Sue v Hill

[1999] HCATrans 58

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

For judgment

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 MARCH 1999, AT 2.16 PM

Copyright in the High Court of Australia

(Reasons for judgment were delivered

HIS HONOUR:   The orders that I make are as follows:

The petitioner is relieved from compliance with paragraph (aa) of s 355 of the Act in relation to the allegations that the first respondent fell within either the first or the third of the categories referred to in s 44(i) of the Constitution, upon terms that the petitioner is prevented from placing, directly or indirectly, any further reliance upon such allegations in these proceedings. On that basis, the first respondent’s application is dismissed.

This application was the consequence of the inappropriate manner in which the petition was expressed.  The petition would have been dismissed, but for the exercise of the discretionary power given by s 358(2).  In the circumstances, the petitioner must pay the first respondent’s costs of the application.  I certify for counsel

By the way, the consequence of the intervention of the Electoral Commission, as I understand it, is that it is now added as a party to the proceedings which is the reason why I have referred to your client, Mr Rofe, as the first respondent, and will continue to refer to her in that way.

As I understand it, the petitioner and the first respondent are agreed that the proper manner in which the matter should proceed now is that I should be invited to state a case under section 18 of the Judiciary Act for the opinion of the Full Court?  Is that right?

MR FINCH:   That is essentially right.  I should inform you of this.  I am not sure that you are aware of this:  there is another petition affecting the election of Senator Hill.

HIS HONOUR:   That is Mr Sharples.

MR FINCH:   That is Mr Sharples.  The petitions are, although not pleaded the same, matters which raise exactly the same issues.  I understand that the Registry had expressed a view that it might desirable to list them together for directions.  The answer to your Honour’s question is, yes, both parties think that a case should be stated pursuant to section 18.  What we had assumed was this, that it might be appropriate to list the matters together for hearing together- I understand that no other challenge has been made to the Sharples petition; that there ought to be some directions with the effect that there ought to be whatever interlocutory regime there needs to be result in an agreed narrative of fact and an agreed statement of questions which should be put before the Court for referral.

HIS HONOUR:   I understand that Mr Sharples, at least to date, has not been legally represented.

MR FINCH:   That is correct.

HIS HONOUR:   He filed his petition in the Brisbane Registry.

MR FINCH:   That is correct.

HIS HONOUR:   I have arranged for Justice Callinan to take charge of the management of that matter.  It may be, depending upon the approach taken by Mr Sharples, we will work towards getting the two matters heard together.  On the other hand, for all I know, Mr Sharples might prefer to just stand back and let this matter proceed, as long as he is satisfied that any arguments that he wants to raise are being raised in these proceedings.  That will be a matter for him.  But because he is a litigant in person who took proceedings in the Brisbane Registry, I thought it inappropriate, really, to require him to come to Sydney, and that matter can be attended to by Justice Callinan in Queensland.

MR FINCH:   We were not going to suggest that your Honour ought today make any orders affecting him.

HIS HONOUR:   No.  In Sykes v Cleary, Justice Dawson stated a case under section 18 of the Judiciary Act.  I presume it is clear that I have power to do that. 

MR FINCH:   Yes, we - - -

HIS HONOUR:   Does the Electoral Act actually make specific provision incorporating the Judiciary Act?

MR ROFE:   I do not think it does.

MR FINCH:   I do not think it does.

MR ROFE:   No, it does not, your Honour, no.

HIS HONOUR:   Well, you might like to take that into consideration.  But, certainly, that is the assumption on which everybody seems to have proceeded in Sykes, and if there is any question about it, I would like you to draw it to my attention.

MR FINCH:   Yes.  We will make sure it procedurally correct.  Your Honour could, in the event that there is not procedure there, adopt a procedure in any event under the Electoral Act, but we can leave that aside.

HIS HONOUR:   Mr Rofe, from what you said the other day, I had rather assumed that there will be three issues or possible issues in the matter but if there are others, please let me know. 

By the way, I publish my reasons for the decision that I just announced and they can be made available to the parties and to any member of the public who want to see them.

I have assumed that there will be, by reason of the decision in Sykes v Cleary, a question as to whether your client did whatever was necessary to remove her status as a British subject, which is a question of fact, I suppose, and I will come back to that in a moment.  There is, as I understand it, a question as to whether Britain is a foreign power.  By “Britain”, I mean the United Kingdom of Great Britain and Northern Ireland.  That will be a question in the case, I presume.

