under s 48(1) of the Limitation Act to extend the time in which to lodge an amendment of a petition under the Elections Act outside of the prescribed 28 day period. However, the respondents submitted that in the exercise of the Court’s discretion, the time period should not be extended.
Section 48 of the Limitation Act provides:
(1) Subject to this section, where an Act, regulation or by-law prescribes or limits the time for-
(a)instituting an action; or
(b)doing any act, or taking any step in an action; or
(c)…
a court may extend the time so prescribed or limited to such an extent and upon such terms (if any) as the justice may require.
(2) – (3a) …
(3b) In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to-
(a)the period of extension sought and in particular, whether the passage of time has prejudiced a fair trial; and
(b)the desirability of bringing litigation to an end within a reasonable period and this promoting a more certain basis for the calculation of insurance premiums; and
(c)the nature and extent of the plaintiff’s loss and the conduct of the parties generally; and
(d)any other relevant factor.
The first question, the application of the Limitation Act to the time period in which a petition must be lodged, was also considered by the Full Court in Crafter v Webster. It was the second of the questions of law that was referred to the Full Court by Mitchell J. As indicated previously, the decision of the Full Court, although not binding on me as a matter of stare decisis, is highly persuasive.
In Crafter v Webster,[28] the Full Court held that s 48 of the Limitation Act applied to a petition issued under the Electoral Act and could be used to extend the time to bring the petition or an amended petition. The Full Court formally answered the reserved question as follows: “Having regard to s 48 of the Limitations of Actions Act, the Court of Disputed Returns may exercise its discretion by permitting the amendment of the petition to add paragraphs 21A, 21B and 21C.” I accept that decision as correct and accordingly find that that the discretion under s 48(1) may be exercised to extend the time to lodge a petition under the Elections Act.
[28] (1979) 23 SASR 61 at 66-67.
The next matter to consider is the exercise of the discretion to grant an extension of time. Although the power to grant an extension of time is discretionary, the petitioner bears the onus of demonstrating that the justice of the matters requires an extension of time.[29]
[29] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 567; GE Dal Pont “Law of Limitation” 2nd ed, 2021, Lexis Nexis.
In Crafter v Webster (No 2),[30] Mitchell J, following the decision of the Full Court that s 48 of the Limitation Act applied, proceeded to consider the application to amend and the exercise of her discretion. Mitchell J held:[31]
Following that decision I heard argument upon the application to amend. It was clear that the facts upon which the allegations sought to be added were based were not brought to the knowledge of the petitioner until after the expiry of twenty-eight days from the return of the writ. It was not suggested by counsel for either respondent that his client would suffer any detriment by reason of the proposed amendments which he would not have suffered had the allegations contained in them been included in the Original Petition. I therefore allowed the amendments because I believed that justice to all parties would be best served by permitting them to be made (cf. per Barwick C.J. in General Motors-Holden's Ltd. v. Di Fazio; see also Cropper v. Smith Shoe Machinery Co. v. Cutlan; Associated Leisure Ltd. (Phonographic Equipment Co. Ltd.) v. Associated Newspapers Ltd.
(citations omitted)
[30] (1980) 23 SASR 321.
[31] Ibid at 326.
How the Court should go about the task of exercising its discretion and the factors that should be taken into account was considered by the Full Court in Ulowski v Miller.[32] Although the discretion being considered in that case was whether to dismiss a case for want of prosecution, the approach articulated by Bray CJ in Ulowski has been widely accepted by the Courts in other cases involving the exercise of a discretion.[33] In Ulowski, Bray CJ held:[34]
[The] five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.
Speaking for myself I would deprecate any attempt to lay down any rules which would bind Courts dealing with future applications of this kind to hold that any particular onus was laid on either party to prove any particular matter, or that once a particular matter had been proved by either party a certain result would automatically follow unless the other party proved something else, ...I think the discretion should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above.
(citations omitted)
[32] [1968] SASR 277.
[33] Beverage Bottlers (SA) (in liq) v Abode Enterprises Pty Ltd [2009] SASC 272 at [19]; Malavazos v Govcorp Finance Ltd [2022] SASC 44 at [85].
[34] [1968] SASR 277 at 280-281.
