Webster v Deahm

[1993] HCATrans 232

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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 144 19/8/93

For Directions

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 19 AUGUST 1993, AT 10.02 AM

(Continued from 6/8/93)

Copyright in the High Court of Australia

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

the petitioner. (instructed by Brien Cornwell)

MR J. McCARTHY, QC:  For the first respondent, again,

Your Honour. (instructed by McClellands)

MR J. SACKAR, QC:  And for the second respondent.

(instructed by the Australian Government Solicitor)

HIS HONOUR:  To the extent that it is necessary, I grant

leave.

MR SACKAR:  Thank you, Your Honour.

MR COWDERY:  Thank you, Your Honour. Your Honour, the first

matter I wish to mention is that the petition, as

Your Honour has observed previously, is in some

disarray in that the numbering has gone awry and in

an effort to correct that and to make the document

a little more easily understandable by all parties,

I have had copies of the document prepared with

numbering inserted in the left margin that will,

hopefully, more logically take one to the grounds

of relief sought in the petition and the

particulars under each of those grounds. That

document is presently being brought from my

chambers where it was inadvertently left but it

will be here, hopefully, very soon.

When one analyses the petition that way, there are 22 grounds which will bear the paragraph

numbers in the margin of 3 to 24. Now, until the

document arrives, I will not refer to those numbers

because it will only produce more confusion. That

document is coming.

The matter that is listed for hearing this

morning is the notice of motion that has been filed
by the petitioner on 11 August 1993, and I move on

that notice. The notice seeks a number of orders directed to two matters: first, the relieving of

the petitioner, initially, from compliance with

section 35S(aa) of the Commonwealth Electoral Act

in respect of four of the grounds for relief sought

in the petition. Those four grounds are described

in paragraph 2 of the notice of motion by reference

to the page numbers and the original lettering that

appeared opposite them.

The other matter sought in the notice of

motion is the issue of the subpoena to the second respondent to produce a number of documents which

were generated in connection with the election in

the Division of Macquarie.

Now, Your Honour, in support of the motion, we

have produce two sets of submissions. There is a

Webster 145 19/8/93

document headed "Petitioner's Submissions", dated

13 August 1993 and there is a further document

headed "Petititioner's Supplementary Submissions",

dated 18 August 1993. I hope that the latter

document reached the Court in time.

HER HONOUR: Well, I have three documents. I have

"Petitioner's Submissions", "Petitioner's

Supplementary Submissions" and, as well,

"Petitioner's Supplementary Submissions".

MR COWDERY:  There should be one under my signature, with

my signature at the bottom, the supplementary

submissions.

HER HONOUR:  Yes, that is there and there is one which you have not signed that has your name on it.

MR COWDERY: That may have been intended to correct a couple

of typographical errors that crept into the earlier

one. I do not think there is any substantial

different between the two. Your Honour, it is the one with my signature on that I will be relying on

in any event. I had hoped, Your Honour, to

eliminate some confusion in the matter rather than

to create more.

Now, the supplementary submissions are

intended to amend paragraph 6 of the original

submissions and the first part of the supplementary

submissions should be read instead of and as

replacing paragraph 6 of the original submissions.

The supplementary submissions are also intended to

amend the description of the documents sought in

the subpoena, which description had been given in
paragraph 3 of the notice of motion.

So, Your Honour, in respect of the first area of relief sought in the motion, the petitioner

seeks relief from the strict compliance with

section 355(aa) in respect of four of the grounds

in the petition. Might I say at the outset that

one of those grounds will not be pressed and it is

the ground which is described in the notice of

motion as being that at page 12, allegation (b)

where first appearing.

HER HONOUR:  Why is the next one crossed out on my notice of

motion, page 13, allegation (c)?

MR COWDERY:  Crossed out on the notice of motion,

Your Honour? I think, Your Honour, that that arose

from a slip that may have been made in the course

of the hearing on the last occasion. At page 134
of the transcript - I do not know whether

Your Honour has the transcript of the last

occasion?

Webster 146 19/8/93

HER HONOUR:	Yes.
MR COWDERY:	Page 134:  Your Honour will see that there were

submissions made about a point at "page 13 at about

point 8, paragraph (c)". It is about point 6 on

page 134. Now, when Your Honour summarized the

matters that were to be the subject of the notice
of motion at page 140 of the transcript at about
point 3, it was transcribed as two references to "page 12 11 • The second 11 12 11 should have been 11 13".

