Rudolphy v Lightfoot

[1999] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Perth  No P22 of 1999

B e t w e e n –

FREDERICK HENK RUDOLPHY

Petitioner

and

PHILIP ROSS LIGHTFOOT

Respondent

Application for dismissal of election petition

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 1999, AT 12.01 PM

Copyright in the High Court of Australia

MR S.J. GAGELER:   If the Court pleases, I appear for Senator Lightfoot, the respondent to the petition and the applicant on the summons.  (instructed by Freehill Hollingdale & Page)

HIS HONOUR:   Yes, you are moving on the summons dated 28 May and filed that day.

MR GAGELER:   That is correct, your Honour.

MR J. COURTIS:   If your Honour please, I appear for the petitioner.  (instructed by Wojtowicz Kelly)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia:   May it please your Honour, I appear on behalf of the Attorney-General for the State of Western Australia intervening.  (instructed by the Crown Solicitor for the State of Western Australia)

MR GAGELER:   Your Honour, the application is for the dismissal of the election petition, the sole ground of the application being that the petition fails to comply with section 355(e) of the Electoral Act.

HIS HONOUR:   Yes, can I ask you what is the balance of the term of your client as a senator?

MR GAGELER:   I cannot answer your Honour exactly but I will seek some instructions.

HIS HONOUR:   Yes, right.

MR GAGELER:   Your Honour, I move on the summons dated 28 May.

HIS HONOUR:   Yes.

MR GAGELER:   I read in support ‑ ‑ ‑

HIS HONOUR:   I have an affidavit of Mr Pontifex.

MR GAGELER:   That is correct.

HIS HONOUR:   That was sworn 31 May.

MR GAGELER:   Yes, and that is the entirety of the evidence upon which I rely.

HIS HONOUR:   And then Mr Courtis, his side has an affidavit by the petitioner sworn on 4 June.  Is that right?

MR GAGELER:   That is correct, sir, yes and I rely on that affidavit.

HIS HONOUR:   And then there are some written submissions, I think, from the Attorney as well.  That is right, is it not, Mr Solicitor?

MR MEADOWS:   Yes, very short submissions.

HIS HONOUR:   Yes, Mr Gageler.

MR GAGELER:   Your Honour, the answer to your Honour’s question is that the term expires on 30 June 2002.

HIS HONOUR:   Yes, thank you.  Now, in addition to the authorities both sides have referred to there is a decision of Justice Dawson which the parties may or may not be aware of.  It is Re Barry Ceminchuk of 28 October 1993 which was a dismissal of a summons seeking an extension of time to file a petition which was refused.

MR GAGELER:   Yes, I was not aware of that, your Honour.

HIS HONOUR:   But is there any decision of the Full Court, it would have to be on a stated case, I suppose, dealing with this question of construction of 355(e)?

MR GAGELER:   No. Your Honour, can I start with the Constitution, very briefly?

HIS HONOUR:   Yes.

MR GAGELER: Section 21 of the Constitution provides that:

Whenever a vacancy happens in the Senate, the President….. shall notify the same to the Governor of the State in the representation of which the vacancy has happened.

That is a use of the word  “notification”.

HIS HONOUR:   Yes.

MR GAGELER:   Then section 15, as your Honour is aware, in the first paragraph, it says that:

If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term.

Then, the next sentence deals with the circumstance in which the Governor “may appoint” such a person, so the words used there are “choose” in the case of the Houses,  “appoint” in the case of the Governor.

HIS HONOUR:   Yes, and that is picked up in the Act in section 353.

MR GAGELER:   Yes, that is correct.  I wanted to refer your Honour to one other - - -

HIS HONOUR: Section 15 relevantly finishes up with a certification.

MR GAGELER:   That is correct:

The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General.

If one then goes to the Act your Honour will see in section 353(2) the statement:

The choice of a person to hold the place of a Senator by the Houses of Parliament of a State or the appointment of a person to hold the place of a Senator by the Governor of a State under section 15 of the Constitution shall be deemed to be an election within the meaning of this section, and the provisions of this Division shall, so far as applicable, have effect as if that choice or appointment were an election within the meaning of this Division.

One goes from there, relevantly, to section 355 which says:

Subject to section 357 –

not presently relevant –

every petition disputing an election or return in this Part called the petition shall: -

One needs to go to (c) for context and I omit the first few words:

in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution or section 44 of this Act, by a person qualified to vote at Senate elections in the relevant State or Territory at the date of the choice or appointment ‑ ‑ ‑

HIS HONOUR:   Yes, now it seems to be apparent on the evidence that Mr Courtis’ client qualifies there.

