McClure v Ausn Electoral Commission

[1999] HCATrans 68

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Melbourne  No M119 of 1998

B e t w e e n -

MALCOLM McCLURE

Petitioner

and

THE AUSTRALIAN ELECTORAL COMMISSION

Respondent

PHILIP JONES and OTHERS

Parties Joined

Application for dismissal or stay of the petition

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 29 MARCH 1999, AT 9.33 AM

Copyright in the High Court of Australia

MR S. J. GAGELER:   Your Honour, I appear for the Australian Electoral Commission, the respondent to the petition, and the applicant on the summons before the Court.  (instructed by the Australian Government Solicitor)

MR M. McCLURE:   Your Honour, I appear for myself and on behalf of the electorate.

HIS HONOUR:   Thank you.  Now, Mr Gageler, through the dim lights that we seem to have, eventually some light will be shed on the situation, perhaps, as the lights warm up.

MR GAGELER:   I am comforted to think that it will get brighter, your Honour.  Your Honour, this is the return of a summons seeking the dismissal or stay of the petition.  The summons is dated 10 March 1999.  There is a formal affidavit of Geoffrey Charles McCarthy, sworn in support of the summons.  It is dated 25 March 1999.  Your Honour will have received respondent’s submissions on the summons which have been filed.

HIS HONOUR:   And I take it all of those documents have gone to Mr McClure?

MR GAGELER:   They have.

HIS HONOUR:   What is the position in relation to those other persons who have entered appearance in the matter?

MR GAGELER:   Your Honour, I had first heard about those other persons on Friday and it was via a communication from the Registry to my instructing solicitor.  We had not been served with notices of appearance therefore those other persons have not been given notice of our summons.

HIS HONOUR:   What, then, do you say I should do in those circumstances?  They have entered appearance here.

MR GAGELER:   Precisely what their interest in the matter is is not clear.  It would be my submission that their entering appearances and thereby becoming parties would not affect your Honour’s ability to hear the summons and, if necessary, dismiss the petition, the only party directly affected by those orders being the petitioner himself.

HIS HONOUR:   By what right do they enter appearance, because may that not cast some light on whether they should be served with this process?

MR GAGELER:   Yes.  Your Honour, it is under Order 68 of the Rules, rule 6(2).

HIS HONOUR:   Yes.  They are then:

deemed to be a party to the proceedings upon the petition.

MR GAGELER:   Yes.

HIS HONOUR:   That being so, are they entitled to be heard on whether the proceedings on the petition are stayed or not stayed or dismissed?

MR GAGELER:   Your Honour, the rule that appears to be applicable in that regard is Order 51 rule 5 which says that:

Except as by these Rules otherwise provided, an application shall not be made without previous notice to the party to be affected thereby –

HIS HONOUR:   Why are they not parties to be affected by the dismissal or stay of the petition?  It is a genuine question, not a statement in the form of a question, Mr Gageler.  It is put on for assistance.

MR GAGELER:   Your Honour, being frank, the point troubles me a bit.  Obviously if we had known of these parties we would have served the summons on them.

HIS HONOUR:   It occurred to me that it may be that their entry of appearance is in some way irregular, you not having received notice of it but, again, that would seem to be a point which would be – how shall I put it – sensitive or difficult to rely on.

MR GAGELER:   Your Honour, I do not know who they are; I do not actually know the number of people ‑ ‑ ‑

HIS HONOUR:   We are talking upwards of 300, I think, Mr Gageler.  We are not talking some small number.

MR GAGELER:   Yes.

HIS HONOUR:   Therefore, if service is to be made on all of them or notice is to be given to them, we are talking a major undertaking and no little expense.

MR GAGELER:   Yes.

HIS HONOUR:   But perhaps the latter point is less to the point.

MR GAGELER:   I think I am unable to take the point any further, other than to say this, that although any party to proceedings will be affected by the dismissal of the proceedings, it is the moving party, the petitioner in this case, who is the only party truly directly affected by the dismissal of the proceedings.

HIS HONOUR:   Yes.  Mr Gageler, I must say that I am a little troubled by it.  I must say I am also a little troubled by the notion of having to give copies of all of these documents to some 300 people.  That is a major undertaking.

MR GAGELER:   Your Honour, can I say one additional thing.  The issue before your Honour today is whether or not the petition is in a form in which proceedings can be had on it, which may well affect the question of what anybody else could contribute to that debate.