I think when somebody was checking the notice of

motion against the transcript at page 140, it was

thought to be an error but, in fact, it was

correct.

HER HONOUR:  So, that is pressed but it is no longer alleged

that persons voted on the roll?

MR COWDERY:  No, it is alleged but the difficulty about it

is section 361(1) of the Commonwealth Electoral Act

which prohibits the Court of Disputed Returns from

inquiring into the correctness of any roll.

HER HONOUR:  Yes, I realize that, but you do not seek leave

to particularize that?

MR COWDERY:	No.
HER HONOUR:	Yes, all right.
MR COWDERY:	So, we do seek leave to further particularize

the other three grounds for relief in the petition

which are at page 7, page 13 and page 16.

HER HONOUR:  You realize then that what is at page 12 may

well be struck out?

MR COWDERY:	Yes, Your Honour.
HER HONOUR:	And that was the matter on which the subpoena

previously issued, in a sense?	You have already
had one subpoena.

MR COWDERY:  Yes, it was only one of the matters for which

that subpoena was issued, yes - only one. There

were other grounds of relief that it was sought to

particularize by information to be obtained by that

subpoena.

Your Honour, the petition with numbering in the margin has now arrived. Would it be convenient

to hand up a copy of that to Your Honour, and I

will provide copies to my learned friends.

HER HONOUR:  Yes, thank you.

Webster 147 19/8/93

MR COWDERY:  This may make reference to the document a

little easier.	The substance of the document has
not been amended in any way.	The grounds for

relief have been given a number and the

particulars, where they appear, have been given a

letter. So, we are now seeking leave to further

particularize what, under the marginal numbering

system, are grounds 8 on page 7, 18 on page 13 and

23 on page 16.

As to all of those, Your Honour, the

petitioner submits that the information required by

him to enable him to satisfy section 3SS(aa) was

not obtainable except following the making of

orders by this Court under section 360.

HER HONOUR:  Yes, I understand that and that has been said

more than once but that is not the problem so far

as I am concerned. That may be the problem so far

as you are concerned. Let us go to page 13,

No 18. I can well understand that you may need to

have a subpoena to see how many votes there are

involved but what I cannot understand is the basis

on which you say they were unlawfully excluded or

how the subpoena goes to that.

MR COWDERY:  The subpoena is directed to documents that show

the reasons for the exclusion of those votes, to

provide evidence of that exclusion.

HER HONOUR:  Why is that a challenge - I mean, it seems to

me very much like a fishing expedition and not a

challenge when it comes to - - -

MR COWDERY: All I can say to that, Your Honour, is that I

am instructed that information has been received by

the petitioner that a number of the votes were

wrongly disallowed. But that information, of

course, is not in a form which is able to be put on

as evidence.

HER HONOUR:  I do not know about that either. I do not know

that we are bound by the rules of evidence.

MR COWDERY: Apparently not, according to the Act.

HER HONOUR: Yes. But I just do not see the connection. If

there is one, I do not see it; on what basis it is

said that they were unlawfully excluded?

MR COWDERY:	I can say no more about that, Your Honour, at this stage than what I have said, that there has
been information given to support that allegation.
Now, I, myself, do not know any greater
particulars - any more particular details of that.
HER HONOUR:	Do you see the difficulty I have?

Webster 148 19/8/93

MR COWDERY: Well, I do, Your Honour -

HER HONOUR:  If it is said that people who were on the roll

and who had not voted, who had not otherwise voted,

did not have their provisional votes allowed, I

could see that we might be moving somewhere. But I

need something of that nature, do I not, to see

anything that brings it within what might be called

"a challenge"?

MR COWDERY:	Some ground for the challenge?
HER HONOUR:	Yes.
MR COWDERY:	Would Your Honour permit my instructing

solicitor to seek some instructions on that matter

now while the hearing continues?

HER HONOUR:  Yes, certainly. But do you understand what I

am talking about?

MR COWDERY:	Yes, I do, Your Honour.
HER HONOUR:	The alternative, it seems to me, is that you

just want to go through all the documents, find out

what the reason given was and check out whether it

bears out now.

