Muldowney v State of South Australia

[1994] HCATrans 12

IN THE HIGH COURT OF AUSTRALIA

Registry      No C22 of 1993

B e t w e e n -

PATRICK KEVIN MULDOWNEY

Plaintiff

and

THE STATE OF SOUTH AUSTRALIA

First Defendant

LYNN ARNOLD

Second Defendant

CHRISTOPHER SUMNER

Third Defendant

IAN SPENCER, AUSTRALIAN ELECTORAL
  OFFICER

Fourth Defendant

ANDREW BECKER, ELECTORAL COMMISSIONER FOR SOUTH AUSTRALIA

Fifth Defendant

Directions hearing

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 SEPTEMBER 1994, AT 9.17 AM

Copyright in the High Court of Australia

_________________

MR R.C. REFSHAUGE:   If the Court please, I appear for the plaintiff.  (instructed by Macphillamy Cummins & Gibson)

MR J.J. DOYLE, QC, Solicitor‑General for the State of South Australia:  If the Court pleases, I appear for the defendants, other than Mr Spencer.  I am not actually certain whether he is still a defendant or not, but if he is I am not appearing for him.  (instructed by the Crown Solicitor for South Australia)

HIS HONOUR:   Yes, Mr Solicitor.  Mr Refshauge.

MR REFSHAUGE:   Your Honour, in relation to that matter, a notice of discontinuance has been filed as against Mr Spencer and, indeed, we seek consequential orders following that.  If Your Honour pleases, could I either file in Court, or hand up, on an undertaking file afterwards, a chamber summons which sets out the orders that we seek.

HIS HONOUR:   Mr Solicitor has a copy of this, has he?

MR REFSHAUGE:   He does, yes. 

HIS HONOUR:   No objection to order 1, Mr Solicitor?

MR DOYLE:   No, Your Honour.

MR REFSHAUGE:   Save that there is a typographical error I have just noticed; it is Spencer, not Spender.

HIS HONOUR:   By consent I will make order 1 substituting Spencer for Spender.

MR REFSHAUGE:   Thank you, Your Honour.

HIS HONOUR:  Then we come to the stated case.

MR REFSHAUGE:   The stated case, yes, Your Honour.  It is the view of the parties, as I understand it, that this matter can most conveniently proceed by way of stated case, if the Court pleases.

HIS HONOUR:   Yes.  Can I just have a look at the 78B notice.  I have had a look at the earlier one and it seemed to me to be singularly uninformative.

MR REFSHAUGE:   It was, Your Honour.  I have prepared another one and it seemed to me, with respect, that the best and most convenient way to proceed is simply to annex the case stated, which makes the issues then quite plain as to fact and matters of law.

HIS HONOUR:   Are you happy with that?

MR DOYLE:   Yes, sir.

HIS HONOUR:   I take it, Mr Solicitor, that you consent to the case stated in the form that is now being shown to me?

MR DOYLE:   Subject to two very minor amendments, Your Honour, paragraph 5 - this is a bit pedantic ‑ but in the second line, at the end of the line, perhaps should be “by” rather than “under” because the section itself actually establishes the office.

HIS HONOUR:   Yes, right.

MR REFSHAUGE:   No objection, Your Honour.

MR DOYLE:   And, second is to paragraph 6, I have suggested to my friend and I understand he agrees ‑ ‑ ‑

HIS HONOUR:   When you say pedantic, do you mean it might have said the fourth defendant is the electoral - or holds - - -

MR DOYLE:   Well, I was just thinking it under‑suggests that the office is established by some further mechanism that is by ‑ ‑ ‑

HIS HONOUR:   I see, yes, your reference to pedanticism was merely an objection to “under” rather than “by”?

MR DOYLE:   Yes, another exercise as yesterday in self‑flagellation, Your Honour.

HIS HONOUR:   You have been appearing too frequently in the High Court.

MR DOYLE:   Well, it seems now, Your Honour, that the thing is to argue cases in terms of what one did in the first 12 months which is how we are all adjusting our style of advocacy after yesterday.  Secondly, Your Honour, in paragraph 6 I am suggesting that we delete the words “has published and” so that it simply reads “the plaintiff intends to publish”, which would seem to us sufficiently raises the issue because ‑ ‑ ‑

HIS HONOUR:   Are you happy with that, Mr Refshauge?

