Snowdon v Dondas & Anor S95/1996 [1996] HCATrans 316 (14 August 1996)

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Sydney No S95 of 1996

B e t w e e n -

WARREN SNOWDON

Petitioner

and

NICHOLAS MANUEL DONDAS

First Respondent

THE ELECTORAL COMMISSION

Second Respondent

Directions hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 14 AUGUST 1996, AT 2.16 PM

(Continued from 29/7/96)

Copyright in the High Court of Australia

MR J.A. McCARTHY, QC: May it please the Court, I appear for the petitioner in this matter. (instructed by McClellands)

MR J.E. REEVES: May it please the Court, I appear for the first respondent.

MS S.C. KENNY: May it please the Court, I appear for the second respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, thank you.

MR McCARTHY: Your Honour, this is before you pursuant to directions that were given on the last occasion and the purpose of today was twofold. One was that the parties were to come before you with an agreed statement of facts for reference to the Full Bench and in some senses we are almost there and I will explain what that means in a moment. The second was to be in a position to put to you any relevant argument, if the Court thought it was relevant, in relation to the division of issues between this Court or the Full Bench deciding one particular issue in this matter and how the rest of the proceedings ought to be disposed of.

Your Honour, a series of agreed statements have been drafted between the parties. This case has a sort of national ramification in the sense that my learned friend has come from Darwin, Dr Kenny has come up from Melbourne, electoral officials have come from Canberra, as has the Court, being yourself. The timings of our airlines are not always as hopeful or as useful as they ought to be. We have had some discussions this afternoon about settling the agreed statement of facts. We need some further little time for matters, particularly between my two learned friends, to be gone through, and they will speak for themselves in a moment in relation to that, but that matter is still proceeding.

Secondly, my learned friend, Mr Reeves, informed me when he arrived an hour or so ago that his instructions were that the matter should be referred to the Northern Territory Supreme Court in toto. There have been some further discussions with him in relation to that and I understand, after outlining his position, that that may be something on which he will seek instructions and that would not then be a contested issue in relation to the proceedings that are set down in this Court for 3 September. The parties would still be hopeful that - more than hopeful - from the point of view of the petitioner, we would be intending to have the proceedings continue for resolution of the reserve question before the Full Bench on 3 September, and to have the authorisation from the Court as soon as possible to have the advertisement put in the Northern Territory newspapers.

As your Honour will recall, it was really a consciousness by your Honour about the nature of the rules of timing of advertisements that has led to this being put back. In fact, arrangements have now been made with the Northern Territory newspapers, that they are only waiting to hear from my instructing solicitor for the advertisement to immediately be put in the papers so that the 14 days' notice can be given. That is the present position in relation to the petitioner, but I think that what I have said, your Honour, will be elaborated upon in certain specifics by both Mr Reeves and Dr Kenny.

HIS HONOUR: Yes, very well. Yes, Mr Reeves, I had better hear from you next, I should think.

MR REEVES: Yes, thank you, your Honour. As my learned friend said, I have had some discussions about the future conduct of this matter and while my instructions at the outset were to seek the direction that he indicated, I do wish to have the opportunity to speak to my clients again to seek some further instructions about whether, if the matter is to be resolved finally - and that may be the case as a result of a ruling by the Full Bench - they would be happy to have it dealt with in that way, rather than have it referred in toto to the Supreme Court at this stage. So, I do seek the opportunity to get some instructions on that aspect and I will need perhaps 15 minutes - - -

HIS HONOUR: Was it not understood by your clients that that was the proposed course on the last occasion that the Court sat?

MR REEVES: It was understood in the sense that the matter was to be dealt with in two parts, one by the High Court and one by the Supreme Court, and your Honour had, I think, on the previous occasion indicated that you wished to hear submissions upon whether or not the matter could be split between the two jurisdictions. As a result of considering that and considering some of the factual issues that we thought might still be in issue on this first issue, we took that - I suppose it is a change of position, but it might well change back as a result of further instructions and an opportunity to discuss it further with my learned friends.

HIS HONOUR: Obviously the venue is something that needs to be resolved.

MR REEVES: Yes, your Honour.

HIS HONOUR: There seem to me to be two problems here. One is that if there is no agreement on the statement of facts obviously the 3 September will have to be vacated as a hearing date.

MR REEVES: Yes, your Honour.

HIS HONOUR: Which is one reason why, despite the assurances from the Bar table on the last occasion, I thought it prudent to have a further hearing, so that I am anxious to discover whether or not that statement of agreed facts can be reached. The second is, if there are issues which are ancillary or will have to be determined in any event, then the question arises as to the jurisdiction of the Court to split the proceedings and we will have to hear some discussion about that. So, by all means, take your adjournment and get your instructions, but when could we hear some result of this, and perhaps I should hear from Dr Kenny about that?

MR REEVES: The second aspect, your Honour, that I wanted to mention was that there are two areas in which I want to have some further discussions with Ms Kenny as to the facts of this first issue.

HIS HONOUR: Yes.

