Sykes v Cleary
[1992] HCATrans 228
IN THE HIGH COURT OF AUSTRALIA SITTING AS THE COURT OF DISPUTED RETURNS In the matter of - The Commonwealth Electoral
Act 1918-1980
Office of the Registry No M25 of 1992 Melbourne
IAN SYKES
Petitioner
and·
PHILIP CLEARY
First Respondent
JOHN DELACRETAZ
Second Respondent
"BILL" KARDAMITSIS
Third Respondent
GERALDINE RAWSON
Fourth Respondent
AUSTRALIAN ELECTORAL COMMISSION
Sykes(3) 1 10/8/92
Fifth Respondent
For directions
DAWSON J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON MONDAY, 10 AUGUST 1992, AT 9.31 AM
Copyright in the High Court of Australia
HIS HONOUR: Yes, Mr Fajgenbaum? You now appear for the petitioner?
MR J.I. FAJGENBAUM, OC: I do appear appear for the petitioner, if Your Honour pleases. (instructed by
Minter Ellison Morris Fletcher). I do not know whether Your Honour wishes to take appearances this
morning or whether we should - - -?
HIS HONOUR: I think the appearances are otherwise the same, are they not?
MR BELL: Yes, they are.
MR D. ROSE, QC: If Your Honour pleases, I appear for the
Australian Electoral Commission, on this occasion,
not for the Attorney, Your Honour. The Attorney is not represented this morning. (instructed by the Australian Government Solicitor).
HIS HONOUR: Thank you, Mr Rose. Gentlemen, we seem to have made some progress.
MR FAJGENBAUM: We have made some progress, Your Honour. There was a document prepared on Friday earlier in
the day which was a document that proposed
amendments to the stated case as Your Honour had
settled it and that that document, I think, was
delivered to Your Honour. Then the Court asked us to prepare a consolidated case stated with the
amendments in it. That was also prepared but
unfortunately that document has suffered the vices
of speed and everything that went wrong in thetyping that could go wrong virtually did go wrong.
HIS HONOUR: I have read that and there are some typographical errors and a few things that need to
be fixed up, but save that I might point them out
as we go through, we do not need to waste any timeabout that. Those corrections can be made later.
But there are a few matters of substance, are there not?
MR FAJGENBAUM: There are some matters of substance.
HIS HONOUR: Now, can I ask this: do all the parties have a copy of that consolidated document?
MR FAJGENBAUM: I gather so, Your Honour. HIS HONOUR: What is the best procedure, Mr Fajgenbaum? MR FAJGENBAUM: We are in Your Honour's hands but might I point out to Your Honour that Your Honour will
observe that in the consolidated documents
allegations in respect of Mr Cleary's relationship
Sykes(3) 9/6/92 with the ABC and Community Services Victoria have
been dropped.
HIS HONOUR: Well, that is a matter for you, is it not?
MR FAJGENBAUM: Yes. HIS HONOUR: Yes, and with the Community Services Victoria.
MR FAJGENBAUM: Yes, that has been done. We also propose to drop claims arising out of the connection of
Mr Cleary and other respondents with the Coburg
Council. That has not yet occurred in this
document but it will be done.
HIS HONOUR: I do not think Mr Cleary's connection - MR FAJGENBAUM: Sorry, it was Mr Kardamitsis and Ms Rawson
with the Coburg Council, and that will be done.
For the rest, Your Honour, as I understand it,
there are, in the document as it now stands, only
the matters in paragraphs - there was a proposal of
my learned friend, Mr Bell. I do not know whether he intends to persist with it, to include a
paragraph 41(a) and 41(b) into the stated case and
paragraph 49(a) Mr Bell also wanted to put in andperhaps it might be appropriate for him to deal
with those matters.
Also, Mr Borenstein had a problem on Friday.
I do not know whether he is persisting with it now.
It has not been reflected in any of the drafting
yet because a form of drafting was not - - -
HIS HONOUR: Mr Fajgenbaum, I have some suggestions too. So, tedious as it may be, do you think it the best
procedure to simply go through it, page by page?
It should not take very long.
MR FAJGENBAUM: If that suits Your Honour's convenience. HIS HONOUR: And if any of the gentlemen at the bar table wish to make a submission, then they should just
· rise and do so. So, if you would be seated, Mr Fajgenbaum, until you feel the need to rise.
If we take the first paragraph: I think in
the second line on page 2 the words "election to be
held to elect" should go in front of "one member ofthe House of Representatives".
MR FAJGENBAUM: Yes, Your Honour.
HIS HONOUR: Now, nothing more on page 2. On page 3, paragraph 4, we have defined "election" with a
capital "E". That amendment should be made
Sykes(3) 9/6/92 throughout, I think, and I will not mention that
again.
MR FAJGENBAUM: If Your Honour pleases.
HIS HONOUR: On page 3, paragraph 6, there was an amendment
made, and I take it it was agreed: "Mr Bruce received the ballot papers from postal and pre-poll
voting". The words "postal and" seemed to have been added.
MR FAJGENBAUM: Yes. HIS HONOUR: That is agreed?
MR FAJGENBAUM: Yes. Your Honour, can I take Your Honour back to page 3, if I can interrupt Your Honour, the
last two lines of paragraph 6, the words after
"poll" should be deleted.
HIS HONOUR: Should be deleted, yes. And the words "postal and" have been inserted.
MR FAJGENBAUM: In - - -? HIS HONOUR: Paragraph 6.
MR FAJGENBAUM: Yes, Your Honour • HIS HONOUR: Yes, very well. Page 4, paragraph 8,
third line: "They were then", the word "were" should be inserted.
MR FAJGENBAUM: Yes.
HIS HONOUR:
And the second-last line of that paragraph, "section 4(1)" becomes "sub-section 4(1)", "of the
. CE Act", the letters "CE" go out. MR FAJGENBAUM: Yes, Your Honour.
HIS HONOUR: And throughout we have used, to be consistent - and there have been some amendments - is it not a
form I prefer but the Commonwealth, I think,
· prefers it - you will see it in paragraph 9:
"under p~ragraph 274(7)(b)" instead of
section 274(7)(b)" but that was the way it began
and so we might as well be consistent throughout.
And in paragraph 9, the second-last line: "were rejected", its been in the passive voice, "by
him" -
MR FAJGENBAUM: "By him" should be deleted, Your Honour. HIS HONOUR: Should be deleted, yes. Again, you have an
"election" with a small "e".
Sykes(3) 9/6/92 Now, page 5: there are some typographicals
there, we will not worry about that in
paragraph 11. Paragraph 12: the word "second"
preference votes in the first line has been
deleted.
MR FAJGENBAUM: Yes, Your Honour. HIS HONOUR: And there is a discrepancy, I think, after the
distribution of preferences between the totals. I believe that is explained by something that is called "exhausted votes". Mr Rose, you probably are able to be of assistance there, are you?
MR ROSE: Yes, if Your Honour pleases.
HIS HONOUR: First of all, why was the word "second" preference votes deleted?
MR ROSE: That is because, Your Honour, the preference votes
that are distributed may not - in fact, in many
cases, would not be the actual second preferences.
They would be the second, what is called,
continuing preference. In other words, if the
actual second preference was for a candidate whohad already been excluded in the count - - -
HIS HONOUR: It would be a third preference? MR ROSE: It would be the actual third preference or a later preference. It would not necessarily be the actual
second preference.
HIS HONOUR: Yes. And the other discrepancy in the totals
is something called "exhausted votes", is it?
MR ROSE: That is the 300-odd, I think, shown on the bottom
right-hand corner of the chart attached to the
affidavit of Mr Bruce. I can give Your Honour a reference to the section of the Act:
section 274(8), which says that: A ballot-paper shall be set aside as exhausted
where on a count it is found that the
ballot-paper expresses no preference for any
unexcluded candidate.
And so, if I could take Your Honour, to explain it,
to that chart attached to the affidavit. One can see the exhausted votes are, of course, in the
second column from the right. They total 321. But
one can see the process there early on, opposite
the second listed candidate, Kapphan, there is one
vote listed in the exhausted vote column and that
is because one of Mr Kapphan's actual second
preferences would have been cast for the candidate,
Sykes(3) 5 9/6/92 Potter, who, by the time Kapphan's votes came to be distributed, had been excluded.
HIS HONOUR: Yes, I see. MR ROSE: So, that accounts - when one works through the chart, one does that at each stage and ends up with
a total of 321.
HIS HONOUR: Thank you, Mr Rose. Do any of the other appearances want to comment on that? It causes no
difficulty? Very well, the word "second" goes out
in paragraph 12 in the first line. In the third
line: I think "it was clear" rather than, "it is clear". And the figures are explained in
accordance with the explanation given by Mr Rose. in the second line. Anything on that page, gentlemen?
Page 6, paragraph 14, the word "recount" should be, should it not, Mr Rose, "special count"?
MR ROSE: Yes, if Your Honour pleases, because the word "recount" is usually reserved for counting where the same task if being done again, whereas, what is involved here is the count on a difference basis,
so it is referred to as a "special count."
HIS HONOUR: Thank you. Do any of you other gentlemen have difficulty - - -
MR FAJGENBAUM: Your Honour, we had intended "special count" and that is what we regard as a typographical
error.
HIS HONOUR: I see. Well now, is this next phrase correct:
"it is not known what number of second and subsequent preference votes", is that correct, Mr Rose?
MR ROSE: Yes.
HIS HONOUR: Any difficulty with that, gentlemen? "in favour of the other candidates in the Election by
voters - - -"
MR BELL: Your Honour, might I interrupt? I am not sure I followed Mr Rose well enough but if the answer to
that question is as it was given, should not
"second preference votes" remain in paragraph 13?
HIS HONOUR:
The explanation is that some candidates would have exhausted their second preference for a
candidate who was one of the ones in question, and you then would take their third preference, and
Sykes(3) 6 9/6/92 "second" has gone out from paragraph 13, you see,
for that reason.
