Vincent v Guy
[2023] VSC 122
•21 March 2023
| 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 |
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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 |
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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.
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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 cards used by Mr Guy in the election ‘were not approved and used as intended by the law’. He said, ‘I strongly suspect [the card] was used without permission and was offensive to certain tastes. The extra advertising and marketing material handed to electors just before entry to the polling station is a breach of the spirit and intent of the law’.
Mr Guy’s solicitor, Mr Rohan Ajzensztat, deposed by an affidavit sworn 14 February 2023 that the signature of one of the witnesses to the petition – one Robert Richter – appeared to have been added to the document digitally. He deposed to making enquiries of Robert Richter KC who stated to him that the signature appeared to be his but he was unaware how it came to be affixed to the petition, had no recollection of the petition or of witnessing any documents for the Court of Disputed Returns, adding that he did not believe he would have witnessed such a document. In a further telephone discussion, Mr Richter told Mr Ajzensztat that having conferred with his secretary (the other witness to the petition) he recalled having signed a handwritten document that was not the petition and he did not believe he witnessed the applicant sign the petition.
An initial directions hearing in the proceeding was held on 15 February 2023:
(a) I granted Mr Guy leave to be represented by a legal practitioner, pursuant to s 128 of the Electoral Act. Mr Vincent did not oppose leave being granted. I noted that the purpose of the default prohibition on legal practitioners is to contain costs and that this objective might later be relevant to any application for an order for costs in the proceeding;
(b) The Victorian Electoral Commission applied to be represented in the proceeding pursuant to s 136 of the Electoral Act. I granted the Commission leave to do so, constituting it a respondent party to the petition;
(c) Mr Guy foreshadowed an application for summary dismissal of the petition;
(d) Mr Vincent indicated an intention to amend the petition and would do so in advance of the summary dismissal application.
Mr Guy filed a summons for the summary dismissal of the petition, and, on 22 February 2023, Mr Ajzensztat swore a further affidavit in support of that application. The affidavit:
(a) exhibited a true copy of the results from the Bulleen election, showing that out of 42,959 formal votes, Mr Guy received 20,645 first preference votes (48.06%), and that Mr Vincent received a total of 214 first preference votes, which was the lowest number of votes recorded in the election by any of the eight candidates who contested it. Following the distribution of preferences, Mr Guy won the election with 22,374 votes (52.08%), defeating Mr Ian Rogers (14,829 -34.52%) and Ms Kellie Stafford (5,756 – 13.4%);
(b) explained that the How-To-Vote cards of the Liberal Party of Australia (Victoria Division) were registered with and approved by the Commission; and
(c) noted that the Wikipedia entries cited by the applicant were already in the public domain and available to any person, including the voters in the Bulleen District, prior to the election.
On 20 February 2023, and then again on 23 February 2023, Mr Vincent circulated his proposed amended relief, which now seeks that:
(a) Matthew Guy be impeached; and
(b) Mr Vincent be returned as the member for Bullen. Or that another Victorian with decades of integrity and experience fill this position.
Evidence concerning formal requirements
During the hearing, and in response to Mr Ajzensztat’s affidavit about the authenticity of the witness signature on his petition, Mr Vincent gave evidence about signing the petition before witnesses,[1] and was cross-examined by Mr Ajzensztat. Mr Vincent declined to cross-examine Mr Ajzensztat on his affidavits.
[1]Electoral Act 2002 (Vic) s 135(1)(c) governs this particular requirement.
Mr Vincent gave a detailed explanation about how the petition was signed and attested. He stated that that he attended Crockett Chambers, Mr Richter’s chambers, after ‘wandering around quite a few of the chambers there’. He knew of Mr Richter, a Melbourne barrister, by reputation. He approached Mr Richter’s secretary, Ms Bradley, who he says agreed to act as a witness. He explained that he needed a second witness as Mr Richter walked by and that he agreed to sign the document.
Mr Vincent said while both witnesses only saw the final page of the document (which contained no more than an attestation clause), Mr Richter asked what the document was and Mr Vincent replied: ‘A petition to the Court of Disputed Returns to stop corruption in Victoria’. Mr Vincent said Mr Richter said something to the effect of: ‘It would be good if we had less corruption’. Mr Richter then signed the petition without reading it, followed by Mr Vincent and Ms Bradley.
