Robertson v Australian Electoral Commission

[1993] HCATrans 270

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Brisbane No B22 of 1993

B e t w e e n -

JOHN WILLIAM ROBERTSON

Petitioner

and

AUSTRALIAN ELECTORAL

COMMISSION

Respondent

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 13 SEPTEMBER 1993, AT 10.00 AM

Robertson 13/9/93

Copyright in the High Court of Australia

MS s.c. KENNY: If Your Honour pleases, I seek leave to

appear for the Electoral Commissioner, which is the

respondent named in the petition. (instructed by

the Australian Government Solicitor). I also seek leave to appear for the Electoral Commission which is not named in the petition. If I might explain

the basis for that - - -

HIS HONOUR:  Yes. First of all we had better see the

position as far as the petitioner is concerned.

Would you mind calling Mr Robertson, please, within

the precincts of the Court.

COURT CRIER:  No appearance, Your Honour.

HIS HONOUR:  Thank you. Dr Kenny, is it the Commission or

Commissioner that is properly named as respondent?

MS KENNY:  Your Honour, the petitioner names the

Electoral Commissioner.

HIS HONOUR: 

I know he does.

MS KENNY: 

I would seek leave that the Electoral Commission

be named as respondent but the petitioner attacks
the Commissioner's failure to act under one of the
sections of the Act so it would be appropriate, in
this particular case, to give leave for the

Commission to be joined to the petition and then

there is no doubt about it.  But strictly

speaking - - -

HIS HONOUR: 

Are you referring to the petitioner's reference

to alleged failure by the Commissioner to take

action on receipt of a complaint?

MS KENNY:  Yes, I am, Your Honour. Under the Act there is,

in certain circumstances, a duty on the

Commissioner to take legal proceedings. Perhaps if

I take Your Honour to that section. Under

section 382 Your Honour will see that: The Electoral Commissioner shall, in

every case where the Crown Law authorities so

advise, institute legal proceedings -

and it would appear that the petitioner has had

regard to section 382 and section 350 and that
forms the basis of part of his petition. But in

fact, the Electoral Commissioner so named is the

chief executive officer only of the Commission and

that appears from section 18 of the Act.

Your Honour will see in section 18(2) he is named

as the chief executive officer.

Robertson 2 13/9/93

HIS HONOUR: 

But when the relief sought is the avoidance of

the election, one would think that perhaps it is
sufficient to name the Commission itself as the
sole respondent.

MS KENNY: 

Your Honour, I would agree that it is sufficient to name the Commission as the sole respondent.

HIS HONOUR: 

I can do one of two things to meet the

situation: I can either add the Commission as a

respondent or substitute the Commission for the

Commissioner.

MS KENNY: 

So far as I am concerned, Your Honour, it would

be appropriate simply to substitute the Commission
for the Commissioner.

HIS HONOUR: 

That seems to me to be the proper course,

Dr Kenny.

There will be an order that the name of the

respondent be amended to "Australian Electoral

Commission".

Now, before we go any further, there is an

affidavit sworn by the petitioner to which is

exhibited a number of documents. It is an

affidavit sworn 7 September 1993. Now, I

understand from the affidavit itself - or it may be from the written submissions of the petitioner that a copy of that was sent to the respondent.

MS KENNY:  That is correct, Your Honour. I have a copy of

the affidavit which was sworn on 7 September,

together with the exhibits. I also have a copy of

some written submissions, being pages 1 to 3, three

pages of written submissions.

HIS HONOUR: Unless you wish to persuade me otherwise, the

affidavit not having been filed at this stage

because it was apparently just sent by post, I

propose to direct that it be treated as filed.

MS KENNY:	Your Honour, I have no objection to that course.
HIS HONOUR:	I think the appropriate order is Order 39

rule 12. I propose to exercise my power under that

provision and direct that the affidavit be
available for use in these proceedings.

Now, arising out of that, in paragraph 24 of the petitioner's affidavit there is really a double

barrelled request: one is to adjourn the hearing

until October by reason of the petitioner's
unavailability or inability to travel to Canberra at this stage; and absent such an order, then the

written submissions be treated as the argument of

Robertson 3 13/9/93

the petitioner.	What do you say about those
requests?

HIS HONOUR:	Your Honour, it is my submission that the matter should be dealt with today and I am content
that the written submissions filed by the
petitioner be read by the Court and I would seek to
deal with them accordingly. There are a number of
matters which I draw to Your Honour's attention.
The one is the matter that the Court as the Court
of Disputed Returns has before it a petition which
seeks a declaration that the entirety of the
election of 13 March and 17 April be declared void and there is clearly a public interest that that matter be dealt with reasonably expeditiously.

There is a second matter in this particular

case and that is that by the exhibit JWR 9 to the

petitioner's own affidavit he sets out all

correspondence which has taken place between the

solicitor for the Commissioner and himself and,

Your Honour, it is clear from that, commencing with

a letter of 19 August 1993, that the petitioner was

told, first - - -

HIS HONOUR:  I am sorry, I am just trying to pick up that

letter.

MS KENNY:  It is exhibit 9, and it is the first letter

forming part of that exhibit.

HIS HONOUR:  I thought you said 1992. It is 19 August 1993,

is it?

MS KENNY:  That is correct, Your Honour, yes. Your Honour

will see that the petitioner was put on notice that

the Commission would be seeking orders that the

petition be dismissed of stayed. The grounds which

are found in the summons of 1 September, which
brings these proceedings into the Court, are set

out specifically there, together with the

supporting decisions of His Honour Justice Dawson

and Her Honour Justice Gaudron. At the same time,

on page 2 of that letter, the petitioner was

informed that it was likely that the matter would

be heard in either Sydney or Canberra, rather than

in Brisbane.

Then can I take Your Honour to the next

letter. Your Honour will see that copies of the

decisions were provided to the petitioner by letter of the same date and then the petitioner wrote back the next day and said, in the fifth paragraph down

again that:

September would, I think be too early. By the

time I make up for the remoteness of Cairns,

Robertson 13/9/93

please allow me time to obtain the judgments

and make a decision and then give me

reasonable notice so that I can make

arrangements to travel to Sydney. If it must

be Canberra, so be it.

Then in the very last paragraph he indicates that:

On the matter of costs and the inconvenience

of attending to this matter, shall we try to

narrow issues with a series of letters or

formal written submissions. It is immaterial

to me how the matter is heard or how it is

finalized, win, lose or draw.

HIS HONOUR:  I do not think you need to take this aspect any

further. It does not seem to me an appropriate

case for the granting of an adjournment and I

propose to proceed to hear the application on the

basis that the petitioner's written submissions

will be treated as his argument to the Court. So

you can proceed with the substance of the matter,

Dr Kenny.