MR BELL: Yes, it has gone out. Is that consistent with - - -
HIS HONOUR: Yes. MR BELL: It is, Your Honour?
HIS HONOUR: I think so, because some would be second preference votes; others would be not.
MR BELL: But not others; yes, very well, Your Honour. HIS HONOUR: Then "special count" appears in line 4, .and then added, at some stage, has been the last three
lines: "by voters who cast their first preference
vote in favour of any candidate other than the
First Respondent or the Third Respondent and their
second preference vote in favour of the First
Respondent or the Third Respondent." That is
correct, is it, Mr Rose?
MR ROSE: Yes, Your Honour. HIS HONOUR: Any trouble with that, gentlemen? MR FAJGENBAUM: No, I agree with that, Your Honour. HIS HONOUR: There are a few typographical errors in
paragraph 15, but they can be corrected; similarly,
paragraph 17. Anything further on page 6,
gentlemen? Page 7, paragraph 18: "The First Respondent was appointed", I think, to "the
teaching service as a teacher in the Education
Department in the State of Victoria by the Teachers~ribunal pursuant to section 46 of the Teaching
Service Act 1958 (Vic) on 1 January 1975." It may
be out of an abundance of caution, gentlemen, but I
think that since you cannot draw inferences, or so
it is said in relation to a case stated under section 18, there should be a line - and this is my
suggestion here - inserted after "1 January 175."
"He thereupon became entitled to a salary and
conditions of work determined pursuant to the
provisions of that Act". Have you any difficulties
with that, Mr Fajgenbaum? It would appear from the
Act, anyway.
MR FAJGENBAUM: No, Your Honour. HIS HONOUR: Then, there are some typographicals which I will just mention: about the fifth line you have
got "section 80(1)(a)"; it should be
"paragraph 80(1)(a)", and the next line,
"sub-section 16(2)", and the next line
Sykes(3) 9/6/92 "sub-section 4(5). There is a spelling error in
the quotation: "categorized" is spelt with a "z".Coming down five lines: "Sub-section 6(1) of the
Teaching Service Act" and, similarly, there are
other corrections on the next page.
MR FAJGENBAUM: Your Honour, I think, before going to the next page, Your Honour, that the reference in the second-last line before the last quote on page 7, says: "Sub-section 7(3) of that Act provide", that
should be "provided".
HIS HONOUR: And it should be, "Sub-section", you are right, yes.
MR FAJGENBAUM: And should be that it "provided". HIS HONOUR: You are right. Very well, page 8, the last line of paragraph 18: "(see annexure)", that will
be, "A copy of these determinations comprises
Annexure C". We have got to that. Now, the next, page 9, there is a paragraph
that has been added: "At all times material", or at least a portion that has been added: "At all times material, the First Respondent was a teacher in the teaching service, within the meaning of the Teaching Service Act 1981, he was not on probation within the meaning of section 8 and it was not an
appointment for a specified term within the meaning
of section BA." Section BA actually only applies
to people who are not teachers, does it not?
MR BORENSTEIN: That is so, Your Honour.
HIS HONOUR: It does not do any harm but do we need to leave it in?
MR FAJGENBAUM: Your Honour, the reason we agreed that that
added material ought to go in was to establish that Mr Cleary's appointment was a permanent or an
indefinite appointment.
HIS HONOUR: Well, it does not do any harm. If you want it
in, Mr Fajgenbaum, to me it does not do anything,
but still - does anyone else object? Very well.
MR FAJGENBAUM: If Your Honour pleases.
HIS HONOUR: There is apparently a suggestion which has been made by the solicitors for the first respondent
that a paragraph be added - now, do you gentlemen
have copies of this paragraph - to paragraph 19?
MR BORENSTEIN: I understand, Your Honour, that my instructors have provided copies of this letter to
the other parties.
Sykes(3) 10/8/92 HIS HONOUR: It is a letter dated 7 August 1992, from
Maurice Blackburn & Co to Minter Ellison.
MR BORENSTEIN: That is correct, Your Honour.
HIS HONOUR: Very well. And the paragraph is: "The offices in the teaching service created under s.4(1) of the
Teaching Service Act 1981 are the functional
positions in the service. Persons employed in the
teaching service pursuant to s.3 of the said Act in
the classification held by the First Respondent are
not attached or appointed to any particular
position. They have no entitlement to remain in
any such position. At no time on or after
30th January 1992 was the First Respondent attached
to, nor did he have any entitlement to, any
particular or designated position. During this
time, he was described and treated by the employer
as an 'unattached' officer." The 30th January was
the date on which he went on leave without pay.
That is right, is it not, Mr Borenstein?
MR BORENSTEIN: That is correct, Your Honour.
HIS HONOUR: I rather gathered this was designed to show that there is a difference between a position and
an office.
MR BORENSTEIN: It certainly is directed to that issue, Your Honour.
HIS HONOUR: What does the words "functional position" mean? MR BORENSTEIN: Perhaps I should preface this by indicating
this is material that has been provided to us by
the officers of the department that deal with these
matters and has been communicated to Mr Fajgenbaum
and his instructors and to Mr Bell's instructors on
Thursday of last week, as a report of a conference
that we had with these individuals. A "functional position" is the teaching position at a particular
location, as we are informed, so that a person is
employed into the service but is not designated to
a particular teaching position, maybe, as is saidin the last line, "an 'unattached' officer", in a
sense that he is a teacher in a pool but may not
have a teaching position to operate in or function
in. That is the explanation we have been given of
it, Your Honour.
HIS HONOUR: Perhaps we will hear from Mr Fajgenbauin. What do you say about it?
MR FAJGENBAUM: Your Honour, we cannot accept this. We are not satisfied that the evidence supports these
propositions. Indeed, as to Mr Cleary being anunattached officer, it is inconsistent with
Sykes(3) 9 10/8/92 documentary evidence with which we have been
provided. But in any event, Your Honour, the
language makes nonsense, as we understand it, of
the provisions of section 4 of the Teaching Service
Act which empowers:
The Governor in Council may on the
recommendation of the Minister -
(a) create •....
and -
(b) abolish an office in the teaching service.
And when he abolishes an office, the former holder
of that office becomes an unattached officer. I have asked my friend to produce relevant government
gazettes which might contain the
Governor in Council's determination of creating and
abolishing relevant offices and none have been
produced. Now, until substantial evidence consistent with the statutory powers have been
presented to us for our consideration, we simply
cannot accept this paragraph. It is inconsistent
with - - -
HIS HONOUR: Which are the particular portions you have difficulty with?
MR FAJGENBAUM: For example, the first sentence: "The offices in the teaching service created under
s.4(1) ...•. are the functional positions in the
service". I do not know what that means, with
respect.
HIS HONOUR: That does not seem to add very much to what appears later on.
MR FAJGENBAUM: And furthermore, Your Honour, "Persons employed in the teaching service, pursuant to
s. 3 ..•.• in the classification held by the First respondent are not attached or appointed to any
particular •.••• (office)."
HIS HONOUR: I think the word "office" is in brackets. I do not think Mr Borenstein would mind that going out.
That is obviously argumentative. But, apart from
that, is there anything wrong with the statement?
MR FAJGENBAUM: It is the first sentence which really, with respect, is the departmental view of what the power
created in section 4(1) permits.
HIS HONOUR: And if you were to delete the word "office", which I do not think was meant, in the next
sentence and the next sentence - - -
Sykes(3) 10 10/8/92 MR FAJGENBAUM: Well, the first sentence, without the word
"office", becomes meaningless, with respect,
although I understand my friend does not object to
that whole sentence going out.
HIS HONOUR: No, well, I was just suggesting you delete
that.
MR FAJGENBAUM: Yes.
HIS HONOUR: And then it reads: "Persons employed in the teaching service pursuant to s.3 of the said Act in the classification held by the First Respondent are not attached or appointed to any particular
position." You would have no objection to that, would you?
MR FAJGENBAUM: If it were factually accurate, no.
HIS HONOUR: Is there any reason to think that it is not? MR FAJGENBAUM: Our only concern is this, that Mr Borenstein informs us that according to his information that
after 30 January 1992 Mr Cleary was unattached.
Documentary evidence which has been provided to us by the department reveals him at that time as still
being attached at the Avondale High -Secondary - my friend says it is "allocated".
Whether it is "allocated" or "attached", I am not
aware, but the documentary evidence shows there was
some kind of attachment between Mr Cleary and the
Avondale High Secondary School.
HIS HONOUR: Is the word "allocated"?
MR BORENSTEIN: Your Honour, might I perhaps just explain that? There is a distinction, as Your Honour might
perceive between being allocated to a school and
being attached to a position. Your Honour will see later in the document that at all stages Mr Cleary
has been allocated to a particular school. That, apparently, is the administrative process that the
department takes, that all teachers are allocated
to a school, but that does not necessarily mean
that being allocated to a school carries with it
the attachment to a teaching position. There is
the concept of a teacher being in excess, for
example, where there are - - -
HIS HONOUR: Well, if you were to take the last line and to say, "During this time, he was described" - and cut
out the words "and treated", they do not addanything - "by the employer as an 'unattached' but
'allocated' officer"?
MR BORENSTEIN: I am content with that, Your Honour.
Sykes(3) 11 10/8/92 HIS HONOUR: That should satisfy you, Mr Fajgenbaum, because
an employer can describe him as he likes, I
suppose.
MR FAJGENBAUM: Yes, I think so, Your Honour. Might, to
establish how the words are now assembled - delete
the first sentence?
HIS HONOUR: Yes, that is right. MR FAJGENBAUM: Delete the word "office" appearing in each
of the next two sentences.
HIS HONOUR: I do not think that was intended to go in ever, yes.
MR FAJGENBAUM: And then in the last sentence, delete the words "and treated"?
HIS HONOUR: "was described by the employer as an 'unattached' but 'allocated' officer."
MR FAJGENBAUM: As Your Honour pleases. HIS HONOUR: Does that satisfy you, Mr Borenstein? MR BORENSTEIN: Yes, it does, Your Honour, thank you.
