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Kelly v Campbell

Kelly v Campbell

Case [2002] FCA 1125 11 September 2002

Jurisdiction

Standing

Statutory Interpretation

Legitimate Expectation

Proportionality

Constitutional Law

Election Law

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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, 4C
Sue 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, followed
NED KELLY v GEORGE CAMPBELL & ORS
N499 of 2002
MADGWICK 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
PETITIONER

AND:

GEORGE CAMPBELL
FIRST RESPONDENT

HELEN COONAN
SECOND RESPONDENT

KERRY NETTLE
THIRD RESPONDENT

MARISE PAYNE
FOURTH RESPONDENT

SANDY MacDONALD
FIFTH RESPONDENT

URSULA STEPHENS
SIXTH RESPONDENT

AUSTRALIAN 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
PETITIONER

AND:

GEORGE CAMPBELL
FIRST RESPONDENT

HELEN COONAN
SECOND RESPONDENT

KERRY NETTLE
THIRD RESPONDENT

MARISE PAYNE
FOURTH RESPONDENT

SANDY MacDONALD
FIFTH RESPONDENT

URSULA STEPHENS
SIXTH RESPONDENT

AUSTRALIAN 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelly v Campbell

Details

AGLC: Kelly v Campbell [2002] FCA 1125
Case: [2002] FCA 1125
Decision Date: 11 SEPTEMBER 2002

CaseChat Overview and Summary

In the case of Kelly v Campbell, the petitioner sought to challenge the validity of an election under the Commonwealth Electoral Act 1918. The petitioner's petition was dismissed by the Federal Court of Australia, and the petitioner appealed to the High Court of Australia. The central issue was whether the petition set out sufficient facts to justify the Court's intervention in the election. The petitioner argued that the Commission's advice was negligent and that this caused the rejection of his nomination. The respondent, on the other hand, argued that the petition did not provide sufficient facts to justify the Court's intervention.

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

The substance of the attacks made by the Commission on the petition are as follows:·Insofar as the petition asserts or raises any question of an illegal practice as defined, s 362(3) prohibits the Court from granting the principal relief sought unless the Court is satisfied that the result of the election was “likely to be affected”, yet there are no facts set out in the petition which, if established, could ground a conclusion that the result of the election was likely to be affected. ·While the Court is not limited to “illegal practices” (that is to say, contraventions of the CE Act) as bases for declaring an election void: see Sue v Hill (1999) 199 CLR 462, insofar as the petition relies on other matters, none of these matters constitutes a ground in law upon which the election in question can be declared void. ·The petition does not set out facts that would support a finding that the rejection of the petitioner’s nomination was in contravention of the CE Act nor does it set out facts which allege that his failure to make a valid nomination was caused by any incorrect advice from officers of the Commission. ·The CE Act does not have the effect, as assumed in the petition, that the giving of advice voluntarily by the Commission’s officers (that is, without any legislative requirement that such advice be given), which advice is negligently given, amounts to a contravention of the CE Act.Does the petition sufficiently set out facts? It is convenient to begin with the question whether, insofar as contraventions of the CE Act are raised by the petition, there are sufficient facts set out in it. This question is distinct from the question whether there has been sufficient particularisation of the specific matters relied on to justify the relief sought, as required by s 355(aa). A failure of the latter kind might be forgiven under s 358(2) if the grant of relief would not unreasonably prejudice the interest of another party to the petition (see s 358(3)). For the purpose of considering the Commission’s submission, every reasonable inference in the petitioner’s favour should be drawn from the facts which are actually set out in the petition. Likewise, I am prepared to assume that facts which truly are notoriously common knowledge and which would not need to be proved by evidence (even of the kind contemplated by s 144 of the Evidence Act 1995 (Cth)) may be assumed, when reading the petition. (Section 144 provides that proof is not required about knowledge that is not reasonably open to question and is either common knowledge where the proceeding is held (or generally) or can be verified by reference to a document, the authority of which cannot reasonably be questioned.) The question is not whether, in the actual exercise of any jurisdiction the Court may have, evidence might or might not need to be called to establish one or more of those facts. It is important to bear in mind for present purposes that the question is whether the petition sets out the facts which, if true, could cause the Court to invalidate the election. Nevertheless, I am prepared to assume, even at the jurisdictional stage, that the Court should not shut its eyes to matters which are genuinely notorious, even if not alleged in the petition, in a way which would bring the administration of justice into disrepute.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

Full text does not contain this section.