MR GAGELER:   That is correct.  The date of the choice or appointment being 19 May 1997, being the date of the joint sitting of both Houses of the Western Australia Parliament.  One then goes to paragraph (e).

HIS HONOUR:   What was the date of the joint sitting again?

MR GAGELER:   19 May 1997.

HIS HONOUR:   Yes.

MR GAGELER:   One then goes to paragraph (e) which requires a petition to:

be filed in the Registry of the High Court within 40 days after the return of the writ; or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution, within 40 days after the notification of that choice or appointment.

HIS HONOUR:   Yes.

MR GAGELER:   Now, there appears to be an issue as to what is meant by the word “notification” in that context.  In our submission, as your Honour will have seen from the written submissions, the word “notification” is a reference to the certification by the Governor of the State to the Governor‑General.

HIS HONOUR:   Yes.

MR GAGELER:   That occurs in accordance with section 15.

HIS HONOUR:   Yes, so you say it was 40 days after 23 May.

MR GAGELER:   That is exactly right, your Honour, and in support of that may I say this. The division of Part XXII and, in particular, section 353(2) is equating for all relevant purposes the circumstance of an appointment of a senator or the choice of a senator under section 15 with the election of a senator in the normal way and to take the date of

certification as the date from which the 40 days runs is equivalent to taking the date of the return of the writ in the case of an election.

HIS HONOUR:   Yes, I understand that, the return of the writ is the last relevant step.

MR GAGELER:   The last relevant step, a public act.

HIS HONOUR:   Yes.

MR GAGELER:   And the return of the writ your Honour will notice from the provisions of sections 283 and 284 of the Commonwealth Electoral Act itself involves a process of certification. 

HIS HONOUR:   Yes, I understand that.  Now, I am aware of the authorities you have referred to.  There seems to be a consistent pattern starting with the Electoral Act of 1902 to treat these time requirements as absolute in the sense that they go to jurisdiction, I suppose.

MR GAGELER:   Yes, it goes back to Cameron v Fysh.

HIS HONOUR:   That is right. In 1 CLR 314 at 316 Sir Samuel Griffiths said he would not allow an amendment because to do that would be a back‑door method of getting over the 40 day limitation on filing the petition.

MR GAGELER:   Yes.

HIS HONOUR:   What, however, concerns me – and therefore leaving it at that, what I am saying is really addressed to you, Mr Courtis – if the matter were left at level as a matter of comity if nothing else, I would follow those decisions.  The question then is whether I should state a case to the Full Court to finally resolve this question.

MR COURTIS:   Yes, I understand your Honour’s point.  Can I say, your Honour, that I fully understand the line of authority and the strictness that heretofore has been complied with, but of course my fundamental submission is based on Hawkins v Clayton, that we now have to consider ‑ ‑ ‑

HIS HONOUR:   You have to get to Hawkins v Clayton first.  You do not get to Hawkins v Clayton if there is no jurisdiction.

MR COURTIS:   Yes, I appreciate that, but the difficulty we have, of course, is the chicken and the egg, unless we can argue ‑ ‑ ‑

HIS HONOUR:   I am trying to take it step by step.

MR COURTIS:   Yes.

HIS HONOUR:   You do not get off the ground if there is no jurisdiction.

MR COURTIS:   I accept that.

HIS HONOUR:   These cases would seem to indicate, being single Justice cases, that there is no jurisdiction.  However, the question arises as to whether that matter should be tested before a Full Court.  The reason why I mention it is that these provisions like 355(e) give rise to all sorts of trouble in varying contexts.  In David Grant 184 CLR 265 at pages 276 to 277 there was a discussion of this problem in a particular context in the Corporations Law and in footnote 26 there is a reference to the The Crown v McNeil which is a well-known case in Western Australia on the Crown Suits Act.  Then whilst David Grant took the view that the requirement was an absolute one so that it went to jurisdiction, what on one way of looking at it was a not dissimilar provision in the same statute was construed otherwise in Emanuele 188 CLR 114, for example. In the judgment of Justice Toohey at pages 130 and 131 there is discussion of David Grant and of the general construction problems that arise.  Now, in that setting it seems to me there is some utility in putting the matter before a Full Court.

MR GAGELER:   May I respond to that, your Honour?

HIS HONOUR:   Yes, Mr Gageler.

MR GAGELER:   There are, I think, three things to be said about it, perhaps four.  I will start with the Act itself.