Mr Vincent later realised the signatures were on a blank page at the end of the document. He cut and pasted the attestation appearing on the blank page to the previous page of the document immediately following the end of the text, noting that he advised the witness about the nature of the document before they signed.
Mr Ajzensztat acknowledged that Mr Guy was relying on hearsay, submitting, correctly,[2] that the Court of Disputed Returns was not bound by the hearsay rule,[3] which was why he did not seek affidavits from either witness directly.
[2]Ibid ss 126 and 127.
[3]Evidence Act 2008 (Vic) pt 3.2.
In the absence of any direct evidence from Mr Richter or Ms Bradley, I would be inclined to prefer Mr Vincent’s evidence to the hearsay offered by Mr Ajzensztat. That said, I have reservations about the circumstances described by Mr Vincent. He described Mr Richter signing a petition against corruption, a sentiment with which Mr Richter is said to have agreed, rather than a petition disputing the validity of an election, doing so without reading the document and prior to Mr Vincent signing it. Mr Richter’s recollections, as reported by Mr Ajzensztat, to the effect that he could not remember signing such a document or believes he would not have done so, are a definitive or positive denial of an attestation that would strictly accord with s 135(1)(c) of the Electoral Act. The untested explanation may be open that Mr Richter thought the blank page he signed was not an Electoral Act petition, but rather a general petition for action against corruption directed to an unidentified recipient.
As I will explain, it is unnecessary to form a concluded view as to whether Mr Vincent’s petition was validly witnessed, noting that the Act necessarily requires that a petition comply with the requirements of s 135(1).
Submissions
It is convenient to note, firstly, the Commission’s submissions.
Commission’s submissions
The Commission submitted that the proceeding should be determined in the exercise of the court’s powers under s 125 of the Act.
The Commission contended that there are limited bases on which an election may be disputed by petition to the Court of Disputed Returns under s 133 of the Act. These bases are identified in the surrounding sections.
(a) Section 138 provides for the matters that the court must inquire into, which includes whether the petition complies with s 135 procedural requirements, and whether persons who voted were entitled to do so and whether their votes were improperly admitted or rejected.
(b) A breach of ss 151 or 152 of the Electoral Act, which prohibits bribery or interference with political liberty, such as by intimidation of voters, would support a petition for a declaration that the election was void.
The validity of the election cannot be contested by proof of alleged breaches of the Crimes Act1958 (Vic) or the Members of Parliament (Standards) Act 1978 (Vic). A general claim about sufficiency of information provided to the electorate is also not a matter into which the court may inquire. The court does not regulate the marketplace of ideas and policies. The fitness and propriety of a candidate, in particular, is not a matter expressly or implicitly raised by the Electoral Act as a basis on which a candidate for the election in dispute may petition the Court of Disputed Returns. It would accordingly be inappropriate for the Commission or the Court to evaluate such matters.
As to the How-to-Vote cards, the Commission submitted that the issue is not developed in the petition. How-to-Vote cards do not need to be registered in order to be handed out at pre-polling stations. Materials handed out at those stations cannot be misleading and deceptive, but no allegations of that kind were raised in the petition and it is not suggested that, or how, the result of the election was affected by any irregularity with How-To-Vote cards.
Mr Vincent’s submissions
In oral submissions on the summary judgment application, Mr Vincent clarified that he limited the relief sought to declaring the election invalid, or declaring that the candidate who was declared elected was not elected, on the grounds that Mr Guy is not a fit and proper person to be elected as a member of Bulleen, to keep his claim within the powers given to the court by s 125 of the Electoral Act. Mr Vincent submitted that the Electoral Act allows the court to declare who the ‘correct’ elected person was, in the sense that the ‘correct person’ is not the person who got the most votes, but the person who won the favour of the ‘substantive hearts and mind of the electorate’.
Mr Vincent located the relevance of allegations about Mr Guy’s character in the Standards Act, which provides for the values that members should demonstrate in carrying out their public duties.[4] He submitted that this court could apply those provisions when sitting as the Court of Disputed Returns but could not identify any express power to do so. He accepted that s 5A of the Standards Act provides that the Code of Conduct does not create any cause of action or affect in any way the interpretation of any other law in Victoria and that the Standards Act does not provide any mechanism for a member of the public, or a failed candidate at an election, to enforce its provisions against a member of Parliament. Nevertheless, he persisted in his submission that the Electoral Act implicitly permits the application of the standards set out in the Standards Act because it is bound by the rules of natural justice (s 127) and because a failure to meet those standards meant that Mr Guy was never a valid candidate for the election.
