Wheeley v Australian Electoral Commissioner

[2005] HCATrans 32

[2005] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Brisbane  No B74 of 2004

B e t w e e n -

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

For directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 7 FEBRUARY 2005, AT 12.14 PM

Copyright in the High Court of Australia

__________________

MR D. WHEELEY appeared in person.

MR J. STEWART appeared in person. 

MR S.J. GAGELER, SC:   Your Honour, I appear for the first and second respondents, and I also appear for the Australian Electoral Commission, the moving party on a summons dated 2 February 2005.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.

MR WHEELEY:   With me is Mr Stewart today, your Honour.

HIS HONOUR:   What is the position of Mr Stewart?

MR STEWART:   I have made an appearance, entered an appearance with the High Court.

MR GAGELER:   And he thereby becomes a party, your Honour.

HIS HONOUR:   Yes.

MR WHEELEY:   Your Honour, I object.

HIS HONOUR:   To what?

MR WHEELEY:   I am objecting to Mr Gageler.  Am I to understand that Mr Gageler is the same Mr Gageler who drafted and settled the submission dated 3^rd February and signed and filed the same day by Mr Cosgrove?

MR GAGELER:   I can confirm that, your Honour.

HIS HONOUR:   Yes.

MR WHEELEY:   Well, then I most certainly object, your Honour.

HIS HONOUR:   Object to what?

MR STEWART:   I object too, your Honour.

HIS HONOUR:   Object to what?  At the moment he is moving on a summons.  He represents the Australian Electoral Commission.  He is a member of the Bar and he has a right of audience in this Court.  Now, what do you object to?

MR WHEELEY:   I refer to point 11 and 12 at the bottom of page 3 of their submission.  In 12 they say:

To the extent to which the Petition discloses facts at all, it appears to seek to make a case as to the existence of “judicial uncertainty” –

I can read that again.

HIS HONOUR:   Yes, I have read it.  These are the submissions they want to make.  Now, what do you object to?  You might not agree with it.

MR WHEELEY:   Your Honour, the sentence is a lie.  It is not perjury because it is unsworn, but it is misleading and deceptive.

HIS HONOUR:   That has nothing to do with the immediate question, Mr Wheeley.  The immediate question is what order should be made on this summons?  Now, Mr Gageler announced his appearance and you announced an objection.  It is an irrelevant objection.

MR STEWART:   Your Honour, I also object.  Mr Gageler appears by leave of the Court.  It is for your choice as to whether he appears.  He does not have right to appear at this point.

HIS HONOUR:   The Australian Electoral Commission seeks leave under the Act.

MR STEWART:   Yes.

HIS HONOUR:   They have also been joined as first respondent.

MR STEWART:   Your Honour, the facts of the case are ‑ ‑ ‑

HIS HONOUR:   He has joined them as first respondent.

MR STEWART:   Your Honour, the original documentation we received from Mr Cosgrove was that (a) the Australian Government Solicitors would be appearing for the first and second respondents.  They also subsequently submitted a summons saying they were appearing, or to represent the Australian Electoral Commission.  Subsequently, in their submission, they purport to be representing the Commissioner, subject to the convenience of the Court.  We are not clear as to what Mr Gageler is now doing.

HIS HONOUR:   Very well, I will ask Mr Gageler.  Yes, Mr Gageler.

MR GAGELER:   Well, your Honour, I am appearing for the ‑ ‑ ‑

HIS HONOUR:   Sit down, gentlemen.

MR GAGELER:   I am appearing for the Australian Electoral Commissioner, who is a statutory officeholder under section 18 of the Commonwealth Electoral Act.  I am also appearing for the Australian Electoral Officer for the State of Queensland, who holds office under section 20 of the same Act.  Both of those persons, being named as parties, are entitled to be represented by counsel under section 370 of that Act, but it is our position that they are not necessary parties, and, indeed, may not be proper parties in that there is no provision in the Act or in the High Court Rules for them to be joined to an election petition. 

The legislative contemplation is that the statutory body, the Australian Electoral Commission, which comprises, under section 6 of the Act, the Electoral Commissioner and two other persons, is the appropriate body to be joined with the leave of the Court to an election petition.  So my application is that the Australian Electoral Commission be given leave to enter an appearance and be heard under section 359 of the Act, and that the two first‑named respondents cease to be respondents to the petition.

HIS HONOUR:   Yes, very well.  Now, what is the response to that, gentlemen?

MR STEWART:   Your Honour, refer back to what the petitioner read.  The three respondents are all aware of the facts of this matter.  That is why they were named as respondents, and this case is about facts.