MS KENNY:  If Your Honour pleases. Your Honour, before I

turn to the matters raised in the summons of

1 September 1993, there are three formal matters

that I draw to Your Honour's attention at this

stage. None of them, at this point, I wish to take

any further, but the first is the matter of

publication of the petition which is required under

Order 68 rule 3 of the Rules of the Court. The

second is the matter of the service of the petition

in accordance with Order 68 rule 5, and the final

matter is the matter of verification of the
signature on the petition.

The Commission does not wish to take any of

these matters further today. If it is successful
in its major applications on the summons, there

will be no need to deal with these matters. But in

the event that Your Honour should be against me,

then these matters would have to be dealt with on a

later date.

HIS HONOUR:  What does Order 68 rule 3 require, and in what

respect has it not been observed?

MS KENNY: Order 68 rule 3 requires that the petition be

published in the Commonwealth and State gazettes publish the petition in a newspaper circulating in the relevant electorates.

and, in the case of a challenge to the House of

HIS HONOUR:	And so far as service is concerned?
Robertson	13/9/93

MS KENNY: Likewise, Your Honour, the petitioner is obliged

to serve an office copy of the petition pursuant to

rule 5 on every person whose election is disputed.

HIS HONOUR:  On one view of the petition, that is every

member of the House of Representatives and every

member of the Senate who was returned at the last

election.

MS KENNY:  That is correct, Your Honour. And it is

submitted that if the Commission is correct, then

that problem will go away.

His Honour Justice Brennan and His Honour

Justice Dawson, in the cases of Muldowney and

Pavlekovich-Smith and Sykes decided that it was

better that these matters be left to one side and

dealt with the substantive application of the

Commission in each case that the petition be struck out.

HIS HONOUR:  I am content to follow that course. But just

so far as verification is concerned, can you direct

me to the appropriate obligation.

MS KENNY:  Yes, Your Honour. Under section 355 of the

Commonwealth Electoral Act Your Honour will see

that there is a requirement in subsection (c) that
the petition:

be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat -

On the face of this petition, it would appear that

the petitioner, being a person qualified to vote at

the election for the member for the Division of

Leichhardt and for senators for the State of

Queensland, has in fact signed the petition but

formally, if the petitioner were present, he would

have to verify that. There is no verification of

that fact. It is a very minor factual - - -

HIS HONOUR:  When you speak of verification, you do not mean

in the sense of an affidavit verifying the document

but simply proof that the petitioner has in fact

signed the document.

MS KENNY:  Yes, and that could be cured very quickly if the

petitioner were here by of course asking - - -

HIS HONOUR: That is a technical point.

MS KENNY:  The difficulty, of course, Your Honour lies in

section 358 and that is that had the petitioner not

signed the petition then, pursuant to section 358,

"no proceedings shall be had on the petition". So

Robertson 6 13/9/93

technical though it may be, it would bring an end

to the proceedings if it turned out to be false.

HIS HONOUR:	As I said, I am content to follow the course adopted in comparable proceedings recently before
the Court and go straight to the substance of the application.
MS KENNY:	Your Honour, the summons seeks a number of orders: the first is that no proceeding be had on
the petition or that the petition be dismissed or,
alternatively, stayed upon a number of grounds.
There is an affidavit in support of the summons and
that is the affidavit of Peta Dawson, affirmed on
1 September 1993. Does Your Honour require me to
read the affidavit?

HIS HONOUR:  No, I do not, thank you. You can just direct

me to anything that is relevant to the application

or to part of your argument, Dr Kenny.

MS KENNY:  Yes, I shall, Your Honour. I will perhaps direct

Your Honour's attention to paragraphs as they fall

relevant in my submissions, if I may.

HIS HONOUR:  Could I just ask you: in relation to the first

paragraph of the summons which is based upon the

proposition that the petition is challenging the for States and Territories other than for the State
election of "members of the House of
Representatives to any Division other than the

of Queensland", it does not emerge with complete

clarity from the petition itself just exactly what

is being sought to be avoided although, if one

looks at the written submissions of the petitioner,

it is pretty obvious that he is seeking to have the

entirety of the elections set aside.

MS KENNY:  Your Honour, I, in reading the petition, relied

upon the heading and the preamble or the chapeau to

the petition.	On page 1, under the reference to
the Act, he says:

In the Matter of the Election of each Member

in the House of Representatives ..... on

13th March and 17th April, 1993 and

In the Matter of the Election of each member

for the Senate -

then under the title "Petition" he says:

Petitioning the Court of Disputed Returns John

William Robertson who was and is qualified to

vote for a member of the House of

Representatives for Leichhardt and for

Robertson 13/9/93

senators from Queensland disputes each seat in
both the Senate and the House of

Representatives polls of 13 March and 17 April

1993 for the Commonwealth Parliament.

Then he says:

On the grounds that:

and I will not read those out, but then he says,

turning to page 3 of the petition:

AND PRAYS FOR RELIEF THAT IF:

All grounds are upheld these elections be

voided.

HIS HONOUR:  Yes, I do not think there is much doubt that

when that is read in conjunction with his written

argument that that is the intention of the

petition. Now, so far as that challenge is

concerned, what do you say?

MS KENNY:  Your Honour, in so far as that is concerned, I

would rely upon what His Honour Justice Brennan has

already said in the case of Muldowney. As he

said - I take Your Honour to what His Honour said

at page -

HIS HONOUR:  Which authority are you using, the ALJR or the

ALR?

MS KENNY:  I have, in fact, got a bundle of cases that I was

going to refer to.

HIS HONOUR:  I have that and other authorities here, if you

can tell me which report you are relying on?

MS KENNY: It is (1993) 114 ALR 513, and the particular

passage which I would rely upon occurs between

pages 518 and 519.	Commencing at the foot of
page 518 His Honour Justice Brennan said, in the

last incomplete line:

The term "general election" is used in the Act as a collective term, descriptive of those

particular elections which are held in each

Division pursuant to writs for a general

election. Thus, an election for a member of

the House of Representatives for a Division

which is to be held as part of a general

election "wholly fails" if a candidate dies

between the declaration of nominations and
polling day whereupon a new writ is issued for

a supplementary election to be held on the

Divisional Roll for the election that has

failed. Presumably these were the provisions

Robertson 8 13/9/93

applicable to the election of a member of the

House of Representatives for the Division of

Dickson. No elector is qualified to vote at a

general election; each elector is admitted to

vote only for the election of a member of the

House of Representatives for the Division for

which he or she is enrolled.

The framework of the Act as well as the

language of s 355(c) indicates that the

jurisdiction of the Court of Disputed Returns

does not extend to the making of a declaration

that the entirety of a general election is

void. The jurisdiction to declare an election

void on the petition of a person "who was

qualified to vote thereat" is limited to those

elections in which the petitioner was an

elector entitled to vote. If a challenge on

justiciable grounds can be mounted to the

validity of a general election - a question

that I need not consider - such a challenge

cannot be entertained by the Court of Disputed

Returns.

