Scott-Irving v Oakeshott

Case [2009] FCA 487

FEDERAL COURT OF AUSTRALIA

Scott-Irving v Oakeshott [2009] FCA 487

CIVIL AND POLITICAL RIGHTS – Court of Disputed Returns – need for petition to set out facts relied on – failure to do so – powers of the Court

Broadcasting Services Act1992 (Cth), Schedule 2, Part 2, cl 3A
Commonwealth Electoral Act 1918 (Cth), s 6, Part XXII, Div 1
Crimes Act 1914 (Cth), s 28

Abbotto v Australian Electoral Commission (1997) 44 ALD 481, cited
Bryant v Commonwealth of Australia (unreported, FCA, Tamberlin J, NG 1084 of 1998, 20 October 1998), cited
Free v Kelly (1996) 185 CLR 296, cited
Gunter v Hollingworth [2002] FCA 943, applied
Hudson v Entsch [2005] FCA 300, cited
Hudson v Lee (1993) 177 CLR 627, cited
Kelly v Campbell [2002] FCA 1125, cited
McClure v Australian Electoral Commission [1999] HCA 31, 163 ALR 734, applied
Mitchell v Bailey (No 2) [2008] FCA 692, 169 FCR 529, cited
Muldowney v Australian Electoral Commission (1993) 178 CLR 34, cited
Pavlekovich-Smith v Australian Electoral Commission (1993) 115 ALR 641, cited
Robertson v Australian Electoral Commission (1993) 116 ALR 407, applied
Rudolphy v Lightfoot [1999] HCA 61, 197 CLR 500, applied.
Smith v Australian Electoral Commission [2008] FCA 953, 104 ALD 395, discussed
Smith v Australian Electoral Commission [2009] FCAFC 43, cited
Sue v Hill [1999] HCA 30, 199 CLR 462, cited
Sykes v Australian Electoral Commission (1993) 115 ALR 645, cited
Webster v Deahm (1993) 116 ALR 223, applied
Whitby v Garlett [2000] FCA 245, 98 FCR 585, cited

Schoff P, “The Electoral Jurisdiction of the High Court as the Court of Disputed Returns: Non-Judicial Power and Incompatible Function?” (1997) 25 FL Rev 317
Walker K, “Disputed Returns and Parliamentary Qualifications: Is the High Court’s Jurisdiction Constitutional?” (1997) 20(2) UNSWLJ 257

STEWART GORDON SCOTT-IRVING v ROB OAKESHOTT AND ORS

NSD 207 of 2009

FLICK J
15 MAY 2009
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA SITTING AS THE COURT OF DISPUTED RETURNS

NSW DISTRICT REGISTRY

 NSD 207 of 2009
BETWEEN:

STEWART GORDON SCOTT-IRVING
Petitioner
AND:

ROB OAKESHOTT
First Respondent

AUSTRALIAN BROADCASTING CORPORATION
Second Respondent

AUSTRALIAN ELECTORAL COMMISSION
Third Respondent

JUDGE:

FLICK J

DATE OF ORDER:

15 MAY 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The petition as filed on 3 November 2008 in the High Court of Australia, sitting as the Court of Disputed Returns, is dismissed.

2.The Petitioner is to pay the costs of the Second Respondent.

3.The Petitioner is to pay the costs of the Third Respondent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA SITTING AS THE COURT OF DISPUTED RETURNS

NSW DISTRICT REGISTRY

 NSD 207 of 2009
BETWEEN:

STEWART GORDON SCOTT-IRVING
Petitioner
AND:

ROB OAKESHOTT
First Respondent

AUSTRALIAN BROADCASTING CORPORATION

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Details
AGLC
Scott-Irving v Oakeshott [2009] FCA 487
Case
[2009] FCA 487
Decision Date

CaseChat Overview and Summary

Scott-Irving v Oakeshott involved a dispute where the petitioner, Scott-Irving, sought to challenge the validity of a by-election held in Lyne on 6 September 2008. The petition, filed in the High Court of Australia sitting as the Court of Disputed Returns, claimed that the Australian Broadcasting Corporation (ABC) had breached its impartiality during the campaign period, thus invalidating the election. The primary legal issues the court had to decide were whether the petition sufficiently outlined the facts to support the claim of invalidity and whether the petitioner could amend the petition after the stipulated 40-day period had expired.

The court found that the petition did not provide the essential facts required to substantiate the claim of invalidity, as mandated by section 355(a) of the Commonwealth Electoral Act 1918. The petitioner's assertions were not clearly distinguished from conclusions and unstated facts, making it difficult to ascertain the specific facts upon which the petition relied. The court also noted that there was no provision under the Act allowing the petitioner to amend the petition after the 40-day period had lapsed. The reasoning was grounded in the need for objective and certain criteria to resolve disputed election matters expeditiously, as established in prior case law. The court concluded that the petition failed to disclose a claim with reasonable prospects of success, leading to its dismissal.

In its decision, the court dismissed the petition and ordered the petitioner to pay the costs of the second and third respondents, who were the Australian Electoral Commission and the ABC, respectively. The court deemed it appropriate for the Commission to be awarded costs, given its active role in the proceedings and the assistance provided to the court beyond what the ABC alone had offered. The petitioner's inability to set out the necessary facts within the stipulated period left no basis for granting the relief sought.

