Mark Nielsen v The Electoral Commissioner for Electoral Commission of South Australia and the Chief Executive Officer of the City of Onkaparinga - [2023] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MARK NIELSEN v THE ELECTORAL COMMISSIONER FOR ELECTORAL COMMISSION OF SOUTH AUSTRALIA AND THE CHIEF EXECUTIVE OFFICER OF THE CITY OF ONKAPARINGA
[2023] SADC 140
Reasons for Decision of her Honour Judge Davison
24 September 2023
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS
Petitioner challenged validity of election for the position of Mayor for the City of Onkaparinga - originating petition filed seeking declaration that election void and costs of the election thrown away and costs of claim - Electoral Commission sought to have petition summarily dismissed - petition not sufficient to identify facts relied on to invalidate basis to declare election void - no reasonable basis upon which claims could have affected election outcome - petition struck out.
Local Government (Elections) Act 1999 (SA) s.70, part 13, s.71(a); Electoral Act 1985, referred to.
Aldridge v Electoral Commissioner (SA) [2010] SASC 194 [25], applied.

MARK NIELSEN v THE ELECTORAL COMMISSIONER FOR ELECTORAL COMMISSION OF SOUTH AUSTRALIA AND THE CHIEF EXECUTIVE OFFICER OF THE CITY OF ONKAPARINGA
[2023] SADC 140
Civil

On 14 July 2023, I dismissed the petition in this matter. I now provide my reasons.
On 10 November 2022, the Local Government Elections were conducted in South Australia. The applicant was a candidate for the position of Mayor for The City of Onkaparinga. The election was conducted on the basis of postal voting in accordance with the Local Government (Elections) Act 1999 (LGE Act). After the votes were counted, Moira Were was provisionally elected by a margin of 280 votes. The applicant sought a recount. The Electoral Commissioner determined that a recount would not impact the outcome of the election and therefore declined a recount. This was conveyed to the applicant on 18 November 2022. On the same day, the Electoral Commissioner formally notified The City of Onkaparinga acting CEO of the election results. The result that was that Moira Were was elected as Mayor.
The LGE Act provides a procedure by which an individual may dispute an election result.
The Applicant now seeks to contest the election. Local government elections are governed by the LGE Act. Pursuant to Part 13 of that Act, the Court of Disputed Returns is a court constituted by a District Court Judge as a court of record. The procedure and powers of the court are the same as those of the District Court when exercising its civil jurisdiction subject to Part 13 of the Act.
The Court has jurisdiction to hear and determine any petition addressed to it disputing the validity of an election under this Act. The procedure upon petition is set out in section 70.
70—Procedure upon petition
(1)     A petition to the Court must—
(a)     set out the facts relied on to invalidate the election; and
(b)     set out the relief which the petitioner seeks; and
(c)be signed by a candidate at the election in dispute or by an elector for that election; and
(d)be lodged with the clerk of the Court within 28 days after the conclusion of the election; and
(e)     be accompanied by the prescribed amount as security for costs.
(2)     A copy of the petition must be served on—
(a)     any person declared elected in the disputed election; and
(b)if it is alleged that the election is invalid on account of an act or omission of an electoral officer—if the Electoral Commissioner was the returning officer—the Electoral Commissioner; and
(c)     the council.
(3)     If a person or council served under subsection (2) proposes to contest the petition, the person or council must, within 14 days after service, or such further time as may be allowed by the Court (on application made either before or after the expiration of the period of 14 days), lodge with the clerk of the Court, and serve on the petitioner, a reply.
(4)     A reply must—
(a)     set out the facts on which the applicant proposes to rely; and
(b)     ask for any relief to which the applicant claims to be entitled; and
(c)     be signed—
(i)    if the applicant is a natural person—by the applicant; or
(ii) if the applicant is the council—by the chief executive officer or returning officer of the council.
The powers of the Court are set out in section 71:
71—Powers of the Court
(1)     The Court must sit as an open court, and its powers include the following:
(a)     to adjourn;
(b)     to compel the attendance of witnesses and the production of documents;
(c)     to examine witnesses on oath, affirmation or declaration;
(d)with the consent of the parties to the proceedings, to receive evidence on affidavit or by statutory declaration;
(e)     subject to this Act and the rules, to determine its procedure in each case;
(f)    to declare—
(i)that a person who was returned as elected was not duly elected; and
(ii)that a candidate who was not returned as elected was duly elected;
(g)     to declare an election void;
(h)     to dismiss or uphold a petition, in whole or in part;
(i)    to amend or allow the amendment of a petition or reply;
(j)    to punish contempt of its authority by fine or imprisonment.