HIS HONOUR: And that goes in at the end of paragraph 19. I was somewhat astonished at the rate of pay -
and I know that teachers are underpaid, but in
paragraph 21: "$29.17" for a day's work or more
than a day's work seemed very little. It should
be - - -
MR BORENSTEIN: Might I assuage Your Honour's concern and
indicate that Mr Cleary was a part-time teacher.
HIS HONOUR: But I think it still should be $290.17, should
it not?
MR BORENSTEIN: That may be right, Your Honour.
HIS HONOUR: This is paragraph 22: "On 30 January 1992 the First Respondent commenced leave", the word "on"
goes out, and there is an amendment which was
suggested in the letter but has been incorporated.
It is not "pursuant to section 35" or "36" but
"pursuant to section 35". Paragraph 23: "The
Department of Education" should replace "Ministry",
and it has been in paragraph 23. Paragraph 24:
"(a) All Ministerial orders made under the
Teaching Service Act 1981 relating to the terms and
conditions of employment", and the annexure is "A
copy of the Award together with subsequent
amendments." So, it should be: "A copy of the
Sykes(3) 12 10/8/92 Award together with subsequent amendments comprises
Annexure D" where you have "Annexure l" there, and you cut out the words "and subsequent amendments"
appearing in the text.
In the quotation, it is "make an order for or in respect". There are some typographical errors
in paragraph (b) I need not worry you with.
Paragraph (c): "The Ministry of Education and Training", "('the Ministry')" should go in. And it is "The School Information Manual", and "(Annexure 2)" will become "Annexure E". Anything
else on page 10, gentlemen?
Page 11, in accordance with the definition,
"Ministry of Education and Training" will become
"the Ministry". "The manual contains a detailed
description of" - instead of "on" - "the
requirements and procedures of obtaining leave
without pay pursuant to sections 35 and 36".
MR BORENSTEIN: Your Honour, in (c), we have raised a matter which we had understood was accepted by Mr Sykes'
representatives. It was to amend the sentence
which commences on the fifth line of page 11 with
the words, "In particular, the period of leavewithout pay" and - - -
HIS HONOUR: And you want to delete - - -? MR BORENSTEIN: We wish to delete the words "the purposes of" and to substitute "any purpose including", and
that derives from a particular paragraph in the
School Manual which we had pointed out to our
learned friends.
HIS HONOUR: You have no difficulty with that, Mr Fajgenbaum?
MR FAJGENBAUM: We did agree, Your Honour.
HIS HONOUR: Yes. Mr Bell, you have nothing to say about that?
MR BELL: No, Your Honour, no difficulty. MR BORENSTEIN: I had nothing else, Your Honour. MR FAJGENBAUM: Could I ask my friend to read the sentence
again because I have missed it?
MR BORENSTEIN: "for any purpose, including calculating long service leave, sick leave" et cetera.
MR FAJGENBAUM: Thank you.
Sykes(3) 13 10/8/92
HIS HONOUR: In paragraph (d), the comma in the second line should go out, and there are other typographical
amendments and the annexure will become "relevant
parts of the Education Gazette issued in the years
1989, 1990 and 1991 comprises Annexure F". In (e),
"Teaching Service" has lower case "t" and "s" and
"Superannuation Fund" should be followed by "('the
Fund')". In paragraph (e) you had a suggestion to
make which has been incorporated about midway: "No
employer contributions to the Fund were made during
the period of the First Respondent's leave without
pay. II
MR BORENSTEIN: Yes, and the next sentence as well has been
included.
HIS HONOUR: Yes, I see. May I suggest, gentlemen, that the sentence following that sentence which is agreed,
which is, "A member may choose to make his or her
own" - it should be "his or her own contributions
during this period", be transposed to appear before
the sentence beginning, "The First Respondent
elected" - it should be "did not elect" - "to, and
did not in fact, 'pay'", rather than "make anycontributions to the Fund" - it is merely a
transposition.
MR BORENSTEIN: Your Honour, I am not sure that there is an
election not to pay. My understanding is that there is an election to pay and it was for that
reason that it was drafted in that way. That is my understanding of how the arrangement operates. It
is not a matter of any significance in the schemeof things.
HIS HONOUR: I see, he did not do anything? MR BORENSTEIN: No. HIS HONOUR: All right. We will leave that:
to, and did not in fact, pay any contributions to "did not elect
the Fund", very well. And do you agree with the transposition?
MR BORENSTEIN: Yes, Your Honour, it was in fact intended to
be in that - - -
HIS HONOUR:
Now, we set out section 35 and section 49 of the Act at length. That may serve to direct the
attention of the Court to those sections but is
there any need to do that, gentlemen?MR FAJGENBAUM: No, Your Honour. It need not be there. In
fact, it might give those sections a significance
in relation to other sections which they ought not
to carry.
Sykes(3) 14 10/8/92
HIS HONOUR: What do you say of that? MR BORENSTEIN: I am more than happy for them to go out, Your Honour.
MR BELL: I agree also, Your Honour. HIS HONOUR: You are not interested in this, Mr Rose, are you?
MR ROSE: No. HIS HONOUR: Very well. Well, we will delete those
sections. They are just a transcription of the sections, are they not? And that carries us to
(h). There are some lower case and upper case corrections there. I will not bother you with
that, gentlemen.
Page 16, paragraph (ii), there is the
suggestion that there be added - and this appears on the second page of the letter - "At the end of
1989, the First Respondent was declared 'in excess'
at Avondale High School in that there was no
position" - "office" is in brackets - "for him
there."
MR FAJGENBAUM: Your Honour, we have difficulty with the proposition because all the documents that we have
indicate that he was - I cannot now recall the
distinction between "attachment" and "allocation"
but there was a connection in any event of some
kind between the school and Mr Cleary.
MR BORENSTEIN: Your Honour, it is a bit confusing. The bureaucracy is overwhelming in the Education
Department apparently. We accept, Your Honour,
that Mr Cleary was allocated, as the paragraph
says, to the Avondale High School, and we do not
seek to delete that from the case stated for one
moment but our instructions and the information we have is that while allocated to that school he was de_clared "in excess" in that there was no position for him there; that being a teaching position, he being a teacher. If that needs to be elaborated, if the word "position" needs to be elaborated, I am
happy to do that. We do not seek, by that paragraph, to detract from the proposition that he was allocated to that school, but it is our clear instruction and information that he was "in excess" in that there was no teaching position for him, and apparently that is not an uncommon situation where school student levels fluctuate and there is a ratio of a certain number of teachers' positions at a school for a certain number of students and if there are more teachers than there are an
Sykes(3) 15 10/8/92 entitlement based on the ratio, then certain
teachers are declared "in excess".
HIS HONOUR: Yes, I follow. MR BORENSTEIN: And that is what has happened to Mr Cleary, and that is immediately preceding him going on
leave.
HIS HONOUR:
Mr Fajgenbaum? It does not seem to do much harm if that is so.
MR FAJGENBAUM: That is so, Your Honour. I imagine we would have a little less difficulty with the proposition
if the sentence that we are now discussing ended up
with the words "Avondale High School".
HIS HONOUR: Well, that should satisfy you, should it not,
Mr Borenstein?
MR BORENSTEIN: It may satisfy me, Your Honour, because I have some understanding, I believe, of what the
term "in excess" means, but when the matter comesbefore the Court, if it is a matter of any
significance to the Court, there may then be
questions as to what the concept of "in excess"
means, and it is for that reason that the rest of
that sentence is there. Now, if there is a dispute about "in excess" meaning that there is not a
teaching position available at Avondale High School
for Mr Cleary, if that is the issue in dispute,well then, Your Honour, I would seek to reserve the
right to file an affidavit before the end of the
day from somebody at the department explaining that
that is what the term "in excess" means in terms of
the contract of employment.
HIS HONOUR: Yes. In the light of that, Mr Fajgenbaum, are
you in any position to establish the contrary?
MR FAJGENBAUM: Your Honour, if the affidavit is filed, yes,
we are not. I mean, we are not in such a position. But as matters now stand we have no collective
· wfsdom within our camp as to what being "in excess"
signifies.
HIS HONOUR: And the affidavit may contain some explanation, of course.
MR BORENSTEIN: I will file the affidavit, Your Honour. HIS HONOUR: Yes. Well then, subject to an affidavit being filed, can we amend what appears by adding -
subject to an affidavit which establishes the fact
being filed, can we add to sub-paragraph (h)(ii):
"At the end of 1989, the First Respondent was
Sykes(3) 16 10/8/92 declared 'in excess' at Avondale High School in
that there was no position for him there"?
MR FAJGENBAUM: Well, perhaps "no need for his teaching
services there"?
HIS HONOUR: "there was no teaching position for him there"? MR FAJGENBAUM: Yes.
HIS HONOUR: Yes. Do you agree with that, Mr Borenstein?
MR BORENSTEIN: I do, Your Honour, thank you. HIS HONOUR: Very well, and that affidavit is to be filed by 4 pm today.
MR BORENSTEIN: Certainly, Your Honour.
HIS HONOUR: "(iii)", yes, now, there are some dates here. The first date should be "1/1/91", should it? It
would seem so because - well, I do not know.
MR BORENSTEIN: I think they are right, Your Honour. HIS HONOUR: That is right, is it?
MR BORENSTEIN: I believe they are, Your Honour. HIS HONOUR: Very well, the first date "90" is right, but
the second date which was read "91" should read
"92". That has been incorporated.
Paragraph (vi): I do not know what "ex gratia
payments" - no one has raised any objection but
what does it mean, Mr Borenstein?
MR BORENSTEIN: Your Honour, there are provisions in the Act ·and in the awards about the making of ex gratia
payments but the fact here is that no payments were
made at all to Mr Cleary. There is an entry on one
of the computer print-outs which are described as "ex gratia payment entries" but our information is,
and I do not think it is disputed, that, in fact,
nothing was paid and there was no entitlement for
anything to be paid.
