Webster v Deahm

[1993] HCATrans 391

•

.

~

•

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the 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

For Directions

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 DECEMBER 1993, AT 9.43 AM

(Continued from 23/11/93)

Copyright in the High Court of Australia

Webster 192 24/12/93

HER HONOUR:	We have slightly different appearances, do we?
MR M.R. COWDERY, QC:	I appear for the petitioner, if

Your Honour pleases. (instructed by Brian

Cornwell)

HER HONOUR:	Yes, I think yours is as before.
MR J. HATZISTERGOS:	I appear for the first respondent,

Your Honour, pursuant to the leave Your Honour

granted me in chambers. (instructed by McClellands)

HER HONOUR:  That is right, yes, thank you. Mr Sackar, your appearance is as before, thank you.

Have all the steps been taken as directed on

the last occasion?

MR COWDERY:  I have to say not, Your Honour. On the last

occasion, which was 23 November, Your Honour

directed that on or before 10 December the

petitioner file any further affidavits and any

revised lists of matters in the two categories in

which the petitioner moves.

I can indicate, Your Honour, that the

petitioner does not propose to file any further

affidavits and so that part of the direction has

been complied with in that there are no further

affidavits and none were filed on or before that

date. Regrettably, however, revised lists of the

particular voters have not been provided, either in

the time directed or before today, and for that we

apologize to the Court. The reason why that has

happened is that there has been supplied to us by

the second respondent a good deal of material

resulting from inquiries and investigations made by

the second respondent, some of it confidential
material which was supplied on terms embodied in
orders made by Your Honour in chambers as to the

preservation of that confidentiality.

That has created a practical problem for us in

this way:  my instructing solicitor is from

Newcastle and the orders that were made confine

access to that material to the legal

representatives of the petitioner. That means, in

practical terms, myself and my instructing

solicitor. I have been unable to give that

material the attention myself, because of other
commitments. It is quite a large volume of
material, a number of lever arch folders of

detailed results of investigations conducted by the

second respondent.

My instructing solicitor has come from

Newcastle on, I think from memory, two occasions

Webster 193 24/12/93

and spent time in my chambers, which is the other

restriction that was imposed, that the documents

were not to leave my chambers, and he has spent

time there working on the material and has, again

from memory, proceeded about half-way through the

material. Now, that means that I will have to take

over the task, obviously, of completing an

examination of that material.

Our belief is that at the end of that exercise

the petitioner will be pressing the claim in
respect of at least the 165 votes which he is
required to do in order to have any prospect of

success on the petition. If I can give Your Honour

the figures, just in summary, there are two aspects
to the claim, as Your Honour will recall: one is

what might be described as multiple voting and the
other is described variously as non-existent voters

or as personation, depending on one's point of

view. So far as the multiple voting situation is

concerned, the report of apparent multiple voting

disclosed 149 possible occasions of multiple

voting - that is 149 voters, after eliminating

scanning errors.

The second respondent's investigations have

reduced that number, on their assessment, to a

possible 25. The petitioner, however, does not

agree that the result of the investigations of the second respondent exclude that number but what the

precise number is I am not in a position to give as

yet because that material has not been examined to

that extent.

In the other category, the non-existent or

personation category, the petitioner has put

forward a claim in respect of 273 names, which is

on the list that has been provided. Your Honour

will recall there is a list of names, addresses and

booths and so forth. After examination and

investigation which has, certainly on the face of

it, been extensive on the part of the second

respondent, they advise that there are 28 such

persons in respect of which the evidence is

inconclusive, and I think I have fairly summarized

the way in which the second respondent states the

position.

The petitioner, however, even more strongly in

respect of that category, says that the facts and
the process of reasoning that should be applied to
the facts that have been discovered, again, does

not exclude that number of persons in that

category, in fact no where near that amount, but

the identification of the particular voters which

the voters no longer seeks to rely upon is still to

be finalized.

Webster 194 24/12/93

Your Honour, that is the position we are in.

As I say, I apologize to the Court and I regret

that there has not been that further work done up

until this time but what it amounts to, from the

petitioner's point of view, is simply getting to a

position where we can advise the Court and the

parties of those names, in the multiple voting

material produced by the second respondent, and on

our list of non-existent voters, those names that

are no longer relied upon and that will be done as

soon as it is possible to do so.

