Snowdon v Dondas & Anor S95/1996 [1996] HCATrans 425 (3 November 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

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 SEPTEMBER 1996, AT 9.32 AM

Copyright in the High Court of Australia

MR J.A. McCARTHY, QC: May it please, your Honour, I appear with my learned friend, MR HATZISTERGOS, for the petitioner in this matter. (instructed by McClellands)

MR J.E. REEVES: May it please, your Honour, I appear for the first respondent. (instructed by James Noonan)

MS S.C. KENNY: I appear for the second respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, Mr McCarthy.

MR McCARTHY: Your Honour, this matter is listed before your Honour this morning in consequence of orders that were made by the Chief Justice on the last occasion that this matter was before the Court on 15 August. Another of his Honour's orders on that occasion was that there be a reserved question that was settled on that day brought before the Court at this time for reference to the Full Court.

Pursuant to those orders, there has been prepared a question reserved book which I believe is in Court, your Honour, and I would refer you in that book to page 31 which has the reserved question set out at the end of the case stated which was settled before his Honour the Chief Justice on 15 August. The case stated commences at page 20 and concludes at page 31.

HIS HONOUR: What order are you asking me to make?

MR McCARTHY: Your Honour, I would move that the question reserved for the consideration of the Full Court and set out at page 31 of the reserved question book be referred to the Full Court.

HIS HONOUR: There is something of a problem with that, is there not, because the question itself presumably you do not wish divorced from the material which leads up to the formulation of the question.

MR McCARTHY: No, your Honour - - -

HIS HONOUR: You use the language of case stated, which I am not sure is particularly appropriate. It is the language of section 18 of the Judiciary Act, whereas this document that has been prepared and signed by the parties seems to me to be, and is expressed to be pursuant to Order 35 of the High Court Rules - - -

MR McCARTHY: That is so, your Honour.

HIS HONOUR: - - - and, no doubt, that has been done to draw in these provisions of Order 68, which apply these rules to the Court of Disputed Returns. It is, in part, just a matter of nomenclature, and that is not troubling me, but, how does the document that is described as a case stated get before the Court this morning, that is, get before the Full Court?

MR McCARTHY: Your Honour, they would go before the Full Court pursuant to the question and the associated material which is presently called a case stated, being reserved to the Full Court. Your Honour, the Court is sitting as a Court of Disputed Returns. Under the Act the Court may either sit as a single J

Judge, or it may sit as a Bench.

HIS HONOUR: Mr McCarthy, I have no reluctance to refer this matter to the Full Court, be assured of that. I am just concerned about the form that the order should take.

MR McCARTHY: Yes, your Honour.

HIS HONOUR: In other words, it is not enough simply to refer the question unless the Full Court has before it the material out of which the question arises, which is a document described as a case stated.

MR McCARTHY: Your Honour, I would refer that the document referred to in the reserve question book commencing at page 20 and headed, "The Case Stated", together with the question at page 31, be reserved to the Full Court.

HIS HONOUR: It is largely a matter of form but if you look at Order 35 rule 1 it contemplates two situations of a special case. One is where the parties concur, and that does not appear to require any direction by a Justice of the Court, or under rule 2, "If it appears to the Court or a Justice that there" should be a special case, then "the Court or Justice may make an order accordingly". Just before I pursue that, can you explain to me whether the intention is that - however this document reaches the Full Court - the Full Court is to be concerned only with the paragraphs that are mention in the form of the question, namely, paragraphs 43, 44, 45 and 47, or is it the intention of the parties that the Full Court have the whole of that document before it?

MR McCARTHY: It is the intention that the whole of the document be before the Full Court.

HIS HONOUR: I would assume so because the paragraphs that are referred to in turn refer to other paragraphs.

MR McCARTHY: Yes.

HIS HONOUR: On what footing have those particular paragraphs been isolated?

MR McCARTHY: Your Honour, I take responsibility for that and the - - -

HIS HONOUR: It is just a question.

MR McCARTHY: Your Honour, it was a shorthand way of summarising what the major contentions were. Paragraphs 43, 44 and 45 bring out the point about provisional voters who move across district boundaries within the same division.

HIS HONOUR: It might be better, for instance, to perhaps reserve the question in the form of, "Having regard to the facts and matters stated in the stated case, in particular paragraphs so-and-so," so that the Full Court is not constrained in any way by anything that I do.

MR McCARTHY: Thank you, your Honour.

HIS HONOUR: Not that it is not free to make its own orders, of course, when the matter comes before it.

MR McCARTHY: Your Honour, would this be, "Having regard to the facts and matters stated in - - -"

HIS HONOUR: We may as well stay with the language of the case stated since that it is the way in which the document has found its way into the question reserved book.