HIS HONOUR: Very well. The paragraphs will have to be
renumbered but what appears as paragraph 37 I turn
to. There are some typographical errors on
page 17. It should be "be faithful and bear true
allegiance to Her Majesty Queen Elizabeth the
Second", and the annexure becomes "Annexure G". Is
there anything else on page 17, Mr Bell?
MR BELL: Yes, there is, Your Honour, and some of the
requests for the inclusion of material I make have
Sykes(3) 17 10/8/92 a common foundation in argument, and it might be
best if I state that foundation now and then refer
as we come to the points that I seek to have
included. The material relates to what was
included in my draft case stated which was filedpursuant to the direction that Your Honour made on
9 July. Does Your Honour have a copy of that, because it would be easier if you did?
HIS HONOUR: I do not think I do, actually. That is the old case stated?
MR BELL: Well, there have been several, Your Honour. It is
the last one that my instructing solicitors filed,
but I can have a copy - - -
HIS HONOUR: I think I do have that. MR BELL: Yes. If I can ask Your Honour to go to page 10 of
that document.
HIS HONOUR: Well, it is not page 10 that I have got. It is
a paragraph beginning - I am sorry, I do not have
it.
MR BELL: I will hand you a copy, Your Honour. If Your Honour could go to page 10 of that document. I am referring to the case stated which was filed
in accordance with Your Honour's directions. It is the last case stated that was delivered on behalf
of my client to the parties. If I could askYour Honour to underline these parts of it in order to show the difference between the material
included in Your Honour's draft and this draft. If Your Honour could go to paragraph 6(2) on page 10, and at the bottom if Your Honour could underline
the words "and considers Australia to be his permanent home." If Your Honour could underline
the whole of paragraph (6) on page 11, the whole of
paragraph (7) on page 11 and 12, the whole of
words "in 1989" in line 2 - if Your Honour could paragraph (10) on page 13; in paragraph (11) the underline that - and in the second-last line, underline the words, "On 7 August 1989". If · Yo'ur Honour could underline the whole of
paragraph (12). The parts that Your Honour has
underlined are parts that Your Honour has excluded
in the proposed draft. They are not contentious questions of fact. The only issue that arises in relation to the questions concerns the relevance of
them.
On the whole, Your Honour, they are matters
that go to the intention of the third respondent in
becoming a naturalized Australian citizen; his
current state of mind in relation to his commitmentto Australia as against Greece, in certain
Sykes(3) 18 10/8/92 respects, including such respects as standing for
public office, both at the local and federal level,
and matters of that kind.
In relation to that category of material,
Your Honour, I submit that there are two grounds
upon which that material might be relevant. The
first is that in so far as it is alleged that the
third respondent is under an allegiance to Greece,
the question of whether a person is under an
allegiance may well involve subjective
considerations and certainly, if the indication
given by the Court in In re Wood is followed, will
involve questions whether or not there has been avoluntary and intentional act carried out, such as would place the person under the allegiance to the foreign power concerned.
The material to which I refer is contrary to
any such suggestion and, if taken into account,
would tend to spell against a finding that he was
under allegiance to a foreign power, and on that
basis I would invite Your Honour to include the
material.
HIS HONOUR: The only question I raise is you seem to be
answering an allegation that is not made.
MR BELL: I am aware of that, Your Honour, and that may be the answer, but I am also wishing to be abundantly
cautious as Your Honour was earlier and not to
leave matters in doubt where they are undisputed,
and it is an undisputed fact that the third
respondent has done the things that are set out in
the case stated and has the subjective attachment
to this country which is spelled out in the case
stated and has terminated in the respects specifiedin the case stated his allegiance to and his
attachment to Greece.
In those circumstances, Your Honour, the third
respondent should get the benefit of the positive
facts which are undisputed in so far as they may be
r~levant to such conclusion as the Court wishes to
come.
HIS HONOUR: Do we have to go into it at this length? Can you not devise, if it is not disputed, some all
encompassing sentence which would cover all that
you - without the emotional overtones which seem
inappropriate for a case stated; something which
says that this particular respondent has, since his
becoming of an Australian citizen, done nothing
which would - I do not want to do it on the run,
but an all comprehensive sentence to cover it
without going through all this ground?
Sykes(3) 19 10/8/92
MR BELL: Yes. HIS HONOUR: I mean, it is not you who in the end will be
criticized for the case stated, but me.
MR BELL: Your Honour might be criticized for including it and I might be criticized for agreeing to its
exclusion.
HIS HONOUR: I do not want you to do it on your feet. MR BELL: It is not as simple as that, Your Honour, with
respect, and I will say why in a moment, but
Your Honour's observation would at least suggest
that paragraph (10) on page 13 might be included.
Now, my learned friend, Mr Fajgenbaum, says
that is all we need, but it is not as simple as
that, Your Honour, and it is for this reason - - -
HIS HONOUR: Well, I think you could even cut out "to his
knowledge" there; just "has not" - there is no
dispute about it - "done any act, made any
statement or acted in any manner which would place
him under any acknowledgment - - -". It would seem
to be fairly comprehensive, but if you want to add
something to that, Mr Bell - would you like to give
it some thought?
MR BELL: Your Honour, I think it is a matter for argument at the end of the day, and I positively submit that
the whole of paragraph (7), for example, should be
included. I take Your Honour's point about the emotional overtones, and there may be some way of
expressing the language in a different - - -
HIS HONOUR: It is not only that, Mr Bell. What he
considers in one sense, of course, is not an
objective fact and not relevant. I know the way you put it, that his own particular feelings
may - - -
MR BELL: Well, they may, Your Honour, and there is
authority for the proposition to which I should
refer immediately because it is on this basis that
I put it, and I refer Your Honour to the case of
Nottebohm which is a case of the International
Court of Justice reported in the reports of that court but set out in Harris's book, Cases and
Materials on International Law, at page 563. It is
a decision of that court in 1955 on the question.
If I could hand to Your Honour a copy of that, and
I have copies for the parties.
Your Honour, this case concerns a dispute on
the international plane between Guatemala and
Liechtenstein. As a preliminary question, the
Sykes(3) 20 10/8/92 court needed to decide whether or not a
Mr Nottebohm was a national of Liechtenstein who
had raised the dispute in the court against
Guatemala.
The person, Mr Nottebohm, was, according to
the laws of Liechtenstein, a citizen and therefore
a national, but the court was invited to conclude
that he nevertheless was not a national for the
relevant purpose on the basis that the person
lacked the necessary connection with the country to
be a national of the country.
The approach of the court is set out on
pages 565 and 566 of the report, and at the bottom,
at point 9, the court states as follows:
International practice provides many
examples of acts performed by States in the
exercise of their domestic jurisdiction which
do not necessarily or automatically have
international effect, which are not
necessarily and automatically binding on other
States or which are binding on them only
subject to certain conditions: this is the
case, for instance, of a judgment given by the
competent court of a State which is is sought
to invoke in another State ....
International arbitrators have decided ...
numerous cases of dual nationality, where the
question arose with regard to the exercise of
protection. They have given their preference
to the real and effective nationality, that
which accorded with the facts, that based on
strong er factual ties between the person
concerned and one of the States whose
nationality is involved. Different factors
are taken into consideration, and their
importance will vary from one case to thenext: the habitu·a1 residence of the individual
concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc. There are other statements to like effect in
the judgment, Your Honour, but I might also refer
to what is said by the court at the top of page 568where the court states, at point 2:
Naturalization is not a matter to be
taken lightly. To seek and to obtain it is not something that happens frequently, in the
life of a human being. It involves his
Sykes(3) 21 10/8/92 breaking of a bond of allegiance and his
establishment of a new bond of allegiance. It
may have far-reaching consequences and involve
profound changes in the destiny of the
individual who obtains it. It concerns him
personally, and to consider it only from thepoint of view of its repercussions with regard
to his property would be to misunderstand its
profound significance. In order to appraiseits international effect, it is impossible to
disregard the circumstances in which it was
conferred, the serious character which
attaches to it, the real and effective, and
not rely the verbal preference of the
individual seeking it for the country whichgrants it to him.
Your Honour, if this case was regarded as
relevant for the purpose of determining what the
Constitution means where the word "citizen" and
"national" are used in section 44, then the Court
may take into account the kinds of considerations
that are referred to in that judgment in order to
identify what is the effective nationality of my
client and, indeed, the second respondent. But in
so far as my client is concerned, it is to that
question that paragraph (7) goes.It is material, Your Honour, I, of course, agree that speaks of the emotions of the individual
and it was with some trepidation that I took the
instructions and drew the material for that reason.
But, Your Honour, I have to submit to you that it
is at least open to the Court, on the basis of that
authority, which has been followed in subsequent
cases by the International Court of Justice, that
the material should remain.
HIS HONOUR: Would it not be possible to summarize that in some more all-encompassing -
MR BELL: Yes, I am sure it would be, Your Honour. HIS HONOUR: Which gives it more of an appearance of objectivity, if I may say. In terms of, if you
like, to go to the decision to which you have
referred me, would it not be possible simply to say
something such as, "His centre of interest, his
family ties, his participation in public life, and
his attachment is now to Australia and not Greece"?
MR BELL: Yes.
HIS HONOUR: I mean, in general terms? MR FAJGENBAUM: I am sure it would be, Your Honour.
Sykes(3) 22 10/8/92
HIS HONOUR: Maybe we can adjourn for a short - not now, but if that is the only outstanding matter, for you to
formulate a sentence which would eliminate what
does appear to be a somewhat inappropriate matter
in paragraph (7).
MR BELL: Yes, Your Honour. HIS HONOUR: And you may make it as all-encompassing as you wish.
MR BELL: Yes, Your Honour. Your Honour, I am content with that.
HIS HONOUR: And paragraph (10) could be incorporated in a
statement such as that. No one is objecting to that.
MR BELL: Yes. HIS HONOUR: There is no reliance placed upon
Mr Kardamitsis's position as a councillor other
than, of course, he has sworn some oaths which are
relevant. Is that right?
