Webster v Deahm

[1993] HCATrans 203

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of :he Registry

Sydney No S71 of 1993

B e t w e e n -

ALASDAIR PAINE WEBSTER

Petitioner

and

MAGGIE DEAHM (also known as

MARGARET JOAN DEAHM)

First Respondent

and

BRIAN COX, THE ELECTORAL

COMMISSIONER

Second Respondent

Webster 1 20/7/93

For Directions

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 JULY 1993, AT 10.02 AM

Copyright in the High Court of Australia

MR J. THERRY-WARD:  May it please the Court, I appear for

the petitioner. (instructed by Brien Cornwell)

MR J. McCARTHY, OC:  Your Honour, I seek leave, under

section 307 of the Electoral Act to appear for the

first respondent. (instructed by McClellands)

HER HONOUR:  Yes. I take it it is all by consent. You do

not need leave, I imagine, but we will hear

further.

MRS L. GLASSON:  I appear for the Electoral Commissioner.

(of the Australian Government Solicitor)

HER HONOUR:  I take it, it is by consent, the parties appear

by their legal representatives, is it?

MR McCARTHY:	Yes, that is so.
MR THERRY-WARD:	Yes, Your Honour.
HER HONOUR:	Now, Mr Therry-Ward, you are for the

petitioner, are you?

MR THERRY-WARD:	Yes, indeed, Your Honour.
HER HONOUR:	Have the rules been complied with in all

respects?

MR THERRY-WARD:  Your Honour, as I perceive the situation,

the answer to that question is, "Yes". I certainly

do not know of anything that has not been properly

complied with, but every effort has been made to

apply the formal rules as I perceive the situation.

HER HONOUR:  Have affidavits been filed with respect to

publication and service?

MR THERRY-WARD:  We are waiting for the copies of the

gazettes to be received but the affidavits, I am

instructed, will be filed in the next few days.

HER HONOUR:  What about the petition as such, and the

service on its claim with respect to the election

generally, and service on other elected members?

MR THERRY-WARD:  Your Honour, the petition has, in fact,

been served on every member of the Parliament and

returns from each member have been received

indicating the seat of service.

HER HONOUR:  Yes. Now, is it competent for you to contest

the entire election?

MR THERRY-WARD:  Your Honour, yes, in my submission.

Webster 2 20/7/93

HER HONOUR:  There is a decision against, is there not,

already?

MR THERRY-WARD: There is, but it is my submission that in

the light of matters that we will be raising in our

case we can get around that problem.

HER HONOUR:  It is not a problem to be got around, it is a

question of what rights you have under the Act.

MR THERRY-WARD:  Yes. Your Honour, can I just indicate that

the case will be that there were such gross

discrepancies in a number of areas - first of all,

this is perhaps the best way of putting it at this

stage: there were such gross discrepancies -

HER HONOUR:  It is not a question of discrepancies at all,

Mr Therry-Ward, it is a question of standing.

MR THERRY-WARD:	Yes.
HER HONOUR:	There is certainly no doubt of your standing or

your client's standing to contest the return of the

election for the seat of Macquarie. What is in

issue is standing to contest anything else.

MR THERRY-WARD:	Yes.
HER HONOUR:	So, it is not a question of the facts at all.

MR THERRY-WARD:  Yes. Your Honour, I am aware of the

decision that says that, inter alia, a single

individual cannot contest an election. But it is

my submission that - what we are going to be

putting to the Court is the fact that there are
provisions in the Australian Electoral Act which

are contrary to the intentions of the Constitution

and, therefore, those provisions are invalid and

that, inter alia, if - what we will be submitting,

among other things, is that if the election was

conducted in accordance with that Act, well then,

the election itself was invalid because it was not

in accordance with the Constitution.

HER HONOUR:  The election for Macquarie?

MR THERRY-WARD: Well, both, in fact.

HER HONOUR:  Yes. Well, of course, it is a question of

standing.	Now, when shall we determine that and
where?

MR THERRY-WARD:  I do not mind, Your Honour. Any time.

