Sue v Hill

[1999] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Sydney  No S179 of 1998

B e t w e e n -

HENRY (NAI LEUNG) SUE

Petitioner

and

HEATHER HILL

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 JULY 1999, AT 2.18 PM

(Continued from 29/6/99)

Copyright in the High Court of Australia

MS C.M. TAIT:   If the Court pleases, I appear for the petitioner.  (of Phillips Fox)

MR J.P. DAVEY:   If the Court pleases, I appear for Senator Woodley.  (instructed by Senator Woodley)

MR M.C. SWAN:   If the Court pleases, I appear for the Australian Electoral Commission, the second respondent.  (instructed by the Australian Government Solicitor)

MR H.C. BURMESTER, QC:   I appear for the Attorney-General.  (instructed by the Australian Government Solicitor)

MR S.J. GAGELER:   If your Honour pleases, I appear for Mr Len Harris.  (instructed by Blake Dawson Waldron)

MR P.M. WOOD:   May it please the Court, I appear for Senator Mason and Mr O’Chee.  (instructed by Freehill Hollingdale & Page) and (instructed by Shand Taylor)

HIS HONOUR:   Do you read the affidavit of Peter William Spelman of 30 June 1999, Mr Swan?

MR SWAN:   Yes, I do, your Honour.

HIS HONOUR:   Yes, I have read that. 

MR SWAN:   Your Honour, I also have some draft orders here.  They have been distributed to the other parties represented here today.  There may appear to be some slight inconsistency between orders 2 and 3 of the draft but I put order 3 in there against the possibility that your Honour may wish to make a different order 2.

HIS HONOUR:   Let us just deal with order 1 for the moment.  Is there any difficulty that anybody has about making a declaration in terms of order 1?  Apart from a question of costs, is there anything else I need to do apart from make a declaration in terms of order 1?

MR SWAN:   No, your Honour, not in the events as they turned out.

HIS HONOUR:   What happened in Wood’s Case?

MR SWAN:   In Wood 167 CLR, at page 176, in the last paragraph of Chief Justice Mason’s judgment, his words are:

I order that Irina Dunn be declared duly elected as a senator for the State of New South Wales for the place for which Senator Wood was returned.

HIS HONOUR:   Has any order or declaration been made, as it were, displacing Mrs Hill?

MR SWAN:   My understand, your Honour, was that that was the result of the Full Court’s deliberations.

HIS HONOUR:   The Full Court cannot make any orders.  The Full Court just answered a question.

MR SWAN:   Well, in that case, your Honour, then perhaps there needs also to be a declaration that Heather Hill was not duly elected under section 360(1)(v) of the Commonwealth Electoral Act.  The order that I have asked your Honour to make in respect of Mr Harris is reflective of paragraph (vi).

HIS HONOUR:   Do I not need to make a declaration that the first respondent, Heather Hill, was not duly elected as a senator for the State of Queensland at the election held on 3 October 1998?

MR SWAN:   Yes, your Honour.

HIS HONOUR:   That is following the form of the declaration sought on page 2 of the petition.

MR SWAN:   Yes.

HIS HONOUR:   Is everybody content with that?  Well then, is everybody content that I should go on to declare that Len Harris be declared duly elected?  I order that Len Harris be declared duly elected as a senator for the State of Queensland for the place for which Heather Hill was returned.

MR A.G. SKYRING:   Your Honour - - -

HIS HONOUR:   Yes.  What is it you want?

MR SKYRING:   Further to the matters that I broached with you on Tuesday, there is a matter here which I feel quite strongly about, in that - - -

HIS HONOUR:   Well, look, Mr Skyring, what you feel strongly about is not a matter of concern to this Court.

MR SKYRING:   Well, the small matter of whether, in fact, the requirements of section 170(3) concerning the nominations of the party now - - -

HIS HONOUR:   Mr Skyring, that is not the subject of any petition or any proceeding before this Court and you are not a party to any proceeding before this Court.

MR SKYRING:   But as a voter, your Honour – and this gentleman who is returned has to represent my interests in the Senate.  It seems to me that if this matter is not properly – has not been properly – or the requirements of section 170(3) have not been properly met, then since just about every matter which comes before the Senate involves money in one way or another, I am quite strongly of the view that my interests - - -

HIS HONOUR:   Mr Skyring, the Electoral Act provides a procedure for disputing returns by petition.

MR SKYRING:   Yes, your Honour.

HIS HONOUR:   And one of the provisions of the Act is to the effect that there is a time limit within which petitions may be presented.

MR SKYRING:   Yes, your Honour.

HIS HONOUR:   Now, nobody has presented a relevant petition raising the point that you want to raise and I am not dealing with the matter simply because you feel strongly about it.

MR SKYRING:   No, your Honour, it is not that.  It is the fundamental premise upon which everybody believes that this whole process has been carried out, ie, that for the whole process – and I am just not talking of this one‑ it is essential that the requirements of 170, in particular, with the whole electoral process have been carried out to - - -

HIS HONOUR:   Mr Skyring, I do not propose to hear you further.  Take a seat, please.

MR SKYRING:   Thank you, your Honour.