Citations

AGLC Citation

Kelly v Campbell [2002] FCA 1125

Most Recent Citation

Scott-Irving v Oakeshott [2009] FCA 487

Cases citing this decision · 6 of 6 shown

Planck & Planck
[2024] FedCFamC1F 341 Para 1

…s: see; Joosse v Australian Securities and Investment Commission (1998) 159 ALR 260, 263 [12]; Sharples v Arnison [2002] 2 Qd R 444; Kelly v Campbell [2002] FCA 1125; Gunter v Hollingworth [2002] FCA 943; Lohe v Gunter [2003] QSC 150; Clampett v Hill & Ors [2007] QCA 394; Sprlyan v Wyborn [2019] WASC 227.…
Garbett v Liu
[2019] FCAFC 241 Para 4

…FCR 438 at 448; Australian Electoral Commission v Lalara (1994) 53 FCR 156 at 165-166; Shaw v Wolf (1998) 83 FCR 113 at 134-135; Kelly v Campbell [2002] FCA 1125 at [20]-[21]; Green v Bradbury [2011] FCA 71; 191 FCR 417 at 428 [53]; Scott-Irving v Oakeshott [2009] FCA 487; 256 ALR 442 at 451 [40]. Whilst these cas…
Kosteska v Magistrate Manthey
[2013] QCA 105 Para 1

…Kosteska v Phillips .[15] [5][1993] QCA 119. [6][1993] QCA 118 and [1994] QCA 143. [7][1999] QCA 460. [8][2000] QCA 451. [9][2002] 2 Qd R 444. [10][2002] FCA 1125. [11][1995] QCA 376. [12](1985) 59 ALJR 561. [13](1985) 60 ALJR 302. [14][2007] QCA 394. [15][2011] QCA 266.…
Green v Bradbury
[2011] FCA 71 Para 24

…that there is a real chance that the result of the election would be different if the allegedly illegal practice had not occurred ( Kelly v Campbell [2002] FCA 1125 at [20]).…
Scott-Irving v Oakeshott
[2009] FCA 487 Para 25

…isation of the specific matters relied on to justify the relief sought, as required by s355(aa) ”: Kelly v Campbell [2002] FCA 1125 at [15] per Madgwick J.…
Re Australian Electoral Commission;
[2003] HCA 37 Para 8

…licant that the date fixed for the close of nominations was one day early and should have been 19 rather than 18 October 2001. [1] Kelly v Campbell [2002] FCA 1125.…

View all 6 citing cases →

Cases cited in this decision · 7 of 7 shown

Sharples v Arnison
[2001] QCA 518 Para 11

…complaint about the effect secured by the Queensland Request Act process lies in the realm of politics, not law. Sharples v Arnison [2001] QCA 518, a unanimous decision of the Queensland Court of Appeal, in litigation brought by Mr Kelly before he adopted his present name, makes this clear. Even if I thought this…
Sue v Hill
[1999] HCA 30 Para 14

…s not limited to “illegal practices” (that is to say, contraventions of the CE Act) as bases for declaring an election void: see Sue v Hill (1999) 199 CLR 462, insofar as the petition relies on other matters, none of these matters constitutes a ground in law upon which the election in question can be declared void. ·…
Webster v Deahm
[1993] HCA 38

…le 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, followed NED KELLY v GEORGE CAMPBELL & ORS N499 of 2002 MADGWICK J 11 SEPTEMBER 2002 SYDNEY IN THE FEDERAL COURT O…
Sykes v Australian Electoral Commission
[1993] HCA 36 Para 18

…al prerequisite, and that flows from the combined effect of ss 358(1) and (2), 355(a) and (aa) and 362(3). In Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 648-9, Dawson J said: “The statement of the facts relied on to invalidate the election which para (a) of s 355 requires cannot be amended if, as i…
Nile v Wood
[1988] HCA 30 Para 18

…en be required to try the petition even though on its face it could not succeed. His Honour followed Cole v Lacey (1965) 112 CLR 45 and Nile v Wood (1988) 167 CLR 133 in which Brennan, Deane and Toohey JJ said at 138: “The petition must set out facts which would justify relief under the Act…”.…
Cole v Lacey
[1965] HCA 11

…) s 3, 4B, 4C Sue 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…
Crouch v Ozanne
[1910] HCA 49 Para 20

…t if the allegedly illegal practice had not occurred. It is in that sense that I think the word “likely” should be understood. In Crouch v Ozanne (1910) 12 CLR 539 O’Connor J was considering whether the prevention of some of a candidate’s scrutineers “from exercising their duties in looking after Mr Crouch’s interes…

Legislation cited in this decision · 12

Commonwealth Electoral Act 1918 (Cth)
152, 155, 156, 352, 354, 355, 356, 358,... 15 mentions (from Para 1)
Senators’ Election Act 1903 (NSW)
3, 4B, 4C 4 mentions (from Para 15)
Constitution Act 1867 (Qld)
53 2 mentions (from Para 11)
Constitution Act 1902 (SA)
5, 9A 2 mentions
Evidence Act 1995 (Cth)
144 2 mentions (from Para 16)
Australia Act 1986 (Cth)
1 mention (from Para 8)
Australia Acts (Request) Act 1985 (TAS)
1 mention
Commonwealth of Australia Constitution Act 1900 c.12
1 mention
Constitution of Australia (Cth)
1 mention (from Para 12)
Interpretation Act 1987 (NSW)
1 mention (from Para 16)
Judiciary Act 1903 (Cth)
1 mention (from Para 1)
Sok v Minister for Immigration and Citizenship
1 mention

JUDGE:	MADGWICK J
DATE OF ORDER:	11 SEPTEMBER 2002
WHERE MADE:	SYDNEY

JUDGE:	MADGWICK J
DATE:	11 SEPTEMBER 2002
PLACE:	SYDNEY