MR REFSHAUGE:   Yes, I am.  We believe there has been publication but I am not in a position to say.  It raises the issue and I am content with that amendment.

HIS HONOUR:   Very well.

MR DOYLE:   And, the only other point, Your Honour, so that it is clearly understood.  The statement of claim claims that if the section is invalid or sections are invalid that then all elections held - it says since 1905, I think it means 1985 - are void or ineffective.  Now, the case stated does not raise the question of consequential relief and it seems to us more convenient to defer that.

HIS HONOUR:   Yes.  You are happy with that?

MR REFSHAUGE:   Yes, that is so, Your Honour.

HIS HONOUR:   Now, just one question I was going to ask you.  Is it necessary to have Mr Sumner as the third defendant?

MR DOYLE:   I would not have thought so, Your Honour, with respect, or actually Mr Arnold.  It does not really trouble us.  The real defendant, I think, seems to be Mr Becker ‑ ‑ ‑

HIS HONOUR:   And the State of South Australia.

MR DOYLE:   And, the State of South Australia, yes.  So, I was not pressing to have them deleted but they do seem quite irrelevant.  Neither of them hold office any longer.

HIS HONOUR:   No, that is what I thought.

MR DOYLE:   Although, perhaps they might be interested in the grant of relief, having the last election declared invalid, which would put them back in office.  No, they could easily be deleted and it might be tidy.

HIS HONOUR:   Yes, but Mr Refshauge, I would be prepared to state a case in a form that eliminates them as defendants, but of course you would need to eliminate them as defendants in the action.

MR REFSHAUGE:   Yes.

HIS HONOUR:   What is your view about that?

MR REFSHAUGE:   I have no instructions and, the matter having not been raised, I really have not given any consideration to whether, in  ‑ ‑ ‑

HIS HONOUR:   Perhaps the best thing for me to do is to indicate that I will sign a case stated in the form that is now in front of me.  If the parties come to some arrangement as a result of which they think it appropriate to eliminate those two defendants from the proceedings, I would be prepared to sign another stated case in which they are eliminated and consequential adjustments are made to the facts stated, because you would not need a couple of paragraphs in the case stated.

MR REFSHAUGE:   Certainly.

HIS HONOUR:   So what I will do is in relation to the second order that you seek in the summons, I shall say that I will sign a case stated in the form initialled by me and placed with the papers, and that form will contain amendments to paragraphs 5 and 6, those amendments also being initialled by me.  And I will make order 3 as asked.  Is there anything else you want?

MR REFSHAUGE:   No, Your Honour.

MR DOYLE:   No, Your Honour.

HIS HONOUR:   The only other thing I should say is that it may be convenient to have this case listed before the Full Court with another case that has been stated by Justice Deane that relates to the validity of section 329A of the Commonwealth Electoral Act.  Do you know the name - - -

MR REFSHAUGE:   That is a matter of Langer, is it, Your Honour?

HIS HONOUR:   Langer, that is it, yes.

MR REFSHAUGE:   Yes, indeed, Your Honour.  For our part, we provide an address for service for Mr Langer who appears in person and I think it had been intended that, were it possible, the two matters would be listed - - -

HIS HONOUR:   329A is a provision that is very similar to section 126.  There are some differences in the language but the validity of the South Australian provision and section 329A seem to me to give rise to similar issues.  I had intended to ask the question:  is the attack on section 76 arguable in the view of the counsel?  It seemed to me that there obviously is a stronger issue in relation to 126 than there is in relation to 76.  But I take it that counsel have given consideration to that and I suppose the other factor is it is tied in with 126 and therefore it is somewhat inconvenient to draw a distinction between them.

MR REFSHAUGE:   Yes, Your Honour.  With respect, Your Honour, we would tend to the view that section 76 is secure but it seems there is not much point worrying about that at this stage.

HIS HONOUR:   No.  Very well, having said that, the Court will adjourn sine die.

AT 9.26 AM THE MATTER WAS ADJOURNED SINE DIE