Ludlam v Johnston & Ors

[2014] HCATrans 1

[2014] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Perth   No P59 of 2013

B e t w e e n -

SCOTT LUDLAM

Petitioner

and

DAVID JOHNSTON

First Respondent

JOE BULLOCK

Second Respondent

MICHAELIA CASH

Third Respondent

LINDA REYNOLDS

Fourth Respondent

WAYNE DROPULICH

Fifth Respondent

ZHENYA WANG

Sixth Respondent

LOUISE PRATT

Seventh Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Eighth Respondent

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON TUESDAY, 21 JANUARY 2014, AT 12.00 PM

Copyright in the High Court of Australia

____________________

MS F.I. GORDON:   I appear for the petitioner, your Honour.  (instructed by MDC Legal)

MR D.W. BENNETT:   If your Honour please, I appear for the first, third and fourth respondents.  (instructed by Colquhoun Murphy)

MR E.M. HEENAN:   May it please the Court, I appear for the second and seventh respondents.  (instructed by Slater & Gordon Lawyers)

MR J.A. THOMSON, SC:   May it please the Court, with MR D.B. SHAW, I appear for the fifth respondent.  (instructed by DLA Piper Australia)

MR T.O. PRINCE:   May it please the Court, I appear for the sixth respondent.  (instructed by Hopgood Ganim Lawyers)

MR A.S. BELL, SC:   If it please the Court, I appear with MR P. KULEVSKI, for the eighth respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Ms Gordon, it is your summons for directions, I think. Now, I assume that you and the parties are aware of the fact that I asked the Registry to direct the parties’ attention to the question whether the provisions of section 358(1) of the Act had any relevant engagement in this case. It may be that that ‑ and subject to anything you may say to the contrary, it may be that that is where we need to begin.

MS GORDON:   Yes, your Honour, I will begin there, and perhaps end there as well.

HIS HONOUR:   Yes.

MS GORDON:   The petitioner accepts that proceedings may only be had on a petition disputing an election or return, the question then being whether his petition is such a petition.  As was made clear in the submissions filed on 24 December for the summons for directions, the petitioner’s concern in filing the petition was really to avoid any risk of being shut out of alleging facts in response to facts alleged in the Wang and Mead petitions.  We refer to those in the submissions as defensive facts and I will just use that as a shorthand, if I may.

To the extent that the defensive facts challenged steps that led to the election results, those being classification of ballot papers as formal or informal, there was apprehended to be a risk that those would be seen to be facts relied on to invalidate an election or return and, thus, required to be set out in a petition.  Now, underlying that concern were the cases restricting a petitioner to reliance on the facts set out in the petition and the absence of any express vehicle in the Electoral Act for putting forward such facts.

Now, as explained in the earlier submissions, the primary position is these facts do not need to be set out in a petition, but if that primary position is wrong then in Senator Ludlam’s submission the alleged defensive facts challenged steps that led to the election result, and in that sense dispute an election, and further if the Court is satisfied that the petitioner was not duly elected the petitioner seeks a declaration that the election was void and in that sense the petition also disputes an election.

Accordingly, perhaps the best way to put it is the petitioner accepts that there is a real question as to whether any proceeding may be had on the petition.  Now, in one sense – well, no, I retract that.  That is a question that may be unnecessary to determine, depending on the answers which the Court gives to the questions of law to be heard next week because the petitioner’s defensive allegations really go to a subsequent issue that may not arise.

Therefore, the petitioner submits that the preferable course may be to adjourn the directions hearing until after those questions of law have been determined and then, depending on the answers, if necessary the question of whether a petition such as this one is necessary or valid may be determined, but we are in the Court’s hands on that issue.

HIS HONOUR:   I was particularly struck, for example, by paragraph 1 of the statement of facts in the petition and, in particular, the last sentence.

MS GORDON:   Yes.

HIS HONOUR:   “He” – that is to say, Senator Ludlam – “does not dispute the validity of [the] election or return”, and that seems to be the primary position maintained by Senator Ludlam and that seemed to me at least to raise a question whether this was a petition of a kind described in 355, namely, as a petition disputing an election or return when in paragraph 1 you say we do not dispute the election or return.