HER HONOUR:  Very well. All right, I shall hear from -

before you do resume your seat, Mr Therry-Ward,

there is another aspect. There is some difficulty,

Webster 20/7/93

is there not, about service - your compliance with

the rules relating to service if your contention be

right that you can challenge every election because

it is said, for example, on behalf of

Mr Rod Atkinson, MP, who has engaged solicitors to

notify the Registrar, that the members have not

been properly served?

MR THERRY-WARD:	Yes, Your Honour.
HER HONOUR:	And that not having been properly served, they

do not require and do not propose to enter an

appearance.

MR THERRY-WARD:  Your Honour, can I just answer that by

saying this: we effected service in a way that we

saw was the effective way of doing it, that is, to transmit by pre-paid post to each of the members a

copy of the petition as filed and, in my

submission, as I read the rules, that complies with

those rules completely.

HER HONOUR:  Yes, but it is said, I think, that you did not

comply with Order 62 rule 3; sorry, that for

service to be effective, you either had to serve

the members personally or comply with Order 62

rule 3, which is only relevant if there has been an

address for service filed in the Court.

MR THERRY-WARD:  Yes. Your Honour, it would be our

submission that because of the way we effected

service that that would be tantamount to personal
service.

HER HONOUR: Well, of course, they say otherwise.

All right, we have some serious preliminary

disputes. Yes, Mr McCarthy.

MR McCARTHY:  Your Honour, in relation to the threshold

issue concerning matters other than Macquarie

HER HONOUR:  I suppose you have no instructions.

MR McCARTHY: First of all, I am only instructed to appear

for the member for Macquarie. But, Your Honour, I

do not think it is inappropriate to make this
observation: that in the last month there has been

a decision by Mr Justice Brennan of this Court

concerning this very issue; that that decision is

in line with remarks that I would think amount to

ratio on this point that were made by a Full Court

in Evans v Crichton-Browne about 10 years ago

concerning the use of material in one petition to
challenge an election in another seat.

If it is the case that Mr Therry-Ward is

proposing to challenge those decisions,

Webster 20/7/93

Your Honour, that would seem to us to be something

that ought to be heard immediately and, by

"immediately", I would have thought as soon as the
Court can have time available for that. But,

Your Honour, we would be proposing to put before you what was said by Mr Justice Brennan and the

line of authority to which he refers.

HER HONOUR:  If that line of authority stands, then the

problems of service are largely irrelevant, yes.

MR McCARTHY: Are irrelevant. Your Honour, there are

various matters - and this is not the only aspect of the petition where this arises, that there are

what, in the older language, were called in limine

points and this is only one where we would say, in

our submission, that the plaintiff fails in limine

on this point. But, Your Honour, I think there is

a matter of principle to be determined here. As

best as I understand what Mr Therry-Ward is saying,

he is, at its highest, submitting that the approach

that has been adopted by Mr Justice Brennan - say,

within the last month - is incorrect.

Now, I am not sure whether that is a matter

that Your Honour would want it ventilated before

Your Honour individually or whether you would want

that matter agitated in front of a larger bench.

That is one view of what Mr Therry-Ward is putting.

But, Your Honour, in whatever forum that might be,

we would respectfully submit that that is something

that ought to be determined immediately as having a

bearing on what the present respondents and others,
but particularly the present respondents, would be
required to do and what form of hearing they could

expect to have in this matter.

Your Honour, it was only in relation to this

point that you wished to hear me at this stage?

HER HONOUR:  Yes, certainly. Mrs Glasson.

MRS GLASSON:  Your Honour, the second respondent also

considers that the petition should not be able to

be heard in so far as it seeks to challenge the

whole of the election in view of the Muldowney

decision and had actually written to the petitioner

drawing that decision to his attention and asking

whether he would withdraw it in light of the

decision and he has indicated, obviously, that he

wishes to proceed with hearing that point.

HER HONOUR: Well now, there is an interesting question

about that. Can it be determined without the

participation or without proper service on the

other elected members?

Webster	20/7/93
MRS GLASSON:	One would have thought that the logical step

would be first to determine whether or not there

can be a challenge to the whole of the election and

if, obviously, there cannot, then the service point

goes away and then determine the service point

subsequent to that.

HER HONOUR:  Yes. I am sorry I interrupted you. Is that

all you -

MRS GLASSON: That is all, Your Honour, on that point.

