THE ALLIANCE SA INC, MM ALDRIDGE and KW FISHLOCK No. SCCIV-02-166

[2002] SASC 15

IN THE MATTER OF AN APPLICATION BY THE ALLIANCE SA INC, MM ALDRIDGE AND KW FISHLOCK

[2002] SASC 15

1. JUDGE BURLEY. The Alliance SA Inc, Mr Aldridge and Mr Fishlock, to whom I shall refer as “the applicants”, have lodged with the Registry a petition to the Supreme Court purportedly pursuant to the provisions of the Electoral Act 1985 (SA). At the same time the applicants lodged for filing an application seeking injunctive relief from the Court.

2. The petition shows the applicants as petitioners, the News Corporation Ltd, Advertiser Newspaper Ltd, Australian Electoral Commission and the State Electoral Commission as respondents.  The applicants have sought an urgent hearing of the application for injunctive relief.  By that application, if it is issued, the applicants seek to obtain orders postponing the forthcoming State Election, directing the Governor to withdraw the writ issued to hold the State Election on 9 February 2002 and ordering a “media blackout” in relation to the election.

3. The papers lodged by the applicants were referred to me by the Registrar pursuant to Supreme Court Rule 102.09 and I directed the Registrar not to issue the petition and application without the leave of the Court being given to do so.  The applicants were advised on 22 January 2002 that they could apply for the appropriate leave and support their application by written submissions.  On 23 January 2002 the application for leave was filed by the applicants supported by a relatively detailed written submission.  Within the written submissions was a proposed statement of claim (Exhibit KWF5).

4. On an application such as this the Court must be satisfied that the applicants have an arguable case in relation to matters which are justiciable by the Court.

5. Sections 102 to 108 of the Electoral Act 1985 deal with disputed elections and returns and the functions and powers of the Court of Disputed Returns. Section 102 provides that the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise. Section 103 provides that this Court is the Court of Disputed Returns. Section 105 requires that the Electoral Commissioner be joined as a respondent to the petition.

6. Section 107 is an important section for the purposes of this application.  It sets out the powers of the Court as follows:

   “107.(1)The Court may make any of the following orders:

   (a)an order that a person found by the Court not to have been duly elected cease to be a member of the Legislative Council or the House of Assembly (as the case my require);

   (b)an order that a person found by the Court to have been duly elected (but not returned as elected) take his or her seat as a member of the Legislative Council or the House of Assembly (as the case may require);

   (c)an order declaring an election void and requiring a new election to be held.

   (2)    The Court may award costs against any unsuccessful party to the petition. 

   (3)    An election will not be declared void on the ground of -

   (a)a defect in a roll or certified list of electors; or

   (b)an irregularity in, or affecting, the conduct of the election,

   unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the defect or irregularity.

   (4)    An election may be declared void on the ground of the defamation of a candidate but only if the Court of Disputed Returns is satisfied, on the balance of probabilities, that the result of the election was affected by the defamation.”

7. If the applicants are to succeed on this application, they must demonstrate that they have an arguable case in relation to matters that come within the provisions of Sections 102 to 108 of the Electoral Act 1985. Having considered the written submissions of the applicants and having read all of the papers lodged by them in the Registry in support of the petition and application for injunctive relief, I have come to the view that the applicants have failed to establish that they have a claim under the Electoral Act to be heard by the Court of Disputed Returns relating to matters that are justiciable within the provisions of the Electoral Act.

8. There are a number of reasons why I have reached that conclusion and I intend briefly to state the more important of them. First, the provisions in the Electoral Act relate to a petition lodged after the holding of an election whereas this petition is directed to stopping the current election. There is no power in the Court under the Electoral Act either to grant an injunction as sought by the applicants or to give a direction to the Governor relating to the election writs. In other words, the claim raised by the applicants relate to matters which are not justiciable by the Court.

9. Second, two newspapers have been joined as respondents to the petition presumably on the basis that one of the orders sought by the applicants is that there be a “media blackout” in relation to the election. It is apparent from the applicants’ affidavits in support of the petition and the proposed statement of claim that accompanied the written submissions of the applicants that they are aggrieved about the treatment of election matters, both State and Federal, by those newspapers. They are not matters that come within the purview of the relevant provisions in the Electoral Act and, consequently, they may not be raised in any petition lodged with the Court under the provisions of that Act.

10. For these reasons I refuse the applicants’ application for leave to issue the petition and application.