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 1 28/7/93

TRANSCRIPT OF PROCEEDINGS

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

Copyright in the High Court of Australia

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 2 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 yet been

clarified on the part of the petitioner. They

include, for example, the signature on the

petition, perhaps less importantly, but more

importantly, matters of publication in the

Commonwealth and State Gazettes and in a newspaper

within the electoral Division of Isaacs, in the

case of Mr Pavlekovich-Smith; and also in matters

of service.	Does Your Honour want to deal
with - - -

HIS HONOUR:  Perhaps we can deal with the first matter

anyway immediately. Mr Smith, would you look at

this petition and say whether it is your signature

which appears on the second page.

MR SMITH:  Yes, that is my signature.

HIS HONOUR:  I think that covers that, Ms Kenny. Now, the

other two matters?

MS KENNY:	The other two matters, Your Honour, arise under Order 68 rule 3 of the High Court Rules and under
rule 5.
publications.  The first matter is the matter of

HIS HONOUR: Yes.

MS KENNY:  It is unknown to the respondents whether the

petitioner has in fact published a copy of the
petition in either the Commonwealth Gazette or a

State Gazette in which the election was held and

for these purposes, Your Honour, the respondent

would be satisfied that a publication was had in

the Victorian State Gazette for this reason: one of the submissions the respondent would put is that it is not open, on any event, for the petitioner to

challenge the entire general election. If it is

open to him to challenge anything, it is open to

Pavlekovich-Smith 28/7/93

him to challenge the election for the member for

the Division of Isaacs and also the election of

senators for Victoria. The petitioner was enrolled

and qualified to vote in the Division of Isaacs.

This matter has recently come before

His Honour Justice Brennan in a case of

Muldowney - - -

HIS HONOUR:	Yes, I have read his judgment.
MS KENNY:	- - - and I would rely upon that decision,

Your Honour, both in relation to this petition and

in relation to the next petition.

HIS HONOUR:	Now, is there an affidavit of service?
MS KENNY:	There is no affidavit of service on behalf of the

petitioner. There are affidavits, jumping ahead a

bit, of service - I beg your pardon, no. The

answer, Your Honour, is no in relation to the

petitioner.

HIS HONOUR: Perhaps I will find out from Mr Smith.

Mr Smith, under Order 68 rule 3 of the High Court

Rules the petitioner is required to ·publish a copy

of the petition, after the filing of the petition -

in the Commonwealth Gazette and in the

official Gazette of the State in which the

election was held; and

(b) in the case of an election of a member of the House of Representatives, publish in some

newspaper circulating in the Electoral

Division for which the election was held a notice setting forth the fact of the filing of the petition -

Now, have you attempted to comply with that rule?

MR SMITH:  Yes, sir. I have contacted all the State Gazette

and Commonwealth Gazette offices, I have called the

two Australian newspapers that circulate in every

electorate, being the Financial Review and the for legal aid to help fund the publication and it

is still all embroiled in the appeal process.	The
Attorney-General -

HIS HONOUR:  There has been no publication as is required by

the rule.

MR SMITH:  From my understanding, some of the gazettes have

just taken upon themselves to publish it, so in

some States it has been published, in others it has

Pavlekovich-Smith 4 28/7/93

not, and I have got correspondence from all the

gazette offices and they are all the exhibits that

I have lodged into the Court. I have done the

most - I am only a student and I cannot afford - I

was forced to abridge the petition, it was 30 pages

in length initially and - - -

HIS HONOUR: Well, yes, but I am just trying to find out

what the situation is.

MR SMITH:  I qualified for the waiving of fees in the High

Court - - -

HIS HONOUR:  Where has the petition been published? Has it

been published in the Commonwealth Gazette?

MR SMITH:  I do not know, sir.

HIS HONOUR:  You do not know. Has it been published in the

Victorian Gazette?

MR SMITH: It has.

HIS HONOUR: It has?

MR SMITH:  Yes. I have got a copy of it here.

HIS HONOUR:  You have a copy there, do you?

MR SMITH: Yes.

HIS HONOUR:  Perhaps if you would hand that up. You could

show it first of all to Ms Kenny.

MR SMITH:  New South Wales said they were going to publish

it and worry about the costs later.

MS KENNY:  Your Honour, it appears to be in order.