MR REEVES: It may be that we can agree the position in relation to those two areas. If we cannot then that will affect, I suspect, the way in which the matter is dealt with in toto.

HIS HONOUR: How long will it take to reach this agreement?

MR REEVES: Perhaps an hour, your Honour.

HIS HONOUR: Yes. I will hear what Dr Kenny has to say.

MS KENNY: Your Honour, a very much draft case state has been prepared, and whilst it is not yet the subject of agreement, I wonder whether it would be useful if I was to pass up a copy of that?

HIS HONOUR: I think not, not until the agreement is reached.

MS KENNY: Two matters that my learned friend has drawn to my attention are relatively specific and I am hopeful, if we sit down and talk about it, we will be able to resolve it in a way that is satisfactory to us all.

HIS HONOUR: Is it a matter of counsel speaking amongst yourselves or is it a question of finding out the facts in order to be able to agree to them?

MS KENNY: It may be an element of both, your Honour. One matter that my learned friend has raised, I think, involves a question of what actually happened on the polling day.

HIS HONOUR: Yes.

MS KENNY: It may be that if we sit down together, together with those who instruct me, my learned friend may be satisfied upon that. The other matter, I think, is a matter which may be dealt with as between counsel. It is not such a large matter.

HIS HONOUR: What is the realistic time to relist this matter? Today or tomorrow?

MS KENNY: We are in your Honour's hands. I wonder might we speak amongst counsel for an hour and then perhaps contact your Honour's associate and indicate whether we had reached a satisfactory solution and whether the matter should be listed for tomorrow.

HIS HONOUR: And also whether there is any resolution about the question of the manner in which the matters are to be disposed of.

MS KENNY: I think, your Honour, providing that the statement of facts in the draft case can be satisfactorily agreed as between us, then the proposed method would be by way of a case stated. Of course, if that fails, then we have to look at something else.

HIS HONOUR: Yes. Very well, we will stand it over, if that is agreeable to all parties, for an hour or so. If I might say so, I am not anxious to leave it just to a time to be fixed by the parties. It seems to me that it might be desirable if I were to fix a time within which, hopefully, that would provide some pressure for agreement, but whichever you think is most efficient.

MS KENNY: Perhaps we could say half past 3 and if we see that there is a particular problem, ring your associate.

HIS HONOUR: Why not say 4 o'clock?

MS KENNY: That is a much better idea, if that is satisfactory.

HIS HONOUR: Let us say 4 o'clock and if it appears that 4 o'clock is not a satisfactory time or that further time is needed, then be in touch with my associate, otherwise 4 o'clock.

MS KENNY: Thank you, your Honour.

AT 2.27 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.04 PM:

HIS HONOUR: Well, what progress?

MR McCARTHY: Well, your Honour, I am pleased to announce that we have reached proper agreement in relation to the issues that were outstanding. There firstly will be an agreed statement of facts and if it is convenient to the Court and with the Court's leave it would be proposed to file the agreed statement of facts before noon on Friday in the Court. There are certain figures that are just to be settled within it - they are not matters of principle - but it will be available at that time. Secondly, the issue in relation to any division of hearing matter, that is the matters that were referred to by Mr Reeves earlier this afternoon, are no longer in issue and the proposal for a hearing date on 3 September before the Full Bench is the joint wish of the parties in relation to the issue that concerns the subdivisions and divisions as has previously been outlined to your Honour. The agreed statement of facts will also have the reserve question set out within it and it will be a part of the material to - - -

HIS HONOUR: Mr McCarthy, the purpose of having this hearing was so that I could see the statement of facts and identify the questions to ensure that they are in a form with which the Court can deal effectively.

MR McCARTHY: Well, your Honour, I will hand up the draft statement if that is convenient.

HIS HONOUR: Yes, certainly.

MR McCARTHY: Substantially, the reason why it is not available just at the moment is that there is various tidying up of various clauses to be completed, your Honour. It is not for any greater reason than that.

HIS HONOUR: Yes. There is one question of law proposed to be reserved for consideration?

MR McCARTHY: Yes.

HIS HONOUR: Now, what I should like you to do would be to reduce that in a form that is satisfactory to the parties as quickly as possible and leave a copy with my Associate and then, assuming that all is well, I will list it again, if you like, on Friday morning and indicate acceptance of it. If there should be any difficulty about it I would notify the parties beforehand. What is necessary is to ensure that the document is in a form which, once it goes to the Court, will give rise to no difficulties in the course of argument. That is something which, I think, will take me a little time to be satisfied about.

MR McCARTHY: Your Honours, the parties would be available on Friday morning, if that is convenient to the Court. Secondly, the version 4 submission in a formal way, as distinct from the draft that we have just put in front of you, could be sent to the Court at or about noon tomorrow, if that is convenient to the Court.

HIS HONOUR: Yes, certainly. I will give this back to you now, Mr McCarthy.

MR McCARTHY: Your Honour, the only other matter is this - - -

HIS HONOUR: Could I just mention another matter that you have already mentioned, that is, that draft case with the question at the end of it is one which raises, of course, the one important issue that it is for determination, I gather. There are other issues raised in the petition.