Orders

Orders of the court

1. The petition as filed on 3 November 2008 in the High Court of Australia, sitting as the Court of Disputed Returns, is dismissed.

2. The Petitioner is to pay the costs of the Second Respondent.

3. The Petitioner is to pay the costs of the Third Respondent.

Note:

Background

Background to the litigation

That which a petitioner seeks to dispute by a petition, and the relief claimed, are thus “to be ascertained from the terms of the petition itself as a matter of construction”: Gunter v Hollingworth [2002] FCA 943 at [28] per Cooper J. THE FACTS NOW SET OUT Set forth in the petition under the heading “Statement of Facts” are contained (among others) the following statements:· “If in Australia, where the Westminster System should be characterised by a career public service which ‘impartially serves the government of the day’ and the ABC is both an independent public service and Australia’s national public broadcaster, then the ABC’s performance during the campaign period breached its impartiality with particular respect to its content and program level on the one hand and its platform levels of ABC Television, ABC Radio and ABC Online on the other. …” · “The ABC was responsible for an inequitable candidate profile detailing the background of each candidate …, gave inequitable broadcast time to each candidate (able to be verified by ABC political broadcasting requirements) and carried a link to the webpages of three of the candidates, one of which (that of the declared winner) carried no political authorisation statement as required of all political advertising by the Australian Electoral Commission. …”· “… the winner’s website carried a You Tube attachment (again without authorisation statement) and media releases from the candidate’s extensive 12 year state political career, each of which was a political advertisement and all of which was available during the mandatory, electronic media ‘blackout period.’”It is also there stated:· “Possibly a breach of both the Westminister System and the Australian Constitution, the ABC has an election coverage policy document that apportions ‘free-to-air’ radio coverage time to candidates ...” The statement as provided by the petition is a combination of assertions, submissions and conclusions based upon unstated facts and possibly a limited number of identifiable facts. So expressed, it is difficult to isolate “the facts relied on” from the balance of the other statements also made. Although it may be preferable for a petitioner to clearly isolate “the facts relied on” from such other statements as he may wish to make, s 355(a) itself does not expressly impose that obligation. But the present difficulty of identifying “those facts with sufficient particularity” does little to assist the identification of “the subject matter or matters on which” the Petitioner relies. Power is, however, conferred by s 358(2) to “relieve the petitioner wholly or in part from compliance with paragraph 355(aa)”. That power may be exercised “at any time after the filing of a petition”. But there is no power to relieve a petitioner of the requirements of s 355(a): Robertson v Australian Electoral Commission (1993) 116 ALR 407 at 409 per Toohey J. Nor is there any ability for the Petitioner to now seek to amend the petition to remedy his failure to comply with s 355(a). After the period nominated for the filing of the petition by s 355(e), there is thereafter no power to amend: Rudolphy v Lightfoot [1999] HCA 61 at [10], 197 CLR 500 at 507. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there observed:[12] The provision with respect to the 40 day period plainly is designed to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns. Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355. The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period. Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but … that is how the matter should be understood.See also: Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 648 to 649 per Dawson J; Hudson v Entsch [2005] FCA 300 at [4] per Dowsett J. If the essential facts necessary to the conclusion of invalidity of the election in question are not set out, no proceeding may be had upon the petition: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [12] per Kiefel J.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FLICK J
But non-compliance with s 355(a) has the consequence that no occasion arises for the grant of any relief. CONCLUSIONS The petition fails to set out any facts upon which the by-election in Lyne as held on 6 September 2008 could be declared void. Nor are any facts set out upon which any view can be formed as to the likely effect of any contravention of any Act upon the result of that by-election. The outstanding request for the production by the Corporation of further documents cannot cure the failure of the Petitioner to comply with s 355(a) of the 1918 Act. The orders as sought in orders (1) and (2) of the petition cannot be made. And there is no basis upon which order (3) can be made. Those deficiencies cannot now be remedied. As such, the petition is bound to fail. It does not disclose any claim that has any reasonable prospects of success. It should be dismissed. There is no reason why the normal approach should not be followed in respect to the costs incurred by the Corporation. Costs should follow the event. Nor is there any reason why the Commission should not also be entitled to its costs. The Commission was given leave to intervene pursuant to s 359 and, by virtue of that provision, it “shall be deemed to be a party respondent to the petition”. It properly pursued a role in the proceeding greater than that of merely making “appropriate reference to the Act and to authority in order to assist the Court to determine a petition”. The course of oral submissions advanced by the Commission during the hearing of the relief sought by the Corporation in its summons did not prolong the hearing and provided assistance to the Court additional to that provided by the Corporation. All submissions were heard within the course of a day. The Commission too should be entitled to its costs.ORDERS The Orders of the Court are:1.The petition as filed on 3 November 2008 in the High Court of Australia, sitting as the Court of Disputed Returns, is dismissed.2.The Petitioner is to pay the costs of the Second Respondent.3.The Petitioner is to pay the costs of the Third Respondent.

Ratio Decidendi

Legal Principle Established

Established by: FLICK J

Full text does not contain this section.