Webster v Deahm

[1993] HCATrans 363

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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

Webster 182 23/11/93

For Directions

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 NOVEMBER 1993, AT 9.33 AM

(Continued from 1/10/93)

Copyright in the High Court of Australia

MR McCARTHY:  May it please Your Honour, this matter is

before Your Honour today pursuant to Your Honour's

leave to seek further directions given on 1 October

and it is at the application of the first

respondent. Would it be convenient, in those

circumstances, if I began, Your Honour?

HER HONOUR:	Yes.
MR McCARTHY:	Your Honour, on 1 October Your Honour made

various directions concerning the filing of

material, particularly in relation to the

petitioner, that date being 26 October. As well,

Your Honour, there was discussion on that day as to

hearing times as distinct from possible hearing

dates. Nothing was resolved and Your Honour left

the position in relation to a hearing date with

counsel and other legal advisers to confer about

the matter and to be in contact with the Court and

Your Honour's associate about an appropriate date.

Your Honour indicated that there may be some time

that Your Honour had just prior to Christmas but

after 10 December or thereafter in the last two

weeks of February.

Your Honour, over the last two weeks I have

had discussions concerning dates of hearing and the

progress of the matter generally with my learned

friend, Mr Cowdery, and with Mr Sackar and with

Ms Glasson who is representing the second respondent this morning.

Your Honour, the situation in relation to

dates has evolved to this position:  my learned

friend, Mr Cowdery, is not available in relation to

any time this year until 21 December and it would

only be therefore in that week before Christmas

that there are any days available at all this year.

As well, it is the case, Your Honour, that over the

material that has been filed, the petitioner's

affidavits were received by the first and second

respondents during the first week of November, in

other words, about a week to 10 days after the date

that was set in relation to the reception of these.

Your Honour set a programme for the

respondents to file certain material and for other

material then to be filed by the petitioner and,

really, for us to come back to Court on 3 December,

which would be next week, with those matters

complete. Your Honour, that is not going to be

able to be achieved. As my friend had indicated on

the last occasion, it was proposed by the

petitioner that there would be some further survey

that he would carry out concerning the lists that

were handed up to Court on 1 October. These were,

in actual fact, carried out and subsequent to my

Webster 183

friend's client producing affidavits of about

200 pages in early November, there was then

followed in about mid-November by a revised list.

The list that Your Honour saw on 1 October had

273 names on it; the new list has 170. That,

presumably, was the result of the subsequent

survey.

Not long after the directions hearing on

1 October, both my learned friend and myself had it

indicated to us by the second respondent that it

was proposed to carry out also a survey of the

names on the list, on 1 October. As well, there

would also be material produced of a more extensive

type from the Australian Electoral Commission

officers concerning multi-voting.

Last week an affidavit was received concerning

multi-voting which has attached to it a very
extensive and confidential list of exhibits which I
had finally the opportunity to inspect at the AEC
yesterday morning. As well, the AEC has carried

out a survey of the names on that list of

1 October - - -

HER HONOUR:	Which list are you talking about now?
MR McCARTHY:	Annexure A - the particulars, the ninth and

tenth allegations on 1 October.

HER HONOUR:	Yes.
MR McCARTHY:	I have been handed this morning an affidavit

that relates to that survey. I understand that the

survey material itself is in three large folders

and will be produced to the parties in the course of, I think, today, as I understand it, but there will be a further explanatory affidavit that would

be ready by early next week.

I have discussed these matters with my learned

friend, Mr Cowdery, and he has indicated to me that

the petitioner would probably want some time,

perhaps in the vicinity of a fortnight or longer, to consider the material from the AEC and that we

had discussed that he would be minded to have

produced, in effect, a further revised list and

advise the Court and the first and second

respondents as to what the list now consists of or

the voters that it is said that others voted for.

I have also discussed with Mr Cowdery the

multi-voting material that the AEC has filed and as

a consequence of that, he would also be seeking to

produce a list of the names of the voters that are

said to be involved with multi-voting.

