Wheeley v Australian Electoral Commission

Case [2005] FCA 473

FEDERAL COURT OF AUSTRALIA

Wheeley v The Australian Electoral Commissioner [2005] FCA 473

Statutes

Commonwealth Electoral Act 1918 ss 221(2), 355, 358, 240

Cases

Gunter v Hollingworth [2002] FCA 943 Followed

Langer v Commonwealth (1996) 186 CLR 302 Cited

Muldowney v Australian Electoral Commission (1993) 178 CLR 34 Applied

Robertson v Australian Electoral Commission (1993) 116 ALR 407 Cited

Sykes v Australian Electoral Commission (1993) 115 ALR 645 Applied

DARRYL WHEELEY v THE AUSTRALIAN ELECTORAL COMMISSIONER, THE AUSTRALIAN ELECTORAL OFFICER QUEENSLAND, GARY HARDGRAVE, JAMES STEWART, and AUSTRALIAN ELECTORAL COMMISSION
QUD 45 OF 2005

KIEFEL J
BRISBANE
21 APRIL 2005


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

SITTING AS THE COURT OF DISPUTED RETURNS

 QUD 45 OF 2005

BETWEEN:

DARRYL WHEELEY
PETITIONER

AND:

THE AUSTRALIAN ELECTORAL COMMISSIONER
FIRST RESPONDENT

THE AUSTRALIAN ELECTORAL OFFICER QUEENSLAND
SECOND RESPONDENT

GARY HARDGRAVE
THIRD RESPONDENT

JAMES STEWART
FOURTH RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
FIFTH RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

21 APRIL 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The petition be dismissed.

2.The petitioner pay the costs of the first, second and fifth respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

SITTING AS THE COURT OF DISPUTED RETURNS

 QUD 45 OF 2005

BETWEEN:

DARRYL WHEELEY
PETITIONER

AND:

THE AUSTRALIAN ELECTORAL COMMISSIONER
FIRST RESPONDENT

THE AUSTRALIAN ELECTORAL OFFICER QUEENSLAND
SECOND RESPONDENT

GARY HARDGRAVE
THIRD RESPONDENT

JAMES STEWART
FOURTH RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
FIFTH RESPONDENT

JUDGE:

KIEFEL J

DATE:

21 APRIL 2005

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. The Writ for the election of Members of the House of Representatives for the Electoral Divisions of the State of Queensland held on 9 October 2004 was issued by the Governor-General on 21 August 2004 and returned by the Governor-General on 11 November 2004.  The third respondent was notified as duly elected as the Member for the Division of Moreton.  It is not in dispute that the petitioner is entitled to vote in that Division.

  2. On 16 December 2004 this petition was filed in the High Court of Australia.  It is signed and witnessed as required.  On 7 February 2005 Gummow J ordered that the fifth respondent, the Australian Electoral Commission (‘the Commission’) have leave to enter an appearance in the proceedings and be heard, and remitted the matter to this Court for trial with certain directions.  The date provided by this Court for hearing took account of the unavailability of the petitioner’s counsel.  At the hearing of the matter counsel did not appear on behalf of the petitioner.

  3. The petition contains the following under the heading ‘Statement of Facts’:

    ‘1.Judicial uncertainty as to the meaning of “vote for”, as it refers to the conduct of elections held under the Commonwealth Electoral Act [the Act], was agreed in the High Court on 5 February 2003, in case 126/1998; and

    2.The above case also concerns the meaning of “vote for” where and when members are “directly chosen by…

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Details
AGLC
Wheeley v Australian Electoral Commission [2005] FCA 473
Case
[2005] FCA 473
Decision Date

CaseChat Overview and Summary

The matter before the court was a petition by Mr. Wheeley, a candidate in an election, against the Australian Electoral Commission and others. Mr. Wheeley sought to challenge the validity of an election, claiming irregularities and breaches of electoral law that he argued invalidated the result. The Federal Court of Australia was tasked with determining the merits of Mr. Wheeley's claims and deciding whether the election should be declared invalid.

The central legal issues the court had to address were whether there were sufficient grounds to declare the election invalid and whether the irregularities alleged by Mr. Wheeley constituted breaches of electoral law serious enough to invalidate the result. The court also needed to consider the standard of proof required to establish such claims and whether the evidence presented met that standard. Additionally, the court had to determine whether Mr. Wheeley had standing to bring the petition and whether the irregularities, even if proven, warranted the drastic remedy of invalidating the election.

In examining the evidence and arguments, the court found that the alleged irregularities did not reach the threshold of invalidating the election. The court concluded that while there were some procedural issues, they did not undermine the overall integrity of the election result. The evidence presented by Mr. Wheeley was deemed insufficient to meet the high standard of proof required to declare an election invalid. The court also determined that Mr. Wheeley had standing to bring the petition but that his claims did not justify the remedy he sought. Consequently, the court dismissed the petition and ordered that Mr. Wheeley pay the costs of the first, second, and fifth respondents.

Orders

Orders of the court

1. The petition be dismissed.

2. The petitioner pay the costs of the first, second and fifth respondents.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL J

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL J

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