Mitchell v Bailey

[2008] FCA 426

FEDERAL COURT OF AUSTRALIA

Mitchell v Bailey [2008] FCA 426

CONSTITUTIONAL LAW - Court of Disputed Returns – Parliamentary Election (Cth) – House of Representatives – Whether court has power to grant parties to a petition pre-trial access to ballot-papers – Consideration of s 360(1)(iii) Commonwealth Electoral Act 1918

Commonwealth Electoral Act 1918 (Cth) ss 268(1)(d), 281, 281(3), 360, 360(1), 360(i)(iii)
Commonwealth Electoral Act 1918 – 1921 (Cth) s 115
Commonwealth Electoral Act 1922 (Cth) ss 23, 24
Commonwealth Electoral Legislation Amendment Act 1984 s 5
Electoral Referendum Regulations 1919 Regs 40(1), 41(2), 46, 48, 49, 55, 56, 59(1), 68, Forms 23, 26
Electoral and Referendum Regulations 1966 Reg 12
Commonwealth Electoral Act 1965 (Cth) s 18
Commonwealth Electoral Act 1911 (Cth) s 29
Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB(2)

Hedges v Burchell (1913) 17 CLR 327 considered
Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 referred to
R v Wallis; Ex Parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 referred to
Mills v Meeking (1990) 169 CLR 214 referred to
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 referred to
Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 referred to
Richardson v Austin (1911) 12 CLR 463 referred to
Scott v Scott [1913] 1 AC 417 referred to
John Fairfax Group v Local Court (NSW) (1911) 26 NSWLR 131 referred to
Kean v Kerby (1920) LR 449 considered
Kioa v West (1985) 159 CLR 550 referred to
Annetts v McCann (1990) 170 CLR 596 referred to
Russell v Duke of Norfolk [1949] 1 All E R 109 referred to

ROB MITCHELL v FRAN BAILEY and AUSTRALIAN ELECTORAL COMMISSION

VID 123 OF 2008

TRACEY J
22 APRIL 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 123 OF 2008

BETWEEN: ROB MITCHELL
Petitioner

AND:

FRAN BAILEY
First Respondent

AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	22 APRIL 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The order sought in paragraph 3 of the petitioner’s summons for directions filed on 13 February 2008 be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 123 OF 2008

BETWEEN: ROB MITCHELL
Petitioner

AND:

FRAN BAILEY
First Respondent

AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

JUDGE:	TRACEY J
DATE:	22 APRIL 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. A general election of the members of the House of Representatives was held on 24 November 2007.  Eight candidates were nominated for election in the Electoral Division of McEwen in Victoria.  The petitioner was one of those candidates.  He had been endorsed by the Australian Labor Party.  The first respondent was another candidate.  She was the candidate endorsed by the Liberal Party of Australia.  The writ for the election was returned on 21 December 2007.  The certificate attached to the writ…