HIS HONOUR:  Yes. Perhaps we need not worry about the other

publication, which is a publication in the case of

an election of a member of the House of

Representatives, because you are contesting the

whole election, are you not?

MR SMITH: That is correct.

HIS HONOUR: That raises another point. Very well, I think

we can proceed from there, thank you, Mr Smith.

Ms Kenny?

MR SMITH:  I was just going to add that there are no time

limits set for those publications, according to the

rules, so - - -

Pavlekovich-Smith	28/7/93
HIS HONOUR:	You have satisfied the objection that was

raised by Ms Kenny up to this point, Mr Smith, so I

think we will proceed to hear what she has to say.

MS KENNY:	Your Honour, there remain two other objections but it may be these can be dealt with subsequently,
that is Mr Smith would appear to state that there
has been no publication in the Commonwealth Gazette
and my submission would be that the rules require
that there be such publication.
HIS HONOUR:	Yes.
MS KENNY:	The second matter, which has not been addressed

by Mr Smith, is the matter of service of the

petition and, in my submission, that is also

required by the rules. But, Your Honour, I am

aware that when the matter came before His Honour

Justice Brennan last similar sorts of matters arose

and His Honour determined to hear the application

made by the respondent concerning the validity of the petition itself, and if Your Honour considers

it is an appropriate time to put that argument,

then we might return to these formal matters if

necessary.

HIS HONOUR:  If necessary later, yes, and they may or may

not be matters, I do not know at this stage, that

can be corrected, so it may be time saving if you

proceeded to your argument in substance.

MS KENNY:  Your Honour, as I indicated, this matter comes

before you pursuant to a summons dated

19 July 1993. There are two affidavits filed in·

support of that summons - - -

HIS HONOUR:	I have read them.
MS KENNY:	May I take it that the summons and the two

affidavits are read?

HIS HONOUR:  I have read them.

MS KENNY:  The first matter I wish to deal with,

Your Honour, is the matter of the order sought in paragraph 3 of the summons, that is that the

petition be dismissed in so far as it challenges

the election of the Members of the House of
Representatives in any Division other than the

Division of Isaacs and the election of Senators in

States and Territories other than in the State of
Victoria.

As Your Honour is aware, under section 355 of

the Act the validity of any election may be
disputed by petition addressed to the Court of

Disputed Returns and not otherwise. Section 355(c)

Pavlekovich-Smith 6 28/7/93

provides that every petition disputing an election

shall -

be signed by a candidate at the election in

dispute or by a person who was qualified to

vote thereat -

It is not disputed that Mr Pavlekovich-Smith was

enrolled for the Division of Isaacs and was

qualified to vote at that election and was also
qualified to vote for election of senators for the

State of Victoria.

It is not disputed then that the petitioner

whose name appears on the roll may sign a petition

in compliance with section 355(c), disputing the

election of a member of the House of

Representatives for that Division, namely Isaacs,

or for the election of senators in the State or

Territory in which that Division is located. But

the petitioner in this case has proceeded upon the
assumption, in his petition, that it is open to him

to challenge the entire Federal election of

13 March. It is submitted that that is a false

assumption and an elector cannot sign a petition in

compliance with section 355(c) disputing the

election of members of the House for Divisions in

which he is not enrolled or for senators for the

States and Territories in which that Division is

not located.

As I have indicated, the matter came before

His Honour Justice Brennan in Muldowney, which is an unreported decision of 25 June 1993.

HIS HONOUR:	I have a copy here.
MS KENNY:	In that case Your Honour will recall that Justice

Brennan held that the petitioner's name did not

appear on the roll on the date on which the

election was held and, consequently, he was not

qualified to vote at that election and no

proceedings might be had on the petition. That is

the substance or the reason for decision of

His Honour and that appears at page 11.

But a further submission was put to His Honour

to the effect of the submission I make to

Your Honour today, and His Honour considered that

submission and he said at page 14 of His Honour's

judgment that:

The framework of the Act as well as the

language of s.355(c) indicates that the
jurisdiction of the Court of Disputed Returns

does not extend to the making of a declaration

that the entirety of a general election is

Pavlekovich-Smith 28/7/93

void. The jurisdiction to declare an election

void on the petition of a person "who was

qualified to vote thereat" is limited to those
elections in which the petitioner was an

elector entitled to vote.

And, Your Honour, although what His Honour there

said was obiter, strictly speaking, in my

submission it should be followed by this Court.

