Robertson v Briggs

[1994] QCA 472

[1994] QCA 472

COURT OF APPEAL

FITZGERALD P DERRINGTON J CULLINANE J

Appeal No 100 of 1994

JOHN WILLIAM ROBERTSON Appellant

(Applicant)

and

NOEL PATRICK BRIGGS Respondent

BRISBANE
..DATE 5/10/94
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THE PRESIDENT: This is an appeal from an order made by a
Judge in the trial division at Cairns on 29 April 1994. An
originating summons filed by the appellant on 25 March 1994
was dismissed with costs to be taxed. The order sought
according to the appellant's amended notice of appeal and I
think according to the original notice of appeal, is as
follows, "All candidates for...elected unopposed."

The appellant is the person named in the order sought as Robertson and the other persons named there were other candidates in the election referred to in which all, including the appellant, were unsuccessful. The respondent is the chief executive officer of the council of the city of Cairns and in that capacity, was the returning officer pursuant to the Local Government Act 1993 in connection with the election of the mayor and councillors held on 26 March 1994.

It is convenient to note immediately some basic difficulties in relation to the orders sought by the appellant who appeared for himself. Firstly, the mayor and councillors declared elected following that election, whom the appellant seeks to have removed from office, are not parties to this proceeding, although the appellant asserted that, prior to the decision appealed from, he served all other councillors and I think unsuccessful candidates with material at the direction of the primary Judge.

It is not clear whether all material was served and there is
no suggestion that service was effected of the appeal papers
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including the extra material sought to be relied on before
this Court, although for reasons which will appear, I think
that unimportant.

Secondly, it is sought, not only that the unsuccessful candidates but all candidates, the others of whom are similarly not parties, be disqualified to use the appellant's terms, and that the appellant and those whom he names be "elected unopposed."

The electors of the city of Cairns might be somewhat
surprised and their legitimate democratic expectations might
well be disappointed if an order was made providing them
with a city council constituted by persons whom they had

rejected in lieu of persons whom they elected.

Indeed, it might even be that some of those now nominated
for office by the appellant would be surprised to find
themselves "elected unopposed" at this time. At most, the
appellant seems to have or have had an association with
Stockdale, Cavill, Bristow and Stephens, all of whom,
together with him, as the mayoral candidate, were the Oz-One
Direct Democracy Team (Oz-One DDT) for Cairns, according to

the material filed.

The others selected by the appellant to be "elected
unopposed" seem to be, for the most part, independent
candidates but one independent candidate for mayor, the
office which the appellant seeks who would otherwise
complicate matters and perhaps, has in consequence, had to
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have some of the appellant's allegations made also against
him.

Thirdly and less important is the absence of any obvious authority for the procedure adopted by the appellant who asserts reliance on some provisions of the Local Government Act which provide no procedural basis for his course and the Supreme Court's inherent jurisdiction to provide a right or remedy for every wrong according to the appellant.

Prior to the election in question, a newspaper, the Cairns
Post, published, in good faith as the appellant accepts, the
result of a telephone poll which it had cause to be
conducted which indicated that the mayoralty would be won,
as it was, by the incumbent, Kevin Byrne.

Shortly stated, the appellant contends that the poll result was manipulated to produce a result favourable or more favourable to Byrne which caused the publication of the poll result to be misleading. All else is said to follow.

Alternatively, it is submitted that the Judge who dismissed the appellant's proceeding erred in exceeding the inherent jurisdiction of the Court by having the Deputy Registrar at Cairns notify the Cairns city solicitor when the proceeding came before the Court and there was no appearance by the respondent.

This gave the respondent an opportunity to appear and
successfully oppose the appellant's claim, thus preventing a
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default judgment against the respondent as the appellant
contended. That, he said, would have given him a tactical
advantage making it necessary for other persons to swear
affidavits and not simply ignore him as has occurred.
The appellant made it clear that he did not object to the
respondent being notified but complained that the
notification was not given to the respondent but to a
solicitor. It seems that, apart from the Oz-One Direct
Democracy Team, there were other teams, including the Cairns
Unity Team led by Byrne and an alliance team led by one

Dempsey.

