Re The Honourable Justice Sir Gerard Brennan, a Justice of the High Court sitting as a Court of Disputed Returns & Anor; Ex parte Muldowney

[1993] HCATrans 285

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IN THE HIGH COURT OF AUSTRALIA

Registry	No Cl4 of 1993
In the matter of -

An application for a Writ of

Certiorari and a Writ of

Mandamus against the

HONOURABLE JUSTICE

SIR GERARD BRENNAN, a Justice

of the High Court of

Australia sitting as a Court

of Disputed Returns

First Respondent

BRIAN COX, Australian

Electoral Commissioner

Second Respondent

Ex parte -

PATRICK KEVIN MULDOWNEY

Prosecutor

MASON CJ

(In Chambers)

Muldowney(2) 11 22/9/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 22 SEPTEMBER 1993, AT 10.30 AM

(Continued from 31/8/93)

Copyright in the High Court of Australia

MR G.C. CORR:  I appear for the prosecutor in this case.

(instructed by Macphillamy Cummins & Gibson)

MR S.J. GAGELER: If Your Honour pleases, I seek leave to

appear for the second respondent to oppose the

making of the order nisi. (instructed by the

Australian Government Solicitor)

HIS HONOUR:  Yes. The second respondent is the Commission,

is it?

MR GAGELER: That is correct, Your Honour.

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

Your Honour, I appear with my learned friend,

MR S.J. GAGELER, intervening for the Attorney-

General of the Commonwealth. (instructed by the

Australian Government Solicitor)

MR GRIFFITH:  Your Honour, it might assist if I handed to

Your Honour an outline of what would be our

submissions.

HIS HONOUR:  Yes.

MR GRIFFITH: Perhaps I could indicate, Your Honour, that

basically our approach is it is a very interesting

question as to whether or not one can say this

jurisdiction is vested in His Honour personae

designatae or whether or not it is vested in the

Court. We would submit, of course, Your Honour, if

it is vested in the Court it would be judicial

power, rather than legislative power. But we take

the view that because of particularly Holmes v

Angwin and Hilton v Wells, Your Honour, that it may

well be that if one is to get beyond the point that

I understand my learned friend, Mr Gageler, is
going to make on behalf of the Commission as to

whether or not it would be appropriate in any event

to grant prerogative relief, the Attorney's view

would be it would seem that the Full Court would	probably be the appropriate Court to consider this
issue, having in mind - - -

HIS HONOUR:  I had a look at this and gave it some

consideration during the course of the adjournment.

I suppose my view, in a sense, would come as no

surprise, having regard to the dissenting judgment

in Hilton v Wells - - -

MR GRIFFITH:  Your Honour, our submission would be - we make

it today, if Your Honour is happy to hear argument

on the merit, or in another place if it referred,

to say undoubtedly it is judicial power taking its

colour, notwithstanding - - -

Muldowney(2)	12	22/9/93
HIS HONOUR:	I thought that would be your submission.	But

there is a difficulty, is there not? After all, my

view was a dissenting view in Hilton v Wells, then

there is the problem, assuming one was minded to

come to a conclusion adverse to Mr Corr, of seeking

to distinguish Angwin and Hanlon v Webb. They

were, of course, both State electoral cases under

State legislation but the legislation does not seem to be that much different from the Commonwealth

Electoral Act.

MR GRIFFITH:  I do not know whether the Attorney is

particularly interested in making fine

distinctions, Your Honour. He would prefer to be

before a Court who could say that they were wrong.

HIS HONOUR: Exactly. That was the problem, as I saw it,

during the course of the adjournment.

Mr Solicitor, I had better have a closer look at

these written submissions of yours.

MR GRIFFITH:  I am happy to enlarge on them, but I thought

it might be useful if I indicated in advance - - -

HIS HONOUR:  Yes, I will have a look at them and maybe I

would ask you to enlarge upon them. But I think

the first thing to do is to look at them.

MR GRIFFITH: But it is clear, Your Honour, there is an

interesting point.

HIS HONOUR:  Mr Gageler, do you want to say anything at this

stage? I should, of course, be hearing Mr Corr

first, but in a sense I have already heard him ex

parte and it may be of some assistance to him if he

knows what you and the Solicitor are proposing to

put to the Court.