A similar conclusion as His Honour

Justice Brennan notes was reached by His Honour

Mr Justice Dunn, sitting as the Election Tribunal

under the Queensland Elections Act, in the case of

Re Surfers Paradise Election Petition, (1975)

Qd R 114 at page 117. There is also, I note, some

authority which tends to a contrary decision and

that is a decision of the Supreme Court of Tasmania

in a case called In Re Electoral Act 1907, (1979)

Tas R 282 in particular at page 288. But it would

appear that the decision made by the court in that

case, which arose under State legislation, is

distinguishable because the Act provided that seven

members might be elected from the one Division and

the Supreme Court of Tasmania took the view that
therefore a petition could be brought to challenge

the seven members who were elected for that

Division.

HIS HONOUR: This is under the Hare Clark system?

MS KENNY: That is correct. So, in my submission, that case

is clearly distinguishable. Your Honour, as

His Honour Justice Brennan noted, the term "general

election" is used in the Act as a collective term

where it does appear, but it is descriptive of the

particular elections which are held in each

Division.

That is made reasonably clear by the following

sections of the Act: section 154 of the Act makes

it clear that there is not merely one writ issued

of writs issued. The other sections use the term	for a general election, rather there are a number
"election" specifically in relation to an election in a particular Division and I would refer
Your Honour to sections 277 to 279, to section 284
and to section 362. But there remain two sections which are most indicative of the proposition for which I contend, and that is that in the case of an
election for a member of the House of dies and the election ultimately wholly fails a new
writ is issued for a supplementary election to be
held on the same roll. That appears under section
180(2) and section 180(1). Those provisions, as
His Honour Justice Brennan notes, were probably

Pavlekovich-Smith 28/7/93

applicable in the case of the election for the

House of Representatives for the Division of

Dickson.

The other matter appears from section 221(2) and that is to the effect that each elector is

admitted to vote only for the election of a member

of the House of Representatives "for the Division

for which he or she is enrolled." That, in my

submission, is - - -

HIS HONOUR: Conclusive, you say.

MS KENNY:  - - - almost impossible to argue to the contrary.

There are, it is submitted, good policy reasons

underlying the Act why this approach should be

adopted, namely, a person who is entitled to vote

in an election clearly has an interest in the

outcome of that election. The Act has taken the

view that he has rather a lesser or insubstantial

interest in an election in which he was not

enrolled to vote.

So to return to the petition of

Mr Pavlekovich-Smith, Your Honour will see that the

petitioner, in paragraph 1, effectively challenges

all the Federal Parliamentary Elections of 13 March

and, in his prayer for relief, seeks declarations

that the Federal Parliamentary Elections of

13 March be declared void for the reasons asserted

by him and, similarly, in the second paragraph of

his prayer for relief he again seeks a declaration
that the election be declared void for the reason

there asserted by him.

It would be my submission that the petition

must be dismissed in so far as it challenges the

entire Federal Parliamentary Elections of 13 March.

Certainly it must be dismissed in so far as it

challenges elections other than an election at

which he was qualified to vote. But I would make a

further submission in this case, Your Honour, and

that is that it is not possible when one reads this

particular petition to -

HIS HONOUR:  I am not sure that I followed that last point.

The only election he is speaking about is the

13 March election.

MS KENNY:	Yes, Your Honour, and it is for that reason that I would submit that the entire petition must fail.
It is not possible in this case, as it was in the
Muldowney case, to single out simply the election
for the seat of Isaacs or for senators for the
State of Victoria because the petitioner has sought to challenge indiscriminately the entire Federal
Parliamentary Election.

Pavlekovich-Smith 9 28/7/93

HIS HONOUR:	Yes.
MS KENNY:	That is my submission on the order sought under paragraph 3 of the summons. In relation to the
other orders sought it would be my submission that
the petition fails to set out the facts relied on to invalidate the election as required by section 355(a) or 355(aa). Alternatively, it fails to set out the facts which would permit the Court to declare the election void on any ground
appearing in the petition or to grant any other
relief sought in the petition.

HIS HONOUR:  Yes. Failure to comply with 355(a) cannot be

corrected, as I understand it, but - - -

MS KENNY: That is correct, Your Honour. In the decision of

Nile v Wood the Court held that one could not avoid the result of section 355(e), that a petition

cannot be corrected after the expiration of 40 days

referred to therein.