MR BELL: Yes. I am not sure whether my learned friend, Mr Fajgenbaum is making any allegations - I heard
what he said before in relation to withdrawing the
councillor point.
HIS HONOUR: We will come to that in the draft petition in a moment.
MR BELL: We will come to that. But in relation to this, Your Honour, from our point of view, Your Honour is
correct, but he swore the oaths in 1989 as well as
in 1991 and if he swore two then the Court, with
respect, should be told so.
HIS HONOUR: All right. Well, we can make that correction
when we come to it.
MR BELL: And if Your Honour would include that I would be grateful.
HIS HONOUR: Paragraph (12) - - -
MR BELL: Now, Your Honour, might remember from the affidavit of Mr Venizelakos that he sets out the
circumstances in which a person might seek
permission even after becoming a national of a
foreign country, that is to say, a country otherthan Greece, for a termination of the Greek
nationality, and Your Honour might also recall that
in that affidavit Mr Venizelakos states that
permission will not be given if the person has
outstanding taxes, is a felon or wanted on a charge
Sykes(3) 23 10/8/92 or is liable to serve national service or something
of that kind.
Now, Your Honour, we wish to make it clear
that there is no basis other than ignorance of the
availability of the mechanism for Mr Kardamitsisnot adopting that mechanism and, of course, now it
is too late.
HIS HONOUR: Yes, I see.
MR BELL: So, we therefore would want subparagraph (12), page 14, to be included.
HIS HONOUR: Could we just clarify the language, "he had no idea"? Would it not be sufficient, "he did not
know"?
MR BELL: Yes, of course, Your Honour.
HIS HONOUR: I will ask for other views on that. So, subject to you reframing what appears - there is no
objection, gentlemen, as to paragraph (6)? Well,
you perhaps do not have that in front of you. That holder of a Greek passport which he surrendered to the government of Australia when he became an Australian citizen". There is no objection to
a paragraph beginning, "At the time of becoming an
that, is there?
MR BELL: I am sorry, Your Honour, that is a
subparagraph (6). I was looking - - -
MR FAJGENBAUM: No, Your Honour. HIS BORENSTEIN: No. HIS HONOUR: Well then, would you formulate amendments to go
in incorporating subparagraph (6), a reformulated
version, which will be very much shorter, of paragraph (7) and subparagraph (10) and paragraph
( 12) .
MR BELL:· Paragraph (12) needs to be reworded, Your Honour?
HIS HONOUR: No, it does not need to be reworded. It is paragraphs (6); reworded paragraph (7);
paragraph (10), which may be included in the
rewording; and paragraph (12). Now, can youformulate those in some comprehensive form?
MR BELL: Yes, of course, Your Honour. HIS HONOUR: And I suggest you adopt the wording of the case that you have cited.
Sykes(3) 10/8/92 MR BELL: Yes, Your Honour. Yes, I have taken Your Honour's
point.
HIS HONOUR: And we can adjourn for that purpose when
necessary. We can cover the points in relation to local government when we come to them in the
petition.
MR BELL: Yes, Your Honour. There is one further submission
I need to make and it goes to the fact that the
third respondent has sworn another oath of
allegiance and the proposed paragraph relying upon
that has been given to Your Honour and circulated
among the parties.
HIS HONOUR: I think that appears in the petition, does it not? There is a paragraph relating to an oath as a
justice of the peace.
MR BELL: Yes, I am sorry, Your Honour. This is more
comprehensive because it specifies the acts
pursuant to which these things were done, but
perhaps I should raise it at that time.
HIS HONOUR: We can come to that when we come to it, all
right? Now, are there any observations from anyone else at the bar table in relation to Mr Bell's
submissions. Mr Fajgenbaum?
MR FAJGENBAUM: No, Your Honour. HIS HONOUR: Mr Borenstein?
MR BORENSTEIN: No. HIS HONOUR: Mr Rose?
MR ROSE: No.
HIS HONOUR: Very well, we go back to page 18. And you may have regard to paragraph 42, in what appears there,
when you are formulating your condensed version, Mr Bell.
MR BELL: Yes, Your Honour.
HIS HONOUR: And there is the suggestion at the end of what
appears as paragraph 42, that it should be
inserted, "The Third Respondent does not hold acurrent Greek passport", is that correct? MR BELL: Yes, it is. There is that suggestion,
Your Honour.
HIS HONOUR:
Well, that should go in. No one objects to that? Very well.
Now, we come to page 19.
Sykes(3) 25 10/8/92
MR FAJGENBAUM: Your Honour, before departing from page 18, might I ask my friend - Your Honour, what I am
concerned about is paragraph 43, the last sentence,
in which it is said that, "The Third Respondent has
never ..... stood for office in Greece or
voted" - - -
MR BELL: Or registered to vote. MR FAJGENBAUM: "or been required to vote in an election in Greece." There are some legal assumptions in the
last clause there and it may be, as my learned
friend says, simply to state that he has never been
registered as a voter.
HIS HONOUR: Well, that would satisfy you, would it not,
Mr Bell?
MR BELL: Yes, it would, or words to that effect.
HIS HONOUR: Or "recorded as a voter". MR FAJGENBAUM: Yes, Your Honour.
HIS HONOUR: "Never been recorded as a voter". Page 19, what appears as paragraphs 46 and 47 would seem to
be accurate. Now, is this where your other suggestion, Mr Bell, comes in? The dates?
MR BELL: Yes, it is.
HIS HONOUR: "At a poll held on 3 August 1991 the Third Respondent was elected as" - he was elected
previously, was he?
MR BELL: Yes, it is "in 1989" as well.
HIS HONOUR: You do not know the date of the poll then? MR BELL: No, I do not, Your Honour.
HIS HONOUR: So, it would be enough to say, "At polls held in 1989 and 1991" - - -?
MR BELL: Yes, Your Honour.
HIS HONOUR: - - - "the Third Respondent was elected as a
councillor for the Centre Ward of the Coburg City
Council"?
MR BELL: I do not think the "Ward" matters, Your Honour.
HIS HONOUR: Cut that out: "as a councillor of the Coburg City Council pursuant to Part 3 of the Local
Government Act ..•.. for a term of three years".
MR BELL: Yes, Your Honour.
Sykes(3) 26 10/8/92
HIS HONOUR: And, "On each occasion upon which he was elected the Third Respondent pursuant to section 63
of the Local Government Act made the following
declaration", is that all right?
MR BELL: I would just seek instructions that they were the same, Your Honour. In one he was "Bill". They are
the same, Your Honour, and have been set out as so
on page 14 of our original document.
Could Your Honour go to page 14 of my draft
document?
HIS HONOUR: Yes. MR BELL: Your Honour will see the terms of the oaths of allegiances set out, and they are in slightly
different form. Your Honour was referring to the declarations before but I do wish to point out that
the oaths, which are the relevant things, are
different.
HIS HONOUR: Well, can you formulate new paragraphs at the
same time as you - - -
MR BELL: Yes, I can.
HIS HONOUR: Because it is not in dispute.
MR BELL: No, it is not contentious, Your Honour. HIS HONOUR: And if you do that then that will satisfy you. There is no comment about that, is there, gentlemen?
MR FAJGENBAUM: No, Your Honour. HIS HONOUR: Paragraph 48, as it is numbered, does not seem
to me to be relevant in the circumstances. Is there any reason why that should be included? No reliance is placed on it.
MR BORENSTEIN: No, Your Honour. HIS HONOUR: Very well, that should go out. Paragraph 49A
raises the question of the oath as a Justice of the
Peace.
MR BELL: The only difference, Your Honour, is that I have set out in the proposed new form the legislation
that is applicable and I have proposed the annexureof the certificate of administration of oaths.
HIS HONOUR: And you can make that available? Do you have that there?
Sykes(3) 27 10/8/92
MR BELL: Yes, I do. I have that available and give copies
to the Court and to the other parties.
HIS HONOUR: More importantly, to the petitioner who has to prepare the case stated.
Well now, can you, at the same time as you
amend the other paragraphs, amend that?
MR BELL: Yes, Your Honour, I can.
HIS HONOUR: And we can consider that later. Well now, what is the position, Mr Fajgenbaum, with the fourth
respondent?
MR FAJGENBAUM:- Your Honour, my own inclination is to delete
the references on the basis that the Council is not the Crown but my learned friend, Mr Bell, is rather
anxious that those aspects of the case remain
behind because, as he says, it is a burning
political issue in this country as to whether the
local councillors are entitled to stand for Federal
Parliament.
HIS HONOUR: But if you are not relying on the receipt - it is only in relation to whether a person is holding
an office under the Crown?
MR FAJGENBAUM: Yes.
HIS HONOUR: But it is an office of profit we are concerned - - -
MR FAJGENBAUM: It is an office, yes, Your Honour. HIS HONOUR: So, if you are not pursuing the matter on the basis that Mr Kardamitsis held an office of profit,
as I understand it, because you have deleted
references to any expenses - - -
MR FAJGENBAUM: Mr Kardamitsis resigned before the elections, Your Honour.
HIS HONOUR~. I see, he did resign before? MR FAJGENBAUM: Yes, Your Honour.
MR BELL: Yes. It is about the fourth respondent that the
issue arises, Your Honour.
HIS HONOUR: I did not appreciate that. I see, so you want to leave that in.
MR BELL: There is the other issue, Your Honour, about
discretion in relation to what should happen in the
event that the Court holds that the election was
Sykes(3) 28 10/8/92 not void but that the first respondent was not duly
elected.
HIS HONOUR: Well, if it is still an issue, we will leave it
in.
MR FAJGENBAUM: Your Honour, perhaps it might be safest to leave it there, recognizing that we may have no
passion about it at the end of the day.