MR GAGELER:  Your Honour, I have handed him already an

outline of my submissions, and I can hand that to

Your Honour. If I can just say in outline,

Your Honour, there are two reasons why, in my

submission, in any event an order nisi should not

be made: that is that His Honour was plainly right

and, secondly, that there has been unwarrantable

delay in bringing this application from

His Honour's decision some two months ago. If

Your Honour were inclined to accept either of those

arguments, in my submission the order nisi should

be dismissed. If Your Honour were not inclined at

this stage to accept either of those arguments, it

would be my submission that it would be appropriate

for the order nisi application itself to be

referred to the Full Court in the light of Holmes v

Angwin.

Muldowney(2) 13 22/9/93

HIS HONOUR:	The problem is this, I think, Mr Gageler, that logically one should deal with the jurisdictional
question first and the other thing is this, the
jurisdictional question having been raised and
there being a clear cleavage between the view that the Solicitor wants to put which, if upheld, would displace the earlier cases, it seems to me there is
a strong case for referring the matter to the Full
Court so that this preliminary difficulty can be
resolved for the future, even if I were to hold the
view that on the merits you had a strong case.
MR GAGELER:	Your Honour, there is a distinct public

interest in having election disputes determined to

finality at a very early stage.

HIS HONOUR:  That is true. But whilst, in a sense, there is

a public interest in having this particular dispute

resolved as quickly as possible, which might

dictate pursuit of the course that you are

advocating, it still leaves a question mark about

the resolution of future electoral disputes.

MR GAGELER: Undoubtedly there is an interesting question

and a fundamental question to the operation of the

Court of Disputed Returns that is involved here.

It would be my submission, however, that this is

not the appropriate vehicle for that issue to be

agitated, the election being now some six months

ago. It is simply far too late.

Your Honour, there is no need to embark upon

the jurisdictional question, interesting as it is

and important as it is if, at the end of the day,

the writ of mandamus or certiorari would not go in

any event. If that is clear at this stage, then

the matter should not be taken any further.

HIS HONOUR:  Perhaps I ought to hear what you have to say

and we will see just how clear it is, Mr Gageler.

Mr Corr, do you object to my hearing

Mr Gageler first?

MR CORR:  No, not at all, Your Honour.

HIS HONOUR: Very well.

MR GAGELER:  Your Honour, I do not wish to repeat what

His Honour has already said in his judgment. I

have sought to summarize the essence of the point

in issue in paragraph 3 of the written submissions.

If His Honour was correct in holding that the

prosecutor was not a person who was qualified to

vote, that is the first point that was argued
before him, then that is the end of the matter, as

His Honour said in his judgmemnt. His Honour did

Muldowney(2) 14 22/9/93

not refer to the ordinary meaning of qualified,

which I have set out there, which simply means

legally capable of voting, and the entire scheme of

the Electoral Act is that a person is legally

capable of voting only if the person is first

enrolled. Now, there is no prohibition in the

Electoral Act against the person who is not
enrolled casting a vote; it is simply that the vote
of such a person, if cast, would not be a valid

vote.

I could refer Your Honour to the sections, but

I think the point is self evident.

HIS HONOUR: There is no point in doing that, Mr Gageler.

MR GAGELER:  And His Honour rested his decision in large

measure on the terms of section 93 itself which, if

Your Honour has it, draws a distinction in

section 93(1) between a person who is "entitled to

enrolment" and in subsection (2) a person who "is

entitled to vote". Now, a person who is entitled

to vote is a person who is an elector whose name

appears on the roll for a division, and that is

subject to subsections (3), (4) and (5). The

person has to be 18 years of age and can only cast

one vote.

Your Honour, section 93 is in Part VII which

is introduced with the heading, "Qualifications and

Disqualifications for Enrolment and for Voting".

