Stuart Horrex and Australian Electoral Commission John Charles Bell JOINED PARTY

[2014] AATA 681

[2014] AATA 681

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4022
Re	Stuart Horrex
APPLICANT
And	Australian Electoral Commission
RESPONDENT
And	John Charles Bell
JOINED PARTY

DECISION

Tribunal	Deputy President P E Hack SC
Date	17 September 2014
Place	Brisbane

The Tribunal ORDERS that:

1.   The application to join .au Domain Administration Limited as a party to the proceedings is refused;

2.   The application to stay the decision of .au Domain Administration Limited is refused;

3.   John Charles Bell be joined as a party to the proceedings;

4.   The applications of Darren Mark Churchill and Roger Howe to be made parties to the proceedings are refused; and

5.   James Page, Hayden Ostrom Brown and Australian Democrats - National Incorporated be removed as applicants in the proceedings.

The Tribunal DIRECTS that:

1.   The applicant must lodge and serve any evidence on which he intends to rely together with a Statement of Facts, Issues and Contentions by 17 October 2014;

2.   The joined party must lodge and serve any evidence on which he intends to rely together with a Statement of Facts, Issues and Contentions by
14 November 2014;

3.   The applicant must lodge and serve any evidence in reply or a letter indicating that he does not intend to do so by 28 November 2014;

4.   The respondent is to be at liberty to lodge and serve any additional material by
14 December 2014; and

5.   The matter be listed for hearing (3 days) in February 2015 (if possible) in consultation with the parties.

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Deputy President P E Hack SC

CATCHWORDS

ELECTORAL – Application to join parties – Application to stay a decision of a third party – Who are proper parties to the proceedings – Tribunal has no jurisdiction to stay decision of .au Domain Administration Ltd – Application to join parties partially refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 27(3), 30, 33

Commonwealth Electoral Act 1918 (Cth) s 141

REASONS FOR DECISION

Deputy President P E Hack SC

17 September 2014

1. In this matter three natural persons, Dr James Page, Mr Stuart Horrex and Mr Hayden Ostrom Brown, lodged an application in the Tribunal on 29 July 2014 to review a decision of the Australian Electoral Commission evidenced by a statement of reasons dated 4 July 2014. That decision, which was made at the Commission’s meeting on
   25 June 2014, affirmed a decision made by a delegate of the Commission on
   14 April 2014 by which the delegate refused to record Mr Horrex as the registered officer of the Australian Democrats, a political party registered pursuant to the provisions of the Commonwealth Electoral Act 1918 (Cth), in place of Mr John Charles Bell. The entity, Australian Democrats – National Incorporated, was also named in the application as an applicant. I will leave the position of that entity to the side for the moment.

2. I am presently concerned with two applications:

   ·One by Mr Horrex to stay a decision made by .au Domain Administration Ltd, the company that administers Australian website addresses, to record Mr Bell as the contact for various web addresses connected to the Australian Democrats and to join .au Domain Administration Ltd as a party to the proceedings; and

   ·

   Applications by Mr Bell, as well as Mr Darren Mark Churchill and

   
   

   Mr Roger Howe, to be made parties to the proceedings.

3. It is evident from the Commission’s decision subject of the application that there is an internal division within the political party, between what I shall describe as the

   
   

   ‘Horrex’ faction and the ‘Bell’ faction, as to which group is the legitimate controller of the party. The decision under review concluded, for the reasons given by the Commission, that no sufficient reason had been given to alter the view earlier taken by the Commission that Mr Bell had not been replaced by Mr Horrex as the party’s registered officer. In due course, it will be necessary to determine whether that decision was correct or whether some other decision ought be made; it is enough, though, to say that the decision that will ultimately be made will be in relation to the position of Mr Bell rather than any wider decision.

4. It is convenient to start with the application to join .au Domain Administration Ltd and to stay its decision. It is said that the Tribunal’s power to join that entity as a party and to stay its decision is incidental to the decision made by the Commission under review in the proceedings.  I do not agree. These applications must fail. The decision of

   
   

   .au Domain Administration Ltd is not reviewable in this Tribunal and no basis is made to show how the Tribunal could possibly have power to stay its decision or make any order affecting .au Domain Administration Ltd. If Mr Horrex and the others in his faction are aggrieved at the decision of that entity, I imagine it will need to pursue remedies under the general law. But there is no basis for making an order staying its decision and no basis for joining .au Domain Administration Ltd as a party to the proceedings. It has not applied to do so and, given that s 30(1A) of the Administrative Appeals Act 1975 (Cth) confers discretion to join a party “whose interests are affected by the decision”, I cannot presently see how its interests could possibly be affected by the Commission’s decision.

