Webster v Deahm

[1993] HCATrans 288

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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

For Directions

GAUDRON J

TRANSCRIPT qF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 OCTOBER 1993, AT 10.16 AM

(Continued from 3/9/93)

Copyright in the High Court of Australia

Webster 162 1/10/93

MR N.R. COWDERY, QC:  May it please the Court, I appear for

the petitioner. (instructed by Brian Cornwell)

MR J. McCARTHY, QC:  I appear for the first respondent,

Your Honour. (instructed by McClellands)

MR J. SACKAR, QC:  I appear for the Electoral Commission,

Your Honour.	(instructed by Australian Government
Solicitor)

HER HONOUR:	Yes, Mr Cowdery.
MR COWDERY:	Your Honour made a number of orders in respect

of this matter on 3 September 1993. Might I go

through those orders and indicate to Your Honour

the steps that have been taken and are proposed to be taken. The first order was 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. We have of

course read that part of Your Honour's judgment

that deals with those allegations and the reason

for that order. For the petitioner's part, there
are no further submissions that the petitioner

wishes to make in respect of those two allegations.

I am mindful of the consequences that that will

have upon those allegations in the petition.	So
that is the position in respect of that one.

The second order refers to part of the

allegations.	I do not need to say anything further
about the second order.	The third order was that

the petitioner be relieved from compliance with

section 355(aa) in relation to the sixth allegation

on terms that within 21 days he provide particulars

of the ballot papers involved. Those particulars

were supplied by letter to both of the respondents

and by notification to the Court.

HER HONOUR:  Yes, I have seen them; they are attached to an

affidavit, I think, are they?

MR COWDERY:  They are as well, yes. So the particulars of

the sixth allegation are now before the Court and

notified to the respondents in compliance with that

order. That might be described as the multiple

voting allegation. Order 4 gave access to the

petitioner to the electoral rolls, and that access

has been had. Order 5 I do not need to say

anything about.

Order 6, that the petitioner have liberty to

apply within 7 days for relief in respect of the

ninth and tenth allegations in so far as they

allege that persons voted who were not entitled to

vote. Within the time limit, I am instructed,

there was a notice of motion filed, copies of which

Webster 163 1/10/93

were served on the respondents, seeking relief

under section 358(2). That notice of motion seeks

two orders. One, that such relief be given from

compliance with paragraph 355(aa) in respect of the

ninth and tenth allegations. It says "until

5 October". The reason for inserting - - -

HER HONOUR: 15th, I have got.

MR COWDERY:  I am sorry, I have an imperfect copy. That

date was inserted in anticipation of the

circumstance that the petitioner would not be in a

position today to provide those particulars.

However, as.it has transpired, the petitioner is in

a position today and has, only just before

Your Honour came on the bench, provided those

particulars to the two respondents.

Might I hand up to Your Honour a document

headed Particulars of the Ninth and Tenth

Allegations and another document which is in a

folder which consists of two lists. The first list

which is five pages is the list referred to in

paragraph 7 of the particulars, which I will hand

to Your Honour, and the second list which is the
last single page in the folder is the list referred

to in paragraph 5 of the particulars, which I will

hand to Your Honour.

By way of explanation, might I take

Your Honour to those lists, to the first page. The

columns have been arranged in this way, that the
first column records the street name, the next

column records the number in the street - this is

according to the electoral roll - the next column

is the suburb and then the names are given with the

surname first and then the christian names

following.

Under the heading S'vy is the result of the survey. Might I explain to Your Honour and to my

learned friends that a survey was conducted in

April, May and June of 1993 in two ways. One was

by telephone and one was by a walking poll, walking

to the addresses. The number in that column on the

list records the number of persons over 18, as

stated by the occupant of the address, to have been

resident at the address one month before the rolls

closed. The precise question was in these terms,

Your Honour, and this would of course be the

subject of evidence in due course:

On Friday, 15 January 1993, how many people 18

years and over lived in this house, whether

they were temporarily absent or not?

Webster 164 1/10/93

The answer to that questiop is recorded under the

heading S'vy, but the answers to other questions in

the survey also provide support for the particular

given that no such person was residing at the

address at the time of the election either. That

is in particular 8(a).

HER HONOUR:  But is that relevant? I suppose we will come

to that in due course.	I do not know that it is
relevant.

MR COWDERY: At the time of the election?

