Sue v Hill & Anor S179/1998 [1999] HCATrans 221 (24 June 1999)

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Sydney No S179 of 1998

B e t w e e n -

HENRY (NAI LEUNG) SUE

Petitioner

and

HEATHER HILL

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 9.32 AM

Copyright in the High Court of Australia

MS E.A. COLLINS: If it pleases the Court, I appear for the petitioner. (instructed by Phillips Fox)

MR R.E. TEMPLETON: If it pleases the Court, I appear for the first respondent. (of Watkins Stokes Templeton)

MR M.C. SWAN: If it pleases the Court, I appear for the second respondent. (instructed by the Australian Government Solicitor)

MR H.E. BURMESTER, QC, Acting Solicitor-General for the Commonwealth: If it pleases the Court, I appear for the Attorney-General for the Commonwealth (instructed by the Australian Government Solicitor).

MR J. SAUNDERS: If it pleases the Court, I appear for Senator O'Chee. (instructed by Shand Taylor)

MR R.A. CHANNON: If it pleases the Court, I seek leave to appear on behalf of Senator Mason. (instructed by Freehill Hollingdale & Page)

HIS HONOUR: The immediate purpose of the exercise, as is indicated by a reading of the reasons for judgment of Justice Gaudron at page 71, paragraph 179, is to see that everybody who is entitled to be heard and wishes to be heard on the question of the manner and extent of any re-count has that opportunity. Does anybody oppose the application of Mr Channon and Mr Saunders to participate in the proceedings? I will leave aside the technical question of whether the proper way to deal with this is to join you as parties or as interveners. We can deal with that in due course, but you may take it then that, one way or another, your application to appear will be accepted.

MR CHANNON: Thank you, your Honour.

HIS HONOUR: Subject to what anybody wanted to say about this matter, it seemed to me that the best way to proceed might be as follows: I look particularly to you, Mr Swan, for guidance on the question of who might have an interest to be heard. The possible people who might have an interest to be heard appear to include at least the person who, on a re-count, would be likely to take the place that was filled by Mrs Hill, and the people who came below Mrs Hill but were elected, and then the person, or persons, who might possibly replace them, if it came to that on a re-count. Is there anybody else?

MR SWAN: Your Honour, I will certainly, with respect, agree with you that Mr Harris, who is the person who is number two on the One Nation ticket, would have an interest in being heard on the matter. But beyond that, your Honour, certainly if you have regard to the decision of Justice Gaudron, the fourth, fifth and sixth elected senators would obviously have an interest.

HIS HONOUR: Who are they?

MR SWAN: Mr Ludwig was elected fourth. Mr Mason, I think who Mr Channon represents, was elected fifth, and Mr Woodley was elected sixth. Beyond those four people, that is the fourth, fifth and sixth elected and Mr Harris, it is very difficult to draw a line as to which other candidates might have an interest.

HIS HONOUR: Certainly there is Mr O'Chee, and he is already here.

MR SWAN: That is correct, yes. But he was the person who was not excluded, but not elected. He came closest to getting elected. But given that any sort of re-count would have to start at the beginning, so to speak, it may be that, as was submitted by Mr Sharples, and I understand that this is the reason for the way the Court has gone, the submission by Mr Sharples in his case was that anything could happen through the various counts.

HIS HONOUR: That obviously is not literally true.

MR SWAN: Not in a practical sense, your Honour. Theoretically it may be, but not in a practical sense. But there is no clear way to draw any distinction between anyone beyond the sixth person elected, with the exception of Mr Harris.

HIS HONOUR: You mean there is no clear way to distinguish between Mr O'Chee and candidates who came below him?

MR SWAN: For example, Mr Sharples who was excluded twelfth.

HIS HONOUR: May I ask you, how many candidates came below Mr O'Chee?

MR SWAN: Below Mr O'Chee? Fifty one.

HIS HONOUR: Right. The practical possibility of any more than a couple of those being affected is fairly remote, is it not?

MR SWAN: It is very negligible, your Honour, yes.

HIS HONOUR: How many below Mr O'Chee are there before you get into the practically negligible category?

MR SWAN: There is Mr Hutton, the Greens candidate. I would imagine that, practically speaking, no one below that.

HIS HONOUR: Let me tell you, I am only interested in practicalities.

MR SWAN: There is also the third ALP candidate who may have an interest.

HIS HONOUR: Who was that?

MR SWAN: I cannot quite recall his name at the moment, Piasecki, I think his name was.

HIS HONOUR: Anyway, the third ALP candidate.

MR SWAN: The third One Nation candidate.