MS GORDON:   Yes, and I suppose that statement in paragraph 1 is, as your Honour describes, the primary position and the dispute to the election is really a contingent position.

HIS HONOUR:   I understand the position which your client takes is that the only outcome to which the Court should come is an outcome which does not disturb his return as a senator, is that right?

MS GORDON:   That is his primary position on the petition, yes, but if the Court were to be ‑ ‑ ‑

HIS HONOUR:   But there is no secondary position, is there?  He says that the Court should not disturb his return either because the other petitions should fail or because having regard to what he asserts to be certain additional facts relief of the kind sought in the other petitions should not be granted; is that not the position?

MS GORDON:   Yes, that is precisely the position, your Honour, and the issue that motivated the filing of the petition was really how those additional facts might be characterised and the risk that they would be characterised as themselves impugning the election and therefore requiring to be set out in a petition, but if that is not the case ‑ ‑ ‑

HIS HONOUR:   Now, the fact that Senator Ludlam desires to assert the various matters which are set out in the petition is now recorded in the statement of facts which will form the footing for determination of the questions, is that right?

MS GORDON:   It is.

HIS HONOUR:   What do you lose if a decision is made that no proceedings should be had on the petition?

MS GORDON:   Nothing, your Honour, because I would understand that to entail that no issue could then be raised about the ability to rely on those facts, although they are not an election petition.

HIS HONOUR:   I am not sure that tailpiece is right.  It may be, but I do not – I do not proceed on the assumption that I accept the validity of what I probably wrongly called the tailpiece of the proposition.

MS GORDON:   In that case, your Honour, we would have that to lose.

HIS HONOUR:   Yes.  Yes, thank you, Ms Gordon.  Now, the question in which order should I hear the parties.  Do I read down the presentment or read up the presentment?  Perhaps I hear from you first, Mr Bennett.

MR BENNETT:   I am happy for your Honour to read down the presentment.

HIS HONOUR:   That is the first presentment, not the second presentment.

MR BENNETT:   Could I first respectfully inquire whether your Honour has received some written submissions that were filed this morning?

HIS HONOUR:   Yes.

MR BENNETT:   Thank you.  I apologise that they got there a little bit late.

HIS HONOUR:   I assume they have gone to other parties, have they?

MR BENNETT:   They have been served on the other parties, yes, your Honour.

HIS HONOUR:   Yes.

MR BENNETT:   I hope that is the case for the parties in Perth as well, it was emailed this morning.  Your Honour, my client’s position is that the petition is not one which disputes the validity of a return or election and the consequence of that is that the petition cannot proceed.  That consequence can be reached through one of two avenues.  The first is that because the petition does not dispute the validity of an election or return it is not a petition within the contemplation of Part XXII of the Commonwealth Electoral Act and, therefore, it is not a petition which can proceed to a substantive hearing and determination, and that is the matters that are dealt with in paragraphs 2 to 8 of the written submission.

The second avenue is that the petition does not set out the facts relied on to invalidate the election or return as required by section 355(a). By virtue of section 358(1) that failure means that no proceeding may be had on a petition and that is the matters that are dealt with in paragraphs 10 and 11 of the written submission.

Your Honour, turning to the first of those avenues, in my submission, the requirement that a petition dispute the validity of an election or return is clearly implied by Part XXII of the Act, in particular, section 353(1), section 355 and section 358(1). Section 355 is obviously quite wrong. Could I draw your Honour’s attention in particular to the chapeau of that section which states that:

every petition disputing an election or return in this Part called the petition shall –

and then a series of requirements are set out –

(a)set out the facts relied on to invalidate the election or return –

Subsections (aa) and (b) are also relevant in that they require matters to be set out “as justifying the grant of relief” or “contain a prayer asking for the relief the petitioner claims to be entitled to”.  So the various sections all contemplate that there will be a dispute and that the petitioner will seek relief in relation to the result of the election.

Your Honour, paragraphs 4 to 8 of the written submissions identify the matters which I rely upon as indicating that there is no dispute as to the validity of an election or return in Senator Ludlam’s petition.  I am not sure that I need to go through them all in detail if your Honour has had an opportunity to read them.

