Vardon v O'Loghlin - [1907] HCA 69

JOSEPH VARDON

JAMES VINCENT O'LOGHLIN

ON A REFERENCE BY THE SENATE OF THE COMMONWEALTH The Constitution (63 &64 Vict. c. 12), sec8. 13, 15, -Election of senators-Void

as to return of one senator- Vacancy in Senate-Election of senator by State Parliament- Validity of election disputed-Reference to High Court-Disputed Elections and Qualifications Act 1907 (No. 10 of 1907), sec. 2.

The Court of Disputed Returns having declared a periodical election of senators for the State of South Australia absolutely void as to the return of one senator, the Houses of Parliament of the State, sitting together, and assuming to act under sec. 15 of the Constitution, chose a senator to fill the vacancy.

On a petition to the Senate, removed into the High Court as the Court of Disputed Returns under sec. 2 of the Disputed Elections and Qualifications

Held, that the vacancy existing after the declaration by the Court of Disputed Returns was not a vacancy arising in the place of a senator before the expiration of his term of office within the meaning of sec. 15 of the Constitution, and, therefore, the choice or election of a senator by the State Parliament was null and void.

PETITION removed from the Senate into the Court under sec. 2 of the Disputed Elections and Qualifications Act 1907.

Joseph Vardon, the petitioner, was returned at the election of 1906 as one of the three senators elected to represent the State of South Australia, but on a petition presented to the Court of Disputed Returns the election of senators for that State was declared absolutely void in respect of his return. Thereupon the Houses of Parliament of the State, sitting together and assuming

5 CLR 202

to act under the provisions of sec. 15 of the Constitution, chose

James Vincent O'Loghlin, the respondent, to hold the place then vacant in the representation of the State in the Senate.

The petitioner then presented this petition to the Senate, asking that the choice or election by the State Houses of Parlia- ment of the respondent to hold the place of senator for the State might be declared null and void, that it be declared that the respondent had not been duly chosen or elected as a senator, or to hold the place of a senator, and had no right or title to sit vote, or act as a senator, and that the seat of one senator for the State be declared vacant, with a prayer for costs against the respondent.

The matter was then referred to the Court under the Act No. 10 of 1907.

The facts having been fully stated in the report of the case of The King v. The Governor of the State of South Australia 1, it is not necessary to make further reference to them here.

Piper, for the petitioner. Sec. 15 of the Constitution has no application to the facts of this case. From the date of the declaration by the Court of Disputed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vardon v O'Loghlin

Details

AGLC: Vardon v O'Loghlin [1907] HCA 69
Case: [1907] HCA 69
Decision Date: 20 December 1907

CaseChat Overview and Summary

The case of Vardon v O'Loghlin concerned a dispute over the filling of a vacancy in the Senate. Joseph Vardon had been elected as a senator for South Australia, but his election was subsequently declared void by the Court of Disputed Returns. Following this declaration, the Houses of the South Australian Parliament, sitting together, purported to elect James Vincent O'Loghlin to fill the vacancy under section 15 of the Constitution. Vardon petitioned the Senate, seeking a declaration that O'Loghlin's election was null and void, which led to the matter being removed to the High Court as the Court of Disputed Returns.

The central legal issue before the High Court was whether the vacancy created by the declaration that Vardon's election was void fell within the scope of section 15 of the Constitution. Specifically, the Court had to determine if this constituted a vacancy arising in the place of a senator before the expiration of their term of service, thereby authorising the State Parliament to elect a replacement. Alternatively, the Court considered whether such a voided election meant that no senator had ever been validly elected, thus requiring a new popular election to fill the vacancy.

The Court reasoned that section 7 of the Constitution, which mandates that senators be "directly chosen by the people of the State," represented the dominant principle governing the composition of the Senate. Section 15, which allows for election by State Parliaments, was considered ancillary and applicable only to specific circumstances. The Court held that a vacancy arising from an election declared void was not a vacancy occurring in the place of a senator who had a term of service, but rather a situation where no valid election had occurred. Consequently, the State Parliament's election of O'Loghlin was deemed null and void, as section 15 did not apply to a situation where there was no senator with a term of service to become vacant.

The Court ordered that the election of James Vincent O'Loghlin by the Houses of the Parliament of South Australia was null and void. It was declared that O'Loghlin had not been duly chosen or elected as a senator and had no right or title to sit, vote, or act as such. The Court further declared that the seat for one senator for South Australia remained vacant, to be filled by a new popular election.

Orders