Simmons v Tully & Sanders No. Dcadd-03-269

KEITH WILLIAM SIMMONS
v
STEVEN HUNTER TULLY
&
FREDERICK JOHN SANDERS
[2003] SADC 108
HER HONOUR JUDGE TRENORDEN
COURT OF DISPUTED RETURNS
THE COURT DELIVERED THE FOLLOWING JUDGMENT:

At the conclusion of the hearing of this matter, I made declarations in favour of the petitioner, as follows:
(a) A declaration that Frederick John Sanders who was returned as elected was not duly elected; and
(b) A declaration that Keith William Simmons who was not returned as elected was duly elected.
I informed the parties that I would deliver my reasons at a later date. I now deliver those reasons.
The petitioner, Keith William Simmons, disputed the return of Frederick John Sanders as a duly elected councillor for the Monarto Ward of the Rural City of Murray Bridge, at the local government elections held in May 2003. The petitioner proceeded on a certain basis against the respondent, the Electoral Commissioner, namely that the procedures under the Local Government (Elections) Act 1999 had not been followed during the counting of votes, specifically, at the point at which the petitioner and Mr Sanders had recorded against their names an equal number of votes.
However, when the reply filed by the respondent indicated that an audit of the electoral process for Monarto Ward had revealed that 15 ballot papers had been double counted with the result that the petitioner and not Mr Sanders, should have been declared elected by two votes, the petitioner sought to vary the petition by amending the relief sought. Leave was granted to the petitioner to amend the petition. Thus the following relief was sought by the petitioner:
1.a declaration that Frederick John Sanders was not duly elected as a councillor of the Rural City of Murray Bridge;
2.that the election of Frederick John Sanders was void and requiring a new election to be held; and
3.in the alternative, that the petitioner Keith William Simmons and not Frederick John Sanders should have been declared elected by two votes.
These proceedings are perhaps unusual in that the respondent, the Electoral Commissioner, also claimed relief, in the following terms:
(a)A declaration that Frederick Sanders was not duly elected as a councillor for the Monarto Ward in the Rural City of Murray Bridge;
(b)A declaration that Keith William Simmons was duly elected as a councillor for the Monarto Ward in the Rural City of Murray Bridge.
The Local Government (Elections) Act 1999 sets out the procedure for local government elections.
S.5 of the Act specifies when elections are to be held and that in 2003 voting would close at 12 noon on the “first business day after the second Saturday of May in 2003”. S.10 provides that the Electoral Commissioner is to be the returning officer for each area; “area” meaning the area for which a council is constituted: see s.4(5) Local Government (Elections) Act and s.4(1) of the Local Government Act 1999.
Part 11 of the Local Government (Elections) Act sets out the procedure for the counting of votes following the close of voting for a local government election.
Part 13 of the Local Government (Elections) Act provides for the case of disputed returns, establishing a Court of Disputed Returns and, inter alia setting out the powers of this Court.
The powers of the Court of Disputed Returns are set out in s.71 of the Local Government (Elections) Act. They are as follows:
“71.(1) The Court must sit as an open court, and its powers include the following:
(a)to adjourn;
(b)to compel the attendance of witnesses and the production of documents;
(c)to examine witnesses on oath, affirmation or declaration;
(d)with the consent of the parties to the proceedings, to receive evidence on affidavit or by statutory declaration;
(e)subject to this Act and the rules, to determine its procedure in each case;
(f)to declare-
(i)that a person who was returned as elected was not duly elected; and
(ii)that a candidate who was not returned as elected was duly elected;
(g)to declare an election void;
(h)to dismiss or uphold a petition, in whole or in part;
(i)to amend or allow the amendment of a petition or reply;
(j)to punish contempt of its authority by fine or imprisonment.
(2)The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(3)The Court is not bound by the rules of evidence.
(4)The Court must act according to good conscience and the substantial merits of the case without regard to legal technicalities.
(5)A decision of the Court is final and without appeal.”
In the event, the Council, namely the Rural City of Murray Bridge, did not seek either to be joined to, or to intervene in, these proceedings. Upon his application, the person who had been declared as elected, namely Frederick John Sanders, was joined as a party of the proceedings.
No evidence was brought forward by the petitioner. The respondent tendered affidavit evidence, supported by oral evidence, and copies of Commission records that tended to show that an irregularity had occurred during the counting of ballot papers, which favoured Mr Sanders at the expense of the petitioner. All records of the election had been kept by the Electoral Commissioner, thus enabling an audit to be carried out. A proper count and recording of the votes following the method of counting set out in Division 2 of Part 11 of the Local Government (Elections) Act revealed that the result of the election had been affected by this irregularity. This evidence was not challenged and I accept same and the evidence that showed that the result of a count conducted upon a proper, lawful approach to the counting of ballot papers, the petitioner should have been declared as duly elected, having received two votes more than the person who had been declared as elected, namely Frederick John Sanders. I find that the irregularity did not result from a corrupt motive on the part of the Electoral Commissioner or his staff but that it was a result of inadvertence and a failure to follow guidelines, probably brought about by staff working under some pressure.