MR McCARTHY: Yes, there are.

HIS HONOUR: Now, the problem about splitting the hearing, I take it, is an academic question, if that question that is reserved is answered against you.

MR McCARTHY: Yes, that is true.

HIS HONOUR: But if it is answered in favour of you, it is not an academic question.

MR McCARTHY: No, it is not.

HIS HONOUR: And then the matter will arise as to who must exercise the jurisdiction to determine the residual issues. That is where the problem lies.

MR McCARTHY: Your Honour, Mr Reeves has indicated to me that if the petitioner is successful in relation to the reserve question, it will be the application of the first respondent that any outstanding issues, or the remaining outstanding issues in relation to the petition, be referred pursuant to section 354 of the Act to the Supreme Court of the Northern Territory.

HIS HONOUR: Which section is it?

MR McCARTHY: Section 354. In relation to that issue, just dealing with it as a matter foreshadowed, it would obviously be a matter for the Court. It may well be that the Court forms the view that there would be a single judge of the Court made available to hear the rest of the issues either in Canberra or in Darwin.

HIS HONOUR: This is where the difficulty arises because in one way there are extensive issues to be determined. It is not an attractive thought at all that a member of this Court should have to determine those issues and, therefore, the attraction is that it should go to the Supreme Court of the Northern Territory or perhaps to a judge of the Federal Court. No, it would have to be a Supreme Court of the Territory.

MR McCARTHY: Your Honour, I am not sure that there is jurisdiction to order that.

HIS HONOUR: No, there would not be to the Federal Court. Now, the problem that I see arising under 354 is that there is a jurisdiction to refer a petition for trial, but is there jurisdiction to refer issues arising on a petition for trial? In other words, can you split the hearing? If prior to 3 September there is an advertisement which goes into the paper, the High Court will sit on 3 September to hear this petition. On the morning of the 3rd, I formally state the case, reserve the question. At 10.15, the Full Court sits to hear and determine that question. At the end of the time when the judgment of the Court is reserved, if it is reserved, then let it be assumed that you are successful, what happens then? Does it mean that a Justice of this Court must be detached from his or her other duties for a lengthy period in order to determine a series of facts?

MR McCARTHY: No, it does not necessarily mean that, your Honour.

HIS HONOUR: Does it mean, if I might say so, that I have to be detached from my duties in order to determine the series of facts.?

MR McCARTHY: It certainly does not mean that, your Honour. Your Honour, we came prepared today to meet this argument because your Honour asked that we be specifically prepared to make submissions in relation to that. Your Honour, Order 68 of the High Court Rules, the election petition rules, and in Order 2 there is the Rule in relation to the application of the other Rules in the High Court Rules. It states:

These rules -

being the rest of the rules -:

so far as they are applicable and are not inconsistent with this Order, extend to and apply to proceedings in the Court in the exercise of its jurisdiction as the Court of Disputed Returns.

In relation to the reserve question, your Honour, as we would submit, the procedure that is being followed is that under Order 35 of the High Court Rules, and that is Order 35, Rule 2 "SPECIAL CASE BY ORDER BEFORE TRIAL":

If it appears to the Court or a Justice that there is, in a proceeding -

and, your Honour, the word "proceeding" would seem to apply or the matter of an election petition gives rise to proceedings in this Court -

a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact determined, the Court or Justice may make an order accordingly and may direct that question of law to be raised for the opinion of the Court or of the Full Court, either by special case or in such other manner -

Your Honour, we would submit that that is what the proposal that is before the Court at the present time and would be before the Full Bench. In those circumstances, combined with the Acts Interpretation Act section 33(1), which, your Honour, is in these terms:

Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.

Your Honour, looking to those statutory sources and then referring back to section 354(1), in our submission, by this procedure the Court would not have tried the petition and, therefore, the jurisdiction would be available to the Court at that stage to either try the petition, or to refer it for trial to the Supreme Court, and the petition would go in that way to the Northern Territory Supreme Court.

Your Honour, those arguments may be further elaborated on, but it would be, at least at this stage, in that combination that we would see it as appropriate for the Court, after hearing the reserved question, because nothing had been, at that stage, tried in the sense of the settling of any evidence or determination in relation to any evidence, that the Court would not have moved to have tried the petition and, therefore, to have lost the facility to refer the matter for trial to the Supreme Court of the Northern Territory.

BRENNAN CJ: Yes. I will hear what Mr Reeves and Dr Kenny have to say about that. What do you say, Mr Reeves?

MR REEVES: Your Honour, we support the procedure of referring the matter as a stated case to the Full Court on the assumption, which we would submit is correct, that in doing it that way the Court is not embarking upon a trial and, therefore, is not splitting the trial or dividing the trial, but simply determining a preliminary issue, if one likes, and that after that issue is determined the power can be exercised to refer it then for trial to the Supreme Court of the Northern Territory.

Your Honour, my initial position was to the contrary, as I indicated briefly today, and what I had intended to argue this afternoon was that the express provisions of the Act seem to indicate that the petition has to be dealt with in one; but I have been persuaded by my learned friends that the course outlined is available. If your Honour wishes to hear in brief the argument that I intended to put to the contrary for the purposes of deciding the issue, I am happy to outline that.

