Ponnuswamy v Australian Electoral Commission

FEDERAL COURT OF AUSTRALIA

Ponnuswamy v Australian Electoral Commission [2002] FCA 1086

ADMINISTRATIVE LAW – judicial review – appeal from Federal Magistrate – Federal Magistrate dismissed application in default of attendance, then dismissed application to vacate dismissal order – appellant appealed from latter decision alleging an error of law and bias – no reviewable error

Commonwealth Electoral Act 1918 (Cth) s 166(1)(b)(i), 172, 353(1), 354(1), 362
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Federal Court of Australia Act 1976 (Cth) s 25(1A)
Federal Magistrates Court Rules 2001 r 16.05(2)

NADAR PONNUSWAMY v AUSTRALIAN ELECTORAL COMMISSION

N 411 OF 2002

HELY J
26 AUGUST 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 411 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NADAR PONNUSWAMY APPELLANT
AND:	AUSTRALIAN ELECTORAL COMMISSION RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	26 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 411 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NADAR PONNUSWAMY APPELLANT
AND:	AUSTRALIAN ELECTORAL COMMISSION RESPONDENT

JUDGE:	HELY J
DATE:	26 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Nominations closed at 12 noon on 18 October 2001, for the election of members to the House of Representatives in the 2001 Federal Elections scheduled to be held on 10 November 2001. On 18 October 2001, the appellant's nomination for the Division of Grayndler was rejected by the Divisional Returning Officer on the ground that it had been signed by only 43 persons entitled to vote at the election, rather than by 50 persons as required by s 166(1)(b)(i) of the Commonwealth Electoral Act 1918 (Cth) (“the Electoral Act”).

2. On 23 October 2001, the appellant filed an application for an Order of Review in this Court. The application sought an order that the rejection of the appellant's nomination be quashed, as well as an order that the appellant be permitted to contest the election for the Division of Grayndler in the "ensuing election of 10 November 2000". The reference to 2000 is an obvious error for 2001. The relief which was sought in the application was expressed to be sought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).

3. On 23 November 2001, after a number of directions hearings, Hill J transferred the proceedings to the Federal Magistrates Court.  On 4 February 2002 a directions hearing was scheduled to be heard before Driver FM.  The appellant did not appear on that occasion and Driver FM adjourned the proceedings to 13 March 2002.  The appellant arrived at Court after the hearing had been concluded and filed an affidavit in which he indicated that his failure to attend at the directions hearing that morning was because of heavy rain, and because…