I have concluded that in these circumstances, where an irregularity which clearly affected the outcome of the election, has been proved, it is just and sufficient that the Court should exercise its powers under either paragraph (f) or (g) of s.71(1) of the Local Government (Elections) Act.
The question then is whether the Court should declare the election void, which is the course preferred by Mr Sanders, or make a declaration that Mr Sanders was not duly elected and that the petitioner was duly elected, the course preferred by the petitioner.
Mr Sanders presented evidence to the Court in the form of eight affidavits in support of his submission that his election, if the Court accepted the evidence of Mr Tully, should be declared void to enable a fresh election to proceed. These affidavits purported to be evidence from electors for the Ward of Monarto, as follows:
1.Erna Hilda Niejalke who claimed not to have received ballot papers although entitled to vote for Monarto Ward but who subsequently applied for and received ballot papers and voted;
2.Richard Alan Niejalke who claimed not to have received ballot papers although entitled to vote for Monarto Ward but who subsequently applied for and received ballot papers and voted;
3.Jeanne Kathleen Weinmann who claimed to be a property owner in the Monarto Ward, but had not received ballot papers;
4.Greg Weinmann who claimed to be a property owner in the Monarto Ward, but had not received ballot papers;
5.Philip Adrian Nutt who claimed that he did not receive ballot papers, but was uncertain of his entitlement to vote “as a shop ratepayer” in Monarto Ward;
6.Paula Leanne Burgess who claimed to be a property owner in the Monarto Ward, but had not received ballot papers but who subsequently applied for and received ballot papers and voted;
7.Shaun Alan Blake who claimed not to have received “the correct ballot paper” and did not cast a vote for Monarto Ward; and
8.Colleen Blake who claimed not to have received “the correct ballot paper” and did not cast a vote for Monarto Ward.
Mr Tully’s evidence confirmed that completed ballot papers for the Monarto Ward election were recorded as having been received from Erna Hilda Niejalke, Richard Alan Niejalke and Paula Leanne Burgess. The further evidence of Mr Tully was to the effect that ballot papers had been despatched by post to each of the deponents of the affidavits with the exception of Mr Philip Adrian Nutt, Greg Weinmann and Jeanne Weinmann, being persons who were not recorded at the relevant time as being electors for the Monarto Ward of the Rural City of Murray Bridge. The Electoral Commissioner’s records show that ballot papers for the Mobilong Ward of the Council had been despatched to Greg Weinmann and Jeanne Weinmann, those being the appropriate ballot papers according to the last enrolment advice provided by those electors.
Thus, of the 7 persons who appeared to have claimed to be entitled to vote in, but claimed not to have received ballot papers for, the election for councillors for the Monarto Ward, 3 persons exercised their right to vote, 2 persons were not enrolled as electors for the Monarto Ward and so had no right to vote, and 2 persons did not exercise their right to vote. That left Mr Nutt, who did not claim a right to vote.
The Local Government (Elections) Act 1999 sets out in Part 5, the basis of an entitlement to vote in Council elections. Voting is not compulsory. A natural person is entitled to vote if his or her name is on the electoral roll, or if acting on behalf of a body corporate or a group that is enrolled and they have qualified themselves under the Act. The appearance of a name in the voters roll, which must be prepared in accordance with Part 4 of the Act, is conclusive evidence of the entitlement of the natural person, body corporate or group bearing that name, to vote (s.15(19)). Otherwise, a natural person, body corporate or group is entitled to vote if his, her or its name has been omitted in error from the Roll (see s.16).
Voting is by postal voting, and the Electoral Commissioner must:
inform electors of the election and the fact of postal voting by notice published in a newspaper circulating in the relevant Council area at least 21 days prior to polling day; and
issue postal voting papers to every natural person, body corporate and group whose name appears on the voters roll, at least 14 days before polling day.
(see sections 10, 38 and 39).
Any person or group who claims an entitlement to vote but whose name is not on the voters roll, may apply for and be issued with voting papers (s.39), and any person or group who claims not to have received, or to have lost or spoilt voting papers may apply for the issue of fresh voting papers (s.43). Thus, it is open to any person who considers that he or she should have received voting papers but did not, to apply for voting papers. The Act provides every opportunity for a person who believes that he or she has an entitlement to vote, to claim and exercise the entitlement.
The evidence of Mr Tully was that notices were placed in two newspapers circulating in the relevant area, namely The Murray Valley Standard of 3 April 2003 and The Advertiser of 30 April 2003 and 3 May 2003. The first notice gave notice of nominations received for the Council elections and, inter alia, invited persons who believed that they had an entitlement to vote but who had not received voting material by 28 April 2003 to call a telephone number, described as the Electoral Hotline. The notices in The Advertiser, which were headed in large, bold print “LOCAL GOVERNMENT ELECTIONS 2003” and “HAVE YOU RECEIVED YOUR COUNCIL BALLOT PAPERS?”, invited persons who were eligible to vote but had not received their ballot papers to contact the Election Call Centre. I am satisfied that the Electoral Commissioner provided adequate notice, as he was required to do, informing persons in the area of the Rural City of Murray Bridge, of their entitlements with respect to the Council elections.