BRENNAN CJ: Well, I would be grateful to hear it, yes.

MR REEVES: Your Honour, the argument can be stated fairly simply; that throughout the sections, starting with section 354, the legislation refers to "the petition" as a composite entity and there is no express provision in those sections which allows this Court to refer a part of the petition to another court, in contradistinction to, for example, section 44 of the Judiciary Act, which was amended some years ago to provide that a part of a matter could be referred by this Court to the Federal Court or a State Supreme Court. This legislation does not contain that sort of provision, therefore, the Act, on its face, appears to require that the petition be dealt with as a whole, as one entity, by this Court or by the court to which it is referred, and that, in a nutshell, is the argument I intended to put.

BRENNAN CJ: The argument against it may be this, may it not, and that is that 354 confers the jurisdiction on this Court, but it is jurisdiction in a matter to which section 44 of the Judiciary Act can then apply. I put it to you, inviting you to argue against your present view. There is, of course, the question as to whether the jurisdiction under the Electoral Act is in a matter at all, but that is - - -

MR REEVES: The only argument I could think of off the top of my head, your Honour, in response to that would be that the Electoral Act deals with the jurisdiction and the way in which it can be referred or not referred exclusively and the Judiciary Act provision does not have any part to play.

BRENNAN CJ: Yes.

MR REEVES: Your Honour, the only other thing that I did come partly prepared to submit, which goes on the other side, was that there are some authorities, albeit not very conclusive, that make a distinction between the trial of the matter by a court and consideration of preliminary issues. Those authorities are an English decision of Wozniak v Wozniak (1953) P 179. That was a matter that dealt with a legal aid certificate in England and whether or not a consideration of, as I recall, a summary judgment application was the trial of a matter, and the court held that it was not and that, therefore, the provisions of the legislation that allowed for a certificate to be issued in relation to a trial did not cover that application.

There is a Canadian decision of Catherwood v Thomson (1958) OR 326 at 331 to 332, which, in the time I have had available I was not able to get the full report, your Honour, but it is referred to in the Judicial Dictionary or at least an excerpt of it is contained in that - excuse me a moment.

BRENNAN CJ: This is Stroud's Judicial Dictionary, is it?

MR REEVES: Yes, I believe so, your Honour. In the section dealing with trial, it contains a quotation from that case to the following effect:

In a general sense, the term "trial" denotes the investigation and determination of a matter in issue between parties before a competent tribunal advancing through progressive stages from its submission to the court or jury to the pronouncement of judgment. When a trial may be said actually to have commenced is often a difficult question, but, generally speaking, this stage is reached when all preliminary questions have been determined and the jury, or a judge in a non jury trial, enter upon the hearing an examination of the facts for the purposes of determining the questions in controversy in the litigation.

The reason I refer your Honour to that is that his Honour appeared to be making a distinction between the preliminary stages and the embarking upon the trial by consideration of the facts. Those are the only matters that I was able to find that may assist your Honour.

HIS HONOUR: Yes, thank you, Mr Reeves. Dr Kenny.

MS KENNY: Your Honour, I am not sure that I can assist greatly. So far as the second respondent is concerned, it is content to abide by what the Court should decide, but it would be possible to read section 354 to allow for both the trial and the reference in this way: if one were to say that the High Court has conferred upon it two forms of jurisdiction - the first is to try the petition and the second to refer it to a Supreme Court of a State - that may be read as not so much one jurisdiction exhausting the other but as a cumulative jurisdiction. So that if the Court commences the trial of the petition but has not finished the trial of the petition, the power to refer it for further trial to the Supreme Court is not necessarily exhausted, in other words, that "or" in section 354 might be read as an "and" and cumulative in that sense.

So that one need not necessarily say that once the Court has embarked upon a trial of the petition the power to refer it is necessarily put to one end. The two can sit side by side. If that were so, one might get some comfort from the way in which the Court approached the interpretation of section 44 in Johnstone v Commonwealth 143 CLR. I particularly refer your Honour to page 402 in the judgment of the Chief Justice. It is there pointed out that section 44 has a similar effect to section 354 of the Commonwealth Electoral Act in the sense that section 44 confers two forms of jurisdictions and in this case the effect of section 44 confers a jurisdiction when the High Court remits a matter upon another court.

Similarly, if one looks at the express terms of section 354(2), that is exactly what this section does. Then his Honour the Chief Justice went on to point out that one of the matters one bears in mind in relation to section 44 is that it is completely discretionary, that is, the question of remittal is discretionary, so here too the question of reference is discretionary. It is a reference conferred on the High Court and it is intended in the case of section 44 that the legislation have a beneficial or a generous interpretation rather than a narrow interpretation. Similarly here, if the section is to work in a profitable and useful fashion, it ought, in my submission, to be given a generous interpretation rather than a narrow one for much the same reasons addressed in the Johnstone Case. Now, if that were right and it were possible to read the "or" as "and", it would then seem that the two jurisdictions, both to try and to refer, are not necessarily exclusive of one another. They might exist side by side.