[4]In particular, Members of Parliament (Standards) Act 1978 (Vic) ss 3-5 and the Code of Conduct in pt 3.
Mr Vincent submitted that if Mr Guy had been successfully prosecuted for the ‘implicit criminal offences’ alleged in the petition (by reproduction of material sourced from Wikipedia) then he would not have been able legally to stand as a candidate. If Mr Guy is found by the court to have committed these alleged wrongdoings on the balance of probabilities, sufficient basis to disqualify him as a candidate for election will be shown. If the court was not persuaded, the evidence should at least speak to his character and values, which should be relevant to his standing as a candidate. Wikipedia is a public journalism website which should be sufficient to establish a prima facie case against Mr Guy. As this is a civil case, ‘it’ will be decided on a balance of probabilities, so Mr Guy is obliged to put on evidence to answer the case against him. Accordingly, the petition cannot be summarily dismissed.
In response to Mr Ajzensztat’s affidavit in support of the summary dismissal application, Mr Vincent contended that while he does not dispute the official voting figures or contest the validity of the processes by which those figures were generated through the election, if the electorate had been informed and not subjected to advertising then it is ‘highly probable’ Mr Guy would not have won the election. Further, the How-to-Vote cards are confusing and contain information that is impermissible, offensive, misleading or deceptive. The Electoral Act shows that the intention for the card is to be a public document with no advertising and only a little marketing.
Mr Guy’s submissions
As Mr Guy submitted, this court may dismiss the petition under s 125(h) of the Act which grants an express statutory power to dismiss the petition in whole or in part, or on the basis that it adopts r 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) which empowers the court to dismiss a claim on the basis that it is scandalous, frivolous or vexatious, or an abuse of process. That is so as pursuant to s 127(1)(b) of the Electoral Act, the Court of Disputed Returns is not bound by any practices or procedures applicable to courts of record except to the extent it adopts those processes. Proceeding under r 23.01 informs the basis on which the power of dismissal is exercised and I adopt that process.
Mr Guy submitted that the court should dismiss the application because:
(a) The court does not have power to make the orders Mr Vincent seeks. The court’s powers are defined by s 125 of the Act. While the court’s powers include declaring the election void, declaring that any candidate who was declared elected was not elected, or declaring that any candidate who was not declared elected was elected, there is no power to ‘impeach’ as Mr Vincent claims by his proposed amended petition.
(b) Mr Vincent has not provided a single reasonable basis for declaring the election void. His allegation of implicit criminal offences are not referable to the offences under ss 151 – 152, given that by s 140 of the Act if the court finds that a person declared elected has committed at any election an offence against those sections, it must declare the election void.
(c) There is no evidence before the court, only assertions extracted from Wikipedia.
(d) The How-to-Vote cards were duly approved by the Commission and the petition doesn’t particularise how the cards fall foul of regulation.
(e) There is no allegation that any non-compliance with electoral regulations affected the outcome of the election for Bulleen, which is a necessary condition for the court to interfere with an election under s 139 of the Act.
(f) The crux of the petition is the unfounded allegation that Mr Guy is not a fit and proper person to occupy the Bulleen seat, but that is not a ground found in the Act and it is not something that affected the result of the election in the relevant sense.
(g) Section 44 of the Constitution Act 1975 (Vic) provides grounds for disqualification of an elected member of the Assembly. A person will be ineligible for election if they are an undischarged bankrupt, or have been convicted or found guilty of an indictable offence punishable by imprisonment of five years or more. The petition makes no such allegation.
Mr Guy also submitted that the petition suffered procedural defects that rendered it non-compliant with s 135 of the Electoral Act, compliance with which is a mandatory precondition for the court to entertain a petition under s 133 of the Act.
(a) The petition is not validly witnessed for the reasons set out in Mr Ajzensztat’s affidavit, as required by s 135(1)(c) of the Act; and
(b) Mr Vincent seeks impermissibly to amend his petition beyond the statutory deadline for the filing of a petition, as set out in s 135(1)(d) of the Act.
