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High Court of Australia Transcripts |
DISPUTED RETURNS
Office of the Registry
Sydney No S179 of 1998
B e t w e e n -
HENRY (NAI LEUNG) SUE
Petitioner/Respondent
and
HEATHER HILL
Respondent/Applicant
For directions
GLEESON CJ
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 15 MARCH 1999 AT 2.16 PM
Copyright in the High Court of Australia
MR D.F. ROFE, QC: If your Honour pleases, I appear with my learned friend, MR A.J. TUDEHOPE, for the applicant in this summons, the respondent in the petition. (instructed by Watkins Stokes Templeton)
MR S.G. FINCH, SC: If the Court pleases, I appear with my learned friend, MS E.A. COLLINS, for the petitioner, the respondent to the summons. (instructed by Phillips Fox)
MR G.C. McCARTHY: If the Court pleases, I appear for the Australian Electoral Commission, and I seek leave to enter an appearance on behalf of the Commission. (instructed by the Australian Government Solicitor)
HIS HONOUR: Is that opposed?
MR ROFE: No, your Honour.
MR FINCH: No, your Honour.
HIS HONOUR: You have that leave.
MR McCARTHY: Thank you, your Honour.
HIS HONOUR: Yes, Mr Rofe.
MR ROFE: Your Honour, the first thing I undertake to do is to hand to your Honour an original of our submissions which I think were sent by fax. We said we would make the original available.
HIS HONOUR: Thank you.
MR ROFE: Your Honour, this is a summons which was issued on 2 February 1999 in respect of an election petition which was issued on 1 December 1998, some 39 days after the return of the Queensland Senate elections held, of course, on 3 October 1998.
HIS HONOUR: I have an amended summons. It appears to have been filed on 25 February, is that the one?
MR ROFE: No. There is a further amended summons, your Honour, which was filed on 10 March 1999.
HIS HONOUR: Yes, I have that.
MR ROFE: Your Honour, my learned friend, Mr Finch, has been good enough to hand up a short chronology as to dates which may assist your Honour.
MR FINCH: Your Honour, the only date missing is the last one. I was not aware of the date of the further amended summons.
HIS HONOUR: Thank you.
MR ROFE: Your Honour, the applicant was returned as a senator elect No 3 for Queensland out of the sixth senators elected on that date.
HIS HONOUR: Is paragraph (b) of the further amended summons pursued? I notice there is some evidence on the file relating to that. It concerns the publication - - -
MR ROFE: Yes, that is the publication. Yes, your Honour, I do not think we can pursue that seriously now, although - - -
HIS HONOUR: All right. Well, we will disregard paragraph (b). It is about particulars, is it not?
MR ROFE: That is the first matter, your Honour, particulars. The third matter, which is (c), your Honour, does raise a matter perhaps I should alert your Honour to now. It raises a matter which we would be asking your Honour to differ on the question of jurisdiction with a decision of his Honour Justice Dawson.
HIS HONOUR: We would not get to that if you are right about (a), would we?
MR ROFE: If we are right about (a), we do not get to that, but I only foreshadow that, your Honour, because I think the Electoral Commissioner has an interest in (c).
HIS HONOUR: If it came to a need to consider (c), it would be appropriate to refer the matter to a Full Court, would it not?
MR ROFE: I think so, your Honour, and, indeed, we would be suggesting if we get to it that your Honour - in other words, if we do not get up on (a), that your Honour would refer three matters to the Full Court: that matter, the constitutional issue which we have raised in a further amended summons and, indeed, ultimately, the matter of whether or not the United Kingdom of Great Britain and Northern Ireland is a foreign power within the meaning of the Constitution, section 44(i).
HIS HONOUR: Yes. Well, they are interesting questions that might, in due course, if they arise, need to be referred to the Full Court but the threshold question, as I understand it, is simply whether there has been compliance with the requirements in terms of the manner in which the petition is framed.
MR ROFE: Yes.
HIS HONOUR: If that question is answered adversely to the petitioner, that is the end of the matter, is it not?
MR ROFE: That certainly is, your Honour, yes. Well now, your Honour, if we just go to the petition briefly. Your Honour will see - - -
HIS HONOUR: Yes. Well, I have read the petition.
MR ROFE: - - - that we take issue with the matters contained in paragraphs 5, 6 and 7 in our principal submissions.
HIS HONOUR: As far as 6 is concerned, if it were only a question of misdescription, that could be the subject of amendment, I should have thought.
MR ROFE: Well, there is strong authority that says you cannot amend after 40 days.
HIS HONOUR: Well, it is a question, perhaps, of amending what.
MR ROFE: Yes.
HIS HONOUR: But if it were only a question of amending to change the word "Britain" to "the United Kingdom of Great Britain" - - -
MR ROFE: - - -"of Great Britain and Northern Ireland" - - -
HIS HONOUR: Yes, it might be a different matter.
MR ROFE: Your Honour, as I say, that of itself would not have occupied us if that were the only matter. Your Honour, we submit, in the light of the authorities - and perhaps the strongest one is Nile v Wood which we have given your Honour.
HIS HONOUR: What is the reference to that?
MR ROFE: It is [1988] HCA 30; 167 CLR 133, a decision of three Justices, Justice Brennan, Deane and Toohey and, in particular, at page 137, at about point 3, where their Honours say:
If a petition does not comply with s 355, s 358 ensures that no proceedings may be had on it. Nor are such defects capable of being cured by amendment, at any rate after the period of forty days fixed by par (e) for the filing of a petition has expired.
And then there is reference to those cases.
The rationale of the refusal to allow an amendment in those circumstances may be found in the judgment of Gibbs ACJ in In re Berrill: "...for to do so would in effect be to permit an evasion of the requirements of s 185(e)."
HIS HONOUR: That seems to establish that if you were right in your proposition that there has been a failure to comply with the requirements as to particulars in section 355 of the Electoral Act it cannot be cured by amendment.
MR ROFE: Yes. If what is alleged in paragraphs 5 and 7 are not facts within 355(a) then, in our submission, the petition cannot be proceeded with and what we say with respect to the proposed two paragraphs is that they assert conclusions of law. In other words, other than the words "As at the date of her nomination the Respondent was" it is simply a recitation of the wording of section 44(i). There is, in our respectful submission, quite powerful authority which says it is not enough merely to assert a contravention of a provision, in this case section 44(i), that you must assert sufficient facts which, if proven, would establish the contravention.
Can I take your Honour to the authority In re Berrill 52 ALJR 359. It is a decision of five Justices of the Court. The leading judgment was given by Acting Chief Justice Gibbs, as he then was, and agreed in by the other four Justices. It was a case where the petition asked or alleged:
a number of sections of the Act had either not been complied with -
that is the Commonwealth Electoral Act -
or had been wrongly applied in the poll for this Electoral Division, and that these breaches were in every case of such magnitude as to render impossible the conduct of the poll according to law.
