Robertson v Australian Electoral Commission - [1993] HCATrans 270

~

•

• ~

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

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

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…

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.

Keep reading for free

Create a free CaseChat account to read Robertson v Australian Electoral Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1993] HCATrans 270
Decision Date

CaseChat Overview and Summary

The case of *Robertson v Australian Electoral Commission* concerned a petition filed by John William Robertson against the Electoral Commissioner. The petitioner sought to challenge the validity of an election, alleging a failure by the Electoral Commissioner to take action under specific provisions of the relevant Act, namely sections 382 and 350. The Australian Electoral Commission, though not initially named as a respondent, sought leave to be joined or substituted as the proper party.

The primary legal issue before the High Court was the correct respondent to the petition. The petitioner had named the Electoral Commissioner, who is the chief executive officer of the Australian Electoral Commission. The court was required to determine whether the Electoral Commissioner was the appropriate party to be sued, or if the Australian Electoral Commission itself should be the respondent, particularly given that the relief sought was the avoidance of an election.

The High Court, in considering the matter, noted that the Electoral Commissioner acts as the chief executive officer of the Commission under section 18 of the Act. The court reasoned that when the relief sought pertains to the avoidance of an election, it is generally sufficient to name the Commission as the sole respondent. Consequently, the court ordered that the name of the respondent be amended to the "Australian Electoral Commission," substituting it for the Electoral Commissioner. The court also directed that an affidavit sworn by the petitioner, which had been posted rather than formally filed, be treated as filed and available for use in the proceedings.

Orders