HIS HONOUR: Let me make something clear to you, Mr Swan. I regard it now as the responsibility of your client to make the running in relation to this issue and to be in a position to provide the Court with information about it. I want to hear submissions in due course from the Acting Solicitor General, but the spotlight is now on you.

MR SWAN: I was afraid that might be the situation, your Honour. Apart from Senator O'Chee, Mr Piasecki, Mr Hutton, the only other one that I would submit is of any account is perhaps Mr Bradford.

HIS HONOUR: Does anybody want to make any submissions contrary to what Mr Swan has just said about persons likely to be affected? Very well. For the time being we will proceed upon the assumption that the people who are likely to have a possible practical interest in being heard are Mr Ludwig, Mr Mason, Mr Woodley, Mr O'Chee, Mr Hutton, the third ALP candidate and Mr Bradford. Does that cover it?

MR SWAN: That is what my submission covers, your Honour. The third ALP candidate is Piasecki.

HIS HONOUR: All right. We have Mr Mason and Mr O'Chee covered, and here. I direct you or your client, to write forthwith to Mr Ludwig, Mr Hutton, Mr Piasecki, and Mr Bradford, or their legal representatives, if they are known to you. I do not mean by a letter sent by ordinary post. I mean if by fax or e-mail, if they have those arrangements available, and a letter sent by ordinary post.

I want your client, in that letter, to draw their attention to the reasons for judgment of the Court that were published yesterday and, in particular, to draw their attention to paragraphs 178 and 179 of the reasons for judgment of Justice Gaudron. There is probably no reason why you could not actually quote those paragraphs in the letter.

MR SWAN: Your Honour, if may I interrupt. We had prepared some draft minutes of an order and a letter which would be a schedule to that order, if I might hand that up.

HIS HONOUR: Thank you. Just let me have a look at that, thank you.

MR SWAN: It does not contain those things which you have suggested, but it certainly does refer to the situation. I think all other parties have a copy of that, your Honour.

HIS HONOUR: This provides that the petitioner gives that notice, but as I have indicated, I want your client to give notices.

MR SWAN: Yes.

HIS HONOUR: Does anybody have any comments to make on this letter?

MR SWAN: There was only one comment, your Honour. It should be the order that that letter would accompany. Order 2 should read, "That the matter be listed for further directions on a date in July."

HIS HONOUR: I will deal with that in due course. Is everybody happy with this letter? The only addition then that I would want you to make to this letter is to add as a further annexure to it, paragraphs 178 and 179 of the reasons for judgment of Justice Gaudron explaining that they deal with this issue.

Then, I will direct that the second respondent write to each of Messrs Ludwig, Woodley, Hutton, Piasecki and Bradford in terms of the letter handed up by Mr Swan, amended in the manner that I proposed. That letter should be sent within 24 hours and in addition to going by ordinary post, it should be sent by fax or e-mail if those facilities are available to the addressees of the letter. There is no need for any such letter to go to Mr Mason on Mr O'Chee, I take it?

The next thing is this, Mr Swan, what I contemplate is that when the matter is brought on again for further hearing, and I have in mind in that regard Thursday of next week at 2.15 in Sydney unless anybody has any difficulties with that - and that, by the way, will need to be referred to in the letter, will it not?

MR SWAN: Yes.

HIS HONOUR: Anybody who wants to make submissions on the question of the manner and extent of the re-count will then have an opportunity to make those submissions. I would expect your client, in the meantime, to put itself in a position to make whatever re-count is regarded as appropriate as quickly as possible after a decision about that matter is made next Thursday.

MR SWAN: Yes, your Honour. That can probably be done after the hearing on Thursday.

HIS HONOUR: How long would that take, Mr Swan?

MR SWAN: It is all on computer, your Honour. It will take about 45 minutes, if it is a full re-count.

HIS HONOUR: Are there issues of scrutineers in a situation like this?

MR SWAN: Yes, there are, your Honour, and that may be a problem in terms of the timing of the re-count. What I meant when I said before is that it could take place after the hearing, there would need to be notice given to the parties to organise scrutineers.

HIS HONOUR: Right. When would Mrs Hill have taken her seat in the ordinary course?

MR SWAN: On Thursday 1 July.

HIS HONOUR: Next Thursday.

MR SWAN: Yes.

HIS HONOUR: I am wondering then whether we should put this on, on Tuesday. Has anybody any comment to make about whether that would be adequate time for people? Do you expect to have any difficulty getting in touch with these people, Mr Swan?

MR SWAN: Not those people, no, your Honour.

