FEDERAL COURT OF AUSTRALIA
ELECTIONS - Constitutional Convention - petition disputing election - whether successful candidates took part in conduct of election - whether successful candidates committed or attempted to commit undue influence - whether successful candidates printed, published or distributed any matter or thing likely to mislead or deceive electors in relation to casting of votes - motion to strike out petition - whether petition defective for want of particularity of facts - whether petition may be amended.
Commonwealth Electoral Act 1918 (Cth) s 355
Constitutional Convention (Election) Act 1997 (Cth) ss 35, 52, 126(1), 140, 147, 150, 157(3), 160, 165(1)
Crimes Act 1914 (Cth) s 28
Evans v Crichton-Browne (1981) 147 CLR 169, foll
Hudson v Lee (1993) 177 CLR 627, refd
Nile v Wood (1987) 76 ALR 91, foll
Sykes v Australian Electoral Commission (1993) 115 ALR 645, appl
Webster v Deahm (1993) 116 ALR 223, appl
TONY WILTSHIRE v MALCOLM TURNBULL & ORS
NG 5 of 1998
JUDGE: DAVIES J
DATE: 16 JANUARY 1998
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 5 of 1998
BETWEEN:
TONY WILTSHIRE
PETITIONERAND:
MALCOLM TURNBULL
FIRST RESPONDENTDOUG SUTHERLAND
SECOND RESPONDENTAUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENTCOMMONWEALTH OF AUSTRALIA
FOURTH RESPONDENT
CORAM:
DAVIES J
DATE OF ORDER:
16 JANUARY 1998
WHERE MADE:
SYDNEY
MINUTES OF ORDER
THE COURT ORDERS THAT:
The petition be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 5 of 1998
BETWEEN:
TONY WILTSHIRE
PETITIONERAND:
MALCOLM TURNBULL
FIRST RESPONDENTDOUG SUTHERLAND
SECOND RESPONDENTAUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENTCOMMONWEALTH OF AUSTRALIA
FOURTH RESPONDENT
CORAM:
DAVIES J
DATE:
16 JANUARY 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is the hearing of a petition brought under the Constitutional Convention (Election) Act 1997 (Cth) ("the Act") which seeks orders that the election to the Constitutional Convention of the first and second respondents, Malcolm Turnbull and Doug Sutherland, be declared void. Also heard were motions brought on behalf of Messrs Turnbull and Sutherland seeking the dismissal of the petition on the ground that the petition did not set out facts on which the elections could be declared void. The petitioner, Tony Wiltshire, was an unsuccessful candidate in the election for the Constitutional Convention. The Australian Electoral Commission and the Commonwealth of Australia were, at their request, joined in the proceedings.
For some time now, there has been debate in Australia as to whether Australia should remain a Constitutional monarchy with the Queen as its Head of State or whether it should become a Republic and, if so, how the Head of State should be chosen and what powers the Head of State should have. In order to further the consideration of this issue, the Australian Government decided in 1997 to hold a Constitutional Convention in early 1998 at which both Government appointed delegates and delegates…
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- Case
- [1998] FCA 10
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the petition contained sufficient particulars to support the allegations of undue influence and misleading conduct. Additionally, the court had to consider whether the petition was amendable to cure any deficiencies in particularity. The court examined the sufficiency of the petition in light of statutory provisions governing election petitions and the principles of procedural fairness. It was also necessary to consider whether the petition could be amended to provide the necessary detail to support the claims.
The court found that the petition did not contain sufficient particulars to support the allegations of undue influence and misleading conduct. The court held that the petition was defective for want of particularity and could not be amended to remedy this defect. As a result, the court dismissed the petition. The court reasoned that the lack of particularity in the petition made it impossible to assess the merits of the claims against the respondent. Consequently, the motion to strike out the petition was upheld, and the petition was dismissed.
The court's final order was that the petition be dismissed. The court held that the petition was defective and could not be amended to provide the necessary detail. The court did not grant the petitioner leave to amend the petition, and the petition was dismissed in its entirety. This outcome effectively resolved the dispute in favour of the respondent, Malcolm Turnbull, as the petitioner was unable to proceed with the claims of electoral misconduct.
Orders
Orders of the court
The petition be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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