Kelly v Australian Electoral Commission

[2001] HCATrans 429

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S250 of 2001

B e t w e e n -

NED KELLY

Plaintiff

and

AUSTRALIAN ELECTORAL COMMISSION

Respondent

Application for expedition

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 31 OCTOBER 2001, AT 10.16 AM

Copyright in the High Court of Australia

MR N. KELLY appeared in person.

MS R.M. HENDERSON:   If the Court pleases, I appear for the respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Kelly.

MR KELLY:   Your Honour, this is an application for an expedited hearing in relation to a writ and a statement of claim that has been filed in the Court.  I have the benefit of the respondent’s outline to the Court and essentially they are saying to the Court there are two issues that have been raised.  I could define the first issue as one of nomination, that being my nomination and my fellow independent, Mr Davy.  The second issue, Chief Justice, is the issue of the constitutional validity of section 169A(3).

HIS HONOUR:   Just excuse me for a moment.

MR KELLY:   Sure.

HIS HONOUR:   Yes.

MR KELLY:   The third matter, Chief Justice, is also the question of the constitutionality of a further subsection within the Act and, just bear with me, that section would be 169(4).  I mistakenly put the incorrect section in my statement of claim and I will be seeking leave to amend that.  But that is the nub of the three matters that the application is concerned about.  The respondent has indicated that they are not opposed to having the matter heard on an expedited basis, although they did submit to the Court that it ought to be transferred, as I understand it, under section 44 of the Judiciary Act to the Federal Court for hearing.  I opposed such a move, Chief Justice, on the basis that I believe that there are constitutional issues that fall squarely within the Court’s original jurisdiction.

HIS HONOUR:   I am afraid before we get to any constitutional issues there are some factual issues about what actually went on, although the precise scope of those issues is not clear at the moment because your statement of claim is defective in form.  Your statement of claim in paragraph 5 refers to “The actions” of certain people, but it does not say what the relevant actions are.  If you contend that there were acts or omissions on the part of officers of the Australian Electoral Commission that constitute a contravention of the statute, as you appear to say in paragraph 5, then you are going to have to state what the acts or omissions upon which you rely are.

Now, in an affidavit that you have filed there is some indication of the sorts of things that you might want to allege, but they are going to have to be alleged in a statement of claim.

MR KELLY:   Yes, I accept that.

HIS HONOUR:   And when they are alleged in a statement of claim, we will then need to know, by reference to the defence, what dispute there is about the allegations that you make.

MR KELLY:   I accept that.

HIS HONOUR:   One of the reasons that I would be in difficulty ordering an expedited hearing today is that the matter is not ready for hearing.  The statement of claim is not in a proper form and we do not know the area of factual dispute between you and the defendant.  Have you noticed what appears in paragraph 11 of the outline of the defendant’s submissions, particularly in the last three lines of paragraph 11?

MR KELLY:   Yes, I did, Chief Justice, although I received those after midday yesterday and I was not in a position to do much about them before this morning, but I have taken cognisance of those, yes.

HIS HONOUR:   Well, do you contend that you have “received incorrect advice from one or more officers of the Australian Electoral Commission”?

MR KELLY:   That will be one of the grounds, Chief Justice, yes.

HIS HONOUR:   Then whatever court deals with this matter will need to know what exactly your contentions are in that regard and what the officers of the Australian Electoral Commission might have to say about your contentions.  They might disagree with what you say happened.

MR KELLY:   It appears to be they may.

HIS HONOUR:   Yes.  Is there anything else you want to say?

MR KELLY:   I accept what is said.  There is no question that the statement of claim is deficient and I would seek a ‑ ‑ ‑

HIS HONOUR:   Does that not tend to suggest that the most likely way to get a reasonably early hearing of this matter is for it to be remitted to the Federal Court?

MR KELLY:   Well, I cannot comment on that, Chief Justice.  I am not really sure of the procedures of the Federal Court, but I applied to the High

Court because where it is a matter of constitutional interpretation I understood it to be solely within the jurisdiction of this Court.  If I am incorrect in that, I accept that, but that was the reason for the application to this Court.

