Vincent v Guy - [2023] VSC 122

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COURT OF DISPUTED RETURNS

S ECI 2022 05414

DAVID VINCENT	Applicant
v
MATTHEW GUY	First Respondent
VICTORIAN ELECTORAL COMMISSION	Second Respondent

---

JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2023
DATE OF JUDGMENT:	21 March 2023
CASE MAY BE CITED AS:	Vincent v Guy
MEDIUM NEUTRAL CITATION:	[2023] VSC 122

---

COURT OF DISPUTED RETURNS – Election petition – Application for summary dismissal – Abuse of process – Scandalous, frivolous and vexatious allegations – Claims in petition incapable of supporting relief sought that was outside the power of the Court – Fitness and propriety of successful candidate not a recognised ground to invalidate election – Petition not compliant with legislative requirements – Petition dismissed – Electoral Act 2002 (Vic) ss 125-8, 133, 135-9, 143; Members of Parliament (Standards) Act 1978 (Vic); Constitution Act 1975 (Vic) s 44.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Self-represented
For the First Respondent	Mr R Ajzensztat, solicitor	HR Legal
For the Second Respondent	Ms A Wharldall of counsel	Victorian Government Solicitors Office

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 1

Evidence concerning formal requirements............................................................................... 3

Submissions........................................................................................................................................ 5

Commission’s submissions.......................................................................................................... 5
Mr Vincent’s submissions............................................................................................................ 6
Mr Guy’s submissions.................................................................................................................. 7

Legal principles.................................................................................................................................. 9

Analysis.............................................................................................................................................. 11

Conclusion......................................................................................................................................... 15

Orders................................................................................................................................................. 15

HIS HONOUR:

Introduction

On 21 December 2022, David Vincent petitioned the Court of Disputed Returns under s 133 of the Electoral Act 2002 (Vic), disputing the validity of the election of Matthew Guy as the member for the Victorian Legislative Assembly district of Bulleen. Mr Vincent sought that Mr Guy be removed from office and that he be appointed as the member for Bulleen in his stead.

Mr Guy applied to summarily dismiss the petition. For the reasons that follow, the petition will be dismissed on the basis that it is scandalous, frivolous and vexatious and is an abuse of process.

Background

While Mr Vincent petitioned pursuant to s 133 of the Electoral Act, that section provides only for a petition disputing the validity of an election. Mr Vincent initially framed the relief sought in his petition differently, namely:

(a)That [Mr Vincent] be appointed as if Governor and sit in Speaker’s or Presidents’ seat in Parliament ie to be the Speaker of the Assembly or President of the Council.
(b)That another Victorian with decades of integrity and experience fill this position.

(c) That [Mr Vincent] be returned as the member for Bullen.

The stated grounds for the relief sought were that ‘Corruption is present in Victoria’ and that ‘Matthew Guy the successful candidate is not a fit and proper person to sit in Parliament’. To support his petition, Mr Vincent pointed to the ‘joint report of the Ombudsman and IBAC Operation Watts highlighting corruption in Victoria’ and reproduced the Wikipedia entry for Mr Guy, which set out various matters from Mr Guy’s past performance of public duties as allegations against him. In the context of election issues, Mr Vincent claimed that the How-to-Vote…

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.

Keep reading for free

Create a free CaseChat account to read Vincent v Guy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSC 122
Decision Date: 21 March 2023

CaseChat Overview and Summary

Vincent brought an election petition against Guy, challenging the validity of his election to the Victorian Parliament. The Court of Disputed Returns was tasked with determining whether the petition was sufficient to warrant further proceedings. The primary legal issues the court had to address were whether the allegations in the petition were scandalous, frivolous, and vexatious, and whether they could support the relief sought by Vincent. Additionally, the court needed to decide if the fitness and propriety of Guy was a legitimate ground to invalidate the election, and whether the petition complied with the statutory requirements.

The court found that the allegations in the petition were scandalous, frivolous, and vexatious, as they were not supported by any evidence and were intended to cause unnecessary delay. The court also held that the fitness and propriety of the successful candidate was not a recognised ground for invalidating an election under the applicable legislation. Furthermore, the petition did not meet the statutory requirements as it failed to identify any specific grounds for invalidating the election. Consequently, the petition was dismissed as being outside the power of the court.

In summary, the Court of Disputed Returns dismissed Vincent's election petition, finding it to be scandalous, frivolous, and vexatious. The court held that the claims in the petition were incapable of supporting the relief sought, and that the petition did not comply with the legislative requirements. The court's decision was based on the absence of evidence to support the allegations and the lack of a recognised ground for invalidating the election.

Orders