MR COWDERY:  The petitioner puts it differently in that he

wishes to identify amongst the documents the

evidence of the wrongful disallowance of some of

those votes, and the only way of identifying that

evidence is to have access to the documents that

record the reasons for the disallowance. He is not

saying that all of the provisional votes were

disallowed.

HER HONOUR:	I can understand why you need a subpoena to get the numbers involved, but I cannot see why you need
a subpoena to say why it is that they were
unlawfully excluded.
MR COWDERY:	To provide the evidence of the unlawful

exclusion.

HER HONOUR:  Yes. Well, I am not concerned with the

evidence. I want the reason. I want to know what

it is that is said to constitute unlawful

exclusion.

MR COWDERY:  If Your Honour will permit my solicitor to seek

instructions on that?

HER HONOUR:  Yes.

Webster 149 19/8/93

MR COWDERY:  May I take it that Your Honour has had an

opportunity to read the submissions that have been

provided?

HER HONOUR:  I have, but I have some difficulty with them

because they take off at a point that I do not

understand. Say, for what we will now call, 8(a) -

I can understand 8(a). But when we come to 18,

again, I do not know what our realm of discourse is

and I certainly never had any understanding of the

realm of discourse involved in what is now 23.

MR COWDERY: Perhaps, Your Honour, if I could make some

submissions in respect of both of those.	As to 18,
the only further information I can give to

Your Honour is that in the case of 800 of the 1200

provisional votes, statutory declarations were made
by the voters setting out the basis for their

eligibility to vote, but the votes were disallowed.

Now, I am instructed that that is all the

information that is presently available, and I can

really take it no further than that. I see the

difficulty but that is as far as I am able to take

it.

Now, as to 23, the second respondent has now

provided to the petitioner, in summary form, the
total number of votes counted for the Division of

Macquarie for the House of Representatives and for

the Senate. That has been provided by

communication from the Australian Electoral

Commission, dated 4 August 1993, which gives the

figures for the Senate of 71,640 and for the House

of Representatives of 71,225, the discrepancy being

415. It is noted on the document that the figures

include informal votes.

The petitioner's submission is that the

discrepancy between the figures for the Senate and
the House of Representatives is explained by voters
voting outside of the division and being given the

wrong divisional electoral papers. That.does not

affect the Senate vote because it is a statewide

election for the Senate but it is capable of

affecting the election for the House of

Representatives for the division. The figure is

415.      The margin in the election was 165.

The information sought by the summons would

enable the petitioner to obtain the evidence of

what has been communicated, that is, the evidence

of the voting numbers and evidence of the occasions

on which the incorrect ballot papers were given to

voters, which ballot papers, it is understood, are
identified and recorded in that way, that is, as

having been incorrectly issued to voters: getting

papers for the wrong electorate, in effect. That

Webster 150 19/8/93

is why that information sought in the subpoena is

being asked for and that is why, it is submitted,

that further particulars of that ground are unable

to be given until that information is obtained.

Ground of relief 23, leaving aside the

Australia-wide allegation which has been removed by

one means or another, that is why ground 23

alleges:

serious irregularities in the voting, counting

or electoral procedures applicable to the

election.

The ground itself is the assertion that:

The result of the election for the seat of

Macquarie ..... is invalid.

It is in very broad terms. The particulars have

sought to bring that very wide allegation down to

specific matters. Perhaps they might have been
more happily expressed, but that is the substance

of what is being sought to be argued under that

ground.

Your Honour, I rely on the material in the

written submissions.

HER HONOUR:  What happened -I know it was not a matter to be

particularized, as such, because it seemed to have
been that it was going to come to light - the

allegation about people being on the rolls who

should not have been rolls having voted for which

the information - for which the subpoena issued

before?

MR COWDERY: That is No 15 which is at page 12.

HER HONOUR: Is that the only one?

MR COWDERY:  The other one that is related to it,

Your Honour, is No - - -

HER HONOUR: It is No 12(a) on page 10. Marginalized 12.