HER HONOUR:  Yes, and would either matter if they had been

properly enrolled on some other occasion? All that

would matter, as I understand it, is that their

names were properly put on the roll.

MR COWDERY:  Your Honour, this whole allegation is directed

towards establishing that persons - - -

HER HONOUR:	Did not exist - - -
MR COWDERY:	- - - did not exist, that names on the rolls

did not have a corresponding person in the

division.

HER HONOUR:  Yes, but I am suggesting that your survey does

not prove that, it proves something else. Well, it

does not matter.

MR COWDERY: Well, not all of the questions in the survey

are extracted into the particulars or on this list,

at this stage, because of time constraints.

HER HONOUR:	Yes, very well.
MR COWDERY:	The next column records the number of persons

enrolled for that address.	The next column is the
difference between the two, then there is the name

of the person carrying out the survey, and the last

column is the number of the certified roll on which

that name was marked, that is, for relevant

purposes, the booth number. There are some codes

that refer to different types of vote, for example,

300 is an absentee vote, 320 is a postal vote, 330
is a pre-poll vote, and 340 is a provisional vote.

But the other numbers refer to booth numbers within

the division.

As far as the other list is concerned, the addresses recorded for those names are not

residences, either because there is no such number

in the street, no such property, or because the

property is a vacant block of land which is not

occupied and used by any person, or because the

Webster 165 1/10/93

property, in one case at least, is and was at the

relevant time an abandoned commercial premises.

Your Honour, there are 273 names on the - one

other matter I should explain. Towards the end of

that longer list, on the second-last and last

pages, Your Honour will see the notation "Ltr" in

the second-last column, going over to the last

page. That indicates the return of an unclaimed

letter addressed to that person at that address

containing the survey information.

Now the total on that list is 273. The total

on the other list is 9, and particulars have been

given of the multiple voting allegation of 149 such

instances. Your Honour, that is the position that

we have reached as of today, and those are the

particulars of both the sixth, the multiple voting,

and the ninth and tenth, the non-existent voters,

allegations that the partitioner wishes to provide,

and in respect of which the petitioner seeks the

initial relief from the requirement of the section

to provide those particulars.

HER HONOUR:  Yes, thank you. Yes, Mr McCarthy.

MR McCARTHY: Well, first of all, Your Honour, in relation

to what my learned friend has said about the first

order that Your Honour made on the last occasion,

which was in relation to further argument
concerning allegations 13 and 15 in the petition,
in the circumstances that no further argument is
presented in relation to those allegations, I would
move that there be no further proceedings in

relation to those allegations.

HER HONOUR:	Yes, I understand that.
MR McCARTHY:	In relation to the other matters concerning

the electoral roll, I would seek leave the reserve

any further submission in relation to that until

the Court has heard from Mr Sackar, as these seem
to be matters that more - go directly and

pertinently to the AEC rather than to the first

respondent. In other words, Your Honour, I would

make some submissions after we have heard from

Mr Sackar, if that is convenient?

HER HONOUR:  Yes, certainly. I will hear Mr Sackar first on

the thirteenth and fifteenth allegations.

MR SACK.AR: Yes, if Your Honour pleases, we respectfully

adopt the analysis set out in Your Honour's

judgment and we would submit that no further

proceedings should be had in respect of those

paragraphs for the same reasons as Mr McCarthy has

put.

Webster 166 1/10/93

HER HONOUR:  Yes, well I think I will make a order to that

effect.	You have got nothing to say in response to
that now?

MR COWDERY:	No, Your Honour.
HER HONOUR:	Well, it will be ordered that there be no

further proceedings on the thirteenth and fifteenth

allegations.	We come then to the sixth, ninth and
tenth.

MR SACK.AR:  Yes. Your Honour, so far as the sixth

allegation is concerned, we have prepared two

affidavits, ·one of Robyn Adelberg of

30 September 1993, and one of Lynne Elizabeth

Glasson of the same date. And Your Honour may rely

upon both of those, and may I take it you -

HER HONOUR:  For what purpose do you rely upon them?

MR SACK.AR:  Yes. Your Honour, in so far as Ms Adelberg's is

concerned, we want to rely upon it to indicate that

the investigation of the AEC has, on the multiple
voting question, disclosed only one case of
multiple voting, 25 cases in all of apparent

multiple voting, in order to highlight or, rather,

use that as a foil against the particulars which

have been supplied which really, in our respectful

submission, do not answer the matter at all.	Now
Your Honour may, of course, take the view that
there may well be a conflict of fact.	I do not
propose to resolve it at this stage.	It may be a

very weak case but I shall not entertain summary

disposal.