HIS HONOUR:   I am not proposing at the moment to make any order removing anybody from the action.  I am proposing at the moment to grant order 1 in terms of the summons filed on 2 February, which is that the Australian Electoral Commission have leave to enter an appearance in the proceedings and be represented and be heard.  Now, what do you say as to that?

MR STEWART:   That is your privilege, your Honour.

HIS HONOUR:   Yes, that is right.  So I make that order.  The other order I propose to make ‑ ‑ ‑

MR STEWART:   We did object, your Honour.  We did object and we retain that objection.

HIS HONOUR:   Yes, I know.  I know you do.

MR STEWART:   Thank you.

HIS HONOUR:   The other order I wish to hear you on, if you object to it, is order 3, that the petition be referred for trial to the Federal Court of Australia, Queensland District Registry, subject to the following directions:

1. The proceeding be continued in the Federal Court as if steps already taken in this Court, including the filing of the summons, have been taken in the Federal Court;

1. The Registrar of this Court provide to the proper officer of the Federal Court photocopies of all documents filed in this Court and the deposit which has been lodged pursuant to section 356 of the Commonwealth Electoral Act 1918.

Now, is there any opposition to that?

MR STEWART:   Yes, your Honour.

HIS HONOUR:   Yes.

MR STEWART:   You have an affidavit on the file from myself as a witness.

HIS HONOUR:   Yes.

MR STEWART:   That sets out some of the reasons, and I am prepared to take the stand now, if you need to cross‑examine me on those statements in my affidavit.

HIS HONOUR:   No.  No, you tell me.

MR STEWART:   I have got the petition in front of me.  I do not know whether you have – I am sorry, the affidavit.

HIS HONOUR:   Why should not all of these matters be dealt with in the Federal Court?

MR STEWART:   Because some of them have been referred to the Federal Court before and we are back here now because they were not dealt with properly in the Federal Court.

GUMMOW J:   Well, that is no reason for not remitting this matter to the Federal Court.

MR STEWART:   Well, in the mind of myself, having experienced it, going somewhere and getting a bad result is not a good reason to go there again.  It is a good reason to not go there again.  There are also aspects of law which come up, which are mentioned in the petition.

HIS HONOUR:   Yes, I saw that.

MR STEWART:   And then there is the summons which was filed by the petitioner, which makes it clear that maybe the Federal Court could deal with the matter.  The facts, which, of course, we do not have a problem with because facts speak for themselves, but matters of law which have to be dealt with need to be dealt with, not by our choice, but by the choice of the High Court itself, and I believe you were on the High Court when the Chief Justice said “It depends what you mean by vote for”.  It is our submission that the Federal Court cannot deal with matters surrounding those words until it has been cleared up what the High Court wants to do with it.

HIS HONOUR:   Yes.  Is there anything else you want to say?

MR STEWART:   There are other points in my affidavit ‑ ‑ ‑

HIS HONOUR:   Yes.  I have read the materials, you can be assured.

MR STEWART:   Okay.  Well, if you have read them all, I do not need to read them all into the – unless the other people wish to have them read.

HIS HONOUR:   No.

MR STEWART:   Okay.

HIS HONOUR:   Yes, Mr Gageler.

MR GAGELER:   Your Honour, I have nothing to add to my written submissions in which your Honour will have seen I pressed for order 4 in advance, or in lieu of order 3, but the reasons are fully set out there.

HIS HONOUR:   Yes, very well.  Notwithstanding what has been said in opposition to the course indicated in order 3 of the summons and what has been put in written form also on that subject, it is a proper exercise of the Court’s powers to make order 3 in terms of the summons filed 2 February 2005 by the Australian Electoral Commission.

I have already made order 1 and I now make order 3 which is as follows:

The petition be referred for trial to the Federal Court of Australia, Queensland District Registry, subject to the following directions:

1.        The petition be continued in the Federal Court as if steps already taken in this Court, including the filing of this Summons, have been taken in the Federal Court;

2. The Registrar of this Court provide to the proper officer of the Federal Court photocopies of all documents filed in this Court and the deposit which has been lodged pursuant to section 356 of the Commonwealth Electoral Act 1918.

MR STEWART:   I object, your Honour.  We have not dealt with the summons which brought us all here today.  That was a summons filed by the petitioner.

HIS HONOUR:   That will be dealt with in the Federal Court.

MR STEWART:   We have not dealt with it here.  That is why we are all here today.

HIS HONOUR:   Of course not.  That will be dealt with in the Federal Court.  That is the effect of the order I have just made.

MR STEWART:   Thank you, your Honour.

HIS HONOUR:   And if there is any question that arises as to whether the Federal Court should sit outside Brisbane, you are at liberty, of course, to seek that direction from the Federal Court. 

I will now adjourn.

AT 12.26 PM THE MATTER WAS CONCLUDED