HIS HONOUR:   Well, I have looked at what you have said.  I think I understand what you are saying.

MR BENNETT: Thank you, your Honour. Turning to the second, or what I called the second avenue, which is the section 358 and section 355 aspect; section 355(a), as I have indicated, requires the petition to “set out the facts relied on to invalidate the election or return”. Because this petition does not actually seek to invalidate an election or return there is a degree of unreality about the notion that the petition sets out facts which are relied upon to do so. Moreover, it appears, as I have indicated in the written submissions, that the petition does not in fact seek to set out such allegations; rather, it deliberately omits to set out those allegations. In those circumstances, in my submission, because section 355(a) is not satisfied the mandatory requirement in section 358(1) is not satisfied and the consequence is the petition cannot proceed.

Where all that takes us, your Honour, is that if your Honour accepts either that this is not a petition within the meaning of Part XXII or that the petition does not comply with section 355(a) and hence section 358(1), the appropriate course would be for the petition to be dismissed. Your Honour, in my submission, this petition can most properly be characterised in the way that Ms Gordon has indicated as being her primary position, that is, as a defensive document. Really what it does is no more than to seek a form of – or to make a contention about the type of relief which the Court should grant in the event that the Court is satisfied that other petitioners ‑ that is, not Senator Ludlam – have made out their allegations that the election was infected by legal practices, errors or omissions and so forth. That is not a role for a petition to play, in my respectful submission. If your Honour pleases.

HIS HONOUR:   Yes, thank you, Mr Bennett.  Yes, Mr Heenan.

MR HEENAN:   Your Honour, I have nothing to add to the submissions already made by counsel for the first, third and fourth respondents which we adopt.

HIS HONOUR:   Yes, thank you, Mr Heenan.  Yes, Mr Thomson.

MR THOMSON:   May it please the Court.  In respect of whether this is a petition which disputes an election or return, we rely on our submissions which I think are already fully stated in substance.  In respect of what your Honour has identified as the tailpiece of the submissions made by Ms Gordon we would say this, that if there has been some breach of the electoral law then it has to pass through the threshold of section 362(3) and the Court would have to be satisfied of the likelihood that the results of an election would be affected before declaring an election void, and that a party who is defending the result of the election is entitled to bring before

the Court particular facts that are not alleged in a petition in order to show that the likely result of the election was not affected.

HIS HONOUR:   Yes.

MR THOMSON:   Those are our submissions.

HIS HONOUR:   Thank you, Mr Thomson.  Yes, Mr Prince.

MR PRINCE:   Your Honour, I rely on our written submissions filed and adopt the submissions by Mr Bennett.  In the event that the Court is disposed to dismiss the petition I would ask to be heard on costs but otherwise have nothing to add.

HIS HONOUR:   Yes.  Yes, Mr Bell.

MR BELL: If it please the Court. We also would adopt with one qualification the written submissions filed on behalf of Mr Bennett’s client. That qualification relates to footnote 1 of the written submissions which suggests that the countercharge provision in Rule 32.02 of the High Court Rules provided an avenue for Senator Ludlam to advance the strategy which Ms Gordon has explained. We do not for our part necessarily agree with that characterisation that what is put is – or would fall within the definition of a countercharge because the basis is not on a ground other than relating to the vote counting. It is put in footnote 1 as a cf. If that was intended to suggest that there was a procedure we would not adopt the submissions to that extent.

What seems to be the case is that the document really has a flavour of a notice of contention to it for which there is no procedure in the Rules, but on the analysis which has been adopted it is not disputing the election, and it seems as a matter of substance, Senator Ludlam being the respondent to each of the other three petitions, will be able to participate in the hearings and has been accommodated in terms of the statement of agreed facts in permitting various assertions to be recorded in that document.

HIS HONOUR:   Well, he is not only a proper party to the other petitions, he would be a necessary party to the other petitions surely.

MR BELL:   Yes, indeed.

HIS HONOUR:   And as a necessary party would be able to defend the petition on whatever legitimate grounds are available in answer to the claims made.

