Muldowney v The Australian Electoral Commission; Muldowney v The Australian Electoral Commission

[1993] HCATrans 169

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Registry Nos C9 and Cl0 of 1993

B e t w e e n -

PATRICK KEVIN MULDOWNEY

Petitioner

and

THE AUSTRALIAN ELECTORAL

COMMISSION

Respondent

For Directions

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Muldowney 1 18/6/93

AT CANBERRA ON FRIDAY, 18 JUNE 1993, AT 10.17 AM

Copyright in the High Court of Australia

MR R.C. REFSHAUGE: If the Court pleases, I seek leave to

appear for the petitioner in this matter.

HIS HONOUR:  Leave is given, Mr Refshauge.

MR D.J. ROSE, QC: If Your Honour pleases, I seek leave to

appear for the Australian Electoral commission, the

respondent in the proceedings.	(instructed by the
Australian Government Solicitor)

HIS HONOUR: Yes. Leave is given, Mr Rose. Yes,

Mr Refshauge.

MR REFSHAUGE:  Your Honour, the matter comes before you on

summonses for seeking certain directions, the

directions sought in the summons having been

prepared by the petitioner himself, and before

yesterday I had prepared some specific orders that

we were seeking, and perhaps I could hand those up.

I have given a copy to my friend. They are first

an order seeking the reservation of questions for

the consideration of the Full Court and then

certain directions as to the disposition of the

petitions.

HIS HONOUR: Yes, Mr Refshauge.

MR REFSHAUGE:  Your Honour, since then I have been served

with a summons - - -

HIS HONOUR: Perhaps I ought to take from you the material

which you read, first of all.

MR REFSHAUGE:  I am sorry, Your Honour. I read the summons.

Does Your Honour wish me to read the petition?

HIS HONOUR: Well, it is a matter for you, but it seems to

me that you probably need to read the petition

before you read the summons, at least formally.

MR REFSHAUGE:  Yes. In each matter, Your Honour, I read the

petition. Does Your Honour wish me to read it?

HIS HONOUR:  Not formally to read it, no. I have read the

documents.

MR REFSHAUGE:	Thank you, Your Honour.
HIS HONOUR:	The petition, the summons - - -. .
MR REFSHAUGE:	The summons and the affidavit of

Patrick Kevin Muldowney.

HIS HONOUR:  Yes.

Muldowney 2 18/6/93

MR REFSHAUGE: That is the material on which I rely,

Your Honour.

HIS HONOUR:  Now, have you anything further to say?

MR REFSHAUGE: Well, Your Honour, as indicated, there are

two other summonses. There is the summons that has

been filed by my learned friend, those instructing

him, and I understand there is a summons that he

wishes to file in Court, of which I have just

received notice. Now, the question really then is,

how those three matters should be dealt with.

Perhaps before I address Your Honour on that it

might be appropriate for those further documents to

be received if they are to be received.

HIS HONOUR:  Yes. Mr Rose.

MR ROSE:  If Your Honour pleases, as my friend has said, one

summons was filed to seek a striking out of the

petition. That summons was filed from the

assumption or in the belief at that time that the

petitioner was enrolled, was qualified to vote, in

the division of Boothby in South Australia. Late

yesterday afternoon we received information, the

basis of which we would be submitting that he was

not qualified to vote at the election of Boothby.

There is no evidence of his being qualified to vote

in any other South Australian electorate and if

that is so, it is our submission in relation to

section 355 of the Electoral Act that the

proceedings on the petition cannot go ahead.

HIS HONOUR:  Yes. You have a summons, I take it, but you do

not have affidavit in support of it.

MR ROSE:  We do, if Your Honour pleases; we have an

affidavit in support. May I tender a draft summons

which picks up that further point to which I just

alluded and - - -

HIS HONOUR:	You have a copy of this, Mr Refshauge?
MR REFSHAUGE:	I do, Your Honour, yes.

MR ROSE:  - - - the original affidavit and exhibits

attached; an affidavit by Ms Peta Dawson of the

electoral office.

HIS HONOUR:	You have seen the affidavits, Mr Refshauge?
MR REFSHAUGE:	I have, thank you, Your Honour.
HIS HONOUR:	Yes, Mr Rose.
MR ROSE:	If Your Honour pleases. May I direct

Your Honour's attention to the sections of the

Muldowney 3 18/6/93

Electoral Act which support my submission that the

proceedings cannot go ahead.

HIS HONOUR: Well, the first question is: when is this

question to be determined? Your submission, I take

it, is that we should determine it immediately, is

that right?

MR ROSE:  If that would meet the convenience of the Court,

Your Honour.

HIS HONOUR: Well, perhaps I should hear what Mr Refshauge

has to.say about that.

MR REFSHAUGE:  Your Honour, I have not had an opportunity to

take full instructions from my client on that very

question. I would seek Your Honour's indulgence

for a short adjournment for that purpose.