HIS HONOUR: I think that is quite likely. Anything else on
page 20, apart from typographical errors? Page 21:
there is the paragraph which is unnumbered whichsomeone seeks to add to the end, beginning, "The candidate, David Ewan Mackay, representing the Australian Democrats- - -", that is your - - - MR BORENSTEIN: Yes, we did ask for that, Your Honour. In
fact, we had sought to have it included at the end
of the material relating to the various candidates
and immediately preceding the section headed
"Questions Reserved for Consideration". It is a
matter that we had sought to have included
essentially on the same basis as Mr Bell has just
mentioned, the material about Ms Rawson, and that
is that if the Court was looking at the question
of what to do if Mr Cleary was found to be
ineligible, one of the factors that the Court may
wish to take into account or weigh in the balance
might be what reliance can be placed on the votes
that were cast for other candidates, having regard
to the way in which candidates directed their
supporters to vote.
HIS HONOUR: But what has the directive got to do with
anything? We do not know whether anyone followed it.
MR BORENSTEIN: Obviously, Your Honour, there is no way of
proving that any particular individual declined to
vote for Mr Mackay and redirected the vote to
Mr Cleary simply on the basis of that direction but we would submit that it might be - given that the
directive was publicly made and given that there
was a significant change in the result for thatparticular party, from one election to the next,
the Court may find that of some assistance in
exercising its discretion. The Court may give it
no weight at all but it was a factual matter that
we thought ought be placed before the Court to give
whatever weight the Court thought was appropriate.
HIS HONOUR: Yes. What do you say, Mr Fajgenbaum?
MR FAJGENBAUM: We say it is irrelevant, Your Honour. If
there are factual matters, then some people who did
give their first preferences to the Australian
Sykes(3) 29 10/8/92 Democrats ought to be examined as to what their
voting - - -
HIS HONOUR: I suppose you can always say it is irrelevant
even if it goes in. Do you have anything to say about that, Mr Bell?
MR BELL: I have no comment. HIS HONOUR: Mr Rose, what do you say about the figures that appear in that paragraph or proposed paragraph?
MR ROSE: If Your Honour pleases, I do not have any
instructions about those figures but we can get
them fairly promptly.
HIS HONOUR: They can be obtained, can they? MR ROSE: Yes.
HIS HONOUR: Very well. I do not know that that is the most appropriate place for that paragraph.
MR BORENSTEIN: It is certainly not the most appropriate
place, Your Honour. We would have thought right at the end of the case stated before the question is
asked.
HIS HONOUR: Well, this is right at the end.
MR BORENSTEIN: Not on my copy, Your Honour.
HIS HONOUR: I see. Well, that is where I have got it. So,
you think that is the appropriate place, very well.
I will allow it to go in subject to the percentages
being checked.
MR BORENSTEIN: Yes, Your Honour.
HIS HONOUR: You do not dispute the fact, do you,
Mr Fajgenbaum? You just say it is irrelevant.
MR FAJGENBAUM: No, we do not dispute the fact. HIS HONOUR:' And you do not dispute it, do you?
MR BELL: I have no comment. I do not dispute the fact, no, Your Honour.
HIS HONOUR: I want to say it is an agreed case at the end,
that is the purpose of that question. Now, the next part, Mr Fajgenbaum, are some facts in
relation to the petitioner. I must say that I do not see much relevance in those facts.
Sykes(3) 30 10/8/92 MR FAJGENBAUM: Well, either do we, with respect,
Your Honour. But other parties want those facts in
and - - -
HIS HONOUR: Which other parties? MR FAJGENBAUM: Mr Bell, I think, is the prime candidate,
Your Honour.
MR BELL: Well, that is partly true.
HIS HONOUR: It could make no difference to anything at all, can it?
MR BELL: Not quite, Your Honour, with respect. There is only one fact that we think should be stated of
these and that is the fact stated in
subparagraphs (5) and (6), that "The
Petitioner ••... is not a citizen of Australia."
And, "at all material times" has been "a citizen of discretion in relation to what the Court may order
the United Kingdom", is not qualified to stand
under the Commonwealth Electoral Act for the office
of federal - member of the House ofshould happen in the event that the case succeeds
against the first respondent.
HIS HONOUR: Are you contending the petition is a nullity
because his - - -?
MR BELL: No, Your Honour, and Your Honour will recall that the petitioner was entitled to vote at the election
and therefore under the Commonwealth Electoral Act
is entitled to bring the petition on that ground.
HIS HONOUR: So, (5) and (6) is what you - - -?
MR BELL: But (5) and (6), I submit, should stay in and it is because the Court would not wish to make any
orders in relation to a special count or otherwise
which might contemplate the election of an unqualified person who Mr Sykes is.
HIS HONOUR:" It would seem very unlikely, looking at the
voting list, would it not?
MR BELL: Yes, it would be unlikely, Your Honour, but - - -
HIS HONOUR: But, nevertheless - well, if you want those
two, (5) and (6) in, the rest does not seem to
matter.
MR FAJGENBAUM: Your Honour, if (5) and (6) does go in, Your Honour, might, out of an abundance of caution,
Your Honour also state that Mr Sykes was entitled
to vote at the election.
Sykes(3) 31
HIS HONOUR: I think we have, Mr Fajgenbaum. It is early in the piece. It is paragraph 16.
MR FAJGENBAUM: If Your Honour pleases.
HIS HONOUR:
Very well, we will include subparagraphs (5) and (6) but not the other material.
I suggest,
gentlemen, although I did not include it originally
but since a question may arise, that we add (d) to
the "Questions Reserved for Consideration". "Who should pay the costs of the Petition?" Does anyone
have any objection to that going in?
MR FAJGENBAUM: Your Honour, may I have a word with my friends about that? Your Honour, what I was
canvassing with my friends at the bar table was
whether costs were in fact a real issue in this
case because of the fact that they are - as the
case has now been brought forward, there is a realpublic interest in having each of these questions
determined. It is something that is larger than
the particular election concerned, and I think all
of us at the bar table are on legal aid in some - -
HIS HONOUR: Not the Commonwealth, presumably. MR FAJGENBAUM: Other than my friend
MR ROSE: Not on the receiving end. MR FAJGENBAUM: - - - Mr Rose's client who may be in the
greatest need. I do not know. But be that as it may - - -
HIS HONOUR: But the real question, it seemed to me, whether the Commonwealth should be ordered to pay the costs
or not. That would be the issue, would it not?
MR BELL: Perhaps stated that way. HIS HONOUR: If there is no agreement about that, and I do
not imagine there is at the moment - - -
MR FAJGENBAUM: Your Honour, what we are concerned about is to avoid a situation where the petitioner, and
certainly the respondents - certainly Mr Bell's
client and I suspect Mr Borenstein's client, do not
want to be exposed to the risk of costs,
Your Honour.
HIS HONOUR: Well, they will anyway. All I was seeking to
do by placing the question there is - I notice in
In re Wood, for instance, that the party had to
come back before a Full Court a second time to have
the question determined.
Sykes(3) 32 10/8/92 MR FAJGENBAUM: Yes, Your Honour. Yes, I saw that.
HIS HONOUR: And it seemed to me that it would be in the interests of economy desirable to have the Court
determine that question, if it could and if it
wished to, when the matter is being heard. It
could do no harm.
MR FAJGENBAUM: No. If it is an invitation, it can be declined, Your Honour.
HIS HONOUR: Well, that is right, yes, of course. Very
well, we will add "(d) Who should pay the costs of the Petition?"
MR BELL: Your Honour, could I ask one thing? HIS HONOUR: Yes, Mr Bell.
MR BELL: Paragraph 54(c) would, I take it, Your Honour,
include consideration of the question what should
happen, for example, should there be a special
count to identify a person who might be declared tobe duly elected?
HIS HONOUR: Yes, it was intended to and I think it does. What I have done is formulate the questions in
terms of the relief which, under the Act, the Court
can grant.
MR BELL: Yes, I see that. HIS HONOUR: But I do not anticipate that it means that the Court would do the recount. In fact, what would happen would be they would indicate the person who, upon a recount, receives the requisite number of votes. That is what I had in mind.
MR BELL: Thank you, Your Honour. Your Honour, paragraph 54(a), I take it, would include a
consideration of the relevant time upon which the person must be capable of being chosen or of
sitting because the question cannot be answeredot.herwise?
HIS HONOUR: I am sorry, I do not follow that. MR BELL: The Constitution says that the qualifications must be satisfied at the time the person is chosen or
sits. So, the question of when that will be, which
is a question that is at large - the parties have
different views about when a person is chosen, for
example, and that is why, Your Honour, in my
original draft I drew it in terms in
subparagraph (1) on page 18: "What is the material time upon which a person must satisfy section 44 of
the Constitution to be capable of being chosen or
Sykes(3) 33 of sitting as a member of the House of
Representatives?", because the facts in the
instant - - -
MR FAJGENBAUM: That is raised by (a).
HIS HONOUR: As I understand it - I do not have the Constitution before me, Mr Bell, I have the Act,
certainly - under a petition under Part 1, the only
thing that can be determined, am I not correct, is
whether a person was duly elected. The
qualifications for a person to sit are under the
other part, are they not?
MR BELL: Your Honour has determined that in Your Honour's decision on the preliminary point that it is
competent to raise questions as to qualifications
in this inquiry.
HIS HONOUR: That is qualifications for being chosen, yes.
MR BELL: And it is for that that I direct myself, and I take Your Honour's point that I did refer to
sitting earlier, but it is in relation to being
chosen that the issue arises. In the instant case,
the resignation from the position, to use a neutral
word, of "teacher", took place after polling day
but prior to the declaration of the ballot. So that a question will arise, "What is the date upon
which a person is chosen?", and I just confirm,
Your Honour, that your paragraph 54(a) raises the
point.
HIS HONOUR: Well, it is intended to. Do any of the other parties contend to the contrary?
MR FAJGENBAUM: No, Your Honour. I thought it was a 'critical issue, the timing of the choosing in this
case.
HIS HONOUR: In the end, what one has got to decide is the validity of the election. That is all that the
Court has power to do under section 360.
MR FAJGENBAUM: Whether the candidate was constitutionally
eligible at the time he was chosen.