HIS HONOUR: 

But there is, under section 358(2), power to

relieve the petitioner from compliance under
section 355(aa).

MS KENNY: 

That is correct, Your Honour, and it would be my

submission that in this case the failure on the

part of the petitioner is a failure to comply with

section 355(a) substantially. If it be a failure

to comply in any sense with 355(aa), then it would

be my submission it is inappropriate for the Court

to grant relief - - -

HIS HONOUR:	What is the difference between (a) and (aa)?
MS KENNY:	The difference, in my submission, is this: the

petitioner must set out the facts which would be

sufficient to give him a reasonable basis for claim

that he is entitled to the relief sought.

HIS HONOUR:  I can understand that, but then (aa) does not

seem to add anything.

MS KENNY:  Put it this way, Your Honour, it would seem to me

it is rather like the difference between material

facts pleaded on a statement of claim and

particulars of the facts pleaded on a statement of

claim. So that the petitioner must assert all

those material facts upon which he relies for the

relief sought. Then the Act is requiring even more

than that; it is saying "and particulars of those

material facts must be given sufficient to set out

the specific matters relied upon".

Section 355(aa) was introduced to make

petitions more specific. It was introduced under

Pavlekovich-Smith 10 28/7/93

the Electoral Referendum Regulations Amendment,

which is Statutory Rules 339 of 1988, and it would

appear that it is designed to make the petition
more specific. But be that as it may, in substance
it would be my submission that the petitioner

essentially fails to set out any facts which would

entitle him to relief.

Your Honour, there is another matter which is

not raised by the summons - and I hesitate to raise

it now, but it is my submission that it would also

be appropriate for the Court to consider the

application of Order 63 rule 1, that is that order

which permits a proceeding to be stayed on the

ground that the proceeding is vexatious or is an

abuse of the process of the Court.

HIS HONOUR: That is not raised by the summons.

MS KENNY:	It is not raised by the summons.
HIS HONOUR:	How do you raise it now?
MS KENNY:	I would seek to raise it at a later date, if that

were necessary, Your Honour.

HIS HONOUR: All right.

MS KENNY:  Now, coming to the primary submission,

Mr Pavlekovich-Smith would appear, in his petition,

to raise two matters: the first is the fact that

candidates for election who are sitting members
receive benefits and entitlements which candidates
do not receive advantages the incumbent MPs to the

detriment, presumably, of non-sitting candidates.

And that would appear from Mr Pavlekovich-Smith's

petition in the second. paragraph, and the last

sentence of his petition for the prayer for relief:

I am aware that the entitlements and funding

are legal but my concern is that they

advantaged the incumbent MP's in the

13 March 1993 Federal Parliamentary Elections.

It is the petitioner's concession that the receipts
of those benefits entitlements was legal which
deprives him of any basis for relief in the

petition which he seeks. In other words, the

petitioner does not allege that the benefits or

entitlements or funding was received or applied

other than in accordance with law. That being so,

it is submitted that the petition discloses no

facts upon which the Court could exercise its
powers under section 360 of the Act and it also

follows that the petitioner has not set out any

facts, at least in relation to that ground, which

Pavlekovich-Smith 11 28/7/93

disclose any reasonable basis for the grant of

relief sought that the elections be declared void.

HIS HONOUR:  But under section 355 does he have to disclose,

as it were, a cause of action?

MS KENNY:  According to the Court in Cole v Lacey the

petition must disclose something - enough which

would entitle the petitioner to a grant of relief,

or similarly in Nile v Wood.

HIS HONOUR:	What is the reference to Cole?
MS KENNY:	The reference to Nile v Wood is 167 CLR 133 and

the reference to Cole v Lacey is in (1965)

112 CLR 45 and in particular, at the last page of

His Honour Justice Taylor's judgment, His Honour

formed the conclusion, after considering the

complaint made there, that in this case:

I am satisfied that the petition neither directly nor indirectly alleges any fact which

would justify an order invalidating the return

and directing a recount.

Accordingly, I am of opinion that the

petition should be dismissed.

That ground, if one may call it that, would appear

to underlie the prayer for relief in the first

paragraph and in each other paragraph except the

second paragraph of the prayer for relief.

If Mr Pavlekovich-Smith was to satisfy the

requirements of section 355(a), it would have been

incumbent upon him to have asserted at least that

there had been some contravention of the Act or

regulations or some other relevant contravention of

the law.

