Scott-Irving v Oakeshott

[2009] HCATrans 33

[2009] HCATrans 033

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Sydney  No S481 of 2008

B e t w e e n -

STEWART GORDON SCOTT-IRVING

Petitioner

and

ROB OAKESHOTT

First Respondent

AUSTRALIAN BROADCASTING CORPORATION

Second Respondent

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 FEBRUARY 2009, AT 10.06 AM

Copyright in the High Court of Australia

MR S.G. SCOTT-IRVING appeared in person.

MS C.E. ADAMSON, SC:   May it please the Court, I appear with MS E. RAPER on behalf of the second respondent and the applicant for the summons.  (instructed by ABC Legal Services)

HIS HONOUR:   The second respondent being the Australian Broadcasting Corporation.

MS ADAMSON:   Yes, your Honour.

HIS HONOUR:   The first respondent, Mr Oakeshott, has put in a submitting appearance.

MS M.A. PERRY, QC:   If it pleases the Court, I appear for the Australian Electoral Commission which is applying for leave to appear under section 352.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, let us have a look at 352.  You have a summons to that end, Dr Perry, filed on 10 February? 

MS PERRY:   Yes, we do, your Honour.

HIS HONOUR:   You have put in written submissions.  Have you seen those, Mr Scott‑Irving?

MR SCOTT-IRVING:   No, I have not, your Honour.

MS PERRY:   Well, your Honour, my instructions are that they were served on the petitioner.

HIS HONOUR:   Just take a minute to check that while I look at the section.

MS PERRY:   Yes, your Honour.

HIS HONOUR:   What have you handed him?

MS PERRY:   Your Honour, I have just provided him with a copy of the written submissions that were filed.  We are not sure how it is that it has occurred that he has not received a copy of those.

HIS HONOUR:   Right.  I think he had better have an opportunity to read them.

MS PERRY:   Of course, your Honour, yes.

HIS HONOUR:   I could indicate, when you read them, Mr Scott‑Irving, you will see that there are significant matters raised as to the future of this litigation.  There is also a summons by the Australian Broadcasting Corporation seeking dismissal and there are written submissions in support of that.  Have you received those from the ABC?

MR SCOTT-IRVING:   I have, yes.

HIS HONOUR:   Right.  Now, what I presently propose to do is to make an order joining the Australian Electoral Commission as the third respondent.  The question then arises whether this Court should proceed any further in the matter or whether it should be remitted to the Federal Court of Australia, New South Wales District Registry.  I think you should first take a minute to read those written submissions and I will take a short adjournment of 10 minutes for that to happen.

AT 10.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.18 AM:

HIS HONOUR:   Have you had a chance to read those submissions?

MR SCOTT-IRVING:   Yes, I have, your Honour.

HIS HONOUR:   They are quite detailed, but what they indicate is that the electoral law is not really the way to ventilate any complaint you have about the conduct of the ABC in and about this election.  That is what Dr Perry in short is saying.  Is there any opposition to the course I propose, to join the Australian Electoral Commission as a third respondent?  They should have been here in the first place really, and, although the summonses do not seek it, to act pursuant to section 354 of the Act to refer the petition for trial in the Federal Court of Australia.  That is where these things normally take place.

MS ADAMSON:   Yes, your Honour.  The only thing the second respondent ‑ ‑ ‑

HIS HONOUR:   That would include the summons.

MS ADAMSON:   - - - would wish to say against that was, having regard to the deficiencies in the petition and the circumstance that all matters of substance raised by the third respondent were raised by the second respondent in its submissions.  Given that, in our respectful submission, it is a clear case, were this Court minded to deal with it today, then it would not be necessary or efficient to refer the matter under section 354(2).  If it were not convenient for this Court to deal with it today, then, of course, we have nothing further to say against the course your Honour proposes.

HIS HONOUR:   Yes.  You may be right.  Expressing no view about it as to the competency of the petition, but anything said in electoral matters has to be said with great consideration by the Court, I think, and these things should not ever be done on the run, on my understanding of this body of law.

MS ADAMSON:   I would not want to prevail on your Honours ‑ ‑ ‑

HIS HONOUR:   Mr Scott‑Irving, I do think you should consider these written submissions and you really need some legal advice.  Have you had any legal advice about this?  It is a very complicated area of law this.