HER HONOUR:	At this stage.
MRS GLASSON:	Yes.

HER HONOUR: Well, Mr Therry-Ward, when are you ready to

argue this matter?

MR THERRY-WARD:  Within a few days. I would be ready

myself to deal with it when the Court saw fit to

appoint a date.

HER HONOUR:	Are there any difficulties about dates?
MR McCARTHY:	Does Your Honour have any particular time in

mind in relation to this?	I mean, I would suggest
this afternoon.	My friend could not have other

than have anticipated, particularly as both the AEC

and myself in conversation with him made reference

to this some time ago, that there was this decision

and I would have thought that this has come as no

surprise to him or, indeed, to the Court that this

matter has been raised immediately.

HER HONOUR:  Yes. I think we will list it for next Monday

for hearing unless that date is inconvenient.

MR McCARTHY:  Your Honour, what time on Monday would you

have in mind?

HER HONOUR:

I will consider the convenience of counsel, if

it can be done.

MR McCARTHY:  I would be grateful for that. I would be, for

some little time, involved in the Court of Appeal.

HER HONOUR:	Would 2 o'clock be - - -
MR McCARTHY:	Thank you, Your Honour.
MRS GLASSON:	Your Honour, Mr Sackar, QC, appears for the,

second respondent. I do not know his availability

next Monday, unfortunately.

HER HONOUR:  Can you find out?

Webster	6	20/7/93
MRS GLASSON:	Yes.	Is it possible for me to possibly ring

Your Honour's associate after this directions

hearing?

HER HONOUR:  Are you able to make contact with him while I

have counsel here?

MRS GLASSON:  I could make a phone call to his clerk now,

Your Honour.

HER HONOUR:  Yes. We will take a short adjournment to

enable that to be done. Are there any other

preliminary points in this case of the same nature?

MR THERRY-WARD:  I have nothing at this stage, thank you,

Your Honour.

HER HONOUR:  It is not really a question of "at this stage".

Assuming that issue is decided one way or the

other, I imagine - on my reading of the petition at

least, it would seem that the factual issues would
then have to be determined and depending on the

determination of the factual issues, some of the other suggestions may or may not have relevance.

MR THERRY-WARD:  Can I indicate, Your Honour, it would be,

among other things, our intention to issue a number

of subpoenas.

HER HONOUR:  I do not think you need worry about that. Let

me just see if this accords with everybody else's

view: that subject to the determination of that

matter, factual issues would then be determined

before it became necessary to answer any of the

other questions of law raised in your petition.

MR THERRY-WARD:	Yes, Your Honour.
HER HONOUR:	Is that how you see it?
MR McCARTHY:	In part, Your Honour. Your Honour, it would

be the second respondent's position that in

relation to all issues raised in this petition,

other than that which is referred to as provisional

votes, that is, of those that are referred to at

pages 13 and 14 of the electoral petition, that in

relation to the other allegations that have been

made and the matters that have been pleaded, that

the petition, in our respectful submission, does

not comply with section 355 of the Act and, in

particular, section 355(aa) in this sense that the

petitioner, in effect, is alleging personation of

voters and is challenging the accuracy of the

electoral roll; and, thirdly, is advancing an

argument that there has been voters misled by

various material which is attached to the petition

Webster 20/7/93

that has misled voters in or in relation to the

casting of their vote.

Your Honour, it is the second respondent's

position in this matter that in relation to
personation, that the allegation as stated in the
petition is such that it is contrary to accepted

Australian electoral law, contrary to the law that

has been laid down for parliamentary elections and

the interpretation of the Commonwealth Electoral

Act that goes back as far as 21 CLR with Bridge v

Bowen, and my friend is raising a challenge over

personation of voting that is contrary to the

approach of this Court and other courts for about

75 years.

Secondly, Your Honour, in relation to the challenge over the roll, which is a challenge to

section 361(1) of the Act - - -

HER HONOUR:  But the question I ask is really this - leave

aside whether the petition complies at this stage

because so far as you rely on subsection (aa) there

is clear power to relieve, is there not?

MR McCARTHY:	Yes, Your Honour.
HER HONOUR:	And the problem can, in fact, be dealt with by

particulars, can it not? Do these other questions

need to be determined in a preliminary way or do

they disappear on one view of the facts?