So it is clear enough, although the terminology is

not as precise as it might be throughout the Act,

that there is a clear distinction between

qualification or entitlement for enrolment and

qualification or entitlement for voting. An

additional consideration which appears not to have

been referred to by His Honour in his reasoning is

that when we get to the jurisdiction of the Court

of Disputed Returns under Part XII of the Act,

section 361(1) prohibits the Court from inquiring
"into the correctness of any Roll".	So the

jurisdiction of the Court of Disputed Returns,

under the Act and for good historical reasons that

Your Honour referred to in Berrill v Hughes, (1985)

59 ALJR 64, the Court is required, in exercising

this jurisdiction, to take the rolls as given.

To adopt the interpretation that the

prosecutor seeks to put upon section 355(c) may

well involve the Court in an inquiry that goes

behind the correctness of a roll.

Your Honour, that is the argument, and of course adopting what His Honour said as part of the

argument on the correctness of His Honour's

decision.

Muldowney(2) 15 22/9/93

On the question of delay, could I hand

Your Honour copies of two cases. It is sufficient

to go to the second of those cases in time, which

is the decision in Ex parte Fowler in 1980 .

Your Honour was a party to that judgment. That was a case in which there was delay of two and a half

months in making an application for the review of a

decision of the Broadcasting Tribunal and it is not

necessary to go through the facts of that case.

The tribunal made its decision on 1 April 1980,

there was some proceedings between the parties and

the application for a writ of mandamus was not

brought until 12 June. The relevant part of the

reasoning is at page 551 in the second column where

the Court said:

It is well settled that the writ of

mandamus is not a writ of right nor is it

issued as of course, and that there are well

recognized grounds upon which the Court may,

in its discretion, withhold the remedy; one of

those grounds is unwarrantable delay. The

delay of the prosecutors in seeking relief in

the circumstances of the present case made it just that the relief which they sought should

be refused.

..... The applications to the Tribunal

were first made and refused on 1st April. The

prosecutors then made no attempt to enforce

their alleged rights to appear and be

represented, but allowed the proceedings of

the Tribunal to continue - and, it appeared,

to conclude. Then the representatives of the

Australian Labor Party sought and obtained an order nisi - a matter which, as counsel

conceded before us, was given wide publicity.

Again, the prosecutors made no move ..... If the

applications had been made promptly, and had

succeeded, the prosecutors could have

participated in the hearing held by the

Tribunal in May. If we had granted the

applications, the Tribunal would have been

compelled to reopen its proceedings.

In that case, Your Honour, the tribunal had gone on

to conduct its business. If a delay of two and a

half months in bringing an application for review

of the Broadcasting Tribunal's deliberations made
it unjust in those circumstances that relief should
be granted, a delay of two months in bringing an

application in these circumstances, Your Honour,

where the business of government and parliament has

continued on an assumption that the election is

valid, is even greater reason for refusing leave at

this stage.

Muldowney(2) 16 22/9/93

Perhaps I should hand to Your Honour a

schedule of dates. I have shown that to my friend.

Your Honour, those are my submissions.

HIS HONOUR:  Thank you. Mr Solicitor, there is one question

I ought to ask you. What is your attitude to

Mr Gageler's submission that I should dispose of

this matter on the merits on the footing that if I

accept his arguments then I need not worry about

the jurisdictional questions. They can be

determined in a more suitable vehicle, as he puts

it.

MR GRIFFITH:  Your Honour, the Attorney feels that a good

the merits.

solid argument is appropriate to be put by on

HIS HONOUR:  I had not thought you would say otherwise.

MR GRIFFITH: There is a lot in the force of Your Honour's

remarks that there is a point of general importance

here.

HIS HONOUR: There is no doubt about that. It is a question

of weighing up what might be described as the

public interest either way, and they are two

different public interests.

MR GRIFFITH:  And sort of on one view, Your Honour, the

discretion view on the merit argument, if it is a
case that justifies being referred to six Justices

of the Court, in effect it is for those Justices to exercise the discretion rather than a single Judge.

So that one can see a bit of a circle there that

really has to be broken by Your Honour's approach

to it.

HIS HONOUR: There is no guarantee, of course, if the case

were referred to a Full Court, that the Full Court
would not proceed to deal with the case in

accordance with Mr Gageler's submission.

MR GRIFFITH: Precisely, Your Honour, yes. On that, I am

not sure whether the Attorney will intervene,

Your Honour, but I could say if he did there would

be no doubt that he would say that there is nothing

in the merit, and also support the delay argument.