HIS HONOUR: Yes. Very well, as long as the parties are agreed that that is what was intended by the
question, there should be no difficulty.
Now, that means there are two matters
outstanding; that is your reformulation in a much
shorter form of the matters you wish to raise,
Mr Bell - - -
MR BELL: Yes, Your Honour.
Sykes(3) 34 10/8/92
HIS HONOUR: - - - and the checking of the percentages in
that last paragraph, Mr Rose. What should I do? Adjourn until - do you want to say something?
MR BORENSTEIN: There is a third matter outstanding but not
something to be done during an adjournment. We have an affidavit to file.
HIS HONOUR: Well, that will be a mechanical thing, I should
imagine and we will not need to sit again. The programme is that the petitioner prepare - once all
this is settled - the case stated and then submit
it for me to sign in the form in which it isagreed, and then there is a timetable which you are
all aware of after that.
MR FAJGENBAUM:
Yes. need special directions as to outlines of argument.
My friend, Mr Bell, asks whether we
I presume the normal rules of the Court would apply
in these circumstances?
HIS HONOUR: Not more than three pages, a specified time
before the hearing. I might say that the three-page rule is more honoured in the breach at
the moment, but still.
Very well. Now, what should I do, gentlemen?
Should I adjourn until 2.15?
MR FAJGENBAUM: That might be the most appropriate, Your Honour.
HIS HONOUR: Does anyone have any other suggestion? MR FAJGENBAUM: My instructor thinks it may not be necessary to resume in Court because we will probably agree,
but I think out of an abundance of caution
Your Honour ought to sit -
HIS HONOUR: I think I ought to sit again to make sure that
it is - - -
MR FAJGENBAUM: - - - and perhaps those who feel no need to attend, will not.
HIS HONOUR: No, I think the parties ought to attend if it is not inconvenient because I want to get a clear
indication of agreement to the case stated.
MR FAJGENBAUM: Yes, Your Honour.
HIS HONOUR: Very well, the Court will be adjourned until 2.15.
AT 10.59 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
Sykes(3) 35 10/8/92 UPON RESUMING AT 2.16 PM:
HIS HONOUR: Mr Rose, I think, first of all: have you been able to check the first figures?
MR ROSE: Yes, Your Honour. I am instructed that the correct percentage - in the first of those
percentages it is stated as 11.3 in the paragraph -
is 9.58.
HIS HONOUR: 11.3 and - - -?
MR ROSE: 11.3 is to be changed to 9.58, and the second figure remains at 2.17.
HIS HONOUR: Well now, Mr Fajgenbaum, what do you have to
say about that?
MR FAJGENBAUM: Nothing, Your Honour.
HIS HONOUR: So, it does become 9 .. 58? Mr Borenstein? MR BORENSTEIN: I have nothing to say. HIS HONOUR: Mr Bell? MR BELL: Nothing to say, Your Honour.
HIS HONOUR: So, it reads: "The proportion of the total votes cast in favour of the Australian Democrats in the immediately preceding election for the House of Representatives in the Division was 9.58%, while
the proportion of total votes cast in favour of the
Australian Demoncrats in the Election was 2.17%"?
MR ROSE: "in the 1992 Election".
HIS HONOUR: Well, "the Election" is defined. MR ROSE: Yes, I am sorry, yes.
HIS HONOUR:. Now, the next matter was your's, was it not, Mr Bell?
MR BELL: Yes, it was, Your Honour, and I have prepared an
amendment picking up the matters raised by
Your Honour.
HIS HONOUR: Have you given copies to the other parties? MR BELL: I have distributed it, Your Honour. HIS HONOUR: Yes. Are there any comments about those
amendments, gentlemen?
Sykes(3) 36 10/8/92 MR FAJGENBAUM: Yes, Your Honour. They suffer from the same vice, with respect, that the earlier proposed
statement of facts to be included in the stated case suffered but, in any event, if Your Honour disagrees with me there, the proposition at the
bottom of the first page, over to the top of the
second page, that, "in becoming an Australian
citizen, he took a conscious and serious step which
involved his breaking his bond of allegiance with
Greece." Well, with respect, Your Honour, that is
a question of law to be perhaps governed by Greek
law and not really a matter of - - -
HIS HONOUR: Yes, I take the point. You would be satisfied,
"which he believed", would you not, Mr Bell?
MR BELL: Yes, I would be satisfied with that, Your Honour. HIS HONOUR: Anything else, Mr Fajgenbaurn?
MR FAJGENBAUM: Yes, Your Honour, I am not sure that it matters but in the last sentence of that paragraph,
Your Honour, half-way down page 2, it ought to be recorded that Mr Kardamitsis, as has been said
earlier, has, in fact, visited Greece since his
migration, on several occasions.
MR BELL: That could be inserted, Your Honour.
HIS HONOUR: Well, we will do it now so we know where we
are: "save for visits to Greece on several occasions, he has" - - -
MR FAJGENBAUM: If Your Honour pleases. They are the only
matters we wish to raise.
HIS HONOUR: You are, of course, free to dispute the ·relevance of all of this, but you do not dispute
the facts that are set out?
MR FAJGENBAUM: We have no basis for disputing them. There are a lot of private facts, as it were, stated
there and one can only dispute them by
cr.oss-examination.
HIS HONOUR: And by agreeing to the case stated, you do not necessarily have to agree to anything, it is just a
matter of -
MR FAJGENBAUM: They are, as Your Honour said earlier, your facts, as it were, rather than - - -
HIS HONOUR: Very well.
MR FAJGENBAUM:
But they are facts which raise the central issue. If Your Honour pleases.
Sykes(3) 37 10/8/92
HIS HONOUR: Very well. Mr Borenstein?
MR BORENSTEIN: I have nothing to say, Your Honour. I am content to have this document go in as it has been
amended.
HIS HONOUR: Yes, very well. Mr Rose?
MR ROSE: I have nothing to say on it. MR BELL: Your Honour, as a matter of language, the last sentence in paragraph 43A might best read, "save
that he has visited Greece on several occasions", I
think, was Your Honour's language, "and that he has
some family and friends in Greece", picking up the
qualification which now appears at the end of the
sentence: "he has severed his links with Greece"
et cetera.
HIS HONOUR: Well, those amendments can be made. There are
some logistics involved in getting this into a
proper order but is anyone unclear as to what it
now is, the case stated?
Well then, can I take it that in the form which we have settled this morning and this
afternoon, the case stated is agreed amongst the
parties?
MR FAJGENBAUM: Yes, Your Honour.
MR BELL: Yes, Your Honour.
MR ROSE: I am sorry, Your Honour, to raise a point at this
late stage. I think, at least,some of the parties have been under the impression that the book for
the Court would contain the affidavits about the
foreign law.
HIS HONOUR: Yes. MR ROSE: If the book is not to contain those affidavits, there is a question which I would wish to bring to
Your Honour's attention and that is that in
paragraph 44 of the case stated, as it stands - - -
HIS HONOUR: Just stopping there, I think it is not
appropriate, Mr Rose, that it should. I have to find the facts one way or another and the affidavit
is the basis on which I find them.
MR ROSE: Yes. Well, in that case if I can take Your Honour to paragraph 44 to indicate the point on which
there had been some discussion. The first sentence: "Under the law of Greece a Greek national can have his Greek nationality discharged
under certain conditions. The Third Respondent has
Sykes(3) 38 10/8/92 not sought to have his Greek nationality so
discharged" et cetera. Now, if it were to be the case that the Court were to find a test in relation
to section 44 of the Constitution under which itwas necessary to ask whether the third respondent
had done all that he could to discharge his Greek
nationality, it would be relevant to inquire intowhat those conditions were. If some of them were
conditions that he could not possibly have complied
with, then the position could be different from
what they would be if they were conditions that he
could have complied with.
So, the point in our mind is whether it would be desirable to spell out, by taking the words from
the affidavit in the affidavit in question, as the
point would apply to Mr Delacretaz as well in
relation to the Swiss nationality - just by taking
the words from the affidavit and spelling out those
parts.
HIS HONOUR: I will have to locate the affidavit, Mr Rose. MR ROSE: The affidavit, the one in relation to Greek law, by Dr Venizelakos.
HIS HONOUR: Now, the particular words you are pointing to - - -
MR ROSE: Well, Your Honour, we would think that the effect
of it can be summarized by omitting the words
"under certain conditions" from that first sentence
in paragraph 44 and substituting: "(a) if he has
acquired the nationality of another country with
the permission of the appropriate Greek Minister;
or - new line - "(b) if he has acquired the
nationality of another country and later obtains
the approval of the appropriate Greek Minister to
the discharge of his Greek nationality."
HIS HONOUR: Yes. MR ROSE: And my learned friend, Mr Fajgenbaum, has suggested, and I agree, that the last words in
paragraph 7 of the affidavit be included: "the discharge of the nationality becomes effective from
the grant of such permission and not from the dateof the acquisition of the foreign nationality."
That is in the case of paragraph (b).
HIS HONOUR: So, it reads - this will be paragraph 44:
delate the words "under certain conditions" in the
first line and add "(a) if he has acquired the
nationality of another country with the permission
of the appropriate Greek Minister; or (b) if he has
acquired the nationality of another country and
later obtains the approval of the appropriate Greek
Sykes(3) 39 10/8/92
•
Minister to the discharge of his Greek nationality.
The discharge of such nationality becomes effective
from the date of such permission and not from the
date of the acquisition of foreign nationality."
That is the suggestion.
MR FAJGENBAUM: Perhaps we ought to identify the Minister as the Minister for the Interior because he is
identified as such, both in the statute as it is
translated in paragraph 6 of Mr Venizelakos's
affidavit and also so identified in paragraph 7
from which these facts are being taken.
HIS HONOUR: Does it matter? MR FAJGENBAUM: Not really. HIS HONOUR: I think it is probably better to leave it in general.
