Whitby v Garlett

Case [2000] FCA 245

FEDERAL COURT OF AUSTRALIA

Whitby v Garlett [2000] FCA 245

ELECTIONS – Aborigines – Aboriginal and Torres Strait Islander Commission Act – Regional Council elections – disputed election – petition – whether facts alleged in petition sufficient to invalidate election – whether necessary to allege effect on election result – illegal practices – official errors and omissions – particulars – time limit – particulars not able to be used to support insufficient factual allegations – various allegations – petition dismissed.

Aboriginal and Torres Strait Islander Commission Act 1989 s 91(1), s 92(1), s 94, s 130(1), s 131, s 27, s 101, s 110, Schedule 4
Commonwealth Electoral Act 1918

Robertson v Australian Electoral Commission (1993) 116 ALR 407 followed
Nile v Wood (1988) 167 CLR 133 cited
Sykes v Australian Electoral Commission (1993) 115 ALR 645 followed
Rudolphy v Lightfoot (1999) 167 ALR 105 followed
Australian Iron Steel Ltd v Hoogland (1962) 108 CLR 471 cited
Bruce v Odhams Press Limited [1936] 1 KB 697 cited
H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 cited
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 cited
Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413 cited
Cole v Lacey (1965) 112 CLR 45 discussed
Kean v Kerby (1920) 27 CLR 449 cited
Varty v Ives [1986] VR 1cited
Hudson v Lee (1993) 177 CLR 627 cited
Australian Electoral Commission v Lalara (1994) 53 FCR 156 cited
Pettit v Atkinson (1994) 50 FCR 174 cited
Webster v Deahm (1993) 116 ALR 223 followed
Yarran v Blurton (No 2) (1992) 36 FCR 152 followed

LORRAINE WHITBY v FARLEY GARLETT, GARRY WILLIAMS, DANIEL MORRISON, KEVIN FITZGERALD, ERIC WYNNE, CEDRIC JACOBS, DOREEN NELSON, RICHARD WILKES, MURRAY YARRAN, DIANNE TAYLOR, KAREN ROSE HAYWARD and GORDON COLE and THE AUSTRALIAN ELECTORAL COMMISSION
W 153 of 1999

FRENCH J
8 MARCH 2000
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W153 OF 1999

IN THE MATTER OF A DISPUTED ELECTION UNDER THE
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION ACT 1989

BETWEEN:

LORRAINE WHITBY
Petitioner

AND:

FARLEY GARLETT, GARRY WILLIAMS, DANIEL MORRISON, KEVIN FITZGERALD, ERIC WYNNE, CEDRIC JACOBS, DOREEN NELSON, RICHARD WILKES, MURRAY YARRAN, DIANNE TAYLOR, KAREN ROSE HAYWARD and GORDON COLE
First Respondents

And

THE AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

8 MARCH 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The petition is dismissed.

2.The ballot papers produced by the Second Respondent to the District Registrar are to be returned to the Second Respondent.

3.The Petitioner is to pay the Commission’s costs of the petition unless within seven days the Petitioner files written submissions for a variation of the costs order.

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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W153 OF 1999

IN THE MATTER OF A DISPUTED ELECTION UNDER THE…

Continue reading Whitby v Garlett

Sign in free to access the full text

Details
AGLC
Whitby v Garlett [2000] FCA 245
Case
[2000] FCA 245
Decision Date

CaseChat Overview and Summary

In the case of Whitby v Garlett, Lorraine Whitby, an unsuccessful candidate for election to the Perth Regional Council under the Aboriginal and Torres Strait Islander Commission Act 1989, filed a petition seeking to invalidate the election results. The Australian Electoral Commission sought to have the petition dismissed, arguing that it failed to allege facts sufficient to invalidate the election. The central issue before the court was whether the petition contained sufficient facts to establish the grounds relied upon to invalidate the election. The court examined each of the grounds set out in the petition, assessing whether they contained factual allegations that, if proven, would establish the invalidity of the election.

The court found that none of the grounds in the petition contained sufficient facts to support the conclusion that the election was invalid. Each ground was seen to assert a conclusion of law rather than factual allegations that could substantiate the legal conclusion. For instance, the ground alleging that the Regional Council Election Rules were not validly made did not specify the facts that would establish the invalidity of the rules, such as a failure to comply with statutory preconditions. The court held that the petitioner needed to allege facts, not mere legal conclusions, to establish the invalidity of the election. As the petition did not meet this requirement, the court concluded that it had no jurisdiction to proceed with the petition.