MR McCARTHY: Yes.

HIS HONOUR: So if the question reserved read, "Having regard to the facts and matters stated in the stated case, in particular, paragraphs 43, 44, 45 and 47," and then it went on from there, would that meet your situation?

MR McCARTHY: It would, your Honour.

HIS HONOUR: Yes. I will hear what other counsel have to say. Mr Reeves?

MR REEVES: I have nothing to say further to that, your Honour.

HIS HONOUR: Yes, thank you. Dr Kenny?

MS KENNY: Your Honour, I have only one thing to say. In the facts which are set out at the commencement of the question which forms the stated case there is one which seems to be wrong. At page 25 of the document, which your Honour may have, your Honour will see in paragraph 25 there is a reference to a document said to be marked B and said to be a statement in writing for the purposes of the section 235(5) of the Act. In fact, the document annexed and referred to is not the document under that provision and I would seek to amend that before the matter should go to the Full Court. If I might hand up to your Honour an appropriate amending page and the - - -

HIS HONOUR: This is a document which all parties have signed through counsel, have they not?

MS KENNY: Yes, that is quite correct, your Honour - not through counsel, your Honour, in fact; it is through instructing solicitors.

HIS HONOUR: Right. What is the change, Dr Kenny?

MS KENNY: Your Honour will see on the new page 25 against paragraph 25 there is a new annexure number, B1. If your Honour turns through to the third page in the bundle I passed up, your Honour will see a new annexure marked B1, Provisional Voting. That is in fact the document to which reference ought to have been made in the facts set out in the proposed stated case.

HIS HONOUR: So, in so far as a change is required with the case stated, it would be to paragraph 25, would it?

MS KENNY: It would be.

HIS HONOUR: Only?

MS KENNY: Only to paragraph 25, together with the addition of a new annexure B1.

HIS HONOUR: And the only addition to the paragraph itself would simply be the identification B1 of the.....

MS KENNY: That is correct, yes.

HIS HONOUR: With the new annexure B?

MS KENNY: That is correct, your Honour. I apologise for that. It seems to have been an error that has occurred inadvertently.

HIS HONOUR: What about the form of the order that I canvassed with counsel; do you have any problem with that?

MS KENNY: No, your Honour, the special case was drawn up with Order 35 in mind.

HIS HONOUR: It is a pity it was not called special case, because that is the language of Order 35. What about the form of the questions; do you see any difficulty with the suggestion that it be, having regard to the facts and matters stated in the stated case, in particular those numbered paragraphs, rather than the form presently envisaged?

MS KENNY: No, your Honour. That would seem more precisely to raise the question in fact asked.

HIS HONOUR: Yes, thank you, Dr Kenny. Mr McCarthy, do you want to say anything about the suggested amendment to paragraph 25 of the case stated.

MR McCARTHY: No, I would support the application for that amendment.

HIS HONOUR: What about you, Mr Reeves?

MR REEVES: I would support it as well, your Honour.

HIS HONOUR: Very well. Paragraph 25 of the case stated will be amended in the form of the document presently handed to me and which I sign, and annexure B1 will be replaced by the document also handed to me at the same time. No doubt copies of the amended documents will be available to the Full Court this morning, Dr Kenny?

MS KENNY: Yes, your Honour, they will. Might I just make one thing clear to your Honour in case I have been unclear: Annexure B will remain in the special case but there will be an addition of annexure B1.

HIS HONOUR: Yes, I may have been imprecise in my language. Annexure B remains but the document referred to in paragraph 25 as amended will stand as annexure B1 in the form of the document handed to me.

MS KENNY: Thank you, your Honour.

HIS HONOUR: That is a bit more precise, very well. In that event, there will be an order in these terms:

(1) There be reserved for the consideration of the Full Court the following question:

"Having regard to the facts and matters stated in the case stated, in particular paragraphs 43, 44, 45 and 47" -

then the question as presently formulated in the question book and appearing on page 12 under the numbers 1 and 2 will be the question that forms part of the order.

Now, I take it that I should then order that the further hearing of this petition be adjourned to a date to be fixed and presumably also that the costs of today's hearing be reserved. Does counsel wish to be heard on either of those orders?

MR McCARTHY: No, your Honour.

MR REEVES: No, your Honour.

HIS HONOUR: Dr Kenny?

MS KENNY: No, your Honour.

HIS HONOUR: Very well, there will be orders numbered 1, 2 and 3 accordingly. The Court will now adjourn.

AT 9.44 AM THE MATTER WAS ADJOURNED