1. That the notices of motion of the first and second respondents be stood over for the hearing of further argument as to the thirteenth and fifteenth allegations in Petition No. S71 of 1993 (p.12, par(b), and, p.13, par.(b), respectively).

2. That, subject to Order 1 and save to the extent of the sixth and the part of the ninth and tenth allegations, that "persons unlawfully marked ballot papers to which they were not entitled" and that "(p)ersons voted, who were not entitled to vote" (p.7, par.(c) and, p.10, par.(a) of the Petition, respectively) and as particularized in the Petition, there be no further proceedings on the Petition.

3. That the petitioner be relieved from c0mpliance with s.355(aa) of the Commonwealth Electoral Act 1918 (Cth) in relation to the sixth allegation that "persons unlawfully marked ballot papers to which they are not entitled" (p.7, par.(c) of the Petition), on terms that, within 21 days hereof, he provide particulars of the ballot papers involved.

4. That the petitioner have access to the Electoral Rolls used in the election for the Commonwealth Division of Macquarie held on 13 March 1993.

5. That, save to the extent of Orders 3 and 4, the petitioner's notice of motion be dismissed.

6. That the petitioner have liberty to a0pply within 7 days hereof for relief under s.358(2) of the Commonwealth Electoral Act 1918 (Cth) with respect to the part of the ninth and tenth allegations that "(p)ersons voted who were not entitled to vote" (p.10, par.(a) of the Petition).

7. Liberty to apply with respect to costs.

Decision

GAUDRON J Alasdair Paine Webster ("the petitioner") has filed a petition ("the Petition") in this Court, sitting as the Court of Disputed Returns, pursuant to s.353(1) of the Commonwealth Electoral Act 1918 (Cth) ("the Act"), disputing the election of Maggie Deahm ("the respondent") as the Member for the Commonwealth Electoral Division of Macquarie at the House of Representatives elections held on 13 March 1993. The petitioner was an unsuccessful candidate for that Division, having been defeated by the respondent by 165 votes.

2. The Petition also contains a claim that "the General Election held for Members of the House of Representatives ... be declared void" and that "there be a fresh General Election throughout Australia for the House of Representatives". That claim has since been abandoned and it is accepted by the petitioner that, to the extent that it raises matters going only to that claim, the Petition must be dismissed.

Notices of motion
3. There are three notices of motion before the Court. The first was filed on behalf of the Electoral Commissioner ("the Commissioner"). It seeks orders setting aside nominated paragraphs of the Petition which, it is claimed, inter alia, do not comply with one or other of pars (a) and (aa) of s.355 of the Act. The second…

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 Webster v Deahm

Details

AGLC: Webster v Deahm [1993] HCA 38
Case: [1993] HCA 38
Decision Date: 30 July 1993

CaseChat Overview and Summary

Gaudron J heard an appeal from a decision of the Supreme Court of New South Wales in *Webster v Deahm*. The dispute concerned the interpretation of a clause in a deed of settlement, which stipulated that the respondent, Mr Deahm, was to pay the appellant, Mrs Webster, a sum of money upon the occurrence of a specific event. Mrs Webster contended that this event had occurred, entitling her to payment, while Mr Deahm argued that the event had not yet transpired.

The central legal issue before Gaudron J was whether the event triggering the payment obligation under the deed had occurred according to the proper construction of the settlement agreement. This required the court to determine the meaning and effect of the clause in question, considering the surrounding circumstances and the intention of the parties at the time the deed was executed.

Gaudron J reasoned that the interpretation of the clause depended on a careful analysis of its precise wording and the context in which it was agreed. Her Honour considered the ordinary meaning of the words used and how they related to the factual matrix. The legal principle applied was that contractual terms should be given their natural and ordinary meaning unless the context clearly indicated a contrary intention. After examining the evidence and the terms of the deed, Gaudron J concluded that the event specified in the clause had not occurred.

Consequently, Gaudron J dismissed the appeal, upholding the decision of the Supreme Court of New South Wales.

Orders