MR COWDERY:	Yes, 12(a). Yes, it is affected the same way. Bound up in that is, also, ground 17 on page 13.
HER HONOUR:	Yes.
MR COWDERY:	Which suffers a similar fate.
HER HONOUR:	But I thought there was going to be some

information as to the number of votes involved.	I
thought it had proceeded on that basis last time
the matter was before me.

Webster 151 19/8/93

MR COWDERY:  Yes, there is information available and it

either has been or will be provided to the

Electoral Commissioner. It has been provided, I am

instructed.

HER HONOUR:	To the Electoral Commission?
MR COWDERY:	Yes.

HER HONOUR: And to the first respondent?

MR COWDERY:	Not at this stage, I am instructed.
HER HONOUR:	And is it going to be told to me?
MR COWDERY:	As soon as I find out, Your Honour, I will tell

Your Honour. I am instructed, Your Honour, that on

the information obtained by the petitioner, there

are approximately 400, the precise figure can be

counted from a document that I have and which, I

think, has been made available to the Electoral

Commissioner. But it is approximately 400. It is

alleged that there are 400 enrolled voters who are

not entitled to be enrolled in that division.

HER HONOUR:  Yes, that much has always been known - that

allegation. The information that was in issue was

how many of them were recorded as voting.

MR COWDERY:	That requires an addition to be done of one column of the document.	My instructing solicitor
will do that now.

MR SACKAR: 

Your Honour, could I just interrupt my learned

friend and say, so as I am not appearing to
acquiesce in what he is saying, we certainly have a

document - a voluminous document, in fact - and I

do not wish to be seen as being churlish when I say

this, but we really do not understand it, and we

have tried.  We really cannot make head nor tail

of it. But, no doubt, if there is something in

course, but the document we have at the moment is here that we - no doubt, we will be told in due

difficult to decipher.

MR COWDERY:  We will do what we can to assist that. I am

instructed that there are 390 - it is alleged that

there are 390 persons who were not entitled to be

enrolled in the division who voted. We will

certainly take up that invitation to explain the

document that has been provided and we will take a

similar course with the first respondent.

HER HONOUR:  Yes, very well. Thank you. Mr McCarthy.

MR McCARTHY:  We received the supplementary submissions

yesterday, Your Honour. In the circumstances, I

Webster 152 19/8/93

took the view that I could put the first

respondent's case briefly to Your Honour without

reducing it to written submissions.

Your Honour, my learned friend has restricted

himself to a number of parts of his now revised
numbering numbered petition. In relation to the

material sought on page 13, paragraph 18, the

provisional votes, Your Honour, the requirement for

a petition at the threshold is 355(a). There must

be facts pleaded which are relied on to invalidate

the election or return.

In my submission, the exchange a few moments

ago between the Court and my learned friend

established, on the record, beyond doubt that there

are no facts in that petition that are relied on

which would invalidate the election. My friend was

honest enough to tell the Court and to tell us all

that he simply does not know. He cannot,

Your Honour, suggest to you one reason, at law, why

one vote in that section is invalid.

In those circumstances, Your Honour, what is set out there in that provision could not, in our

submission, comply in any way with section 355(a),

let alone section 355(aa). Your Honour, that is

the core submission on that point.

We would also observe that the implication of the pleading and the way it has been sought to be

bolstered by having leave to further particularize,

does not take the provision any further. It does

not take the information in the petition, in its

central aspect, any further.

I would also adopt, Your Honour, a remark of

Your Honour's about what such a proposal as for

further information would constitute in this matter

and that is it would be a fishing expedition. My

friend cannot tell you what the petitioner would be

going to the Electoral Office for, except in the
sense of looking at a series of documents.	He is
not saying he can go there for the purpose of

having it established the number that are excluded

for a particular reason; and Your Honour suggested

some reasons at law. None of those were adopted

for the very good reason, as my friend has said,

that he simply does not know. He cannot say that

that is the reason any of them cannot be adopted.

Now, Your Honour, the other matter I would

just say is this, that over the information that is

or could be put in the petition, it may be an

occasion, at some stage, that this Court might

observe that there are detailed provisions in the

Act in relation to scrutineers and that that is

Webster 153 19/8/93

what scrutineers are for in relation to providing

information to candidates as to what happened and

as to why votes were either included or excluded;

as to how the various categories of votes were

counted and the basis on why they were counted. The

idea that a candidate does not have any information

just seems to be a nonsense for someone who

responsibly wants to put something to a Court of

Disputed Returns.

