Sue v Hill & Anor S179/1998 [1999] HCATrans 224 (29 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 SYDNEY ON TUESDAY, 29 JUNE 1999, AT 2.15 PM

(Continued from 24/6/99)

Copyright in the High Court of Australia

MS C.M. TAIT: If the Court pleases, I appear for the petitioner. (of Phillips Fox)

MR J.P. DAVEY: If the Court pleases, I appear for Senator John Woodley. (instructed by Senator Woodley)

MR M.C. SWAN: I appear for the second respondent, your Honour. (instructed by the Australian Government Solicitor)

MR H.C. BURMESTER, QC: I appear for the Attorney-General of the Commonwealth. (instructed by the Australian Government Solicitor)

MR P.M. WOOD: May it please the Court, I appear for Mr Mason. (instructed by Freehill Hollingdale & Page)

MR P.D.T. APPLEGARTH: If the Court pleases, I appear for Senator William George O'Chee. (instructed by Shand Taylor)

MR S.J. GAGELER: If your Honour pleases, I appear for Mr Len Harris. (instructed by Blake Dawson Waldron)

HIS HONOUR: Mr Swan, you have a notice of motion which, as I understand it, sets out the course that you propose should be taken at this stage.

MR SWAN: Yes, your Honour. There are some amendments to that which I would like to submit are appropriate.

HIS HONOUR: All right. Tell me - - -

MR SWAN: I can hand up a sheet with the amendments on it, your Honour, but there is, unfortunately, one further amendment which I would like to put forward.

HIS HONOUR: Thank you. Let me take these on board. Could you just explain the purpose of these amendments to me, Mr Swan?

MR SWAN: The purpose is to remove what might seem to be an inconsistency in respect of paragraph (4) in the schedule, with the suggestion in paragraph 6 of the notice of motion itself that further argument should take place in respect of the fourth, fifth and sixth positions, if that should turn out to be necessary, having regard to the result of the re-count. That applies to most of the amendments suggested. The amendment suggested to paragraph (3) of the schedule is to, I suppose, pay due observance to the theoretical possibility that a re-count might put someone of the already elected Senators, Ludwig - or Senators-elect, Ludwig, Mason or Woodley into third place. It is really, irrespective of where the place is in the order of sixth positions, it is really the position left unfilled by the ineligibility of Heather Hill which is the important fact.

HIS HONOUR: Do you mean that the purpose of these amendments is to make it clear that if there is a further counting, that will not pre-empt the question sought to be raised, for example, in the submissions of Senator Woodley, as to whether or not, having regard to the nature of these proceedings, it is either possible or appropriate to make any order other than in relation to the third position?

MR SWAN: It is put with a view that it may be arguable - there may be arguments either way as to what happens to the fourth, fifth and sixth positions after a re-count has been conducted.

HIS HONOUR: Just remind: the persons in the fourth, fifth and sixth position were Mr Ludwig, Mr Mason - - -

MR SWAN: Ludwig was four, Mason was five and Woodley was six.

HIS HONOUR: Following them, there were - - -?

MR SWAN: There was O'Chee. Then to get the correct order, I will have to refer to my previous submissions, your Honour: Piasecki, Hutton and Bradford.

HIS HONOUR: All right. Well, I will make those amendments that you propose to make. You have an affidavit, I think.

MR SWAN: Before we go on to that, excuse me, your Honour, there was an amendment to the sheet which I handed up which I wish to make and that is in the part relating to paragraph (4) of the schedule, on the second line it reads, "have achieved a quota for the 6 positions". Having reconsidered the situation within the last half hour, it should, more correctly, read, "having achieved a quota for one of the first 5 positions or, in respect of the

6th position, obtained more votes than the only other remaining candidate."

HIS HONOUR: I will have to take a note of that. Could you just - - -

MR SWAN: I will read that again, your Honour.

HIS HONOUR: It says, "who, on the recount, in order, are shown to have achieved - - -?"

MR SWAN: Sorry, it is the two lines above that part. The changes need to be made to both those sections which are of two lines each.

HIS HONOUR: Let us deal with the first one first.

MR SWAN: Yes. So, that is in respect of paragraph (4) of the schedule.

The further counting and recounting identify which of the candidates other than the candidate referred to in (3) above have achieved a quote for -

delete the words "the 6 positions" and insert the words "one of the first 5 positions or, in respect of the 6th position, obtained more votes than the only other remaining candidate."