Your Honour raised the question of section 44 and whether it could be read together with section 354 and there seems to be a problem in relation to that and that is that section 354 allows remittal to not only the Supreme Court of a State as referred to in section 354 of the Electoral Act, but, of course, also to any other federal court. So the two do not sit happily side by side. In other words, section 44 would confer a much larger jurisdiction of remittal than is contemplated by section 354 of the Electoral Act. So that would seem to be an obstacle in the way of relying upon section 44 in this instance. Your Honour will see that - - -

HIS HONOUR: It refers to - I am looking at section 44(1):

remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties - - -

MS KENNY: The difficulty there, your Honour, would be that your Honour would say it is sufficient if one looks at, say, the Johnstone Case that the court to which the remittal is made has jurisdiction in the broadest sense, which the Supreme Court undoubtedly would have. The difficulty would seem to be on the expressio unius principle. If one looks to section 354 it only contemplates a reference to the Supreme Court of a State, whereas section 44 would take one well beyond that to other federal courts. So your Honour would say that section 354 really controls section 44 in this instance and the two can be read side by side in that section 354 would give jurisdiction to the Supreme Court of a State with respect to the subject matter and parties, which would in fact be true.

Of course, if that were so, then it would be possible to say that section 44 does apply to that extent and, therefore, the obstacle that I suggested to your Honour really fades away because there would not be a federal court which had jurisdiction with respect to the subject matter and parties because that could only arise under section 354 of the Electoral Act. In that event, section 44 would be open as a possible source of power to remit.

HIS HONOUR: Yes.

MS KENNY: The difficulty then though becomes whether a reference and a remittal sit happily side by side. The effect of section 354 would seem to be that the Supreme Court of the State or Territory seized of jurisdiction upon reference by the High Court and that might make the question of remittal somewhat superfluous save that - in answer to your Honour's question - the remittal is in effect the completion of the work done by section 354. So that one would say that a reference under section 354 to the Supreme Court of the Territory gave that Territory court jurisdiction and as the matter was otherwise pending in this Court, the remittal from this Court to the Supreme Court of the Territory would complete the power of that court to deal with it.

That is one way one could look at it. An alternative and my original and somewhat perhaps rather simplistic way of looking at it would be to say that section 354 need not be read as proposing two mutually exclusive possibilities, but as conferring on this Court the jurisdiction to try the petition, which it would be doing on this analysis when it commenced to hear the case stated and make a determination on that, but it would still have the jurisdiction to continue the trial of the petition and at that point might determine not to continue to exercise that jurisdiction, but to determine to exercise a jurisdiction to refer the balance of the trial, if I may term it that, to the Supreme Court of the Territory. The Court would always be seized of that jurisdiction and it would be in its own discretion as to when it chose to exercise the reference power as opposed to the trial power of the petition.

HIS HONOUR: Yes, the problem is not without its difficulties.

MS KENNY: It is difficult, your Honour, that is why I am inclined to return back to the spirit of interpretation offered by the Chief Justice in the Johnstone Case where his Honour has really asked himself, "What is the purpose of legislation of this kind?" It is designed to enable a case to be decided fairly and expeditiously and in the most useful fashion possible, so he has adopted a beneficial construction.

Similarly, it would seem that the intent behind section 354 is much the same. It is to allow this Court the power to refer where that seems appropriate in the case before the Court and in the case before your Honour that would become appropriate once the larger matter, having been decided by the Full Court and one had left over - I mean it in no derogatory sense - the rather time consuming but nonetheless straightforward facts raised by the rest of the petition. I am not sure whether that helps the Court or makes it worse.

HIS HONOUR: Yes, it does help, thank you, Dr Kenny, but I am not sure what the answer to it is and there is a residual problem, I must say, and that is whether the jurisdiction, if that be the right word, which is conferred by the Electoral Act having regard to the history of that jurisdiction, is properly to be regarded as a matter for the purposes of the Judiciary Act, but that raises a problem of a more difficult kind. It can be brought perhaps under section 76(ii) of the Constitution, assuming that it is to be regarded as a matter under that section.

MS KENNY: Your Honour, I would submit that that would be the appropriate way to look at it. It is difficult to know, if it is not a matter within constitutional jurisdiction, how it would otherwise arise, and that being the case, then one would have to take, in my submission, a very broad view of the nature of "matter". That would take you back to section 44 and that might enable one to complete the picture.

HIS HONOUR: In other words, unless it is a matter, there is a problem under section 76 of the Constitution. Assuming then that it is a matter, then it is 44 of the Judiciary Act. If it is 44 of the Judiciary Act, part of the matter can be remitted and the jurisdiction to try the petition can be reserved under 354 to the High Court. So that on the finding of fact that is made by the Northern Territory Supreme Court, judgment can be entered in the High Court.

MS KENNY: That might happen. That would be a possible way of solving the problem.

HIS HONOUR: But I will need to consider this in the light of Johnstone's Case.

