Kennedy v Palmer - [1907] HCA 21

PETITIONER; PALMER

RESPONDENT.

ECHUCA ELECTION PETITION. Election-Ballot-paper-Necessity for placing cross within square-Marks enabling

voter to be identified-Commonwealth Electoral Act 1902 (No. 19 of 1902), secs. 151, 158 (d).

The decision of the High Court in Chanter v. Blackwood, (No. 1), 1 C.L.R., 39, viz., that the cross indicating a voter's preference must be placed within the square printed on a ballot-paper opposite to a candidate's name is direc- tory only and not mandatory, is not affected by the Commonwealth Electoral

In the absence of any evidence of an improper practice or plan, the mere fact that there is upon a ballot-paper a mark which may by possibility enable some one to identify the voter, does not necessarily invalidate the vote.

Statement of questions to be determined before acceptance of a ballot-paper as good.

4 CLR 1482

OF HEARING of election petition.

The following statement of the facts is taken from the judg. ment of Barton J. -

"This was a petition arising out of an election for the House of Representatives for the Electoral Division of Echuca. The petitioner claimed:

((a) A recount of all the ballot-papers.

(b) A declaration that the respondent, who had been declared by the Returning Officer to have been duly elected, had not been

SO elected.

"(c) A declaration that the petitioner had been duly elected or, alternatively,

"(d) A declaration that the election was absolutely void. " A number of grounds were alleged in the petition, but some of them were withdrawn upon the giving of particulars. A recount having been ordered by consent the further hearing was adjourned until its completion. On the adjourned hearing it was agreed between the parties that the matter should be decided upon the recount and the questions arising out of it.

Upon the poll it was declared that the petitioner had received 7,624 votes, that the respondent had received 7,656 votes, and that 867 votes had been rejected as informal.

"The recount was conducted by the Deputy Registrar and has

SO far resulted thus: -

Petitioner, 7602. Respondent, 7573. But 650 votes were rejected as informal with the consent of both parties, and 312 were reserved for the decision of the Court."

Hassett for the petitioner. Sir John Quick for the respondent.

Cur. adv. vult.

BARTON J. [After reading the facts as before set out con- tinued]:-At the beginning, therefore, of my inquiry into the reserved votes the petitioner held a lead of 29 votes.

The reserved votes were distributed into 38 parcels. Of these there were 13, viz, Nos. 1 to 5 inclusive, Nos. 12 to 15 inclusive,

4 CLR 1483

Nos. 19, 20, 21, and 38, in which the votes were challenged by H. reason of the alleged mistakes of officers. I put these aside for the present, and I need not now mention the cases in which votes reserved by the Deputy Registrar for whatever cause have since been admitted to be good. I proceed to consider the papers on…

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 Kennedy v Palmer

Details

AGLC: Kennedy v Palmer [1907] HCA 21
Case: [1907] HCA 21
Decision Date: 10 June 1907

CaseChat Overview and Summary

This case concerned an election petition filed in the High Court of Australia following an election for the House of Representatives in the Electoral Division of Echuca. The petitioner sought a recount of ballot papers, a declaration that the respondent, who had been declared the winner, was not duly elected, and alternatively, a declaration that the petitioner was duly elected or that the election was void. Following a recount, a number of ballot papers were reserved for the Court's decision.

The Court was required to determine two primary legal issues. Firstly, whether a ballot paper was informal if the cross indicating a voter's preference was not placed within the designated square, and secondly, whether a ballot paper was invalidated by marks or writings that might, by possibility, enable a voter to be identified, even in the absence of evidence of an improper practice or plan. The Court also considered the impact of official errors on the validity of ballot papers.

Barton J. applied the principle established in *Chanter v. Blackwood* (No. 1) that the requirement to place a cross within the square on a ballot paper is directory, not mandatory, and that a vote should be counted if the voter's preference is clearly manifested. Regarding identification marks, the Court adopted a liberal construction of section 158(d) of the *Commonwealth Electoral Act 1902*, holding that mere possibility of identification was insufficient to invalidate a vote, and that such marks would only lead to rejection if they would, in the Court's opinion, enable identification. The Court also found that certain ballot papers were rendered informal due to official errors, such as numbering the papers on the back, which contravened the secrecy provisions of the Act.

Ultimately, the Court found that while the petitioner had a majority of the valid votes cast, the respondent had been deprived of a majority due to official errors. However, the Court determined that it could not declare the petitioner elected as the errors had affected the result. Consequently, the election was declared absolutely void under section 205(III.) of the *Commonwealth Electoral Act*, and a new election was ordered. No order was made as to the costs of the petition.

Orders