MR FAJGENBAUM: Your Honour, perhaps to demonstrate the formality of it, there is a sentence over on page 4
of the affidavit - perhaps that ought to go in
too - that the decision is not effective until
publication in the Government Gazette.
HIS HONOUR: Well, is anything going to turn on that?
MR FAJGENBAUM: Well, it demonstrates the formality of it
all in the same way as we need publication of
certain instruments of government in this country,
before they can be effective in some instances.
HIS HONOUR: But no one is suggesting that permission was granted in this case, are they?
MR FAJGENBAUM: No.
HIS HONOUR: No. I do not think that matters very much. Mr Rose?
MR ROSE: I have one minor suggestion, Your Honour. Those further words in relation to the date of effect
apply only to paragraph (b) and I assume
Your Honour is - - -
MR FAJGENBAUM: No, (a) and (b). MR ROSE: Well, with (a) the permission is given before the
acquisition of nationality. I have taken this effect to apply only in the case of (b) where the
permission is granted after the nationality has
been acquired.
MR FAJGENBAUM: Yes, that is right, sorry, yes. HIS HONOUR: So, it should read - - -
Sykes(3) 40 10/8/92
MR ROSE: It is really the approval under (b) that we are talking about, not permission, so I would suggest
we - it is permission in (a) and approval under
(b), and what we are talking about now as regards
the date of effect applies only to the approval
under (b).
HIS HONOUR: Well, we would put it: "the discharge of such
nationality in the latter case" - - -
MR ROSE: "- - - becomes effective", et cetera. HIS HONOUR: Yes, "becomes effective from", does that answer that?
MR ROSE: That is our understanding of the position, Your Honour.
HIS HONOUR: Yes. Now, Mr Bell, this affects you most. MR BELL: This is problematic, Your Honour, for the
following reasons: my learned friend, Mr Rose, proposed the addition of these words on the basis that the Court might construe section 44 in terms that require an investigation of the basis upon
which a person may attain a discharge of his or her
nationality. But the words proposed do not enable
the Court to make any such investigation because
they are insufficient for the purpose and in orderfully to provide the Court with facts that would be
sufficient for the purpose would entail asignificant investigation as to the basis upon
which this Greek law is administered. All that the
additional words do is set out the permission that
might be granted for the discharge. That is known
already, and is what Your Honour says in
paragraph 44. The basis upon which the permission
is granted or refused would comprise the essential
facts for the conduct of the investigation to which
my learned friend has referred.
Now, some of the facts may be facts as to law
written on a page; others may be facts concerning
the exercise of discretion according to various
policies and neither appear in the affidavit and no
objection has been taken by my client on the basis
that that is not the way in which we wish to
present our case. In my respectful submission,
Your Honour got it right the first time in that the
generality of the words in paragraph 44 does not
suffer from any of those vices and, in my
submission, it is very unlikely that the Court
would so decide this issue in a manner which
required an investigation of the precise legal
grounds upon which condition or discharge such as
this might be permitted or of the policy grounds
which might guide the exercise of discretion
Sykes(3) 41 10/8/92 contained in a condition, and certainly those
matters are not adverted to in the existing
material.
HIS HONOUR: I think you are probably right, Mr Bell, but if what you say is correct, then it does not harm you
because it is simply not there, the basis upon
which to -
MR BELL: Well, no, it is not. It is not there and the
submission would need to be that -
HIS HONOUR: And all this would do would be to satisfy the curiosity of the Court as to what the conditions
were in general and carry it no further, and I am
in no position to take it further than that.
MR BELL: No, Your Honour. HIS HONOUR: I do not see that your client can be harmed by that.
MR BELL: Well, I suppose it is for us to make the
submission that we agree that permission might be
granted but there are just are not facts about the
basis upon which the permission is granted.
HIS HONOUR: That is right.
MR BELL: Therefore, the Court could not come to a
conclusion safely about those matters.
HIS HONOUR: And that is a submission which is open to you.
MR BELL: That is the submission that is open that we would
have to make.
HIS HONOUR: But you do not dispute what appears there?
MR BELL: No, we do not dispute what appears there. HIS HONOUR: Well, I think if I put it in it may not achieve
the purpose that Mr Rose thinks it will but that is
as much as we can put in, and it is open to debate
how far that carries you, I think, and I note what
you have said. Now, Mr Borenstein?
MR BORENSTEIN: I have nothing to say about that, Your Honour.
HIS HONOUR: If that is so, as a matter of symmetry, what about Mr Delacretaz?
MR ROSE: Yes. If Your Honour pleases, paragraph 38 has the
same problem on page 17. The words we suggest
there, instead of the words, "under certain
conditions", we would suggest that the following be
Sykes(3) 10/8/92
included: "upon his demand if he has no residence in Switzerland and has acquired another
nationality."
HIS HONOUR: That appears in Dr Blum's affidavit in
paragraph - - -
MR ROSE: That is in paragraph S, Article 42(1): "A Swiss citizen will be released from his citizenship upon
his demand, if he has no residence in Switzerland
and has acquired another nationality", et cetera.
HIS HONOUR: Yes, very well. In paragraph 38, delete the words "under certain conditions" in the first
sentence and substitute these words: "upon his demand, if he has no residence in Switzerland and
has acquired another nationality."
MR ROSE: It may, Your Honour, be better to replace the word "can" in the first line with "will", because "can"
might suggest that there are some reservations to
this whereas it seems to be - - -
HIS HONOUR: That is what appears in the affidavit, is
"can", does it?
MR ROSE: "will", and the same change in 44 as regards Mr Kardamitsis too, I think, would be to his
advantage.
HIS HONOUR:
Very well, in both paragraphs change the word "can" to "will". Now, any comments, Mr Fajgenbaum?
MR FAJGENBAUM: Your Honour, there is a bit of concern from my instructor that we may be putting too much
emphasis - what may be a mistranslation of the
German into English in the sense that "wills" and
"shalls" and "cans" and "mays" have different
meanings for us, whereas they may not be so obvious
to a foreign lawyer trying to translate - - -
HIS HONOUR: Well, I think we can only take what appears in
the affidavit, Mr Fajgenbaum, if I am going to find
facts. I cannot speculate on the translation. We have no other competing translation.
MR FAJGENBAUM: No, Your Honour. HIS HONOUR: Mr Bell? MR BELL: I am just reminded of something that I read, Your Honour, that research in the United States
shows that in the 150 cases where foreign law was
at issue in that case, some 75 occasions occurredwhere the law was got wrong.
Sykes(3) 43 10/8/92
| HIS HONOUR: | Then it is a comfort that we only have one |
version in this case. Yes, Mr Borenstein?
| MR BORENSTEIN: | No, Your Honour. |
| HIS HONOUR: | No, very well. | Now, is there anything else, |
gentlemen? Very well, is it agreed that the case
stated go forward in that form as now amended?
Mr Rose?
MR ROSE: If Your Honour pleases.
HIS HONOUR: Mr Borenstein?
| MR BORENSTEIN: | Yes, Your Honour. |
HIS HONOUR: Mr Fajgenbaum?
MR FAJGENBAUM: Yes, Your Honour.
| HIS HONOUR: | Mr Bell? |
MR BELL: Yes, Your Honour.
| HIS HONOUR: | And is there anything else that you require of |
me at this stage?
MR BELL: Yes, there is one matter, Your Honour, and that is
I raised the question of outlines of argument and
lists of authorities before the luncheon
adjournment and Your Honour said that the practice
direction provides for the exchange of those. But
in civil cases, my understanding is that the
pra9tice direction requires that they be deliveredto the Court on the presentation of the argument
and do not require previous delivery.
HIS HONOUR: Yes. Would it assist if I gave a direction?
| MR BELL: | It would, Your Honour. | I submit there ought to be |
a direction in a case such as this.
| HIS HONOUR:. | How long before the date fixed for hearing? |
| MR FAJGENBAUM: | Your Honour, I am just trying to think of my |
own timetable. The case is to commence on
Wednesday fortnight, the 26th, which I think - - -
| HIS HONOUR: | It is the 26th and 27th, yes. |
MR FAJGENBAUM: - - - is Wednesday fortnight. Having regard
to my own commitments, I would hesitate to
volunteer a date before the Monday of the
commencement of the proceedings.
MR BELL: Well, that is the 24th. That is all right,
Your Honour, from our point of view.
44 BELL 10/8/92
HIS HONOUR: All right, I will direct that the parties
exchange their outlines of argument on or before
24 August 1992.
MR BELL: What I was going to submit, Your Honour, was that the petitioner furnish his to the parties and that
the other parties furnish their's to him on the
Tuesday.
HIS HONOUR: All right, I will direct that the petitioner
furnish to the other parties his outline of
argument on or before 24 August 1992 and that -
MR BELL: - - - the other parties furnish their's to him on the Wednesday.
HIS HONOUR: the other parties furnish MR BELL: By, say, 12 noon on Wednesday. HIS HONOUR: That is the 26th - to the petitioner their
outlines of argument by noon on 26 August 1992.
Does anyone have any objection if I give that
direction? Now, that. does not cover the list of
authorities, but if I indicate that one would
expect the main authorities to be included in the
outline of argument that should be sufficient.Very well, I will make that direction.
MR BELL: If Your Honour pleases.
MR FAJGENBAUM: I take it from those directions that the case will not begin before 2.15 on the Wednesday,
and so instead of making arrangements - - -
HIS HONOUR: Mr Fajgenbaum, these things are out of my hands but I had understood that it would commence in the
afternoon of the 26th but I cannot be held to that.
MR FAJGENBAUM: If we are not held to that, perhaps we can get the airlines a little earlier.
HIS HONOUR:. Well, liberty to apply. Very well, is there
anything else?
MR BELL: No, Your Honour, that is all. HIS HONOUR: Adjourn the Court sine die.
AT 2.46 PM THE MATTER WAS ADJOURNED SINE DIE
Sykes(3) 45 10/8/92
Key Legal Topics
Areas of Law
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Constitutional Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Jurisdiction
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Standing
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Statutory Construction
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