We were hoping, however, to attempt to satisfy

Your Honour that really the particulars that have

so far been supplied do not answer the matter and,

indeed, our investigation, we would have hoped,

might have prevailed or, rather, enabled a

different approach to prevail so far as the

petitioner was concerned. That is what I had hoped

to do. Now, Your Honour, as I said, may take the

view that that is an agitation of factual material

which - - -

HER HONOUR: It would seem so.

MR SACK.AR:  We thought it was pretty persuasive,

Your Honour, so that is why we thought we would at

least put before Your Honour what was done with

respect to the 149 cases. You see, the margin here

is 160-odd, so 149 does not get there on its own,

clearly.	We would have it that there is really
only one, and in total 25.	Now, I do not know

whether my learned friend who has, of course, had

access, or rather whose clients have had access to

Webster 167 1/10/93

these documents for a great deal of time, I do not

know whether the numbers that we have turned up in

our report - which indeed we were asked to have

here today, by letter - the letter of the

particulars asked for us to have here today, we

presumed, for the purposes of making it available

to Your Honour, the apparent multiple voting and

personation report which is the report that

Ms Adelberg compiled. Now, we do not know whether

that is contested. If it is not contested - - -

HER HONOUR:  But there are conclusions drawn which the

petitioner would not be bound by - - -

MR SACKAR:  Not at all. I do not know whether it is going

to be contested. If it is not going to be

contested, one presumes it is because we are being

supplied with particulars, and if it is contested,

Your Honour is faced with a position which
Your Honour would not resolve, and could not

resolve, today. But, if it is not contested, well

the matter can be resolved today.	I presume my
learned friend does contest it.

MR COWDERY: That is so, Your Honour.

MR SACKAR: Well, in that event, it seems we must battle on

in respect of that matter.	Your Honour, I cannot
then sensibly progress it.	I thought certain

matters may have appealled to the petitioner but it

seems nothing short of a full contest on that is

going to appeal to the petitioner.

May I then move to the ninth and tenth allegations? Your Honour indicated in your

judgment that there was no - Your Honour would not

entertain a challenge, as it were, to the roll.

Your Honour, however, would entertain such matter

which went to the question of the existence or,

rather, non-existence of persons. Your Honour, the

material which has been produced this morning, in part, appears to be an attack on the roll because

the particulars of the 273 persons, in our

respectful submission, is now said to be, not that

they did not exist at all, but rather that they did

not exist in the division of Macquarie, which it

seems is really a rather different allegation.

If we get down to only nine people who, on one view, it might be said, at best, were enrolled at

addresses which were not residences and, therefore,

leads to an inference because the place is a

dis-used factory or whatever it might have been,

that it was either unlikely or, indeed, even

improbable that someone may have been living there,

that does not even get there, but that only gets us

to nine people. We would submit that on the basis

Webster 168 1/10/93

of what particulars have been supplied this

morning, if that is the best that can be done, we

would submit, with respect, that Your Honour should

not entertain relieving the petitioner with respect

to these allegations and, indeed, as I have said,

it would seem to be a slightly different case in

any event that is being run. For that reason, in

so far as it is to be seen as substantively

different, then it is out of time, and we would

oppose the new allegation being agitated at this

time.

So in short, Your Honour, we say the

particulars do not get there and do not outline a

sufficient case to enable Your Honour to entertain

a discretion to relieve them further of

particularization; at best it gets to nine and, in

any event, if it is a different case, we oppose it

being agitated at this point.	They are our
submissions, Your Honour.

HER HONOUR:	Yes, thank you. Yes, Mr McCarthy.
MR McCARTHY:	Your Honour, there are, in our submission -

and these submissions only go to support and

elaborate on what has been put by my friend,

Mr Sackar - the following position has been reached

in relation to the numbers in this ballot and in

terms of what is being challenged. First of all, the ninth and tenth allegations that have been put

this morning, just to perhaps put the point in a

different way than has just been put by my learned

friend. In relation to the 273, there is no doubt,

Your Honour, that that is a straight out challenge

to the roll.