The major passage, your Honour, is at page 360E in the left-hand column:
A number of earlier decisions of this Court, sitting as the Court of Disputed Returns, make it clear, if there was any doubt about it, that the provisions of s 187 -
that is now 358 -
are effective to achieve the result that unless the provisions of s 185 -
which is now 355 -
are complied with a petition shall not be allowed to proceed.
Further, it is established by the decision of Griffith CJ in Cameron v Fysh that if the petition does not set out the facts relied on to invalidate the election it is not possible to allow an amendment of the petition after the period of forty days -
and so forth.
The question therefore in this case is whether the petition does set out the facts relied on to invalidate the election. The petitioner has submitted that it is enough that she has alleged that there have been substantial breaches of a number of sections of the Electoral Act. That, she says, is the fact upon which she relies to invalidate the election.
But upon proper analysis, what she has alleged are conclusions of law. She has not stated the facts from which those conclusions may be drawn.
In my view, it is impossible to say that this petition does comply with the provisions of -
that section.
HIS HONOUR: It is not quite as simple as that in the case of some of these allegations, is it? Is the proposition that a person is a citizen of the United States a proposition of fact or a proposition of law?
MR ROFE: I suppose, your Honour, it depends in what context it appears. It may involve a conclusion of law. There may need to be a set of facts from which that conclusion can be drawn. Here, there is no set of facts. For instance, here, it would be possible to assert, if these were the facts - we will assume for the purpose that they were the facts - that the applicant was, for instance, an Australian citizen who had dual citizenship or was a British citizen and who had not taken steps to repudiate her British citizenship; something of that nature. I am just giving it as an example. Here, there is no particular fact that is asserted in 5 and 7 other than the wording that appears in the Constitution.
HIS HONOUR: Subject to what Mr Finch says, a problem that I should have thought would occur to most people reading this document is that it simply asserts a series of alternative allegations without saying which one is right. It says at the date of her nomination the respondent was either (a), or (b), or (c), or (d), or (e), and it does not say which one she was. I should have thought that some of those might involve allegations of law but it is not immediately apparent to me that the proposition that somebody is a citizen of a foreign country is a proposition of law as distinct from a proposition of fact.
MR ROFE: There is some discussion of these facts or, rather, what is involved in section 44 in a decision of Justice Brennan in Sykes v Cleary [1992] HCA 60; 176 CLR 77, and at page 109, at about point 2, his Honour, in a separate judgment from a decision of the Full Court did discuss section 44(i) and what it comprised of. He said there were three categories. Does your Honour have that?
HIS HONOUR: I do, thank you.
MR ROFE: He said:
Putting acknowledgment of adherence to a foreign power to one side, the sub-section contains three categories of disqualification, each of them being descriptive of a source of a duty of allegiance or obedience to a foreign power. The first category covers the case where such a duty arises from an acknowledgment of the duty by the candidate, senator or member. The second category covers the case where the duty is reciprocal to the status conferred by the law of a foreign power. The third category covers the case where the duty is reciprocal to the rights or privileges conferred by the law of a foreign power.
And then he deals with those and the second category again at the bottom of that page, and over on page 110 he deals with the third category again:
The third category mentioned in s 44(i) covers those who, though not foreign nationals, are under the protection of a foreign power as though they were subjects or citizens of the foreign power. Where non-nationals are under the protection of a foreign power, they may owe a duty of allegiance or obedience to the foreign power by the law of that power.
And then:
The first category applies when, as a matter of fact, the person has acknowledged allegiance, obedience or adherence to a foreign power. The second and the third categories apply when, under the law of a foreign power, the person owes allegiance - - -
HIS HONOUR: Just before you go any further, how do you make an acknowledgment of allegiance?
MR ROFE: I suppose you could do it by some written document would be one way or some public statement can be done, apparently, formally or informally. I am not sure there is any precise mechanism for doing it. I do not think that is explained further in the passages that I refer to. Certainly, here, we simply have the whole of 44(i) thrown in. Now, my learned friend would say, "Oh, yes, but late in the day we gave you some particulars and that sort of cures your situation." We say, with respect, particularly, if the petition is not effective within that 40 days, then particulars supplied - in this case, on 10 February - - -
HIS HONOUR: Was that within the 40 days?
MR ROFE: No, that is well outside of it.
HIS HONOUR: I am not sure that I have seen those particulars.
MR FINCH: Your Honour has not. They will be before you.
MR ROFE: They will be sought to be put before us. They say that cures our dilemma but, with respect, we are not talking about a dilemma here, so much as whether or not there are facts within 355(a) within the requirements of that section.
HIS HONOUR: And particulars within - - -
MR ROFE: And particulars provided with more specificity under (aa) and anything provided at a later date after the 40 days cannot assist. We would say, with respect, the non-assertion of any particular facts is possibly, no doubt, because the petitioner had no knowledge of any particular facts other than, perhaps, some indication that we were born in the United Kingdom or something of that nature.
HIS HONOUR: What is the difference between being "a subject of a foreign power" - I see, it is on page 109.
MR ROFE: Yes, it is. You are a subject, I gather, if there is a monarchy.
HIS HONOUR: Well, you are subject of a monarchy and you are a citizen of a republic.
MR ROFE: That is right.
HIS HONOUR: These allegations, on their face, are internally inconsistent.
MR ROFE: I suppose that is so. They certainly do not clarify it and the reason is because they have simply taken section 44 and used it word for word.
HIS HONOUR: Presumably, when they also tell you that the foreign power is a monarchy, you can infer that the reference to "citizenship" and distinct from being "a subject" is just a mistake.
MR ROFE: It is not a mistake if you are quoting section 44 because that is how section 44 puts it but if it is supposed to be some fact coming within 355(a) then it would be a mistake on the assumption that the foreign power is the United Kingdom.
Now, we would submit, your Honour - these are not intended to be trivial points - petitions are important documents, having potentially serious consequences. The applicant is faced with being, in effect, dispossessed of her democratically elected position in the Senate and, therefore, petitions should be framed carefully and comply strictly with section 355 of the Act and, indeed, looking at these cases that we have cited and some of which I have referred your Honour to, it is clear that the petition are to be construed strictly. Section 355 and its predecessor seem to make that very clear.
HIS HONOUR: If the allegation that your client was under an "acknowledgment of allegiance, obedience, or adherence to a foreign power" were seriously made and pursued, the particulars would have to say when the acknowledgment was made, where it was made and what form it took.
MR ROFE: At least, yes. Now, the only other case to which I would make reference, your Honour, is the unreported decision of Mr Justice Needham - as your Honour would know, formerly of the Supreme Court of New South Wales - Yates v Unsworth. Your Honour, I think we attached a copy of that to those submissions. But he was dealing with similar provisions in relation to the New South Wales Parliamentary Electorates and Elections Act.
HIS HONOUR: Just give me a moment, please, Mr Rofe, while I have a look at that. What is the critical part of this?
MR ROFE: At page 2 his Honour, at about point 3, deals with the history of decisions by this Court and the Commonwealth Court of Disputed Returns and deals with Berrill. He then, on page 3, deals with the particular paragraphs of the petition which was before him and, again, on page 4, at about point 6:
However, it seems to me that the decision of the High Court acting as the Commonwealth Court of Disputed Returns in In the Matter of a Petition by Helen Therese Berrill, to which I have already referred, supports the contentions of the respondent in this case. What was done in that case was to claim in the petition -
and he goes to the facts of that.