HIS HONOUR: 

Yes, thank you.

MS KENNY: 

Your Honour, the section which seems to, besides

section 355(c) itself, section 221(2) seems to be
the crucial section because it is that section

which says when an elector shall be entitled to

vote and at what election?

HIS HONOUR: 

Is that section not referred to in Muldowney?

MS KENNY: It is referred to in a footnote, in footnote 25

of His Honour's judgment.

HIS HONOUR:  But you would seek to make more of that section, would you?

MS KENNY: It is submitted, Your Honour, that that section

really makes any argument to the contrary very

says: 

difficult to make; in other words, that section

an elector shall only be admitted to vote for

the election of Senators for the State ..... for

which he or she is enrolled.

(2) In the case of a House of Representatives

election, an elector shall only be admitted to

vote for the election of a member for the Division for which he or she is enrolled.

Then when one takes that and marries it with

section 355(c) the petition shall:

Robertson 9 13/9/93

(c) be signed by a ..... person who was

qualified to vote thereat -

that is, at the election. Taking the two sections together, a person could only be qualified to vote under section 221 at the division for which he or

she was enrolled and the State in which that

division was.

HIS HONOUR:  So that is treating the word "challenge" in

section 355 at the outset as governed really by the

later references, and you would say in section 221

to the election for which the petitioner is

qualified to vote.

MS KENNY:	Yes, Your Honour, I would submit that that is so. Your Honour, there are other sections which support that conclusion and those would be sections 180(1)
and (2) which, again, are picked up by His Honour
Justice Brennan in his reference to the position
where a candidate dies, in other words there is a
new election on that roll. There are similar
supporting sections, 154 and sections 277 to 279.
As section 154 makes clear, there is not one writ
issued for a general election, there are a number of writs issued.

If I might just turn to the petitioner's

submissions for one moment at that point, the

petitioner submits at page 2, in the third

paragraph, that the Court:

does not have the power to void a general

election

and then he refers to PDl of the respondent and he

then refers to his own exhibit JWR3. Your Honour,

the petitioner is, in my submission, confused in

that exhibit PDl of Ms Dawson's affidavit is, in
fact, the writ for the general election in relation

to the State of Queensland, so it is not a writ for

the return of 146 members of Parliament, it is

rather a writ relating to the divisions in
Queensland.	I shall not take Your Honour to the

exhibit but that clearly appears from the terms of

the exhibit.

Then, Your Honour, there is a reference

further down to his own exhibit JWR3 which says

eight writs are issued for the general election in

relation to the House of Representatives. That

exhibit is, in fact, a quotation from a handbook

directed to candidates and what appears there is a

summary of what, in fact, follows from section 154

of the Act. In fact, the position is that eight
writs are issued in relation to the House of

Representatives, one for each State and one for the

Robertson 10 13/9/93

Northern Territory and for the Australian Capital

Territory. Of course, in relation to the Senate,

each State government issues a separate writ in

relation to that State. That is perhaps a

diversion, Your Honour. That is simply to address

a misunderstanding in the petitioner's summons.

The decision reached by His Honour

Justice Brennan in the Muldowney case has been

followed on two occasions by His Honour

Justice Dawson. The first case is Sykes v

Australian Electoral Commission. That is an unreported decision delivered on 17 August 1993,

and the second is also a decision of His Honour

Justice Dawson - - -

HIS HONOUR:  It has now been reported, I think. I was just

fortunate enough to open my mail before I came into

Court this morning.

MS KENNY:	Your Honour is definitely ahead of me then.
HIS HONOUR:	It is now in 115 ALR 645, Dr Kenny.

MS KENNY:  Thank you very much, Your Honour. Your Honour

will see that in both that case, the case of Sykes

and the other case of Pavlekovich-Smith, heard at

the same time by His Honour Justice Dawson, all
that His Honour did was say that he agreed with the

decisions -

HIS HONOUR:  In that case, there is no need to take me to

those.

MS KENNY:  So, Your Honour, it is submitted that the

petition should be dismissed at least in so far as

it challenges the election of members for divisions
other than Leichhardt and for senators other than

for the State of Queensland.

There is a further problem too, Your Honour,

here, and that if that submission is correct in

Your Honour's view, in my submission this petition
cannot be read down.	In other words, it cannot be

read down to constitute a challenge simply to an

election for the Division of Leichhardt and the

election for senators for Queensland. The reason I

make that submission is that it is clear from the

relief sought by the petitioner himself that he

envisages that if all the grounds are upheld, these
elections, namely all the elections referred to

constituting what he terms the general election,

should be declared void. What he does not seek is

a decision that the elections in respect of

Leichhardt and in respect of Queensland senators be declared void. That view is, Your Honour,

supported by his own submissions.

Robertson 11 13/9/93

At page 1 of his own written submissions the

petitioner says, in the third paragraph down:

In this present Matter the particular seat of

Leichhardt is of no consequence; the whole

election was affected because there was no
National media coverage of the ''Money

Solution" because there was no prosecution in

this Matter and so we have a unique situation. Justice Dawson took a similar view in the petition

in the case of the Pavlekovich-Smith case.

His Honour in that case said that it was not

possible to read down the relief claimed in the petition by confining it to the election of the

member - in that case, I think, for the Division of

Isaacs - and for the election of senators for

Victoria. It is my submission that the same is

true of Mr Robertson's petition.

Turning to the next ground of the

summons - - -

HIS HONOUR:  Could I just ask you this: because of the

different terminology in the summons, it would be a

consequence of your success on paragraph 1 of the

summons that the petition be dismissed. I only ask

you that because of the language that is used in

some of the other paragraphs that "no proceedings

shall be had".

MS KENNY:  I think that correctly, Your Honour, if no

proceedings are to be had then the Court ordinarily

also orders that the petition be dismissed. That

has been - - -

HIS HONOUR: That terminology stems from the Act itself?

MS KENNY:	It does, and hence it is not adopted in relation to paragraph 1, because there is nothing in the Act
which specifically addresses itself to this
problem, whereas both paragraphs 2 and 3 depend
upon section 358.  So that in my submission,
Your Honour, if the respondent were successful on any of grounds 1, 2 and 3, the petition should be
dismissed.
HIS HONOUR:	Yes, I understand that.
MS KENNY:	In relation to the second ground, that is that:

No proceedings shall be had on the

Petition ..... in so far as it challenges the

election of Senators in Queensland -

this ground depends on section 355(e) of the

Commonwealth Electoral Act and Your Honour will see

Robertson 12 13/9/93

that that last mandatory requirement is that the

petition shall:

be filed in the Registry of the High Court

within 40 days after the return of the writ;

the latter part of that paragraph has no

application here.