HER HONOUR: Well, I am not too sure about that. When I

asked Mr Cowdery that, he said, "Well, you have not

got all the answers to the survey", and I am not

too sure what the survey might or might not prove.

MR McCARTHY:  Your Honour, it may be that in reply

Mr Cowdery will put the matter in a different way,

but let us just put it at its absolute height.

What is being said is that there were names on the

roll in this electorate that should not have been

on the roll; fairly and squarely, that is what is

being put. That is a section 361 challenge in no

uncertain terms. If that is so, then in terms of
what Your Honour has previously said, then that

matter will not be entertained. If that is

correct, let us look at the rest. The only other

matters that are put forward are - and this is

taking their case at its very best - 149 votes are

said to be now involved in multi-voting, that is

the sixth allegation; and secondly, going back now

Webster 169 1/10/93

to the ninth and tenth allegations, there are nine

votes that are said to be for addresses which were

not residences in the electorate. 149 plus 9 is

158. Under no circumstances, in my submission

Your Honour, can this challenge succeed and the

only way in which this matter should be proceeded
with further is if it is the case, in our

submission, that Your Honour can be persuaded that what is involved with the 273 votes, whichever way

it is put, is not a challenge to the roll, because

what is being really disclosed to you this morning,

is that they do not have the votes that would
overcome the majority of the first respondent in

this case and, in those circumstances, Your Honour,

unless there is an explanation given this morning

as to why, on the bottom line, what is involved

with the 273 names is not a challenge to the roll;

if that cannot be explained and cannot be overcome,

in our submission, Your Honour, this matter now

goes very close to being a case in which there

should be no further proceedings. Your Honour,

those are our submissions.

HER HONOUR: 

Yes, thank you. Yes, Mr Cowdery.

MR COWDERY: 

Your Honour, in our submission, as to the sixth

allegation, my learned friend, Mr Sackar, quite
correctly, eventually identifies the issue that he

wishes to raise as a factual issue, which is a

matter for evidence in any subsequent hearing and
not a matter relevant to the adequacy of

particulars of an allegation provided, which is

what Your Honour is presently dealing with.

So far as the ninth and tenth allegations are

concerned, it may, to an extent, be correct to say, as my learned friend Mr Sackar said, that it is, in

part, an attack on the roll. I do not concede that

it is accurate to put it the way in which my	learned friend Mr McCarthy put it, that this is a
the roll. But that consequence may be a
consequence which arises from a challenge of a very
different kind, which is what the petitioner seeks
to make, and the challenge that the petitioner
seeks to make is to start from the casting of the
vote to determine whether or not that vote was cast
by a person who existed and who was enrolled, or
whether or not that vote was cast by what is
sometimes colloquially termed the ghost, or some other person taking advantage of that entry on the
roll. And that is the challenge that the
petitioner seeks to make in this case, that it was
a vote cast, going from the starting point of the
casting of the vote, not from the roll, that it was
a vote cast by a person who did not exist, as
Your Honour put it in the judgment.

challenge under section 361 to the correctness of

Webster 170 1/10/93

Now, as part of the evidentiary process of

establishing that allegation, it is necessary to

look to the roll and to what is recorded on the
roll, but that does not, in our submission, convert

the challenge into an examination of the

correctness of the roll. The roll is an

instrument, a step in the making of the argument,
which starts with the casting of the vote and which

then seeks to identify whether or not that vote was

cast by a person who truly existed. And that is

the way in which this allegation is put.

In our submission, it is not open to my

learned friend,. Mr Sackar, to oppose our

particulars of those allegations on the basis that

they raise new matter; to do so would be to canvass

Your Honour's judgment on the last occasion. Your Honour has found that the allegation is

sufficiently made in the petition, but not

sufficiently particularized, and it is to the

particulars of the making of the allegation that we

are directed this morning.

HER HONOUR:  But do you not have to go further in your

particulars than you have gone? Do you not have to

assert that votes were cast in the name of various

people, but not by those people, in your

particulars?

MR COWDERY:	That may well be so, Your Honour, and if that is the case, then the particulars are deficient to
that extent.
HER HONOUR:	When you marry the particulars up with the

documents that you gave me, that aspect seemed to

be left up in the air.