MR McCARTHY:  Your Honour, they disappear on one view of the

facts in the sense that they give rise to the basis

of a strike out. The question that troubles us,

Your Honour, is that except for the matter about

provisional votes, we would move a summons with

Your Honour to have the argument ventilated as a section 355(aa) argument for the reasons that I

have been advancing but I do not believe that what

is disclosed there are facts that give rise to

relief in an electoral petition. Your Honour, our difficulty is this: that

seems to us to be perhaps an appropriate course if
it was the case that all aspects of the petition

would be removed. Now, it may be that that would

be regarded by the Court, of course, as a suitable
process whereby the petition is tidied up before it

is, in actual fact, presented to the Full Court.

HER HONOUR:  I have no intention of it being presented to

the Full Court at this stage. My inclination at

this stage would be for the matter to be remitted

to the supreme court for the determination of

factual issues. That is why I am asking about

Webster 8 20/7/93

these questions of law.	They may not arise, may
they not?

MR McCARTHY:  Your Honour, only in this sense, that the

petitioner has allegations on at the present time

that, assuming they are met, suggest that there are

sufficient votes involved, under various headings,

that a court would find that the result of the

election may have been affected. I mean, that is

clear on its face at the present time. What we say

is that the only section - - -

HER HONOUR:  But that is an allegation. It is not

determined one way or the other yet?

MR McCARTHY:  No, it is not. But, Your Honour, we would

wish to - perhaps not today, but perhaps at another

time - be heard on the proposal to refer this to

the supreme court as to what it is exactly that

might be referred.

HER HONOUR: That is why I asked, "Are there other

preliminary questions of this kind?"

MR McCARTHY:  Your Honour, that brings it right into focus.

If that is the case, the second respondent would

wish to advance argument to Your Honour as to why

matters involving any allegation of personation or

any allegations as set out and constituted in the

petition concerning the roll are not matters that

could be properly referred to the supreme court as not raising issues that would affect the result of the election.

HER HONOUR:  Yes. Well, you wish to have parts of the

petition struck out, in effect?

MR McCARTHY:  Yes, Your Honour, and if that is facilitated

by taking out a summons to do so, Your Honour, we

would do that as soon as convenient to do that.

But, Your Honour, I say again that I cannot - - -

HER HONOUR:	What issues do they raise?
MR McCARTHY:	They raise issues that are
HER HONOUR:	I take it they raise issues of law only.
MR McCARTHY:	In substance, yes, Your Honour. We say that

no challenge can be made in the way that they have

been challenged in those headings, Your Honour.

They go to - Your Honour, I will not refer to the

numbering in the petition, but they go to those
sections of the petition concerning personation of
voting or what seems to be alleged personation of

voting and allegations concerning the correctness

Webster 9 20/7/93

or accuracy of the roll. At this time,

Your Honour, we do not take - - -

HER HONOUR:  Does the accuracy of the roll necessarily

arise?

MR McCARTHY: It does, Your Honour, because my friend is, in

effect, alleging that there are up to 400 persons

who voted in this election who should not have

voted. As I understand the allegation,

Your Honour, what is being said is that there are

400 persons whose names were on the electoral roll

and who voted who should not have been on the

electoral roll.

Now, that, in our respectful submission, can

be viewed in no way as being other than a challenge

to the correctness of the roll. Now, we say that

there is a preliminary legal point there and if

that is the case then that is a matter of law.

Further than that, Your Honour, we say this:

in the way the petition is drafted, it is alleged

that sections of the Electoral Act are contrary to

section 30 and section 41 of the Constitution

raising constitutional issues. We respectfully

submit that the case of King v Jones and the case

of Sipka v Pearson - and I will not go into the

details of those cases - but the Court has already

interpreted sections 30 and 41 in such a way,

Your Honour, that there is no constitutional issue

involved now with the Commonwealth Electoral Act

subject of section Sl(xxxvi) of the Constitution or
being proclaimed subject to section Sl(xxxvi) of
the Constitution which says that the Parliament can
otherwise provide in certain areas, but there is no
standard in the Constitution against which the

and that the Commonwealth Electoral Act being the that the Electoral Act therefore stands as it is and that there is therefore no proper challenge to

the relevant sections of the Act.