In this particular case, the petition was

filed some 49 days after. The writ relating to the

return of senators for Queensland was returned to

the Governor of Queensland. That date was 19 April

and the petition was not filed until 7 June.

HIS HONOUR:  I have read the affidavit material so far as it

relates to dates and timing, I think.

MS KENNY:  I think Your Honour will find that Ms Dawson, in

paragraphs 3 and 4, deals with these points. It is
submitted that for this reason the Court cannot
permit - the petition cannot go forward because of

a failure to comply with section 355(e) by virtue of section 358, that is that no proceedings shall

be had on that aspect of the petition at least.

HIS HONOUR:  Is it possible in such a case, assuming there

were no other objections to the petition, for it to

proceed in respect of the relevant division of the

House of Representatives?

MS KENNY:  My primary submission, Your Honour, would be no,

it is not possible in this case - - -

HIS HONOUR:  I appreciate in this case, because it is caught

up with the argument that there is a challenge to

the whole of the House of Representative election.

MS KENNY:  But absent that, then it would be possible, in my

submission, for the petition to proceed in relation

to the House of Representatives because, in

relation to that writ, the time had not yet expired
by 7 June.	7 June was the very last day upon which

a challenge to the return in relation to the Division of Leichhardt could have been made.

HIS HONOUR:  There does not seem to be any decision of this

Court which directly says that the expiration of

the period of 40 days is fatal, but nevertheless I
appreciate it emerges very strongly through a

number of decisions relating to the power of the

Court to order amendment.

MS KENNY:  Your Honour would be referring first to the

Cameron v Fysh decision.

HIS HONOUR:  Or most recently Nile v Wood.

Robertson 13 13/9/93

MS KENNY:  And also, Your Honour, I think the same view was

taken by Justice Dawson in the Pavlekovich-Smith

case and in Sykes.	I can give Your Honour specific
references if it is of assistance.	Cameron V Fysh
is reported in 1 CLR 314 - - -

HIS HONOUR:  I think that is referred to in Nile v Wood.

MS KENNY: It is, and the specific page is 316. Nile v Wood

is 167 CLR and the relevant reference is at

page 137. Then there are two other cases in which

the same thing has been said: one is Evans v

Crichton-Browne, 147 CLR and the specific reference

is at page 208; the other is In re Berrill. I have

the ALR reference, 19 ALR 255. So so far as the

question of amendment is concerned, Your Honour,

that is quite correct. The position seems to be

that the petitioner cannot cure an amendment

outside the 40-day period because that would have

the effect of enlarging the period provided for

under paragraph (e) of section 355.

But if that be right, Your Honour, then it

must follow that the Court has no power to enlarge

the time for - - -

HIS HONOUR:  For bringing the petition itself. Yes, I

understand that. It is just a little odd that

somewhere along the line the point has not been

actually addressed directly by the Court, or the

Court was not given the opportunity directly to address it.

MS KENNY: Certainly I could not find such an authority,

Your Honour, and the same thought struck me at the time.

HIS HONOUR:  I appreciate the strength of the authority to

which you refer.

MS KENNY:  Your Honour, there is probably no need to develop

that argument any further. I would direct

Your Honour's attention to the sections pursuant to

which the writs and the date for return of writ are

named just briefly, and that is sections 152(l)(d)

which requires the State Governor to fix a date for
"the return of the writ" and he can fix any date
providing it is not more than 100 days after the

issue of the writ. That appears from section 159.

Your Honour will see that the writ actually named

19 May as the date for the return of the writ and

that, it would appear, has led to the advice given

to the petitioner in this case. In other words,

at the time the petitioner asked the Electoral

Commission what was the day for the return of the

writ, the day endorsed upon the writ which is

Robertson 14 13/9/93

exhibit JWR3 was 19 May and that was pursuant to

section 152(l)(d).

In fact, however, the actual date for the

return of the writ, which appears upon the

endorsement to the writ - an endorsement is made

pursuant to section 283 of the Act and must be made
by the Australian Electoral Officer - showed the

date as 19 April.

HIS HONOUR:  You have completed your submissions in regard to paragraph 2 of the summons?

MS KENNY:  Yes, Your Honour. I wanted to take Your Honour

specifically to those provisions so Your Honour

understood how it was that the respondent was

making his complaint, as it were, of the advice

given to him and how it was, when one looked at the

exhibits, there was a variation in dates. But that

is all I need, I think, say to Your Honour. That

is just by way of clarification only.

It also follows, Your Honour, that at the

time - this is a by the by - the petitioner

consulted the High Court Registry, time had run

of Representatives, so the advice given him on each

against him in relation to the Senate petition.

occasion was actually correct, it was just that

there has been, on his part, a misunderstanding of

what the actual position was.

HIS HONOUR:  Yes, thank you.

MS KENNY: Turning to the third paragraph of the petition,

that is that no proceedings shall be had on the

basis that there is non-compliance with
paragraphs 355(a) and 355(aa), I would draw

Your Honour's attention to section 355(a) and (aa)

respectively. They provide that:

the petition shall:

(a) set out facts relied on to invalidate the

election or return;

(aa) subject to subsection 358(2), set out

those facts with sufficient particularity to

identify the specific matter or matters on

which the petitioner relies as justifying the

grant of relief;

Your Honour, there is power under section 358(2) to

relieve the petitioner from compliance with

subparagraph (aa) if the Court is satisfied,

pursuant to subsection (3)(a) of section 358, but

Robertson 15 13/9/93

it is my submission in this case that those

subsections cannot assist the petitioner.

HIS HONOUR: 

It seemed to me to be two themes to this aspect

of the matter: one is the need to set out facts
with particularity upon which the petitioner

relies, and the petitioner may do that and

nevertheless not be able to sustain those facts as a basis for granting any relief under the Act; and the other is whether the petition is just so vague that it is not possible to discern what the grounds

are.

MS KENNY: 

In this particular case, it is my submission that

the petition is incurably defective in that it

asserts no facts which would entitle the petitioner

to the relief which he seeks. So that -

HIS HONOUR:  I take it you are not saying that he does not

assert facts.

MS KENNY:	No.
HIS HONOUR:	Because he asserts a number of facts with

considerable particularity.

MS KENNY: There is one observation I would say to that, before I agree with Your Honour completely, and

that is that a lot of the matters he asserts are

facts in his written submissions are, in fact,

evaluations which he invites the Court to reach.

HIS HONOUR:  I was really thinking of the content of the

petition rather than the written submission.

MS KENNY: In relation to the petition - - -

HIS HONOUR:  I am not suggesting, as you will appreciate,

that what he alleges necessarily gives rise to any

ground for relief under the Act, but just dealing

in particularity of facts, is there a sufficient

particularity there.