HIS HONOUR: And a similar amendment to the next paragraph?

MR SWAN: That is correct, your Honour.

HIS HONOUR: Thank you. Well now, you have an affidavit of Geoffrey Charles McCarthy dealing with people who have been notified of these proceedings, sworn 29 June 1999. I have read that. Could you just tell me: in relation to the three who were elected below Mrs Hill, Senator Woodley and Senator-elect Mason are represented?

MR SWAN: That is my understanding, your Honour.

HIS HONOUR: Senator-elect Ludwig is not?

MR SWAN: He appears not to be represented here and probably for quite good reason, your Honour. He received a quota of votes as surplus from the votes for Ms McLucas, so there can really be no doubt his having been elected.

HIS HONOUR: All right, thank you. Now, Senator O'Chee is represented today. Ms Piasecki has been notified and she is not represented.

MR SWAN: She has, your Honour.

HIS HONOUR: Mr Hutton?

MR SWAN: Mr Hutton is overseas in the UK, I believe. The contact point advised to the Australian Electoral Commission at the time of the election was contacted and I think his son was informed as to the purpose of the contact and what was being considered in this Court.

HIS HONOUR: All right. And Mr Bradford?

MR SWAN: Again, Mr Bradford is overseas. An official from his party was notified and the circumstances explained to her.

HIS HONOUR: Now, the only other thing I would like to ask you at this stage before I ask the other people what their attitude is to your proposals is this: the Senate is sitting on Thursday and Friday, is that right?

MR SWAN: It appears not, your Honour.

MR BURMESTER: No, your Honour. I think they are adjourning at the end of 30 June. That is my understanding. They will not be coming back in their new composition until sometime in August.

HIS HONOUR: So, we are under no particular time pressure to deal with these matters?

MR SWAN: Not in terms of votes happening in the Senate, your Honour. The senators do take up their position as senators on 1 July but they will not be discharging the legislative or other deliberative functions of senator until the Parliament resumes.

HIS HONOUR: So, there is no reason why we should be in a rush to conclude this by Thursday, for example?

MR SWAN: No practical reason, no, your Honour.

HIS HONOUR: All right. Well now, I will just ask people what they have to say about a couple of aspects of this. Mr Burmester, what do you say about these proposals of Mr Swan's as to how the matter should proceed from here?

MR BURMESTER: It has been the position of the Commonwealth all along that these petitions only challenged the position of Senator-elect Hill and that there is no basis on which these other persons, if there were to be consequences in the re-counting, that positions of other senators-elect could be affected.

HIS HONOUR: That may well be right but the practical problem we have to deal with at the moment is that there is this issue or, more accurately, possible issue left open in the judgments of the High Court and the immediate concern is to find out whether it is any more than a hypothetical issue and if it is more than a hypothetical issue, who might be affected by it. Once we have found out that it is more than a hypothetical issue and that somebody might be affected by it, then we can get to the argument that you have just raised.

MR BURMESTER: I accept that, your Honour, and we do not, for that reason, suggest there should not be a full re-count. In fact, the position is we favour a full re-count, having read the information provided by the Electoral Commission in terms of practicalities that a full re-count would ensure it could be done quickly and we do see some merit in resolving this issue quickly, even though the previous discussion suggested it was not urgent, but it would be preferable, if possible, to resolve it and there seems no reason not to pursue the full re-count approach.

HIS HONOUR: My principal concern is to do what is necessary to be done to find out if this is even a possible issue of practical importance and, if so, who is affected by it without pre-empting the right, for example, of Senator Woodley to argue and, for that matter, your right to argue that having regard to the form and nature of the proceedings, it is not an issue that will ultimately have to be determined.

MR BURMESTER: I accept that, your Honour. In fact, the material suggests it is probably unlikely to arise and the notice of motion put in by the second respondent, I think, does leave that position open and we support the amendments that have been proposed to that.

HIS HONOUR: All right. You are satisfied for your part that if I were to make these orders or give these directions, I would not pre-empting your argument?

MR BURMESTER: That is correct, your Honour. I think with the amendments that is even more the case.

HIS HONOUR: Ms Tait, do you have an interest in this?

MS TAIT: We do not, your Honour, I guess except in relation to any possible cost orders that may be made at the end of the matter. Other than that, we maintain our position all along that we adopt the Electoral Commission's submissions.

HIS HONOUR: All right. Well, you will not think it rude of me if I do not inquire of you any further?