MS KENNY: Your Honour, I am aware that probably what has been offered to your Honour is the beginnings of assistance. Would it be something we might usefully include in our written submissions to the Full Court?

HIS HONOUR: That is something that can be considered also. It would mean that there would be a second question that would have to be asked and that is, if yes or if no, whatever the appropriate answer might be to question 1, does this Court, sitting as a court of disputed returns, have jurisdiction either under 354 or 44 to remit the trial of any part of the petition to the Supreme Court of the Northern Territory.

MS KENNY: I have not discussed that question with my learned friends, but it did occur to me.

HIS HONOUR: No, I appreciate that. I can only say that if, having entered upon the hearing of the petition for the purpose of stating the case on the morning of 3 September, my colleagues and I were then to answer that question in the negative, I should be mortified, but that may be, nonetheless, the necessary consequence of it.

MS KENNY: And in light of that, your Honour, I think it might be advisable if we were to include some such question at the end of the case stated.

HIS HONOUR: It may be. I will consider this over the next couple of days. I was going to say that I do not wish to bring the parties back on Friday if the document that you present is in satisfactory form, but I think the jurisdictional problem is one of considerable importance, not only as a mere matter of statutory construction but, indeed, as a matter of the relationship between this Court and the Parliament. So I think it is something which I must ask you to return to consider on Friday.

MS KENNY: In the event that we have to come back, does your Honour wish us to come back on - - -

HIS HONOUR: No, I was thinking that - let me put it this way. If I were to have a photocopy of what you have got now, would that not give me a fair indication of what the nature of the agreement is?

MS KENNY: It would give you a very clear view, I think, your Honour.

HIS HONOUR: Right. Then may I please have a photocopy of that now?

MS KENNY: Most certainly.

HIS HONOUR: And on that footing, I should be able to indicate to you by lunchtime tomorrow whether there is any necessity for the parties to appear on Friday.

MS KENNY: The other matter might be, your Honour will not see the second question raised here, but it is quite straightforward to include such a question.

HIS HONOUR: The second question would not present any difficulty at all because there would be no facts involved in that.

MS KENNY: No.

HIS HONOUR: It would be a question simply of the issues arising on the petition, but it may need some qualification of the stated case in this way. If the answer to question 1 is adverse to the petitioner, then the petition should be dismissed. If the answer is favourable, then question 2, but I take it that presents no difficulty, that formula?

MS KENNY: I would have thought it would be straightforward.

MR REEVES: It does, on my instructions, your Honour, because my instructions were to consent to the process of having the matter dealt with as a stated case on the assumption that the petition could then be tried in the Supreme Court.

HIS HONOUR: I see. So that if it cannot be, your instructions are to try to get it all into the Supreme Court?

MR REEVES: I would have to take further instructions, but I suspect that is the present position. On my instructions, as they presently stand, your Honour, I have to ask you to consider the jurisdictional question at the outset, because once the Full Court embarks upon the matter, if it cannot be split or divided, then we will have set out on a course which is contrary at least to the instructions that I have at present.

HIS HONOUR: You would have consented to a course which your instructions do not support, is that right?

MR REEVES: Yes, your Honour. Having said all that, your Honour, my client's interest is in having the matter resolved as quickly as possible and that is why - - -

HIS HONOUR: I appreciate that. I think everybody is in agreement with what is the desirable way to have this resolved. The problem is whether the books allow us to do it, that is what it comes to.

MR REEVES: Yes, your Honour.

HIS HONOUR: I am afraid the only answer that I can give to this is that I understand the terms of your instruction and your instructions are to consent to the reservation of the case if the question of jurisdiction is capable of being resolved so as to allow the issues of fact to be determined in the Northern Territory Supreme Court.

MR REEVES: Yes, your Honour.

HIS HONOUR: Then I think it is necessary for me to form a view about the jurisdiction and if my view is in favour of that conclusion, then we can proceed with the stating of the case without a second question being added. In other words, it will stand resolved by whatever decision I give. If, on the other hand, I am of the contrary view, then it seems to me that you will have to look to see whether your instructions still allow the matter to go forward and it will be necessary for me to consider whether the order should be made in terms of the reservation of the question for the Full Court or whether, because of the practical problems, it is necessary to have the matter remitted to the Northern Territory Supreme Court in toto.

MR REEVES: Yes, your Honour.

HIS HONOUR: And all I can say is that I think that it is probably desirable in the light of that, unless other counsel have some other submissions to make, that I should give you a decision on that point by 2.15 tomorrow afternoon.

MR REEVES: If your Honour please.

HIS HONOUR: Have you anything to say further about that, Mr McCarthy?

MR McCARTHY: In relation to the submissions that were made by my learned friends to the extent that Mr Reeves supported the application, in effect, the application that we have made that the matter be reserved to the Full Bench and, in particular, his reference to the meaning of "try" and "trial", I would adopt those submissions. I would also adopt the submissions of my learned friend, Dr Kenny, in relation to the meaning of section 354 and to the meaning of "matter" and possible reference to the Judiciary Act as being a way in which an extended power may well be found in the High Court sitting as a court of disputed returns to make a remittal but, your Honour, I would further submit that the commencement of the argument over the Court's powers and the appropriate approach to any of its powers or jurisdiction is the Commonwealth Electoral Act itself and to the terms that are there and to any requisite rules that are made by the Court under the powers that are given in the Commonwealth Electoral Act.