Our other matter concerns the previous

jurisprudence on the pleading of petitions which

has been referred to in our submissions at an

earlier date. Your Honour, the High Court -

Your Honour's predecessors have made clear in a

number of cases, and I refer, for instance, to the

Berrill in the 1970s, which is in our list of

references, the then Justice Gibbs made clear that

taking a section of the Act and saying whatever the

section is that something unlawfully has happened
in relation to it and that is all that is stated

or, in the alternative, as to procedures under the Act, that they were unlawfully carried out, is not to plead facts at all and is the very essence of a pleading that does not amount to a proper pleading for section 355(aa).

Your Honour, those decisions, as Your Honour

would have noted, were summarized by

Mr Justice Needham in the unreported decision in

New South Wales concerning Yates v Unsworth which,

I think, I handed into Court.

HER HONOUR:	Yes.
MR McCARTHY:	Your Honour, in relation to the paragraph

numbered now 23, we would submit this: firstly,

that though I understood what my friend said as a

matter of English, I have to say, with respect,

that I am no more enlightened and I am not sure if

the Court is any more enlightened as to what is in

actual fact being alleged here. It seems that, at	least half-way into his submission, the real
difficulty became obvious. The petition says the
reason the election is invalid, as I understand it, in Macquarie now is that there is a discrepancy
between the House of Representatives and the Senate
count and that those votes have been "lost,
destroyed or otherwise not accounted for". They
are the words that are used in the petition.

He then informs us that what he wants to do is

to have access to various material in the AEC that,

however you would describe it, can only be

described as material that has been accounted for

and votes that have been accounted for. In other

words, it cannot be the case that this pleading can

Webster 154 19/8/93

have any relationship to votes of whatever sort

for which there are records in terms of the marking

of the roll - whether formal or informal - or

whether marking of the electoral papers in such a
way that a person is shown not to have been on the

roll. In other words, all of that is accounted

for.

It cannot be, Your Honour, those that have

gone into the count that results in the number of
votes that are there that my friend is seeking. In

other words, Your Honour, what is being put forward

in the subpoena and the detail that is sought to be

put now does not make any sense, in our respectful

submission, as to why that has occurred.

Now, Your Honour, the other matter is this,

that if there are allegations of fact concerning
categories of votes, that is the way in which a

petition is to be presented. This pleading, in our

submission, commenced as a nonsense. My friend has

tried to make it less of a nonsense but,

unfortunately, in our submission, it still remains

that. Your Honour, there has not been sufficient

or proper grounds given to the Court that would
allow, in our submission, any useful elucidation of
those provisions of that section at all.

Now, the other matter that was sought to be amended, Your Honour, was page 7, allegation (c),

according to my notice of motion.

HER HONOUR:  Yes:

There were between 100 and 370 instances where

the roll was marked more than once - - -

MR McCARTHY:  Your Honour, I do not think there has been any

submission this morning that has taken this matter

any further at all.

HER HONOUR: Well, I think the request is to be given leave

to particularize from the numbers.

MR McCARTHY:  Your Honour, that may well be so but there has

been nothing that has been suggested in the

material as to what the material would amount to except, perhaps, in the changing of the numbers,

that would relate any of that material, in our

respectful submission, Your Honour, to any grounds

for relief that would be required under

section 355(a) in terms of fact, that is, that

there is nothing in the petition and there remains

nothing in the petition that the Court could act on

under section 362 to invalidate the election.

Webster 155 19/8/93

Your Honour, the simple assertion that there

has been marking of the ballot papers in that way

is not per se - - -

HER HONOUR: It is the roll was marked. Sorry, the first

allegation is an allegation - 8 itself is an

allegation of fact:

that persons unlawfully marked ballot papers

to which they were not entitled.

MR McCARTHY:	Yes, Your Honour.
HER HONOUR:	What it seems to be is that they, in fact, when

you combine it with (a), voted at least twice.

MR McCARTHY:  Yes, Your Honour. That would seem to be the

ultimate conclusion as to what would appear to be

alleged. In our submission, Your Honour, there has

not been sufficient facts pleaded that would

invalidate the election from what is said there.

