Kelly, Ex parte - Re Madgwick

[2003] HCATrans 592

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S403 of 2002

In the matter of -

An application for Writs of Quo Warranto, Mandamus, Certiorari, Prohibition and other relief against RODNEY NEVILLE MADGWICK, FEDERAL COURT JUDGE

First Respondent

RIGHT REVEREND, DR PETER JOHN HOLLINGWORTH, GOVERNOR‑GENERAL OF AUSTRALIA

Second Respondent

PROFESSOR MARIE ROSLYN BASHIR, GOVERNOR FOR THE STATE OF NEW SOUTH WALES

Third Respondent

GEORGE CAMPBELL, SENATOR FOR NEW SOUTH WALES

Fourth Respondent

HELEN COONAN, SENATOR FOR NEW SOUTH WALES

Fifth Respondent

KERRY NETTLE, SENATOR FOR NEW SOUTH WALES

Sixth Respondent

MARISE PAYNE, SENATOR FOR NEW SOUTH WALES

Seventh Respondent

SANDY MacDONALD, SENATOR FOR NEW SOUTH WALES

Eighth Respondent

URSULA STEPHENS, SENATOR FOR NEW SOUTH WALES

Ninth Respondent

ANDREW KINGSLEY BECKER, AUSTRALIAN ELECTORAL COMMISSIONER

Tenth Respondent

DAVID JOHN FARRELL, AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF NEW SOUTH WALES

Eleventh Respondent

WILLIAM PETER SHEPARD, AUSTRALIAN ELECTORAL OFFICER FOR THE TERRITORY OF THE NORTHERN TERRITORY

Twelfth Respondent

JEFFREY WILLIAM HOWARTH, AUSTRALIAN ELECTORAL OFFICER FOR THE AUSTRALIAN CAPITAL TERRITORY

Thirteenth Respondent

AUSTRALIAN ELECTORAL COMMISSION

Fourteenth Respondent

Ex parte –

NED KELLY

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 25 FEBRUARY 2003 AT 9.31 AM

Copyright in the High Court of Australia

__________________

MR N. KELLY appeared in person.

HIS HONOUR:   I have a certificate from the Deputy Registrar stating that he has been informed by the solicitor for the respondent, the Honourable Justice Madgwick, that the respondent will submit to any order of the Court save as to costs.  Yes, Ms Henderson, what is your position in this?

MS R.M. HENDERSON:   Your Honour, I appear for any officers of the Australian Electoral Commission who might properly be before your Honour as respondents.  We have been served with some late amended pleadings which foreshadow that officers of the Commission may be joined to this matter as respondents.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes.  Well, before Justice Madgwick the Australian Electoral Commission was the seventh respondent, is that right?

MS HENDERSON:   That is correct, your Honour.

HIS HONOUR:   Yes.  Whatever happens about the other joinders, I think the Australian Electoral Commission should certainly be joined as second respondent.  So I make that order.

MS HENDERSON:   If your Honour pleases.

HIS HONOUR:   Now, what will then follow procedurally upon the joinder of the Electoral Commission?

MS HENDERSON:   Your Honour, we would ask to be heard in relation to any arguable case which the applicant might offer today to your Honour.

HIS HONOUR:   Right. 

MS HENDERSON:   At the moment we are unclear as to exactly which pleading is properly before your Honour.  We now have three.

HIS HONOUR:   Yes.  Tell me, Mr Kelly, what is the current form of draft order nisi?

MR KELLY:   There is a filed draft order nisi which I understand was done on or about 11 November 2002.

HIS HONOUR:   Yes, that is right.

MR KELLY:   There was an attempt through an agent to file a further draft order nisi approximately Thursday of last week but the Registry, as I understand it, would not accept that and suggested leave be sought before your Honour this morning.

HIS HONOUR:   Yes.

MR KELLY:   I have since amended that.

HIS HONOUR:   That is what I am worried about.

MR KELLY:   Yes.  Well, I have only taken away parties.  As I have indicated to Ms Henderson, I have actually reduced the quantum, if you like, of the parties.

