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…

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.

Continue reading Sanders v Nobbs

Details

AGLC: Sanders v Nobbs [1999] NFSC 2
Case: [1999] NFSC 2
Decision Date: 9 SEPTEMBER 1999

CaseChat Overview and Summary

In the case of Sanders v Nobbs, the petitioner, Mr Sanders, filed a petition against Mr Nobbs, who had been declared elected as a Member of the Legislative Assembly. Mr Sanders sought an order under section 46 of the Legislative Assembly Act 1979, claiming that Mr Nobbs was not duly qualified to be a candidate for election. The respondent, Mr Nobbs, moved for summary dismissal on the grounds that the petition did not comply with the Act's requirements and was not signed by the petitioner. Mr Sanders subsequently applied for leave to amend the petition.

The legal issues before the court involved whether the petition complied with the formal requirements of section 46 of the Act and whether leave should be granted to amend the petition. The court also had to consider the discretionary factors surrounding the delay in bringing the proceedings and the imminence of the next election.

In granting leave to amend the petition, Chief Justice Beaumont found that the proposed amendments addressed the formal objections raised by the respondent, thus making the petition compliant with section 46(2) of the Act. The court observed that while the petitioner's application was within the court's jurisdiction, the delay aspect should be considered during the substantive hearing of the petition. Therefore, the court allowed the amendment to the petition, reserving the costs of the application and the motion for summary dismissal for a later determination.

In summary, the court granted the petitioner leave to amend the petition to address the formal objections but deferred the consideration of the delay aspect until the substantive hearing.

Orders