Then is set out a number of sections and the petition then proceeded by claiming that as a consequence of those breaches the election was not according to law.
The Court in that case decided that these allegations were not statements of fact. It was a five member Court which was unanimous on the point. It does not seem to me that there is any distinction between a petition merely asserting that there was a breach of a section of the Act and a petition which extrapolates from the section the words of it and says that there was a breach of that provision. I cannot see any distinction between the two allegations as a matter of substance.
And that is what we have here, we have merely an extrapolation of section 44(i) of the Constitution. Now, your Honour, those are the points we would make on (a).
HIS HONOUR: Mr Rofe, is it convenient - and I will ask the same question of Mr Finch and Mr McCarthy - that I should hear argument first on paragraph (a) of your summons and, if necessary, consider and make a decision on that before dealing, if necessary, with the other aspects of your summons which is, as I say, may more appropriately be referred to a Full Court if they ultimately arise?
MR ROFE: Yes. We would say that would be convenient, your Honour, yes.
HIS HONOUR: All right. Yes, Mr Finch?
MR FINCH: That would be convenient, your Honour.
MR McCARTHY: The same - - -
HIS HONOUR: Thank you.
MR FINCH: Does your Honour have a copy of the written submissions which were shortly before the hearing commenced forwarded to the Registry for the petitioner?
HIS HONOUR: Yes, I do.
MR FINCH: Your Honour probably has not had time to look at them at all.
HIS HONOUR: Would you like to give me a moment to do that?
MR FINCH: If your Honour would, yes, it may shorten the matter. They follow the order of the applicant's submissions.
HIS HONOUR: Thank you. You refer in paragraph 9 to a request for particulars. I do not have before me any request for particulars or a response to such a request.
MR FINCH: Your Honour does not. We say that it was somewhat odd that in the circumstances a case which is about particulars should have not disclosed that to the Court. To remedy that defect we have had a sworn affidavit - - -
HIS HONOUR: Just a moment. The authorities seem to indicate that if within 40 days the petition has not been amended to comply with the requirements of the section of the Electoral Act in terms of particularity, that is the end of the matter.
MR FINCH: That means - I will come back to that in a moment, your Honour. That is true. The authorities probably go so far as to say you cannot amend to add a new or different cause of action. The authorities probably read too much into the decision of the original considerer of this point if they say you that you cannot amend at all. If one is correcting a stylistic change, one could no doubt do that.
HIS HONOUR: As at present advised, I have to say, Mr Finch, that if it mattered, I would not have much difficulty about a power to amend paragraph 6 more accurately to identify the alleged foreign power there referred to but - - -
MR FINCH: Yes. I do not go so far though, your Honour, as to say that I could use those particulars to remedy a defect on the face of the petition if, on its face, it did not comply with 355(a) and (aa).
HIS HONOUR: Well then, if that is so, of what concern to me are communications between the parties about particulars?
MR FINCH: It is this concern: 355(a) and (aa) do not operate in practice or explicitly in any different way than the usual rules of court about pleading.
HIS HONOUR: If this were a pleading, it would be plainly bad on its face, would it not?
MR FINCH: We say, no, your Honour. Not only is it not bad but it accords with what is apparently the usual way of bringing this precise sort of allegation before this Court, and I will take your Honour to that.
HIS HONOUR: But if this were a pleading in a statement of claim, it would be impossible to tell, from looking at the pleading, which of a series of alternative allegations is being relied upon.
MR FINCH: It is said in the pleading - - -
HIS HONOUR: Well then, you should not say "or", you should say "and".
MR FINCH: We say each - there might be an infelicity in the use of the word "or" rather than "and" but each is effective to put the allegation before the Court and before the respondent.
HIS HONOUR: If this were a pleading and all of these - let me go back a step. It is impossible, is it not, to be at one in the same time a citizen and a subject of a foreign power?
MR FINCH: No, it is entirely possible and it is provided for in the legislation.
HIS HONOUR: Well, let me take another example: you say that the respondent was under an acknowledgment of allegiance.
MR FINCH: Yes.
HIS HONOUR: When was the acknowledgment made?
MR FINCH: That is one of the difficulties that arises out of what your Honour identified straight away. It is very hard to tell, and in some cases one cannot tell yet, whether or not these allegations would be allegations of law, of fact, or of mixed law and fact. Your Honour, with respect, was quite right to say that embodied in paragraph 5 there appear to be three things said and those three things were, with respect, correctly identified by your Honour in this way. The first allegation is "that the respondent was under an acknowledgment of allegiance or adherence to Britain". Now, that, we say, is a conclusion of law. It is a conclusion which is available by reason of the other allegations which are made, in particular, the next one: "that the respondent was a subject or citizen of Britain". That is an allegation of fact. One can show, by documents, that somebody is or is not a citizen of Britain.
What flows from that may be a conclusion of law. One of the conclusions of law which flows from that, we say, is that by virtue of British citizenship the respondent was under an acknowledgment of allegiance or adherence to Britain.
HIS HONOUR: Just a moment. I do not understand what that means: by virtue of her citizenship she is "under an acknowledgment"?
MR FINCH: Yes. That is, if you are a citizen and you have not effectively renounced then, by very virtue of your citizenship, you are under an acknowledgment of allegiance to - - -
HIS HONOUR: I must have misunderstood the meaning of the word "acknowledgment". Am I under an acknowledgment of allegiance to Australia?
MR FINCH: Yes, we would say so.
HIS HONOUR: And when did I make that acknowledgment?
MR FINCH: Your Honour has been under that acknowledgment all the time that your Honour has been an Australian citizen and will - - -
HIS HONOUR: You take the word "acknowledgment" to mean obligation?
MR FINCH: Yes.
HIS HONOUR: Is there authority for that?
MR FINCH: No. It has not been considered so far as we are aware.
HIS HONOUR: It is not the normal meaning of the word "acknowledgment", is it?
MR FINCH: It is not but it is not exclusive of it. The point has not been, so far as I can tell, argued anywhere or decided anywhere, and we say - - -
HIS HONOUR: Let me be clear about this. What do you say the word "acknowledgment" means in section 44 of the Constitution?
MR FINCH: The acknowledgment does not import a positive act of advertence to the allegiance. Your Honour can well imagine that there are occasions when one does do that; for instance, when one declares citizenship or takes citizenship one declares allegiance and that would be a positive acknowledgment. We say though that there is another category of an acknowledgment, that is, the obligation that one has of adherence to the power in question which is imported by the holding of citizenship itself and that that would be enough.
HIS HONOUR: A person can make an acknowledgment by never saying or doing anything?
MR FINCH: Yes, because, your Honour, what one has done is a negative. One has British citizenship, for example, by birth, to take an example hardest for me where one does not do anything about it except come into existence.