MR COWDERY: Well, Your Honour, that may well be so and if

so it is, as I say, a deficiency in the statement

of the particulars rather than in the substance of

the allegation that is made, and we would certainly

wish to have the opportunity to remedy that

deficiency. As I say, Your Honour, initially we

sought the time until 15 October to provide these

particulars, but we thought we could do it by this

morning, it was done very much at the last moment,

and it may be that a step in the reasoning has been

overlooked, for which I must take responsibility.

HER HONOUR: Well, I do not think anything turns on that.

MR COWDERY:  If Your Honour pleases. Your Honour those are

the submissions that we make in reply.

HER HONOUR: Yes. Well, let me be clear about this. It is,

however, your claim that the votes were cast in

Webster 171 1/10/93

these names but not by these people, in lists 1 and

2?

MR COWDERY: That is so.

HER HONOUR:  Yes. Well, on that basis I think that meets

your objection, does it not, Mr McCarthy? That is

the allegation that the votes were cast in the

names of these people, but not by these people.

MR COWDERY:  We would seek to add that to paragraph 9 of the

particulars.

HER HONOUR:  Yes, well, I think it probably is covered

there, yes.

MR COWDERY:  The terminology may not express it as clearly

as one might have liked, but the - - -

HER HONOUR:	Yes. Yes, no it is there, thank you.
MR McCARTHY:	May I, Your Honour?
HER HONOUR:	Yes, certainly.
MR McCARTHY:	Your Honour, the allegation has been taken

further this morning than was the case when I spoke

to the matter a few moments ago. Perhaps it might

be best if this can be recorded. As I understand

it, my friend is not saying that these persons'

names should not have been on the electoral roll

because that would be a challenge to the roll

itself.

HER HONOUR:  He does not have to say that. I mean, that may

be a conclusion that others will come to on another

occasion. It may be, for example - let us take

Glenn Mccleod of 52 Darley Street, Katoomba - it

may turn out, for example, that there never was any

the end of the day it may be a matter for the	such person. That is what I am saying, and then at
Electoral Commissioner, not for me, whether
something should be done about the rolls in that
regard.

MR McCARTHY: Yes, Your Honour. This is facing straight

then into a personation case. That is really what

my learned friend is alleging. The submissions

that were made on a prior occasion concerning the

particulars and the detail of a personation case

for the purposes of section 355(a) have, with the

greatest respect to my friend and his predecessor,

never been answered in this case at all. If we

turn around and look at 362 and his allegation now,

we will put the question straight:  how is it said

that this affected the result of the election and

what evidence are you going to lead? And we go

Webster 172 1/10/93

straight then to Bridge v Bowen and straight to the

situation where it cannot, and it never will

be - - -

HER HONOUR:  I think that is dealt with in the judgment.

Bridge v Bowen, in fact, is a somewhat different

provision from that which is involved here. There

is a real question of construction of

section 362(3) that I would not think is answered

by Bridge v Bowen. But in any event, as was said

in the judgment, that is a matter that should await

the facts.

MR McCARTHY:  Your Honour, I submit that even with this

material, Your Honour is still not taken to

anything that suggests that even in the widest

terms there is going to be evidence to show that
the result of this election was likely to have been

affected. There is still a threshold that has to

be passed. Your Honour has made - - -

HER HONOUR: At the moment we are talking about, are we not,

431 votes? That is subject to the evidence.	The
evidence, of course, may not materialize.	I do not

know. It may or it may not. But what is in issue

at the moment are 431 votes.

MR McCARTHY: There are allegations that there are -

HER HONOUR:  We are talking not about the evidence; we are

talking about striking out a petition.

MR McCARTHY:  Your Honour, we are talking about evidence

that has been produced that says that it would be

sought to establish in relation to 273 people that

while they were on the electoral roll someone else

voted in their names. That would seem to be a

recapitulation in a sense of the other allegation

about multi-voting which includes the 149.	I
presume they are not - - -

HER HONOUR:  They are not the same people, no, I should not

think. As I understand it they are quite separate.

MR McCARTHY:  Well, if they are cumulative in that way it is

presumably alleged - well, it has - that these

people have voted in the election.

HER HONOUR:  Somebody has voted and it was not those people.

That is what is alleged.

MR McCARTHY:  Yes, and assume that that is so, there is

nothing that suggests on the evidence before

Your Honour that that was likely to have affected

the result of the election, or that any of this has

any relationship to the first respondent at all in

terms of the fact that she has been returned. In

Webster 173 1/10/93

other words, there is, even with these particulars,

a totality that still does not amount to an

evidentiary basis whereby, in our submission, the

validity of the election would be affected.