Your Honour, before turning from that, I would

note that in the affidavit of Paul O'Neill there is

affidavit on the kind of entitlements to which	an explanation in the final exhibit to Mr O'Neill's
Mr Pavlekovich-Smith refers, and the exhibit to
which I would refer, Your Honour, is PON 2.
Your Honour, I do not think at this point it is necessary to take Your Honour to each of the
specific pieces of legislation which form the basis
of entitlements and benefits to members. They are
set out in -

HIS HONOUR:	What you say is that that demonstrates that the entitlements are legal entitlements and that is
that.

Pavlekovich-Smith 12 28/7/93

MS KENNY: That is that, yes. The second basis upon which

Mr Pavlekovich-Smith rests his petition is in - if

I may work backwards - appears from paragraph (ii)

of his prayer for relief. The petitioner seeks

relief:

That the 13 March, 1993 Federal Parliamentary

Election be declared absolutely void due to

interference with my political liberty to seek

an injunction on the 5 March, 1993.

The basis, or the facts, upon which the petitioner

would appear to rely are set out in the paragraphs

commencing:

On 5 March 1993 I made an application in the the Federal Parliamentary Elections until the

appeal was determined -

until the foot of that page. It would appear that

the petitioner made an application to the Federal

Court for an injunction to suspend the election,

that that application was refused on the basis that

it was an abuse of the process. Stopping there.

It would appear that the petitioner. invoked

section 327(1) of the Act as well which prohibits

the interference by any person:

with the free exercise or performance, by any

other person, of any political right or duty

that is relevant to an election under this

Act.

But it is submitted that the petitioner fails to

set out any facts which would constitute an

interference with any right, political or

otherwise.

I note, first, that the petitioner concedes

that he was able, in fact, to exercise his right to

make an application to the Federal Court for an

injunction and that there was no jurisdiction in

the Federal Court to hear and determine such an

application. Such is the effect of section 353(1)

of the Act which provides that:

The validity of any election or return

may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.

A similar matter was considered by His Honour

Justice Mason, as he then was, in Berrill v Hughes,

(1984) 59 ALJR 64, and in particular at pages 65

and 66. His Honour stated that:

Pavlekovich-Smith 13 28/7/93

The effect of these provisions is that an election or a return is valid for all purposes

unless it is declared void on a petition to

the Court of Disputed Returns which complies

with the statutory requirements.

His Honour went on to say that an injunction to the

High Court based on statutory grounds was not

available, and this would follow ipso facto in the

case of the Federal Court. So it is submitted that

the petitioner had no right to have the Court hear

and determine any application of the kind he made

to the Federal Court in December last year. So

that in that event, there has been no interference

with any right of his.

That being so, it is submitted that the

petition fails to disclose or to comply with

section 355(a) and no proceedings should be had on

it; alternatively, that no relief could be given of

the kind sought in the petition or of the kind

which this Court can grant under section 360 of the

Act.

Your Honour, there is another way of

approaching the petitioner's particular problem on

the second ground, and I will be very brief. If
the petitioner were correct and there were a

contravention of section 227 of the Act, then

section 362(3) would prevent the Court from

granting the relief sought by the petitioner.

Section 362(3) provides that:

The Court of Disputed Returns shall not

declare that any person returned as elected
was not duly elected, or declare any election

void:

(a) on the ground of any illegal practice -

which is defined in section 352(1) to be "a

contravention of this Act or the regulations",

which would include section 327(1) unless it is

satisfied of certain matters set out in that

section.

I shall not read it to Your Honour, but it is

clear that the petition in this case has not

asserted facts which would satisfy

subsection (3)(a) or (b) and, alternatively, on the

material before the Court, could not assert such

facts which would satisfy that section, in which

event the relief sought by the petitioner in the

second paragraph, namely that the election be

declared absolutely void, could not be granted.

Pavlekovich-Smith 14 28/7/93

Hence it is submitted that on any basis and on

the most generous construction of the petition

which stands before the Court, the petitioner has

failed to satisfy the requirements of

section 355(a) and no proceeding can therefore be

had upon it; alternatively, in terms of the

summons, that the petition should be dismissed on

the ground that the Court is not empowered to

declare an election void on any ground appearing in

the petition or to grant any other relief sought by

the petition. Those are my submissions,

Your Honour.