HIS HONOUR: His Honour may have been wrong, but what Justice Brennan said in Sykes on page 110 was as follows:
The first category applies when, as a matter of fact, the person has acknowledged allegiance, obedience or adherence to a foreign power.
MR FINCH: Yes, but his Honour was not asked to, there, and did not have to, for any reason, consider any other type of acknowledgment. That is why we say it has not been considered. His Honour did not have to consider this question, and what we say is acknowledgment can be and, we say, is in these circumstances something which results from, as a matter of law, the status of citizenship which is a matter of fact and that is where these issues become difficult because, as I say, some - - -
HIS HONOUR: And presumably the status of citizenship as a matter of fact arises from some fact.
MR FINCH: Yes.
HIS HONOUR: From where you are born?
MR FINCH: It may be.
HIS HONOUR: Or whether you immigrate to some place?
MR FINCH: It may be, or whether you, in fact, have taken out citizenship.
HIS HONOUR: All right. Well, in terms of the particulars that are required, what has the respondent alleged to have done in the present case?
MR FINCH: So far as the first category that I have referred to is concerned, nothing because that simply flows from her citizenship. We simply say the respondent is a subject or citizen. Now, as I have said, those two words are not inconsistent and if one thinks about it for a moment, one can see why that is. It is common place that one can be a subject in a monarchy and, as your Honour observed quickly, "Is that not inconsistent, citizenship being something associated with a republic?". In literature, that might be right but not in law. As your Honour may recall, both here and, more particularly and more relevantly, in the United Kingdom there is something called the British Nationality Act. I can hand up just the title and a couple of pages of it to show your Honour the point. This is the Act which, in fact, we say, determines the rights and obligations which flow from and adhere to citizenship.
Your Honour sees, for example, simply in Part 1, headed "British Citizenship", section 1:
(1) A person born in the United Kingdom after commencement shall be a British citizen -
Now, I need read no further. And then over the page, your Honour sees, for example - - -
HIS HONOUR: Before you go any further, in so far as you allege that the respondent was a British citizen and in so far as you are obliged to provide particulars of that allegation, is it because her father or mother was a British citizen?
MR FINCH: It is not material. We have not said it and it is not material.
HIS HONOUR: Why not?
MR FINCH: Because if one is a British citizen then that is sufficient for the purpose of the argument. What the Constitution says one cannot be is, inter alia, a citizen of a foreign power. Now, leaving aside the interesting question of whether Britain, for these purposes, is a foreign power, that citizenship, once held, disentitles one from being chosen as a senator. It does not matter, we say - and there are no authorities, we say, to the contrary - that that citizenship was derived in any particular way. It is simply a prohibition on citizenship of a foreign power. There is nothing in the rules or the Act which says you have to say how one got citizenship as part of the process.
HIS HONOUR: That might be right if all that you had said in your petition was that the respondent, at the date of her nomination, was a subject of the United Kingdom or was a citizen of the United Kingdom.
MR FINCH: Yes, the second of the two.
HIS HONOUR: But what you have done is to assert - - -
MR FINCH: Three things.
HIS HONOUR: - - - on one view of it, seven different states of affairs, all taken from an uncritical recitation of section 44 of the Constitution and to say at the date of her nomination she was either (a) or (b) or (c) or (d) et cetera and that in a context where the statute obliges you to set out the facts with sufficient particularity to identify the subject matter or matters on which you rely.
MR FINCH: Yes, and we say that each of those things does that. One asks this more than rhetorically, what is it about this pleading that could be confusing? If one returns for a moment to the - - -
HIS HONOUR: I can tell you. It is an uncritical spray levelled at the respondent by taking the language of the statute and not bothering to work out what your case really was.
MR FINCH: The language of the statute, with respect, is entirely appropriate to be adopted because it sets out the various factual and perhaps mixed factual and legal questions which may be relied on. Now, importing what is in paragraph 6 of the petition into paragraph 5 as one must do, one sees that, alternatively, three different propositions are put. None of those propositions is confusing. None of them are mutually inconsistent. None of them are difficult to understand. One of the pieces of relevance, we say, of the correspondence which you have not yet seen was to point out that in fact it had produced no confusion.
That is why we say it is relevant to notice that these sections really do no more or different work than the usual sections in the rules of this Court about what one has to do by pleading. One has to tell the other side what one's case is in a way which cannot be misunderstood and which is not ambiguous.
HIS HONOUR: Let me just assume for the moment, contrary to your submission, that there is a difference between being a citizen of the United Kingdom or a British citizen, on the one hand, and being under an acknowledgment of obedience to the United Kingdom. Just make that assumption for the moment. If that is right, then there are at least two different allegations here, are there not?
MR FINCH: Yes, and, to take your Honour's example against me further, there may be three because the third category is that the respondent was entitled to the rights or privileges of a subject or citizen and your Honour's process of reasoning would no doubt extend to that as well. We say there is nothing confusing about this. We say that it is quite plain from the pleading what is being alleged in each case and it could not be said any clearer.
HIS HONOUR: On the assumption that there is a difference between being under an acknowledgment of obedience to Britain and being a citizen of Britain - - -
MR FINCH: Yes, then we would simply fail - - -
HIS HONOUR: Excuse me, which of those two things is alleged?
MR FINCH: Each of them is alleged.
HIS HONOUR: But they are different, you said.
MR FINCH: Yes. On your Honour's assumption, assuming that there is a different between them, it is a matter of whether we succeed or fail. Assuming, as your Honour says is necessary for the purpose of the exercise that there is a difference - whether it be in law or fact perhaps does not matter - between being under an acknowledgment and being a citizen. That would mean that we would fail in respect of the first allegation, either failing of proof or failing as a matter of law, but we would succeed on the second, assuming in my favour that citizenship is established as a matter of fact. Now, all that means is that an allegation which is made is made unsuccessfully, which is - - -
HIS HONOUR: Not quite. In so far as you are making an allegation that she was under an acknowledgment, you are obliged by the statute to give particulars.
MR FINCH: Yes.
HIS HONOUR: Well, the usual particulars you would give of an acknowledgment are when it was made; where it was made; was it express or implied; was it oral or in writing. What are the particulars of the acknowledgment?
MR FINCH: There are no particulars in there. To answer your Honour's question, all that is said is that she was, as a matter of fact, under an acknowledgment to Britain. Now, we say that that is a conclusion which can be reached from another assertion of fact that she was a British citizen. We say that is either right or wrong.
HIS HONOUR: It sounds to me as though you do not seriously suggest that she was under an acknowledgment at all. You have no knowledge of any acknowledgment she has ever made of anything.
MR FINCH: No, I do not put it that high, your Honour. As I have said, I think quite openly, it is a subspecies or a right pertinent to the citizenship. Let there be no doubt about it. What we say is that the respondent was a British citizen, full stop.
HIS HONOUR: Yes, and these other things just found their way in by error.
