Nile v Wood - [1988] HCATrans 110

~ ;;--~~

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

In the matter of -

The Commonwealth Electoral Act

1918-1980

Office of the Registry

Sydney No S93 of 1987
ELAINE NILE

Petitioner

and
ROBERT WOOD

First Respondent

THE AUSTRALIAN ELECTORAL COMM:ISSION

Second Respondent

Application for costs

BRENNAN J

DEANE J

TOOHEY J

Nile(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 JUNE 1988, AT 9.47 AM

(Continued from 16/12/87)

C2Tl/1/RB

2/6/88

MISS J. COOMBS:

I appear for Mrs Nile. (instructed by

E.L. Dearn, O'Kane & Associates)

MR R. MUECKE:

If the Court pleases, I appear for the

Commonwealth (instructed by Australian Government
Solicitor)

BRENNAN J:

We have received submissions on behalf of

Mrs Nile and on behalf of the Commonwealth. Those have

been read and they are, of cou~se, with the Court papers
and are part of the Court's proceedings.

MISS COOMBS:

If the Court pleases.

In that case, Your Honour,

I perhaps may take it that I have dealt with the
basic questions in those documents and I feel it is
proper for me to go ahead from that point and
say that in our view the attitude of the Commonwealth
has shown a kind of disrespect to the CONSTITUTION
under which the proceedings were brought, because
that being an Act which cannot be changed except
by referendum should be given extreme respect by
Commonwealth officials quite apart from their
own viewsor the views of the government.
The fact that my client was bringing proceedings under the Commonwealth CONSTITUTION should have
alerted them to a duty to investigate the facts
and if they had investigated the facts at that
point they would have found the fact of Wood's
ineligibility on account of his want of nationality
and, perhaps, the whole matter could have been
disposed of at a very early stage if that matter
had been investigated by the officials at that
time and would have saved a lot of expense and
a lot of publicity and so forth.
Now, another aspect is, Your Honours, that

there were numerous points at which we say the
Commonwealth was at fault in the facts of this
matter.

(Continued on page 90)

C2Tl/l/MB	89	MISS COOMBS	2/6/88
Nile(2)

MISS COOMBS (continuing):

Now, even when one fills out a

tax return one is given several pages of explanation
how you are to fill it out and the government does
not assume that because they give you an assessment
form to fill out that it is all easy and you know
how to do it. It is our submission that some kind
of instruction sheet could have been given to the
candidates which perhaps would have deterred
Mr Wood from even attempting to get into the
Parliament without resolving his problems. It is our submission, Your Honour, that the question of
his nationality is a part of our ground under
section 44 relating to allegiance to a foreign power.

That…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nile v Wood

Details

AGLC: Nile v Wood [1988] HCATrans 110
Case: [1988] HCATrans 110
Decision Date

CaseChat Overview and Summary

The case of *Nile v Wood* involved an application for costs brought by Mrs Elaine Nile against the Commonwealth Electoral Commission. The proceedings concerned the eligibility of Mr Wood to be a member of Parliament, with Mrs Nile arguing that Mr Wood was ineligible due to his nationality, a matter falling under section 44 of the Commonwealth Constitution.

The central legal issue before the High Court was whether the Commonwealth Electoral Commission should be ordered to pay Mrs Nile's costs. This question hinged on the conduct of the Commonwealth officials in the lead-up to and during the proceedings, particularly concerning their alleged failure to adequately investigate Mr Wood's eligibility and to provide sufficient guidance to candidates regarding nomination requirements.

Mrs Nile's counsel argued that the Commonwealth's attitude demonstrated a "disrespect to the Constitution" and that a proper investigation into Mr Wood's nationality would have resolved the matter early, saving significant expense and publicity. It was submitted that the Commonwealth had a duty to investigate the facts, especially given the constitutional nature of the proceedings. Furthermore, it was contended that the Commonwealth could have provided clearer instructions or guidance to candidates, akin to the explanations provided for tax returns, which might have prevented Mr Wood from attempting to nominate without resolving his eligibility issues. Counsel referred to *Schaftennaar v Samuels* (1975) 11 SASR 266, suggesting the court could consider the substance of contested issues and the conduct of the parties when determining costs.

Orders