Sykes v Cleary

[1992] HCATrans 177

:~

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

Melbourne	No M25 of 1992
IAN SYKES

Petitioner

and

PHILIP CLEARY

First Respondent

JOHN DELACRETAZ

Second Respondent

II BILL_" KARQAMI T..fil.S

Third Respondent

GERALDINE RAWSON

Fourth Respondent

For directions

Sykes 1 9/6/92

DAWSON J-

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 9 JUNE 1992, AT 9.03 AM

Copyright in the High Court of Australia

MR S.R. MARSHALL:  May it please the Court, I appear for the

first respondent, Mr Phillip Cleary. (instructed

by Maurice Blackburn & Co)

MR K.H. BELL:  If Your Honour pleases, upon an undertaking

that my client file a conditional appearance with

your leave today, I appear on behalf of
Bill Kardamitsis, the third-.named respondent, I
suppose, we call him. (instructed by Holding

Redlich)

HIS HONOUR: Well now, there is no appearance for the

petitioner.

MR MARSHALL:	No, Your Honour.
HIS HONOUR:	What do I do in those circumstances?
MR MARSHALL:	Your Honour, I am tempted to say strike out

the petition.

HIS HONOUR: Yes. Well, naturally, you are.

MR MARSHALL:	Yes.
HIS HONOUR:	He is in person, I understand.

MR MARSHALL: Yes, Your Honour.

HIS HONOUR:  I would be loath to do that if there were just

merely a misunderstanding. But, of course, if he

is not prepared to pursue the petition, that is a

course which I must consider. What do you say,

Mr Bell? You still have not entered an appearance?

MR BELL:  No, Your Honour, and I am not tempted. I do say

that it should be struck out but I hear what

Your Honour says and it has merit in it.	We are in
Your Honour's hands.

HIS HONOUR:  I am informed by the Deputy Registrar that

Mr Sykes was aware of this matter coming on for

directions, and he is not here. I do not know why.

I think the best course for me to take is to

adjourn the matter until 2.15 so that, if possible,

he can be contacted and made aware of the

situation. That is probably taking it further than

I need do but that is what I propose to do.

MR MARSHALL: If it please the Court.

HIS HONOUR:	So, I will adjourn the matter until 2.15 today.
MR BELL:	Your Honour, my client has not yet filed an

appearance, does not wish to file an unconditional

appearance; cannot do so, and wishes to file a

Sykes 2 9/6/92

conditional appearance; cannot do so without your

leave.

HIS HONOUR:  Yes, that is true. Why a conditional

appearance, Mr Bell?

MR BELL:  Because there are issues as to the competence of

the application in terms of its form.

HIS HONOUR: Against your client?

MR BELL:  Yes, Your Honour. And there are issues as to

whether or not the matter should first be the

subject of a reference from either Houses of the

Parliament before this Court can deliberate upon

it. Now, there may be nothing in either point or

both points may be of substance and that my client

wishes to reserve his rights in relation to both.

For that reason, we seek leave - - -

HIS HONOUR:	On either point would it make any difference - I am not going to compel you to reach a final
submission on this point, but would it make any
difference to the jurisdiction of the Court - what
I have in mind is that one generally files a
conditional appearance where an appearance would
complete the jurisdiction of the Court as, for instance, where there has not been service and so
on.

MR BELL: Yes, Your Honour.

HIS HONOUR:  But in this instance it would seem either the

Court has jurisdiction or it has not.

MR BELL: That may be right, Your Honour. That may be

~ight, Your Honour, but I cannot stand at the bar

and say it is. I may be able to say so by the next

directions hearing that that is right but all I can

say is that in an abundance of caution I need to

seek your leave and hope that you would grant it.

HIS HONOUR:  I will not carry that any further at the

moment. We can debate that at 2.15, and I think

the only thing I can do in the circumstances is to

adjourn the matter until then.	Is there anything
else, gentlemen?

