The Australian Electoral Commission v Johnston & Ors; Wang v Johnston & Ors; Mead v Johnston & Ors

[2013] HCATrans 310

[2013] HCATrans 310

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry  No C17 of 2013

B e t w e e n -

THE AUSTRALIAN ELECTORAL COMMISSION

Petitioner

and

DAVID JOHNSTON

First Respondent

JOE BULLOCK

Second Respondent

MICHAELIA CASH

Third Respondent

LINDA REYNOLDS

Fourth Respondent

WAYNE DROPULICH

Fifth Respondent

SCOTT LUDLAM

Sixth Respondent

ZHENYA WANG

Seventh Respondent

LOUISE PRATT

Eighth Respondent

Office of the Registry
  Perth  No P55 of 2013

B e t w e e n -

ZHENYA WANG

Petitioner

and

DAVID JOHNSTON

First Respondent

JOE BULLOCK

Second Respondent

MICHAELIA CASH

Third Respondent

LINDA REYNOLDS

Fourth Respondent

WAYNE DROPULICH

Fifth Respondent

SCOTT LUDLAM

Sixth Respondent

LOUISE PRATT

Seventh Respondent

AUSTRALIAN ELECTORAL COMMISSION

Eighth Respondent

Office of the Registry
  Perth  No P56 of 2013

B e t w e e n -

SIMON MEAD

Petitioner

and

DAVID JOHNSTON

First Respondent

JOE BULLOCK

Second Respondent

MICHAELIA CASH

Third Respondent

LINDA REYNOLDS

Fourth Respondent

WAYNE DROPULICH

Fifth Respondent

SCOTT LUDLAM

Sixth Respondent

ZHENYA WANG

Seventh Respondent

LOUISE PRATT

Eighth Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Ninth Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 13 DECEMBER 2013, AT 12.00 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   I assume that representation remains as it did yesterday.  There is no need for further appearances to be announced.  I should say to all counsel and solicitors that I am grateful for the evident time and effort that went into the preparation of the minutes of orders that I was given earlier today.  I think all parties may now have a copy of a revision of that set of minutes of orders which makes a number of changes, some of which are, no doubt, likely to be the subject of some debate but, Mr Solicitor, where are we up to?

MR GLEESON:   Yes.  For our part, your Honour, I think most parties –all the changes are acceptable.  Can I just mention the matters which I understand might require any discussion?  First of all, in order 3, in the last sentence the words “and copy” can be included, so copying is okay.

HIS HONOUR:   Yes.

MR GLEESON:   Could I indicate in relation to that, I have discussed with Mr Barlow and I do not think this needs to be the subject of any order, but the result of that will be that copying will be available for the legal representatives and the documents themselves will not be made available to the ultimate clients and that is for certain reasons relating to various provisions of the Act.  However, of course, the point is made in order to get useful instructions for the filing of the submissions and possibly for other related issues in the proceedings there will need to be some communication of the contents of the documents and that will be done within the normal confines of what is necessary as judged by the legal practitioners.

HIS HONOUR:   Can I leave all of that, at least initially, as between the parties and their representatives?

MR GLEESON:   Yes.

HIS HONOUR:   You see that I proposed that it should happen at the offices of AEC rather than at the Registry.

MR GLEESON:   Yes.  Your Honour can leave it in the form.  It may well be between the parties and we will not need to trouble the Court.  We can make copies available in some more expeditious manner, but the order as it is proposed to be made will be adequate.

HIS HONOUR:   Do I need to provide in the order for which office of AEC is to be ‑ ‑ ‑

MR GLEESON:   That will be dealt with adequately between the parties.  Your Honour, the only other matter was in order 7, your Honour has perhaps taken my urgings that these parties are doing nothing but devoting their attention to this matter to a level that I was not fully contemplating.  Your Honour should know this - it does not need to go into the order.  We have obviously started work on that document and we will have the carriage of the first draft of it and we will have that circulated by midday tomorrow, Saturday. 

So what that will then mean is if your Honour leaves that as the 16th it is tight and it may be able to be done.  I think some people would like a little longer, back closer towards the 20th, but your Honour can be sure that we will have the draft circulated by tomorrow.  So it is really a matter of whether the 16th is just too tight for all the other parties to respond to our document.

HIS HONOUR:   I understand the pressure that that date of 16 puts on the parties.  It is connected with the removal of the sentence which in the original draft appeared last.  That sentence contemplated that there would be the possibility of disputes about fact.  What underpins this draft is an assumption that should be made express so that the parties know what is driving it. 

The assumption was that if there were facts which parties ultimately would seek to dispute, the relevant fact is set out as the assertion of one or other of the petitioners, and that I do not expect that the questions of law would be determined on the basis of an admission of that fact but on the fact that it is asserted – somebody wants to be super cautious – but denied that, the facts are as follows and having regard to that change to what the parties had agreed upon, I wanted to leave a sufficient cushion to be able to bring it back on urgently if it looked as though a wheel was coming off the cart, so that is why the 16th, that is why the omission.

