Questions referred pursuant to section 377 of the Commonwealth Electoral Act 1918; Re Wood

[1988] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

In the matter of -

The Commonwealth Electoral Act

1918-1980

Registry	No C3 of 1988
Questions referred pursuant to
section 377 of the Commonwealth
Electoral Act 1918

RE WILLIAM ROBERT WOOD

MASON CJ

Wood(4)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 JULY 1988, AT 2.13 PM

Copyright in the High Court of Australia

C3Tl/l/RB 1 21/7/88

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I again appear for the

Attorney-General for the Commonwealth, further to

the notice of motion dated 19 May and the order of

Your Honour made on 7 June. (instructed by the

Australian Government Solicitor)

MR A. ROBERTSON:  May it please the Court, I again appear for

the Australian Electoral Commission and also for the

Australian Electoral Officer for New South Wales.

(instructed by the Australian Government Solicitor)

MR L. O'SULLIVAN:  I appear again for Elaine Nile, a person

interested. (instructed by Dearn, O'Kane and

Associates)

HIS HONOUR:	Yes, Mr Solicitor.
MR GRIFFITH:	Your Honour, paragraph 4 of the order Your Honour

made on 7 June directed:

That upon the completion of the further counting and recounting the Australian

Electoral Officer for the State of New

South Wales report to the Court the

candidate identified as entitled to be

elected.

The count has now been completed and the report is

in the form of an affidavit by Brian Richard Nugent,

sworn 18 July 1988, of which Your Honour has a copy.

The affidavit does rehearse the process of the

further counting and recounting and paragraph 4 is
the particular paragraph identifying candidate Dunn

as the candidate identified as entitled to be elected

in accordance with the terms of Your Honour's order

and directions.

Consequent upon that, Your Honour, pursuant to

paragraph 5 of the notice of motion of 19 May the

Attorney moves that Your Honour should make an order

sitting as the Court of Disputed Returns that Irina

Dunn be declared duly elected as a senator for the

State of New South Wales for the place for which

Senator Wood was returned. That application is

pursuant to section 361(6) of the Act, Your Honour,

which of course is picked up by section 379 of the

ELECTORAL ACT.

HIS HONOUR:	Yes.
MR GRIFFITH:	Your Honour, there are some matters of detail

set out in the affidavit of Mr Nugent but we do not

feel it is necessary to make submissions to

Your Honour about the matters covered by the affidavit

which seems to be self explanatory.

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HIS HONOUR:  I have read the affidavit.

MR GRIFFITH: If Your Honour pleases.

HIS HONOUR:  Thank you. Mr Robertson.

MR ROBERTSON:  If Your Honour is satisfied as to the two

footnotes to the report which was the matter of the

1168 ballot papers and also the further footnote

that was added in relation to the correspondence from Mr Jones that Your Honour will see in paragraph 23 of

the affidavit, if Your Honour is satisfied that

neither of those two footnotes- - -

HIS HONOUR: Materially affect the result - yes.

MR ROBERTSON:  Yes, that is so, then I have no submissions to

put, if the Court pleases.

HIS HONOUR:	Thank you, Mr Robertson. Yes, Mr O'Sullivan.
MR O'SULLIVAN:	Your Honour will have, I think, on file an

affidavit from Frederick Nile, sworn 19 July 1988,

in the final paragraph of which, paragraph 9, he

requests respectfully -

that the Court should postpone any decision

as to the filling of the Senate vacancy -

referred to by my friends. Your Honour, I have

instructions to bring to the attention of the Court

certain things mainly set out in that affidavit

concerning, firstly, the nationality of Irina Dunn,

as to whether she has got dual nationality and

potentially triple nationality, and secondly, as to

a question arising regarding whether the Nuclear
Disarmament Party was at relevant times, either in the

past or now and when registered, an eligible political party within the terms of the Act, that is whether it

had 500 members or more or whether it ceased to have

them at some stage.