(2)     The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(3)     The Court is not bound by the rules of evidence.
(4)     The Court must act according to good conscience and the substantial merits of the case without regard to legal technicalities.
(5)     A decision of the Court is final and without appeal.
On 13 December 2022, the applicant filed a petition. This petition was purportedly filed pursuant to the LGE Act. That petition sought orders that:
1.The 2022 elections for the City of Onkaparinga be declared void;
2.Costs in the sum of $2,629,336 being the costs of the City of Onkaparinga election thrown away; and
3.That the Respondent pay his costs of this claim.
The applicant's petition was addressed to the Electoral Commissioner for Electoral Commission of South Australia, the first respondent, and the Chief Executive Officer for the City of Onkaparinga as the second respondent. The applicant did not have leave of the Court to join the Council as a party to the proceedings.
At the first directions hearing on 17 February 2023, the applicant was unrepresented. He was unrepresented at the time he filed the petition and remained unrepresented until 13 April 2023 when a Notice of Acting was filed by Visual Legal.
On 17 February 2023, I raised with the applicant that his application was not in the appropriate form for a petition pursuant to the LGE Act. It did not contain any particularity that would enable the respondents to meet his claims or dispute them. It did not give any examples of the illegalities or areas of concern. I raised with him that it was not sufficient for him to claim that he was “going to file the statement of claim at some further point in time”. Nothing further was received in relation to this matter until the day before the next directions hearing, when he purported to file a further petition seeking to replace the original one. That too contained significant irregularities.
The second respondent sought to have the proceedings brought against them dismissed as they had not been properly joined under s 75 of the Act. On the third directions hearing in this matter on 28 April 2023, the applicant sought yet another adjournment to attempt to put a petition before the Court that was in unobjectionable form. On that day, I also struck out proceedings against the Council as there was no basis upon which they should be joined to the proceedings that had been issued and no leave had been granted for them to be joined.
The first respondent, being the Electoral Commissioner, also sought to have the petition summarily dismissed. That application was made on the grounds that petition did not comply with s 71(a) of the LGE Act in that it:
1.Did not set out the facts relied upon to invalidate the election in sufficient detail;
2.The petition did not disclose a reasonable basis upon which this Court could declare the election void; and
3.The Court does not have jurisdiction to order costs or damages relating to the conduct of the election.
The first respondent argued that the Court has power to summarily dismiss a petition on the grounds of deficiency of form or substance where the petition does not disclose a basis upon which the Court could grant the relief sought.
The entirety of the petition that was filed, being FDN 1, was as follows:
Application Details
Type: Disputed Returns – in relation to the 2022 Council Elections for the City of ONKAPARINGA
This Application is for relief to seek a Declaration that the 2022 Council Elections for the City of Onkaparinga is “Void”.
This Application is made pursuant to Part 13 of the LOCAL GOVERNMENT (ELECTIONS) ACT 1999 PART 13-Disputed returns
67 Constitution of the Court
68 The clerk of the Court
69 Jurisdiction of the Court 69A Electoral Commissioner may lodge petition
70 Procedure upon petition
71 Powers of the Court
72 Certain matters not to be called in question
73 Illegal practices and orders that may be made
74 Effect of decision
75 Participation of council in proceedings
76 Right of appearance
77 Reference of question of law
78 Costs
79 Rules of the Court
The Applicant seeks the following orders:
1. That the 2022 Council Elections for the City of ONKAPARINGA is Declared VOID.
2. Costs in the sum of $2,629,336 being the Costs of the City of Onkaparinga election thrown away
3. That the 1st and 2nd Respondents pay the Applicant’s Costs of this Claim.
This Application is made on the grounds set out in the accompanying affidavit sworn by Mark Nielsen on the 8th day of December 2022.
Ultimately, I heard argument in relation to these matters, and in particular, directed to whether the originating application should be dismissed and whether a substituted petition could be filed.
The question of compliance with very similar provisions in the Electoral Act 1985 (SA) was considered by Doyle CJ in Aldridge v Electoral Commissioner (SA) & Others [2010] SASC 194.[1] The former Chief Justice considered that in the exercise of its inherent powers, a Court can and should require the petition to be in a form that permits the Court and the respondents to identify the issues raised by the petition and the allegations made. His Honour considered that not only must the petition set out the facts relied on to invalidate the election but must also identify with reasonable particularity the grounds of complaint and the allegations made.
