Rigoni v Victorian Electoral Commission - [2015] VSC 97

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

COURT OF DISPUTED RETURNS

S CI 2015 00004

MARIA RIGONI	Petitioner
v
VICTORIAN ELECTORAL COMMISSION	Respondent

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	25-26 February 2015
DATE OF JUDGMENT:	24 March 2015
CASE MAY BE CITED AS:	Rigoni v Victorian Electoral Commission
MEDIUM NEUTRAL CITATION:	[2015] VSC 97

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COURT OF DISPUTED RETURNS – Extent of jurisdiction to declare an election void – Early voting – Application to vote early – Declaration that ‘unable to vote’ on election day – Compliance with ss 98(b) and 99(1) of the Electoral Act 2002 (Vic) (‘the Act‘) – Meaning of the word ‘unable’ – Whether early votes were invalid – Whether failures affected the result of the State general election on 29 November 2014 – Whether petition complies with s 135(1)(a) of the Act – Petition dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Petitioner	Dr A P Trichardt with Mr G Moffatt of Counsel	Trevor Lloyd 452 Barkers Road Hawthorn East Vic 3123
For the Respondent	Ms K Evans of Counsel	Peter Stewart Victorian Government Solicitor Level 25 121 Exhibition Street Melbourne Vic 3000

HIS HONOUR:

Introduction

At the State general election held in Victoria on 29 November 2014 (‘election day’), Ms Maria Rigoni (‘the petitioner’) stood as a candidate for the Legislative Council of Victoria in the Northern Metropolitan Region. She stood as a member of the Palmer United Party and as the lead candidate for that party in that region. The petitioner is enrolled as an elector in the Legislative Assembly’s Ivanhoe district, and in the Legislative Council’s Eastern Metropolitan Region.

By a petition filed on 5 January 2015 (‘the petition’) in the Supreme Court of Victoria, acting as the Court of Disputed Returns for the purposes of the Electoral Act2002 (Vic) (‘the Act’), the petitioner seeks a declaration under s 125(g) of the Act that the election of all Parliamentary representatives in all 88 Legislative Assembly districts and eight Legislative Council Regions is void. The result would be that the State general election would need to be conducted again.

Notice of the petition was given to each of the successful candidates of the region in which she stood for election, and in the region and district in which she was enrolled as an elector, being the five successful candidates in the Northern Metropolitan Region, each of the five successful candidates in the Eastern Metropolitan Region and the successful candidate in the Ivanhoe district. At the return of the petition, the respondent, the Victorian Electoral Commission (‘the Commission’) appeared to oppose the petition.

Statement of Issues

The principal claim made by the petitioner was that the procedures and arrangements for early voting at the State general election miscarried, thereby invalidating the general election. According to the petitioner, there were 3,806,301 electors enrolled to vote at the State general election when the roll closed on 11 November 2014. There were 896 candidates across all electorates.…

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 Rigoni v Victorian Electoral Commission

Details

AGLC: Rigoni v Victorian Electoral Commission [2015] VSC 97
Case: [2015] VSC 97
Decision Date: 24 March 2015

CaseChat Overview and Summary

Rigoni v Victorian Electoral Commission involved the petitioner, Rigoni, challenging the validity of the election for the seat of Melbourne in the Victorian Legislative Assembly. The election was held on 29 November 2014, and the petitioner argued that numerous early votes were invalid, thereby affecting the election result. The Court of Disputed Returns was tasked with determining the extent of its jurisdiction to declare the election void, the validity of the early votes, and whether the petition complied with the relevant statutory requirements.

The legal issues before the Court were whether the word 'unable' in sections 98(b) and 99(1) of the Electoral Act 2002 (Vic) required an applicant to be completely incapable of voting on election day, and if not, whether the discrepancies in the early voting process were sufficient to render the election invalid. Additionally, the Court had to assess whether the petitioner's petition complied with the requirements of section 135(1)(a) of the Act.

The Court found that the word 'unable' in the relevant sections of the Act did not necessitate total incapacity to vote on election day, but rather required a significant impediment that prevented attendance at the polling place on the specified day. Despite some irregularities in the early voting process, the Court concluded that these did not affect the overall result of the election. The Court also determined that the petitioner's petition did not meet the statutory requirements, leading to its dismissal. Consequently, the Court held that it did not have the jurisdiction to declare the election void.

The Court made no declaration regarding the validity of the election for the seat of Melbourne, and the petition was dismissed. The Court found that the petitioner had not demonstrated that the election result was affected by the irregularities in the early voting process, and therefore, the election stood as valid. The Court's decision was based on a careful analysis of the statutory language and the evidence presented, and it underscored the limited scope of the Court's jurisdiction in such matters.

Orders