MR MARSHALL:  Your Honour, I just wish to foreshadow that my

client would be seeking to file a conditional

appearance also for similar reasons to those

advanced by Mr Bell and also to request that the

Court order the petitioner to provide particulars of the petition~

Sykes 9/6/92

HIS HONOUR: Well, I would anticipate that, yes. And there

would be argument as to the form of the petition, I

take it, would there?

MR MARSHALL:  In a sense that particulars are not provided,

that would be at least one aspect of that argument,

yes, Your Honour.

HIS HONOUR:  Yes. Yes, you had something to say, Mr Bell?

MR BELL: Only that we would seek particulars too,

Your Honour; other than that, nothing.

HIS HONOUR:  You would not, if you were given leave to enter

a conditional appearance, you would not be seeking

any more than that, would you?

MR BELL: It would depend, Your Honour, it would depend.

HIS HONOUR:  Well, we will leave that in that cryptic state

then.

MR BELL: Until that time, yes, Your Honour.

HIS HONOUR:  Very well, I will adjourn the matter until

2.15.

AT 9.08 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 9.10 AM:

HIS HONOUR:  That was a short-lived adjournment. I will

revoke my order adjourning the matter until 2.15

and we can now proceed. Mr Sykes, you are the

petitioner in this matter?

MR I. SYKES: That is correct.
HIS HONOUR:	Would you have a look at the signature at the

bottom of the petition? Is that your signature?

MR SYKES: That is my signature.

HIS HONOUR:  Thank you. And you appear in person?

MR SYKES: Yes, I do, and I have several applications to

make which I have given to your assistant,

Mrs Rogers.

HIS HONOUR:  Do the other parties have copies of these,

Mr Sykes?

Sykes	9/6/92
MR SYKES:	No, but I do not see Mr Cleary here and one of the applications that I have made is that we ought
not to have counsel. Whether you reject that or
not, I do not know. I have made the application
under section 371.
HIS HONOUR:	The appearances so far have only been to seek leave to enter a conditional appearance but I
suppose even that needs the leave of the Court. Why do you oppose the appearance by counsel?
MR SYKES:	Under section 371 of the Commonwealth Electoral

Act 1918, I have applied that, "The Court not allow

Cleary, Kardamitsis, Delecretaz, Rawson and Sykes

to be represented by counsel on the grounds that

under section 364 this case is to be judged on the

substantial merits and because Sykes cannot afford

counsel" and, on the final ground, "that

Mr Philip Cleary, on delivery of the said petition to him, said to Sykes, 'You will pay for this.'"

HIS HONOUR:	On the basis that the application to appear as counsel is for the purpose of seeking leave to
enter a conditional appearance which, I think, is the point we have got to at the moment.

MR MARSHALL: Yes, Your Honour.

HIS HONOUR:	What do you have to say, Mr Marshall?
MR MARSHALL:	Your Honour, I say that the petition raises

matters of fundamental constitutional importance

going to the heart of the legislature in Australia

and also, given that a conditional appearance is

sought to be filed for the fact that a

jurisdictional point is sought to be preserved, of

course, will also involve the matter of

jurisdiction and in relation to both issues the

Court will be assisted by the assistance of

counsel. This is a similar section, Your Honour,

to one that quite often one finds in industrial

legislation.

HIS HONOUR:	Which section?
MR MARSHALL:	Section 370, regarding the right to appear by

counsel or solicitor, and it has traditionally been

held by industrial tribunals such as the Industrial

Relations Commission and the Victorian Industrial
Relations Commission that where legal issues arise

which do not involve cases whereby merely
wage-fixing matters are involved or some issue that

does not involve the assistance of lawyers or

counsel, that if there are legal issues, the

Commission will grant leave for counsel to appear

and for similar reasons, albeit on a much higher

Sykes 9/6/92

plane, the Court here would be assisted by the

submissions of counsel.

HIS HONOUR:  Yes. Mr Bell?