MR BELL:   And as Mr Bennett put, make submissions as to the form of relief if ‑ ‑ ‑

HIS HONOUR:   Can I be quite blunt about why I raised the point with the parties?  It is because to leave unremarked the filing of a petition founded on a contingency may leave matters in a state in which they should not be left, but it was not simply some excess of procedural purity that motivated asking the question.  There is, I suspect, a rather wider question of principle that may be at stake.

MR BELL:   And particularly if the Court were – the orders proposed may be taken to presuppose the integrity of the process.  If the integrity is not good ‑ ‑ ‑

HIS HONOUR:   Well, there seems to be an absolute excess or an outbreak of agreement between the parties in January, but there we are.

MR BELL:   There does.  If the Court, as would seem to follow, regards it an inappropriate to make orders in that petition, as were originally proposed and agreed, there is no difficulty because all they were intended to do were simply to ensure that the mechanics of next week’s hearing were not interrupted by – and from our point of view, as in a sense the moving party on the first petition, I can inform the Court that the procedural steps ‑ the submissions as directed have been filed in accordance with the Court’s timetable.  We will today circulate a proposed allocation of time between parties and ‑ ‑ ‑

HIS HONOUR:   Well, perhaps those are matters we can take up after I have dealt with this.

MR BELL:   Yes, certainly, your Honour.  If it please the Court.

HIS HONOUR:   There are a couple of minor procedural matters.  Is there anything else on this aspect of it, Mr Bell?

MR BELL:   Nothing on this aspect.

HIS HONOUR:   Yes, thank you.  Ms Gordon, anything you wish to say in reply?

MS GORDON:   Nothing to add, your Honour.

HIS HONOUR:   I might adjourn for a short time to consider the course I take in the matter.  I would expect to resume sitting at or shortly after half past 12 Melbourne time, so if counsel would be kind enough to remain in the precincts, but I will adjourn for a time.

AT 12.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.32 PM:

HIS HONOUR:   An election of six senators for the State of Western Australia to serve in the Senate of the Parliament of the Commonwealth was held on 7 September 2013. On 4 November 2013, the Australian Electoral Officer for Western Australia (“the AEO”) declared the result of the election and the names of the candidates elected. Pursuant to section 283(1) of the Commonwealth Electoral Act 1918 (Cth) (“the Act”) the AEO certified that the candidates elected were Senator David Johnston, Mr Joe Bullock, Senator Michaelia Cash, Ms Linda Reynolds, Mr Wayne Dropulich and the petitioner, Senator Ludlam. The writ for the election was returned on 6 November 2013.

By petition dated 15 November 2013, the Australian Electoral Commission (“the AEC”) has petitioned the Court for an order declaring, pursuant to section 360(1)(vii) of the Act, that the election of six senators for the State of Western Australia to serve in the Senate of the Parliament of the Commonwealth held on 7 September 2013 is absolutely void.

By petition dated 2 December 2013, Mr Zhenya Wang, a candidate at the election, has petitioned for orders, pursuant to section 360(1)(v) of the Act, declaring that Mr Dropulich and Senator Ludlam were not duly elected at the election and, pursuant to section 360(1)(vi) of the Act, a declaration that Mr Wang and Senator Louise Pratt were duly elected at the election. In the alternative, Mr Wang seeks a declaration that the election is absolutely void.

By petition dated 3 December 2013, Mr Simon Mead, an elector at the election, has petitioned for orders substantially to the same effect as those sought by Mr Wang.

By petition dated 16 December 2013, Senator Ludlam has petitioned the Court seeking relief which is described as follows:

In the even[t] that, for any reason, the Court is satisfied that the Petitioner was not duly elected at the election, the petitioner asks the Court to make the following orders:

1.Declare that, pursuant to para 360(1)(vii) of the Act, the election of 6 Senators for the State of Western Australia to serve in the Senate of the Parliament of the Commonwealth held on 7 September 2013, is absolutely void.

2.         The Commonwealth pay the Petitioner’s costs.

3.         Such further or other orders as the Court deems fit.

The basis on which this claim is made is described in the first three paragraphs of the statement of facts set out in the petition.  There, the petitioner says:

1.In the election held on 7 September 2013, the Petitioner was elected as a Senator for the State of Western Australia to serve in the Senate of the Parliament of the Commonwealth.  He does not dispute the validity of his election or return.