HER HONOUR:  I am only concerned with whether it was likely

to be affected.

MR McCARTHY:  Your Honour, even on the likelihood test, that

number having been put there, whatever the number,

whether it is 273 or in the 400s, Your Honour, it

is still the case that at no time will there ever

be evidence as to how these votes were actually

cast. One just says again all these votes might

have been cast for the petitioner in this election,
or otherwise. That is our submission in relation

to these points, that even with the particulars

that have been provided it is still some

considerable distance short of providing an

evidentiary basis on which, if this is the evidence

that is going to be established - - -

HER HONOUR:  We are not talking about evidentiary basis at

this stage. We are talking about whether the

petition can be treated as satisfying formal

requirements.

MR McCARTHY:  I understand, Your Honour, but in terms of the

formal requirements, that material that has now

been produced, in our submission, is still not such

that on this basis an order under section 362 would

lie. There is nothing that says here in terms of

what is the final analysis which is, "Have votes

been affected; has the majority been affected?"

that would suggest that that is so.

HER HONOUR:  "Was it likely that the majority was

affected?", not "Was it affected?" - "Was it

likely?"

MR McCARTHY:  The only likelihood is that it is put forward

on some sort of basis in terms of an allegation

that what is involved is that these votes are in

some ways associated with the first respondent.

There has been no allegation to that effect at all,

and there is no allegation, even at this stage, to

that effect, that it has been in that way

associated. They are our submissions, Your Honour.

HER HONOUR:	Thank you.
MR SACKAR:	Before Your Honour makes any order as to what

should happen hereafter - this need not concern

Your Honour in the sense that we will wish to know

a little more about this list that has been

provided to us, and it would be, in our respectful

view, sensible that we try and do that in

Webster 174 1/10/93

correspondence rather than wait until we get to a

court. As I say, I do not wish necessarily to

involve Your Honour in that, only that we would

want to know a little more about how this case is

put so that if we do responsibly take the view that

what is said to amount to inference is no more and

could never be any more than speculation, that may

give rise to a further application. For example,

we will be asking what the gaps in this document

mean.

HER HONOUR:	What do you mean, "the gaps"?
MR SACKAR:	In the list that has been provided, not every

name has against it any survey and whether they

were on the roll or not, and if, for example, those

persons were not on the roll, then we are not

entirely sure where that leads anybody.

MR COWDERY:  Your Honour, could I correct that

misapprehension. The numbers in the columns on the

right-hand side refer to the address rather than to

the name, so each address is accounted for.

MR SACKAR:  No, that is not what I am concerned about.

Under the heading "S'vy" or under the notation

"S'vy Roll" and so on, for some of the names, many

of them, in fact, on the first page, for example,

nothing appears in that column.

MR COWDERY:	No, the numbers refer to the address.
MR SACKAR:	I see. Well, in any event, I am not going to

burden Your Honour with detail. All I am saying is

that we do not understand this document at the

moment and we will need some further explanation of

what it means. I am not entirely sure that it has been made clear but if it means that, for example,

there were 273 votes cast but not by the people who

were enrolled, then we just really want to

understand precisely how that is going to be proved

because if it is a case of just raising the

allegation and then saying to the Electoral

Commission, "Well, you disprove it", that may give

rise to a further application and we are trying to

avoid that but we really just want to try and

understand it. But may we just have leave to, in

so far as it is necessary, within whatever time

frame Your Honour has in mind, an ability to ask

for some further particulars of this and liberty to

restore the matter before Your Honour if we think

it is necessary to do so?

HER HONOUR:	Yes.
MR COWDERY:	Could I indicate, Your Honour, that we are

quite prepared to co-operate to the greatest

Webster 175 1/10/93

possible extent in clarifying any matters that may

be uncertain. It is a very important matter and the petitioner wishes to ensure that it proceeds properly.

MR SACKAR:  My learned friend will assist us greatly, and no

doubt Your Honour, if he took an example from this

list and explained precisely what the list is

intended to convey to us as the Electoral

Commission.

HER HONOUR:  The Toths, for example.