MR BELL:	I adopt that submission, Your Honour.
HIS HONOUR:	Mr Sykes?
MR SYKES:	I have no comments, thank you.
HIS HONOUR:	Leave to appear by counsel is granted in

respect of the respondents, Cleary and your's is

Mr - - -?

MR BELL: Kardamitsis, Your Honour.

HIS HONOUR: Kardamitsis.

MR BELL: If it please the Court.

HIS HONOUR:  Yes, Mr Sykes? Perhaps, first, before we hear

you, it might be advisable to hear the application

for leave to enter a conditional appearance and

then we will know the particular status of the two

gentlemen who are appearing, but you will have a

chance to address any arguments you want to. Yes,

Mr Marshall?

MR MARSHALL:  If it please the Court. The leave of the

Court for Mr Cleary to file a conditional
appearance pursuant to Order 11 rule 4(a) of the

Rules of Court is sought. The reason, Your Honour,

is that the first respondent wishes to preserve the

point of an objection of the Court's jurisdiction

to try the petition at the hearing of the petition.

He, therefore, wishes to file a conditional

appearance to preserve his position.

The jurisdictional point essentially is,

Your Honour, that section 376 of the Commonwealth

Electoral Act 1918 provides the sole means whereby:
Any question respecting the qualifications of
a ..... Member of the House of Representatives -
results in the Court having jurisdiction.	Now,

that is by reference to the Court by the House, and

that is the argument that the first respondent

wishes to preserve.

HIS HONOUR:  Why can he not put it now and have the matter

decided?

MR MARSHALL:  Your Honour, the reason that he cannot put it

now is that this particular petition was only

served fairly recently, Thursday, I think, of the

Sykes 6 9/6/92

week before last. Mr Borenstein appears in the

matter - generally, that is; will appear in the

matter generally. The directions hearing was

arranged today to suit his convenience but he had

to be in Sydney this morning and I appear in lieu

of him. He informs me that he has not had

sufficient opportunity to determine whether or not

he will put the point but notes it is one that he

may wish to put but wants to look at the situation

further to determine if, in ·fact, he will put it.

HIS HONOUR:  In any event, how could the entry of an

appearance make any difference to that argument?

Either the Court has jurisdiction or it has not.

MR MARSHALL:  Yes. Your Honour, the first respondent

apprehended that by putting in an appearance he may

be at risk of submission of the jurisdiction of the

Court.

HIS HONOUR:  How can you submit to a jurisdiction the Court

does not have, if what you say is right?

MR MARSHALL:	Your Honour, the concern may be out of an abundance of caution but was highlighted by the
fact that His Honour Justice Mason, as he then was,
in McCauley v Hamilton Island Enterprises Pty Ltd - and I apologize for not giving a reference to the
Court - it is 69 ALR 270, at page 271, at lines 34
to 36, preserved the position of litigants in relation to the question of jurisdiction by
granting them leave to enter a conditional
appearance. It was thought, out of an abundance of caution, perhaps, and I cannot really argue with
what Your Honour says.
HIS HONOUR:	It seems a very great abundance of caution to

me but, nevertheless, yes.

MR MARSHALL:  Yes, that that course ought to be adopted to

make plain that this jurisdictional point is one,

in relation to which the first respondent at least
wishes to reserve his rights.	Now, if that can be

made plain by the fact that I have said it this
morning, without the need for a conditional

appearance, we will not trouble the Court any

further.

HIS HONOUR:  Yes. Is there anything else you want to put?

MR MARSHALL:  No, Your Honour.

HIS HONOUR: Mr Bell?

MR BELL:  I am in precisely the same position, Your Honour.

I have received further instructions and the only

point about which we would wish to preserve our

Sykes 9/6/92

rights is that same point my learned friend,

Mr Marshall, has mentioned.

HIS HONOUR: Well, I will ask you the same question: if the

Court has jurisdiction, it has it; if it does not,

it does not and it is not a question of an

appearance completing the jurisdiction in any way.

