Sanders v Nobbs

[1999] NFSC 2

SUPREME COURT OF NORFOLK ISLAND

Sanders v Nobbs [1999] NFSC 2

PRACTICE & PROCEDURE – petition failed to comply with s 46 of Legislative Assembly Act 1979 – whether leave to amend should be granted.

The Legislative Assembly Act 1979, s 46

WILLIAM WINTON SANDERS v  RONALD COANE NOBBS

SC 3 OF 1999

CORAM:      BEAUMONT CJ.

DATE”          9 SEPTEMBER 1999

IN THE SUPREME COURT         )

)          SC 3 of 1999

NORFOLK ISLAND  )

IN THE MATTER OF:       SECTION 46 OF THE LEGISLATIVE ASSEMBLY ACT 1979

AND

IN THE MATTER OF:       WILLIAM WINTON SANDERS

Petitioner

AND

IN THE MATTER OF:       RONALD COANE NOBBS

Respondent

REASONS FOR JUDGMENT (No. 1)

(on application to amend petition)

BEAUMONT CJ:
9 September 1999

On 6 September 1999, I gave the petitioner leave to amend his petition, then indicating that I would give reasons for the grant of leave later.  These are the reasons.

By a petition dated 5 March 1999 filed that day, the petitioner, Mr Sanders, purported to petition the Court for an order under s 46 of the Legislative Assembly Act 1979 (“the Act”)  that the respondent, Mr Nobbs, who was on 1 May 1997 declared to have been elected as a Member of the Legislative Assembly, was not duly elected because he was not a person duly qualified to be a candidate for election.

Section 46 of the Act relevantly provides:

“46.     (1)       A person who was entitled to vote at an election may dispute the validity of the election by petition addressed to the Supreme Court.

(2)        The petition shall –

(a)        set out the facts relied on in support of the petition;

(b)        set out the relief to which the petition claims to be entitled;  and

(c)        be signed by the petitioner.

(3)        The Supreme Court shall not hear a petition unless the provisions of subsection (2) have been complied with.”

By notice of motion dated 15 April 1999, the respondent gave notice that he proposed to move the Court for summary dismissal of the proceedings.  The grounds of the motion were:  (1) that the petition did not set out the facts as required by s 46(2)(a) of the Act;  (2) that the petition was not signed by the petitioner as required by s 46(2)(c) of the Act;  and (3) given the delay in bringing the proceedings and the imminence of the next election, the Court should, in its discretion, refuse the petitioner any relief.

As to ground (1), reliance was placed by the respondent upon the reasons of Gibbs ACJ (Stephen, Mason, Jacobs and Aickin JJ agreeing) in Re Berrill and the Poll for the Electoral Division of Boothby (1978) 19 ALR 254 (at 255) where his Honour rejected a submission that a provision in terms similar to s 46(2)(a) was complied with by merely alleging (as the present petition did) that there had been certain breaches of the statute.

In this connection, and in respect of his ground (2), the respondent relies upon s 46(3) as indicating a prohibition of the exercise of the Court’s jurisdiction in the proscribed situations.

As to ground (2), the respondent points to the circumstance that the petition was not signed by the petitioner, but only by his solicitor.  In this regard, the respondent relies upon the decision of the High Court in In re Porter’s Election Petition (1923) 31 CLR 600. Under a provision similar to s 46(2)(c), it was there held that no proceedings could be had upon a telegram sent to the Principal Registrar of the High Court under a typewritten name which purported to embody a petition. Knox CJ observed (at 603) that –

“The Act, as one would expect, does not provide that the signature of the petitioner… may be written by anyone other than the person whose signature it purports to be.  In the absence of such a provision it is necessary that the petition should be actually signed by [that] person[ ] ….”

As to ground (3), the respondent relied upon the discretionary considerations already mentioned, and in the absence of a limitation provision here, pointed to the analogy to be found in the cases where, in the face of a limitation provision, an out-of-time amendment has been refused (see Cameron v Fysh (1904) 1 CLR 314;  Berrill’s Case, above (at 255);  Hickey v Tuxworth (1987) 47 NTR 44).

When confronted with the respondent’s motion for summary dismissal, the petitioner elected to move the Court for leave to amend his petition.  The amended document, now marked “1” for identification, appears to me to meet at least the formal objections.  That is to say, it sets out (in par 4) the facts relied on, as required by s 46(2)(a);  and it was signed by the petitioner, as required by s 46(2)(c) – i.e., it purports to address adequately grounds (1) and (2) of the respondent’s motion for summary dismissal.

Ground (3), that is, the delay aspect, is in a different category.  It is not formal.  It follows that, at this stage of the proceedings, the parties remained at issue, although both sides were content that, as a matter of case management, I should deal with the respondent’s motion for summary dismissal and the petitioner’s application for leave to amend the petition at the same time.

I turn first to the petitioner’s amendment application.

This application is made under O 32 of the (ACT) Rules of Court, dealing generally with amendment.  By O 32 r (1)(b), the Court may (subject to certain other provisions not here material) give leave to any party to amend any document of that party in the action.  (“Action” means any proceeding other than a criminal or appellate proceeding).  In my opinion, O 32 r (1)(b) applies to the present petition as a document in a proceeding (action).  (The provisions of O 79 were drawn to my attention, but were not pressed, accepting properly, I think, that O 79 applies to the ACT Electoral Act only).

In seeking his amendment, the petitioner relies upon the provisions of s 46(3) of the Act, pointing out that the relevant prohibition is that, in the proscribed situations, the Court shall not “hear” the proceedings.  This is said, and I agree, to be something different, in form and in substance, from a prohibition upon an amendment of a petition before a hearing.

The petitioner also relies upon the provisions of s 46(6) of the Act whereby, in hearing the petition, the Court –

“(a)     is not bound to act in a formal manner …;  and

(b)       shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.”

In my opinion, putting aside for the moment ground (3) (i.e. the delay aspect), the amendments proposed are within the Court’s jurisdiction, or power, to allow, and should be allowed, as formal matters only, in the exercise of the Court’s discretion:  the amendments proposed do no more than meet the valid, if formal, objections taken by the respondent.  The petitioner is, in reality, doing no more than acknowledging this and seeking to rectify the situation by rendering the petition s 46(2) compliant.  This kind of conduct by the petitioner, and his legal representatives, should be encouraged, not discouraged.

However, the delay aspect, ground (3), is of a different order.  Although discretionary only (in the absence of a statutory time bar) it raises matters of substance, rather than mere pleading, or other formal, questions.  As I indicated to the parties in argument, as a matter of efficient case management, this ground (which does not go to jurisdiction or power) is not, in truth, a preliminary question.  Rather, it should be considered in the context of the hearing of the substantive issues raised by the petition as a possible answer to the petitioner’s claim for substantive relief.  It will then (i.e. at the hearing of the petition itself) be possible to deal with this defence in its full and proper context, rather than as an isolated, abstract point.  I therefore proposed to the parties that the argument on ground (3) be deferred until the final hearing of the petition itself.

Subject to the foregoing, for these reasons, I granted leave to amend.

ORDERS

1. Grant leave to the petitioner to file an amended petition in the form of “MFI 1”.

1. Costs of the petitioner’s application to amend, and costs of the respondent’s motion for summary dismissal, both reserved.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Chief Justice Beaumont.

Associate:

Date:                 9 September 1999

Appearing for the applicant:          
Appearing for the respondent:       
Date of Hearing:  6 September 1999
Date of Orders:  6 September 1999
Date Judgment delivered:              9 September 1999