HIS HONOUR:   Oh yes. 

MR GAGELER:   We are today only looking at the face of the document and it is ‑ ‑ ‑

HIS HONOUR:   I understand that.

MR GAGELER:   And it is Mr McClure’s document.

HIS HONOUR:   I understand that, and the force of that is powerful, but persons having taken the time and trouble to enter appearance and seeking to participate in the process, I do feel a degree of diffidence about being asked, as you do, to sweep the proceeding from under their feet without them having an opportunity to say something about whether that should occur or no.

Now, Mr Gageler, the point having, through no fault of yours, come to your attention only recently, is there any value in pausing for a time to consider whether it would be appropriate to give some direction about the way in which notice is to be given to these various people or, if I were to adjourn it over – on this I, of course, have to hear Mr McClure – are you content simply to serve copies of all of the papers on all of the persons appearing or do you wish to give some consideration to whether some short form notice might possibly be given with capacity to inspect documents at some central point.  Now, having said that, I have not the slightest idea whether I have power to do so.

MR GAGELER:   Nor do I, your Honour.  I would appreciate an adjournment at least to look at that question.  Your Honour, I think I should inquire through the Registry as to whether or not these people have entered sensible addresses for service.  The volume of paper is not all that great, but the number of people involved appears to be great.  A short form indication is probably the preferable way to proceed.

HIS HONOUR:   All I am doing, I regret to say, Mr Gageler, is harking back to those joyful days of sitting in a companies list where one could say, ah, well look, there are X hundred people affected by this; a short form notice which says “Take notice that this application is made.  Here is what is sought.  Here is where the documents may be inspected.” was an extraordinarily convenient process.  Whether it is open in this sort of proceeding is a very separate question on which you will need to give me some assistance.

What I might do, Mr Gageler, is just hear for a moment from Mr McClure about his attitude but then, subject to that, stand it down for a little time to enable you to make some further inquiries and we might resume presently. 

Mr McClure, you have heard what I have been saying to Mr Gageler.  Are there matters that you would wish to tell me in relation to those questions or issues.

MR McCLURE:   Certainly, your Honour.  First of all, I wish to apologise to my learned friend here.  I am not privy or familiar with all of the Court procedures and was not aware that I had to give notice there of those appearers, but yes, I would have no problem with the short form notice going out to those persons. 

HIS HONOUR:   Mr Gageler, it is now about quarter or ten to ten.  If I were to come back on to the Bench, say, at half past ten, would that be time sufficient or ‑ ‑ ‑

MR GAGELER:   I am sure, your Honour, yes.

HIS HONOUR:   I think it perhaps better to fix a time.  If you could also give some consideration to when the matter might go over to.  It occurs to me that with Easter intervening it may be that we would have to look at perhaps the week commencing 19 April, after the April sittings of the Court.  I am anxious to bring this matter to a head, though, no later than April, for the relief that is sought is, after all, relief which, were it to be granted, would affect senators taking their seat on 1 July, would it not?

MR GAGELER:   Of course, yes.

HIS HONOUR:   And thus these things need to be brought to a head in good time.

MR GAGELER:   Yes.

HIS HONOUR:   If I leave the Bench and come back at, say, half past ten.

AT 9.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.41 AM:

HIS HONOUR:   Sorry to have delayed you, but the joys of computer networks which are there to make us more efficient.  Now, Mr Gageler.

MR GAGELER:   Your Honour, I have written out a document, and I apologise for it being in my handwriting.  The only consolation, your Honour, is it is my best handwriting.

HIS HONOUR:   Thank you.

MR GAGELER:   Although they do not quite say it in terms, the Rules assume that a summons will be served on parties.  It appears that the appropriate order for allowing for the unusual kind of service contemplated would be an order for substituted service under Order 62 rule 7 of the Rules.

HIS HONOUR:   Is that right?  Or could you do it under Order 51 rule 5(1)?

MR GAGELER:   Your Honour might be right.  Order 51?

HIS HONOUR:   Order 51 rule 5(1):

Except as by these Rules otherwise provided, an application shall not be made without previous notice to the party to be affected thereby –

I just wondered whether that might warrant directing the manner of giving notice.

MR GAGELER:   Yes, it may well, your Honour.  I think it is probably not necessary to identify the precise source of power to do so.