Your Honour, we put that forward in short

order now but to support our point that there are
two aspects of a legal issue involved there and

that if those are resolved in favour of the

respondent, that there is no need for the supreme
court or any other officer to take any steps

concerning allegations about the electoral roll or
allegations concerning the matter about personation

of voting, of voters. So that the only matter that

would need to be investigated would be provisional

voting itself.

Now, Your Honour, obviously that is not

something that can be resolved here in terms of

Webster 10 20/7/93

just directions. What I would - and my friend may

give some details about this, Your Honour - raise

with you is this, that for my friend to succeed it

would really mean that a series of cases in which

fundamental principle concerning Australian

electoral law as established by the High Court would need to be either reviewed and reversed.

Whether the ventilation of those issues should

take place here in Sydney or in Canberra and before

what forum, it would seem to me, Your Honour, is a

matter for the Court rather than for the parties.

But I think my friend would acknowledge that if it

is the case that the law on personation as it now
stands remains the law, that the law on section 361

of the Act as it stands remains the law, and if the

law on misleading and deceptive literature is the

law and remains the law, that all those sections of

his petition could not be made good and could not

be made good in terms of section 355 - - -

HER HONOUR:  Yes, but that does not - the only challenge, as

I read it, of a precise legal nature is the

constitutional validity of the provision which

asserts that the roll cannot be challenged.

MR McCARTHY:  I do not disagree with that. Your Honour,

there is also, at page 13, a challenge that

section 361(1) of the Act is invalid.

HER HONOUR: Yes. That, as I understood, is challenged

constitutionally and as a matter of construction.

MR McCARTHY: Yes, Your Honour.

HER HONOUR:  But that is the only legal challenge, is it

not?

MR THERRY-WARD: Sorry, Your Honour, that is section 361(1)?

That is so, Your Honour.

HER HONOUR:  That is the only provision - that is the only

real legal challenge in this petition, as I read

it, is that correct?

MR THERRY-WARD: That would be so, Your Honour, yes.

MR McCARTHY:  Your Honour is putting that in the context of

(l)(b) requiring something other than a finding of

fact?

HER HONOUR:	I do not understand the petition to challenge the law in any other respect. Whether the evidence
is admitted or received seems to come along at the
end of the day. That is what Mr Therry-Ward seems
to suggest, that that is the only real challenge
involved.

Webster 11 20/7/93

MR McCARTHY:  Your Honour, it is the case that the matter

concerning votes - that is the personation issue -

is a challenge to the interpretation of - that is

that you raise that personation can be used as a

ground is a challenge to the interpretation of
section - or I suppose the relationship of

sections 339(1) and 231(1) of the Act and 362(3).

That is, Your Honour, as a matter of law, whether

it is the case that something that is alleged to be

an offence, details left aside, but which in

substance says that voters were - the persons were

handed ballot papers and proceeded to vote,

allegedly in the names of other persons, and their

votes have gone into the count and have been

counted and therefore cannot be retrieved, so we do

not know who they voted for because we do not have a system in Australia, and have not had at federal

level ever, a system in Australia whereby those

votes can be recalled, that that is a sufficient

ground under section 362(1) or is a ground under

which the Court could be satisfied that the result

of the election had been affected.

Now, in our submission, Your Honour, an

allegation of personation in those terms is not

sufficient to raise an issue, if put in a petition,

under section 355(aa) - that is that they are

sufficient facts to justify the granting of relief.

HER HONOUR: All right, well you can take out a summons in

that regard. There is no difficulty about that.

The question I want to know is this: is it

necessary or convenient to determine the challenge

to 361(1) before hearing the evidence?

MR McCARTHY:	Yes, it is.
HER HONOUR:	Or is it, in the interests of everybody

concerned, to consider the evidence to see if that

becomes a live issue?

MR McCARTHY:  Your Honour, in our submission, there would be

no need for any inquiry if that was resolved,

obviously, but Your Honour, we would submit - - -

HER HONOUR:  Equally there is no need for a consideration of

its constitutional validity if the numbers could

have no possible bearing on the outcome.