MS KENNY: In relations to some matters, I would say, with

respect, no, Your Honour. In relation, for

example, to ground D of paragraph 1, the petitioner

submits that the Commissioner:

favoured the government at the expense of the

electorate by knowing there was an alternative

policy ..... that was claimed to be

superior ..... yet was unknown to the majority
of the electorate as being the policy of an

unregistered minor political party, it was not

in itself a news story, whereas corrective

action by the Respondent would have been a

Robertson 16 13/9/93

national news story leading on to full media

coverage of the superior policy.

Also subparagraph E:

distorted the election result as all Parties

and all Candidates would have been affected if

the superior policy had received national

media coverage and the electorate would have

voted differently.

In my submission those are not properly facts

within the meaning of section 355(a); they are

evaluations or consequences which the petitioner

asserts had the facts been otherwise. They are

really, in substance, the conclusions the

petitioner would have the Court meet, without

providing any facts to support it.

HIS HONOUR:  It is that sort of challenge that lets in this

language of ''no proceedings shall be had on the

Petition" under section 358.

MS KENNY:	Yes, that is so, Your Honour.
HIS HONOUR:	Why is that terminology adopted in those

particular respects, do you know?

MS KENNY:	His Honour Justice Dawson asked, I think, exactly the same question in the Sykes matter and the
simple answer is, I do not know why that was
adopted.  I have found no specific indication of
why that should be said. It seems to be the
legislative intention that if you fail to comply
with these matters, then that is an end of it.

HIS HONOUR: It is unusual terminology, in my experience.

MS KENNY: It is, and Justice Dawson expressed the same

view.

HIS HONOUR:

We have not been in collaboration, I can assure

you.

MS KENNY:	No.
HIS HONOUR:	I take it your argument on this respect goes

both to particularity of language and what, I take

it, you would say is the failure of the petition to

identify facts which, even if they could be

established, would justify avoiding the election.

MS KENNY:  Yes, Your Honour, on both aspects. But

essentially the argument is that there are no facts

which are asserted here which would satisfy the

requirements of section 362 of the Commonwealth

Electoral Act, that is which would justify a court

Robertson 17 13/9/93

being satisfied that it should invalidate the

election. But perhaps I might go back to what

His Honour Justice Dawson said in the case of Sykes in relation to the relationship between

paragraphs (a) and (aa) of section 355.

HIS HONOUR:  If it is easier, we can work from - are you

working from the pamphlet?

MS KENNY:  I am unfortunately, Your Honour, yes. His Honour

dealt with the matter at pages 4 to 5 of the

pamphlet version. At the foot of page 4 His Honour

commenced:

The statement of the facts relied on to

invalidate the election with par.(a) of s.355

requires cannot be amended if, as is the case

here, more than forty days have elapsed since s.355(e) which requires the petition to be
the return of the writ for the election.

filed within that time. It would seem that

the facts which par.(a) requires to be set out are the essential facts from which, if proved,

it might be concluded that the election or

return was invalid. Although the precise

distinction between par.(a) and par.(aa) of

s.355 is a matter of some obscurity, it

appears that under par.(a) the essential facts

may be stated with a degree of generality and

it is par.(aa) which requires sufficient

particularity to identify the specific matter

or matters relied on. The dividing line

between what is essential and what amounts

merely to particularity may sometimes be

difficult to draw. What is clear, however, is

that the facts which par.(a) requires to be

set out must not only be the essential facts

relied on but must also be sufficient to

justify a finding of invalidity. That must be

so for otherwise s.355(a) in conjunction with

s.358(1) would achieve little. If it were not

so, a petitioner might allege insufficient
facts to justify relief under the Act but
nevertheless contend that, as they were the

only facts upon which he or she relied, the

requirements of par.(a) were satisfied. The

Court would then be required to try the petition even though on its face it could not succeed.

And, Your Honour, of course a like view was

expressed in Cole v Lacey, 112 CLR 51, by

His Honour Justice Taylor and also in Nile v Wood

at 167 CLR 138.

Robertson 18 13/9/93

It is further submitted that the Court can only declare an election void on one of the bases

set out in section 362 of the Act and I would, in

that connection, adopt what Her Honour

Justice Gaudron said in the unreported case of

Hudson v Lee.	Does Your Honour have a pamphlet
version of that?

HIS HONOUR:  Yes, I do. I do not know whether that one has

been reported. Yes, it is apparently reported in

115 ALR 343, but again I will work from the

pamphlet version, Dr Kenny.	Which page are you
taking me to?

MS KENNY:  Between pages 7 and 8. If I might ask

Your Honour to look to the bottom of page 7:

Although there is no express statement in the

Act to that effect - - -

HIS HONOUR:  Sorry, I might have the wrong one. Which one

is it, Webster, is it?

MS KENNY:  No, Your Honour, this is the case of Hudson v

Lee.

HIS HONOUR:	The pamphlet copy runs out at page 4, unless there is more than one of that name.
MS KENNY:	The one I have, Your Honour, was delivered on

6 August 1993.

HIS HONOUR:	Mine also.
MS KENNY:	I have another copy, Your Honour.

HIS HONOUR: If I could have that, thank you.

MS KENNY: Your Honour, this is most strange.

HIS HONOUR:  What was the number of the petition dealt with

in the version you have?

MS KENNY:  Would Your Honour excuse me if I handed up my

version which I have marked twice, once in blue and

once in blue, but otherwise unmarked.

HIS HONOUR:  Your version is not a pamphlet version. It may

have preceded - - -

MS KENNY:	The other version.
HIS HONOUR:	As often happens - well, not often, perhaps,

but certainly in relation to chambers matters and

single justice decisions, it happens that a

judgment is handed down and later becomes the

subject of pamphleting So we no doubt have the

Robertson 19 13/9/93

same copy; it is just that the pagination is

different, so I can hand that back. Is that a

matter that I need to express a concluded view on,

the operation of section 362?

MS KENNY:  In this sense, Your Honour: the petitioner is

seeking that the elections be declared void, and I

would adopt what Her Honour said, that the only way in which that power could be exercised by the Court

of Disputed Returns would be pursuant to

section 362.

HIS HONOUR:  So the focus, really, is on the Court of

Disputed Returns, as opposed to the High Court?

MS KENNY:  Yes. It relates to section 355 in this way:

section 362 says that:

The Court of Disputed Returns shall not

declare that any person returned as elected

was not duly elected, or declare any election

void -

and subparagraph (b) would seem to be the relevant

paragraph here:

on the ground of any illegal practice other

than bribery or corruption or attempted

bribery or corruption;

unless the Court is satisfied that the result

of the election was likely to be affected, and

that it is just that the candidate should be

declared not to be duly elected or that the

election should be declared void.

So that, in my submission, at the very least the

petitioner must show facts which might sustain an

allegation that there had been an illegal practice

and facts which could satisfy the Court that the

result of the election was likely to be affected.