Your Honour, I have specific instructions to

bring these matters to Your Honour's attention in

the public interest. My instructions go to the point

that Elaine Nile does not wish to press these matters,

having raised them with the Electoral Office - - -

HIS HONOUR:	Does not wish to - - -
MR O'SULLIVAN:	Not before Your Honour, no, having raised them

with the Electoral Commission. I have had some

discussions with my friends and I am aware of the

state that has reached. The submission is that these

appear to be relevant matters. Elaine Nile instructs

me further that she does not want to incur further

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Wood(4)

legal expenses; that I request the Court for an order

that the Commonwealth pay her costs to date on this

reference and, Your Honour, that it seems appropriate

that these submissions fall within the section 378

where a person interested could make submissions on

such a reference.

HIS HONOUR:  But neither of these questions was raised in the

Senate reference to this Court.

MR O'SULLIVAN: That is so, Your Honour.

HIS HONOUR:  And the Court's only jurisdiction arises from the

terms of the reference by the Senate. The fact is
that in terms of inter partes litigation concerning

the validity of the election it is no longer possible

for a person to present a petition to the Court of

Disputed Returns within time. Therefore the only

jurisdiction or power that the Court has with respect

to the election is that conferred upon it by a reference

by the Senate. And I should have thought that the

terms of the Senate reference with which the Court has

been dealing clearly do not embrace the matters which

you are asking the Commission to agitate.

MR O'SULLIVAN:  Thank you, Your Honour. I think the way the

point arises is as to whether these were invalidating

features of Irina Dunn's position on the ballot form.

But, Your Honour, they are raised in the public interest.

We are not, shall we say, taking an adversary position

on them.

HIS HONOUR:	No, I realise that.
MR O'SULLIVAN:	Thank you.
HIS HONOUR:	Then the other thing I should point out to you on

the matter of costs, the Full Court specifically made
an order, no costs. It is not as if there was no

order as to costs.; there was a specific order that

there should be no costs.

MR O'SULLIVAN:	Thank you, Your Honour.
HIS HONOUR:	Now, Mr Solicitor, Mr Robertson, do you wish to

say anything in response to what has fallen from

Mr O'Sullivan?

MR GRIFFITH:  No, Your Honour, other than to submit to Your Honour

that the specific order made by the Full Court as to
there being no orders for costs in our submission

should be regarded as embracing the consequent

application pursuant to our motion.

HIS HONOUR: That is the view I take at the present time.

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MR GRIFFITH: Otherwise, Your Honour, we do concur with the

view that these issues cannot be regarded, in our

submission, on any view issues within the reference

made by the Senate to the Court.

HIS HONOUR:	Mr Robertson, do you wish to say anything?
MR ROBERTSON:	I have nothing to say, Your Honour.
HIS HONOUR:	Mr O'Sullivan, for Elaine Nile, has submitted

that there are two issues that should be resolved

in the public interest. These issues relate to the

eligibility of Irina Dunn to be nominated as a

candidate and whether the Nuclear Disarmament Party

is a political party within the meaning of that

expression in the ELECTORAL ACT. Neither of these matters falls within the terms of reference by the

Senate to this Court and accordingly they are not

issues which I can pursue.

Having read the affidavit of Mr Nugent, sworn on 18 July 1988, I am satisfied that it is appropriate

that the Court should now make an order in terms of the order numbered 5 sought in the notice of motion

dated 19 May 1988.

Accordingly I order that Irina Dunn be declared

duly elected as a Senator for the State of New South

Wales for the place for which Senator Wood was returned.

As the Full Court in its determination specifically

ordered that there should be no order for costs, I do not propose to make any order respecting the costs of the parties in the ancillary proceedings that have

taken .. place before me in consequence of the orders made

by the Full Court on its determination of the matter.

Court will now adjourn sine die.

AT 2.23 PM THE MATTER WAS ADJOURNED SINE DIE

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