HIS HONOUR:   Perhaps if my associate could hand you the cause of the delay which was a set of minutes and a schedule which I think, Mr Gageler, does track entirely - if one could go to Mr McClure too, please, Mr Gageler, I think we have multiples there, have we?

MR GAGELER:   Oh, I see, your Honour has done the same thing.

HIS HONOUR:   It would adjourn over the summons.  It would direct that notice shall be sufficiently given by the Commission giving notice by posting by a particular date by prepaid ordinary post a notice.  Now, the schedule gives notice that the application has been made.  It would give notice of the date when it would be heard.  It would give notice that this document comes as a result of an order.  What you have added, which I think ought to be added to this, is that the outline of submissions should likewise be available for inspection. 

Leaving aside for the moment the dates, are there matters in your version of the order which need to find reflection in this?

MR GAGELER:   No, your Honour, only the outline of submissions.

HIS HONOUR:   Yes.  Would you be content if an order went in the terms of the typescript?

MR GAGELER:   Yes, of course, your Honour.  The adjournment to 10 March is something that I ‑ ‑ ‑

HIS HONOUR:   10 March is the date of the summons.

MR GAGELER:   I am sorry, it is the date of the summons.  It is to (blank) April, I understand.

HIS HONOUR:   Yes.  Now, what do you say about adjournment?  If we were to look at that week after the April sittings, Mr Gageler?

MR GAGELER:   Personally, your Honour, I have some difficulty.  The only days after 19 April that I am free are 27 April and 29 April.  Then I am free in the first two weeks in May.

HIS HONOUR:   I must say for my own part I would prefer to deal with it in April to get it under way.  April 26 is being observed, I think, as a public holiday in all States save Victoria.  Victoria, the Registry will be open for business on that day, but does the interposition of a public holiday on

26 April make any difference to my fixing 27 April as the return day?  Do you see difficulties emerging in that respect?

MR GAGELER:   Not from our point of view, no.

HIS HONOUR:   You will not want to have officers of your client – I suppose there are officers of your client in Melbourne who will not have the virtue of a public holiday who will be able to do work for you on that Monday, if needs be.

MR GAGELER:   We will manage, your Honour.

HIS HONOUR:   Yes.  Mr McClure, several things:  first, what do you say about my adjourning it over to 27 April?

MR McCLURE:   Your Honour, I am sometimes a little bit slow to pick things up.  When I said before at the start that I had no objection to the summons – sorry the method of service of summons being by way of, you know, as discussed, I do actually have objection to the summons itself.  I would like that summons be dismissed and that the dates that are set down actually be the date for hearing.  I would like it to be dismissed on the grounds that I have actually got the cause in my right hand here.  It seems that the respondent here is wanting to dismiss the matter on the ground that there is no reasonable or probable cause of action of suit.  The matter is quite expediently dismissed when one looks at an original copy of the ballot paper.  So I would like to submit that forward, if I might.

HIS HONOUR:   Just before you do that, Mr McClure, do not I encounter precisely the same sorts of difficulty in dealing with your arguments that are the difficulties that Mr Gageler encounters about his arguments.  There are other people who have appeared and they are not here today.  They have to be given their chance to come along.  Now, it may be that they are people who will, or who largely will, want to support the position you adopt, but until I am satisfied that they know that the application has been made, I see great difficulty about my going ahead to even consider the issues that have been raised.  Do you see the difficulty?

MR McCLURE:   Yes, I see the conundrum there, your Honour.  Albeit that it is likely that the summons to be dismissed quickly, it is also a difficulty in so far as the other participants are not informed, yes.

HIS HONOUR:   The whole point of adjourning it over to a date in April would be so that they can be informed and, if they wish to be heard on that day, then we will deal with that then.

MR McCLURE:   It sounds reasonable to me, your Honour.  I am just concerned about the time.

HIS HONOUR:   Hence my concern to get it on in April.  But with the other demands on the time of the Court, I think 27 April is looking about our earliest time to deal with it.  Are you content with 27 April?

MR McCLURE:   Yes, I am quite content with that.

HIS HONOUR:   If we fix 27 April as the adjourned date, it would be here in Melbourne at 9.30 am.  That will mean that I have to fix a time by which these notices have to be given, but I will come back to that in a moment.  Do you, Mr McClure, want to say anything about the form of the notice that I want sent to those who have appeared?  Does that sufficiently tell those people what is happening?

