FEDERAL COURT OF AUSTRALIA
Kelly v Campbell [2002] FCA 1125
ELECTIONS – Court of Disputed Returns – motion to strike out election petition - petition disputing validity of New South Wales half Senate election – validity disputed on several grounds – commission of NSW Governor not invalid – Governor able to issue writ for election because of validity of Australia Act 1986 (Cth) and Australia Act 1986 (UK) – alleged breaches of Senators’ Election Act 1903 (NSW) in respect of dates fixed for certain events relevant to the running of the election – whether Court could be satisfied on the facts pleaded in the petition that any alleged contraventions would be likely to affect the result of the election
WORDS & PHRASES – “likely to be affected”
Commonwealth Electoral Act 1918 (Cth) ss 152, 155, 156, 352, 354, 355, 356, 358, 359, 360,
362, 363A, 364, 365, 368
Evidence Act 1995 (Cth) s 144
Australia Act 1986 (Cth)
Australia Act 1986 (UK)
Constitution Act 1902 (NSW), ss 5, 9A
Constitution Act 1867 (Qld), s 53
Australia Acts (Request) Act 1985 (Qld)
The Constitution s 9
Senators’ Election Act 1903 (NSW) s 3, 4B, 4CSue v Hill (1999) 199 CLR 462, referred to
Sykes v Australian Electoral Commission (1993) 115 ALR 645, followed
Cole v Lacey (1965) 112 CLR 45, cited
Nile v Wood (1988) 167 CLR 133, referred to
Crouch v Ozanne (1910) 12 CLR 539, considered
Webster v Deahm (1993) 116 ALR 223, considered
Sharples v Arnison [2001] QCA 518, followedNED KELLY v GEORGE CAMPBELL & ORS
N499 of 2002MADGWICK J
11 SEPTEMBER 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
SITTING AS THE COURT OF DISPUTED RETURNS
NEW SOUTH WALES DISTRICT REGISTRY
N499 of 2002
BETWEEN:
NED KELLY
PETITIONERAND:
GEORGE CAMPBELL
FIRST RESPONDENTHELEN COONAN
SECOND RESPONDENTKERRY NETTLE
THIRD RESPONDENTMARISE PAYNE
FOURTH RESPONDENTSANDY MacDONALD
FIFTH RESPONDENTURSULA STEPHENS
SIXTH RESPONDENTAUSTRALIAN ELECTORAL COMMISSION
SEVENTH RESPONDENT
JUDGE:
MADGWICK J
DATE OF ORDER:
11 SEPTEMBER 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The election petition filed on 15 January 2002 be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SITTING AS THE COURT OF DISPUTED RETURNS
NEW SOUTH WALES DISTRICT REGISTRY
N499 of 2002
BETWEEN:
NED KELLY
PETITIONERAND:
GEORGE CAMPBELL
FIRST RESPONDENTHELEN COONAN
SECOND RESPONDENTKERRY NETTLE
THIRD RESPONDENTMARISE PAYNE
FOURTH RESPONDENTSANDY MacDONALD
FIFTH RESPONDENTURSULA STEPHENS
SIXTH RESPONDENTAUSTRALIAN ELECTORAL COMMISSION
SEVENTH RESPONDENT
JUDGE:
MADGWICK J
DATE:
11 SEPTEMBER 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR:
Introduction
On 15 January 2002, Mr Ned Kelly filed in the High Court of Australia in the Brisbane Registry an election petition, purportedly made pursuant to Part XXII (ss 352-381) of the Commonwealth Electoral Act 1918 (Cth) (“CE Act”). It is convenient and appropriate to set out the substance of the petition in full. A…
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- AGLC
- Kelly v Campbell [2002] FCA 1125
- Case
- [2002] FCA 1125
- Decision Date
CaseChat Overview and Summary
The Court considered whether the petition set out facts that, if true, could cause the Court to invalidate the election. The Court noted that the petitioner's petition did not set out facts that would support a finding that the rejection of the petitioner's nomination was in contravention of the CE Act. The Court also noted that the CE Act does not have the effect that the giving of advice voluntarily by the Commission's officers, which advice is negligently given, amounts to a contravention of the CE Act. The Court found that the petitioner's petition did not set out sufficient facts to justify the Court's intervention in the election.
The Court dismissed the petitioner's appeal and upheld the decision of the Federal Court to dismiss the petition. The Court found that the petitioner's petition did not set out facts that, if true, could cause the Court to invalidate the election. The Court held that the petitioner's petition did not provide sufficient grounds for the Court to intervene in the election. The Court also noted that the petitioner's failure to make a valid nomination was not caused by any incorrect advice from officers of the Commission.
In conclusion, the High Court of Australia dismissed the petitioner's appeal and upheld the decision of the Federal Court to dismiss the petition. The Court found that the petitioner's petition did not set out sufficient facts to justify the Court's intervention in the election. The Court held that the petitioner's petition did not provide sufficient grounds for the Court to intervene in the election. The Court also noted that the petitioner's failure to make a valid nomination was not caused by any incorrect advice from officers of the Commission.
Orders
Orders of the court
1. The election petition filed on 15 January 2002 be dismissed.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MADGWICK J
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