Snowdon v Dondas

[1996] HCA 23

HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF DISPUTED RETURNS BRENNAN CJ

WARREN SNOWDON v NICHOLAS MANUEL DONDAS AND THE ELECTORAL COMMISSION

(1996) 188 CLR 48

15 August 1996

Election petition—House of Representatives—Court of Disputed Returns—Jurisdiction of the High Court—Trial of petition cannot be split between the High Court and another court—Commonwealth Electoral Act 1918 (Cth), s 354.

Headnote

Hearing

SYDNEY, 14-15 August 1996
#DATE 15:8:1996



Counsel for the Petitioner: J.A. McCarthy QC


Solicitors for the Petitioner: McClellands


Counsel for the First Respondent: J.E. Reeves


Solicitor for the First Respondent: James Noonan


Solicitor for the Second Respondent: Australian Government
Solicitor
INTERVENERS: S.C. Kenny for the second respondent, instructed by the Australian Government Solicitor

Decision

BRENNAN CJ The jurisdiction of the Court of Disputed Returns is conferred by Pt XXII of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). Section 354, contained in Div 1 of Pt XXII, provides:
"(1) The High Court shall be the Court of Disputed Returns, and
shall have jurisdiction either to try the petition or to refer it for trial to the Supreme Court of the State or Territory in which the election was held or return made.
(2) When a petition has been so referred for trial to the
Supreme Court of a State or Territory, that Court shall have jurisdiction to try the petition, and shall in respect of the petition be and have all the powers and functions of the Court of Disputed Returns.
(3) The jurisdiction of the High Court or of the Supreme Court
of a State or Territory sitting as a Court of Disputed Returns, or in the exercise of powers conferred by this section, may be exercised by a single Justice or Judge."
As the judgment of this Court in In re Wood (1) shows, the jurisdiction under both Divisions of Pt XXII was originally exercised by the respective Houses of the British Parliament. In the present proceedings, the petitioner invokes the jurisdiction conferred by Div 1. That jurisdiction corresponds with the jurisdiction conferred by the Parliamentary Elections Act 1868 (31 and 32 Vict c 125) (UK) on the Judges of the superior courts of common law to determine disputes as to the election and return of members: see In re Wood (2).


2. The jurisdiction conferred upon the High Court sitting as a Court of Disputed Returns is conferred pursuant to s 47 of the Constitution and, perhaps, pursuant to s 76. It is unnecessary to consider the constitutional foundation for the jurisdiction; it is sufficient to note that it is a particular jurisdiction, historically of parliamentary origin, which is conferred on a court and which is intended to be exercised in order to achieve finality in an election (3). That is manifest from the provisions of s 354(3) which permit the jurisdiction of the Court of Disputed Returns to be exercised by a single Justice or a Judge and from s 368 which provides that:
"All decisions of the Court shall be final and conclusive and
without appeal, and shall not be questioned in any way."


3. The Courts which may sit as a Court of Disputed Returns are specified in sub-s (2) of s 354. The High Court is the Court of Disputed Returns unless the trial of a petition is referred to the Supreme Court of a State or Territory in which the election was held or return made. In respect of a petition so referred for trial, the Supreme Court of the State or Territory "shall ... be and have all the powers and functions of the Court of Disputed Returns". There is but one Court of Disputed Returns in respect of the trial of any petition: it is either the High Court of Australia or a Supreme Court of a State or Territory. The powers conferred by s 360 are intended to be exercised by the Court which has considered the issues raised in a petition that has been tried. The jurisdiction or power of the High Court under sub-s (1) of s 354 is expressed clearly in the alternative: this Court may either try the petition or refer it for trial to the Supreme Court of the State or Territory in which the election was held or return made.


4. If there be but one Court in respect of the trial of a petition, the trial cannot be severed into parts, one part being determined by one Court, the other part being determined by another. The Act requires that the Court of Disputed Returns in respect of the trial of that petition should hear and determine the issues raised by the petition. There is simply no provision in the Act which would permit a severing of the trial of those issues.


5. Section 44 of the Judiciary Act 1903 (Cth) confers on this Court a power of remittal of parts of matters pending in this Court. That section is to be liberally construed (4), but I am unable to construe it as applying to proceedings on a petition to the Court of Disputed Returns. The generality of its provisions cannot affect the particular provisions of s 354 which prescribe that one or other of the Courts therein mentioned be the Court of Disputed Returns in respect of the trial of a given petition.


6. For these reasons I am of the view that the petition in the present matter must be heard and determined in toto either by the High Court sitting as a Court of Disputed Returns or by the Supreme Court of the Northern Territory pursuant to an order of this Court referring the petition to that Court for trial.


7. In order to determine whether or not the petition should be referred to the Supreme Court of the Northern Territory for trial, it is necessary for the parties to identify with precision the issues which arise on the petition. That must be the next stage in this proceeding.
1 (1988) 167 CLR 145.
2 (1988) 167 CLR 145 at 157-158.
3 In re Wood (1988) 167 CLR 145 at 160.
4 Johnstone v The Commonwealth (1979) 143 CLR 398 at 402.