Re Porter's Election - [1923] HCA 16

IN RE PORTER'S ELECTION PETITION.

COURT OF DISPUTED RETURNS. Parliamentary Election (Commonwealth)-Petition disputing -Petition sent by

telegram-Proceedings thereon-Conditions-Necessity for filing original petition -Signature-Commonwealth Electoral Act 1918-1922 (No. 27 of 1918-No. 14 MELBOURNE,

of 1922), secs. 185, 187, 214-Northern Territory Representation Act 1922 (No. May 14, 15.

18 of 1922), sec. 7-Northern Territory Electoral Regulations (Statutory Rules 1922, No. 154).

Sec. 185 of the Commonwealth Electoral Act 1918-1922 provides that " 'Every petition disputing an election or return be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat: (d) be attested by two witnesses whose occupations and addresses are stated (e) be filed in the Principal Registry of the High

within forty days after the return of the writ; , &. Sec. 187 provides that "No proceedings shall be had on the petition unless the requirements of the preceding sections" (including sec. 185) 'are complied

Held, that under those sections no proceedings can be had on a petition unless the original petition bearing the signatures of the petitioner and of the two witnesses is filed within the time limited by sec. 185 (e).

Held, therefore, that no proceedings could be had upon a telegram sent to the Principal Registrar which purported to embody a petition disputing an election signed by a person qualified to vote at the election in dispute and witnessed by two other persons.

APPLICATION referred to the Full Court.

On 3rd May 1923 the Principal Registrar of the High Court at Melbourne received a telegram sent to him on the same date from Darwin, in the Northern Territory, in the following terms, so far as is material :-" Petition to the Court of Disputed Returns, Mel- bourne. May it please the Court-In this petition against the

31 CLR 601

election of Harold George Nelson as a member for the Northern Territory of Australia in the Federal House of Representatives the petitioner humbly desires to show " [Then followed the grounds of the petition]. "Your petitioner therefore prays that the election of the said Harold George Nelson may be declared invalid. Your petitioner further prays that the inquiry into this matter shall be held at Darwin, where all the witnesses reside and where all necessary documentary evidence is obtainable, in order to save unnecessary expense and delay.-Signed by the petitioner John Alfred Porter, journalist, Smith Street, Darwin-In the presence of E. W. Pearse, labourer, Mitchell Street, Darwin; C. McKye, prospector, Mitchell Street, Darwin. The three signatories above are all persons qualified to vote at a Federal election in the Northern Territory." On the same date the Principal Registrar received another telegram of that date, purporting to have been sent by "Porter, petitioner, Darwin," and informing him that an election petition had that day been telegraphed to him, and that a deposit of £50 as security and 15s. filing fees had been telegraphed to his credit. The Principal Registrar on 4th May sent to John…

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 Re Porter's Election

Details

AGLC: Re Porter's Election [1923] HCA 16
Case: [1923] HCA 16
Decision Date: 15 May 1923

CaseChat Overview and Summary

The Court of Disputed Returns considered a petition disputing an election for the Northern Territory. The petitioner, John Alfred Porter, sought to challenge the election of Harold George Nelson. The petition was transmitted to the Principal Registrar of the High Court via telegram from Darwin, along with a separate telegram confirming the deposit of security and filing fees. The Registrar received these telegrams and filed the one purporting to be the petition, subject to a determination by the Court on whether this method of transmission constituted sufficient compliance with the relevant legislation. An application for an extension of time for service of the petition was subsequently referred to the Full Court.

The central legal issue before the Court was whether the transmission of an election petition by telegram, rather than filing the original signed document, satisfied the requirements of the *Commonwealth Electoral Act 1918-1922*. Specifically, the Court had to determine the meaning and effect of sections 185 and 187 of the Act, which stipulated the conditions for a valid petition and the consequences of non-compliance. The Court also considered the applicability of section 214 of the Act and relevant provisions of the *Northern Territory Representation Act 1922* and its associated regulations.

The Court reasoned that section 185 of the *Commonwealth Electoral Act* clearly required the original petition to be signed by the petitioner and attested by two witnesses, and that this original document, not a copy or a telegram, was to be filed within the prescribed time. The Court found that the telegram received by the Registrar, which contained typewritten names rather than actual signatures, did not meet this requirement. Section 187 of the Act mandates that no proceedings can be had on a petition unless the requirements of section 185 are complied with. Consequently, the Court held that no proceedings could be taken on the petition as presented.

The application for an extension of time was dismissed. The £50 lodged as security was ordered to be paid out to the applicant or his solicitors.

Orders