Tanti v Electoral Commission of Queensland

[1995] QSC 208

IN THE SUPREME COURT

OF QUEENSLAND
  No. 16 of 1995
Brisbane

Before the Hon. Justice Williams

[Tanti v. Electoral Commission of Queensland & Anor.]

IN THE MATTER of the Electoral Act 1992

- and -             

IN THE MATTER of the election of one member of the Legislative Assembly for the electoral district of Mundingburra in the State of Queensland

BETWEEN:
  FRANK JOHN TANTI
  Petitioner

AND:
  ELECTORAL COMMISSION OF QUEENSLAND
  First Respondent

AND:
  KENNETH HENRY DAVIES
  Respondent by Election

JUDGMENT - WILLIAMS J.

Judgment delivered  25/08/1995

CATCHWORDS      Elections - petition - motion to summarily dismiss - whether facts set out as required by s.130(2)(a) of Electoral Act 1992 - particulars - ss.130, 132, 134 and 136 considered - Webster v. Deahm (1993) 116 A.L.R. 223 followed - other authorities considered.

Counsel:  Callinan Q.C. and Dunning for Tanti
  Hanger Q.C. and Carmody for Davies
  Derrington for Electoral Commission

Solicitors:  Prentice for Tanti
  Goss Downey Carne for Davies
  Minter Ellison Morris Fletcher for Electoral Commission

Hearing date:               22 August 1995
IN THE SUPREME COURT

OF QUEENSLAND
  No. 16 of 1995

IN THE MATTER of the Electoral Act 1992

- and -             

IN THE MATTER of the election of one member of the Legislative Assembly for the electoral district of Mundingburra in the State of Queensland

BETWEEN:

FRANK JOHN TANTI
  Petitioner

AND:

ELECTORAL COMMISSION OF QUEENSLAND
  First Respondent

AND:

KENNETH HENRY DAVIES
  Respondent by Election

JUDGMENT - WILLIAMS J.

Judgment delivered  25/08/1995

On 8 August 1995 Frank John Tanti, the petitioner, lodged a petition with the Supreme Court as the Court of Disputed Returns pursuant to the Electoral Act 1992, disputing the result of the election of one member of the Legislative Assembly for the electoral district of Mundingburra in the general election held on 15 July 1995.  The petitioner was an unsuccessful candidate for that election and clearly is a person who comes within s.129 of the Act. 
           Section 130 deals with the requirements for a petition to be effective; subs.(1) provides that for "a petition to have effect for purposes of this Division, the requirements of this section must be complied with."  Relevantly, subs.(2) goes on to provide:-

"The petition must -

(a)set out the facts relied on to dispute the election; and

(b)set out the order sought from the Court of Disputed Returns; . . ."

The balance of subs.(2) and subs.(3) provides for certain other procedural formalities to be observed, but there is no issue raised now with respect to any of those matters.  Subsection (4) then goes on to say:-

"Subsections (1) and (2) do not, by implication, prevent the amendment of the petition."

The full ramifications of that provision are yet to be judicially determined.
           Brief mention should also be made of s.134(2) which provides that the court "must not have regard to legal forms and technicalities, and is not required to apply the rules of evidence," and s.136(1) which empowers the court to make any order in relation to the petition that it considers just and equitable.
           Paragraph 5 of the petition is in these terms:-

"That the facts relied on by the Petitioner to dispute the election are:-

(a)That certain electors in the electoral district of Mundingburra voted or may have voted more than once;

(b)That certain persons obtained votes for the electoral district of Mundingburra and voted in the name of persons who were on the Roll of the electoral district of Mundingburra but did not in fact vote;

(c)That persons who were entitled to vote in the electoral district of Mundingburra pursuant to s.101(1)(c) of the Electoral Act 1992 were denied the vote or such votes were not counted.

Particulars

The best particulars the Petitioner can provide are as follows:-

Approximately 347 persons cast declaration votes at polling booths outside the electoral district of Mundingburra; the Returning Office did not attempt to and did not determine if such persons' names were or were not on the Electoral Roll for the electoral district of Mundingburra by reason of official error and did not count such votes.