HIS HONOUR:  Thank you, Ms Kenny. Mr Smith, you have heard

what Ms Kenny has to say.	You followed that, I
take it, have you?

MR SMITH:  I have listened to it and I do not agree

with - - -

HIS HONOUR:  Now you have an opportunity to put your

submissions in answer.

MR SMITH:  Should not my petition have been read out so that

the gallery would know what is going on?

HIS HONOUR:  No, that is not usual, Mr Smith.

MR SMITH: That is after,_ okay.

HIS HONOUR:	It is available to them if they want to see it.
MR SMITH:	In section 360 of the Commonwealth Electoral Act, under parts (v), (vi) and (vii), it talks about the
powers of the Court and there it says in
part (vii):

To declare any election absolutely void -

So the Court does have power to declare the election absolutely void. Under section 364

HIS HONOUR:  The question is what is meant by "election"

there, and of course what is put against you is
what the Act is referring to is not the whole

election but, in the case of a member of the House of Representatives, election for the member in the Division in which you are enrolled and, in the case

of senators, senators for Victoria. That is what

is put to you. That in fact is the effect of a

decision of Justice Brennan as recently as

25 June 1993 in a case called Muldowney v

Australian Electoral Commission. That is what you have to meet on the first point.

MR SMITH:  Has that case been - - -

Pavlekovich-Smith 15 28/7/93

HIS HONOUR:	Have you seen that case?
MR SMITH:	It was just handed to me.
HIS HONOUR:	I think I have a different pagination to the

copy which Ms Kenny read from, but towards the end

of the judgment, just before the heading "Illegal

practices", you will see a paragraph beginning,

"The framework of the Act". Do you see that?

MR SMITH:	My response would be that I am not - - -
HIS HONOUR:	First of all you could say I should not follow

what Justice Brennan - - -

MR SMITH:  Yes, I do not agree with this at all because I

cannot be enrolled in every electorate in

Australia. The other fact is that I believe I do

have power to question the election of anybody else in any other ~1ectorate in Australia. What I would

like to refe~ to is section 364 which says:

The Court shall be guided by the substantial

merits and good conscience of each case

without regard to legal forms or

technicalities, or whether the evidence before

it is in accordance with the law of evidence

or not.

There I am saying that the Court has the power to

accept my arguments and accept my petition. In

response to the fact that I have not stated my

reason for granting the reliefs, I have in fact in

the second-last paragraph - - -

HIS HONOUR:  You are turning to the other point, are you?

MR SMITH: Sorry, yes.

HIS HONOUR:  The submission that you have not sufficiently

set out the facts?

MR SMITH: Yes, sir.

HIS HONOUR:	Ms Kenny interprets that as meaning facts which would support an invalidation of the election.	She
says you have not set out such facts in the
petition.

MR SMITH: That is right. In the second-last paragraph it

reads:

I believe that my political liberty to seek an

injunction was hindered or interfered with and
under Section 327 of the Commonwealth

Electoral Act 1918, I petition the Court of

Disputed Returns to grant the reliefs I seek.

Pavlekovich-Smith 16 28/7/93

So it is there that I state under what section I

request my prayers be granted re.lief. I have

endeavoured to explain the circumstances leading up

to the interference. I think that it has been

clearly explained and I have met the criteria of

355 (a) and ( aa) .

In answer to the Federal Court's refusal,

although Order 46 rule 7A was used, I requested

that the Federal Court judge explain in more

detail, and no explanation was ever given. The

fact that the Governor-General considered my appeal

and actually requested that the Electoral

Commissioner consider my appeal, I do not think

that it was an abuse of process. The

Governor-General would have, I suppose, made that

be known to me.

HIS HONOUR:  That is what you want to put, is it, Mr Smith?

MR SMITH: Yes, sir.

HIS HONOUR:	Is there anything else that you want to say?
MR SMITH:	I believe that this case should be heard because I have met all the criteria of the requirements of the Act.

HIS HONOUR:  Thank you, Mr Smith. Ms Kenny, do you want to

add anything?

MS KENNY:	No, Your Honour, not at this point.
HIS HONOUR:	I will consider this matter and give my

decision in due course.

AT 10.24 AM THE MATTER WAS ADJOURNED SINE DIE

Pavlekovich-Smith 17 28/7/93