MARK MARSHALL ALDRIDGE No. SCCIV-02-271

IN THE MATTER OF AN APPLICATION BY
MARK MARSHALL ALDRIDGE
[2002] SASC 58

JUDGE BURLEY. Mark Marshall Aldridge (the applicant) has lodged at the Registry a document which purports to be a petition to the Supreme Court sitting as the Court of Disputed Returns. I shall refer to the document which has been lodged as “the petition”. When the petition was lodged at the Registry, it was referred to me by the Registrar’s deputy pursuant to the provisions of SCR 102.09, which is as follows:
“102.09If any summons application or documents lodged for the purposes of an appeal which is presented for filing or issue appears to the Registrar to be an abuse of the process of the Court, or a frivolous or vexatious proceeding, or contains scandalous or indecent material the Registrar shall seek the direction of the Court which may direct him to file or issue it, or to refuse to file or issue it without the leave of the Court first having been obtained by the party seeking to file or issue it.”
Having read the petition, I formed the view that the petition may amount to an abuse of the process of the Court or be a frivolous or vexatious proceeding and, consequently, I directed the Registrar not to issue the petition without the leave of the Court first being obtained.
The applicant was then advised that if he wished to pursue the petition he would be required to apply to the Court for leave to issue the petition. Shortly thereafter, the applicant forwarded to the Registrar written submissions in support of his application for leave to issue the petition. He also relied upon written submissions which were lodged with the petition.
Before I turn to a consideration of the application for leave to issue the petition, it is necessary to refer to and correct several assertions made in documentation annexed to the petition. The statements relate to a determination made by me on 24 January 2002 whereby The Alliance SA Inc, Mr Aldridge and Mr KW Fishlock sought the leave of the Court to issue a petition to the Court of Disputed Returns and to file an application for injunctive relief associated with the petition. I published reasons for that decision on 24 January 2002 (Judgment No [2002] SASC 15). On that occasion the application for leave to issue the earlier petition was refused because, among other things, there was no power in the Court to grant the relief sought by the applicants either by way of petition or by way of application for injunctive relief. It was not necessary to deal with the merits of the petition. Nevertheless, in a document entitled “Press Release” under the logo of The Alliance SA Inc and dated 24 January 2002, a copy of which is part of Attachment C to the petition now lodged for issuing, it was stated:
“The Judge wrote, ‘the applicants have a [sic] arguable case’, but then came the big blow. ‘There is no power in the court under the electoral act either to grant an injunction as sought or direct the governor to return the writ’.”
The above quotation refers either to a memorandum from me to a Registry officer or to the reasons which I published when I handed down my decision that leave to issue the original petition would be refused. There is no statement in the memorandum or those reasons, nor has there been any such statement made by me, that the applicants or any of them had an arguable case.
In a further document forming part of Attachment C, being a document under the logo of The Alliance SA Inc and dated 22 January 2002, the following statement was made:
“Judge Burley said, ‘even our attempt to properly inform the electorate by press releases to all of our media failed’.”
Even though part of the passage quoted above has been enclosed in quotation marks, it is evident from the words themselves that it does not purport to be a direct quote of anything I said. However, the implication of the sentence is that I made during the course of my reasons some comment about the attempt by the applicants in relation to the earlier petition to inform the electorate by press releases about election matters. No such statement was made by me in my reasons or otherwise.
In a further document contained within Attachment C, under the logo of The Alliance SA Inc, and dated 27 January 2002, the following passage occurs:
“In the reply from the court ‘there is a case to answer’, but the court has not jurisdiction to either void an election before it is held or ask the governor to return the writ.”
I repeat that there was no statement made by me in my reasons or at all that the applicants in relation to the original petition have established that there was a case to answer raised in the petition.
The inaccuracy of the above comments has caused me some concern. If there is a repetition, I will have to give consideration as to whether or not contempt proceedings are to be pursued.
I turn to the application for leave to issue the second petition. The applicant has named the State Electoral Office of South Australia as the respondent to the petition. Section 105 of the Electoral Act 1985 (the Act) provides that the Electoral Commissioner is the respondent to any petition in which the validity of an election or return is disputed. Consequently, if the petition is to be issued, the respondent should be described as the Electoral Commissioner.
