Pavlekovich-Smith v Australian Electoral Commission - [1993] HCATrans 206

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Melbourne No M48 of 1993
B e t w e e n -
IVAN PAVLEKOVICH-SMITH

Petitioner

and
COMMONWEALTH ELECTORAL
COMMISSIONER and
COMMONWEALTH ELECTORAL
COMMISSION

Respondents

Summons

DAWSON J

Pavlekovich-Smith

28/7/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 28 JULY 1993, AT 9.37 AM

MS S.C. KENNY:

I seek leave to appear on behalf of the

respondents, correctly named the Australian
Electoral Commission. (instructed by the
Australian Government Solicitor)
The petition actually describes the Commission

as the Commonwealth Electoral Commission and refers
to a Commonwealth Electoral Commissioner but it
should appropriately be the Australian Electoral
Commission.

HIS HONOUR:

I will deal with that in a moment, but you

appear for the Electoral Commission - or at least
you seek leave and I give you leave, and that means
that it then becomes a party, does it not?

MS KENNY: That is so, Your Honour, yes.

HIS HONOUR:

Now, do you call yourself Mr Pavlekovich-Smith

or Mr Smith.

MR I. PAVLEKOVICH-SMITH:

You can call me Mr Smith, if you

like.

HIS HONOUR:

Very well.

You appear in person, do you not?

MR SMITH:

Yes.

I am representing myself.

I did apply for

legal aid and it is currently being appealed.

HIS HONOUR: Very well.

MR SMITH:	The other thing is I do not feel very well, very congested in the head and I have got a doctor's
certificate saying such.
HIS HONOUR:	Do you feel that you are able to proceed?
MR SMITH:	The body feels okay, just that speech is

very - - -

HIS HONOUR:

We will try and cope with that.

If you do not

feel well, just say so. Now, Mr Smith, Ms Kenny
has raised the point that the Commonwealth
Electoral Commission is misnamed in the petition

and it would be advisable to correct the name. Do
you apply for leave to correct the name?

MR SMITH:	I do not understand.
HIS HONOUR:	What the petition says is "Commonwealth

Electoral Commissioner" "Commonwealth Electoral
Commission" and the correct - - -

MR SMITH: Australian Electoral Commission.

HIS HONOUR: That is the correct name, is it not?

Pavlekovich-Smith

28/7/93

MS KENNY:

That is correct under section 6 of the

Commonwealth Electoral Act, Your Honour.

HIS HONOUR:

And that would be the correct respondent, so do

you apply to amend the name to include the correct
name or to replace what is there with the correct
name.

MR SMITH:

Yes, I do apply.

HIS HONOUR:

Very well, and I grant leave.

Now we will see

what Ms Kenny has to say.

MS KENNY:

Your Honour, this matter comes before you

pursuant to a summons brought on by the

respondents. The summons seeks, effectively, three
orders, in substance, that no proceeding be had on
the petition, but before I come to that there are
some matters of form which have not…

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 Pavlekovich-Smith v Australian Electoral Commission

Details

AGLC: Pavlekovich-Smith v Australian Electoral Commission [1993] HCATrans 206
Case: [1993] HCATrans 206
Decision Date

CaseChat Overview and Summary

In the High Court of Australia, Ivan Pavlekovich-Smith, appearing in person, brought a petition against the Australian Electoral Commission. The dispute concerned the proper naming of the respondent and several procedural matters relating to the petition, including its signature, publication in official gazettes and a newspaper, and service.

The primary legal issues before the Court were whether the petition had been correctly filed and served, and whether the petitioner had complied with the procedural requirements for challenging an election. Specifically, the Court was asked to consider the correct designation of the respondent, the adequacy of the petition's signature, and the petitioner's compliance with rules concerning the publication of the petition in the Commonwealth and State Gazettes and a local newspaper, as well as the rules regarding service.

The Court, presided over by His Honour, granted leave to amend the petition to correctly name the respondent as the Australian Electoral Commission, as provided for under section 6 of the Commonwealth Electoral Act. The Court also addressed the petitioner's signature on the petition, confirming its authenticity. The remaining matters, concerning publication and service, were to be further considered, with the respondent indicating it would argue that the petitioner had not complied with the relevant rules, potentially precluding a challenge to the general election.

Orders