MR SCOTT-IRVING:   I think it is setting a precedent, your Honour.  That is why it is complicated as well.  I have no objection to the Australian Electoral Commission and the ABC joining as respondents, but I also see in the Court proceedings, your Honour, in elements dealing with the Act that the Court can act if the details are not sufficient as indicated by the representatives for the ABC.  I think the Court at any stage can step in because it also has another requirement which says that justice should be seen to prevail and that even the common elements of law and evidence and procedures are within the discretion of the Court, not.....basically a test case where the ABC used undue influence is what I am claiming took place.

HIS HONOUR:   Those matters will have to be sorted out in the Federal Court.

MR SCOTT-IRVING: Your Honour, I also draw your attention to my summons which indicates that there was a possibility of involvement in a breach of the Constitution and I thought, well, I did not want to go to that level. I have sought to keep the costs down as best I could. I am not an employed person. I sought the order from the Court hearing today that it would either say, yes, it needs to be directed in view of the circumstances or the claim of my petition and the capacity of the High Court to set the latitude in which evidence and submissions are made, even the procedure. I am not looking at all the precedents and all the Court documents that have just been handed to me from the Australian Electoral Commission, but I think it is a precedent where anybody has taken the ABC as a respondent in a court to contest the outcome of an election.

One of those elements today in the summons was to seek whether I should have.....indicated by the ABC that if it is a constitutional matter and they have informed all the Attorneys‑General from every State and Territory of Australia that they could put in an appearance. I am not sure whether it breaches the Constitution. I am not a constitutional lawyer. But the guidance that is set down when a petition is set by of novice such as myself is there for the Court to indicate how those matters of facts can be elicited from a hearing.

HIS HONOUR:   Yes.  The Federal Court is perfectly able to do that, I can assure you.

MR SCOTT-IRVING: But there was the ABC’s concern that raising the possibility of a breach of the Constitution I should have informed all the Attorneys‑General. I did not wish – I should imagine it could be, I do not know just what the Constitution says in that particular circumstance where a public service influences undue influence on voters, as it should, impartially.

HIS HONOUR:   There is another problem, too, that you should be alerted to which is that the general statute, the Broadcasting Services Act, does not apply to the ABC.  They have their own statute.  Are you aware of that?

MR SCOTT-IRVING:   I am aware that they have specific rules for themselves.

HIS HONOUR:   No, they have a specific statute, their own statute, the Australian Broadcasting Corporation Act.  You had better study that.

What I will do is as follows.  Upon the summons by the Australian Electoral Commission filed 10 February 2009 I make order 1.  I should have said, order 1 should be upon the summons by the Australian Electoral Commission filed 10 February 2009 order that the Australian Electoral Commission by added as the third respondent.  Order 2, the petition, including the summons by the second respondent filed 4 December 2008, be referred for trial by the Federal Court of Australia.  I had better direct that the record be transmitted to the Federal Court of Australia, New South Wales District Registry.  Any provision for costs in the Act?  There is, is there not?

MS ADAMSON:   Yes, your Honour, section 360(1)(ix).

HIS HONOUR:   Yes.  So costs in this Court be costs in the Federal Court.  That means that what happens today is caught up in what will happen in the Federal Court.  Costs in this Court to b costs in the Federal Court.  Is there anything else?

MR SCOTT-IRVING:   Your Honour, can I draw your attention to my second request for direction on the summons, which is that the Court direct the ABC to make available all Lyne by-election coverage material on all of three platforms, radio, television and the internet, please.

HIS HONOUR:   Yes.  That is a matter you will have to renew in the Federal Court.

MR SCOTT-IRVING:   I cannot get that before ‑ ‑ ‑

HIS HONOUR:   That application you will have to renew in the Federal Court, yes, that is right.  It is hotly contested.

MR SCOTT-IRVING:   ..... right to know.

HIS HONOUR:   All right.  I will read the orders again.

1.Upon the summons by the Australian Electoral Commission filed on 10 February 2009 order that the Australian Electoral Commission be added as the third respondent.

2.The petition, including the summons by the second respondent filed on 4 December 2008, be referred for trial by the Federal Court of Australia.

3.Direct the record in this Court be transmitted to the Federal Court of Australia, New South Wales District Registry.

4.Costs in this Court be costs in the Federal Court of Australia.

MS ADAMSON:   If it please the Court.

HIS HONOUR:   I will now adjourn.

AT 10.30 AM THE MATTER WAS CONCLUDED