(d)That approximately 20 soldiers, who are electors in the electoral district of Mundingburra, were serving with the Australian Military Forces in the nation of Rwanda and did not receive a vote, or an opportunity to vote;

(e)That persons who were entitled to a declaration vote pursuant to s.105 of the Electoral Act 1992 were denied a vote; and

(f)That votes were [admitted] and counted for Mr Davies by the Returning Office of the electoral district of Mundingburra that should have been rejected.

Particulars

The best particulars the Petitioner can presently provide are as follows:-

(i)Ballot papers were admitted into the count for Mr Davies where it appears the number written in the "Davies square" was a higher number than the number in the Petitioner's or Cumming's square;

(ii)Ballot papers were admitted where there were no markings in the squares;

(iii)Ballot papers were admitted where numbering was ambiguous or did not indicate a preference.

(g)That votes that should have [been] admitted and been counted for the Petitioner were rejected by the Returning Office of the electoral district of Mundingburra;

(h)Such other grounds as may arise from information provided from the Electoral Commission of Queensland and others which has been sought and so far in part denied to the Petitioner."

K.H. Davies, the successful candidate and the respondent by election, has now applied by notice of motion to have the petition struck out in whole or in part on the ground that it does not comply with s.130(2)(a) of the Act in that it does not set out the facts relied on to dispute the election.  With respect to the matters alleged in para.5 of the Petition, it is asserted that they are "not facts", and/or "are not sufficient if established to dispute the election", and/or "are not sufficient if established to justify making any order sought by the Petitioner", and/or "disclose on their face that the Petitioner is merely conducting a fishing exercise".  Further it is alleged that the matters alleged in para.5 "pleaded in their totality . . . disclose on their face that the Petitioner is merely conducting a fishing exercise".
           Counsel for the petitioner sought to rely on an affidavit of D.J. Massingham which purports to give further particulars of matters alleged in para.5 of the Petition.  Objection was taken by counsel for Davies to its reception on this application and I reserved my decision on its admissibility.  In the end I have been able to arrive at a conclusion without the necessity of relying on the contents of that affidavit.
           A number of preliminary observations should be made before considering the arguments put to the court.
           Firstly, the necessity for a provision such as s.130(2)(a) is obvious.  The jurisdiction of the Court of Disputed Returns to conduct a hearing into an election cannot be invoked merely because the result was close.  The Court has no general jurisdiction to enquire into the validity of an election except where facts are placed before it in the Petition which reasonably raise issues of dispute which call for a judicial determination.
           Secondly, in accordance with our principles of democracy the election is by secret ballot and the legislation contains a number of provisions designed to ensure that, except in exceptional circumstances, that secrecy is maintained.  Where proper issues of dispute are raised by a petition, the court may go behind that veil of secrecy and, for example, material and information otherwise only available to the Electoral Commission may be made available to the parties (s.132).  Because of those considerations it will often not be possible for a petitioner to provide full and detailed particulars of alleged voting irregularities until such time as material in the possession of the Commission is made available for scrutiny.  For instance, an unsuccessful candidate may have apparently reliable information that an irregularity occurred with respect to a particular elector but that could not be confirmed until such time as, for example, the master roll in the possession of the Commission was available for inspection.  It is understandable that the legal representatives of a proposed petitioner in drafting the petition would not wish to publicly name a particular person as having been involved in a voting irregularity until there was some confirmation of the allegation.
           Thirdly, it has regularly been recognized that a petitioner can be ordered to provide further particulars of the facts relied upon [Beal v. Smith (1869) L.R. 4 C.P. 145, Rushmere v. Isaacson (1893) 1 Q.B. 118 and Fell v. Vale (No. 1) (1974) V.R. 129). In the latter case the allegation of fact was in broad terms: "formal and valid ballot-papers . . . were wrongly disallowed and rejected." Gowans J. held that that was sufficient and that any requirements of fairness could be satisfied by an order for particulars.
Finally, it must be remembered that there are significant differences in the legislation governing the conduct of general elections for the Commonwealth and various States of Australia. For example, there appears to be no equivalent of s.130(4) of our Act in other comparable legislation. Further, the Queensland legislation is not as strict as that of the Commonwealth in requiring matters of fact to be alleged "with sufficient particularity to identify the specific matter or matters on which the Petitioner relies as justifying the grant of relief" [see s.355(aa) of the Commonwealth Electoral Act 1918].  Such matters must be borne in mind when considering decisions reached in other jurisdictions.
           Senior Counsel for Davies concentrated on sub-paras.(a), (b), (e), (g) and (h) of para.5 of the Petition.  He contended that in each instance the allegation was very sweeping and was the type of allegation which could be made with respect to the election in each electorate within the State.  In support of his submissions he relied upon the reasoning of Needham J. in the unreported decision of the New South Wales Supreme Court in Yates v. Unsworth (No. 12703 of 1988, judgment delivered 8 July 1988), and of Dawson J. in Sykes v. Australian Electoral Commission (1993) 115 A.L.R. 645. In the former case his Honour noted that one of the grounds on which he was asked to summarily dismiss the petition was that "the allegations in the petition are not statements of facts but are merely conclusions of law which allege breaches, without definition, of various provisions" of the relevant legislation. His Honour indicated that he was "troubled" by certain remarks of Taylor J. in Cole v. Lacey (1965) 112 C.L.R. 45 to which I will refer later, but concluded that the particular situation before him was not distinguishable from that considered by the High Court In The Matter of a Petition by Helen Therese Berrill (1978) 52 A.L.J.R. 359. In Berrill it was claimed that the provisions of certain sections of the relevant Act were either not complied with or were wrongly applied in the election.  The court there held that such a broad allegation did not satisfy the requirements of the applicable legislation.  Needham J. went on to say:-