HIS HONOUR: 

But you are reading that on the basis that the

inference to be drawn is that subsection (3)(a) and
(b) are themselves the only grounds available to
the Court of Disputed Returns.

MS KENNY: 

I am, Your Honour, and the reason I do that is

for the reasons well set out by Her Honour

Justice Gaudron. I would adopt what she has there

said. But, as she said, section 362 deal almost

exhaustively with the case in which the election of
a candidate shall be declared void, et cetera. In
other words, subsection (1) deals with the case of
bribery or undue influence on the part of a
candidate and then subsection (3) deals with what

happens when someone other than a candidate may

Robertson 20 13/9/93

have acted in a way to give rise to an illegal

practice or bribery or corruption. Then one must

turn to section 352(1) of the Act which defines the

terms for these purposes.

HIS HONOUR: That, in effect, really involves - and I am not

suggesting for a moment that this is not the

correct approach - that Part XXII of the Act which

deals with the Court of Disputed Returns is really

a code, at least as to the jurisdiction or powers

of the Court of Disputed Returns to avoid an

election.

MS KENNY: That is, in effect, the result of the submission.

One indication is the very broad definition of

"illegal practice" in this Act, that is, it is any

"contravention of this Act or the regulations".	So
that immediately there is any conduct which

constitutes a breach of the Act or the regulations,

it falls within section 362, as well as matters

constituting bribery or corruption or undue

influence which, in themselves, would

constitute - - -

HIS HONOUR:  I must say it is a rather odd way of dealing

with the problem, Dr Kenny.	By that, I mean the
language or the format of section 362 itself.	One
would think that it would start with a general

power in the Court of Disputed Returns to avoid an

election in certain events and then, perhaps, bring

in something like subsection (3) to say, "Well,

nevertheless, the power will not be exercised
unless the Court is satisfied that the result of

the election is as there set out."

But there is nothing positive in section 362,

is there, that says that an illegal practice is a

basis for avoiding an election, other than the
inference that you invite me to draw from

subsection (3)?

MS KENNY:  With respect, Your Honour, the effect of subsection (3) is that, in effect, the Court may

declare an election void on the ground of an

illegal practice if it is satisfied that the result

of the election was likely to be affected, but it

may not make such a declaration on the ground of an

illegal practice if it is not so satisfied. In

other words, it acts in a negative way. It tells
the Court, in substance, "If there's been a breach
of this Act or the regulations, the Court may not

declare the election void unless it is satisfied

that the result of the election was likely to be

affected."

HIS HONOUR:  On the other hand, in the case of, say, the exercise of undue influence or an attempt to

Robertson 21 13/9/93

exercise undue influence, the consequences would

seem to be automatic, would they, that the election

must be declared void?

MS KENNY:  In the case of bribery or undue influence by a

candidate, yes. That is under subsection (1). But
in the case of bribery or corruption by a person

other than the candidate and without his knowledge,

none the less, the Court must still be satisfied

the result of the election was likely to be

affected.

HIS HONOUR:  That is on the basis that that would be caught

up as an illegal practice?

MS KENNY:	Yes, Your Honour.
HIS HONOUR:	Yes, I see that.
MS KENNY:	And it is hard to see that, with respect,

Your Honour, anything else could fall as a ground

for declaring an election void other than matters

dealt with in section 362. It would be an unusual

result that something extraneous to this Act should
be dealt with in a different way.

There are other indications that the power of the Court is specifically confined and those would

be in section 365, that is:

No election shall be avoided on account of any

delay -

et cetera -

or -

in the case of -

absence or error of or omission by any officer

which did not affect the result of the

election.

That seems to be the positive, as it were, of

section 362(3)(b).

HIS HONOUR:  So, something like the destruction of ballot

papers, for instance.

MS KENNY:  That would be a contravention

HIS HONOUR: That would be an illegal practice.

MS KENNY:	Would be an illegal practice, yes.
HIS HONOUR:	Yes, I follow the argument.

Robertson 22 13/9/93

MS KENNY:  Your Honour, it would appear that for some reason

- the matter that I was going to refer Your Honour

to, the matter of Hudson v Lee of Justice Gaudron,

does not seem to be in the pamphlet version of the

edition, the three-page edition that Your Honour

had. I wonder if I might hand this to Your Honour

and leave it with Your Honour and I think I can

direct Your Honour to the relevant parts of it?

HIS HONOUR:	Yes.
MS KENNY:	Your Honour will see at the bottom of pages 7 to

8 Her Honour took a similar view of the operation

of these sections. She says -

HIS HONOUR:  I am sorry, Dr Kenny, were you suggesting there

is some variation between this - - -

MS KENNY:  Yes, Your Honour. I must admit, in the short

time that -

HIS HONOUR:  There does not seem to me to be one. My

pamphlet version, at a quick glance, is identical.

MS KENNY:  My problem is, Your Honour, I could not pick up

the passage I wanted to take Your Honour's

attention to.

HIS HONOUR:  You tell me the passage and I will see if I can

find it for you.

MS KENNY:  The matter I wanted to take Your Honour to I

think I have found, I beg your pardon, Your Honour,

I think I have found it for myself, in pamphlet version at the bottom of page 3.

HIS HONOUR:  Yes, so I can let you, once again, have that

back.

MS KENNY:  I feel more assured by the big print than the

small print, I think, Your Honour.	Thank you.	At
the bottom of that page, Her Honour said:	Although there is no express statement in

the Act to that effect, s.362, in my view,

provides exhaustively as to the general

grounds on which an election may be

invalidated or declared void. There are three matters which provide the basis for my view in

that regard. First, the Act makes detailed

and comprehensive provision as to the conduct

of elections. Second, it allows for elections

and returns - - -

HIS HONOUR:  Can I just interrupt you there. Does that

first statement have to be read in the context of

the powers of the Court of Disputed Returns?

Robertson 23 13/9/93

MS KENNY:  Yes, Your Honour, in my submission, it would, by

virtue of the terms of section 362 which directs

itself specifically to the Court of Disputed

Returns.

HIS HONOUR:  Yes. There obviously are other bases upon

which an election may be declared void which have

nothing to do with section 362 which lie outside

the jurisdiction of the Court of Disputed Returns.

MS KENNY:  Yes. The obvious one must be a challenge on the

ground of unconstitutionality which conceivably

would lie in the High Court's jurisdiction.

HIS HONOUR:  Yes. Yes, I have read that paragraph.

MS KENNY:  What Her Honour there says I would respectfully

adopt here.

HIS HONOUR: That becomes apparent from the last sentence in

that paragraph when Her Honour says:

It would be incongruous if the Court's powers

were entirely at large -

that is speaking of the Court of Disputed Returns -

with respect to matters extraneous to the Act.