I accept also that the policy of the Elections Act is that the facts upon which the petitioner relies upon to invalidate the election will be set out in the original application. That matter is not determinative as the decision in Crafter v Webster (No 2) demonstrates. However, that policy remains an important matter when exercising the discretion. The Court of Appeal made that point in Hall v Carney (No 3)[35] in the context of its consideration as to whether pursuant to s 29 of the Trustee Act 1936 (SA), the Court should bar a claim where the Court had made an order setting a 6 month period for claims that had been notified to be prosecuted. The Court held:[36]
However, where further time is potentially in contemplation, the six-month period represents an important touchstone. The discretion must be exercised having regard to the underlying assumption by Parliament that most claims can and should be commenced within six months. Administrations are not to remain in stasis. There is a need for finality. Any further time will therefore be comparatively short. The exercise of discretion may be assisted, but not confined by, the five matters considered by Bray CJ in Ulowski v Miller:
It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.
(citations omitted)
[35] [2021] SASCA 37.
[36] Ibid.
Doyle CJ in Aldridge v The Electoral Commissioner of South Australia and others[37] made the same point in relation to the Electoral Act where after observing that the right to challenge an election was an important individual right and that there was a public interest in a proper challenge to the result of an election being dealt with on its merits held:
But for obvious and good reasons, a challenge to the result of an election must be made promptly, clearly, and must be supported by a statement of the facts relied on. 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.
[37] [2010] SASC 194 at [50]-[51]
In exercising its discretion whether to extend the time for lodging the petition, in my view the Court must consider, in addition to the five matters set out by Bray CJ in Ulowski , the policy behind the Elections Act including the 28 day limitation to which I have referred. These matters are not exhaustive, but the parties did not rely upon any other discretionary matter as a basis for granting or refusing the extension of time. It is implicit that the relevant matters must be considered in the context of the matter and how it is progressing.
I note that s 48(3b) of the Limitation Act sets out certain criteria which the Court should have regard to in determining whether it is just in all the circumstances to grant an extension of time. I consider that s 48(3b) applies to the exercise of the discretion under s 48(3) and not to the exercise of the discretion under s 48(1). I come to that conclusion for two reasons: first, the wording in s 48(3b) (“in all the circumstances just to grant an extension of time”) replicates exactly the wording in s 48(3); and secondly, s 48(3a) and s 48(3b) were introduced at the same time aspart of the IPP law reforms,[38] suggesting that they were dealing with the same matters: namely restricting extensions of time based on the discovery of new material facts for the purposes of s 48(3). However, I consider that the matters set out in s 48(3b) in fact come within the matters referred to by Bray CJ in Ulowski except for the reference to insurance premiums in sub-paragraph (b) which has no relevance in the present case.
[38] See Rundle v Salvation Army (South Australia Property Trust) [2007] NSWSC 443.
Addressing first the length of the delay, the matters set out in paragraph 5(a)(iii) and the additional matters set out in paragraph 5(c)(ii), 5(c)(iv) and (v) were included in revision 1 of the petition filed on 30 March 2023. In a normal civil case, such a delay is not excessive, but it does assume greater weight in the present case given that the period for lodging a petition is restricted. However, the length of the delay must also be considered in the context of the progress of the matter. In this regard, I observe that the amendment was made following the joinder of the second respondent and the lodging of the response by the second respondent on 23 February 2023 and before any of the parties had made discovery. No trial date had been set when revision 1 was made.
In the case of the amendments made by including paragraphs 5(e), 5 (f) and 5(g), these amendments were made on 26 June 2023 in revision 2 of the Original Petition. The observations that I made about the length of delay in the previous paragraph are applicable although a trial date had been set for 26 June 2023 which was vacated on 14 June 2023 for a variety of reasons including the further discovery by the Commissioner, the need for a supplementary report by the petitioner and the need for a responding report by the respondents. The parties had given discovery although the Commissioner filed a further supplementary list of documents on 8 June 2023. The delay is an important consideration.
As to the explanation for the delay, I consider that the evidence from Mr Hyde demonstrates that he did not know of the matters which are contained in revisions 1 and 2 of the Original Petition at the time that the Original Petition was lodged with the Court.