HER HONOUR:  How soon do you estimate, Mr Cowdery? I

realize it is difficult, and the difficulties you

are working under, but I really would be most

concerned if there were any prospect either that

the matter could not proceed on the date fixed or

that it would extend beyond the time available in

that - - -

MR COWDERY:  May I assure the Court that I do not see any

way in which it could extend beyond the time that

has been made available by the Court, nor do I see

any prospect, from the petitioner's point of view,

that the matter would not be ready to proceed on I
think it is 14 March that has been set for it. We

have now reached Christmas, that creates further

problems; people have commitments, not least

myself, I am selfish enough to say, but we would

ask Your Honour if we might be permitted to have

until the end of January to give that information.

We do not anticipate having to put on any further evidence.

HER HONOUR:  Yes. Assuming that to be correct, that that

should take place, I would like to know on

1 February, but I am not in a position to sit in

Sydney on that day and I do not see that there

should be any reason for you to come to Canberra,

but I would like the parties to report to the

registry at least by 1 February, but that is

subject, of course, to hearing what the respondents
say.

MR COWDERY: Certainly, Your Honour.

HER HONOUR:  I think you are the person most directly

affected by this.

MR HATZISTERGOS:  In the sense that our candidate holds the

seat, yes, also in terms of dealing with the

evidence, I suppose.

HER HONOUR:	Yes.
MR HATZISTERGOS:	We are in a bit of a quandary in this

sense, in that without the revised lists we do not

Webster 195 24/12/93

know exactly what will be proceeded with on the

hearing date and to do anything at this stage

without them would involve us, bearing in mind the

considerable expenditure to which the Australian
Electoral Commission has gone to so far in

preparing its case, to the extent that we would not

be satisfied with that preparation and need to go

over and above that, we do not foresee that that is

something that we need to do at this stage but if

the numbers, of course, obviously get closer, then

our concerns may be ventilated. But we do not

necessarily want to go into commitment of further

expenditure of money if, for example, certain

persons are not to be proceeded with in terms of

allegations made by the petitioner.

HER HONOUR: Will it be sufficient time?

MR HATZISTERGOS:  We are working - when I say "we", I am

working at the moment on the material which has

been provided and I am largely through that. By

and large I do not, at this stage, anticipate that
there will be any need for any evidence to be filed

by the first respondent over and above the material which has been supplied by the Australian Electoral Commission.

HER HONOUR:  Yes, but will you have sufficient time if you

get the lists by the end of January?

MR HATZISTERGOS:	I think so.
HER HONOUR:	Yes, because it will then be 12 months.
MR HATZISTERGOS:	We are most anxious, obviously, that this

matter proceed to a finality in March, as has been

scheduled. Just one other issue, we do not at this

stage have the annexures to the affidavit of

Ms Adelberg but I am advised by the solicitor for

the Australian Electoral Commission that we will

have that material today. But I do not know how

bulky that material is but I do not anticipate that

will cause any problems in our preparation either.

HER HONOUR:	Yes, thank you.
MR SACKAR:	Your Honour, there is nothing we really want to

add to this, except that we would only respectfully

suggest that the petitioner not be given any

further latitude after 1 February without good

cause. They are, after all, the initiating party

and presumably knew what their case was either at

or about the time they filed their petition or

shortly thereafter, so we would be anxious,

obviously enough, to have it resolved on the dates

fixed and would be opposing, unless with reasonable

cause, any further extension of the time.

Webster	196	24/12/93
HER HONOUR:	Yes.	I think I would direct the legal

representatives to report to the registry on

1 February. I will make it at 9.30.

MR HATZISTERGOS: Here in Sydney, Your Honour?

HER HONOUR:  In Sydney, yes, and the Deputy Registry Sydney

can communicate with me in Canberra then if

anything needs to be done at that stage.

I think then we will adjourn the matter until

14 March.

AT 9.57 AM THE MATTER WAS ADJOURNED

UNTIL 14 MARCH 1994

Webster 197 24/12/93