MR TEMPLETON: Your Honour, I should say at this stage that from the first respondent's point of view, her involvement in this matter, on my submission, is effectively at an end. She has been deemed by the Court to be ineligible to have run for the Senate. In that regard, it would seem inappropriate that she partake further in the proceedings.

HIS HONOUR: There is no reason why she has to.

MR TEMPLETON: Quite so, your Honour,. My only other difficulty is that there were a number of the potential parties that I may receive instructions from that have not featured in the orders made today, or the proposed orders, whether those instructions are forthcoming from those persons. I cannot advise the Court at the moment, given the short period of time since the judgment was delivered.

HIS HONOUR: There is nothing to stop you turning up at 2.15 on next Tuesday and telling me about that.

MR TEMPLETON: No, your Honour. Might I say that perhaps it would be appropriate that those potential persons be required to notify of an interest and what it is, in advance of that date.

HIS HONOUR: Who are these people?

MR TEMPLETON: For example, as I say, your Honour, my instructions are somewhat vague at this stage but there are the other One Nation candidates who were on the ticket.

HIS HONOUR: Look, you and they will be aware that the matter will be listed for further hearing in Sydney next week and you and they can take such action as you may wish.

MR TEMPLETON: Yes, your Honour. I was merely going to suggest that those persons not simply turn up on the day, but they notify their interests in advance of that in fairness to all the other parties, as opposed to the potential order.

HIS HONOUR: If a situation arises where the requirements of due notice to other parties and courtesy require that that be done, then I am sure you can attend to that, Mr Templeton.

MR TEMPLETON: Yes. Thank you, your Honour.

HIS HONOUR: Now, Mr Swan, would you expect to be able, in practice, to communicate with these people, that is Mr Ludwig, Mr Woodley, Mr Hutton, Mr Piasecki today?

MR SWAN: I have been instructed that that is possible, yes, particularly with the limited number that are mentioned.

HIS HONOUR: Yes, they could be telephoned of course, could they not, as well as have letters written to them?

MR SWAN: Yes.

HIS HONOUR: There is a risk involved if we list it as early as next Tuesday, that somebody will turn up and say that he or she is embarrassed and cannot go ahead but I do not see why we should not take that risk.

MR SWAN: I do not have any reason to put why it should not be taken either, your Honour.

HIS HONOUR: All right. Because we might be able to get it all over by next Thursday.

MR SWAN: That is a possibility. If that were to be done, I think it would be wise for notice to be given to all candidates about the possibility of a re-count in the middle of next week, and about details of where and when that re-count will take place. The only question I understand will be considered next Tuesday is the manner and extent of the re-count.

HIS HONOUR: Correct, but it will probably be decided next Tuesday.

MR SWAN: Yes. Would your Honour give me a minute just to see if there are any instructions which may further illuminate the Court.

HIS HONOUR: Yes, certainly.

MR SWAN: Your Honour, my instructions are that there would not appear to be a problem with notification of all candidates, and I stress that, for the re-count, all candidates should be notified. They are entitled to have scrutineers present. There is a problem about how long a re-count will take, because that will depend on what orders the Court gives. If a full re-count is ordered, then everything is on computer and the re-count can be conducted in 45 minutes. If something other than that is ordered, then it would either have to be done manually, which is a much longer process, or some programming for the computer would need to be changed.

HIS HONOUR: We will jump that hurdle when we come to it.

MR SWAN: If something that disturbs that arises, we can always give notice of a further date for the re-count, after your order.

HIS HONOUR: All right then. The matter will be listed for further hearing at Sydney at 2.15 on Tuesday of next week. What is the date of that?

MR SWAN: That will be 29 June.

HIS HONOUR: On Tuesday 29 June, and I direct your client to notify Messrs Ludwig, Woodley, Hutton, Piasecki and Bradford of that, when you are sending them this letter. Is there anything else that needs to be attended to?

MR TEMPLETON: To say simply, your Honour, that my client be excused for further attendance, and the question of costs.

HIS HONOUR: Yes, certainly. I will order that costs in this matter be reserved, today's costs be reserved, and certify for counsel.

MR CHANNON: Your Honour, will you deal on Tuesday with the issue of the status of the interveners or parties?

HIS HONOUR: Yes. The two of you may assume that you will get in either as interveners or as parties. Would you mind having a look at the rules and the procedures and form a view, for the purpose of making submissions, on whether it is more appropriate that you be added as parties or treated as interveners. Either way you will be heard.

MR CHANNON: Yes, your Honour. Thank you.

HIS HONOUR: Very well. We will adjourn this matter until 2.15 on Tuesday, 29 June 1999, in Sydney.

AT 9.52 AM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 29 JUNE 1999