HIS HONOUR:   Well now, apart from the matter of costs, is there anything I need to deal with except those two declarations that I have mentioned?  Well now, as far as the matter of costs is concerned, your proposal, Mr Swan, is that each party bear its own costs.

MR SWAN:   Yes, your Honour.

HIS HONOUR:   And I do not imagine anybody disagrees with the proposition that your client should bear its own costs, but I would imagine other people might have submissions to make about who should pay the costs and, in particular, about why the Commonwealth should not pay everybody’s costs.  Do people want to make submissions about that?

MR SWAN:   Just on that, your Honour, the Electoral Commission does not seek that the Commonwealth pay its costs.

HIS HONOUR:   No.  Ms Tait, your client got an order that the Commonwealth pay his costs in the High Court.

MS TAIT:   It did, your Honour.

HIS HONOUR:   Subject to anything it says to the contrary.  Is that the same order as you seek now?

MS TAIT:   We do.  There are actually two aspects to it, your Honour.  The order of the High Court does not actually encompass all of the costs of the petition incurred prior to the stating of the case to the Full Court.  So, we would seek that order in relation to those costs incurred - - -

HIS HONOUR:   What I propose to do, subject to anything that you and others put to me, is to make an order about the costs, including the reserve costs because, I think, what I have done on all previous occasions is to reserve costs.

MS TAIT:  Yes, you have, your Honour.  If that encompasses - - -

HIS HONOUR:   So, that would be the way to pick it up, would it not?

MS TAIT:   - - - the earlier costs of the petition itself, then we would be more than satisfied with that.

HIS HONOUR:   All right.  Does anybody else want to make any submissions about costs?

MR G AGELER:   Yes, your Honour, on behalf of Mr Harris, I would seek an order that the costs of Mr Harris be paid by the Commonwealth.

MR WOOD:   I do, similarly, your Honour, in relation to Senator Mason and Mr O’Chee.

HIS HONOUR:   I had better deal with the question of the standing, had I not, of Mr O’Chee and of Senator Mason and Senator Woodley, as well as

Mr Harris.  Is the convenient course to adopt in relation to all those people to give them leave to intervene which will then provide a foundation for making an order for costs?

MR WOOD:   That would be my submission, your Honour, yes.

MR G AGELER:   Yes, your Honour.

HIS HONOUR:   Have you any views on it?

MR BURMESTER:   I have no objection.

HIS HONOUR:   I will grant leave to intervene to Mr O’Chee, Senator Mason, Senator Woodley and Mr Harris and the order for costs in relation to those persons that I propose to make is intended to cover previous occasions on which they have been represented before the Court, as well as today.  Yes, Mr Burmester?

MR BURMESTER:   Your Honour, I am instructed to oppose an order for costs, not surprisingly, perhaps.  The ordering of costs in relation to the case stated is tied, in our submission, to the fact that significant constitutional issues and the interpretation of the Electoral Act were directly raised.  In the proceedings subsequent, we have been dealing essentially with procedural issues and, in our submission, there is no basis or any reason why the Commonwealth should assume the costs of the various persons who have come along to put submissions in their own interests.

HIS HONOUR:   In relation to the question of costs, it is not only the proceedings before the Full Court of the High Court that raised or potentially raised important issues of general importance.  Following the decision of the High Court, there was a possible issue concerning the consequences that might flow if a re-count were to call into question the position of persons other than Mrs Hill or Mr Harris.

As events have turned out, the re-count did not require a determination of that issue.  However, the presence before the Court on this and previous occasions of Mr O’Chee, Senator Mason and Senator Woodley resulted from the possibility that that issue of general importance might arise and, in those circumstances, it seems to me to be fair that I should make an order that the Commonwealth should pay the costs of Mr O’Chee, Senator Mason, Senator Woodley and Mr Harris, as well as the costs of the petitioner, Mr Sue, and I propose to make orders to that effect, including orders in relation to costs that have been reserved on previous occasions.  Is there any other issue that has to be determined?  Very well.

I note that the evidence shows, and it is agreed, that the result of the re-count conducted following the Court’s earlier direction was such that no place other than that for which Mrs Hill was turned could be affected.  I declare that the first respondent, Heather Hill, was not duly elected as a senator for the State of Queensland at the election held on 3 October 1998.  I order that Len Harris be declared duly elected as a senator for the State of Queensland for the place for which Heather Hill was returned. 

I order that the Australian Electoral Commission and the Attorney‑General for the Commonwealth bear their own costs of these proceedings, and I order that the Commonwealth should pay the costs of the petitioner and of Senator Mason, Senator Woodley, Mr O’Chee and Mr Harris of today’s proceedings and of previous occasions on which costs were reserved.  And in respect of this occasion and all previous occasions, I certify for counsel.

That, I think, disposes of the matter of Sue v Hill.  The matter of Sharples v Hill is not in the list today.  Is Mr Sharples here?  Well, in the absence of Mr Sharples, I think that the appropriate course to take is for that matter to be relisted at a future convenient time before Justice Callinan in Brisbane when he can do what he regards as appropriate in the light of what has occurred in this matter.

There is nothing further that needs to be attended to?

MR SWAN:   No, your Honour.

AT 2.33 PM THE MATTER WAS CONCLUDED