MS KENNY:  Yes. I note, just in passing, Your Honour, that

Her Honour seems to have, not surprisingly, pursued

the same course in Webster v Deahm on

3 September 1993, at pages 18 to 19.

So, the question then becomes, in this case,

does the petition set out sufficient facts to

attract the possible operation of section 362(3) in

relation to illegal practices, other than bribery

and corruption, because I think, for these

purposes, there are simply no facts asserted which

would bring it within either of those provisions. Your Honour, if I may just now turn to the

grounds of the petition.	Ground A in paragraph 1
asserts a failure:

to seek written legal advice from the Crown

Law authorities upon receiving a complaint

from the Petitioner on Monday 22nd February

1993 in Cairns at the Leichhardt Office of the

Respondent that Section 350(1) had been

breached on Saturday 20th February 1993 when

The Cairns Post, a regional daily newspaper

with a large circulation, defamed a Candidate,

James Llewellyn Cavill, in reporting that

Cavill was a member of the unregistered Ozone

Party and FALSELY reporting the Ozone Party

Robertson 24 13/9/93

advocated the abolishment of all taxes, so

branding Cavill as being a member of an

anarchist or idiotic group (for a civilised

Nation could not operate without taxes).

Ground B seems to be, in substance, an extension of

ground A:

The Australian Electoral Commissioner

wrongly - - -

HIS HONOUR:  I do not think you need to read it. I can read

it for myself.

Now, that allegation in paragraph A relates,

does it, to a particular section of the Electoral

Act?

MS KENNY: It does, Your Honour. It relates to that section that I referred Your Honour to at the commencement, that is, section 382. Your Honour will see that if

the Crown Law authorities were to so advise, then

there may be a duty, if one were to construe the

Act in that way, on the Commissioner to institute

legal proceedings. But it is clear on the terms of

section 382 that no such duty could arise unless

the Crown Law authorities so advised.

HIS HONOUR:  The other question, I suppose, is does it have

anything to do with the avoiding of elections or

are its consequences quite different?

MS KENNY: Its consequences would be quite different,

Your Honour. The petitioner relies on section 350

of the Act in part. If I may take Your Honour to

that section. It would appear that when he made

his complaint - his complaint was that section 350

had been breached and he was inviting the

Commissioner to institute legal proceedings to

vindicate the reputation of the candidate, as he

saw it, under section 350. But the first and most

obvious matter to note in section 350 is that there

is no offence committed unless there is a statement

which is false and defamatory in relation to the

personal character of a candidate. The matter of

which Mr Robertson complained was that the paper

had reported that the "party advocated the

abolishment" to use his words - "of all taxes" and,

in my submission, that could scarcely be regarded

as a statement relating to personal character.

HIS HONOUR:  Whether or not that is right, it does not seem

to me to be a matter that this Court should, on

these proceedings, become involved in.

MS KENNY:  No. It is not necessary to become involved in

that matter, Your Honour.

Robertson 25 13/9/93

HIS HONOUR: Let us assume that it was defamatory of

Mr Cavill.

MS KENNY:  If it was defamatory of Mr Cavill, there would,

in my submission, still be no duty upon the

Commissioner to take any steps - - -

HIS HONOUR:  The duty only arises once the Crown Law

authorities advise.

MS KENNY: That is correct, under section 382. It is

emphasized in a sense, Your Honour, by the fact

that section 350 is clearly directly protecting the

personal reputation of a candidate, and that

candidate may himself take out his own proceedings.

That follows from section 350(2). And, of course,

under section 382 itself, the candidate himself

could exercise the powers under section 13 of the

1914 Crimes Act and institute his own proceedings.

HIS HONOUR:  Yes, but his complaint is that the Electoral

Commissioner should have done something.

MS KENNY:  Did nothing. But the answer to that is there is

nothing in the Act whatsoever to give rise to a

duty in this circumstance and there is every reason

to suggest that there would be no such duty because

a candidate in such a position has ample ability to either vindicate his own reputation through seeking his own proceedings for an injunction.

HIS HONOUR: But, say, for instance, the Crown Law

authorities had advised the Commissioner to

institute legal proceedings.

MS KENNY: That would be a different matter. In that event,

then the Commissioner, under section 382, would be

so obliged.

HIS HONOUR: 

It probably does not matter for the purposes of

determining this application but you do wonder
whether section 382 was intended to reign so widely

as to put the Electoral Commissioner in the

position of instituting legal proceedings for what

was essentially a personal defamation. But maybe

it does.

MS KENNY: 

On one view, the duty would not arise at all for the reasons I have just addressed to Your Honour but, really, in a case of a personal defamation, the proper view is that it is for the candidate to

take whatever steps he wishes and there are ample provisions in the Act to do that, and section 382

must be read subject to that.  On another view -

and the situation does not arise here - if the

Crown Law authorities were so to advise, then the

Commissioner may have a duty to act.

Robertson 26 13/9/93

HIS HONOUR:  Yes, thank you.

MS KENNY: That matter, that failure to seek written legal advice, forms the basis of the alleged failure of the Commissioner which grounds the petition under

grounds A and B, as I read the petition. But there

being no duty, it must follow there is no breach of

the Act or regulations and no illegal practice upon

which section 362(3) could operate.

Then there is an allegation in C of a slightly different nature, that there was a failure to

advise the petitioner but, again, on my submission,

there is no duty disclosed in the Act which would

support ground C. In fact, Your Honour, although

it is not strictly relevant to this application, it

would appear from the petitioner's own affidavit,
that he was aware long before 12 March that he was

unlikely to receive assistance from either the Electoral Commission or the Australian Federal

Police or the Ombudsman, each of which advised him

that no offence had been committed under

section 350 of the Act.

Of course, the relief which the petitioner

says he might have sought, that is, an injunction

to compel the respondent to do its statutory duty,

was inappropriate because there was no statutory

duty for the respondent to perform and, in any

event, of course, they always lay appropriate

avenues of relief to the candidate under the Act.

The last two, that is, the Commissioner:

favoured the government at the expense of the

electorate - - -

HIS HONOUR:  I do not think you need spend time on the

paragraphs D and E, Dr Kenny.

MS KENNY:  And then, Your Honour, paragraphs 2 to 6 relate

to the policy of the Ozone Party; paragraphs 2 to 5

relate to what is termed the "Money Solution".

HIS HONOUR:  Yes. I do not read those paragraphs as really

being grounds so much as elaboration of what has

gone before.