HIS HONOUR:   Yes.  If I could say this to you, Mr Kelly, I think the parties – because this is an application under section 75(v), I think the parties that constitute the record should be the parties that are in the record in the Federal Court and no one else at the moment.

MR KELLY:   I would like to speak to that matter appropriately.

HIS HONOUR:   Well, speak now.

MR KELLY:   Your Honour, I received a letter on ‑ ‑ ‑

HIS HONOUR:   In other words, if I can refresh – do you have Justice Madgwick’s judgment?

MR KELLY:   I do, yes.

HIS HONOUR:   Just take a moment to find it.

MR KELLY:   I have an Internet version copy, your Honour.  I am happy to hand that up.

HIS HONOUR:   No, that is all right, I have one.  I just wanted to make sure you have one.

MR KELLY:   Yes.

HIS HONOUR:   Now, you see the front page?

MS HENDERSON:   Your Honour, it might be of assistance if I give one of the more official copies to Mr Kelly.

HIS HONOUR:   Yes, Ms Henderson has an official version.

MR KELLY:   Thank you.

HIS HONOUR:   Now, there are seven respondents named there, do you see that?

MR KELLY:   The Australian Electoral Commission, your Honour?

HIS HONOUR:   Is No 7, yes, and there are the other respondents, one to six.  Now, they are the parties on the record in the Federal Court proceeding which you seek to set aside by certiorari with other remedies.  That seems to me, given the nature of the case here, the constitution of the record here without anybody else at the moment.  You have the Governor‑General and the Prime Minister and all sorts of people.

MR KELLY:   Yes.  When I sat down to look again at redrafting the order nisi, as was suggested by in the letter on 14 November to me by the Deputy Registrar, Elisa Harris – I think that is the Canberra Registry – it seemed to me necessary to add the parties that I did in the manner that I have for the orders, the constitutional writs, that I was seeking.

HIS HONOUR:   Yes.  Well, I do not think it is.

MR KELLY:   Well, I am not the High Court.  I perceived it from my end.

HIS HONOUR:   Yes, I understand that, but we have to try and get it in some procedural order before I get to the substance of it.

MR KELLY:   Yes.

HIS HONOUR:   We will not get to the substance of it today.  What I am going to try and do today is to get it in some procedural order and then if Ms Henderson for the Electoral Commission, who was the active opponent below, I think ‑ ‑ ‑

MS HENDERSON:   That is correct, your Honour.

HIS HONOUR:   You were the active opponent in the Federal Court, were you not?

MS HENDERSON:   Yes, your Honour.  I think the various senators communicated with the court that they would not be appearing.

HIS HONOUR:   That is right.  I saw that.  Now, if she wants to put on some argument against you, I will give her the opportunity to do that in writing and then it can come back for a hearing.  You have had an opportunity to consider it then.  That is the best thing to do.  Now, you mentioned you had made some alterations to the draft order nisi.

MR KELLY:   Yes, your Honour.  As I have indicated to Ms Henderson, I did reduce the parties from the original second draft ‑ ‑ ‑

HIS HONOUR:   Yes.  Do you have the draft there?

MR KELLY:   I have served a copy on Ms Henderson and here is a copy for the Court.

HIS HONOUR:   Thank you.

MR KELLY:   Substantially, your Honour, in terms of the grounds, there is only a minor sub‑ground in relation to the first respondent that has really changed.  The wording I have tried to clean up.  It was not easy for me to plead it.

HIS HONOUR:   Yes.  Just give me a minute to read it.  Now, you were seeking election as a New South Wales senator, were you not?

MR KELLY:   Yes, your Honour.

HIS HONOUR:   Yes, thank you.  It is probably most practical, I think, to add the Australian Electoral Commission as the proposed fourteenth respondent, otherwise the numbers get all too complicated.

MS HENDERSON:   If your Honour please.

HIS HONOUR:   I think I should allow the amended draft order nisi to be filed in Court adding, as I have indicated, the Australian Electoral Commission as the fourteenth respondent.  Now, what will your procedural step then be, Ms Henderson?  You will be seeking some order dismissing the application?

MS HENDERSON:   Yes, your Honour.  I presume though first the prosecutor will tell your Honour what arguable case he says he has and we would like to have the opportunity to deal with whatever argument he is actually advancing.