I accept his evidence as to the circumstances in which the amendments were made namely:
(1) as to paragraph 5(a)(iii), further investigations and speaking to further witnesses in about February 2023;
(2) as to paragraphs 5 (c)(ii), (iv), and (v) receipt of the Commissioner’s affidavit and further scrutiny of the electoral roll;
(3) as to paragraphs 5(e), 5(f) and 5 (g), discovery by the Commissioner of the application for enrolment forms and provision of the expert reports.
The matters set out in paragraphs 5(e)-(g) clearly could not be made prior to the Commissioner’s discovery of the enrolment forms and the comparison by an expert of the signatures on the enrolment form and the declaration in the voting pack. They clearly could not be made in the 28 day period required under s 70. The matters set out in paragraph 5(a)(iii) also could not reasonably be carried out in the 28 day period. The petitioner’s evidence was that in the 28 day period he had only heard rumours and innuendo and that it took some time for him to conduct further investigations and obtain further evidence that was necessary to properly make the allegation, given the reluctance of relevant witnesses to speak to him. The allegations made in paragraph 5(a)(iii) are serious and it was proper not to make them on the very flimsy facts known to the petitioner as at 16 December 2022.
The matters set out in paragraphs 5(c)(ii), (iv), and (v) are in a different category. The electoral roll was available to the petitioner during the course of the election and during the 28 day period following the declaration of the result of the election. The petitioner did not have any specific reason to include the matters contained in the paragraphs 5(c) during the 28 day period following the declaration of the elections. That was unlike the plea in the Original Petition concerning the four identified apartment blocks.
I accept the petitioner’s explanation for the delay and that it was in the circumstances either not possible or alternatively, in the case of the new matters alleged in paragraphs 5(c)(ii), (iv) and (v) there was a reasonable explanation for the petitioner not to have raised the new facts contained in the amendments within the initial 28 day period. The amendments made serious allegations which should not lightly be made.
As to the hardship to the petitioner if the extension of time is not granted, the amendments provide a possible basis, if they are sustained, for the making of a declaration that the election be declared void. The petitioner will therefore suffer prejudice if the extension of time is not granted. The amendments raise new matters and further bases for declaring the election to be invalid. They raise important matters concerning the integrity of the election result. There was no suggestion by the respondents that there was not a proper basis to make these allegations. The amendments do not suffer from lack of particularity.
Kimber J in In the Matter of Hyde (which was a decision made under the Surveillance Devices Act 2018 regarding authorising the provision and use of audio recordings) observed: [39]
I am satisfied the proper conduct of an election, including that proper processes are followed with respect to both how persons register to vote and how ballot papers are completed, is a matter in the public interest. As Griffith CJ observed in Bridge v Bowen, ‘the proper choice of representatives at an election is a matter of public interest’.
[39] [2023] SASC 146 at [55].
The respondents did not adduce any evidence that they would suffer particular prejudice if the amendments were made. I accept that the respondents and in particular the second respondent has an interest in having the petition resolved as soon as possible and that until it is resolved, there remains an uncertainty as to his position as a councillor. I accept that the respondents will spend some time and expense responding to the new matters and also in obtaining an expert report. I take these matters into account.
As to the conduct of the respondents, there is no conduct of the respondents that would weigh against them when considering the exercise of the discretion. The petition has not been able to be finalised and the trial concluded for a variety of reasons in which blame is not attributable to either party.
I take into account the objective of the Elections Act that the petition in which the facts relied upon to challenge the petition are set out should be commenced within 28 days and that the need for finality and certainty in relation to the election result mandates a strict time period.
I have taken all of the above matters into account. I have considered each of the amendments separately. In each case, I consider that the matters relied upon by the respondents and which favour a refusal of the application to extend time are outweighed by the considerations in favour of the exercise of the discretion to extend time to bring the amendments. I consider that it is in the interests of justice to permit the extension of time.
No submission was made by the respondents that if the extension of time was granted to lodge the petition, there was some other reason why the amendments should not be permitted. The discretionary matters that I have referred to favour the granting of permission. The amendments have not caused any disruption to the hearing of the petition and none of the discretionary matters referred to in Aon suggest that the amendments should not be permitted.
Conclusion
For the reasons that I have expressed, I consider that it is in the interests of justice that the time in which the petitioner may lodge a petition is extended to 26 June 2023. I order that the time for lodging a petition be extended to 26 June 2023.
I refuse the application to revoke leave to make the amendments set out in revision 1 and revision 2 of the Original Petition.
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