Webster 184

Your Honour, in those circumstances, it would

not appear, firstly, that any of the parties would

be ready or particularly the first respondent and

the petitioner would not be ready for this matter

to proceed if Your Honour sought that understanding

on 3 December; that in the light of the further

material that is to come from the second

respondent, firstly, on behalf of the first

respondent, it is difficult without knowing the

final list from the petitioner as to what precise

evidence we would intend to file.

If I might put that just another way, Your Honour. When it is indicated that there is a

final list, the first respondent would certainly be

giving consideration either to approaching the

names on that list or of arranging in some way for

further information to be sought from them. It has

been the case, Your Honour, that both the first

respondent and the officers of the Australian Labor

Party have received letters from electors

complaining about approaches of persons taking

surveys about their voting in the March 1993

election. As a consequence, the first respondent
has been reluctant to do any survey until it was

finally settled as to how many people may well be

involved.

Your Honour, in those circumstances, that is

that the matter is obviously incomplete; that there are only a limited number of days that my friend is available in December - I also sought from both my

friend, Mr Cowdery, and from Mr Sackar as to when

they would be available and also sought information

from the Court as to when the matter might proceed.

Your Honour had indicated the last two in February.

Your Honour, I am able to indicate that I am

informed by Mr Cowdery and Mr Sackar that all of us

would be available on 28 February and all of us

would be available for that week, if that was

a - - -

HER HONOUR:	28 February.
MR McCARTHY:	Yes, Your Honour.

HER HONOUR:  Yes. That is not the last two weeks in

February, is it, unless the calendar has changed remarkably. The last two weeks of February will end on 28 February.

MR McCARTHY:  Your Honour, I am not sure the position with

Mr Sackar but certainly the position on 21st would be convenient to the petitioner and the first respondent.

Webster 185 23/11/93

HER HONOUR: Let me just tell you: the Court will be

sitting in Canberra on the first two weGks, that is

the weeks commencing the 1st and the 8th; the weeks

commencing the 14th and - it is not the 1st and the

8th, but the weeks commencing the 14th and the 21st

are available and then the three weeks in March,

the first three weeks in March are sittings in

Canberra and Hobart. So, it really has to be

fitted into those two weeks.	One week should be
more than ample.

MR McCARTHY:  I think it would be, Your Honour.

Your Honour, the week of the 21st would certainly

be a week that is suitable for the petitioner and to the first respondent. Ms Glasson may indicate

the position in relation to the AEC. I had not

inquired about that week in relation to Mr Sackar.

Your Honour, those were the matters that I

wished to raise at this stage. I apologize for any

inconvenience today may have caused Your Honour but

it seemed to me to be important to have this

established as to when the matter would proceed as

early as possible, so that if there was to be a

date this year arrangements could be made for all

of us to be present or counsel to be present.

Your Honour, it would be my application that

the matter be set down on 21 February 1994.

HER HONOUR:  Now, what about your affidavits? Do you want

further time on that?

MR McCARTHY:  I do. Your Honour, firstly - - -

HER HONOUR:  Should there be further times with respect to

the petitioner and the second respondent?

MR McCARTHY:  Your Honour, we are in a difficult position.

Your Honour, perhaps my friend might make some indication about this, over times, Your Honour, but

as I understood it, he would be seeking some time

to respond to the material that is going to be

produced. We would seek some time after that to be

able to put some material in. If perhaps,

Your Honour, we had a fortnight after my friend has

given an indication as to what the names are on his list for both the multi-voting and for personation.

Your Honour, Mr Cowdery has indicated that if

the Court was so minded, could the petitioner have

until Friday 10 December to file any affidavits
that he would wish to file plus a list in relation

to multi-voting and a list in relation to electors

concerned with the ninth and tenth allegations by

the close of business on that day. And,

Webster 186

Your Honour, might we have until 24 December to

file further affidavits?

HER HONOUR:  You are not going to like this, Mr McCarthy,

but if I am adjourning this till 21 February, I am

going to list it sometime between the 24th and New

Year's Eve to ensure that all of this has been

done.

MR McCARTHY:	Between the 24th and New Year's Eve?
HER HONOUR:	Yes, Mr McCarthy. Alternatively, I would do it

on -

MR McCARTHY:  Where was Your Honour thinking of having this,

in Brest or - - -

HER HONOUR:  No, no. The point I am making is I will list

this for mention to ensure that everything has been

complied with. I can list it on Christmas Eve if

you like or I can list it between Boxing Day and

New Year's Eve.