There would need to be and should be more said. Your Honour, the power, where any of that would

operate, would be from 362(3) of the Act, and

there are certainly not in any way facts put

forward that would allow the Court to operate that

section.

Your Honour heard me at some length on the

last occasion on that particular submission. I

stand by what was submitted on that occasion and I

say, Your Honour, that nothing has been put this

morning, in terms of the information that is

sought, that would elucidate what it is that is put
in a sense of being able to establish facts that

would invalidate the election.

For instance, Your Honour, it is not put that

even the information that would be obtained would

establish that persons voted more than once.

HER HONOUR:	It is alleged that they did.
MR McCARTHY:	It is alleged that they did.	The fact on

which it is alleged, Your Honour - if one could put

it that way - is that the roll was marked twice.

That is all. There could be other reasons why the

roll was marked twice. Certainly, Your Honour,

there is nothing, in terms of the focusing of fact,

that would go to the invalidation of an election

under section 362. The association, even taking it

to the end, of this phenomena, with the candidate

or with the arrangements that concerned the

candidate's campaign is not asserted, Your Honour.

As was set out in the written submissions,

Your Honour, we say that that is a long way short

Webster 156 19/8/93

of any pleading that would allow Your Honour, even

if the figures between - and this is all that my

learned friend is asserting, that a figure between

100 and 370 he is now going to have, as a figure,

certain. Obviously, if it was a figure of 100, the

petition would be, in those respects, defective in

that way. But even assuming it was over 166,

Your Honour - and that is all that his information would clarify - it still does not take the pleading

in the petition to the level that is required under section 355(a) and, in our submission, Your Honour, there should be no further proceedings in relation to it.

Your Honour, they are our submissions in

relation to the discretionary issue.

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

MR SACKAR:  Your Honour, on 17 August this week,

Justice Dawson, in the matter of Sykes v Australian

Electoral Commission, made some observations about

section 355.	Your Honour may have had access to
that.	May I, however, hand up copies.

HER HONOUR:  Yes, I have.

MR SACKAR: If Your Honour pleases. At page 5 of the print,

having previously considered what His Honour

observed was the rather obscure distinction between

355(a) and 355(aa), he says, in the first full

paragraph:

What is clear, however, is that the facts

which par.(a) requires to be set out must not

only be the essential facts relied on but must

also be sufficient to justify a finding of

invalidity.

Now, may I take the three matters of substance remaining in reverse order? So far as now

paragraph 8, on page 7, is concerned, there appears	to be an evidentiary hiatus between what is alleged
to be the difficulty, the illegal practice or
whatever it is said to be, and the proof of it. It
rather highlights the way in which this petition is
constructed. It is really constructed on the basis of speculation, and speculation would not ever be
sufficient to conform with section 355(a). I say
"speculation" because we are told in paragraph 8,
for example, "that persons unlawfully marked". We
are not told how, but the assumption is they marked
two ballot papers. That is one way of reading it.
But it is not asserted in that way. But the manner
of proof is that the roll was marked more than
once, not that the ballot papers were marked on
more than one occasion.

Webster 157 19/8/93

So that there is, we suggest, within

paragraph 8, a real evidentiary difficulty which

cannot simply be overcome or should not be allowed

to be overcome by what we would describe as a

fishing expedition to find out whether there is, in

fact, a link between the marking of the roll and

the unlawful marking of the ballot papers. The

fact that the petitioner cannot descend to any

specificity, it seems, at all, apart from (a), is

sufficient, we say, to stop the petition there and
then.

As my learned friend, Mr McCarthy, has pointed out, there may be many reasons why the roll has

been marked more than once or, at least, it is not

suggested, as we understand it, by the petitioner,

that it can only be because a person has voted

twice.

Now, the other two matters of substance:

paragraphs 23 and 18 suffer with the same problem.

We are not told, for example, how things were unlawfully excluded. Likewise, we are to1d, so far

as paragraph 23 is concerned, that the discrepancy

between the votes can only be explained by reason

of, it seems, some error now - not some illegal

practice but by reason of some error on the part of the Electoral Commission receiving ballot papers in the wrong electorates.