I would just draw the Court's attention to the fact that the really operative provision of the Act is section 353(1), which says:

The validity of any election or returns may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.

In relation to a proper interpretation of the words in section 354(1), firstly, that those are words that have been a part of the Commonwealth Electoral Act since the Act was first passed by Parliament in 1903, and that the use of the word "jurisdiction" in the way that it was put forward in section 354(1), in my submission, would be properly read there as a jurisdiction in the sense of power, that is, a jurisdiction to do something, it is not the only thing that the Court can do in relation to petitions.

That is reinforced, in my submission, your Honour, by looking at section 358 of the Act, where there is a specific reference to the fact that there can be no proceedings until a petition is identified as having complied with certain sections of the Act, being sections 355, 356 and 357. In my submission, that section there suggests that the Court can take action in relation to a petition that would not amount, in my view, to a trial of the petition; it would be a testing as to whether the relevant statutory requirements had been complied with. That would be a part of, your Honour, the raising of the validity of an election in the Court of Disputed Returns and a determination as to whether it had been properly raised and put before the Court. That is something that the Court can determine.

Further, 360 of the Act sets out the various powers that the Court has, and these, again, can be read in such a way that they - and would encompass not only a final hearing or determination or a trial, but also are matters that are preliminary and matters that are ancillary to the trial of a petition. Of equal weight with section 354 as well is section 375 of the Act, whereby the Court is given power to "make Rules of Court" that are not inconsistent with the Act for the carrying out of this "Part of this Act into effect":

and in particular for regulating the practice and procedure of the Court.

Under that power, Order 68 of the High Court Rules has been implemented. Those Rules incorporate a power to, in situations that are not inconsistent with the Act - that is the Commonwealth Electoral Act - to exercise the general powers of the High Court under the High Court Rules. One of those is for the reference of a question to the Full Court.

In my submission, it can be envisaged as a proper application of the Rules that the High Court as a Full Court could determine a question that has been reserved under, for instance, Order 35, and that thereafter, under section 354, again following the Acts Interpretation Act, which allows power to be used from time to time, that a more proper meaning of the word in section 354, where it refers to jurisdiction as a power, it could then exercise a power to try the petition or to refer it for trial to the Supreme Court. Your Honour, none of those are conclusive and none of those are matters that would have otherwise than perhaps to have developed more fully. I had anticipated, to be quite frank, your Honour, that that may have been something that would possibly be discussed after 3 September, but in the way that it has been raised by Mr Reeves, I see that obviously the Court would need to take a view about that before 3 September.

HIS HONOUR: The difficulty I have at the moment is that it is not so much the nature of the power, nor even the word "or" but the conjunction of "either/or". Those are very much words of alternative, and, bearing in mind the legislative intention that petitions, once complying with the requisites of the petition, as you have already pointed out - once that is determined, the intention of the legislature is that a court should sit, hear and determine the matter, subject to no appeal; that is the end of it.

Now, it is not really addressing the prospect of multiple issues being dealt with, some by one court, some by another. I am finding great difficulty with the notion of splitting it at the moment, Mr McCarthy, and I think I should say that because it seems to me that, if that is the view that I ultimately come to, it would be as well for you and for Mr Reeves to have clear instructions as to which court. I know what his views are, but I do not know what yours are at the moment, but I think it is necessary for me to form a view about matter, about the application of section 44 of the Judiciary Act, and the construction of section 354 in the light of those words "either/or". Those are the frames of reference that I let you know that I am thinking about, so that we can all come to grips with it.

MR McCARTHY: Your Honour, I would only, in part, reiterate what was said earlier. When one looks at 354, I think the proper meaning of the word "jurisdiction" there is really a power. It is not to be the total manifestation of what the court is required to do under - - -

HIS HONOUR: Your argument is this, as I understand it: here are two powers; certainly they are expressed in the alternative. One is to hear it; one is to refer it. Powers can be exercised from time to time. You start to exercise the power to hear and then later on you exercise the power to refer. I understand the concept but if one looks at 354 and sees the word that the court has, if you like, power either to hear or to refer, it seems to me to suggest that that is the alternative, having regard to the context of the nature of the jurisdiction, and so forth.

I am not expressing that as a final view. I want to think about it overnight, but it is the problem that I see in it at the moment, and if that is the true construction of 354, and it is the section which confers the jurisdiction on the Court, if there is no escape through section 44 of the Judiciary Act, then it is going to be necessary to make a decision as to who is to hear - what is the most expeditious way of dealing with it. As you know, 3 September has been reserved for the Full Bench to hear it - - -

MR McCARTHY: Yes, and of course, we were hoping today to be in a position to have had a confirmation of that from the Court, so that - the advertisements are in the Northern Territory and they were to be contacted this evening to have the advertisements go forth. Your Honour, I would submit that Part XXII has got to be read as a whole, and 354 is an aspect of the Court's jurisdiction and that what the Court does under Part XXII is cumulative in its various sections, and that really it is a matter that, in effect, commences with 353(1), where the validity of an election, or return, has been raised.