HIS HONOUR:   Yes.  You may ultimately be right.  I am not saying for a minute you are not right.

MR GAGELER:   Your Honour, not only ultimately right but, in my submission, clearly right.

HIS HONOUR:   Maybe, yes.

MR GAGELER:   That is only point one, that section 358 makes it absolutely clear that the requirement of section 355(e) is, itself, an absolute requirement. That is the first point. The second point is your Honour has referred to an unbroken line of authority beginning with Cameron v Fysh.

HIS HONOUR:   Yes, but it is an unbroken line that is not particularly reasoned.  That is what worries me.

MR GAGELER:   That is point 2, your Honour.  Point 3 is that ‑ ‑ ‑

HIS HONOUR:   And it is all of single Justices.

MR GAGELER:   Point 3 is that is not so, your Honour.  The Full Court in Nile v Wood 167 CLR 133 at page 137 endorsed that line of authority, beginning with Cameron v Fysh.  Does your Honour have that?

HIS HONOUR:   At page 137?

MR GAGELER:   Page 137.  It is the paragraph beginning “ If a petition does not comply with s 355”.

HIS HONOUR:   What are they talking about there, in particular?

MR GAGELER:   That was almost exactly the same circumstances as in Cameron v Fysh, where somebody was seeking to amend a petition outside the 40 days.

HIS HONOUR:   That is an amendment case.

MR GAGELER:   Yes, but the principle is the principle that has been acted upon consistently.

HIS HONOUR:   Yes.

MR GAGELER:   The principle being that if you cannot bring the writ outside 40 days then you cannot amend outside 40 days.

HIS HONOUR:   I know.  Of course that is right, but that assumes a particular first step.

MR GAGELER:   That is my point, your Honour, that the first step, whether it is assumed or not, is a necessary first step in the reasoning of the Court, the Full Court in this case.

HIS HONOUR:   Yes.  What do you say about that, Mr Courtis?  Are you familiar with Nile v Wood?

MR COURTIS: I am in a general sense, yes. The problem is that it does not appear as if section 364 has ever been considered in this kind of context, because 364 of the Commonwealth Electoral Act, in my respectful submission, is ‑ ‑ ‑

HIS HONOUR: Section 364.

MR COURTIS: Section 364. It reads:

The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

So, my submission is because 364 does not ever appear to have been a factor to be put into the balance in relation to the strictness of sections 358 and 355, that is, in my respectful submission, a good reason why there ought to be a case stated. So that the questions or the issues of good conscience, substantial merits, and those sorts of factors, can be properly weighed in the balance because fundamentally – perhaps I am now running on into my argument – but, fundamentally, our submission is that if it is indeed a case of an invalid election of Senator Lightfoot – and I will not go into all of that at this stage – but if, truly, properly considered, his election was invalid on constitutional grounds, you then look at the question of section 364 which requires the Court to look at the substantial merits of the case and good conscience and so forth, and then, in my respectful submission, you then look at the doctrine of unconscionable reliance. For all of those reasons, in my submission, because 364 does not seem to ever have been considered in this context, this is a good case for a case stated. If your Honour please.

HIS HONOUR:   Yes, but it is said that Nile v Wood forecloses the matter.  Perhaps you had better have a look at ‑ ‑ ‑

MR COURTIS:   I am not sure whether Nile v Wood did actually have regard to 364, so I do not know.  I cannot answer that.

HIS HONOUR:   I do not think it did.  It forecloses in dealing with the amendment question, the primary question, as to the imperative nature of the time limit.  There has been said to be powerful policy reasons for treating it as compulsory because these things should not run on.

MR COURTIS:   I understand that, but my point is, if indeed 364 was not considered in Nile v Wood, the Act requires that 364 be considered as part of the totality of the consideration of Part XXII.

HIS HONOUR:   It says, “The Court shall be guided”; guided in what?  I suppose Mr Gageler would say guided in the exercise of that which it seized; and it is not seized.  That is how the argument would run, I imagine.

MR COURTIS:   Yes, but perhaps in a way it seems to highlight the need for a case stated and I am simply indicating to your Honour ‑ ‑ ‑

HIS HONOUR:   Yes, I understand what you are saying.

MR COURTIS:   Thank you very much.

HIS HONOUR:   Yes Mr Gageler.

MR GAGELER:   Your Honour, point number 4 is that the Full Court in In re Wood 167 CLR 145 at page 160 point 9 said this ‑ ‑ ‑

HIS HONOUR:   What volume again?