MR FINCH: Well, not by error. As your Honour will see in a moment, it is the way, apparently, this matter was put to the Court for decision in Sykes v Cleary. Unfortunately, the Court - and there was no need for them to - did not set out the precise terms of the petition. But if your Honour looks at it for a moment - it is the same passage your Honour has been looking at, at volume 176 of the Reports. If your Honour turns to page 92 where the decision of the majority sets out what was claimed in the petition. As I said, unfortunately, there is nothing in the headnote or elsewhere which sets out the terms of the petition. Your Honour sees at about point 2:
The petitioner claimed that each of the second and third respondents, though a naturalized Australian citizen, was a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power and was therefore under acknowledgment of allegiance to a foreign power within the meaning -
et cetera, et cetera. That is apparently how it was put before the Court. True it is that the point was not raised and I cannot say that the Court thereby gave it its imprimatur but that is the way it was put there. It raised no comment in the Court then, and your Honour sees that precisely the same argument that we seek to put has been put before to the Court without comment; without adverse comment. That paragraph is repeated more or less in those words elsewhere in the decision.
So that what your Honour sees from that is it was not then thought confusing or defective to make the claim in the way that it is made here.
HIS HONOUR: Not then thought by whom?
MR FINCH: By two groups of people: by those who opposed the petition, and the Court did not see fit to say anything about the terms of the formulation of argument and, in particular, what your Honour does not see is any expression of confusion or difficulty with what we have said follows from citizenship, that is, and therefore under acknowledgment of allegiance.
I did not say to your Honour that this was an authority that allegiance was something which was inevitably part of being a citizen but your Honour can see that - - -
HIS HONOUR: It is not a question of allegiance, it is a question of an acknowledgment.
MR FINCH: I understand that.
HIS HONOUR: You seem to equate the word "acknowledgment" with "duty".
MR FINCH: Yes, or "obligation", yes, perhaps words of no different import. All I am suggesting - - -
HIS HONOUR: I am sorry, you say the word "obligation" is of no import from "acknowledgment"?
MR FINCH: No, no different import to "duty". Your Honour used the word "duty" and I used the word "obligation". What I am saying is I did not see a difference between "obligation" and "duty" in these circumstances. What I am pointing to here is simply that it was said without adverse comment that the acknowledgment of allegiance - and your Honour sees that precise phrase is used there - was something which flowed - that appears from the use of the word "therefore".
HIS HONOUR: You mean, said by the pleader?
MR FINCH: Indeed. That is why I said to your Honour it has not been the subject of any determination. There is another mention of it in the case at page 110 - it is really to the same effect - in the decision of Justice Brennan. Your Honour sees at about point 2:
The second category covers persons who, by reason of their status as subjects or citizens (or nationals) of a foreign power, owe a duty of allegiance or obedience - - -
HIS HONOUR: Yes, "owe a duty of allegiance".
MR FINCH: I understand that.
HIS HONOUR: And then further down the page, he talks about a case which is the first category, "when, as a matter of fact, the person has acknowledged allegiance".
MR FINCH: Yes. Now, what we say is that - - -
HIS HONOUR: That is a pretty straightforward approach to the meaning of the word.
MR FINCH: It is but, as your Honour sees, it was not necessary for the decision to take the matter any further about whether there was in fact another species of acknowledgment, that is, something which arose simply by virtue of the citizenship. All of this really boils down to something quite simply, we say. It is asserted that the respondent was a subject or citizen. Now, there is nothing confusing about that, of Britain.
HIS HONOUR: No, if that stood alone that would be a very straightforward assertion.
MR FINCH: Yes. The other assertions that are made, we say, are not inconsistent.
HIS HONOUR: Why are they made at all?
MR FINCH: Presumably, your Honour, to cover the field.
HIS HONOUR: I am not sure what that means.
MR FINCH: It is probably inadvisable for me to proffer the expression "more abundant caution". It appears to be a recognition of the fact that 44(i) of the Constitution proffers three categories, and there may be more subcategories that your Honour has identified, which may be the subject of a disqualification. Here, we say, each of the categories is fulfilled by reason of the status of "British citizen". We say that there is nothing confusing or that needs further particulars about the allegation that there is as set out in the pleading an acknowledgment, an existence of a citizenship or an entitlement to rights or privileges.
HIS HONOUR: Do you mean by that that paragraph 5 and paragraph 6 would have had no different meaning if they had simply said, "as at the date of her nomination the respondent was a British citizen"?
MR FINCH: Yes.
HIS HONOUR: Well, if that was the petitioner's case, why did it not say so?
MR FINCH: No doubt because it was thought wise to leave open as many avenues of argument as possible. Now, that does not constitute a fishing expedition. It simply means if there is some advantage that may be obtained by use of the alternative expressions in 44(i), then that advantage should be preserved for the hearing.
HIS HONOUR: Could you give me an example of a possible advantage?
MR FINCH: Not from the way I have framed the case, your Honour, because as I have said, the way the case speaks from the pleadings and as I understand it, the other two of the three possibilities simply flow from the second. Now, that is speaking from today's date though, not speaking from the date when the petition was drafted. So, as a matter of procedure to come, no doubt the argument can be constrained.
HIS HONOUR: Is it fair to say that, as you see the case at present, the only allegation that is going to be made is that at the date of her nomination the respondent was a British citizen?
MR FINCH: On our part, yes.
HIS HONOUR: And that these various other alternative allegations that appear in the petition add nothing to the petitioner's case?
MR FINCH: So far as we presently conceive it. Can I add this, though: it is possible that what will be raised by the respondent will be what was raised in the Sykes v Cleary Case for decision. As your Honour may recall from that decision, there were two respondents, not Mr Cleary, who were nationals of foreign powers. They were nationals at the date of their nomination. It was available to them to have taken, but they had not taken, all reasonable steps to renounce that foreign citizenship, and the Court extended the interpretation of the words in the Constitution so that the blanket prohibition on foreign nationals was, in practice, relaxed. So that although one might be, for the purposes of international law, a foreign national, one could escape the prohibition in the Constitution by taking all reasonable steps to have that citizenship renounced. It was found in that case that the other two respondents had not taken those reasonable steps, therefore they were prohibited.
Now, it may well be that the respondent in this case wishes to say that she has taken all reasonable steps to renounce. That may produce an issue which may enliven one or other of the alternatives. It is difficult to see precisely how at the moment but it may be, for instance, that once says it is necessary to have now recourse to one of these other alternatives such as the entitlement to rights or privileges in the course of dealing with an argument that she has taken all reasonable steps. In my view, for what it is worth, that is very unlikely and the case can simply proceed on this basis: there is an allegation that the respondent is a British citizen; she seeks to counter that presumably, and I am guessing, by saying she has taken all reasonable steps to have it renounced, and the case proceeds on that simply and limited basis and the only questions of any great controversy would be the jurisdictional questions rather than these questions.
HIS HONOUR: Let me tell you that one of the difficulties that I am having at the moment is this: if this petition had merely contended that the respondent was a British citizen or a British subject, then it may well have been that it would be proper to regard that as an allegation of fact and even, perhaps, an allegation made with sufficient particularity within the meaning of section 355. But when you go to the other two alternatives, that is to say, in so far as your case relies upon an acknowledgment made by the respondent, I am afraid at the moment I cannot see any particularity of that at all and, similarly, in so far as your case relies upon an entitlement to rights or privileges, on the part of the respondent, not arising from the fact that she is a subject or citizen but arising otherwise, just at the moment I cannot see any particularity of that either.