MR BELL:  Yes. I follow what Your Honour is putting to me

and there is force in it.

HIS HONOUR:  Mr Sykes, do you want to say anything? I do

not think it really affects you greatly, does it?

MR SYKES:  I do not need to say anything, no, thank you.

HIS HONOUR:  At this stage, any way. I will grant leave to

enter a conditional appearance. It seems to me

that it is a very great abundance of caution to

allow you to do so but I think you ought to be

prepared at the next directions hearing to argue

the point, and I take it that if leave were refused

on the basis on which I have adumbrated, then it

would be appropriate for you to enter an

appearance.

MR BELL: Yes, Your Honour.

HIS HONOUR:  Very well. Now, is there anything else by way

of a preliminary nature?

MR MARSHALL:  Yes, Your Honour. The second point is that

the first respondent seeks an order from the Court,

pursuant to Order 68 rule 9 of the Rules of Court,

that the petitioner deliver to the first respondent

particulars of the matter - - -

.

HIS HONOUR: Well, I think we can come to that later. That

is a matter of directions. Perhaps, first of all,

we ought to hear what Mr Sykes has to say. Perhaps

handed up, Mr Sykes. It may be desirable if I read if you would give me time to read what you have it out since you do not have a copy.

MR MARSHALL:	Thank you, Your Honour.
MR SYKES:	I have given one copy across.
HIS HONOUR:	Have you?
MR SYKES:	Yes .
HIS HONOUR:	Well, very well, we can both read it in silence then. Have you read that, gentlemen? Now, what do
you want to say about it, Mr Sykes?

Sykes 8 9/6/92

MR SYKES:  I think the matter of proof would be facilitated

if those documents were available for a third

party, and they are all pertinent to the issues

raised. In other words, it is alleged against

Cleary that he had pecuniary interests under

section 44 of the Constitution and also that he had

another interest under that section, being some

matter of employment with the Commonwealth. So,

the question might be at the end of the case as to

whether Cleary, if he worked for the Education

Department of Victoria, had in fact resigned or not and whether he had any pecuniary interests therein.

And the same issue could apply to the Australian

Broadcasting Commission which I understand is a

Commonwealth body.

Mr Cleary also worked for a group known as the

Community Services, Victoria, which is also possibly a source to funds through the taxation

system. So, therefore, I would submit that it is

pertinent to know whether he, in fact, had resigned

from that position as well.

In regard to his position as football coach, I

am afraid I do not know the name of the body or the

facilities which he used in that but I -

HIS HONOUR:  In relation to that, where does that appear in

your claim?

MR SYKES:  It appears under "Victorian Community Services",

in other words, it is some type of community.

service but I am not able to specify what body it

might be. So, under "Victorian Community Services"

there are two legs, so far as I can see, and that is,·. first, that he worked somehow with a football organization, but what organization precisely I do

not know and, also, a body called the Victorian

Community Service, which I understand is connected

with the Victorian State Government, and I would

submit that that would leave Mr Cleary in breach of

section 44, had he not resigned from it.

HIS HONOUR:  In other words, you say that the position as a

football coach is an office of profit under the

Crown?

MR SYKES:  It could be an office of profit under the Crown

or a pecuniary interest, depending on how the funds

are sourced, and I simply do not have the answer to

that yet, nor do I precisely know the name of the

entity for which he worked.

HIS HONOUR: Yes. Mr Marshall.

MR MARSHALL:  Of course, Your Honour would be aware that I

have had no notice of this particular matter but,

Sykes 9 9/6/92

on its face, it appears to be a fishing expedition

whereby the basis for what is baldly alleged in the

petition is sought to be caught.

Your Honour, I do also note that it seeks

nothing from the first respondent but from others

in relation to him and those others, of course, are

not here to be heard in relation to that matter.