MR SACKAR:  Yes. I mean, he obviously has instructions, and

we would be very much assisted by knowing - take

the very first name: Michael Peter Duncan. Well,

what is this supposed to tell us? That there were

four people - well, I do not want to speculate.

Perhaps my learned friend could assist the Court by

explaining precisely what that entry means, what we

are intended to understand by it, and the evidence

which he proposes to call with respect to it. Not

the evidence, but what the allegation is, in

substance, supposed to mean.

MR COWDERY:  I can certainly give the allegation,

Your Honour.	I am not in a position to present the
evidence today.

HER HONOUR:	Yes.
MR SACKAR:	No, I am not asking that.

MR COWDERY: Because, as Your Honour might appreciate, there

is detailed evidence in relation to each matter

involving the survey and so on. But to take the

first entry on the list, there were, the petitioner

says, one month prior to the closure of the roll,

which is one of the relevant dates, and at the time

of the election, which is another of the relevant

dates - - -

HER HONOUR: Neither of the dates is relevant. That is the

problem with what you surveyed. Neither of the

dates is relevant.

MR COWDERY: There are a number of questions in the survey

but what is set out there, perhaps, will become

less important in view of what Your Honour has

identified.

What is set out there is, as I explained

earlier, four persons on the roll; three persons
over the age of 18 residing there, the difference

being 1.

HER HONOUR:  Who is, presumably, Duncan, Michael Peter.

Webster 176 1/10/93

MR COWDERY:	Yes.
HER HONOUR:	You say he does not reside there?
MR COWDERY:	Yes.
HER HONOUR:	And you say somebody cast a vote but it was not

him?

MR COWDERY: Correct.

MR SACKAR:  Though he was on the roll.

MR COWDERY:  Yes. These names and addresses are taken from

the roll.

HER HONOUR:  Now, when we get to the Toths of 957 East

Kurrajong Road, East Kurrajong, what is meant to be conveyed by that, although there is no mention in

the survey or the roll?

MR COWDERY:  No, the survey established - as it is set out

in this document, the survey established that

nobody lived there at any relevant time and the

allegation is that there were five votes cast in

those five names but not by those five persons.

HER HONOUR:  Yes, thank you. Mr Cowdery, I would certainly

be minded to - I would grant leave to particularize

the matter. I will give another five days, I

think, if you wish to - you may wish to recast them

more precisely.

MR COWDERY: If Your Honour please.

HER HONOUR:  Mr Sackar, you have leave to approach the Court

on 72 hours - 3 days notice or thereabouts.

MR SACKAR:  Yes, if Your Honour pleases.

HER HONOUR:  Now, what will happen now? There will have to

be a hearing. When would you be ready?

MR COWDERY: There is, as Your Honour will appreciate from

the nature of the allegations, a considerable body

of evidence to be assembled and organized and

presented by way of affidavit and that will take

some little time.

MR SACKAR:  Your Honour, it might be convenient to set a

timetable this morning only for the filing of such

affidavit evidence as each of the parties wish to

file, and not do anything about fixing any date

until we see what volume of material is likely to

burden Your Honour. I suppose the ball is in

Mr Cowdery's court as to how long he needs to file

those affidavits, and then on the basis of that my

Webster 177 1/10/93

learned friend, Mr McCarthy, and I could then suggest some times in which we could file the material in reply which then would give, I suppose,

Mr Cowdery an opportunity to reply to us. That may

see us about Christmas Eve, I suppose, in East

Kurrajong somewhere.

HER HONOUR:	Can you do it within 21 days, Mr Cowdery?
MR COWDERY:	Can I just get instructions on that,

Your Honour?

HER HONOUR:	Yes, certainly.
MR COWDERY:	My instructions are, Your Honour, that the

assembly of the relevant evidence, given the

resources that are available, might take up to

2 months.

HER HONOUR:  26 October seems to me like a good date. The

matter just cannot drag on indefinitely.

MR COWDERY:  May I assure Your Honour that the petitioner

does not wish to unnecessarily prolong the

proceedings.

HER HONOUR:  No, I am sure that is right. At this stage I

will make an order for 26 October. If it emerges

that there really are insuperable difficulties,

then you can have leave to approach the Court on

three days' notice, but only if there really are

insuperable difficulties. I cannot imagine that

there would be. It is really almost a month.

Fourteen days thereafter for the respondents?

MR SACKAR:  Yes, Your Honour.