2.However, this Petition sets out the facts on which he will rely in response to allegations made in Petitions C17, P55 and P56 of 2013 (as amended).

3.This Petition petitions for an order that the election the subject of the petition be declared void, in the event that, for any reason, the Petitioner is declared not to have been [duly] elected.

Taken together, the first three paragraphs of the statement of facts set out in the petition and the statement of relief claimed in the petition make plain that the petitioner (adopting his own words) “does not dispute the validity of [the] election or return”.  Rather, the petitioner seeks to allege that, for reasons which he sets out in his petition, if any of the other three petitioners were to establish the facts on which that petitioner relies, no order should be made either disturbing the return which was made to the writ or declaring the election void and, further or alternatively, that no order should be made which would declare to have been elected any candidate other than those named in the return to the writ.

In his petition, the petitioner does not dispute many of the facts alleged by the AEC in its petition.  In particular, he does not seek to controvert the AEC’s allegation that 1370 ballot papers were lost before a recount directed by the Electoral Commissioner took place and that those missing ballot papers were not brought within the recount.  Nor does the petitioner dispute that those ballot papers remain lost, are unlikely to be found at all or under conditions in which the integrity of the ballot papers could be established and “without real doubt as to whether they could be safely counted for the purposes of any power that this Court might exercise”.

The central points which the petitioner seeks to make in his petition are described by him as a “[r]esponse to errors in [the] recount alleged in the Mead and Wang petitions”. In both the Mead and Wang petitions the petitioner alleges that decisions the AEO made in relation to some of the ballot papers which the officer conducting the recount reserved for the decision of the AEO in accordance with section 281 of the Act were wrong.

By his petition, Senator Ludlam seeks to respond to these allegations by saying, first, that the AEO did not make the mistakes alleged in either the Wang or the Mead petitions but that if the AEO did make those mistakes, or some of them, “then it is likely that the same or substantially the same mistakes were made in respect of the same or similar number of ballot papers”, as I would understand it ballot papers reserved or unreserved for decision by the AEO.

If these are responses which may be made in answer to the allegations made in the Mead and Wang petitions they may be made in those proceedings.  Whether they are responses which may be made in those petitions is a matter to be determined in those petitions.  I express no opinion on that question now.

In accordance with the requirements of the High Court Rules 2004, the petitioner has applied for directions about the further conduct of his petition. Section 358(1) of the Act provides that subject to an exception which is not presently relevant:

no proceedings shall be had on the petition unless the requirements of sections 355, 356 and 357 are complied with.

Section 355 provides in part that:

Subject to section 357, every petition disputing an election or return in this Part called the petition shall:

(a)set out the facts relied on to invalidate the election or return –

This petition does not seek to dispute the petitioner’s return as a senator for Western Australia.  The petition does not seek to dispute the validity of the election.  Indeed, the central propositions advanced in the petition are that the return which was made to the writ should be left unaffected by this Court and that no order should be made declaring the election void. 

Although the petition makes a number of allegations contingent upon rejection of those central propositions, the petition when read as a whole is not a petition disputing the validity of any election or return.

Further, the petitioner sets out no facts on which the petitioner would rely to invalidate the election or return; that being so, the requirements of section 355 of the Act are not met. It follows that section 358(1) requires the conclusion that no proceedings shall be had on the petition. For these reasons there will be an order that no proceedings be had on the petition dated 16 December 2013 filed on behalf of Scott Ludlam as petitioner. The petition is dismissed. Mr Bennett.

MR BENNETT:   Your Honour, having regard to the reasons that your Honour has just delivered, I seek an order that the petitioner pay the costs of the first, third and fourth respondents.  The Court has the power to award costs under section 360(1)(ix), and section 371 expressly provides that “The Court may award costs against an unsuccessful party to the petition”.  In my submission, the costs should follow the event.  There is no reason for departing from that usual course and I could indicate to your Honour that in the decision of McClure v Australian Electoral Commission (1999) 163 ALR 734 your Honour in that case dealt with a petition which was dismissed because it could not succeed, and at pages 740-743, paragraph [35] your Honour noted that:

Although the petitioner contended that the respondent should pay its own costs, I do not consider that there is any reason to depart from the ordinary rule that costs follow the event.

