Liston v Davies - [1937] HCA 22

RESPONDENT, DAVIES

ON APPEAL FROM THE SUPREME COURT OF Quo Warranto-Institution of proceedings by private relator--Validity-Putes of the

Supreme Court 1916 (Vict.), Order LIII., rr. 31-39.

Notwithstanding the repeal in Victoria of provisions corresponding to those May 24, 25.

of 9 Anne c. 25, proceedings by way of information of quo warranto are main- tainable in Victoria at the suit of a private person as relator under the pro- visions of Order LIII., rules 31-39, of the Rules of the Supreme Court 1916.

The foundation and history of the jurisdiction to allow proceedings by quo warranto at the relation of a private prosecutor discussed.

Bridge v. Bowen, (1916) 21 C.L.R. 582, considered. Leave to appeal from decisions of the Supreme Court of Victoria (Gavan Duffy J., and the Full Court (on appeal from Lowe J.): R. v. Liston: Ex parte Davies, (1937) V.L.R. 222) refused.

APPLICATION for special leave to appeal from the Supreme Court of Victoria.

On 6th November 1936 an election to fill an extraordinary vacancy as councillor in the Smith ward of the city of Melbourne was held. Three candidates stood for election, David Taylor Norris Davies, John James Liston and Robert Lyall. The election was held according to the system of preferential voting and the candidate Lyall was first eliminated. His second preference votes were then distributed

57 CLR 425

between Davies and Liston. As a result of the election Liston was declared elected by a majority of twelve votes over Davies. On 26th November 1936 an order nisi was obtained by Davies for leave to exhibit an information of quo warranto against Liston. From the affidavits it appeared that over fifty votes which were invalid by reason of impersonation, most of which were indentifiable, were cast at the election and were reckoned at the final ascertainment of the poll. On the return of the order nisi Gavan Duffy J. held that it was insufficient to allege merely that there were more invalid votes than the successful candidate's majority, and the order nisi was amended by adding an allegation that the impersonated votes were for Liston; the order nisi was then made absolute, but this was done without any further affidavit supporting this statement. Against this decision Liston applied for special leave to appeal to the High Court, which was refused, but without prejudice to his making a later application. An information was then filed by Davies alleging that fifty-six votes were cast in favour of Liston all of which were void for duplication or impersonation. The pleadings continued to defence and reply. Liston then took out a summons under Order XXXIV., rule 2, of the Rules of the Supreme Court 1916 (Vict.) for the determination before the hearing of the information of the following questions of law :-(1) Whether or not the court has jurisdiction (a) to hear or proceed with the information (b) to order that Liston should be ousted from the office of councillor of the city of Melbourne; (c)…

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 Liston v Davies

Details

AGLC: Liston v Davies [1937] HCA 22
Case: [1937] HCA 22
Decision Date: 25 May 1937

CaseChat Overview and Summary

The case concerned an application for special leave to appeal to the High Court of Australia from decisions of the Supreme Court of Victoria. The dispute arose from an election for a councillor in the city of Melbourne, where the applicant, John James Liston, was declared elected by a narrow majority. The respondent, David Taylor Norris Davies, sought to challenge the election by filing an information in the nature of quo warranto, alleging that a significant number of invalid votes had been cast and counted.

The legal issues before the court included whether the Supreme Court of Victoria had jurisdiction to hear the information and grant the relief sought, specifically the power to oust the elected councillor and admit the relator. A further question was whether election officials were legally obligated to examine ballot papers for validity. Crucially, the applicant argued that a private citizen lacked the standing to initiate quo warranto proceedings in Victoria, contending that such jurisdiction could only be exercised at the instance of a Crown officer, and that the relevant rules of court were ultra vires.

The High Court, in dismissing the application for special leave to appeal, reasoned that the jurisdiction to entertain quo warranto proceedings at the relation of a private prosecutor existed at common law and was not solely dependent on the repealed statute 9 Anne c. 25. The court found that the historical development of quo warranto, originating as a criminal proceeding but evolving into a civil remedy, supported the continued existence of this jurisdiction. Despite the repeal of specific statutory provisions in Victoria, the court held that the underlying common law power, along with the court's inherent jurisdiction and rule-making authority, preserved the right of a private individual to initiate such proceedings. The court also considered the procedural question of whether certain legal issues should be determined before the trial, ultimately finding it inopportune to grant leave for a preliminary determination.

The High Court refused special leave to appeal.

Orders