"It does not seem to me that there is any distinction between a petition merely asserting that there was a breach of the section of the Act and a petition which extrapolates from the section the words of it and says that there was a breach of that provision". 

For that reason he struck out the petition.
           Dawson J. in Sykes noted at 648-9 the distinction between para.(a) and para.(aa) of s.355 of the Commonwealth Act and noted that the former requires facts to be set out which "must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity".  His reasoning was directed to the specific issues sought to be raised by that petition and it is of but marginal relevance to the problem now before this court.
           In my view the observations of Gaudron J. in Webster v. Deahm (1993) 116 A.L.R. 223 are more apposite to the present situation. Her Honour struck out many allegations on the ground that they did not comply with ss.355(a) or (aa) of the Commonwealth Act, but she did allow certain allegations to stand and it is her remarks in relation to those which are of particular relevance here. Generally she considered that the test to be applied was whether or not the fact alleged in the petition raised a matter by which the election was likely to be affected; that, in my view, is also an appropriate test to apply here. The reasoning from that case which, in my view, is of particular relevance for present purposes is that found at 228-9 of the judgment and I cite it in full:-

"It is alleged that, contrary to s.338 of the Act, `persons unlawfully marked ballot papers to which they were not entitled'.

The particular given of that allegation is that:-

There were between 100 and 370 instances where the roll was marked more than once for particular voters.

The particular does not advance the allegation, for the marking of the roll in the manner indicated, standing alone, does not prove anything with respect to the casting or counting of votes.  However, the particular does serve to identify the matter on which the petitioner relies, namely, that some votes, possibly as many as 370, were cast by persons who had already voted, or, were otherwise not entitled to vote.  That raises a matter which, if made out, is capable of affecting the election result, either alone (depending on the number of votes involved) or, perhaps, in combination with other matters raised in the petition.

It was put on behalf of the respondent that the votes involved in this allegation `cannot be identified' and may `have been cast for the petitioner'.  And, it was said, there was nothing to `connect [her] in any way with these alleged instances'.  On the basis of these propositions, it was argued that the allegation should be struck out because it could not be said, for the purposes of s.362(3) of the Act, that the `election was likely to be affected' or that `it is just that the candidate should be declared not to be duly elected'.  Whether the votes can or cannot be identified will appear if and when evidence is given.  And only when the evidence is considered will it possible to say whether it is `just that the candidate should be declared not to be duly elected'.  In my view, these are not matters which should lead to summary dismissal of the allegation that votes were cast by persons who had already voted or were otherwise not entitled to vote.  That being so, the allegation does not fail for non-compliance with s.355(a) of the Act.