As a result, the court dismissed the petition, ordered the return of the ballot papers to the second respondent, and directed that the petitioner pay the Commission’s costs unless written submissions for a variation of the costs order were filed within seven days. This decision underscores the necessity for petitioners to provide factual allegations that, if proven, would substantiate the legal grounds for invalidating an election.

Orders

Orders of the court

1. The petition is dismissed.

2. The ballot papers produced by the Second Respondent to the District Registrar are to be returned to the Second Respondent.

3. The Petitioner is to pay the Commission’s costs of the petition unless within seven days the Petitioner files written submissions for a variation of the costs order.

Background

Background to the litigation

Lorraine Whitby, an unsuccessful candidate for election to the Perth Regional Council established under the Aboriginal and Torres Strait Islander Commission Act 1989 (“ATSIC Act”), disputes the validity of the election by way of a petition filed in this Court. The Australian Electoral Commission moves to dismiss the petition on the grounds that it fails to allege facts sufficient to invalidate the election. The motion raises questions about what a petitioner must allege in order that the Court should have jurisdiction to proceed to hear and determine the petition. Factual Background On 9 October 1999, an election was held for the Perth Regional Council established under the ATSIC Act. The poll was declared on 27 October 1999. On 3 December 1999, Lorraine Whitby, a candidate at the election and a qualified elector, filed an election petition. The petition sought a declaration that the election for the Perth Region was absolutely void and unspecified ancillary orders. The petition set out facts relied on to invalidate the election as follows: “FACTS RELIED ON TO INVALIDATE ELECTION1.A quantity of electoral enrolment forms were presented to the Australian Electoral Commission Office at Victoria Park in the State of Western Australia were not attested in accordance with section 98 of the Electoral Act 1918, rendering such enrolments invalid.2.Not all votes duly cast were counted. 3.A voter recorded a vote in the Walunga Ward but, when the voter presented the vote in a sealed voter card envelope to a liaison officer, the liaison officer did not hand the envelope back to the voter to deposit in the ballot box in accordance with Regional Council Election Rules 77 and 78.4.Two persons voted twice in the Bibra Ward. 5.Persons were hindered or interfered with in the free exercise or performance of the political right of casting a vote at the Midland polling booth and the Mandurah polling booth, contrary to the Aboriginal and Torres Strait Islanders Act 1989 section 198(3) and Regional Council Election Rule 107.6.Votes cast by means of a mark comprising an indication of the voter’s preference for one candidate were not counted as formal votes in accordance with the Aboriginal and Torres Strait Islanders Act 1989, section 110.7.Persons subject to Home Detention Orders were denied an opportunity to cast a vote because an undertaking was given to such persons that they would be enabled to vote by means of a mobile polling booth visiting the homes at which they were detained but no such facility was accorded to them. 8.The method of voting which comprised the placing of a ballot paper in a voter card envelope which was subscribed with personal details of the voter did not constitute a secret ballot, within the terms of section 109 of the Aboriginal and Torres Strait Islanders Act 1989.9.The Regional Council Election Rules for division of the Region into Wards were not validly made in accordance with Part 5, Division 9 of the Aboriginal and Torres Strait Islanders Act 1989.”The petition named twelve persons as respondents, evidently successful candidates at the election although this does not appear from the Court record.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J
The petitioner asserts that this bald contention is sufficient to support the petition. The rules being subordinate legislation, it is said, must be proved as a matter of fact. The particular facts which establish whether or not such rules are valid may be various. It is said that they may comprise a failure to comply with the statutory preconditions for validity set out in the ATSIC Act or they may be invalid because they comprise an instrument which has been disallowed. So to say is simply to engage in speculation. As the Australian Electoral Commission submits, this ground merely asserts a conclusion of law and no facts are set out which, if proven, would establish that conclusion.Conclusion For the reasons I have given, none of the grounds set out in the petition alleges facts sufficient to invalidate the election. Considering the grounds collectively does not alter that position. In my opinion, for these reasons, the petition must be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.