MR ROFE:   Yes.

HIS HONOUR:   And as I understand it, you also want to raise a question as to whether or not the legislation of the Commonwealth Parliament which purports to empower the Court of Disputed Returns to determine an issue such as that raised by the petitioner is valid legislation. 

MR ROFE:   Yes.

HIS HONOUR:   Are there any other issues?

MR ROFE:   Your Honour, not that we have actually identified at the moment.

HIS HONOUR:   As to that last issue - - -

MR ROFE:   I am sorry, my learned junior reminds there is the 362 question which is really the Sykes v Cleary [No 1] question where we say his Honour Justice Dawson should not have entertained - - -

HIS HONOUR:   I thought that was the third question I mentioned.  That is the jurisdiction question.

MR ROFE:   Yes.  Well, I think that is probably – that is (c) in our summons, your Honour.

HIS HONOUR:   Yes.  What I wanted to ask you was this:  if you were right in that argument, could not the petitioner circumvent the argument by commencing proceedings in the original jurisdiction of the High Court?

MR ROFE:   Your Honour, that has been suggested as a possibility.  There has been no real decision on that.  There is a question of whether the High Court would have power.  The Senate would have valid power, of course, to refer the matter to the High Court.

HIS HONOUR:   The only reason I asked the question was that if that issue, although an important one, is one that would not be determinative of the ultimate result of these proceedings because there would be a procedural measure that could be taken by the petitioner to get around it, then I was only going to suggest for the consideration, especially of the petitioner, that that procedural measure ought to be taken.  So that when the matter does come before the Full Court of the High Court, we have the alternative basis of potential jurisdiction in front of us.

MR ROFE:   Yes.

HIS HONOUR:   Now, subject to that - let us start from the other end as it were – your client was not due to take up her place in Parliament until July.

MR ROFE:   Yes, 1 July.

HIS HONOUR:   What happens in a case such as this when there is an outstanding challenge?  Would she sit in Parliament?

MR ROFE:   She would sit, your Honour, or she could sit at the risk of - - -

HIS HONOUR:   Incurring a penalty.

MR ROFE:    - - - a common form of penalty.  I think it is $100 a day; $100 a day each sitting day.

HIS HONOUR:   Can I ask you a different question.  What would be the consequences of success on the part of the petitioner?  Who would then be elected?

MR ROFE:   I think the petitioner has asked – assuming the petitioner is asking for a recount as has happened in a number of cases in which the Senate is involved, it does not void the whole election, it is simply a recount excluding our client from the first - - -

HIS HONOUR:   Now, is there any doubt about what the result of that recount would be?

MR ROFE:   No, it would be No 2 on the One Nation ticket, as I understand.

HIS HONOUR:   Does that mean that whoever is No 2 on the One Nation ticket has an interest in these proceedings?

MR ROFE:   I suppose it does.

HIS HONOUR:   I just wondered if that person wanted to be - - -

MR ROFE:   Heard?

HIS HONOUR:   Yes.

MR ROFE:   Yes.  If that were an appropriate direction that your Honour gave or Justice Callinan gave, we would certainly have no difficulty in notifying.

HIS HONOUR:   I presume that both parties would like the matter heard by the Full Court as soon as possible.

MR FINCH:   Yes.

MR ROFE:   Yes, I think so, your Honour.

HIS HONOUR:   And before July?

MR ROFE:   If that is practicable, your Honour.

HIS HONOUR:   What I had in mind, assuming we can do it – and this would unfortunately necessitate displacing another case – was the possibility of the matter being heard on 11 and 12 May but that would involve having the stated case settled in good time before that and that, in turn, would involve the parties reaching agreement on all the facts they would want to put in a stated case.

The facts in the case stated in Sykes v Cleary were very extensive but I cannot imagine the facts in this case would be nearly so extensive.

MR ROFE:   No, it is not.  Indeed, there was more than one person involved in that case.

HIS HONOUR:   Do you understand that there is any significant dispute about the facts?

MR ROFE:   I do not believe there will be.

HIS HONOUR:   What do you think about that, Mr Finch?