MS TAIT: Not at all.

HIS HONOUR: Mr Applegarth.

MR APPLEGARTH: If the Court pleases. Senator O'Chee supports the directions sought and, with respect, the propositions put as to not pre-empting the argument to be advanced by Senator Woodley make eminent sense. Of course, Senator O'Chee would wish to argue to the contrary of Senator Woodley's submissions if the occasion arose.

HIS HONOUR: Yes, all right. Mr Wood.

MR WOOD: Yes, my client also, your Honour, supports the orders sought in the notice of motion, together with the directions sought reserving his position that this petition and the related petition do not challenge his position.

HIS HONOUR: It seems to me desirable that at this stage we keep open the question of intervention and parties. You may ultimately want to put an argument based upon the fact that your client is not a party.

MR WOOD: Indeed. It has not escaped me, your Honour.

HIS HONOUR: Yes. That is one of the reasons that I kept open, on the last occasion, the question of the precise status of your client and others who may wish to be heard in one capacity or another. I do not think we should do anything formal about that at this stage. We will just leave that question open.

MR WOOD: Yes, I would support that course, your Honour.

HIS HONOUR: Yes. Mr Davey?

MR DAVEY: I have nothing else, really, to add at this stage, your Honour, except to say that Senator Woodley's position has been stipulated in his statement.

HIS HONOUR: Yes, and you are content that your position will not pre-empted in any respect if these directions are given?

MR DAVEY: That is correct, your Honour, thank you.

HIS HONOUR: Mr Gageler?

MR GAGELER: Your Honour, I support the orders proposed subject to three matters. The first is that in order 3 of the notice of motion, currently liberty is "reserved to the parties to apply", that is, in respect of questions that might arise as to the method of counting and re-counting, your Honour, in my submission, that liberty should be extended at least to Mr Harris.

HIS HONOUR: Why do I not just delete the words "to the parties"?

MR GAGELER: Yes.

HIS HONOUR: All right.

MR GAGELER: Your Honour, the second matter concerns proposed order 8, that is as to the costs of the parties. In my submission, it is appropriate that at least Mr Harris, who is required to be before the Court for good reasons and at the Court's direction, should also have his costs borne by the Commonwealth.

HIS HONOUR: Mr Swan, why should I not just reserve the costs of this motion at this stage?

MR SWAN: It is probably an appropriate thing to do, your Honour.

HIS HONOUR: Is everybody content if I were to do that, and we could argue at a later stage?

MR GAGELER: Yes, certainly, your Honour.

HIS HONOUR: I will alter 8 to read: "Costs of the hearing of this motion reserved".

MR GAGELER: If your Honour pleases. And, your Honour, the third thing - and it may well be encompassed in what your Honour has just said - is that, in my submission, it would be appropriate for your Honour to not go past making orders 1 to 4 and possibly the revised order 8 at this stage and reserve or adjourn the balance of the notice of motion until after the reporting envisaged by order 4. That is the course taken by Chief Justice Mason in the aftermath of the Wood Case.

HIS HONOUR: Yes. Mr Swan, what do you have to say about that?

MR SWAN: Yes, your Honour, I have noted that that was the course taken in the Wood Case and I have no objection to that.

HIS HONOUR: Has anybody else any problem about that? Do I need to certify for counsel? Mr Swan, how long would it take you to get the orders and the amended schedule retyped on the assumption that I make the orders down to and including order No 4, noting the amendment that has been made to order No 3, and that I reserve the costs of this motion and certify for counsel?

MR SWAN: Hopefully, we could have that done by 3.30 or 3.45, your Honour. Your Honour, there is the technical thing, a reading of the affidavit of Peter Spelman which is in support of the notice of motion.

HIS HONOUR: I will note that you also read the affidavit of Peter William Spelman of 28 June, 1999.

MR SWAN: Thank you, your Honour.

HIS HONOUR: Following the recent decision of the Full Court of the High Court in this matter, it is necessary to determine who should be declared elected in the place rendered vacant as a result of the conclusion concerning the disqualification of Mrs Hill. It is understood from the evidence that there will be little, if any, difficulty in determining the identity of that person.

There is also a possible question as to what, if any, consequences the disqualification of Mrs Hill might have for other candidates who were declared elected below her, that is to say, Senator-elect Ludwig, Senator-elect Mason and Senator Woodley, and for persons following them who were not returned as elected, in particular, Senator O'Chee, Ms Piasecki, Mr Hutton and Mr Bradford.