HIS HONOUR: Well, there are two ways. of going about it, of

course. It would be possible to seek admissions

from you, if you were prepared to make it, as to

the position of your client. I mean, it may be in

your interests, it may be not, that is a matter for

you, to have the matter cleared up subject to the

jurisdictional point. I should have thought the

best way of resolving the matter was to state a

case and reserve questions for the consideration of

the Full Court and that would, of course, involve

setting out the facts, and if they could be agreed,

so much the better.

MR MARSHALL:	I share that view, Your Honour, with respect.
HIS HONOUR:	The other way of going about it is, under the

powers which I have, to allow the issue of a
subpoena duces which would require the documents to
be brought to Court, and then the matter could be

taken from there. Presumably then, Mr Sykes would

have to put his evidence on affidavit. I am not

sure that that would be the most orderly way of

going about it.

MR MARSHALL:  No. Your Honour, this whole matter might be

cured by the provision of particulars because once

my 9lient knows what is alleged precisely by

Mr Sykes, it may be that those facts can be agreed

and the Court may have before it a confined legal

issue to resolve. Seeing that the matters raised

by Mr Sykes, in that sense, might be premature,

until the provision of particulars and our response

to those particulars, then the parameters of what

is in issue can be more neatly defined.

HIS HONOUR:	What are the particulars you would seek?
MR MARSHALL:	Your Honour, the complaints in relation to

what is in the petition as it stands essentially

that no dates are provided; there is no

identification of the alleged pecuniary interest

held with the Public Service of the Commonwealth; other impugned candidates in relation to whom the
there is no identification of what were the offices
of profit allegedly held under the Crown.

first respondent has an interest as to their fate

in that their position might affect the final

Sykes 10 9/6/92

orders which the Court may make, and the second and

third respondents particularly fall into this

category because combined with the first

respondent, they received about 90 per cent of the

vote.

There are no particulars of the second

respondent's acknowledgement to Switzerland or how

it arises and no particulars of the third

respondent's acknowledgement. to Greece or how it

arises or how it is said that he -

HIS HONOUR:  At the moment it does not make sense. I mean,

under "acknowledgement", it must be under

acknowledgement of something, and nothing is

alleged.

MR MARSHALL:  Exactly, Your Honour. Your Honour, we refer

to section 355(aa) of the Commonwealth Electoral Act which makes specific statutory provision for the setting out with sufficient particularity of the facts to identify the specific matter or

matters on which the petitioner relies as

justifying the grant of relief and the submission

is that the petition does not do that at this stage

in its current form.

HIS HONOUR:	Yes, Mr Bell?
MR BELL:	Your Honour, we share the need for particulars but

we do not wish to oppress Mr Sykes with a

requiremept continually to provide documents or

particulars or anything of a legal form but we do

need particulars, particularly of the matters that

Your Honour referred to, that is, the nature of the respect in which section 44 is not complied with by

my client and by Mr Delacretaz.

As to the manner in which the application

should proceed, we would urge the Court to adopt a

course which would resolve these important issues
with speed.	We would submit that the matter ought

not be permitted to amble along through a course, perhaps interminable, involving directions in the

exchange of pieces of paper. The basic issues

which are before this Court which are absolutely

fundamental to the Constitution of this country are

very clear and, indeed, some of them are of long

standing and well known to be issues that need to

be resolved by this Court.

The fact of the issue of the application in

respect of Mr Cleary casts a shadow over his

continued eligibility to be a member of the House

of Representatives, a shadow which my client wishes

to have resolved. If this Court were to uphold the

challenge made against Mr Cleary, then it would

Sykes 11 9/6/92

need to address the question, "What should then
happen?" If the Court were minded to order a
recount among existing candidates, it would seek to

do that probably only on the basis that any doubt

as to the eligibility of those candidates also be resolved, of whom one is my client, but there are others.