Legal principles
The Electoral Act governs the jurisdiction and powers of the Court of Disputed Returns. This includes that the court as constituted acts fairly according to the substantial merits of the petition,[5] is bound by the rules of natural justice, is not bound by the rules of evidence or any practices and procedures applicable to courts of record, and must conduct each proceeding with as little formality and technicality as the requirements of the Act permit.[6]
[5]Electoral Act s 126 (n 1).
[6]Ibid s 127.
It is appropriate that Mr Vincent’s petition be given some latitude and not determined by the rigorous application of technical or legal rules. Mr Vincent is a self-represented litigant. Section 128 of the Act contemplates that parties to this court should not be represented by a legal practitioner unless leave is granted to do so, reinforcing that a less formal approach should be taken to the hearing and adjudication of petitions under s 133 of the Act. I approach Mr Vincent’s petition and his submissions on Mr Guy’s application with a measure of flexibility, concentrating on the notion of fairness in dealing with whatever may be the substantial merits of his complaint.
That said, the court must remain vigilant in the same way as the Supreme Court does to protect itself against abuses of its process. It has, no less than the Supreme Court does, an obligation to safeguard the administration of justice in the context of disputed elections. The principles of natural justice and fairness, which the Court of Disputed Returns is obliged to uphold under the Act, must extend to all parties before the court, including the respondent. For that reason, a proceeding that is vexatious, an abuse of process or entirely devoid of legal basis will not be entertained by the court. It is desirable to draw on the rules that govern civil procedure in this regard, which this court may do pursuant to s 127(1)(b) of the Act.
Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides:
Where a proceeding generally or any claim in a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
In Hoh v Frosthollow, the court summarised how the terms ‘scandalous’, ‘frivolous’ and ‘vexatious’ are defined in the cases. Derham AsJ observed:[7]
(a)Scandalous: Allegations made in a pleading for the purpose only of abusing or injuring the opposite party and allegations which are indecent or offensive are scandalous within the meaning of the rule, and liable to be struck.
(b)Frivolous or vexatious: These words in combination have traditionally been used to describe a wide variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit.
[7]Hoh v Frosthollow Pty Ltd [2014] VSC 77 (citations omitted).
In addition, a proceeding may be summarily dismissed where it is an abuse of process of the court, which includes a proceeding that is frivolous or vexatious,[8] or if it ‘can be clearly seen to be foredoomed to fail’[9] or where it will ‘inevitably fail’.[10]
[8]Walton v Gardiner (1993) 177 CLR 378, 393.
[9]Ibid.
[10]R v Smith[1995] 1 VR 10, 15.
The Court of Disputed Returns can dismiss a petition under s 125(h) of the Electoral Act. Alternatively a petition which is an abuse of process, irrelevant, scandalous, incapable of being proven in an acceptable manner, or which raises matters beyond the powers of the Court of Disputed Returns can be struck out[11] and, using the court’s powers under ss 126 and 127(1)(b) of the Electoral Act, may also be summarily dismissed.
[11]Rule 23.02; see Donohue v Victorian Electoral Commission [2015] VSC 98, [13].
Analysis
The validity of an election can only be disputed by means of a petition to the Court of Disputed Returns (s 133).
The powers of the Court of Disputed Returns in relation to a petition are set out in s 125:
Powers of Court
The powers of the Court of Disputed Returns in proceedings in relation to a petition include—
(a) the power to adjourn;
(b)the power to compel the attendance of witnesses and the production of documents;
(c)the power to grant to any party to a petition leave to, in the presence of a person employed by the Commission, inspect the ballot material (other than ballot-papers) used at or in connection with any election and to make copies of the ballot material;
(d)the power to examine witnesses on oath or affirmation;
(e)the power to declare that any candidate who was declared elected was not elected;
(f)the power to declare that any candidate who was not declared elected was elected;
(g)the power to declare any election void;
(h)the power to dismiss or uphold the petition in whole or in part;
(i)the power to award costs;
(j)the power to punish any contempt of its authority by fine or imprisonment.
I pause to note that the Legislative Assembly or the Legislative Council can refer questions as to qualifications or vacancy to the Court of Disputed Returns under s 143 of the Act, and the Court then has the powers outlined in s 146 of the Act, including the powers to declare a person was not qualified to be a member of Parliament, to declare a person was not capable of being elected or of sitting, and to declare there is a vacancy in Parliament. This is not an application under s 143. It was originated by a petition by Mr Vincent, not by a referral by the Legislative Assembly. The powers of the court under s 146 are not enlivened.