MR GAGELER:   167 CLR.

HIS HONOUR:   I have that, yes.

MR GAGELER:   It is the same volume, I am sorry your Honour.

HIS HONOUR:   This is Nile v Wood?

MR GAGELER:   No, this is In re Wood.

HIS HONOUR:   In re Wood.

MR GAGELER:   This is the following case.

HIS HONOUR:   Yes, I remember.

MR GAGELER:   Your Honour, at 160 point 9, it is said:

Senator Wood’s election is not now impeachable under Div. 1: see Nile v Wood.  No doubt one of the purposes of Div. 1 is to achieve finality in an election.

HIS HONOUR:   Yes.

MR GAGELER:   So that is an application by a fuller Full Court of what was said.

HIS HONOUR:   That is a maximum Full Court, actually.  What was the issue in In re Wood?  I have just forgotten.

MR GAGELER:   Your Honour, that was where Mrs Nile’s ‑ ‑ ‑

HIS HONOUR:   This is a Division 2 reference.

MR GAGELER:   This is a Division 2 case, Nile v Wood being a failed Division 1 case.

HIS HONOUR:   Yes, and that explained, as it were, the Division 2 activation.

MR GAGELER:   Yes, which can be at any time.

HIS HONOUR:   Yes, what do you say about that, Mr Courtis?

MR COURTIS:   Well, strictly not relevant, with respect, because this is a Division 1 case.

HIS HONOUR:   Yes.  What do you say, Mr Gageler, is the construction of 364?

MR GAGELER: Section 364 was considered by Justice Dawson in a case called Abbotto v Australian Electoral Commission 144 ALR 352 at page 357. Sorry, I have not given your Honour a list of authorities. I can hand your Honour ‑ ‑ ‑

HIS HONOUR:   I think that was referred to in the argument in Sue v Hill, actually.

MR GAGELER:   I can hand your Honour my copy.

HIS HONOUR:   Yes, thank you.

MR GAGELER:   I will just indicate for the record what his Honour said about it.  What his Honour said was that:

Section 364 provides that the Court of Disputed Returns shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. When that section speaks of the “substantial merits” of the case, it means, of course, the substantial legal merits of each case rather than what might be perceived to be the fairness of the law itself.

HIS HONOUR:   Yes.  I think that was referred to in Sue v Hill on the question of judicial power.  What Justice Dawson said was relied upon as showing that 364 was consistent with the exercise of judicial power.

MR GAGELER:   Indeed.

HIS HONOUR:   In other words, it was not “open sesame”.

MR GAGELER:   No, your Honour has looked at similar words in the Eshetu Case.

HIS HONOUR:   Yes, that would be right.

MR GAGELER:   And your Honours certainly did not read them as meaning open slather.

HIS HONOUR:   But Mr Courtis says he does not need open slather.  He is happy with ‑ ‑ ‑

MR GAGELER:   Well, he wants to use, as I understand him, section 364 to somehow change the meaning of section 355(e).

HIS HONOUR:   Well, you may be right.  I think he says it throws light on the construction of 355 in the David Grant/Emanuele ‑ ‑ ‑

MR GAGELER:   That is a fairer way of putting it, your Honour, yes.

HIS HONOUR:   David Grant/Emanuele line of territory.

MR GAGELER:   Yes.

HIS HONOUR:   Yes, all right.

MR GAGELER:   On the merits, there was one further thing that I wanted to say and perhaps it is more strictly in reply, but it does arise in relation to something your Honour said about the David Grant Case and that is this, that is, of course, an issue that arises quite frequently in inter parties litigation in a private law context.

HIS HONOUR:   Yes, that is right.  This is more than ‑ ‑ ‑

MR GAGELER:   This is much more than that.  This is a public law context.  May I burden your Honour ‑ ‑ ‑

HIS HONOUR:   Of course, in David Grant it was more than private rights because it went to status – stayed as a company.

MR GAGELER:   Yes, that is right.  But, your Honour, of course, there can be some difficult questions that arise in that context.  Here, in a public law context, and particularly a constitutional context, the issue is somewhat easier, in my submission, and the distinction between limitation periods where ‑ ‑ ‑

HIS HONOUR:   That is why I mention the The Crown v McNeil which is a public law - - -

MR GAGELER:   If your Honour pleases, but the most useful discussion of this issue that I could find was in Chief Justice Mason’s judgment in Verwayen 170 CLR at pages 404 to 405, where his Honour distinguished between statutory limitations which were enacted for the benefit of individuals and statutory limitations which are enacted by reference to what his Honour described as “considerations of state”.  I think the most useful passage is at page 405 at about point 7, point 8.  Although difficult questions will arise, your Honour, this case falls squarely within the latter category, in my submission, particularly given the view expressed by the Full Court in In re Wood as to the purpose of Division 1 being to achieve finality in an election.