MR FINCH: Yes. I do not think I can put anything to your Honour that I have not put already about that. As your Honour knows, I have said they are simply things we say flow from (ii). There is one thing that your Honour can do about that and that we can ask your Honour to do about that and that arises from the terms of section 358 of the Act. Your Honour has not been taken to that. I do not know whether your Honour has noticed that before. It may well be that one result of your Honour's preliminary view about this is that your Honour sees - I apologise if I am putting it too high - some merit attaching to alternative (ii), if I can call it that, but at the moment a lack of particularity about alternatives (i) and (iii) as they are summarised in paragraph 2 of our written submissions. If that is the case, what has happened is, in essence, we have fallen foul of 355(aa).
Your Honour can, on terms, relieve the petitioner of compliance with that subsection and one of the terms which would, with respect, we say, recommend itself in those circumstances would be that alternatives (i) and (iii) not be proceeded with. Your Honour sees that there are a number of hurdles which have to be crossed by us in asking your Honour to do that. Those hurdles are set out in section 358(3). Your Honour shall not do that unless your Honour:
is satisfied that:
(a) in spite of the failure of the petition to comply with paragraph 355(aa), the petition sufficiently identifies the specific matters on which the petitioner relies -
and taking me as telling your Honour, at your Honour's request, upon what we rely, that is alternative (ii) and it does so with sufficient particularity. Secondly:
(b) the grant of relief would not unreasonably prejudice the interests of another -
person. It could not be imagined, we say, that taking this course would unreasonably prejudice the interests of another party. So that is one alternative we say which exists and, if it be necessary, if your Honour is against us on particularly alternatives (i) and (iii), in the light of 355(aa), we would ask that that course be taken.
HIS HONOUR: Just give me a moment, please, Mr Finch. Yes.
MR FINCH: So that 5 would effectively read that, "At the date of her nomination the respondent was the subject or citizen of a foreign power" and, combined with 6, the foreign power is Britain.
HIS HONOUR: It is really, in substance, an application to amend the petition, is it not?
MR FINCH: We say it is not, with respect, your Honour, because it is open to any party at any stage to abandon or otherwise not proceed with part of the proceeding, and if one "blue pencils" out those abandoned parts, what is left is not an amendment, it is simply part of a previously larger whole. This does not effect any change in the substance of what has always been alleged. It is simply, if the course is availed of, cuts off the superfluous and, assuming that your Honour is against me on them, offensive parts.
HIS HONOUR: Let me remind you that I have not any evidence. I am not inviting any but if any of the correspondence relating to particulars is material to this application, I will need to have it. I just do not know one way or the other whether it is or not but I just want you to know or remember that I have not seen that correspondence.
MR FINCH: I understand, your Honour, and I know my learned friend wished to say something about it. We invite your Honour to look at the request for particulars and the response for this reason, that it is consistent with everything that we have said today.
HIS HONOUR: You can invite me to look at it but I have not got it.
MR FINCH: I did not want to offend your Honour by putting it even before your Honour before your Honour had formed a view about it.
HIS HONOUR: I see.
MR FINCH: And your Honour may say that the basis on which I am putting it is such that your Honour is not even interested in having the piece of paper. I am happy to hand up the affidavit, if your Honour wishes to look at it first. I simply thought it was appropriate to put the basis on which we put it before I even do that. The basis is your Honour, with respect, would be interested in seeing that there has in fact been no confusion arising out of the pleading and that that is one of the things which your Honour would be interested in looking at, that is, adopting my earlier remarks. Because these two subsections of 355 really do no different work than the usual rules of pleading, your Honour would be interested in finding out whether or not there has, in fact, been any confusion; whether or not there has, in fact, been perceived as being any ambiguity in the words used, and we say that it is plain from the documents that there has not. The questions are - I will not even say what the questions are. It is simply a request for particulars in the usual terms and a response in what might be called "the usual terms".
Your Honour may also be interested in seeing those documents for the purposes of determining whether or not it is appropriate to take the course which we urge upon your Honour, with respect, if your Honour is against us on alternatives (i) and (iii), that is to see from a reasonably early date that the British citizenship is at the core of this case and that it always has been and that such infelicities as arose from the adoption of alternatives (i) and (iii) do not intrude and have not intruded on the conduct of the case and need not further intrude. It is not as though there have been any persons adversely affected by the existence of those alternatives so far.
So, for those reasons, we say that your Honour would be interested in seeing them but I do not wish to put it before your Honour until my learned friend has had a chance to say something about that, if he wanted to.
HIS HONOUR: You will have to decide in due course whether you want to tender any evidence but I do not have any at the moment.
MR FINCH: I have foreshadowed the basis and I will do that in due course. The other matters I think I have already taken you to, your Honour. I will not weary your Honour by taking you to them again, that is, that we say this is the way this has been done before. Now, that does not excuse any breaches of the sections that your Honour now perceives but it puts the application in a favourable light in so far as precedent is concerned, that is, this is the way it has apparently been done before and, in those circumstances, there ought to be some latitude allowed if it is done again in accordance with what is the most recent authority in precisely this area, referring there to the recitation of the pleading in Sykes v Cleary.
HIS HONOUR: That is not in accordance with an authority. That is just following what one lawyer did in an earlier case.
MR FINCH: It is, yes. I have already acknowledged to that your Honour. I do not need to take your Honour back to that.
Your Honour, apart from those matters, I think there is nothing of any different sort that I would want to put to your Honour. I leave aside for present purposes the references to "Britain" in paragraph 6 as part of the potentially confusing aspects of the case. They are really beside the point, with respect. The point is - - -
HIS HONOUR: As at present advised, I do not see that there is any problem even outside the period of 40 days in making any necessary amendment to tidy up nomenclature.
MR FINCH: Yes. The last thing, I think, we would point to is simply this, your Honour: your Honour has already been taken to what is usually regarded as the classic example of an offence against 355(a) and (aa) which is Berrill's Case 52 ALJR. Can I just point out to your Honour something that may have escaped your Honour's attention. If your Honour sees at the bottom of the right-hand column of page 359 where paragraph 2 commences to be quoted, and over the next page?
HIS HONOUR: Yes.
MR FINCH: It is that sort of defect in pleading that the Court has turned its face against and your Honour sees that there is, in fact, not a single objective fact which enlivens that quote. It is simply a recitation of breach. Now, that is not what has happened here. If one interpolates the word "Britain" into paragraph 5, we say that each of those alternatives can be sensibly understood. If they can be sensibly understood, the fact that there might be more evidence or some evidence which enlivens those allegations does not mean that the pleading is bad, and the same rules which apply to pleading generally that one pleads not evidence, the material allegations which are sought to be made and the conclusions which are said to flow from them are followed, then we say there is in fact nothing that can be complained of in this pleading. The existence of alternatives (i) and (iii), where they are said to flow from, in particular alternative (ii), are not confusing. If they are not confusing, then we say there is nothing offensive about the pleading.