Now, with respect, there may be many reasons

why a discrepancy exists. The mere fact that there

is a discrepancy, we submit, is not sufficient to

justify, of itself, a finding of invalidity. So,

one must go further than simply say, "There is a

discrepancy which I think or suspect is as a result

of this but I don't really know and what I really

now need to do is to look at the documents to see

whether my suspicion is correct." Section 355(a),

in my respectful submission, does not talk about

suspicion. It talks about an invalidity sufficient

to justify the setting aside of a result in an

election.

So, for those reasons, Your Honour, we submit

that the petitioner should not be permitted to go

further. If Your Honour pleases.

HER HONOUR:  Thank you. Is there anything in reply,

Mr Cowdery?

MR COWDERY:  A few matters, Your Honour. Your Honour, to

the extent that it applies to this aspect of the
matter, we rely on section 364 of the Commonwealth

Electoral Act which provides that:

Webster 158 19/8/93

The Court shall be guided by the substantial

merits and good conscience of each case -

If the initial pleading is defective in that it does not spell out with sufficient detail matters

which are able to arise by inference then, in our

submission, that should not be held against the

petitioner.

Dealing with a few of the matters raised by my

learned friend, Mr McCarthy. On ground 18, the

provisional votes ground, there was reference made

to the role of scutineers in the course of the

election. I am instructed that provisional votes

are put to one side and dealt with separately from

the ordinary votes, pursuant to a different

procedure; I think, under section 228 of the Act.

But, in any event, that is all I wish to say about

that.

So far as ground 8 is concerned, on page 7,

the petitioner seeks access to the rolls in order

to identify those voters who were marked on the

rolls more than once. The submission in due course

would be that, having regard to evidence of the

practice in the course of the election, persons who

were marked at the time of the marking were given

ballot papers and the further inference may be

drawn that those ballot papers were used, and it is

a matter of inference.

It may be that those inferences are able to be

strengthened upon inquiry being made after the

voters have been identified. But that is a further step that cannot be taken, in the obtaining of that

evidence, until that first step of identifying the

voters on the rolls has been taken, and that cannot

be done unless a subpoena is directed towards the

second respondent for that purpose.

Two other matters that my learned friend

mentioned: he referred to section 362(3) and the

connection of the successful candidate with events

that occurred. That is one aspect of the matter,

if Your Honour please. But the petitioner relies

upon section 360(2), which provides:

The Court may exercise all or any of its

powers -

including to declare an election void -

on such grounds as the Court in its discretion

thinks just and sufficient.

Our submission is that section 362(3) is a more

particular provision directed towards illegal

Webster 159 19/8/93

practices rather than other deficiencies in the

election which may be - - -

HER HONOUR:  "Illegal practice'' is defined to mean "any

contravention", which seems to - I think that is

the point of one of the decisions of

Justice Dawson, that it seems to cover everything.

It must now cover everything.

MR COWDERY:  Yes. I am unaware of that decision, I confess.

It would lead to the curious situation, would it

not, I ask rhetorically, where, if there were some

irregularity in the official conduct of the

election, which had nothing to do with the

candidate, that could not be challenged in the

Court of Disputed Returns.

HER HONOUR:  No, not at all. No, it can still be challenged

but it is still an illegal practice. The

consequences attach as they are specified or do not

attach, as the case may be.

MR COWDERY: That would mean that section 362(3)(a) would

apply and the illegal practice would have to be

shown to have occurred with the knowledge or

authority of the candidate before the petition

could succeed.

HER HONOUR: Unless the Court is satisfied that the result

was likely to be affected.

MR COWDERY:  Then, in respect of ground 8, which is what

this submission was directed towards, once the

particulars of the number are given, the Court will
be in a position to be able to assess whether or

not there was any likelihood of the result of the

election being affected.

We make the further submission, also in reply,

that it is the cumulative effect of the matters

remaining for adjudication in a petition to which

the Court should have regard and not to each ground

in isolation when looking to see whether or not
that test is satisfied.

Your Honour, those submissions deal with the only matter that I wish to reply to to my learned friend, Mr Sackar, and those are the only matters

that I have.

Webster	160	19/8/93
HER HONOUR:	Yes, thank you.	I will adjourn once again and

hope to be in a position to give a decision on this

matter on Monday week.

AT 11.07 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 30 AUGUST 1993

Webster 161 19/8/93