HIS HONOUR:   All right, yes.  Are you prepared to go first?  I am going to order written submissions, you see.

MR KELLY:   Yes, your Honour.

HIS HONOUR:   All right.  How long do you need, do you think?  Two weeks?

MR KELLY:   Whatever time – yes, two weeks would be handy.

HIS HONOUR:   Yes.  I do not want to make it too short.

MR KELLY:   No.  Two weeks is ‑ ‑ ‑

HIS HONOUR:   Experience suggests if you make it too short, it does not work.  Two weeks?

MR KELLY:   Two weeks.

HIS HONOUR:   All right.  And you, Ms Henderson, two weeks?

MS HENDERSON:   Your Honour, may we have a similar period?

HIS HONOUR:   Yes, all right.  I will dispense with service upon the other collection of respondents in the meantime so they do not get entangled unnecessarily and you do not have to run around trying to find them.  Is it the parties’ wish that it come back to me in Sydney or Canberra?  Do you have any preference, Ms Henderson?

MS HENDERSON:   I would prefer Sydney of course, your Honour.

HIS HONOUR:   Yes.  What about you, Mr Kelly?

MR KELLY:   Well, your Honour, it is the same plane flight, more or less.

HIS HONOUR:   Yes.  Well, where are you coming from?

MR KELLY:   I come from the border of New South Wales and Queensland out of Coolangatta ‑ ‑ ‑

HIS HONOUR:   Yes, Sydney is probably better for you, I would think.

MR KELLY:   Yes.

HIS HONOUR:   This is what I would propose:

1.        Direct that the Australian Electoral Commission be added as the fourteenth respondent to the amended draft order nisi filed in Court today –

and we had better make sure we are all talking about the same document.

MS HENDERSON:   Your Honour, my copy is headed “AMENDED DRAFT ORDER NISI”, so I presume it is the same one.

HIS HONOUR:   That is it.  Yes, “AMENDED DRAFT ORDER NISI”, that is it – being a document of 14 pages.  So I will start again:

1.        Direct that the Australian Electoral Commission be added as the fourteenth respondent to the amended draft order nisi filed in Court today;

2.        Grant leave to the Australian Electoral Commission insofar as it is necessary to appear on the taking of the interlocutory steps herein;

3.        Direct that the applicant file and serve on or before 14 March 2003 –

it is a bit more than 14 days –

his outline of submissions;

4.        Direct that the fourteenth respondent file and serve its written submissions on or before 1 April 2003;

5.        That the applicant file his reply to the fourteenth respondent’s written submissions on or before 15 April 2003;

6.        Dispense with service upon the other respondents pending the outcome of any application by the fourteenth respondent;

7.        Set the matter down before me in Sydney on Wednesday, 23 April 2003, at 9.30 am;

8.        Costs of today be costs in the matter; and

9.        Certify for counsel.

Now, in preparing your written submissions, Mr Kelly, try and keep them as succinct as you can ‑ ‑ ‑

MR KELLY:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ so that they can be read with an eye that immediately comprehends where it is going.

MR KELLY:   Yes, your Honour.  Could I just ask two questions?

HIS HONOUR:   Yes.

MR KELLY:   Would it be possible in the last order, that is the order for the hearing on 23 April, to make the time 10.00?  It is just that 9.30 is very difficult.  The first flight out is 6.00.

HIS HONOUR:   Yes.  I will say 10.15.

MR KELLY:   Thank you.

HIS HONOUR:   Just pardon me.  So order 6 I will replace 9.30 with 10.15 am, yes.

MR KELLY:   Thank you, your Honour.  Is there any need for 75B notices at this stage?

HIS HONOUR:   What do you think, Ms Henderson?

MS HENDERSON:   Your Honour, I think it might be premature at this stage.

HIS HONOUR:   That is my feeling too.  We will look at it again, if we have to, on 23 April, I think.  Is there anything else?

MS HENDERSON:   Nothing further, your Honour.

HIS HONOUR:   All right.  There is no need for me to read through that again, is there?  You have notes of it.  It will be on the transcript anyway.  The Court will now adjourn.

AT 10.01 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 23 APRIL 2003