MR McCARTHY:	24 December, Your Honour.
HER HONOUR:	I think it is necessary to be sure that it is

all in order.

MR McCARTHY:	23 December, Your Honour?
HER HONOUR:	Yes, that does not quite give you a fortnight.
MR McCARTHY:	It is only a day short, Your Honour. We would

certainly do our very best to be in a position to

have filed our material or at least to have

indicated to the Court what course we propose to

take in relation to evidence in the matter,

Your Honour. I do not think there is anything

further, Your Honour, thank you.

HER HONOUR:  Yes, thank you. Do you wish to say anything,

Mr Cowdery?

MR COWDERY:  I do not think I do, Your Honour. I think it

has all been said. I agree with what my learned

friend has put to Your Honour. It is regrettable

that there has been some delay in the petitioner's

completing his evidence but I can assure

Your Honour that it has not been by reason of any inactivity on the part of the petitioner. It has

been a very busy time and the volume of affidavits

that have resulted from that activity bear

testament to that.

I apologize for not meeting the deadline that

was set with the consequences that it has had but

there was simply no quicker way of doing it. But

Webster 187 23/11/93

apart from that, Your Honour, we are in agreement

with the proposal put forward by Mr McCarthy.

HER HONOUR:  Yes, thank you. Ms Glasson, is 21 February

likely to be - - -

MS GLASSON:  21 February is not available to Mr Sackar. The

second respondent opposes the course that has been

proposed by Mr McCarthy, Your Honour. The second

respondent opposes the matter going over to

February and presses for a hearing in December on

the basis that there is a public interest in having this electoral matter resolved as soon as possible,

and if it goes over to March it will be a year

since the election where the result in the seat has

been not decided.

We say that the matter should be heard in the

week of 22 December. I understand from what

Mr McCarthy said that Mr Cowdery is available in

that week. Mr Sackar is also available in that

week. The second respondent has filed its main

evidence. It has put on all of its evidence in

relation to the multiple voting allegation. It

will file its main affidavit on the ninth and tenth

allegations in the Registry today and a copy has

been provided to the other parties this morning.

There will be a supplementary affidavit filed early next week which will simply refine matters of

detail in the affidavit that has been filed this

morning but will not affect the numbers that we say

are involved. And, on the evidence that the second

respondent has gathered so far, we say that there

is not sufficient numbers involved in the

petitioner's allegations to affect the result of

the election.

On that basis, we say that the matter should be resolved as soon as possible rather than

dragging on until next year when the parties are

available - although I do not think Mr McCarthy is

available - and the Court has some dates in

December.

HER HONOUR:  What is the position with Mr Sackar? He is

definitely not available on 21 February?

MS GLASSON: Mr Sackar is not available until 28 February,

Your Honour, next year.

HER HONOUR:  Yes. I think, Ms Glasson, I must rule against

your application. I think if you have further

affidavits to file, even this week - - -

MS GLASSON:  Your Honour, if the fact that we were proposing

to file a supplementary affidavit next week would

Webster 188 23/11/93

be sufficient to cause the matter to go over to

March, then we are prepared to rely on on the

evidence - - -

HER HONOUR:  It is going over until February.

MS GLASSON: Sorry, to February, then we are prepared to

rely on the evidence that we will have filed as at

today to found our case and we will not file any

additional material.

HER HONOUR:	What do you say, Mr Cowdery?
MR COWDERY:	Your Honour, as to that, there were consent

orders made on 19 November for inspection by the

petitioner's representatives and the first

respondent's representatives of a good deal of

material that was disclosed principally, in the

affidavit of Ms Adelberg, filed by the second

respondent on or about 5 November.

The first respondent, as we are told,

inspected the material yesterday. The earliest

that the petitioner's representatives can inspect

the material is Thursday of this week. It is

expected that there will be a need to reconsider

all of the material in the light of what is

inspected on that occasion and, possibly, I do not

know, to file further affidavits, in effect, in

reply to that material and perhaps to review the

list that has been provided already and to firm up

a list of the alleged multiple votes as a result of

inspecting that material.