I do not know whether that is a very helpful

response, Your Honour.

HIS HONOUR: It is a response, yes.

MR GRIFFITH:	Thank you.
HIS HONOUR:	Yes, Mr Corr.

Muldowney(2) 17 22/9/93

MR CORR:  Perhaps I could deal with the delay argument

first, Your Honour. The first point is a reference

to Order 55 rule 30 of the High Court Rules in

that:

An application for a writ of mandamus, or an

order in the nature of mandamus, to a judicial

tribunal to hear and determine a matter shall

be made within two months of the date of the

refusal to hear or within such further time as

is, under special circumstances, allowed by

the Court or a Justice.

The application for mandamus and for certiorari was made within the two months after the date of the

original decision by His Honour Justice Brennan.

The petition itself was in time. There was no

question about that whatsoever. The entire

sequence of events has followed the requirements

for time required under the Commonwealth Electoral

Act, initially, and then under the rules made by

this Court.

I think it would be unwarrantable for it to be

considered to be unnecessary delay on the part of the prosecutor in this matter if he has, in fact, complied with the rules of this Court in the making

of the application for the writ of mandamus. And

the writ of certiorari, there is an allowance of

six months in that case under the rules of this

Court under Order 55 rule 17.

In the second instance, Ex parte Fowler, I

think, can be distinguished. In that particular
case, it was a decision made affecting a continuing
case before the Broadcasting Tribunal. In that
instance, the affected parties did not attempt to
exercise their rights and the case continued. In
this instance, the affected party was effectively

denied the possibility of the case continuing. At

that stage, the affected party quite properly

sought and received legal advice, et cetera, and

fully complied with the rules of this Court in the
making of the application for mandamus.	I would

submit, therefore, the argument that there has been

an unwarrantable delay has no weight and should be

dismissed.

On the other point, that there is no arguable

case, I would have thought that, given the

arguments that I have presented in the previous

application, there is at least some argument and

that I have presented some and I am quite prepared

deficiencies in the decision made by His Honour to go further into presenting argument as to the in fact, very much an arguable case that he has

Muldowney(2) 18 22/9/93

committed either or both of a jurisdictional error

or error on the face of the record in coming to

the - - -

HIS HONOUR:	What do you mean by "jurisdictional error"?
MR CORR:	In determining that he did not have jurisdiction

to hear the case because Mr Muldowney was not

qualified to vote.

HIS HONOUR:  Yes, I follow what you are doing. You are

seeking to say there was an error and it bears the

label either of jurisdictional or error on the face

of the record so as to attract prerogative writ?

MR CORR:	Yes, either or both of those, Your Honour.
HIS HONOUR:	Yes, I follow.
MR CORR:	And that he did, in fact, make a substantial error

there which was completely against the evidence

that was presented to him and against a number of

authorities which had been presented to him as

well. I am prepared to go through that complete

argument if Your Honour so wishes but I think that

it is quite obvious that there is, in fact, an

arguable case.

HIS HONOUR:  It is a matter for you, Mr Corr, what course

you chose to follow. I do not want to be taken as

indicating to you that I am stopping you or that

you are precluded from putting the argument you

want to put.

MR CORR:	Indeed.
HIS HONOUR:	I have the advantage, of course, of what you

put on the last occasion and I have the advantage

of your written submissions, as well.

MR CORR:  Yes, Your Honour.

HIS HONOUR:  But it is a matter for you to determine what you ought to put to me.

MR CORR:  Yes. I was just endeavouring to assist the Court

if it made the proceedings any easier. In that

instance, I feel that I would have to proceed with

presenting my arguments, that there was in fact an

error made by His Honour and that therefore there

is some merit in the application.

I refer to my written submission. I have

provided a copy of this to my friend. Namely, that

the proper construction of statutory provisions is

always regarded as a question of law and

misconstruction of those provisions will involve an

Muldowney(2) 19 22/9/93

error of law, and that if you misunderstand the

nature of the jurisdiction, that is an error of

law. And I refer there to Reg v District Court; Ex

parte White.