MS KENNY:  I did not either, Your Honour, until I read the

correspondence of the petitioner, and I am only

putting it because he is unable to represent

himself. It would appear from the correspondence

which passed between the Commissioner and the

Australian Government Solicitor, which appears in

exhibit 9, that he invited or was inviting some

discussion on the merits of his policy. Now, the short answer to that is that that is a matter for

Robertson 27 13/9/93

the electorate on polling day to determine. It is

not a matter for the jurisdiction of the Court. In substance, what the petitioner seems to be

asserting, taking this petition as a whole and

taking into account his written submissions in

page 1, is that the Commissioner's failure to
institute proceedings was wrong because it deprived

the Ozone Party of immediate coverage it desired, especially for its "Money Solution", and it would

seem that this lies behind his motion of corrective

action. But there is simply no basis in the Act -

indeed, it probably would be improper for the

Commissioner to take proceedings along those lines.

So that, in substance, the grounds themselves

disclose no facts which would constitute an illegal

practice.

The other matter which the petitioner does not

set out in the petition are facts which would

entitle him to relief. That is, he does not set

out any facts upon which the Court could be

satisfied that the result of the election was

likely to be affected and it was just that the

candidate should be declared not to have been duly

elected, as - - -

HIS HONOUR:  Is this bringing section 362 back into play

again?

MS KENNY:  Yes, it is, Your Honour. There are two elements,

in effect: one, under section 362(3)(b), the
petitioner would have to establish facts

constituting illegal practice which, in my

submission, the petitioner has failed to do; and,

secondly, he must satisfy the Court that the result

of the election is likely to be affected, and that,

again, the petition fails to do.

Now, Your Honour, I would just refer

Your Honour, rather than taking Your Honour to

specific passages of His Honour Justice Dawson in

Sykes v the Australian Electoral Commission.

His Honour also reached the same conclusion that in order to satisfy section 362(3), one had to set out the facts upon which the Court would be so

satisfied.

I note that Her Honour Justice Gaudron in

Webster took the same approach again at pages 2 and

5 of the pamphlet version.

So, accordingly, it is submitted in this case,

Your Honour, that it is appropriate that the petition be dismissed for failure to comply with section 355(a) which would have required facts

which would attract section 362(3), that is, facts

Robertson 28 13/9/93

which disclose the illegal practice and facts which
would justify the relief, and the petitioner in

this case has failed to do either.

Your Honour, the final ground is that the

petition be stayed pursuant to Order 63 rule 2.

HIS HONOUR:  On what basis would that become relevant? If I

accepted what you have said in relation to

paragraphs 1, 2 and 3, then, on your submission,

the petition should be dismissed.

MS KENNY: That is correct, Your Honour.

HIS HONOUR:  What would open up Order 63 rule 2, in any sort

of meaningful way?

MS KENNY:  If Your Honour were to hold against me that in

fact the petitioner had disclosed sufficient facts

to satisfy section 355(a), then I would, none the

less, rely upon Order 63.

HIS HONOUR: That would be reading down paragraphs (a) and

(aa) so that it was enough to particularize facts

without particularizing facts that would justify

setting aside the election?

MS KENNY:  Yes, Your Honour. Your Honour would have to take

that course which, in my submission, is not a

course Your Honour should pursue. But if

Your Honour were minded to do so, then there would,

in my submission, still remain the application to
stay the proceedings on the basis that they

disclose no reasonable or probable cause of action.

That approach, it would appear, is open to the

Court sitting as the Court of Disputed Returns.

HIS HONOUR:  I was just going to ask you that question. It

is available to me as the Court of Disputed

Returns?

MS KENNY:  It has been held available by His Honour

Mr Justice Fullagar in a case in the 1950s called

Crittenden v Anderson. Your Honour, if you turn to

page 1 - I think, Your Honour, if I may refer to

the printed pages. It has "282" at the top.

HIS HONOUR:	Yes.
MS KENNY:	His Honour says, in the second line:

The application is made by the respondent to

the petition, who asks that proceedings on the

petition be stayed on the ground that it is

vexatious and an abuse of the process of the

Court. I consider that I have power to deal

Robertson 29 13/9/93

with such an application and to deal with it

in chambers.

Your Honour, in substance - of course, the Act has changed since 1950 and so have the rules but

essentially they remain the same, in other words,

the rules are now made under section 375 of the

Act; the order for stay or dismissal is now under

Order 63 rule 2; this petition would be an originating proceeding under Order 1 rule 5, and,

of course, the application is made to a Justice in

Chambers under Order 52 rule 1.

But most importantly, Order 68 rule 2 of the present High Court Rules make applicable, so far as

they are not inconsistent with this Order, the

Rules - that is the High Court Rules - in:

proceedings in the Court in the exercise of
its jurisdiction as the Court of Disputed

Returns.

Your Honour, I also note the observation at

the foot of the page that I shall not read, of His

Honour, that it is:

well settled that every Court has an inherent

jurisdiction to stay proceedings which are an

abuse of its process.

And I would refer Your Honour to pages 282 to 283.

In Crittenden v Anderson, the petitioner

contended that a candidate could not sit because he

was "a professed member of the Roman Catholic

Church" and therefore owed an allegiance to a

foreign power. That, I think, appears at page 284.

Not surprisingly, His Honour said:

It is obvious, in my opinion, that no

such major premise can be supported.

That is at page 285 at the top. And then he goes

on to say, the ground was quite untenable.

His Honour was obviously applying the sort of test

contemplated by His Honour the Chief Justice in

General Steel v Commissioner for Railways, 112 CLR, particularly at page 128 to 130.

Now, it is submitted in this case that the

petitioner has no prospect of success. His thesis

would seem to be that had the Electoral

Commissioner obtained legal advice, he would have

been obliged to institute legal proceedings against

the publisher of The Cairns Post and that those

legal proceedings would have attracted national

media coverage to the Ozone Party and, in

Robertson 30 13/9/93

particular, for his policy the "Money Solution'' and

that because of the merits of that party and of

that policy.

The petitioner concedes that he can only

succeed if all grounds should be made out but it is
submitted that - and I will make four brief

propositions, Your Honour, in relation to this

submission - first, that the Commissioner was under

no duty to obtain advice. The decision to obtain

advice was a matter for his discretion. Secondly,

the Commissioner did not obtain any advice which

would have obliged him to execute proceedings; and

thirdly, the petitioner's assumption that had he

received such advice, the Commissioner would have
been obliged to institute proceedings is, in my
submission, unlikely in view of the fact the

statement related to a political rather than a

personal matter. Finally, that any argument as to

the merits of the candidates or any other policy is

not a matter for this Court.

So that, in substance, there are no matters

which the petitioner alleges in this petition which

could constitute any basis for success. It is

therefore submitted that the petition discloses no

reasonable or probable suit and is vexatious and

oppressive within the meaning of Order 63 rule 2.

Those, Your Honour, are my submissions on the

petition.

HIS HONOUR:  Thank you, Dr Kenny, for your assistance.

There are a number of matters raised by the

application, so I propose to consider my decision.

The Court will now adjourn.

AT 11.22 AM THE MATTER WAS ADJOURNED SINE DIE

Robertson 31 13/9/93