It follows that the Court is unable to take into account, in terms of deciding how to exercise the discretion available under s.71(2) of the Act, that 4 persons who were entitled to receive voting papers did not receive them, even if it could be shown (and it was not) that they were entitled to vote, but either did not receive papers or were wrongly left off the voters roll for Monarto Ward. Those 4 persons had every opportunity to claim and exercise their right to vote. This cannot be the basis upon which the Court should declare the election of Mr Simmons void, as opposed to the alternative of declaring that he was not duly elected and that the petitioner was duly elected.
Given the admission by the Electoral Commissioner of the irregularity in the election count, and my findings set out above, I do not consider that there is any basis upon which to declare the election void. It would not be a just result, in the circumstances, to force a new election, with all its attendant expenditure, when the error is clear, as is the result upon a proper, lawful approach to the counting of votes. My view is reinforced by the direction given to the Court by Parliament in the words of s.71(4), which permit “resort to a common sense judgment in all the circumstances”, according to the Full Court in Featherston v Tully (2002) 83 SASR 302, expressed in relation to virtually identical words in s.106 (1) of the Electoral Act.
I consider that the conclusion I have reached is open to me under the Local Government (Elections) Act and does not require further justification, given the provisions of s.71 of the Act. However, counsel for the Electoral Commissioner urged me to take account of the common law principles referred to in Featherston v Tully (above) in determining this matter, and so I will refer to that judgment of the Full Court of the Supreme Court, even though it doesn’t deal specifically with the question I have to determine, namely whether to declare the election void, or to declare that Mr Sanders was not duly elected and that the petitioner was duly elected.
In Featherston v Tully (above), the Full Court, on a reference from the Court of Disputed Returns established under the Electoral Act 1985, addressed inter alia, questions as to the nature and extent of the grounds upon which an election can be declared void by the Court. In the course of his reasons, Bleby J, with whom Mulligan J concurred, concluded that (at para 122):
“I am satisfied that, in the circumstances applying under the current South Australian Electoral Act, there is a common law of elections and that it is to be applied in this State, especially where the Act is silent or clearly not comprehensive in the grounds on which an election may be declared void.”
It is my view that the reasoning applied by His Honour, which led to the conclusion quoted above, is also applicable in the circumstances applying under the Local Government (Elections) Act. S.73 of the Local Government (Elections) Act enables the Court to exercise its powers under s.71(1)(f) and (g) if the Court has been satisfied, on the balance of probabilities that the result of an election was affected by an illegal practice. However, the Court is not limited in the exercise of its powers under s.71(1)(f) and (g), to circumstances where it is satisfied that an illegal practice has occurred. By s.71(2) of the Act, the Court may exercise its powers under subsection (1) “on such grounds as the Court in its discretion thinks just and sufficient”.
It is clear that the Act is not prescriptive as to the grounds which would be sufficient for the Court to exercise its discretion, although s.71(4) provides that “the Court must act according to good conscience and the substantial merits of the case without regard to legal technicalities.” I am satisfied then that in the circumstances of the Local Government (Elections) Act there is a common law of elections where the Act is silent or not comprehensive on the grounds on which an election may be declared void.
In his judgment, Bleby J set out the principles of the common law relating to elections, derived from the two limbs of the statement of the basis for declaring an election void, which was set out in the judgement of the Court of Common Pleas in Woodward v Sarsons (1875) LR 10 CP 733 at 743-734. The second limb was that “the election was not really conducted under the subsisting election laws”. This limb, which Bleby J recognised as having no application to the matter before the Court, in the words of his judgment gave rise to, inter alia, the following principles (at para 148):
“6. The second limb of Woodward v Sarsons allows an election to be declared void if it is not really conducted under the Electoral Act at all. That will depend on whether the departure from the Act is so great that the court can be satisfied that the election was not an election under the existing law.
7. An election will not be held void by reason of transgressions of the Act without a corrupt motive by the returning officer or his staff where the court is satisfied that the election was an election really and in substance conducted under the Electoral Act, and that the result of the election was not, and could not have been, affected by those transgressions: West Division of Borough of Islington (at 125).”
I am not able to find that the election with which this Court is concerned, was not an election under the Local Government (Elections) Act. I find that the election was, in substance, an election conducted under the provisions of that Act. While the result was affected by transgressions of the Act, in that 15 of the votes were double counted, I am satisfied that the true election result can and has been, ascertained. Accordingly there is no basis for declaring the election void.

[2003] SADC 108

1 August 2003