Kapterian v Boele & Anor

[2025] HCATrans 54

[2025] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Sydney  No S100 of 2025

B e t w e e n -

GISELE KAPTERIAN

Petitioner

and

NICOLETTE BOELE

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 8 AUGUST 2025, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR D.R. LUXTON appears for the petitioner.  (instructed by Buchanan Rees Dispute Lawyers)

MS R.C.A. HIGGINS, SC appears with MR L.G. MORETTI for the first respondent.  (instructed by Ripple Legal Pty Ltd)

MR B.K. LIM appears with MS H.D. RYAN for the second respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I have been provided with proposed consent orders.  My understanding is that there is a slight issue about the scope of order 1 and that there is no issue between the parties as to the terms of orders 2, 3 and 4.  Does that remain the position, Mr Luxton?

MR LUXTON:   Your Honour, that is right.  Subject, of course, to the observation that the relevant registry for the purposes of order 2 and 3 will, of course, be determined by the order that is to be made under the heading of order 1.

HIS HONOUR:   Yes.  Is there an issue about the registry?

MR LUXTON:   Only that if the matter were to remain in the High Court, of course, I do not think we would be producing the ballot papers in the Federal Court.

HIS HONOUR:   But the issue between the parties as to order 1, as I understand it, is not as to whether the matter remains in the High Court or goes to the Federal Court but as to the terms and any remitter to the Federal Court, whether it be confined to making findings of fact or whether it would extend to making ultimate orders.  Is that right?

MR LUXTON:   I think that is right.  I think that is right, your Honour.

HIS HONOUR:   And, Mr Luxton, am I correct – perhaps this is a question for counsel for the respondents.  The contingency or possibility that the respondents raise as a reason for possibly keeping to this Court the making of any final orders would potentially arise only in circumstances where the ultimate count came down to one or two votes.

MS HIGGINS:   That is correct, your Honour.

HIS HONOUR:   Thank you, Ms Higgins.  Mr Lim, is that correct from your perspective?

MR LIM:   Yes, it is.

HIS HONOUR:   Yes.  All right.  Well, thank you.  I have read the submissions of the parties, and is there anything you wish to add to those submissions, Ms Higgins?

MS HIGGINS:   No, your Honour.

HIS HONOUR:   Mr Lim?

MR LIM:   No, thank you, your Honour.

HIS HONOUR:   And Mr Luxton?

MR LUXTON:   No, thank you, your Honour.

HIS HONOUR: Thank you. Before me for the making of procedural orders is an election petition filed in the original jurisdiction conferred on the High Court as the Court of Disputed Returns by section 354 of the Commonwealth Electoral Act.  The petition concerns the recent election to the House of Representatives for the electoral division Bradfield.  Together with the first respondent, who was returned as elected, the petitioner was one of eight candidates for election.  The second respondent is the Australian Electoral Commission.

The petition has been published and advertised. No other person has filed a notice of appearance. The parties to the proceeding on the petition are therefore confined to the petitioner and the first and second respondents. The proceeding on the petition has, in those circumstances, been brought before me on the application of the petitioner, as is required by Part 32 of the High Court Rules 2004.

The only question now arising for my decision is as to the procedural orders that should be made for the just and efficient resolution of the justiciable controversy raised by the petition.  The parties are agreed that the petition should be referred to the Federal Court of Australia in its New South Wales Registry for trial.

The only issue between them is a slight issue.  It is whether the referral should be limited to the hearing and determination of questions of fact or whether it should extend to encompass the question of the ultimate orders to be made in the disposition of the proceeding.  The petitioner seeks the latter course; the respondents neither consent nor oppose that course.  They do, however, point to the potential for a novel issue to arise in relation to the ultimate orders to be made in the disposition of the proceeding.

The trial will primarily be concerned with the formality of in excess of 150 disputed ballot papers.  The issue as to the ultimate orders to be made, to which the respondents point, has the potential to arise only if the outcome of the election were to be found – on an examination of those ballot papers – to turn on two or fewer votes.

Having regard to the remoteness of that potentiality, and in light of the requirement of section 363A of the Commonwealth Electoral Act – that the disposition of the proceeding occur as quickly as is reasonable in the circumstances – I have come to the conclusion that referral should not be limited.  The issue to which the respondents point, if it arises, can be dealt with by the Federal Court.  In those circumstances, the orders that I make are as follows:

1.The petition be referred for trial to the New South Wales Registry of the Federal Court of Australia.

2.Within 14 days of the date of this order, the second respondent file, in the New South Wales Registry of the Federal Court of Australia, and serve an affidavit deposing to the facts alleged in paragraphs 1 to 8 of the statement of facts contained in the petitioner’s election petition.

3.Within 14 days of the date of this order, the second respondent produce to the New South Wales Registry of the Federal Court of Australia all those ballot papers at the election of the Member of the House of Representatives of the electoral division of Bradfield held on 3 May 2025 that were reserved for the decision of the Australian Electoral Officer for New South Wales in accordance with section 281 of the Commonwealth Electoral Act 1918 (Cth).

I note, in that respect, that the second respondent is to confer with the petitioner and the first respondent and the New South Wales Registry of the Federal Court of Australia, regarding arrangements for the secure transfer of custody of the reserved ballot papers.

4.The costs of the proceeding on the petition in the High Court of Australia be costs of the proceeding in the Federal Court of Australia and be reserved for the determination of the Federal Court of Australia.

Is there anything else, Mr Luxton?

MR LUXTON:   Nothing, your Honour.  Thank you.

HIS HONOUR:   Ms Higgins?  Ms Higgins, is there anything else to be dealt with this morning?

MS HIGGINS:   Nothing, your Honour.

HIS HONOUR:   And Mr Lim?

MR LIM:   No, your Honour.

HIS HONOUR:   Very well.  The Court will adjourn.

AT 9.39 AM THE MATTER WAS CONCLUDED