At various points throughout the hearing, Mr Vincent made differing submissions about the jurisdiction and powers of the Court of Disputed Returns, displaying an inadequate grasp, not just of the provisions of the Electoral Act, but also of constitutional history and the nature of a common law court. Save to note that Mr Vincent was mistaken on all counts, I will not burden these reasons with a recitation of these eccentric notions. The Court of Disputed Returns does not have the broad and sweeping powers Mr Vincent suggested. The court is a creature of statute, enlivened by the issue of a petition and its service upon the respondent, and constrained by the powers outlined in the Electoral Act. This court has no inherent jurisdiction to deal with matters outside the Act’s confines and must deal with the petition only by exercise, if appropriate, of the powers afforded to it.
There is no power afforded by the Act to award any of the relief Mr Vincent variously claimed in his petition or amended petition. This court cannot impeach a member of Parliament. It cannot appoint Mr Vincent ‘as if Governor’ or to be the Speaker of the Legislative Assembly, nor ‘another Victorian with decades of integrity and experience’. These purported powers of the court simply do not exist. While ss 125 and 133 enable the court, on the application of a person meeting the description in s 134, to declare that Mr Guy was not elected, or that a candidate (which Mr Vincent was) who was not declared elected was elected or that an election was void, the applicant for such declarations must be fairly entitled to such relief according to the substantial merits of a petition ( s 126) that complies with the requirements of the Act (s 135).
It is worth restating that Mr Vincent only decided to limit his claim within the powers set out in s 125 of the Electoral Act during the hearing of Mr Guy’s application. Nowhere in Mr Vincent’s petition or proposed amended petition does he request relief that would be properly within the Court’s powers. Mr Guy opposes the application to amend, while submitting that his contentions apply equally to the petition in its original or amended form. Section 135(a) states that a petition must set out the facts relied on to dispute the election. Section 135(b) requires that the petition set out the order sought from the Court of Disputed Returns, and s 138 binds the court to inquire whether the petition complies with s 135. Mr Vincent’s petition fails to meet the requirements of s 135. It does not set out facts that Mr Vincent could rely on to dispute the election (s 135(1)(a)) by reference to an order that this court can give. It does not set out the order sought from the court (s 135(1)(b)).
The proposed amendments are futile. The amended petition would be foredoomed to fail and will not be allowed. Further, any substantive amendment, were it not untenable and futile, might not be a petition filed within 40 days of the return of the writ, but it is not necessary to consider whether substantive amendment of a petition out of the statutory limitation period may be permitted.
So much is sufficient to require that I must summarily dismiss the petition.
Nevertheless I will briefly state why Mr Vincent’s requests for relief as they were formulated in oral submissions – that is, the relief under s 125(e) declaring that Mr Guy was not elected, under s 125(f) declaring that Mr Vincent was elected as the member for Bulleen and under s 125(g) declaring the election in the Bulleen District to be void – are untenable or fanciful.
As I have noted, Mr Vincent is required under s 135(1)(a) to set out the facts relied on to dispute the election. Mr Vincent proffered the purported breaches of the Standards Act, and what he had downloaded from Wikipedia as indicating Mr Guy was not a fit and proper person or candidate, as facts supporting granting the relief.
Conclusionary statements asserting purported breaches of the Standards Act raised by a member of the public are entirely insufficient to stand as facts to make out a petition under the Electoral Act. There is nothing in the Standards Act that gives a member of public any standing to complain that members of the parliament fail to demonstrate the values identified in s 4 of the Act. The Code of Conduct articulated in pt 3 of the Act that members must observe when carrying out their public duties in order to demonstrate the values identified in s 4, does not create in any person any legal right or give rise to any civil cause of action. It does not affect in any way the interpretation of any Act or law in force in Victoria. I am assuming, without deciding, that standing as a candidate for re-election can fall within the concept of ‘public duties’. Without the benefit of that assumption, the Act must be entirely inapplicable.