There were also other independent candidates for either
mayor or councillor. The telephone poll was conducted by
the newspaper on Saturday 19 and Sunday 20 March 1994, the
weekend before the election. Readers, who obviously include
persons not entitled to vote in the Cairns City Council,
such as children, tourists or other visitors and residents
in the nearby Mulgrave Shire, were invited to "send a
message to the candidates through a vote for a mayor 0055
phone poll."

The article in the Saturday edition was dismissive of the appellant's prospects stating that he could "only hope to pick up the disillusioned." The result of the poll was published in the Cairns Post on Monday, March 21, 1994 in an article on page 5, headed in part, "Byrne in front."

The figures were given which showed that Byrne had received
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1091 phone calls which I will refer to, for convenience, as
votes, that each of the other two candidates for the Cairns
mayoralty had received between 500 and 600 votes and that
the appellant had received 10.

Details were given of the number of votes recorded by the candidates for mayor other than the appellant. As at 9.30 p.m. on Saturday 19 and 2 p.m., 4 p.m. and 6 p.m., on Sunday, 20 March and the accompanying article read or rather, I should say, included the following passages:

"Voting was slow earlier in the weekend but yesterday
afternoon it hotted up with more than 140 votes being
registered for Alderman Byrne in just 90 minutes before

closing at 6 p.m."

And then later:

"Editor of the Cairns Post, David Maguire, said last
night that the 0055 telephone polling method was like
many similar surveys in that it could not give a
definitive indication of voting trends.

Because of everyone's ability to make a telephone call, the poll became a measure of the candidate's general popularity, he said. 'Only by comparing the poll results to the final ballot box count next weekend will we know the value of the figures we publish today.' he said."

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The appellant appears also to have thought it regretful that
on page 27 of the same newspaper, there was an advertisement
by the Cairns Unity Team. However, his main points are that
(1) by comparison with a simultaneous poll conducted in the
Mulgrave Shire, nine per cent of Cairns residents and only
half a per cent of the Mulgrave residents voted and
(2) that the voting in favour of Byrne in the last one and a
half hours, 4.30 to 6 p.m. on Sunday, 20 March, was
unrealistic.

Thus it was said there had been multiple dialling of the voting telephone number by or on behalf of Byrne. At least in his oral submissions the appellant seemed to assert that the miscreant was not Byrne but his supporters but it makes no difference to the conclusion which I have reached.

Supporting evidence, as it was described by the appellant, was also found in Byrne's "unrealistic" success in another poll which had been conducted in relation to an earlier election in 1992. Final confirmation was found in the absence of any denial or if it be different, serious denial of the appellant's allegations by Byrne and it seems, others.

That appears from the appellant's numerous affidavits or one
of those affidavits which includes the following paragraphs,
(11) "Byrne is the...20 March 1994." The published figures
are the proof of the multiple phoning and consequential
deception played on the Cairns voters and accordingly, the
whole of the alliance team are disqualified.
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Sno Bonneau was an independent mayoral candidate with a group of followers and again the published figures show multiple phone polling in a copycat of the 1992 Byrne phone polling and accordingly Sno Bonneau is disqualified.

It provides some insight into the appellant's willingness to make allegations without justification to note that there is absolutely nothing in the published figures concerning the

other mayoral candidates, Dempsey and Bonneau, to indicate anything even slightly unusual other than perhaps the fact that they got many more votes than the appellant and in

particular, neither received even one vote in the final
period from 4.30 p.m. to 6 p.m. on Sunday, 20 March 1994.

However, the appellant considers the vote for the others unrealistically high and certainly they were much higher than the 10 votes which he received. The appellant also relied on (1) a Cairns Unity Team brochure which said, "Illegal behaviour will not be tolerated." and (2) an alliance team leaflet stating that alliance candidates "place great stress on home community values."