His Honour was required to construe

section 355 of the Commonwealth Electoral Act, and

that is a provision that contains the words

"qualified to vote" upon which this entire

proceeding depends. As has been put previously and

in the written submissions, the term "qualified to
vote" only appears within that particular part of

the Act.

Within other parts of the Act, there are other

terms which are used, particularly the term

"elector" which is defined in section 4(1) of the

Act and in various other parts of the Act. I do

not think I need take much time to point out to

Your Honour that different words have different

meanings. There is quite a long line of authority

on that and I think it goes back to Rickett v

Metropolitan Railway Co, (1867) LR 2 HL 175.

Therefore, the term "qualified to vote" has to mean

something different than "entitled to vote" or

"enrolled to vote".

It is the submission that "qualified to vote"

is, in fact, determined by section 93 of the

Commonwealth Electoral Act and that "enrolled to

vote" is what then comes after a person having been

qualified.

So that His Honour misinterpreted the

provision in a number of ways. Firstly, in the
general tenor of how the Act is to be interpreted:

the object of the Commonwealth Electoral Act and

Part XXII, in particular, is to ensure that there

free and fair elections. To that extent, the

ability to question the validity of any election

must be untrammelled.	It must be as open as
possible. Therefore, this particular Act would

fall within the definition of a remedial Act; one

which is endeavouring to give some remedy or

benefit, and the proper way of determining the

construction of terms within a remedial Act was

given by His Honour Justice Isaacs in Bull v

Attorney-General of New South Wales, 17 CLR 370, at

page 384. He said, referring to the particular Act

he was discussing there:

this is a remedial Act, and therefore, if any

ambiguity existed, like all such Acts should

be construed beneficially ..... This means, of

course, not that the true signification of the

provision should be strained or exceeded, but

that it should be construed so as to give the

Muldowney(2) 20 22/9/93

fullest relief which the fair meaning of its

language will allow.

I would submit that the term "qualified to

vote" is what we have previously submitted, namely,

a person who fills the requirements within

section 93. However, if there was any ambiguity,

it should be construed in favour of the widest

possible meaning being given to that particular

term.

Also, I would refer you to section 69 of the

Commonwealth Electoral Act. That is the provision

that deals with objections to redistributions. This particular provision is couched in a wide

possible manner as well, namely, that it is open

for any person or organization to object.	I would
submit, Your Honour, that the fact that two

provisions in the same Act which deal with
objections, the first of which is couched to allow
the widest possible number of people to be able to

object; the second one of which, admittedly, does

have a slightly smaller group of people, namely,

those qualified to vote, but the intention is there

that it should be open - the ability to object

should be as wide as possible.

I also refer Your Honour to Kean v Kirby,

27 CLR 449, at page 459. There, again, His Honour

Justice Isaacs, in discussing questions of

ambiguity, said that:

the ballot being a means of protecting the

franchise, must not be made an instrument to

defeat it.

Although he was there talking about the ability for

people to be enfranchised, I would submit that that

is analogous to this situation, that Part XII of

the Act is a means whereby people can object to

elections and the returns from those particular

elections and that the Act itself should not be	construed in such a way as to prevent people from
objecting to those elections or returns.

There is another section of the Act that I

would refer Your Honour to and that is section 364

of the Act. That is one that requires that:

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.

Muldowney(2) 21 22/9/93

Now, that, I would submit, is a clear

indication that any particular technicalities

should be overcome, that is clear from the wording

there. I would submit that even were you to come

to the conclusion that "qualified to vote" did not

have the meaning that I have been suggesting that
it does have, that this particular section would
overcome any problem that arises from that and that

it is just a technicality and can be overcome.

HIS HONOUR: That is attributing a rather large operation to

the section, is it not, giving the Court a

discretion to disregard requirements in other

provisions of the Act?

MR CORR: Well, it says, "without regard to legal forms or

technicalities", Your Honour.

HIS HONOUR:  But it is going a long way to confer authority

on a court to disregard the interpretation properly

to be placed on other provisions in the statute.

MR CORR:  Your Honour, if that is not the meaning of it,

then the section is somewhat nugatory. That

particular part of the section would have no effect
because where else would the legal forms or

technicalities arise from if not from some other

laws of the land, either from the common law or

from statutory law?