For the purposes of s.358(3)(a) of the Act, I am satisfied that this part of the petition `sufficiently identifies the specific matters on which the petitioner relies'. And for the purposes of s.358(3)(b), I see no basis in which it can be said that it would `unreasonably prejudice the interests of another party to the petition' if the petitioner was relieved from compliance with s.355(aa) to the extent claimed in his notice of motion. The petitioner should have access, pursuant to s.360(1)(iii) of the Act, to the electoral rolls used in the election for the purpose of providing further and better particulars of this allegation".

I would also refer to, but not quote, what her Honour had to say at p.232-3. 
           That reasoning of Gaudron J. appears generally to accord with that of Taylor J. in Cole v. Lacey where his Honour quite clearly was prepared to hold that an allegation that a substantial, but unspecified and unidentified, number of votes were wrongly counted because strictly they were informal could be sufficient to satisfy the requirements of the legislation.  Again it was recognised that the allegation of fact would have to ultimately be substantiated by evidence. 
           In my view the power to summarily dismiss a petition should only be exercised in "completely clear cases" to use the phraseology of Dunn J. in Re Surfers Paradise Election Petition:  Soegemeier v. Small (1975) Qd.R. 114 at 118. That conclusion is reinforced when it is remembered that the court in exercising this jurisdiction must not have regard to legal forms and technicalities. Even where it is appropriate for the Supreme Court to have regard to legal technicalities summary intervention is not undertaken lightly (cf. General Steel Industries Inc. v. Commissioner for Railways (N.S.W.)) (1964) 112 C.L.R. 125 at 129. Further, extra caution is called for here because any decision made to summarily dismiss the petition could not be the subject of an appeal (s.141).
           I now return to a consideration of the matters alleged in para.5 of the Petition and consider them in the light of the legal principles to which I have referred.  Here it must be said that each of the matters specified in that paragraph, with the exception of (h), is a statement of fact; to that extent this case is distinguishable from Yates v. Unsworth because here the matters alleged are not "conclusions of law which allege breaches, without definition, of various provisions" of the relevant legislation.  Further, I cannot conclude that if some or all of those facts are established they would not be sufficient "to dispute the election" or not be sufficient "to justify any order sought by the petitioner".  Each of the facts alleged bears upon the casting and/or counting of votes and each constitutes a fact by which the election was likely to be affected.  Whether taken alone or in combination (and by implication the first six matters of fact alleged could be regarded as cumulative) are capable of affecting the election result.  That means that there is substance in the petition and, in my view, public policy demands that the issues raised be fully considered by the Court of Disputed Returns.  The Petition is not a fishing exercise.  With the exception of 5(h), I have formed the definite view that the facts alleged are not so deficient in substance as to warrant striking out of the petition either wholly or in part.
           Clearly this is a case where inspection of documents in the possession of the Commission is necessary for the purpose of defining issues and providing full particulars.  Indeed Mackenzie J. made such an order on 15 August 1995.  Given the wide powers of the court (cf. s.134(2) and s.136(1)) the Court of Disputed Returns clearly has power to order the giving of further and better particulars.  Again by the order of Mackenzie J. the petitioner here has been ordered to provide further and better particulars of matters alleged in para.5. 
           For all the foregoing reasons I would strike out sub-para.(h) of para.5; if further facts come to light when Commission documents are inspected, the petitioner may, if so advised, seek to amend the petition by relying on s.130(4). 
           Otherwise I would dismiss the motion seeking to have the petition summarily dismissed.  I would also lift the stay included in the order of Mackenzie J. of 15 August 1995.
           Finally I would note that s.134(4) of the Act requires the court to use its best endeavours to ensure that the hearing begins within 28 days after the petition is lodged and final orders are made within 14 days after the end of proceeding.  It is, of course, impossible for the court to embark upon a hearing until the parties to the proceeding are in a position to proceed.  The effect of the stay procured at the instance of the respondent Davies has effectively prevented the court from commencing the hearing within 28 days of the lodgment of the petition.  It is clearly in the interests of all parties to ensure that the matter is made ready for hearing as expeditiously as possible.  Further interlocutory skirmishing will only create unnecessary delay; it will be the parties, and not the court, who will be responsible for the failure to meet the timetable mentioned in the legislation.