Your Honour has acknowledged that obviously it is not a 354 power that is being exercised under section 358(1), and that the petition is not being tried, and that it could not be viewed under section - that what orders that the Court has made, and they have been, on occasions, extensive orders, and indeed, argument heard under section 358(1) - I cite, for instance, the case of Dean v Webster as being a case on the requisites of the petition that involve discussion of 358(1), and there have been cases in which your Honour has been concerned that involved the requisites of a petition.

Those are matters that are a part, in my respectful submission, of the jurisdiction of the Court of Disputed Returns, or the High Court as a part of the Court of Disputed Returns. In relation to those powers there, admittedly on one view they are expressed, but they are a part of Part XXII, similarly, the powers under section 360(1).

These sections substantially, and section 354(1) specifically, have been in those terms since 1903. It is the case that over the 90 years of the exercise of that jurisdiction, it has not been the case, at least not to the knowledge of myself or indeed anyone at the Bar table, or I understand in the researches of the AEC, that there has been an occasion when the High Court has referred a matter to the Supreme Court of a State. We would have all been overjoyed to have been able to come before your Honour, and I am sure your Honour would have gratefully accepted a reference in the earlier annals of the Court to this circumstance having been dealt with. It has not been dealt with before in those terms. There have been petitions where there have been Full Benches and an individual Judge of this Court dealing with other parts of the petition. That is not unusual.

HIS HONOUR: I am sorry; do I understand you to say there have been cases where one Judge has dealt with one part, one Judge with another?

MR McCARTHY: There have been references - there have been a number of Judges dealing with a section of an argument, and a single Judge dealing with another part of an argument, your Honour.

HIS HONOUR: By that you mean a single Judge has tried the matter but has referred a question to the Full Court?

MR McCARTHY: Yes. That is as far as any of our researches can take this.

HIS HONOUR: Yes.

MR McCARTHY: There has not been a case where the matter has been referred to a Bench. But, your Honour, it is also the case that this jurisdiction commenced in a very embryonic time for the Commonwealth, and that we are a much bigger nation, a much bigger Parliament and a much more complex society than 1903, and that the pressures upon the High Court in relation to its jurisdiction and exercise of jurisdiction are much more pressurised now than might have been the case when there were only three Judges of the High Court - - -

HIS HONOUR: That is undoubtedly right, and no doubt that accounts for section 44 of the Judiciary Act.

MR McCARTHY: I would submit, your Honour, that the issue of the use of that power in the context of a reserved question, particularly in the way that it has been proposed, it is by specific reference to the Rules of the High Court not a reference to facts actually being tried. I mean, that is a part of Order 35 that this comes as closely as one could envisage to an exercise of power under Part XXII, not necessarily under section 354(1) but under Part XXII, in relation to the validity of an election or a return whereby the Court has exercised powers to determine a question and then thereafter has the power to either try the petition or to refer it to trial.

In that way, particularly in the context where in the evolution of this Court's jurisdiction generally there has been a power of remitter or reference that has developed because of the pressures on the Court, that it would seem unusual now, in circumstances where some days would be involved, or a time would be involved, in trying issues of fact that it is unlikely that the High Court could be envisaged by the Commonwealth Electoral Act, and the jurisdiction there, to be likely to do other than refer it.

In 1919, Sir Isaac Isaacs sat on a case in Ballarat that comes down to history as Kean v Kerby and in that case he sat in both Melbourne and in Ballarat and he took up some time in terms of his days trying - - -

HIS HONOUR: Yes, that is quite true. We are not anxious to emulate those early examples.

MR McCARTHY: I would have thought in 1996, your Honour, even though he had the benefit at Ballarat of the assistance of T.J. Ryan as counsel in that case, that this would not be a comfortable precedent in any shape or form for the High Court now. That the Commonwealth Electoral Act can be read in such a constrictive way now, in my submission, your Honour, given all those factors seems to me to really entrench upon or restrict the Act, particularly when the power to do - that is, to make that reference - is in actual fact express in section 375(1). There really has not been an argument put in any sense today that suggests that the use of Order 35 would be inconsistent with the Act. If it is not inconsistent with the Act to come through Order 68 to Order 35, then the rest of the Act must be given, as Dr Kenny said, a broad and a liberal interpretation.

It would seem to me to be - I know your Honour has difficulties that need to be resolved - but I do not think a restrictive interpretation of the jurisdiction under the Court of Disputed Returns is in 1996 the most efficacious way in which the jurisdiction of this Court or the administration of this Act is advanced.

HIS HONOUR: Yes, thank you, Mr McCarthy. I will adjourn the matter until 2.15 tomorrow afternoon. I think that is the only order I need to make at this stage.

AT 5.08 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 15 AUGUST 1996