HIS HONOUR:   Yes, thank you.

MR GAGELER:   If your Honour please.

HIS HONOUR:   Yes, Mr Solicitor.  There is a Crown appeal pending, is there not?

MR MEADOWS:   There is.

HIS HONOUR:   What is the likely time scale of that, do you know?

MR MEADOWS:   On 15 July, as I understand, your Honour.

HIS HONOUR:   Yes.

MR MEADOWS:   I have nothing to add, your Honour.

HIS HONOUR:   Yes, Mr Courtis.  Do you still think I should state a case?

MR COURTIS:   I think so, your Honour, for this reason, that, in my submission, the effect of Hawkins v Clayton – of course, if the Court is with me on that point – is that it preserves jurisdiction.  That is, if it can be shown that there is unconscionable reliance being placed upon an otherwise strict limitation period, if it is made out, the effect is that the jurisdiction itself was preserved until the appropriate process was commenced, in this case by petition, and our submission is, within 40 days from the date on which the petitioner in here properly understood for the first time the legal consequences of his directed acquittal in the court below.  I mean, I do not want to take you to those issues today, but that is our fundamental submission.

Now, it is a novel proposition, I accept that, but indeed, your Honour, every new step in the law is always novel when it is first argued.  So, hence my ultimate submission this morning is that if the Court is with me on the proposition, that is, that the effect of Hawkins v Clayton is to preserve jurisdiction, so therefore, that is my submission and therefore why I submit that your Honour’s point about a case stated ought to be acceded to.  If your Honour please.

HIS HONOUR:   Yes.  Another difficulty, of course, which everyone here at the Bar table appreciates, is that there is no appeal from any error that I might commit at law.

MR COURTIS:   Exactly, quite so.

HIS HONOUR:   Yes, well, notwithstanding what Mr Gageler says as to the clarity of consideration of authority favouring the construction he would proffer and notwithstanding the comfort he seeks to get from the expressions of view, to put it that way, in the Nile litigation 167 CLR 133 at page 137 and in In re Wood, a Division 2 case, 167 CLR 145 at page 160, I think the preferable course is to state a case presenting for the Full Court the question squarely whether, upon its true construction, section 355(e) of the Commonwealth Electoral Act 1918 renders the petition incompetent or liable to be dismissed or liable to be struck out. Now, if you were successful of course, Mr Courtis, that would only be the beginning of your path.

MR COURTIS:   Quite so.

HIS HONOUR:   Questions would then arise as to whether the factual matters which may appear to be in dispute would have to be referred.

MR COURTIS:   In this case to the Supreme Court of Western Australia, in my submission, because there is an already pending motion before that court in relation to Mr Griffiths in relation to effectively substantially the same questions of fact and law, but your Honour is right.  I mean, that does not arise today.

HIS HONOUR:   No, that is a bridge to be crossed if it needs to be crossed at a later stage.  Now, the question then is to the formulation of a draft case stated.  That should be done as soon as possible.  Hopefully, it can be quite short, I guess.  Perhaps I will adjourn for a few minutes to consider what form the case should take and then come back and discuss it with counsel.  I will adjourn for about 10 minutes.

AT 12.32 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.44 PM:

HIS HONOUR:   Gentlemen, I will hand down three copies of what I had in mind as a draft and I would invite your consideration of it.  Take a moment to look at it briefly and tell me if you would prefer to have an adjournment over lunchtime to further consider it.  If counsel has reached paragraph 4, it might be more prudent simply to say in May 1997 – there may be some debate as to the relevant date being the 19^th or the 23^rd.  It would be unfortunate to have a loose end about that in the Full Court.  At paragraph 7, Mr Courtis, there is an attempt to reflect the nub of what you are saying.

MR COURTIS:   Yes, your Honour, and I am happy with that.

HIS HONOUR:   All right.

MR MEADOWS:   I was just suggesting to my learned friend, your Honour, that perhaps the matter stated should say, “Does section 355(e) when read with section 358”.

HIS HONOUR:   There may be other sections too, I suppose, that have to be read.  That is why I was going to say – that was the reason for the phrase “upon its true construction”, “its true construction” drawing in other provisions of Division 1.