HIS HONOUR:   Is there anything else you want to say?

MR KELLY:   Not unless I can assist your Honour.

HIS HONOUR:   Ms Henderson, what do you say?

MS HENDERSON:    Your Honour, I have nothing to add to the matters which are in the outline.

HIS HONOUR:   So far as you are aware, is there any reason why the Federal Court would not have jurisdiction to decide all the matters in issue in this case?

MS HENDERSON:    To my knowledge, your Honour, there would be no barrier to them doing so.

HIS HONOUR:   As I indicated to Mr Kelly, the matter that weighs heavily with me at the moment is that there may well be an area of factual dispute as to what actually went on between Mr Kelly and others and officers of the Electoral Commission.

MS HENDERSON:    With respect, your Honour is quite right in apprehending that would be the case.  I understand Mr Kelly had telephone contact with a number of personnel of the Commission at various stages close to the events on 18 October and it may be that there were things said to him at some stage in any of those conversations which will become relevant to the court’s consideration of the matter.

HIS HONOUR:   Thank you.

MS HENDERSON:    If your Honour pleases.

HIS HONOUR:   Mr Kelly, subject to anything else you want to put me, I am minded at the moment to take the course suggested by the Commission and that is to remit the matter to the Federal Court.

MR KELLY:   Yes.  Well, it appears then no question there will be factual dispute.  I mean, I did think initially that there perhaps would not be but it is quite clear perhaps there now will be.  So that is a barrier, I suppose, in terms of this Court, I suppose, hearing any other constitutional issue.  I

accept that as well.  I did originally think there was not going to be a factual dispute, but these things have a life of their own.

HIS HONOUR:   It appears from what has been put to me by way of submission, orally and in writing, by the plaintiff and the defendant that there may well be areas of factual dispute in this case.  However, as I pointed out to the plaintiff, without expressing any final view on the matter, the statement of claim filed appears to be defective in form, at least insofar as paragraph 5 of the statement of claim refers, without any particularity, to actions on the part of officers of the defendant which are said to involve contraventions of legislation and otherwise to involve denial of rights claimed by the plaintiff.

As appears from paragraph 11 of the outline of the defendant’s submissions, when further particularity of the allegations made by the plaintiff concerning acts or omissions on the part of officers of the defendant is produced, it may well be that the defendant will want to contradict those allegations and lead evidence in rebuttal of them.  I might add in that respect that some of the evidence contained in the affidavit filed by the plaintiff appears to be hearsay in form and that is a matter that might need to be given further consideration when it comes to proving the facts on which the plaintiff relies.  In that respect, I have in mind, for example, paragraph 21 of the affidavit.

What I have before me at the moment is an application for an expedited hearing of the plaintiff’s action.  The action is not ready for hearing.  As I indicated, the statement of claim is not in proper form, no defence has been filed and there well may be evidence that needs to be prepared on both sides of the case.  However, counsel for the defendant has submitted that the case appears to raise no issue which is not capable of resolution in the Federal Court and that, partly because of the potential area of factual dispute that may arise, the best way to deal with the matter would be to remit the whole matter to the Federal Court under section 44 of the Judiciary Act.

Having heard what both sides have had to say on the subject, I think that that is the most appropriate course to take and I make an order remitting the action to the Federal Court of Australia.  The costs of today’s proceedings will be a matter to be dealt with by the Federal Court in its discretion in due course.

Is there anything further?

MS HENDERSON:   If your Honour pleases, we have taken the step of preparing some draft orders.  There was one further order that we seek in that document.

HIS HONOUR:   Have you shown those to Mr Kelly?

MS HENDERSON:    Yes, your Honour.

HIS HONOUR:   Have you any objection to any of those orders, Mr Kelly?

MR KELLY:    Not in the light of your order, Chief Justice.

HIS HONOUR:   Thank you.  I make an order formally in terms of the document initialed by me, dated with today’s date and placed with the papers.

MS HENDERSON:    If the Court pleases.

HIS HONOUR:   Call the next matter, please.

AT 10.31 AM THE MATTER WAS CONCLUDED