Now, Your Honour, that takes time. It is for

that reason that we seek some additional time to

enable that inspection to take place; to enable

affidavits, if necessary, to be prepared in

response to it; to enable consideration of the

lists that have been supplied already and the

preparation of a further list. That, in turn, as

Your Honour has heard from Mr McCarthy, will

require the first respondent to reconsider its
position; to consider that material that will be
presented to it to consider what, if any, further
action needs to be taken by them by way of

investigation or survey or interview and to enable

them to have the opportunity to put on answering

material.

Your Honour, these things, unfortunately, take time. People are scattered. People, including the

petitioner and no doubt the first respondent, have

commitments elsewhere in their ordinary lives. It

is not as if this is all one activity that is

taking place in Phillip Street. So, Your Honour,

we would simply ask for that time to enable the

Webster 189 23/11/93

matter to be properly prepared.	My availability
has been referred to by Mr McCarthy.	Nobody is

indispensible but it would be unfortunate,
obviously, if any counsel involved in the matter to

date was unable to continue to appear.

We appreciate too, Your Honour, the public

interest in having the matter resolved as soon as

possible but the petitioner, also, has a very

direct and keen interest in the resolution of the

matter. What he seeks, obviously, through the

petition, is an opportunity to restore himself to a

seat that he once held which is presently held by

the first respondent.

HER HONOUR: Yes, thank you. Anything else?

MR McCARTHY:  I would support what is said by Mr Cowdery,

Your Honour. The earliest time that the Court

would have would seem to be in February,

Your Honour and, really, we are not in a position to be able to say for some time just how long the

case will take or, indeed, when the matter will be

ready.

HER HONOUR:  Yes, I will adjourn it and list it for hearing

until 21 February, Ms Glasson.

MS GLASSON:  Your Honour, is it possible to list it for a

date convenient to Mr Sackar?

HER HONOUR:	What date is that?
MS GLASSON:	I do not know if this is possible but could the matter be listed in Canberra, perhaps, sometime
late in March in that case?
HER HONOUR:	It cannot be listed in Canberra because there will be Full Bench matters going on all the time.
It does appear, from looking at this calendar, that
the week of 14 March is available in Sydney.
MR COWDERY: That is suitable to me, Your Honour.
MR McCARTHY:	That would be suitable to me, Your Honour.
MS GLASSON:	I cannot quite understand Mr Sackar's diary,

Your Honour. It seems that he has only one day

available in that week. Would it be possible for

me to contact Mr Sackar later in the day - he had

an emergency this morning so unfortunately he could

not be here - and then telephone Your Honour's

associate and the other parties?

HER HONOUR:	What I shall do at thi~ stage is I will direct the petitioner to file further affidavits and any
revised lists on which he relies by 10 December and

Webster 190 23/11/93

similarly, the first respondent should file such

material as is available to her by 23 December, and

should be in a position to report on 24 December as

to what, if any, other action is necessary. The

matter will be listed for mention on 24 December.

The matter will be tentatively fixed for

21 February 1994 but the parties may approach the

Registrar during the course of the day should it

transpire that that date is inconvenient and some

other arrangements can be made.

There is no need for the matter to be listed

on 3 December, I take it?

MR McCARTHY:  No, if that date might be vacated,

Your Honour.

HER HONOUR:  Yes. I will certainly be available during the

course of the day if it is necessary to deal with

the date.

MS GLASSON:	Thank you, Your Honour. Might I just mention one further matter? There are a number of
confidential exhibits to the affidavit that is to be filed in the Registry today. The parties have
signed consent orders to enable legal
representatives to have access to those
confidential exhibits.  Would Your Honour be
prepared to make orders in terms of the consent orders signed by the parties?
HER HONOUR:	Yes, I will make orders in accordance with the

draft consent order handed up to me and initialed

by me and placed with the papers.

MS GLASSON:	Thank you, Your Honour.
HER HONOUR:	I will reserve liberty to the parties to apply

on 72 hours notice, again, in case that should be

necessary. Otherwise, I will adjourn it until

24 December at 9.30 am.

AT 10.05 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 24 DECEMBER 1993

Webster 191 23/11/93