King v SA Electoral Commissioner

[1999] HCATrans 22

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A6 of 1998

B e t w e e n -

JOHN KING

Applicant

and

SOUTH AUSTRALIAN ELECTORAL COMMISSIONER

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1999, AT 4.29 PM

Copyright in the High Court of Australia

KIRBY J:   The Court was notified that no oral submissions were to be given in this case.  The Court has considered the written submissions of the parties. 

At the threshold of this application stands a question of jurisdiction arising under the Constitution. Mr John King (the applicant), an unsuccessful candidate in an election held for the House of Assembly of the Parliament of South Australia, seeks to challenge a decision of the Court of Disputed Returns of South Australia created by the Electoral Act 1985 (SA). That court, comprising in this case Justice Prior, was constituted by the Supreme Court of South Australia, sitting as a Court of Disputed Returns.

In Homes v Angwin (1906) 4 CLR 297 this Court held that no appeal lay to it from a Court of Disputed Returns established under analogous legislation in Western Australia. That decision has stood for 90 years and through countless State elections in which disputes over returns have arisen.

The applicant wishes to challenge the correctness of the decision in Angwin. The question thus posed might attract special leave given the terms of s 73 of the Constitution. However, when the substance of the matters in conflict are examined, they include no arguable question of law and only challenges to the factual determinations of the Court of Disputed Returns. There is no sufficient prospect of success upon those grounds to warrant the grant of special leave.

The case does not therefore afford a suitable vehicle to permit argument on the constitutional question tendered by the applicant. 

Special leave is accordingly refused.

AT 4.31 PM THE MATTER WAS CONCLUDED