And your Honour ordered that the unsuccessful petitioner in that case pay the costs of the respondent.  If your Honour pleases.

HIS HONOUR:   Yes.  Before I hear you, Ms Gordon, I should hear whether there are any other applications that are to be made.  Mr Prince.

MR PRINCE:   Your Honour, I seek a similar order in favour of the sixth respondent.  I adopt the submissions of Mr Bennett and I would also refer the Court to the decision of Justice Gummow following the Rudolphy v Lightfoot case.  It is an unreported decision but can be found at the transcript of the – it is a 1999 HCA transcript 485 where his Honour also made a similar ‑ ‑ ‑

HIS HONOUR:   Sorry, HCA transcript 485?

MR PRINCE:   485, where his Honour made a similar order.  May it please the Court.

HIS HONOUR:   Yes.  Yes, Mr Heenan.

MR HEENAN:   May it please the Court, the second and seventh respondents also apply for an order for costs on the same basis as those submitted by my friends for Mr Wang and Senator Johnston.  May it please the Court.

HIS HONOUR:   Yes.  Yes, Mr Thomson.

MR THOMSON:   Thank you, sir.  It is a matter for the Court’s discretion.  However, if there is to be a costs order made, as sought by everyone else, we are in no materially different position.

HIS HONOUR:   Well, you are either asking or you are not, Mr Thomson; what are you doing?

MR THOMSON:   Yes, we seek the costs on the same basis.

HIS HONOUR:   Yes.  Yes, Mr Bell.

MR BELL:   Your Honour, we are currently seeking instructions.  It may be that the Electoral Commissioner takes the view that it is not appropriate for him to seek costs.  Those instructions are currently being sought.  May our position be reserved for a short time or, if necessary, until next week when we can put the matter to the Court?

HIS HONOUR:   Is it that hard?  The issue was put on the table yesterday morning so that the parties could think about it.

MR BELL:   Yes, your Honour.  Well, I have no instructions at the moment is my position.

HIS HONOUR:   Yes, very well.

MR BELL:   If it please the Court.

HIS HONOUR:   Yes, Ms Gordon.

MS GORDON:   Your Honour, if I could just refer your Honour to the case of Nile v Wood 167 CLR 133 at 143 where their Honours Justices Deane and Toohey noted that the power to award costs under the Electoral Act is not to be determined by ordinary principles but instead:

It is a general power conferred upon the Court of Disputed Returns, in the exercise of its special jurisdiction, to order that the Commonwealth pay the costs of a party whenever the Court considers it appropriate so to do.

HIS HONOUR:   Sorry, what page were you reading from, Ms Gordon?

MS GORDON:   Page 143.  I have a copy.

HIS HONOUR:   I have got it, it is just I am out of practice.  Now, that was an order against the Commonwealth, not against ‑ ‑ ‑

MS GORDON:   It was, your Honour, and perhaps I ought not to rely on it as a more general proposition in relation to orders against a party.  But what I would say, your Honour, is that in this case my client was a respondent to a petition and took what I would submit was an appropriately cautious step in the context of setting out the defensive facts in the petition.  To the extent that the petition has occasioned costs, they are really the costs of the argument today because those defensive facts would have been put one way or another, and will be put, and it was really only very recently that Senator Ludlam was appraised of the views of the other parties that the facts set out therein were not facts disputing an election or return within the meaning of the Electoral Act.

HIS HONOUR:   Can I just take you to Nile v Wood 167 CLR and, in particular, at page 141 in the judgment of Justice Brennan? As I read his Honour’s judgment in that case, an order had already been made against the petitioner that she should pay the costs of Senator Wood ‑ ‑ ‑

MS GORDON:   Yes, and she was seeking ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ the petition having been dismissed as, in that case, incurably defective, and she was then seeking an order for costs over ‑ as against the Commonwealth.