HIS HONOUR:  But provisions of that kind are generally

regarded as having an operation in the area of

evidence and procedure. It is conceivable that

they might have an operation in terms of

determining whether a provision was mandatory or

directory but otherwise I would find it very

difficult to give it a wide-ranging operation of

the kind that you are suggesting.

MR CORR:  In relation to that, Your Honour, if you look at

it and see there is a provision relating to

evidence itself.

HIS HONOUR: In that section?

MR CORR:  Yes. So, that the prior comment about "the

substantial merits and good conscience of each

case" and the "legal forms or technicalities" must

be something other than relating to the evidence in

the - - -

HIS HONOUR: 

What I said was that sections of this kind are

generally given an operation in relation to
procedural and evidentiary requirements.

MR CORR:  Yes. I take the point that Your Honour is making

but, in any instance, this is again also a remedial

Muldowney(2) 22 22/9/93

provision and should be construed broadly in line

with the comments made by Justice Isaacs in Bull v

Attorney-General.

His Honour did not consider properly the

merits of the precedents from various American

jurisdictions which were presented to him. These,

in particular: Gilbert v Breithaupt, give a long

line of authority in American cases for the
assumption that "qualified to vote" was in fact

something quite distinct from "enrolled to vote".

His Honour considered that they came from a

different constitutional basis. I would submit

that, in fact, the American constitutional basis is

quite similar to the Australian and that these do

in fact have a great deal of validity and that

His Honour did not give proper weight to those

precedents.

Then there is the intention in assessing the

way in which this particular Act should be

construed. If we look at the Constitution, in the Constitution there are various provisions relating

to penalties against persons sitting improperly in

Parliament and so on. Obviously, the framers of

the Constitution and those persons who voted for

the Constitution in the various referenda were very

keen on making certain that persons who were

disqualified should not sit in Parliament. They

obviously had a great deal of interest in making

certain that the integrity of the legislature was

preserved.

Although those particular provisions related

to disqualification rather than disputes of
elections, I would submit that there is this clear

intention within the Constitution that the

legislature should be as free from fault and defect as possible and that any legislation in relation to

membership of the Parliament should give full

effect to the intention of the Constitution.

Generally, I would submit then that taking all

those factors into account, His Honour's decision

was, in fact, wrong in law and therefore there was

a jurisdictional error that His Honour made.

HIS HONOUR:	Yes, Mr Corr.
MR CORR:	Thank you, Your Honour.
HIS HONOUR:	Now, I do not think either of you are strictly

entitled to a reply, notwithstanding that I called

upon you out of order. If you do want to say

something additional, Mr Gageler, I will permit you

Muldowney(2) 23 22/9/93

to do so but only on the footing that Mr Corr has a

right to respond.

MR GAGELER:  Very briefly, Your Honour. I accept that if

there was an error, it was a jurisdictional error.

The case normally cited in support of the provision that section 364 and similar provisions

have nothing to say about jurisdictional error is

Ex parte Bott, 50 CLR.

Order 55 rule 17 was raised in relation to the

discretionary argument. In my submission, that

provision simply prevents the Court from issuing a

writ.

HIS HONOUR:  It does not deal with the question of delay as

a defence or response to an application.

MR GAGELER: That is right, it does not affect the Court's

discretion.

Your Honour, in considering whether this is,

to use my terminology, a suitable vehicle for the

larger constitutional issue to be raised - - -

HIS HONOUR:	..... to the larger question.
MR GAGELER:	- - - it is not irrelevant, Your Honour, that

one Justice of the Court would be unable to

participate in the decision, so there would have to
be, at most, a decision of six Justices of the

Court.

HIS HONOUR:  You would have lost me. You may have lost two

Judges, actually.

MR GAGELER: Perhaps.

HIS HONOUR:  You would not lose Justice Brennan on the

larger jurisdictional question.

MR GAGELER:  Even though the writ would be directed to him,

Your Honour?

HIS HONOUR: Yes, I suppose that is right.

MR GAGELER: There may be some difficulty.

HIS HONOUR:	Yes, he would be a respondent.
MR GAGELER:	So, perhaps we would be down to five Judges,

Your Honour, which was Hilton v Wells, there was

five Judges.