HER HONOUR:  And seven days for any material in reply? The

matter to be listed for mention on 3 December, I

suppose. Would that seem suitable?

MR COWDERY:  Yes, Your Honour.

MR SACKAR: Yes, if Your Honour please.

HER HONOUR:  And there will be liberty to all parties on

three days notice. I think there is nothing

further we can do today.

MR COWDERY: Might I ask: did Your Honour make an order as

to the recasting of the particulars?

HER HONOUR:  I will give you leave to recast them. Yes, I

should make formal orders to the effect - I will

make orders in terms of your notice of motion,

subject only to this, that the time for compliance

Webster 178 1/10/93

is extended until 6 October. That is probably a

Saturday, is it?

MR COWDERY:  No, that is next Wednesday, Your Honour.

HER HONOUR: Is 6 October suitable? So, there will be

orders made in terms of paragraphs 1 and 2 of your notice of motion, amended so that you are relieved

until 6 October 1993.

MR COWDERY:	Thank you.
MR McCARTHY:	Your Honour, I take it that in relation to the

setting of an actual hearing date, given the time

table, that realistically we are looking at a

hearing date in the first quarter of next year?	I
mean, 3 December is not that long from the end of
term and unless Your Honour was perhaps proposing
to - - -

HER HONOUR:  I am certainly happy to sit from 10 December -

although that is a Saturday, I think - until

Christmas Eve. The silence was eloquent.

MR McCARTHY: Well, no. Your Honour, it is just that,

perhaps as with Mr Sackar, I will inform my clients

that other arrangements will have to be made in

relation to counsel.

HER HONOUR:  I am not holding you to those dates but I am

just saying I can sit.

MR McCARTHY:  Thank you, Your Honour. Perhaps, on our

liberty to apply, that might be something that at

an earlier time - - -

HER HONOUR:  It is certainly something I would want dealt

with on the mention date but I can tell you now

that - it should not be a lengthy case, should it?

It should be two days at the most, should it not,

if it is going to be done substantially by

affidavit?

MR McCARTHY:  That may well be so but it would be -

apparently, there is going to be affidavit evidence

from the petitioner in relation to 400-plus names,

so one would have thought that it would be more

than just a short period of time if there is going
to be - I mean, in electoral terms, there are very

few more serious allegations than to say that

persons did not vote, and the petitioner is putting

himself to the proof of that. I would have

thought, Your Honour, it might take some time to

actually establish that. That is that the initial

impression would be, that it would be more than a

two-day case.

Webster 179 1/10/93

MR SACKAR:  No, I think it could be dealt with shortly,

Your Honour, because I think it may be the evidence

is left in the air and Your Honour has to see

whether it is capable of supporting an inference.

HER HONOUR:	It sounds very much as though it is a question of inference evidence at this stage.	I mean, I may
be wrong but that is - - -

MR McCARTHY:	Your Honour, it is a different matter if it is just going to be a matter of inference but one
would have thought that, given what is being put,
it is not going to be an inference that is going to
be left forward but something a bit more serious
than that.
HER HONOUR:	Let me tell you at this stage, so that when you

come back on 3 December when all the evidence

should be in, that I am available to hear it any
time after the 10th and up to 24 December if there

are days then. Otherwise, it would have to be the

last two weeks of February.

MR McCARTHY:	As Your Honour pleases.
HER HONOUR:	Do we have dates at that stage? Or is that a

grave inconvenience to people?

MR McCARTHY:  That would certainly be no - in relation to

the first respondent and representation,

Your Honour, there would be no difficulty in

relation to the last two weeks of February. I can

state that right now. Perhaps Mr Cowdery would be

in the same situation.

MR COWDERY:	I am at present, Your Honour, yes.
HER HONOUR:	Yes. Mr Sackar seems unconcerned.

MR SACKAR:  Your Honour, we will be here whichever date it

is. It does not matter to us, but the sooner the

better from our point of view, obviously.

HER HONOUR:  Yes. Well, you will be in a better position to

determine these things on the 3rd. But if you do

form some preliminary view about how long it is

going to be and dates that can be agreed in those

two periods, it would be very useful if you could

inform the Registrar.

Webster 180 1/10/93

MR McCARTHY:	Thank you, Your Honour.
HER HONOUR:	We will simply stand the matter over until

3 December.

AT 11.16 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 3 DECEMBER 1993

Webster 181 1/10/93