Senior counsel for the Attorney-General and counsel for Senator Woodley and Senator-elect Mason have made it plain that, if necessary, they will wish in due course to argue that, having regard to the provisions of the Commonwealth Electoral Act 1918 , and to the form of the petition in this case, it would not be open to the Court to make any order or declaration which would disturb the election of Senator-elect Ludwig, Senator-elect Mason or Senator Woodley.

On the other hand, unless and until a re-count is conducted by the Australian Electoral Commission, it is not possible to determine whether that question is purely hypothetical and who, if the question is not purely hypothetical, might be affected by it.

In those circumstances, it is proposed by the Australian Electoral Commission, and agreed by the Attorney-General and all those represented before me this afternoon, that the appropriate course to take at this stage is to direct a re-count. That will have two immediate consequences. It will conclusively identify the person who is to take the place of Mrs Hill and, in addition, it will disclose whether the issue to which I have earlier made reference is or is not hypothetical and, if it is not hypothetical, what person or persons might have a practical interest in its resolution.

I accept that the course that has been proposed to me by the Australian Electoral Commission is the appropriate course to follow in those circumstances, making it clear that by directing a re-count for the purposes I have mentioned I am not intending in any way to foreclose the argument which the Attorney-General and others have foreshadowed.

Some amendments to the form of orders and the schedule attached to that form have been proposed and agreed to in the course of discussion this afternoon and I am content with those amendments.

I will adjourn the further hearing of this matter until 3.45 pm today in order to enable counsel for the Australian Electoral Commission to re-cast the orders and the schedule to the orders, and I will resume sitting at that time and make orders as I have foreshadowed.

Do you want this notice of motion back?

MR SWAN: No, I have many copies of that, your Honour.

HIS HONOUR: All right. Well, then, I will adjourn until 3.45.

AT 2.43 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.45 PM:

HIS HONOUR: Yes, Mr Swan.

MR SWAN: Your Honour, my instructing solicitor is on his way with minutes of the order.

HIS HONOUR: While they are coming, we had better fix a date for a further hearing of the matter, prior to which you can prepare an affidavit setting out the result of the re-count and at which we can hear argument that may become necessary in relation to the further proceedings. In any event, when the matter is next before the Court, you will have the result of the re-count in so far as it affects the position vacated by Mrs Hill. It would be appropriate then, would it not, for you to bring with you on that occasion draft orders to give effect to the decision of the Full Court of the High Court and to this re-count in so far as it affects the third place?

MR SWAN: Yes, your Honour.

HIS HONOUR: So that we can settle that issue then. Have you any suggestions as to what would be an appropriate date? How long will it take you to do the re-count?

MR SWAN: A re-count pursuant to section 273A by a computer will take less than an hour, your Honour.

HIS HONOUR: That is what is provided for in your order, is it not?

MR SWAN: Yes. That is the way my client proposes to carry it out pursuant to that order.

HIS HONOUR: And there is no objection to that from anybody, as I understand it.

MR SWAN: So, we may be in a position to file an affidavit in respect of the result of the re-count by late tomorrow afternoon or early Thursday morning, your Honour.

HIS HONOUR: What about 10.15 on Monday, is that a convenient time for people?

MR SWAN: It is convenient for me, your Honour.

HIS HONOUR: Are there people who have to come from other States and would prefer it to be later?MR APPLEGARTH: I have, your Honour, but my personal convenience is not as important. It is an appropriate time.

HIS HONOUR: It does not make a bit of difference to me whether it is at 10.15 or 2.15. What about you, Mr Gageler?

MR G AGELER: Would your Honour consider making it Friday rather than Monday?

HIS HONOUR: Friday of this week?

MR G AGELER: Friday of this week, your Honour. By that time we will have the results of the re-count and the likelihood is, your Honour, that there will not be any controversy. If it is a matter that would require further argument beyond the position of the third place, then that is an argument that could possibly take place at a later date, subject to the directions of the Court.

HIS HONOUR: What do people say about 2.15 on Friday? All right, we will make it 2.15 on Friday.

MR APPLEGARTH: If the Court pleases, while we are waiting for the minutes to arrive, I did not, when I was earlier addressing the Court, make an application for costs but I do that. Appreciating that costs are to be reserved, but I should not want my silence as indicating there was not an application by my client for costs, the basis for that being that this is a necessary incident of last week's hearing and the appropriate order is one made under section 360(4) for the Commonwealth to pay those costs.