The petition purports to be in relation to the elections for the Legislative Council and for the House of Assembly electorates of the State of South Australia held on 9 February 2002. Section 104 of the Act is as follows:
“104.(1)A petition disputing an election or return must -
(a)set out the facts relied on to invalidate the election or return;
(b)set out the relief to which the petitioner claims to be entitled;
(c)be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election;
(d)be attested by 2 witnesses whose occupations and addresses are stated;
(e)be filed in the Court within 40 days after the return of the writ.
(2) At the time of filing the petition, the petitioner must deposit with the Registrar of the Supreme Court $200 as security for costs.”
When the Act is read as a whole, the use of the word “election” refers to the election that takes place in each electoral district. Section 14 of the Act defines the electoral districts: in the case of the Legislative Council, the whole of the State is the electoral district. In the case of the House of Assembly, the State is divided into electoral districts in accordance with the Constitution Act 1934. Each House of Assembly electoral district constitutes a division of the Legislative Council electoral district.
Part 7 of the Act deals with writs for elections. The sections within that part clearly contemplate that individual writs may be issued for elections to take place in individual electoral districts, although it is possible for one writ to be issued in respect of all districts in the case of a general election.
It follows from the above that, where in Section 104, reference is made to an election or return, it is an election or return in relation to an individual electoral district. Consequently, if a petition to the Court of Disputed Returns is to be issued, it must, under Section 104(1)(c) of the Act be signed by a candidate at the election in dispute (for the particular electoral district) or by a person who is qualified to vote at that election. Perhaps anticipating this requirement, the applicant has purported to bring the petition “on behalf of the electorate of South Australia”. Under the heading “Entitlement to File this Petition” he has stated:
“The petitioners are entitled to file this petition because they are enrolled/candidates respectively for the electorate and legislative council.”
It is not open to the applicant to purport to bring the petition on behalf of the electorate or on behalf of candidates in respect of any electoral district. For that reason alone the petition, if issued, would be an abuse of the process of the Court. As such, leave should not be given to issue the petition. The correctness of that conclusion is demonstrated when reference is made to the prayer for relief at pages 3 and 4 of the petition. In that part of the petition, the applicant seeks an order “declaring the election (South Australian State) of 9th February 2002 VOID and requiring a new election to be held”. It is clear when the petition is read as a whole that the applicant is not seeking an order in relation to one or more particular electorates. He seeks an order that all of the elections in all of the electorates be declared void. The applicant does not have a standing to seek such an order because he cannot be a candidate for all electorates or a person who was, at the time of the election, qualified to vote in each electorate.
An examination of the other paragraphs of the prayer for relief in the petition reveal fundamental flaws in the petition. By paragraph (ii), the applicant seeks an order that the respondent make “appropriate changes to the voting system to allow the electorate to freely choose only those candidates they endorse as follows:
1.Lower House 1 seat = 1 vote
2.Legislative Council 11 seats = 11 votes”.
Paragraph (ii) further provides:
“That no preference/re-distribution of the electors votes and if the elector chooses only 5 candidates, they can tick only 5 boxes. Outcomes would be decided on majority of votes counted on an equal basis and as such there would be no need for above the line boxes. So that all future ballots do not become ‘instruments to defeat the franchise’.”
It is apparent from this aspect of the prayer for relief and from the body of the petition, in which the applicant complains about the system of preferential voting, that the applicant wishes to achieve by way of the petition to the Court of Disputed Returns a non-preferential voting system. This is clearly not a matter either for the Court or for the Electoral Commissioner. It is a matter for the legislature and only the legislature.
There are a number of other orders sought in the prayer for relief that relate to the participation of the media in reporting elections. The applicant also seeks directions to the Electoral Commissioner in relation to the material that is issued by his office in relation to elections. It is not necessary for me to recount in detail all of the orders sought by the applicant. It is sufficient to say that the petition comprehensively fails to contain any basis for the orders sought.
For the above reasons, the application for leave to issue the petition is refused.

[2002] SASC 58

22 February 2002