MS GORDON:   No, your Honour is quite correct and I think my hasty search for a case – I should just possibly retract reference to that case altogether.

HIS HONOUR:   I think, if anything, it is not quite helping you.

MS GORDON:   Yes.  Perhaps then, your Honour, if I could just simply rely on the submission I put that in the circumstances it would be, in my submission, just that costs be reserved, given the basis upon which – and the very forthright position my client took from the beginning about the basis upon which he was asserting the facts in his petition.

HIS HONOUR:   Yes, thank you.  Mr Bell.

MR BELL:   The Commission does not seek costs.  If it please the Court.

HIS HONOUR:   Very well.  I have indicated that there should be orders that there be no proceedings had on the petition and that the petition be dismissed.  The first to seventh respondents now seek orders that the petitioner pay their costs of the petition.  The eighth respondent, the AEC, makes no application for costs.  The petitioner submits that the course which was adopted was both prudent and desirable as a means of informing both the Court and opposite parties of the position which the petitioner sought to adopt in answer to the petitions which had been filed by the AEC, Mr Wang and Mr Mead.

Whatever may be the force that is to be given to these considerations of prudence and frank disclosure of hand the fact remains that the petition is one which, in my opinion, was not authorised by the Act. It was not authorised by the Act because it is not and was not a petition disputing an election or return. That being so, I am of the opinion that costs should follow the event. There will be an order that the petition is dismissed. The petitioner will pay the costs of the first to seventh respondents.

Is there any matter then that needs to be dealt with further in respect of Senator Ludlam’s petition?  I think not, but is there any other aspect?  May I then deal very briefly with pure administration and housekeeping matters for next week’s trial?  First, can I understand, Mr Bell, how many counsel are appearing for the Commission?  I ask that for reasons of accommodation.

MR BELL:   Yes, the Solicitor‑General will be leading myself and Mr Kulevski.

HIS HONOUR:   We will look this afternoon at the way in which this courtroom might be set up.  It may be that on actually setting it out physically I decide that it will be better that another courtroom is used.  I think we will have a Bar of 13.  There will be instructing solicitors.  The present proposal is to remove the row behind you and put in extra tables for solicitors.  Even so, it may be that we are out of space.  So whether we sit in this courtroom will be affected by that.  As I said, pure housekeeping matters.

The only other thing I have to raise is outlines of oral argument.  Now, on one view, Part 44 of the Rules does not apply to these proceedings.  Nonetheless, I would expect that the provision about outline of oral argument should apply mutatis mutandis to these proceedings and I anticipate no difficulty about that.

There has been a question about whether the submissions should be put up on the web and I have directed that they be published on the web.  Although it is a single justice matter and ordinarily we do not put them up I think that this may be a matter in which the submissions should be made available in that form.  I think your submissions, Mr Bell, certify that they were suitable for publication on the net.

MR BELL:   Yes.

HIS HONOUR:   I am not sure that every other party’s submissions certified that, but I mention it so that the parties know that these things are going up on the web.  I cannot imagine why there would be some reason not to, but just in case there were.

MR BELL:   If it please the Court.

HIS HONOUR:   Now, those are the matters I have to raise.  You had some matters to raise.

MR BELL: Really only by way of reporting. We propose to provide the Court with a legislation book, not including the reprint of the Act but including the various amendments and secondary material because all the parties make reference in various places to amendments and the timing of the amendments and the significance of some of those amendments to the key provisions.

HIS HONOUR:   Is it asking too much – and you should be very quick to say it is asking too much – but is it asking too much to get it as a PDF?  Counsel are well aware I depend on an iPad and it is much more convenient for me to use that than not, but if there is a problem, say so.

MR BELL: Yes, I am told there is no problem with that. It would not, obviously, include the reprint of the Act which your Honour has.

HIS HONOUR:   And I have got on the iPad anyway.

MR BELL:   Then, your Honour, what we proposed is a consolidated volume of authorities which, as currently proposed, would include Commonwealth Law Reports as well as other reports which have been referred to by the parties.  It may be ‑ as I think most people are coming from interstate ‑ that that is the easiest and most convenient ‑ ‑ ‑

HIS HONOUR:   Which version of the judgment of Justice Sugerman are you using?  There are a couple of versions, I think, about.  Again, if it were possible for you to produce a PDF of that it will mean that I am working off a form that you are, that is all.