MR MEADOWS:   I take your Honour’s point.

HIS HONOUR:   That is the sense of it if that is understood.

MR MEADOWS:   The difficulty, if I may, if you forgive me for arising again, your Honour, is that it is section 358 which says that “no proceedings may be brought other than in accordance with”.

HIS HONOUR:   Yes. I think that is right, Mr Courtis, it is really 355(e) and 358, is it not? Section 358 is the bar.

MR COURTIS:   I accept that view, your Honour, but, with respect, I also submit that “upon its true construction”, as your Honour correctly points out, draws in all necessary statutory provisions.

HIS HONOUR:   Yes.  What the solicitor is helpfully saying, I think, is that perhaps the question should be “Upon its true construction, do 355(e)

and 358 of the Commonwealth Electoral Act render the petition competent?”, because 358 is the actual jurisdictional guillotine.

MR COURTIS:   Yes, I appreciate that point.  Thank you, your Honour.

HIS HONOUR:   It may not be particularly relevant that the certificate was tabled in the Senate on 27 May but it probably is best to put in, I think.  Perhaps the whole of your client’s affidavit of 4 June need not be there, but it is probably best to put it in for more abundant caution.

MR COURTIS:   Yes, your Honour, I would be happy with that.

HIS HONOUR:   Otherwise Justices may ask questions about the background and counsel is embarrassed if they cannot answer it from within the four walls of the case stated.

MR COURTIS:   Thank you.

MR GAGELER:   Two trivial comments, your Honour.  In paragraph 8 in the third line, I think the word should be “stayed” instead of “set aside”.

HIS HONOUR:   Thank you.

MR GAGELER:   In the revised form of the question, it should perhaps be “on their true construction”.

HIS HONOUR:   Yes, thank you.  Is there anything else, gentlemen?

MR GAGELER:   No, your Honour.

HIS HONOUR:   I have amended 8 so that it reads “or be stayed under Order 63 rule 2 or be struck out”. Is that right? The Registrar says it is, so that is a compulsive force. So I have amended paragraph 8 as indicated and the question in paragraph 10 so as to read “Upon their true construction, do section 355(e) and section 358 of the Commonwealth Electoral Act 1918 render the petition (a) incompetent; or (b) liable to be dismissed” - (c) should be “liable to be stayed”, should it not?

MR GAGELER:   Your Honour, “striking out” might be something different from “stayed”.

HIS HONOUR:   That is right.

MR GAGELER:   I think your Honour’s reference to “incompetent” would probably be sufficient to encompass “stay”.

HIS HONOUR:   Would that be enough?

MR GAGELER:   I think so.

HIS HONOUR:   And leave “struck out” there?

MR GAGELER:   Leave “struck out” there, yes.

HIS HONOUR:   I think that is right, Mr Courtis.

MR COURTIS:   Thank you, your Honour, yes, I am happy with that.

HIS HONOUR:   So it will now read: “Upon their true construction, do section 355(e) and section 358 of the Commonwealth Electoral Act 1918 render the petition (a) incompetent; or (b) liable to be dismissed; or (c) liable to be struck out?”.

The question is how can this be progressed as expeditiously as possible?  If counsel and those instructing them care to liaise with the Registrar, hopefully something can be done in the balance of the afternoon.  I am enjoined to sit in open court in these matters, so I should probably come back and actually deal with a document which will be the case stated.  I would aim to do that by 4 o’clock unless there is a difficulty and I can excuse the Solicitor from further attendance.  Thank you for attending this morning. 

I will adjourn until 4pm unless otherwise directed in the meantime.

AT 12.54 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.06 PM:

HIS HONOUR:   Yes, gentlemen, I have the case stated.  You have copies, I take it.

MR COURTIS:   Yes, your Honour.

HIS HONOUR:   Now, this matter, it seems to me, would be a matter for a Bench of five, I imagine, and would be disposed of in half a day, I would have thought.  Would counsel agree with that estimate?

MR COURTIS:   Yes, your Honour.

HIS HONOUR:   I think it is realistic.  Whilst the notice under 78B filed on 10 June has been included, that is there really as a matter of record in a way.  There is no constitutional issue that arises here, it is a question of construction of the Act.  The constitutional question would be down the path.  I think that is right, is it not?

MR COURTIS:   Yes, sir, I agree with that.

HIS HONOUR:   All right.  I have signed the draft case stated as indicated.  I will now adjourn.

AT 4.08 PM THE MATTER WAS CONCLUDED