MR FINCH:   It is difficult for us to say because we assume that the only issue will be, as far as the statement of facts are concerned, what were the steps that are said to be reasonably taken.  That was a very short compass in Sykes v Cleary.  Two paragraphs, I think.  The only other issue may be an incorporation into the statement of facts as to what will the practical outcome be of a recount but that ought not to take up much time either, because there may be some argument about what ought be the appropriate relief.

HIS HONOUR:   What I had in mind doing, subject to any comments from any of the parties, was this:  we are going to Canberra next week but we will be back in Sydney the week after.  What I had in mind was fixing this matter for further direction at 2.15 on Monday, 29 March, and directing the parties in the meantime to prepare, preferably jointly but individually if they cannot, a draft stated case.  That exercise will test whether or not you can or cannot reach agreement on the facts.  I would ask all three of you in the course of doing that to look at the question that I raised, that is the power to state a case under section 18 of the Judiciary Act.

MR FINCH:   We might also formulate alternative proceedings in the High Court’s original jurisdiction to the extent that that may be of assistance.

HIS HONOUR:   Yes.  Now, to the extent to which you cannot reach agreement on the form of a stated case, then you can show me the area of disagreement on Monday week and I will just make my own decision about that.  Presumably, there are no facts relevant to the question of whether the United Kingdom is a foreign power?

MR FINCH:   No, there should not be, but there may be some historical narrative which is useful for the Court to have.

HIS HONOUR:   Yes.  You would not put that in the stated case though.  You might put that in the form of some other document.

MR FINCH:   Yes.

HIS HONOUR:   Well, is there anything else that I should do at the moment other than stand the matter over for further directions at 2.15 on Monday, 29 March, and direct the parties to prepare, preferably jointly, but if that is not possible, separately, a draft of a stated case.

MR FINCH:   Yes.  We were going to suggest, your Honour, the very short – that is, number of days – process of interrogatories and answers but that perhaps was unduly pessimistic about the process of agreement.

HIS HONOUR:   Yes.  You would not want to get into interrogatories and discovering things in a case like this.

MR FINCH:   No.  We do not wish to persuade your Honour to any other view.

HIS HONOUR:   I presume that the first respondent will state the steps that were taken by her, and I have no doubt what she states in that regard will be true, and that will just fall to be measured against what you say were the other available steps that could have been taken.

MR FINCH:   Yes, and presumably it is in the first respondent’s interest to do so as fulsomely as possible so we have no conflict there, really.

HIS HONOUR:   Yes.

MR McCARTHY:   There are two matters I just wish to raise in passing, your Honour.  The first is that I can foreshadow that it might be that the Commonwealth, as a separate entity, would seek to be joined in these proceedings.  I can certainly bring to the attention of the relevant persons the possibility of that occurring and they might wish to seek leave to be joined on that date.  If we perhaps foreshadow that.

The second issue is that the Electoral Commission often assists with preparing an agreed statement of facts between the parties, and I can certainly get that wheel turning, as it were. 

The third concern I have is that counsel for the Electoral Commission is appearing – there is another petition running, a matter of McClure, in Melbourne, which is listed for a summons similar to the strike out on 29 March.  I am not sure if that is of relevance.

HIS HONOUR:   No.

MR McCARTHY:   I just wanted to bring those matters to the Court.

HIS HONOUR:   All right, thank you very much.

MR FINCH:   The last question we had is simply this:  is it likely that on 29 March your Honour will still have those dates that you foreshadowed available?

HIS HONOUR:   Yes.

MR ROFE:   Your Honour, I can conclude it is raised, is there not, a question of notification to the Attorneys-General? The construction of the Constitution, I suppose, that has to be dealt with.

HIS HONOUR:   I think that is right, Mr Rofe, yes.  Thank you for raising that.  Well then, there is nothing further for me to do at the moment, I think. 

I will stand the matter over for directions at 2.15 on Monday, 29 March. 

I will direct the parties to prepare, jointly if possible, but if not possible, separately, a draft of a case to be stated to the Full Court under section 18 of the Judiciary Act.  I note in that connection that the parties will look at the question of the power to state a case under that section. 

I reserve the costs of today’s hearing and certify for counsel. 

Is there any other order I need to make?

MR FINCH:   No, your Honour.

MR ROFE:   No, your Honour.

AT 2.33 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 29 MARCH 1999