MR BELL:   Yes, we will provide that, your Honour.  Other than that, I do not think there are any other housekeeping matters from our point of view.

HIS HONOUR:   Well, you were talking about times and division of times.

MR BELL:   Yes, I have mentioned to my friends here at the Bar table but not in Western Australia, we will circulate today a proposed allocation and sequence of time.  On the proposal we will be putting – on the assumption that the Commission goes first, it will have a larger amount of initial time, recognising the importance of the facts and taking the Court through comprehensively, we hope, the legislative provisions, and that is the reason for that slight discrepancy in the proposed time allocation.  But I do not anticipate, at least from my discussions with my colleagues here, that there will be any difficulty or any controversy, and if there is we have the obligation to work that out, in any event.

HIS HONOUR:   How long do you think the case will take?

MR BELL:   We would anticipate it will take the two days, the full two days.  It may be that to the extent that amongst at least three of the respondents there is heavily overlapping submissions and it may well be that their submissions are able to be truncated and, obviously, there is an overlap between ‑ at least what Senator Ludlam has put in writing ‑ which largely adopts in significant part the Commonwealth’s position.  The proposal we have would allocate to Senator Ludlam a proportionately smaller amount of time, recognising that overlap, so it could reduce, but on the proposal we would expect to take the two days.

HIS HONOUR:   I am not yet in a position where I am going to put counsel into a straitjacket about time.  My estimate is that two days should comfortably accommodate argument of the issues, but that is an estimate that I would be glad if you worked to it.  If you are going to depart markedly from it I would want to know and to have some indication of why.

MR BELL:   For our part, we do not expect there to be a departure and the written submissions are detailed.

HIS HONOUR:   Yes, and you will be entitled to work on the assumption that I will have read those submissions with some care.

MR BELL:   We will.

HIS HONOUR:   So is there any other matter that we need to pick up or deal with?  Just one moment ‑ times of sitting ‑ I propose to run it as a trial and 10.15 to 12.45, 1.15 to 2.15, but ‑ ‑ ‑

MR BELL:   2.15 to 4.15?

HIS HONOUR:   2.15 to 4.15.  Did I not say that?

MR BELL:   You said 1.15 to 2.15.  It is a half hour lunch break and a short afternoon session.

HIS HONOUR:   It would make for a very good afternoon session, but is there any reason not to ‑ ‑ ‑

MR BELL:   We have made that assumption.

HIS HONOUR:   Yes, and no doubt there will be a bit of flexibility in it, but in effect run it as ordinary trial times.

MR BELL:   I think there has been some correspondence with Registry about roaming.

HIS HONOUR:   Yes.

MR BELL:   Nothing further from our point of view, certainly, your Honour.

HIS HONOUR:   Yes, then either this Court or most likely 6K.  6K is the Federal Court – they describe it as the jury court, it is the large courtroom here which would be, I think, a double bank Bar table, so again can we please have some discussion between counsel about who sits where rather than some unseemly jostling for position early on, and it would help if people were organised more or less in the order in which they appear on the indictment.

MR BELL:   Yes, I suppose one thing to raise, what we propose to circulate as a particular order, we had contemplated that Senator Ludlam would probably go immediately after us, given the clear overlap of position, and then probably Mr Dropulich because of the position he takes which the balance of respondents may have an interest in responding to as well as advancing their own arguments which would necessitate only one reply, ultimately being from the Commission.  That is what we propose in terms of sequence, so it would not be strictly batting down the order.

HIS HONOUR:   Well, if the parties get to an agreement about it, so be it.  You will be better informed of the most useful way in which to present the argument, I would have thought.

MR BELL:   Yes, if it please the Court.

HIS HONOUR:   Yes, very well.  Now, does any other party desire to be heard on any of the housekeeping matters?  Very well, can I thank counsel and their solicitors for their attention to those matters, otherwise adjourn the Court.

AT 1.05 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 29 JANUARY 2014