[1] Aldridge v Electoral Commissioner (SA) [2010] SASC 194 [25].
The petition as it was filed is not sufficient for the respondent or the Court to identify the facts relied upon to invalidate the election nor does it disclose a reasonable basis upon which this Court could declare the election void. It contained no information at all. It simply records the series of sections from the LGE Act with no particular purpose, nor is it sufficient for the applicant to annexe an affidavit in which he makes a number of assertions in respect of what he identifies to be the range of irregularities and illegal activities. None of the assertions contained sufficient detail and most are merely conclusions or opinions. My view, despite the fact that I permitted the applicant and indeed urged him to be properly represented in a timely fashion is, he did not do this until so late that there was no longer any compliance with the provisions of the LGE Act.
The applicant bears the onus of proving that this election is invalid. A petition that consists of general wide ranging and imprecise or second-hand bear assertions that require the reader to deduce the facts relied upon does not comply with the LGE Act. The fact that evidence can be led to support an assertion cannot save an otherwise invalid petition and factual defects cannot be cured by submissions.
It is trite to say that something as important as an election result under this Act cannot be challenged by a petition that fails to adequately identify what the allegations are, what the facts relied upon are, and how the asserted irregularities could affect the election results.
In my view, there is a need for certainty in determining the outcome of elections and as such the statutory time limits for filing petitions are strict and should be adhered to. An opportunity was given to the applicant to provide any further information, and this was not done until the day of argument. Even taking into account those documents that were provided, they did not contain any degree of particularity sufficient to determine that the election should be declared void. The need for strict compliance relates to the need for certainty in determining the outcome. This election was held in November 2022. There is nothing that suggests that a particular person was not duly elected nor that a candidate that was not returned as elected was duly elected.
There is nothing upon which I could find that there was an illegal practice engaged in that affected the result of the elections. There is no material upon which I could find there was defamation of a candidate that resulted in affecting the election. There was no material before me upon which I could find there had been a publication of misleading material that affected the outcome of the election. In short, there is no material before me at all from the initial petition that would enable me to declare this election void.
In subsequent submissions that were made before the Court, it was conceded that the initial petition, and even the revised petition that followed it, were not in a form that could have complied with the LGE Act.
It is important to note that at all stages in these proceedings, I indicated in very clear terms that I was dealing with the interlocutory application that was made in respect of the dismissal of the petition. Despite that, what purported to be revised petitions were filed in relation to this matter.
It was not until May 2023 when counsel appeared to make submissions. I found his submissions to be very helpful. In essence, he argued that the applicant wanted to proceed upon a revised petition the contents of which had always been known to the first respondent and as such there was no prejudice to either the first respondent or the Court in proceeding. He submitted there were no fresh allegations that were being made. I do not accept that argument.
The initial petition was so wanting in any detail at all that there could be no reasonable basis upon which to find that it was a petition that properly satisfied the procedure under section 70. In determining to dismiss the petition that had been filed, I took into account that the applicant was unrepresented and that he necessarily required some assistance in respect of this matter. However, even when that was done it was insufficient material that was provided that could have satisfied this Court. He clearly had difficulty preparing the petition in any acceptable form. The failures in this case were fundamental.
The timeframes in relation to the need for the filing of the petition clearly related to a need for these matters to be resolved as expeditiously as possible. There is a need for the allegations to be raised within the time limits in order for the matters to be determined.
Ultimately, I determined that there was no reasonable basis upon which any claims that had been made could have affected the outcome this election. As Doyle CJ observed in Aldridge v Electoral Commissioner(SA):
But for obvious and good reasons a challenge to the result of an election must be made promptly, clearly and must be supported by a statement of facts relied upon. Something as important as an election result under the Act cannot be challenged by a petition that fails to adequately identify what the allegations are, what the facts relied upon are, and the asserted irregularities could affect the election result.[2]
[2] Aldridge v Electoral Commissioner(SA) [2010] SASC 194 [51].
As the original petition did none of those things and sought orders that could not be made by this Court and that petition could not be properly amended to correct those deficiencies, I struck out the proceedings.
I accept that there is an entitlement under the LGE Act to challenge the results of elections. This in an important right that is enshrined in the legislation. I accept that for much of the proceedings, the applicant was unrepresented and when he did have representation in the initial stages, before counsel were engaged, there appeared to be little understanding of what was required before this Court. When the court proceedings are engaged, it is essential that those involved are well informed and ensure that they comply with the provisions of the LGE Act and the Rules of Court.