In those circumstances, Your Honour, it is my

submission that the Court should adopt a speedy

course with respect to the timetabling of the

hearing of this application and, for that reason,

before Your Honour suggested that a case stated

might be appropriate, I was going to offer, on

behalf of my client, to file an affidavit setting

out all of the matters that might possibly be
relevant to the claim that is made in respect of

him, subject, o.f course, to the provision of

particulars in relation to the central matter of

which I spoke.

But we would be just as prepared to

participate in a process whereby a case stated was

prepared and there is much merit in adopting that

course and it would be my hope that the parties

could participate promptly in the preparation of a
case stated so that the matter could proceed before

Your Honour.

There are two difficulties, however, that may

need to be confronted in that regard - at least

two. Firstly, the second-named respondent is

neither here nor represented here and for the

reason that I spoke of earlier, it would be

necessary probably for the Court to resolve the

question as to whether he was eligible to be a

member of the House of Representatives were a

recount ordered among a group that included him

and, in relation to the fourth-named respondent, a

different question is raised as to her eligibility

but the consequence of it is the same.

HIS HONOUR:  But I suppose one thing could be said is that

your client is interested in all of the other

alleged disqualifications?

MR BELL:	Yes.
HIS HONOUR:	So that the particulars which could be

requested by you would cover those.

MR BELL:  Would need to encompass all, yes, that is so

unfortunately.

HIS HONOUR: Well, it might be fortunate from others' point

of view.

Sykes 12 9/6/92

MR BELL:  Well, it may be, but from the point of view of the

resolution of the proceedings. But we will be

quick, Your Honour, and would need certainly no

longer than the end of this week for the provision

of particulars.

Now, in relation to Mr Sykes, he, of course,

is in the same boat, and presumably the reason why

he includes himself as a person who may be

ineligible is that there is .a possibility that he

may succeed against Mr Cleary and, on discretionary

grounds, the Court may not wish to order a recount

among a group that includes him. So, it would be

necessary for him to provide particulars in

relation to precisely the same questions. They are

questions, incidentally, Your Honour, that may be

different as between the countries. Switzerland

may be different to Greece; may be different to the

United Kingdom. Perhaps Australia may not regard

the question as being different and my submission

probably will be that it makes none, but there will
be different legal considerations and status

involved, so particulars will need, in my

submission, to be provided specifically in respect

of each of those individuals about that matter.

To close, Your Honour, we do seek particulars

too. We seek them about the same matters that my

learned friend spoke of in respect of each

candidate but we will not be oppressive about it.

They will be directed precisely to the questlons at

issue. We can provide the particulars by the end

of this week, and we urge Your Honour to adopt a

speedy course. We agree that a case stated is an

effective way to present the matter for the

attention of the Court, provided, of course, that

Mr Sykes would be prepared to adopt that course.
Generally, we stand ready to do all things
reasonable to bring the necessary facts to the

Court to enable these most important questions to

be resolved.

Finally, Your Honour, because of the obvious

importance of these questions, we are presently

minded to submit that the matters ought to be

resolved not by a single Judge, with the greatest

of respect to Your Honour or by any other single

Justice of this Court - - -

HIS HONOUR: Well, I was minded in the same way actually.

MR BELL: Were you, Your Honour? Well, I need say no

further.

HIS HONOUR:  But it is a question of getting it before the

Court in a manner in which it could be decided.

Sykes 13 9/6/92

MR BELL:  Yes, of course, and in the interests of speed and

in the interests of having a Full Court hear it may collide, but the issues are obviously of very large

magnitude and should be resolved by a Court of the

greatest constitutional authority. If the Court

pleases. Beyond that, Your Honour, I do not think

I have anything further to say.

HIS HONOUR:	Yes.	Mr Sykes?
MR SYKES:	There is just one tiny point that comes up.	On

the question of speed, that seems to me to be

correct because I think the Court might be

required, under section 367A, to present a finding

within 3 months, therefore - - -

HIS HONOUR:  I think that only applies, does it not,

367 -

MR SYKES:	-(1) which, I think, I used, did I not?
HIS HONOUR:	But that is only in relation to a petition

filed under subsection 357(1A), is it not?