The Electoral Act does not incorporate by reference, whether expressly or impliedly, the provisions of the Standards Act to which Mr Vincent referred. As its name suggests, it outlines a set of standards to which members of Parliament should adhere. Compliance with those standards is a matter for members of Parliament. So much is clear from pt 5 of the Standards Act. A member of Parliament can refer an alleged contravention of the Code of Conduct to the Presiding Officer of the House, who must respond in accordance with s 30. That may include referral to the relevant Privileges Committee or the appropriate law enforcement agency. Referral to the Court of Disputed returns is not contemplated.
As both the Commission and Mr Guy correctly submitted, the Electoral Act does not empower a failed candidate to challenge the validity of an election by making allegations about the fitness or propriety of the candidate declared elected. In our democratic system that assessment rightly falls to the electorate. In every respect in which Mr Vincent contended that Mr Guy was not a fit and proper candidate, the material that he points to in support of that assertion (Wikipedia) was publicly available to electors before they cast their votes. In this context, there is no act, matter or thing which the Court of Disputed Returns might consider affected the result of the election (s 139).
The issue of a purported irregularity of the How-to-Vote cards cannot demonstrate a basis to dispute the election. Mr Vincent cannot contest that Mr Guy’s How-to-Vote cards were duly registered. Mr Vincent makes no other allegation and has no evidence of any other irregularity in the cards. He put to the court that he felt rather a ‘strong [suspicion] this was used without permission and was offensive to certain tastes’.
The various claims made throughout the hearing that Mr Guy had committed ‘malfeasance in public office’ and voters had acted ‘under duress’ in electing him were scandalous and unsupported.
Returning to the condition that the Court of Disputed Returns must not declare an election void on account of any act, matter or thing which in the opinion of the Court did not affect the result of the election,[12] Mr Vincent’s petition does not attempt to substantiate a claim that the result of the election was affected by any of the matters about which he complains.
[12]Electoral Act s 139 (n1).
Conclusion
I have concluded that the petition is not based on any recognised legal ground and allegations made in the petition are irrelevant, inappropriate, scandalous, or incapable of proof or substantiation in some other acceptable way. Its basic premise is founded on matters beyond the powers of the Court of Disputed Returns and it invites examination by the court of wholly irrelevant material.[13] It is therefore scandalous, frivolous and vexatious, because it is groundless and lacking in basis or merit.[14] It is also an abuse of process in that it is foredoomed to fail,[15] or will inevitably fail.[16]
[13]Donohue, [12]-[13] (n11).
[14]Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580, 594 [35].
[15]Walton (n 8).
[16]Smith (n 10).
The petition must be dismissed under s 125(h) of the Electoral Act, or, incorporating the summary dismissal process under r 23.01 of the Rules, pursuant to ss 126 and 127(1)(b) of the Electoral Act.
Orders
Mr Vincent’s application to amend his petition is refused. I will order that Mr Vincent’s petition, filed 21 December 2022, be dismissed.
The court has the power to award costs under s 125(i) of the Electoral Act. Mr Guy seeks costs on an indemnity basis on the grounds that it was unreasonable for the applicant to have persisted with his contentions.[17]
[17]Green v Bradbury (No 2) [2011] FCA 496, [19].
The Electoral Act contemplates a procedure where applicants can approach the court to challenge the validity of an election without legal representation. This is no doubt intended to advance a purpose of the Act being to safeguard the democratic process in Victorian elections. Although I warned Mr Guy that in seeking leave to be legally represented in this case, he might not recover those costs, he was required to respond to an entirely unmeritorious petition that challenged his entitlement to be the member for Bulleen. It is one thing for a respondent to be obliged to come to court, incurring legal costs in doing so, to defend a legitimate dispute that the election he won was invalid. The contextual implications that the court operate with less formality and at minimum cost are a factor to be considered in exercising the unfettered discretion granted by s 125 of the Act to award costs against an unsuccessful party to the petition.
That was not this case. The petition is an abuse of process, foredoomed to fail. It was an exercise in vanity. It would be unfair to leave the respondent without recourse. It is just in the circumstances that Mr Vincent pay Mr Guy’s costs.
That said, I am satisfied that Mr Vincent’s application was based on a misconceived, though genuinely held, belief that it was open to him to challenge the election by petition in this way. I do not find he intended to abuse court process or needlessly waste public resources as he did. He was not legally assisted, stating that he could not find a lawyer to help him, and that lack of guidance is probably what resulted in his unsustainable petition.
Balancing all the circumstances, I will order that Mr Guy’s costs be assessed on the standard basis.
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