HIS HONOUR: True. But I was going to say to you that is a

problem that would arise in future cases as well.

Muldowney(2) 24 22/9/93

MR GAGELER:  It perhaps depends on how the case was

constituted. It is conceivable that a case

raising - - -

HIS HONOUR:  I would have thought, in a sense, the best way

to get this point up - and that is another thing -
not that I want to suggest to Mr Corr that he ought

to commence other proceedings in this case, but it

may well be that another form of proceeding

altogether is the appropriate way in which to test

this question rather than, as it were, seek a

prerogative writ.

MR GAGELER:  Which would, at least - the other form, if it

were taken, would allow the entire Court to

consider the matter.

HIS HONOUR:  Yes.

MR GAGELER: That is all I wish to say in response.

HIS HONOUR:	Now, do you want to respond to what Mr Gageler has just put to me, Mr Corr?
MR CORR:	I accept what he said about the jurisdictional

error. There is some difficulty in - - -

HIS HONOUR:  Yes, you would need to accept that because he

is really agreeing with you on that point.

MR CORR:  Most definitely. It is just the possible

commencement of other proceedings in this matter to
get a Full Court, Your Honour, namely, the ouster
provision within the Electoral Act which says, "the

decision of the Court of Disputed Returns shall not

be questioned in any way" and that is why the

prerogative writ has been sought, namely, that the

long line of authority to the effect that

section 75(v) cannot be ousted by statutory

provision, whereas, that particular ouster

provision may be sufficient to prevent any other

action being taken on this matter.

HIS HONOUR:  I am not sure about that, but I do not really

think we need attach too much importance to that

aspect of the case.

MR CORR:  Yes, Your Honour, because I would be more than

amenable to a Court of six. I do not consider that

Your Honour would be precluded from hearing this

particular case.

HIS HONOUR:  No. I would only be precluded if I expressed a

view about it.

MR CORR:  No. In fact, I would support the submission made

by the Solicitor that it should, in fact, be

Muldowney(2) 25 22/9/93

removed to the Full Court for hearing.	How this is
done is, of course, up to Your Honour.	There are,
I think, two - - -

HIS HONOUR:  Yes. The trouble is the Solicitor has not made

a full-blooded submission to that effect. You

would have been better off, perhaps, if he had,

Mr Corr. But, you know, he speaks with a forked

tongue.

MR CORR:	Not uncommonly - - -
HIS HONOUR:	He is rather expert at that.
MR CORR:	Yes.
HIS HONOUR:	What he says is that that is his submission,

subject to the arguments of Mr Gageler, and then

when asked about which public interest should be
paramount he, in effect, says they are both

compelling public interests.

MR CORR:  Yes. It is unusual for him to speak only with a

bifurcated tongue, it is usually - - -

HIS HONOUR:  I am sure that is a tribute that he will

treasure.

MR CORR:  In relation to the time, Your Honour, I would

again submit that although Order 55 rule 17 and so

on could be seen as just being the outer limits for

the decision of the Court, there has in fact been
no undue delay in this particular case.

As I understand it, there are still continuing

various other hearings for Courts of Disputed
Returns. This Court has, in the past, entertained
applications under, I think, Part II of
Division 12, quite some time after the elections

were conducted and that the public interest in the

integrity of the legislature is a factor that
definitely has to be taken into account.	If there

is any question about that integrity, that it

should not be defeated or prevented from being

heard unless there are very compelling reasons.	If
the delay was 12 months or 18 months, or whatever,
perhaps there would be an argument, but two months
I do not consider to be undue.

HIS HONOUR:  Yes. I understand your argument on that.

MR CORR:	I have no further submissions, Your Honour.
HIS HONOUR:	Yes, thank you, Mr Corr.

Now, I propose to give my decision in this

matter on Monday next at 10.30. There is no

Muldowney(2) 26 22/9/93

occasion for you to be here, Mr Solicitor, I would

think, but I should be in a position to give the

decision on Monday next at 10.30. Court will now

adjourn until then.

AT 11.13 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 27 SEPTEMBER 1993

Muldowney(2) 27 22/9/93