MR SYKES:  Yes, that is correct.

HIS HONOUR: Well, if I were to order - and it is a matter

of setting dates - - -

MR MARSHALL:  Your Honour, before Your Honour goes to that,

might I just address something that Mr Bell

addressed, that because of the sequence, until

Your Honour asked me I did not direct myself to,

and that is the question of the Full Court. I

merely wish to say that the position of the first

respondent is that at this stage I have no

instructions on that point; that Mr Borenstein
rather apprehended after the provision of the

particulars, it could be better addressed then

because the issues would be more tightly defined.

HIS HONOUR:  I hope so. The problem, gentlemen, is that if

a case is to be stated and questions reserved, one

way or another, the facts which are to go into the

case stated have to be determined. Of course, if

the parties agree on a case stated, then that

resolves that problem. If they do not, well then, I have to determine the facts and they go into the

case stated. But the facts should be something

which are not in dispute and which can be stated in

a compendious form to raise the issue which ought

to be raised. But, I agree, we will take things

step by step and see where we get to.

Well now, the first thing is that you request

particulars. Both respondents, that is the

respondents Cleary and Kardamitsis, deliver to the

Sykes 14 9/6/92

petitioner within three days - that would take us

to the end of the week - - -

MR BELL:  By Friday, yes, Your Honour; close of business

Friday.

HIS HONOUR:	- on or before 12 June - - -
MR MARSHALL:	Your Honour, I just wonder - as I understand

Mr Borenstein is in Sydney for the remainder of

this week, and it would assist if we could have

until Monday.

HIS HONOUR:  There is a limit to the extent to which we can

consider counsels' convenience.	I think
other ••... more importance.	On or before 12 June

deliver a request for particulars of the

allegations contained in the petition. (2) That

the petitioner - that is you, Mr Sykes - deliver to

the respondents the particulars so requested on or

before Friday, 19 June. That gives you seven days,

Mr Sykes. (3) That each of the petitioner and the

respondents is to file and serve on the other a

statement indicating the matters in the petition

which he admits, which he denies or which he

submits as a matter of law to be immaterial within

seven days of the delivery of particulars. (4) - I

can say that each respondent file a draft case

stated which will include reserved questions or I

could say that the first respondent, Cleary,-in

consultation with the - are relationships such that

I can realistically do that? It is only a matter

of form.

MR MARSHALL:  Yes, Mr Borenstein and Mr Bell get on very

well, as I do with Mr Bell.

HIS HONOUR: All right.

MR BELL:  I am just not sure that is the kind of appearance

we are seeking to create, Your Honour.

HIS HONOUR:  No. The easiest thing is to have "each" then,

that each of the respondents - - -

MR BELL:  There will be, as a matter of practical reality,

that co-operation but I think it should be done the

other way, Your Honour.

HIS HONOUR: That each of the respondents, the named

respondents - that is the two that have

appeared albeit to object to jurisdiction - file a draft case stated and questions reserved by - now,

I think perhaps we had better give a couple of days

leeway - on or before Tuesday, 30 June, and in case

there are some questions which cannot be resolved,

I would propose to order that each party have leave

Sykes 15 9/6/92

to issue a subpoenae duces tecum returnable before

the Court on 30 June. That this hearing for

be liberty to apply.	directions be adjourned until 30 June. That there
Now, does anyone have anything to say about those proposed orders? I would think that if the
parties co-operate to agree the facts which should
be matters which are not in dispute, then there may
be no need to issue subpoenas to bring before the
Court the necessary documents to establish those
facts, but if these processes do not result in
there being what is in form an agreed case stated,
then we will have to go through the other processes
and that will mean, Mr Sykes, that the onus is on
you to prove the facts and you would have to turn
your mind to that.

