Minnikin v Chrisholm

[2015] QSC 18

SUPREME COURT OF QUEENSLAND

CITATION:

Minnikin v Chrisholm [2015] QSC 18

PARTIES:

STEVEN JAMES MINNIKIN
(applicant)
v
ANTHONY CHRISHOLM
(respondent)

FILE NO/S:

990 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

31 January 2015 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2015

JUDGE:

Daubney J

ORDER:

Application dismissed.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – OTHER CASES – whether injunctive relief should be granted to restrain the respondent from displaying “booth wrap” at the Queensland State election on 31 January 2015, which the applicant argues to be in contravention of section 196 of the Electoral Act 1992 (Qld).

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – OTHER MATTERS – where the applicant argues that the “booth wrap” is “likely to mislead” voters at the Queensland State election on 31 January 2015, by the methods permitted under section 122 of the Electoral Act 1992 (Qld) in the sense proscribed by section 185 of the Electoral Act 1992 (Qld).

Electoral Act 1992 (Qld), s 196, s 185, s 122

Evans v Crichton-Browne (1981) 147 CLR 169

Goss v Swan (1994) 1 Qd R 40

Robertson v Knuth (1997) 1 Qd R 95

COUNSEL:

P Hastie QC and A J Stoker, for the applicant
E Mac Giolla Ris, for the respondent

SOLICITORS:

ClarkeKann Lawyers, for the applicant

CRH Law, for the respondent

1. HIS HONOUR: Section 122 of the Electoral Act 1992 (Qld) permits voters to exercise their franchise in today’s State election by two alternative methods: by writing the number 1, a tick, or a cross in the square opposite the candidate’s name to indicate preference for that candidate; or by also writing in the numbers 2, 3, etcetera to indicate the voter’s preference for one or more but not necessarily all of the other candidates.

1. It was not in issue before me that one of the well-publicised issues in the present election campaign has concerned the way in which voters should cast their votes.  It was common ground that parties, including that of the present applicant, have sought to persuade voters to adopt, for that party’s own political interest, one or other of the permitted methods of voting. 

1. The present application is for an injunction under section 196 of the Electoral Act. It is asserted that “booth wrap” which is prominently displayed on a fence directly outside the entrance to the polling booth at Carina State School constitutes a publication which is:

“intended or likely to mislead an elector in relation to the way of voting at an election”

1. and thus contravenes section 185 (1) of the Electoral Act. This alleged contravention founds, for the purposes of section 196 (1)(b), the present application for injunctive relief.

1. The booth wrap comprises signs which read “Remember to number every square”.  It was not in issue that the colouring of the sign is very similar, if not identical, to that used by the Australian Electoral Commission in its publications and signage in connection with Commonwealth elections.  Each booth wrap sign bears the authorisation notice required by the Electoral Act. 

1. Counsel for the applicant contended that the particular phrase “Remember to number every square”, together with the getup which is similar to the official signage of the Australian Electoral Commission, and the apparent formality of the message contained in the phrase, all combine to yield signage which is at least likely to mislead a voter in relation to the way of voting at the election.  In short, it is said that the signs are apt to be read by a voter as being, in effect, an official reminder that the voter must cast a preferential vote rather than the voter having the option of voting in one of the two ways permitted under the legislation. 

1. If given that meaning in context, then this signage would be about “the way of voting at the election” and therefore susceptible to the application of section 185. See in that regard Evans v Crichton-Browne (1981) 147 CLR 169 at page 204, Robertson v Knuth (1997) 1 Qd R 95 at 97 per Pincus and Davies JJA.

1. Whether these signs are at least “likely to mislead” in the sense proscribed by section 185 is a question which must be informed by not only the strict reading and appearance of the sign but also the wider context of the publication of that sign. In the present case, that context includes the fact, as I mentioned earlier, that parties have, in the course of the current election campaign, been actively urging voters to use one or other of the permitted modes of voting. That urging voters to adopt one rather than the other modes of voting is an active part of today’s election is made good by reference to the fact that, on the material before me, the applicant’s party is itself displaying signs not in its party colours but in a colour identical to that used by the Queensland Electoral Commission exhorting voters to “Just vote 1”.

1. It was also said for the respondent in the course of argument, and not disputed by the applicant, that it has become common practice for the major parties in election campaigns to dress up material they publish in such a way as to disguise its political origin, particularly from voters who may not necessarily have an allegiance to a particular party.  It is unnecessary for me to comment, for present purposes, on the probity or appropriateness of that conduct. 

1. In the broader context to which I referred above, the adjuration to a voter to “Remember to number every square” is a counterpoint to the exhortation to “Just vote 1”. 

1. It is not enough on an application such as this for the applicant to show merely that there is a possibility of a voter being misled. Section 185 requires that there be a likelihood. See Goss v Swan (1994) 1 Qd R 40 at 41. I am not satisfied that the applicant has demonstrated that, in the context in which the booth wrap has been published, there is a likelihood of a voter - even a gullible and naïve voter such as that referred to in Goss v Swan (supra) - being misled in relation to the way of voting. 

1. The application will be dismissed.