Robertson v Knuth

[1996] QCA 89

IN THE COURT OF APPEAL	[1996] QCA 089
SUPREME COURT OF QUEENSLAND

Appeal No. 186 of 1995

Brisbane

[Robertson v. Knuth]

BETWEEN:

JOHN WILLIAM ROBERTSON

Appellant

AND:

NOEL THOMAS KNUTH

Respondent

Pincus J.A. Davies J.A. McPherson J.A.

Judgment delivered 10/04/1996

Joint reasons for judgment of Pincus and Davies JJ.A.; separate reasons of McPherson J.A. concurring as to the order made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	CIVIL - appeal against order of Supreme Court dismissing application for order that a local government election be "voided" - power of Supreme Court to set aside local government election - Judicial Review Act 1991 - s.172 Local Government Act 1993 - no publication in contravention of s.336 Local Government Act 1993
- duty of returning officer in respect of any contravention of s.336 Local Government Act 1993.
Counsel:	Appellant appeared on own behalf Mr. J. A. Logan for the respondent
Solicitors:	Appellant appeared on own behalf MacDonnells for the respondent

Hearing Date: 28 March 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 186 of 1995

Brisbane

Before Pincus J.A. Davies J.A. McPherson J.A.

[Robertson v. Knuth]

BETWEEN:

JOHN WILLIAM ROBERTSON

Appellant

AND:

NOEL THOMAS KNUTH

Respondent

JOINT REASONS FOR JUDGMENT - PINCUS AND DAVIES JJ.A.

Judgment delivered the 10th day of April 1996

This is an appeal against an order of the Supreme Court dismissing an application for an order

that a local government election for the City of Cairns held on 11 March 1995 be "voided". The

appellant was a candidate for mayor at that election. The respondent was the returning officer.

It was accepted on both sides that the Court had the power to set aside such an election:

Woodward v. Sarsons [1875] L.R. 10 C.P. 733. See Bridge v. Bowen (1916) 21 C.L.R. 582 at 591-

2, 605-6, 616; Turner v. King [1992] 1 Qd.R. 307. See also Judicial Review Act 1991; Local

Government Act 1993 s.172. The appellant submitted that this case came within what he described

as the second limb of Woodward v. Sarsons; i.e. that "the election was not really conducted under the

subsisting election laws": at 743. He accepted that, to come within that limb, "it is necessary to be able to say that, either wilfully or erroneously, the election was not carried out under those laws, but under

some other method": at 744.

On 4 March 1995 the Cairns Post published an article identifying the appellant, correctly, as

a member of the OzOne team contesting the election and saying:

" The OzOne party also believes in a no-tax system with every bank account levied 1 per cent, said candidate John Robertson, making his second bid to become mayor to Cairns.

Mr. Robertson said under this 'money solution' there would be no need for taxes and the system had been proven to work well in other countries."

The applicant submitted that this publication contravened both sub-ss.(1) and (2) of s.336 of

the Local Government Act. That section provides:

"336. (1) During an election period, a person must not print, publish, distribute or broadcast anything that is intended or likely to mislead an elector about the way of voting at the election.

(2) A person must not, for the purpose of affecting the election of a candidate, knowingly publish a false statement of fact about the personal character or conduct of the candidate.

(3) During an election period, a person must not print, publish, distribute or

broadcast by television anything that purports to be a representation of a ballot paper for use in the election, if it is likely to induce an elector to vote other than in accordance with this Part.

Maximum penalty - 40 penalty units."

We do not think that it contravened either subsection.

As to sub-s.(1), assuming that the publication was intended or likely to mislead an elector, it

was not "about the way of voting" at the election. That phrase, like the phrase "in relation to the casting

of a vote" in s.329 of the Commonwealth Electoral Act, is concerned with statements "intended or likely

to affect an elector when he seeks to record and give effect to the judgment which he has formed as to

the candidate for whom he intends to vote, rather than with statements which might affect the formation

of that judgment": Evans v. Crichton-Browne (1981) 147 C.L.R. 169 at 204. It is true that the analogous phrase in that case is different and that its context is a little different but the purpose of the

two provisions is plainly the same. It is unlikely that the Queensland legislature intended any relevant

change of meaning when it enacted s.336(1) in substitution for s.5A(1)(ii) of the Local Government Act

1936 which, like the Commonwealth Act, used the phrase "in relation to the casting of his vote".

As to sub-s.(2) what the appellant was advocating, according to his own pamphlets, was an

indirect tax upon bank withdrawals. He did not say, either in his evidence or his submissions, whether

this indirect tax was to be in substitution for direct income tax or in addition to it and it therefore remains

unclear whether that was intended. What is clear however is that he was not advocating a no-tax

system. He construes the passages quoted above as attributing to him a no-tax policy and he says that

this was to "brand him as idiotic" or, as he said in his pamphlets, "anarchist" or "part of the lunatic fringe".

But in our view the passages quoted, read as a whole, do not attribute to him a no-tax policy but a no-

direct tax policy. Plainly they attribute to him a policy of an indirect tax on bank accounts. We do not

think that attributing to the appellant such a policy was to brand him as idiotic or lunatic or anarchist.

Such a policy might be unacceptable to many but, whether that is so or not, it does not, in our view,

reflect on his "personal character or conduct".

The publication therefore did not contravene s.336. The appellant's other submissions depend

on such contravention. They were that the respondent should have, prior to the election, either initiated

a prosecution against the proprietor of the Cairns Post for contravention of that section or publicly

announced his intention of doing so. It was his failure in one or other of those respects which, the

appellant submitted, entitled the appellant to avoid the election. The appellant did not submit that, if the

quoted passages contravened s.336(1) or (2), that alone was sufficient to entitle him to avoid the

election.

Although it is unnecessary, in view of the above conclusion, to consider the appellant's further
submissions it is plain, in our view, that even if the above passages contravened s.336, the failure by the

respondent to prosecute or to announce his intention of prosecuting before the election would not have

entitled the appellant to avoid the election. No legal basis for that submission was established.

Moreover the appellant conceded that the respondent should have sought and acted on legal advice and

there is no evidence that, between the date when the appellant first complained to the respondent about

the above passages and the date of the election, the respondent was doing other than that.

The appeal must, in our view fail and should be dismissed with costs.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 10th day of April 1996

I agree with the joint reasons given by Davies and Pincus JJ.A. for dismissing this

appeal with costs.