HIS HONOUR: I will reserve that question. I would ask you to remind me of it when it ultimately comes to the time for making orders.

MR APPLEGARTH: Yes.

MR A.G. SKYRING: Excuse me, your Honour, if I may. Earlier in these proceedings, as I understood them, you have, in effect, reserved the rights of the parties to put and be heard on further argument in respect of the flow-on effects of this Full Court ruling.

HIS HONOUR: Yes.

MR SKYRING: I was just wondering if I could have my rights - Skyring is my name - in my capacity as a voter for Queensland added to that list because there are some matters that I believe have not been raised which I think ought to be raised and which come in this category of what I think you have quite fairly categorised as "real or hypothetical matters".

HIS HONOUR: What is your application, Mr Skyring? Mr Skyring, have you been declared a vexatious litigant?

MR SKYRING: That is a very contentious point, your Honour, which has been and is, indeed, the subject of a reserve judgment by Justice Sackville in the - - -

HIS HONOUR: What exactly is your application? Are you applying for leave to intervene?

MR SKYRING: If I could ask you, your Honour, to be heard in the capacity as a voter from Queensland, does one intervene in that capacity? If so, I would be seeking to - - -

HIS HONOUR: I do not undertake to give you any advice about anything, Mr Skyring.

MR SKYRING: Well, as a voter, as I gather under the Electoral Act I am entitled to be heard on the matter, I would like to be heard to at least raise the matter so that - - -

HIS HONOUR: Well, you do not want to deal with any of the matters we have been talking about today?

MR SKYRING: No. In essence, what has been done, it seems to me, to be all fair enough.

HIS HONOUR: All right. Well, that is good. Well, then, we can leave to a future occasion any application you wish to make.

MR SKYRING: Well, it was at the time that this further argument is heard, if I could broach my matter then. That was really what my request was.

HIS HONOUR: Well, I am not reserving your rights because I am not persuaded at the moment that you have any but you can, on any future occasion, seek leave to put any arguments that you might think appropriate to put in relation to any business before the Court on that future occasion.

MR SKYRING: Now, if I may ask your Honour: is this leave requirement comes because it is purported I am a vexatious litigant?

HIS HONOUR: No, it is because, at the moment, I am not clear what status you claim to have or what matter you want to put to the Court relevant to anything that has to be determined. But one thing I am clear about is that you have nothing to put to the Court relevant to what has to be determined today.

MR SKYRING: No. It was the flow-on effects and seeing matters were going to be raised, it was at that stage that I thought it might be worthwhile raising. Might I comment, your Honour, the matter has been broached but it has never been properly determined and this is the problem.

HIS HONOUR: Take a seat, thank you.

MR SWAN: Your Honour, we now have the minutes of the orders.

HIS HONOUR: Thank you.

MR SWAN: My learned friend, Mr Applegarth, has drawn to my attention the absence of one order that your Honour did make and that was for the adjournment; for the motion to be otherwise adjourned. That is paragraphs (5), (6) and (7).

HIS HONOUR: Let me just read these. I take it that you do not expect there will be any difficulty, Mr Swan, in relation to the matter of scrutineers?

MR SWAN: I do not anticipate that there will, your Honour, because the party contacts notified to the Electoral Commission at the election were written to and they should have received that letter, at the latest, on 25 June, which was last Friday, and I am instructed there has been a number of people contact the Electoral Commission in response to that letter and none of them, as I understand it, have complained as to the shortness of the notice.

HIS HONOUR: Thank you.

MR SWAN: In fact, your Honour, I think that anyone with any substantial interest in the matter is already here and they have not complained about the shortness of the notice of this.

HIS HONOUR: What about those two people who are overseas and have not been able to be contacted, Mr Hutton and Mr Bradford, will they be represented by scrutineers?

MR SWAN: I am not sure about Mr Hutton, your Honour, but Mr Bradford's party office has been notified and - I am sorry, my instructing solicitor tells me the Green's party office has also been notified. There will, as I understand it, have been an opportunity - in fact, a letter that was sent to them by the Electoral Commission suggested that they contact the Commission to get forms for appointment of scrutineers. That is part of what the communication with the office has been.

HIS HONOUR: Very well, then, I will make orders in terms of the minutes of order, initialled by me, dated today's date and placed with the papers. I will adjourn the further hearing of the matter until 2.15 on Friday.

AT 3.57 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 2 JULY 1999