Both brochure and leaflet were alleged to be misleading because it was claimed that they tolerated or did not distance themselves from illegal practices by others or some of their supporters, to wit, those involved in the alleged multiple dialling.

It is possible that there was multiple dialling in the poll.
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Indeed, so far as it goes, the appellant's 10 votes might

have been the work of one voter. It is possible that a candidate, including the appellant, engaged in multiple dialling, counselled or assisted another person or persons

(supporters) to do so or was aware that that had occurred.

However, there is no proof of any of these matters and no
justification in the material which he filed to the
appellant's allegations. The Judge below dismissed the
appellant's application without discussing such matters,
proceeding instead on a view which he expressed concerning
the meaning of subsection 336(1) of the Local Government

Act.

I do not think that that is a satisfactory course for this
Court. I find it unsatisfactory to attempt the construction
of such a provision in the absence of a factual context and
I do not think that this Court should embark upon such a
task with the attendant risk of a decision which might have
future unintentioned implications.

I prefer to base my decision on my conclusion that the appellant failed totally to establish a breach of the subsection or the factual matters which were fundamental to his case. It might well be that His Honour was correct in his conclusion that a breach or even a conviction for a breach of subsection 336(1) is not a basis for removal under section 172.

I would prefer, however, to leave that to the future, merely
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noting a tentative view that whatever the result of the
conviction, a breach, without a conviction, does not lead to
automatic disqualification under section 171 or to a vacancy
in office under subsection 200(1)(c).

The appellant also suggested that the Court has an inherent jurisdiction to remedy the wrong. There is no reason to explain why this fails beyond noting that the appellant proved no wrong. At best to the appellant, the late voting for Byrne may cause curiosity.

We simply do not know and are not entitled to speculate that
even if the figures were thought to be possibly
questionable, that would not justify a conclusion that Byrne
or any of the other candidates were in any way directly or
indirectly involved and I add, although it is unnecessary,
that having regard to the context in which the polling was
released, including the passages from the article which I
have read out, there is no sufficient basis for a conclusion

that voters would have been misled.

The other point raised by the appellant was that related to
the respondent being given an opportunity to appear by the
Judge at first instance, causing a message to be sent to the
Cairns city solicitor. In his written outline, the
appellant alleged that the Judge had "perverted the normal

course of justice."

This is a scandalous allegation without any shadow of
justification which is emphasised by the importance which
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the appellant himself attributed to these proceedings, the
extreme nature of the relief which he claimed and the
improbability that the respondent had deliberately absented
himself.
It was entirely open to the Judge to take the course that he
did and I consider that it was sensible and correct of him
to do so. The proper conduct of elections is important and
it would be regrettable if telephone polls which seem

capable of manipulation were used to mislead voters.

It is also desirable that citizens, including unsuccessful
candidates, should have appropriate opportunities to
challenge the outcome of elections and to have recourse to a
Court for that purpose if there is any proper basis.

However, that requires more than an active imagination or even, when it is present, a valid basis for a suspicion. There is no case established here by the appellant. Although there is no reason to doubt the appellant's sincerity, it is regrettable that, without any substantial basis, these proceedings have wasted the time of the Court on two occasions and presumably the time of Cairns council officers and that public funds have been wasted.

In the course of today's hearing, the appellant raised the
alternative of what he described as a mistrial, apparently
hoping to force his opponents to go on oath but it is
apparent from what I have said that the appellant is, in my
opinion, disentitled to any relief. The appeal should be
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dismissed with costs.

DERRINGTON J: I agree.

CULLINANE J: I agree.

THE PRESIDENT: Perhaps I should have asked, Mr McGill, whether you are asking for costs but I assume that you are.

MR McGILL: I do, Your Honour.
THE PRESIDENT: And do you have anything to say against
that? If you do, well, we will vacate the order and listen

to you before we make an order, Mr Robertson.

APPELLANT: No, I have nothing to say on it.

THE PRESIDENT: Yes, very well then. The orders will be as

I

have indicated.

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