MR McCARTHY: 

Your Honour, we are only acting on the basis

of what has been put in the petition and if the
figures there are taken to be accurate, the issue

can be joined immediately - assumed to be accurate.
The matter would only be referred by the Court, I

presume, to the supreme court for the purpose of

checking the submission - I am sorry, of verifying

the petition in relation to the facts. If we

Webster 12 20/7/93

assume that the facts are so, and I, for the

purpose of this submission, would, we say that it

would be convenient to have the argument concerning
whether there is any issue about the roll that can

be investigated or should be investigated at all.

HER HONOUR:  Yes. You can get your summons on with respect

to subparagraph (aa) by Monday, can you?

MR McCARTHY:	I certainly could, yes, Your Honour.
HER HONOUR:	And could it be argued by Monday?
MR THERRY-WARD:	As far as I am concerned, yes, Your Honour.
MR McCARTHY:	Yes, Your Honour.
HER HONOUR:	Now, is there anything of a preliminary nature

affecting the Commissioner?

MRS GLASSON: Nothing apart from what has already been

raised by Mr McCarthy.

HER HONOUR:  What I want to know also on Monday, and I want

to hear argument on the course that is proposed

with respect to the section 361(1) question and, in
essence, should it be determined as a preliminary

matter or should it await the rest.

MR McCARTHY:  Your Honour, is it that threshold issue, that

is threshold about whether that is the way to deal
with this part of the petition that you want to

hear on Monday, or is the argument wider as

to - - -

HER HONOUR:  So far we have got three matters for Monday.

Firstly, standing with respect to the entire

election process; secondly, your summons with

respect to subsection (aa) of 355, and thirdly,

what I wish to hear is a considered view on the

course that should be taken with respect to

section 361(1).

MR THERRY-WARD:  As Your Honour pleases.

HER HONOUR: There is no authority on 361(1) as such, is

there?

MR McCARTHY:	Yes, there is. There is a series of cases.
HER HONOUR:	Has it been challenged constitutionally?
MR McCARTHY:	Not constitutionally, but there has been a

High Court consideration of this section in its

various configurations since 1901.

Mr Justice Starke looked at the matter in the 1920s

in a case called Cusack, and I will have references

Webster 13 20/7/93

made to that, and the present Chief Justice, as

Mr Justice Mason, in a case called Burrell, also

looked at this provision. And I think the former

Chief Justice, Sir Harry Gibbs, has also had

remarks to make about this provision. There has

also been reference to similar provision by other
courts of disputed returns in Australia, other than

the High Court.

HER HONOUR: In a constitutional context?

MR McCARTHY:  Oh no. It has never been raised in a

constitutional context before but, in relation to

the constitutional context, what is put forward,

Your Honour, is that this is contrary to section 30

and section 41 of the Constitution.

HER HONOUR:  And they have been considered to be spent?

MR McCARTHY:  They are. And if they are spent, Your Honour,

there is no constitutional challenge. As I

understand my learned friend, he does not put

forward the constitutional challenge on any other

basis on that. So that if the constitutional issue

falls away, we are dealing straight out with -

well, I am not sure - if the constitutional

challenge falls away, he says that it is invalid.

It is not invalid, because there is nothing to

compare it with. The issue then becomes whether

previous decisions of the High Court have been

appropriate in stating what the proper meaning of

the clause is and whether what is being proposed

here then, Your Honour, falls within what is

injuncted in section 361(1) - and we would

respectfully put that that is a proper preliminary

point.

HER HONOUR:	Do you wish to respond to that, Mr Therry-Ward?
MR THERRY-WARD:	No, no, I, in a sense, agree with the way

my friend has put it, that it is certainly,

Your Honour, a constitutional issue.	As I
understand the situation, it has not been looked at

constitutionally before and I certainly, myself,

know of no cases that deal with it in that sense.

HER HONOUR: All right. Well, we will hear the other two

matters - subject to your confirming Mr Sackar's

availability, we will stand the matter over for

argument on those three matters. Will your motion

extend to striking out - I suppose it will - the

matters raised with respect to the roll. That will

raise the constitutional issue precisely.