True it is, as your Honour points out, no doubt there could be evidence about the circumstances in which alternatives (i) and (iii) are enlivened but that does not need to be pleaded. That can be the subject of the usual interlocutory procedures in this Court which usually result in an agreed narrative of facts sufficient to ground the decision. So that we say that at the end of the day the test must be, "Is the respondent misled or potentially misled or under any risk of confusion or ambiguity as a result of this pleading?" The answer, we say, is "No" and it is more particularly "No" in the light of the exchange of correspondence about particulars. And in that connection, I would seek to tender and read an affidavit, annexing the relevant correspondence, of Claire Michelle Tait, sworn 12 March.
MR ROFE: Your Honour, we object to this on the ground of relevance but obviously your Honour has to see it.
HIS HONOUR: Well, just let me have a look at it first to decide the objection. The request for particulars seem to prompt a request for information from the petitioner.
MR FINCH: Yes, and a polite refusal.
MR ROFE: Yes, a definition of "fishing", your Honour.
MR FINCH: The answer is given in exhibit 4, your Honour.
HIS HONOUR: Yes.
MR FINCH: So, your Honour sees that the structure of it is, as I have said today, that the alternatives (i) and (iii) are said to flow from alternative (ii) and it is also possible, perhaps, to see the area of confusion that may result from an excision of, in particular, alternative (iii). There are a number of rights which we say the respondent has and continues to have and it may be that, as a matter of evidence in due course, one would wish to point to those rights and their continued existence as part of a response to any suggestion that the respondent has taken all effective steps to renounce and therefore to be excused from the breach of the strict words of 44(i) because that is, effectively, how the decision operates although the express words exclude, then if one has taken sufficient steps one may nevertheless not be disqualified.
Some of those enjoyments or rights may be relevant to that argument but looking at it carefully, they are really no more than the features of a continued citizenship. That is why I say to your Honour it may well be that they are both completely subspecies of alternative (ii) and, at the end of the day, are completely unnecessary to forward the argument as presently mounted.
HIS HONOUR: Following Justice Brennan's classification of section 44(i) as involving three alternatives, it comes down to this, does it not: you alleged that the case fell within either alternative (i) or alternative (ii) or alternative (iii)?
MR FINCH: Yes.
HIS HONOUR: On one view of the matter, at least alternatives (i) and (iii) required particulars and none were given.
MR FINCH: Yes.
HIS HONOUR: And one of the responses you make to that is to invite me to relieve you from the consequences of failing to comply with the legislation in relation to giving particulars of alternatives (i) and (iii)?
MR FINCH: Yes, on terms.
HIS HONOUR: On terms that you do not have the right to rely on alternatives (i) and (iii) when the matter goes to a hearing?
MR FINCH: Yes.
HIS HONOUR: I understand that.
MR FINCH: I have nothing further to say on the question of ground (a), your Honour, except to press the tender of that affidavit.
HIS HONOUR: All right. I will hear what Mr Rofe has to say about that. Now, ground (b) is not pressed against you as I understand it.
MR FINCH: No, it is not, your Honour. I do not know whether your Honour saw what we said about ground (c). We said that is interesting but it is not a strike-out application matter.
HIS HONOUR: Well, although there are other issues in the case, I understand it to be the common approach of the parties that the appropriate course for me to take in the event that those issues were to arise would be to refer the matter to the Full Court.
MR FINCH: We agree with that, your Honour. As I said, the citizenship issues are probably resolvable without that but that are inextricably bound up with the other issues and if your Honour was going to refer the jurisdictional issues, it would make sense to refer the whole lot, after a suitable period during which an agreed statement - assuming that your Honour did it under section 18 of the Judiciary Act.
HIS HONOUR: I would not just do it unless and until I was satisfied that there would be no issue of fact to be resolved by a Full Court.
MR FINCH: As I was saying, your Honour, your Honour would not do that under section 18 until we had agreed on a narrative of facts sufficient to ground the decision. It is also noticeable that my learned friend's submissions raise a number of jurisdictional issues which are, in fact, not included in the further amended summons. We would not object if they were added.
HIS HONOUR: What I would propose to do, subject to anything that counsel wanted to say, is reserve my decision today in relation to the matter of paragraph (a) of the summons. If you succeed in relation to that, either on your principal argument or on your alternative application under section 358, we will have to consider the future progress of the matter in relation to other issues, and if you fail in relation to that, that is an end of the matter.
MR FINCH: It is an end of it.
HIS HONOUR: All right, thank you. Yes, Mr Rofe. What do you say about this affidavit?
MR ROFE: Your Honour, we submit it is irrelevant because it is out of time and it really does not clarify the situation. It is in fairly general terms. The significant thing is it is a document that was furnished to us on 10 February. The 40-day period which would be relevant expired, I think, on 2 December 1998.
HIS HONOUR: I understand the point you make about that and the course I am proposing to take does not detract from the force of that point. I will receive the affidavit of Claire Michelle Tait of 12 March.
MR ROFE: If your Honour pleases.
HIS HONOUR: And I have read that affidavit. I think perhaps before I hear you further, Mr Rofe, I had better see what Mr McCarthy wants to say, if anything, on this issue.
MR McCARTHY: Your Honour, the Commission has nothing to say at this stage of the proceedings.
HIS HONOUR: You are only here for the rest of it.
MR McCARTHY: I beg your pardon?
HIS HONOUR: You are only here in case argument arises in relation to the other matters?
MR McCARTHY: Well, I was actually here just to the questions of fact that might arise in respect of the 355(a) arguments. Certainly, in respect of the other arguments that have been put to one side, those have caught the Electoral Commission by surprise and we would certainly - just why we support - - -
HIS HONOUR: Nothing is going to happen about that today anyway.
MR McCARTHY: Indeed, your Honour.
HIS HONOUR: What do you want to say about the 355(a) arguments?
MR McCARTHY: Nothing, your Honour, save to say that some questions of substance have been raised in the sense of the acknowledgment issue, the citizenship and subject issue. In the event that the petition were to proceed and those questions were reagitated, the Commission would elect to make submissions in that context. But in the context of whether or not the petition is fatally flawed in the context of 355(a), the Electoral Commission has nothing to add.
HIS HONOUR: Now that I have got you here and have the benefit of your experience, can I just ask you this: what do you say the Constitution is talking about when it refers to an "acknowledgment"?
MR McCARTHY: Thank you for the compliment, your Honour, but unfortunately I am not in a position to assist you on the ambit of the word "acknowledgment" in the context of section 44.
HIS HONOUR: No. Nobody is perfect. Yes, Mr Rofe.
MR ROFE: Your Honour, we would, with respect, urge upon your Honour the remarks of Justice Brennan, as he then was, in relation to the categories and his definition of those. In so far as our learned friend is, perhaps alternatively, now inviting your Honour to permit him to alter the petition, we would say, with respect, that is simply an amendment and it is the very thing that the Act and the authorities forbid, the 40 days having expired. To delete words or vary their position as would be the effect really cannot be called other than amendment. It is not a question of making a large thing a little smaller, it is a question of amending what was the ground which required facts to produce something that is no longer the ground but with a smaller set of facts, and we say that has to be done within the 40 days.