HIS HONOUR:  Yes. It does seem to me that this petition,

that is C9, being a challenge to the validity of a

general election, it raises questions of some

importance and perhaps the chief one is whether a

court of disputed returns has the necessary

jurisdiction to entertain such a petition and if so

whether section 355 has been complied with in its

various particulars.

I mention that as being perhaps the first

question for determination, because the question of

service and advertisement is obviously one which is

of concern to Mr Muldowney, and there would be little purpose in proceeding with that if there

were some objection that was fatal to the petiti·on

in any event. I am thinking of the first summons,

of course, when I say that, rather than the second.

For that reason, it seems to me that there may

be some merit in determining Mr Rose's summons

before dealing with the questions of directions, so

that during the period of the adjournment, you

might like to take instructions on that also and if

that course is the desirable course, then it is a

question of deciding when that will be done, either

today or on some other day.

MR REFSHAUGE: Yes, Your Honour.

HIS HONOUR:  How long would you like, Mr Refshauge?

MR REFSHAUGE: Perhaps 10 minutes, Your Honour.

HIS HONOUR:  Perhaps you could let my associate know when

you are ready to resume and I will come back when I

am sent for.

MR REFSHAUGE:	Thank you, Your Honour.
Muldowney	18/6/93

AT 10.26 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.36 AM:

HIS HONOUR:	Yes, Mr Refshauge.
MR REFSHAUGE:	I am grateful for Your Honour's indulgence

for that. My instructions are that it would be

proposed that the petitioner would need to file a

short affidavit in response, and therefore it would

not be possible to proceed today. We are of the

view that the whole of the respondent's summons

should and could conveniently be dealt with

together, as it seems to raise, certainly in the

first two paragraphs of today's summons, those

fundamental issues under section 355 and whether a

general election can be challenged at all under
that part of the Electoral Act, and question 3, we
say, obviously will not arise, but again can
probably be dealt with conveniently at the same
time, and those challenges could then hopefully
dispose of the preliminary point so· that the other
questions that we say can conveniently be dealt

with before the trial of the summons can then be

dealt with.

If Your Honour is disposed to proceed in that

way, however, can I just say this, that it would

seem appropriate for Your Honour to make,

certainly, the second direction, and possibly the

first, if it is necessary, in the directions we

have sought. I assume, from the way in which my

friend has entitled his documents, that there would

be no dissent to some form of the direction in

No 2, but that would certainly - - -

HIS HONOUR:  Yes, well there does not seem to be any

difficulty about direction No 1.

trouble with that, Mr Rose? Do you have any

MR ROSE: 

No, Your Honour.

HIS HONOUR: 

Nor with No 2, I would not have thought.

MR ROSE: 

No.

MR REFSHAUGE: 

If Your Honour would be kind enough to give

those directions and then adjourn the further
hearing of the respondent's summons.

HIS HONOUR: Yes. Well now, it should not be adjourned for

a lengthy period - - -

Muldowney 5 18/6/93

MR REFSHAUGE:  No, Your Honour.

HIS HONOUR:  - - - for two reasons. One is because of the

gravity of the questions that are raised, it should

be resolved as quickly as possible; the second is because of the problems of service that can arise

within the limited times. The Full Court is not

sitting next week and, in my view, the matter

should be disposed of then. Have you any days on

which you would wish to bring the matter on?

Perhaps you and Mr Rose might like to consult on

that question.

MR REFSHAUGE:  Yes, Your Honour. Your Honour, it would be

possible on Wednesday but, if possible, for a

slightly later start. I have a matter in the

Federal Court at 9.30 which I do not expect to go

for more than half an hour at the most, and

probably less. If the Court would be prepared to

sit, say, at 10.30 on Wednesday, then Wednesday

would be convenient.

HIS HONOUR:  Yes, certainly. How long would you expect the

matter to go? Perhaps I should ask Mr Rose that

question.

MR ROSE:  I would not expect to take more than half an hour,

if Your Honour pleases.

HIS HONOUR: That is on your latest summons.

MR ROSE: That is on the three points raised in the latest

summons.	I think they can be dealt with quite
briefly.

HIS HONOUR:  Yes. What about the other summons; it would

take a little longer, would it not?

MR ROSE:  We have objections to a number of the paragraphs

there; probably 20 minutes would cover what I would

wish to submit on that.

HIS HONOUR: Well, in order to relieve any pressure on

Mr Refshauge, if we start at 11 o'clock, that

should see us out, I should think.

Very well then, both petitions will stand

adjourned to open Court before the Court of

Disputed Returns at 11 am on Wednesday next, and I

direct in accordance with paragraphs 1 and 2 of the
draft directions handed to me by Mr Refshauge in

relation to matters C9 and Cl0.

MR REFSHAUGE:  Thank you, Your Honour.

Muldowney 6 18/6/93

HIS HONOUR:  The question of any costs is reserved until

final disposition of the matter. Adjourn until

11 am on Wednesday next.

AT 10.41 AM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 23 JUNE 1993

Muldowney 7 18/6/93