5. That application then is refused.

6. Mr Bell is undoubtedly a person whose interests are affected by the decision. If

   
   

   Mr Horrex succeeds in his application it will be at the expense of Mr Bell. He ought then be made a party to the proceedings.

7. On the view I take, the position is different so far as Mr Churchill and Mr Howe are concerned. It is said of Mr Churchill that he is the party’s Deputy Registered Officer and that if Mr Bell is replaced as Registered Officer his replacement will be expected to appoint a new Deputy Registered Officer, thus creating the potential for Mr Churchill to lose his position. In the case of Mr Howe, he is said to be the National Secretary of the party. He is said to be concerned that a successful application by Mr Horrex might be followed by an application to substitute him with another person, presumably one from Mr Horrex’s faction, in the records of the Commission.

8. I am not satisfied that the interest of either of them is affected by the decision. At the highest their interest might be affected if a decision adverse to Mr Bell were made and then further decisions were to be made.

9. The applications by Mr Churchill and Mr Howe are refused.

10. It remains to consider who ought be applicants. By virtue of s 30(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the parties to a proceeding are,

    (c)any person  who, being entitled to do so, has duly applied to the Tribunal for a review of the decision.

11. Whether a person is entitled to apply for a review of a decision of the Commission is determined by s 141 of the Commonwealth Electoral Act 1918 (Cth). The present decision is one by the Commission reviewing, pursuant to s 141(4) of that Act, the earlier decision of a delegate refusing to make a change to the Register by substituting

    
    

    Mr Horrex for Mr Bell as the registered officer of the party. Section 141(3) of the Act allows for an application to be made to the Tribunal for the review of such a decision. It is implicit in s 141(9), if not explicit in any other subsection, that only a person whose interests are affected by the decision may seek a review in the Tribunal.

12. I find it impossible to see how the interests of Dr Page or Mr Brown are affected by the decision.  Certainly it is the case that they are in Mr Horrex’s faction, or, perhaps, he is in theirs. But that apart there is no discernible interest affected. It is said that they are part of a wider decision made earlier by the Electoral Commission which informed the making of the present decision.  If that be so, and it is relevant to demonstrate it, they can no doubt give evidence.  But that apart, there is no interest of Dr Page or Mr Brown affected by the decision. Mr Horrex is undoubtedly a proper party. There is no question about that.  As I say, if he wishes, he can call evidence from Dr Page and Mr Brown.  But no useful purpose is served having them as applicants.  On the contrary their presence as parties merely makes the proceedings more cumbersome and unwieldy and is likely to delay resolution of the issues that divide the two factions.

13. Finally, I can see no basis on which the party is a proper applicant a fortiori where, as here, both factions are contending that they, and not the other faction, represent the party.  To join the party as an applicant would be to assume, favourably to Mr Horrex, that he is the legitimate representative of the party.  That may ultimately be found in his favour however I do not propose to assume it before it is decided at a hearing.

14. It was argued by Mr Davey on behalf of Mr Horrex that the party was a person affected by virtue of s 27(2). That allows an organisation or association of persons, whether incorporated or not, to be taken to have an interest that is affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association. I find it difficult, as at present advised, to see how that assists in the present circumstances. I have proceeded as I have, in relation to the applicants, given that s 33 of the Administrative Appeals Tribunal Act confers on the Tribunal a wide discretion as to the procedure of the Tribunal. On the view I take of the matter, the proceedings will be conducted more efficiently if there is a single applicant, Mr Horrex, who has an undoubted interest affected by the decision, and a single joined party, Mr Bell, who equally has an undoubted interest affected by the decision.  Necessarily the Commission will be the respondent.

15. In the result, the application to join .au Domain Administration Ltd as a party to the proceedings is refused, the application to stay the decision of that entity is refused,

    
    

    John Charles Bell will be joined as a party to the proceedings, the applications of

    
    

    Darren Mark Churchill and Roger Howe to be made parties to the proceedings is refused and James Page, Hayden Ostrom Brown and Australian Democrats – National Incorporated will be removed as applicants in the proceedings.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 17 September 2014

Date of directions hearing	17 September 2014
Solicitors for the Applicant	Mr John Davey, John Davey & Associates
Solicitors for the Respondent	Australian Government Solicitor
Counsel for the Joined Party	Ms Nicole Papaleo
Solicitors for the Joined Party	Aitkin Partners