MR McCLURE:   In my limited understanding and ability to grasp things on the fly, I would say it does, but I would like to reserve the right to make an amendment within, say, 24 hours if that is possible.

HIS HONOUR:   There is going to be some difficulty about that, Mr McClure.  What I could do is – although it is a bit awkward, perhaps, for others – but I could give you a little time now to give some thought to it, but I do want to fix the terms of this notice today and get the wheels turning, because we have Easter coming in the middle of it and, subject to what Mr Gageler says, I do want to get these notices out before Easter so that people have got time after Easter to order their affairs.  Do you understand the problem?

MR McCLURE:   Absolutely.  Look, I will just accept – because I had read it through and it does seem to be quite OK, so time is not necessary.

HIS HONOUR:   Are you sure, Mr McClure?

MR McCLURE:   It is fine, your Honour, thank you.  I appreciate the opportunity.

HIS HONOUR:   No, no, it is important.  One change then that I do want to make on page 2 of the notice.  Have you got page 2 of the notice there, Mr McClure?

MR McCLURE:   Yes, your Honour.

HIS HONOUR:   In the last paragraph it reads at the moment:

The summons and affidavit filed in support of the application –

do you see those words, in the last part of the notice?

MR McCLURE:   This is page 2 of the handwritten ‑ ‑ ‑

HIS HONOUR:   No, the typewritten one.  If you for the moment put away the handwritten one and go to the typewritten one.  Have you got that?

MR McCLURE:   Yes, your Honour.

HIS HONOUR:   Now, what I want to add after the word “application” in that second line is these words “and the outline of submissions to be made on behalf of the Australian Electoral Commission”.  So it will then read:

The summons and affidavit filed in support of the application and the outline of submissions to be made on behalf of the Australian Electoral Commission may be inspected at the office of the Registry –

and so on.  So that people can come – that is the parties can come and look at the summons, the affidavit and the outline of submissions.  Do you understand that?

MR McCLURE:   Yes, your Honour.

HIS HONOUR:   Now, Mr Gageler, time for posting these notices.  What do you suggest?

MR GAGELER:   We had suggested 16 April which is the week after Easter.  If your Honour says it is to be done before Easter, it will be done.  It is a large task, your Honour.  We are informed that there are 384 people involved.

HIS HONOUR:   It is not so long ago that I was at the bar where I knew that counsel always demanded the impossible instantly, so it is all very well for me to fix a date, but it has to be done by it, Mr Gageler.  Now, is it practically possible to do it by Maundy Thursday, which is to get it into the postal service on Thursday, 1 April, or are we better to be looking at, what, Tuesday, 6 April or Wednesday, 7 April?

MR GAGELER:   We will take 7, your Honour.

HIS HONOUR:   Wednesday, the 7th, will give over a fortnight’s clear notice to people.  I think it is probably sufficient.  Is Wednesday, 7 April, then a practical possibility for people to do all of this work?

MR GAGELER:   Yes, I am told it is.  Your Honour, the number of the proceedings for the document that forms the schedule should be M119 of 1998.

HIS HONOUR:   Thank you, that will be corrected. 

Then, subject to making these amendments, working from the typescript minutes of order and schedule, paragraph 1 would insert 27 April, is that right?

MR GAGELER:   Yes, your Honour.

HIS HONOUR:   Paragraph 2 would insert 7 April.

MR GAGELER:   Yes.

HIS HONOUR:   There would be no other change to the minutes of order, would there?

MR GAGELER:   No, your Honour.

HIS HONOUR:   The schedule.  Firstly, amend the number of the proceeding to 119 of 1998.

Second, at the foot of the page, insert 27 April.

MR GAGELER:   Yes.

HIS HONOUR:   Then the last paragraph on page 2, insert the words “and the outline of submissions to be made on behalf of the Australian Electoral Commission.”

Are there other amendments that you contend should be made, Mr Gageler?

MR GAGELER:   No, your Honour.

HIS HONOUR:   Mr McClure, have you followed the changes that I have just gone through with Mr Gageler?

MR McCLURE:   Adequately for the purposes, your Honour.

HIS HONOUR:   Then I will make orders in the terms of these minutes which I will initial.

That means, Mr McClure, that the proceeding will go on again on 27 April at 9.30 here.

MR McCLURE:   Yes, your Honour.

HIS HONOUR:   Orders are made in those terms.  I will adjourn until quarter past two.

AT 10.58 AM THE MATTER WAS ADJOURNED