MR McCARTHY: Raise the constitutional issue. Your Honour,

we will move to strike everything except the

provisional votes, and it would be - I am not sure

Webster 14 20/7/93

if we might otherwise than just start concerning

the summons on that Monday. Obviously Your Honour

will want to deal with the general issue and see

the summons. It may not be that the argument is

complete on that day, particularly if my friend is

wishing to put forward a some review of

constitutional issues over the matter.

Your Honour, we will undertake to have that to

the petitioner's attorneys and to Mrs Glasson as

soon as possible and if there is an affidavit that

is relevant with it, we will send that along too

and have those available and in Court, hopefully,

by the end of the week, Your Honour.

HER HONOUR:  And your affidavits, when will they be filed,

Mr Therry-Ward? Friday?

MR THERRY-WARD:  Certainly by Friday. Your Honour, can I

just say this, please. My learned friend intends

to, as I understand it, argue on Monday the

situation in respect of 355(aa); our standing to

contest the entire - - -

HER HONOUR:  I think that is the Commissioner's argument, on

standing.

MR THERRY-WARD: At any rate, as I perceive the situation,

it is intended on Monday to argue 355(aa), our

standing to contest the entire election, and the

constitutional argument - - -

HER HONOUR: Well, I am not too sure about that: to argue

what should be done with respect to section 361(1).

It may be that it can be determined simply by

argument by a single member of the Court, otherwise

it may be some other course is necessary.

MRS GLASSON:  Your Honour, was Your Honour envisaging the

Commissioner put on an application to strike out in relation to the whole of the election point?

HER HONOUR:  Yes, I think that would probably crystallize

the issue. That can be dealt with by Friday, can

it?

MRS GLASSON:	Yes, Your Honour.
HER HONOUR:	It will cause no surprise to you.
MR THERRY-WARD:	It will not cause any surprise,

Your Honour. The only thing I would like to know,

if possible, from both my friends is just some

definition of precisely what it is that is going to

be argued on Monday so that we can start looking at

it immediately.

Webster 15 20/7/93

HER HONOUR:  First of all, your standing with respect to

anything other than the return of - for the seat of

Macquarie. Secondly, whether your petition

complies with section 355(aa) in so far as

allegations are made which are not, in fact,

sheeted home, I think, is the truth of the matter,

to the respondent, Ms Deahrn. Is that correct?

MR McCARTHY:  Yes, Your Honour. Well, that is that what is

alleged in the petition does not, as a matter of

law, give rise to any relief that they may be

seeking. Your Honour, could I just make clear that

in relation to that, we would relying on

section 355(a) and (aa). It is not just that we

would be confined - I would not just be putting it

forward on the basis of just (aa), but I would be

primarily taking Your Honour to those provisions.

Your Honour, in that summons, what we would be

putting is that as a matter of law, just so my

friend may have it from today - as a matter of law,

that what is alleged in the petition concerning

issues of the electoral roll, the correctness of
the electoral roll, and matters involving what is
broadly called "personation", do not disclose facts
or matters of law that enable the Court of Disputed

Returns to make any order that would result in the election being declared void.

We would also be making the same point in

relation to the material that is attached to the

petition and for which it is alleged that voters

have been misled in or in relation to the casting

of their vote. So, Your Honour, those matters

would be raised. That is the summons. As to the

next matter which is what is the best way to deal

with all these and particularly the section 361

point, I see - - -

HER HONOUR:  That is the only one that we are concerned

with.

MR McCARTHY:  Yes, as I understand it, that is the priority

issue on Monday as to how that issue is going to be

dealt with. Your Honour, I will try and have our

submissions ready by - well, as soon as possible to

put to my learned friend so that he has some idea

as to where we propose to take.the matter.

HER HONOUR: Yes, thank you. Well, I will take a brief

adjournment to see if 2 o'clock Monday is suitable

to Mr Sackar.

AT 10.48 AM SHORT ADJOURNMENT

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UPON RESUMING AT 10.55 AM:

HER HONOUR:	Yes, Mrs Glasson.
MRS GLASSON:	Your Honour, Mr Sackar is available at

2 o'clock on Monday.

HER HONOUR: Well, we will simply adjourn until then.

AT 10.56 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 26 JULY 1993

Webster 17 20/7/93