MR SYKES:	Thank you.
MR MARSHALL:	Your Honour, there is also just the one issue,

that is, could Your Honour reserve costs of today's

hearing?

HIS HONOUR:  Yes, I will do that but before we come to that,

also you should be prepared to argue the question

of jurisdiction on 30 June, and we will resolve	that, and if we are then able to refer the
questions to the Court by way of a case stated, it would be necessary, I think, to serve notices under section 78B of the Judiciary Act because the question which I anticipate would arise, or questions, would involve the interpretation of the Constitution.
In relation to the questions to be reserved, the parties might give attention to the questions
which do arise and that is whether, having regard
to section 360(1) of the Electoral Act, the Court
should "declare that any person who was returned as
elected was not duly elected"; whether the Court
should or could "declare any candidate duly elected
who was not returned as elected" or whether the
election should be declared absolutely void.

The question may also arise as to whether the

petition should be dismissed or upheld, at least in part, as regards some of the respondents. I merely

direct your attention to those questions which do
arise under section 360.

I would urge the parties to co-operate as best they can and to the fullest extent that they can to enable the real matters to be brought before the

Court in a proper form.

Sykes 16 9/6/92

Now, does anyone want to say anything about my

proposals?

MR BELL:  Yes, Your Honour. Firstly, we are prepared to

prepare draft 78B notices, if that is of assistance

to Mr Sykes, and will provide a draft of those notices to him at the appropriate time for his consideration.

HIS HONOUR: Well, you hear that, Mr Sykes. There is

nothing contentious about 78B notices. They are

merely a means of informing the States, and

Territories, I think, now, is it, that a

constitutional question arises so that they can

appear if they wish to do so.

MR SYKES:	Yes.
HIS HONOUR:	So, there is nothing contentious about that,

and I think you could happily accept that offer.

MR SYKES:	Thank you, I do.
MR BELL:	And we will, of course, provide a copy of those to

all of the represented parties, I suppose, it fair

to say. Next, Your Honour, because as I submitted
to Your Honour earlier, issues arise about

Mr Delacretaz and Ms Rawson, I wanted to clarify

that the leave reserved to issue a subpoenae in

clause (5) of your orders would permit my client to

issue subpoenae against those two individuals

because it is my unhappy apprehension that it may

be difficult for Mr Sykes to obtain informat:ion in

a form that the Court can process for the relevant

purposes and that it will be necessary for somebody

to do that, and we do not intend to stand by and

~atch this issue just drag along.

HIS HONOUR: Yes. Well, I had intended, when I said that

subpoenas could be issued, that you would be free

to issue them against who you wished and also, so

far as the particulars which you request of the

petitioner, that is not confined to particulars in

relation to your particular client.

MR BELL:  The individuals. I am grateful for that

clarification, Your Honour, and I do not have any

unhappy apprehension in relation to Mr Sykes and I

am sure that we will be able to discover from him -

indeed, it is in his own interest to provide

information in relation to his own citizenship

status and so on. So, I do not make the same

comment about him.

HIS HONOUR: Very well. Well, I earnestly hope, gentlemen,

that you will be able to come up with an agreed

Sykes 17 9/6/92

case stated which will raise the issues which you

wish to raise.

Do you wish to say anything about the proposed

orders, Mr Sykes?

MR SYKES: Well, whereas the other participants may have

offices and secretaries and things like that, I am

afraid I do not. So, therefore, any help that

either they could give me or· the Court could give

me would be gratefully accepted.

HIS HONOUR:  I think I have given you about just as much

help as I am able to do but, no doubt, your

opponents have heard what you have to say and, no
doubt, they are anxious to get the matter on in a

form in which it can be conveniently decided.

MR SYKES:	Thank you.
HIS HONOUR:	Very well. Well, I will make those orders, and

the matter is adjourned until 30 June 1992.

MR MARSHALL: If the Court pleases.

~n~

AT 9.56 PK THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 30 JUNE 1992

Sykes 18 9/6/92