HIS HONOUR: Mr Rofe, I have not yet gone back to have a look at the origin of this strictness of this 40-day rule. I suppose it appears, does it, from Cameron v Fysh?
MR ROFE: Yes, I think that is said to be - - -
HIS HONOUR: What is the thinking behind that? That it is a sort of sudden-death operation?
MR ROFE: Well, I think it is more, that the petitions need to be closely scrutinised at an earlier point in time and, indeed, the Act suggests it. It tells the Court of Disputed Returns it must sort of act quickly and so forth. It is all, I would imagine - the rationale, your Honour, is that these matters can be dealt with and you cannot have an endless series of petitions being amended after 40 days.
HIS HONOUR: I suppose this is a slightly unusual situation. As I understand it, your client would not take up her position until July of this year, is that right?
MR ROFE: That is so, yes.
HIS HONOUR: So, I imagine that we are having what is an unusually leisurely look at one of these allegations.
MR ROFE: Yes.
HIS HONOUR: But in the ordinary case of a challenge to an election, it really is something that requires to be considered very urgently.
MR ROFE: Yes, and, indeed, it requires a close-off date for amending particulars or adding further particulars or raising new facts and that is why we would submit, your Honour, the cases are quite clear that you cannot do it after 40 days and, if that is a cut-off point, that is it. That would suggest to us, your Honour, the reason for it, that you have to have a sudden-death cut-off point otherwise the matters can tend to linger on with amendments being made at any stage.
HIS HONOUR: It is a slightly unusual situation. You may be right when you say that what Mr Finch is proposing is, in substance, an amendment of his petition but it is an amendment that takes the form of simply withdrawing two of three allegations in it.
MR ROFE: Nevertheless, your Honour, with respect, that is an amendment, we would submit. The question really has not been answered as to why, if they were simply relying on the fact, they did not simply assert at the time of the nomination she was a British citizen, full stop. My learned friend suggests that as an alternative, he might be content to be bound to that and not have these alternatives arising in case certain facts emerge a little later. But, I mean, that is, with respect, your Honour, just a forensic tactic and it is a permissible one but we submit that that is the very reason why section 355 is couched in the way it is couched.
True enough, he has provided some particulars but, again, it is at a very late stage and, again, they are fairly generalised, if you look at the questions and the answers to those questions. It again indicates, in our respectful submission, that, really, there was not much knowledge in the petitioner's camp about the facts and, hence, they could not be asserted in a way that section 355(a) requires.
If your Honour is minded, however, to accede to his alternative application, the terms, your Honour, would have to be spelt out and, we would submit, they would include that we would be entitled to the costs of this application.
So far as the other matter, Sykes v Cleary, your Honour, one has to understand how Sykes v Cleary came before the Full Court. It started off with an application before Mr Justice Dawson going to the very point that we raise under (c) which was found against the respondent. Then, I think his Honour stated a case or certain questions for the Full Court and those, your Honour, are set out at the bottom of page 86:
The Case reserved the following questions for the opinion of the Full Court -
and they are set out on page 86 and the top of page 87.
Now, in those circumstances, and when the matter came before the Full Court, there was no need for the Full Court to look at or consider anything other than the questions that were raised. We say that by reason of the decision of Justice Dawson in the first place, that the question of the competency of what was being done did not come as a matter of any material before the Full Court because it had been decided and accepted by Justice Dawson in Sykes v Cleary [No 1].
HIS HONOUR: What is the reference to that?
MR ROFE: The reference to that, your Honour, is [1992] HCA 32; 107 ALR 577. As your Honour will see that is the decision which we would, if it became material, be seeking to invite the Court not to follow on the basis that it was wrong.
HIS HONOUR: Where is the error?
MR ROFE: It was a case which raised, amongst other things, a contravention of the Constitution and the point was taken in that that could not be decided by way of petition and - - -
HIS HONOUR: In the Court of Disputed Returns.
MR ROFE: Yes, by way of petition. The Senate or rather the Houses of Parliament retain under 376 - they can refer questions as to qualifications or vacancy of their members to the Court of Disputed Returns and they say - - -
HIS HONOUR: Well, this is one of the matters that you would want me to refer to a Full Court.
MR ROFE: I do not want to pursue the matter at the moment because your Honour is not really dealing with it but I am saying the genesis of Sykes v Cleary starts off with a decision adverse to our submission. In Sykes v Cleary it then goes by way of case stated and the Full Court was asked to answer those questions. So, the matter did not need to be analysed further.
Unless your Honour wishes me to add anything, those are our submissions in reply.
HIS HONOUR: I will note that with consent of the parties and by agreement between them, the only matter that has been argued to date is the matter raised by paragraph (a) of the further amended summons of 10 March 1999. Senior counsel for the respondent has indicated that he does not press the matter raised in paragraph (b) of the further amended summons. There are other issues which the respondent desires to raise but it is common ground that if it becomes necessary to deal with those issues the appropriate course for me to take, in due course, would be to refer the matter to a Full Court, and I am presently minded to agree with that subject to ensuring that there are no issues of fact that would require to be resolved before those matters went to a Full Court.
I will reserve my decision on the matter raised by paragraph (a) of the further amended summons.
MR McCARTHY: May it please the Court, if I may just bring a small matter to your Honour's attention. My client has brought to my attention that Justice Merkel considered a similar factual situation in two ATSIC petitions which involve the same legislation. They were 1996 petitions of Shaw/James, and in those cases Justice Merkel adopted a similar course to that proposed by my learned friend, Mr Finch, in the sense of amending the petition by reference to the so-called "blue line" expression.
I am unable to assist as to whether or not there was reasons or even transcript of any consequence that might illuminate Justice Merkel's reasons for doing so but I can certainly indicate that the Commission would be happy to explore what was done and provide copies to the Court and to the other parties.
HIS HONOUR: What do you say about that, Mr Rofe and Mr Finch.
MR ROFE: Yes, we are happy to have those.
HIS HONOUR: Well then, it is not of assistance for you to bring that sort of thing to my attention unless I am provided with copies of those judgments. What I would like you to do is let me have copies of any reasons for those decisions to which you refer within two working days of today.
MR M CARTHY: I do not even know if reasons were published at all but I will communicate with the Court - - -
HIS HONOUR: Reasons, if any.
MR McCARTHY: If it please the Court.
HIS HONOUR: Thank you.
MR ROFE: Your Honour, could we have leave, if necessary, when we get those, to make some short written submissions if that is appropriate?
HIS HONOUR: Yes. If any such reasons are provided to the Court, they should also be provided to the parties to these proceedings, and both parties are to have three working days from the date of provision of those reasons to make any written submissions they want to make about them.
MR FINCH: If the Court pleases.
MR ROFE: If the Court pleases.
HIS HONOUR: Very well, I will adjourn.
AT 3.43 PM THE MATTER WAS CONCLUDED
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