MR GLEESON:   Yes.  Well, we understand that, your Honour, and for our part we think stick with 16 and work towards it and then if a problem emerges – hopefully it will not, but if it has emerged by Tuesday morning the parties will need to approach the Court – we hope that will not happen - and the drafting will attempt to anticipate what your Honour has raised and ‑ ‑ ‑

HIS HONOUR:   It seemed to me that there is no difficulty about hypotheticality or anything like that if questions of law go forward on the basis of what is either agreed or asserted. 

MR GLEESON:   Yes.  The one area – and I will put this, as it were, for the other parties not us, but some parties here are obviously very interested in the documents that we will be producing on or before next Friday and may want to argue facts based on the records of the original scrutiny.  We will just have to grapple with that if people want to have facts of that character.  It may be one party wants to say on the night that 1,370 were counted and this was the result.  On the fresh scrutiny they were counted, this was the result.  They were pretty close together.  That is the fact we want as a fact from which legal argument can be raised.  But I am hoping we can accommodate that.

HIS HONOUR:   In a sense that highlights one of the basic issues which is going to have to be thrashed out on these questions of law and that is whether, as the Act says, in effect, the election is by scrutiny.

MR GLEESON:   Yes.

HIS HONOUR:   Or whether it is by scrutiny and some mixture of secondary evidence and what we then do with these questions about 365 and the provision that says that parties can have access to some things but not papers, et cetera. 

MR GLEESON:   Yes, and for our part it will be put as let it be assumed that the count on the night was relatively close to the count in the fresh scrutiny but the ballot papers are now lost and in the recount the scrutiny process could not be conducted in respect of the ballot papers and, a fortiori, cannot be even contemplated by the Court, then how does 365 operate.  So it really does set up the question ‑ ‑ ‑

HIS HONOUR:   Well, how does 365 in the context of the whole Act ‑ ‑ ‑

MR GLEESON:   Of the whole Act.

HIS HONOUR:   ‑ ‑ ‑ and what weight, if any – I do not know – is to be given to the notion that election is by scrutiny.

MR GLEESON:   Yes.  So, your Honour, subject to those two matters, the first is simply to include the words “and copy” in paragraph 3, and the second is we are not arguing against the change to paragraph 7.  There is nothing else we wish to raise.

HIS HONOUR:   Paragraph 3, just take out “at [insert]” in line 4, so “at its office” without specifying the office.

MR GLEESON:   Yes.

HIS HONOUR:   I suppose I should have, should I not, reserved liberty to apply on what, 24 hours’ notice in writing to opposite parties?

MR GLEESON:   Yes, that would be sufficient, your Honour.

HIS HONOUR:   Yes, thank you, Mr Solicitor.  Now, do I simply go down the indictment or do parties wish to – Mr Barlow, you are looking very agitated.  Perhaps if I hear from you first.

MR BARLOW:   I am not intending to be agitated, your Honour.  We agree with our learned friend, the Solicitor‑General, your Honour, save in

respect of paragraph 7.  We would ask – and we hear what your Honour says – we would ask for perhaps a slight extension on that to maybe 12 noon Melbourne time on the 17th, for a couple of reasons.  One is if it were to be on or before the 16th, that would of course be by 4.00 or 5.00 pm that afternoon Melbourne time which would only be early afternoon Perth time, and I am allowing 12 noon ‑ ‑ ‑

HIS HONOUR:   I will go to “on or before 12 noon 17”, Mr Barlow, but that is Australian Eastern ‑ ‑ ‑

MR BARLOW:   Australian Eastern time, yes, that is what we are seeking, your Honour.  If your Honour is prepared to do that, I need say no more.

HIS HONOUR:   Yes.

MR BARLOW:   Thank you, your Honour.

HIS HONOUR:   Does any other party – firstly, in Melbourne, seek to be heard in respect of either the content or the form of the orders?

MR BENNETT:   Your Honour, I do not, thank you.

HIS HONOUR:   Yes.Ms Gordon.

MS GORDON:   I do not, your Honour.

HIS HONOUR:   Does any party in Perth seek to be heard?

MR THOMSON:   No, your Honour.

HIS HONOUR:   Thank you, Mr Thomson.  Then there will be orders in terms of the draft that has been provided to the parties with the following amendments:  paragraph 3, line 4, delete the words “at [insert]”, the final line of paragraph 3, delete the brackets and the shilling stroke “but not copy”; paragraph 7, amend the time to read “On or before 12 noon on 17 December” and for the avoidance of doubt I simply inform counsel and solicitors that the timing is given in Australian Eastern Summer Time; paragraph 13, add “Grant liberty to any party to apply on not less than 24 hours’ notice in writing to other parties”.

There is, of course, no need to record this in the order but can I just say to counsel and their solicitors that there are going to be evident difficulties during the early part of January in trying to sort out any issues that emerge.  It is obviously desirable that if problems are starting to loom in this next week, we try to, first, identify them; second, if needs be, pull it back on for further hearing and nip it in the bud. 

It will be indeed unfortunate if we come to the hearing date of 29, 30 and discover only then that there are problems, and even in the week preceding Australia Day we are getting perilously close to hearing.  So, with those minatory words ringing in the ears of counsel, is there any other matter that counsel desire to raise – firstly, in Melbourne?  No.  In Perth? 

MR THOMSON:   No, your Honour.

HIS HONOUR:   No.  Very well, there will be orders in those terms, and I will adjourn.

AT 12.14 PM THE MATTER WAS ADJOURNED