Kelly v Campbell & Ors S12/2002 [2002] HCATrans 245 (14 May 2002)

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Sydney No S12 of 2002

B e t w e e n -

NED KELLY

Petitioner

and

GEORGE CAMPBELL

First Respondent

HELEN COONAN

Second Respondent

KERRY NETTLE

Third Respondent

MARISE PAYNE

Fourth Respondent

SANDY MACDONALD

Fifth Respondent

URSULA STEPHENS

Sixth Respondent

Election petion

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 MAY 2002, AT 10.36 AM

Copyright in the High Court of Australia

__________________

MR N. KELLY appeared in person.

MS R.M. HENDERSON: If the Court pleases, I appear for the Australian Electoral Commission, which will today move the Court to join these proceedings as a party. (instructed by the Australian Government Solicitor)

HIS HONOUR: You seek leave to appear in the matter - I am sorry, you seek leave to be joined in the proceedings.

MS HENDERSON: Yes, your Honour. We have filed a notice of motion on 10 May 2002 seeking such an order, with a supporting affidavit by Mr Heard. I understand that would have reached your Honour.

HIS HONOUR: Yes, I have read that. Yes. Well - - -

MS HENDERSON: I beg your pardon for interrupting, your Honour. Mr Heard draws attention to section 356 of the - - -

HIS HONOUR: Section 359, is that what you rely on?

MS HENDERSON: If your Honour pleases.

HIS HONOUR: Yes. Well, Mr Kelly, why should not the applicant be given leave? Strictly speaking, they should have been a party in the first place, given the fact that allegations are made against them.

MR KELLY: Well, none of the respondents have entered an appearance.

HIS HONOUR: Well, that is beside the point. The fact that the respondents have not entered an appearance does not entitle you to any orders in the first place. I mean, this is a matter of public interest. But the suit is probably - or the petition may well be bad for want of parties in the first place because a party should be - who is affected by an order ought to be a party. There are a number of cases where parties come along to courts later and have them quashed - have orders of courts quashed by writs of certiorari simply because they were denied natural justice in not being heard in respect of an issue which affects them. Any person who is likely to be affected by the Court's order in some way - and allegations are made against the AEC - ought to be made a party.

MR KELLY: Well, I understood - I mean, at the end of the day, that what the Court of Disputed Returns is about was whether or not the people purportedly elected have been correctly elected, which is why the six respondents who were elected - - -

HIS HONOUR: Well, that is true. That is true, but you make allegations against the conduct of the employees of the applicant and that being so, they are entitled to be heard.

MR KELLY: Yes. I would not have objected to joining in the case that there was some respondent seeking to defend their interests, but as there was none - and we have a matter in the Federal Court so far as the Australian Electoral Commission is concerned. It just seemed to me like it is sort of difficult to see how the Australian Electoral Commission can assist if none of the candidates are interested in defending the case.

HIS HONOUR: Well, they might be able to assist the Court. I have to tell you that I have studied your petition and I appreciate what you say about you accept that is defective, but I find it virtually unintelligible, I am afraid, at the moment and you may have a point or you may not have a point, but it certainly needs to be clarified to make some legal sense of it and the Commission may be able to throw some light on the matter. But have you got anything further to say about joining these - - -

MR KELLY: I have said my piece. I mean, obviously I am in the hands of the Court.

HIS HONOUR: Yes, yes.

MR KELLY: It is a discretion of the Court and I am not going to.....with that.

HIS HONOUR: Now, the next matter, Mr Kelly, is that section 363A says:

The Court of Disputed Returns must make its decision on a petition as quickly as is reasonable in the circumstances.

Now, it is now six months since the election and there has been little progress in this matter. As you are well aware, I am sure, from orders that have been made in other proceedings, this Court just does not have the resources to be hearing these petitions. The Act was amended to allow matters to be remitted to the Federal Court. Why should not this matter be remitted to the Federal Court?

MR KELLY: Well, the first reason - - -

HIS HONOUR: The Federal Court has already got a matter. It has been remitted to it, I think, by Justice Gummow in a matter of Gunter v Hollingworth. I do not know whether it raises the same issues as you seek to raise but - - -

MR KELLY: I have no knowledge of it.

HIS HONOUR: No. I think the reality is going to be that, given the burden of this Court's work, the Federal Court is going to become effectively the Court of Disputed Returns. I think that is the reality of the matter. We have got seven Justices. They have got 40-odd and they can hear them anywhere in the country.

MR KELLY: Yes. My submission, your Honour, would be that section 30 of the Judiciary Act 1918 makes the matters that I am raising - at least the substantial matters that I am raising the exclusive jurisdiction of the High Court.

HIS HONOUR: But this has nothing to do with the High Court. This is the Court of Disputed Returns and, as you probably heard - I do not know whether you were present in Court - I closed the High Court of Australia and opened the Court of Disputed Returns. So I am sitting now as a Judge of the Court of - - -

MR KELLY: Yes. No, I appreciate that.

HIS HONOUR: Yes.

MR KELLY: But it is still in the jurisdictional capacity of the High Court, if I understand how it works.

HIS HONOUR: Yes.

MR KELLY: I mean, I am not sure the Federal Court - I know the Federal Court can exercise jurisdiction, but in constitutional matters my understanding was it was the High Court.

HIS HONOUR: No.

MR KELLY: I put the matter actually to Justice - - -

HIS HONOUR: We have remitted many matters to the Federal Court. One of the reasons is so that we can have judgments. For instance, we remitted to the Federal Court the important cases concerning the Timor Gulf and the Federal Court gave judgments and the court was assisted there. Wherever evidence is likely to be involved in a matter, then it is important that the Federal Court is the trial court to hear it, otherwise a Judge of this Court has got to hear the factual matters.

Well, I hear what you say, but I think myself that the proper order is that the matter ought to be referred - the petition ought to be referred to trial in the Federal Court. So that is the order I propose to make. But, Mr Kelly, can I ask you to carefully consider your position in this case in terms of finance and what is likely to happen. You have already, I assume, had to pay $500 in this Court to file your petition. You could be up for - if you lose the case, you could be up for many thousands of dollars in costs. It is a dangerous course financially that you are proposing.

So, please, carefully consider this before you continue with this litigation. As a reading of the petition, it does not seem to me at the moment that it has great prospects of success. You may have a point there, but if it is, it is concealed from me, at least, and you will be met with all the resources of the Commonwealth and a matter that can last many days and costs may run into tens of thousands of dollars. I notice that you assert to borrow money to get some legal advice. It is a matter for you entirely whether you want to pursue the litigation, but I urge you to carefully consider your position and take some advice about the matter.

You are in a difficult area of law involving the Constitution and electoral law and it would be a tragedy if you were to lose the application and then find yourself with a bill for many, many thousands of dollars, and at the end of the day you have to show that it would have affected the results on some arguments. On other arguments, you may be able to succeed on without doing that, but some of your arguments may involve issues concerning whether or not the result would have been affected by what you have described as illegal practices and so on.

Anyway, having said that, I am sure you will take it on board and give consideration to it and do what you think is right in your own interests. So is there anything - thank you, Mr Kelly. Is there anything that you want to say?

MS HENDERSON: No, your Honour. There are no further orders sought.

HIS HONOUR: Before making the orders I propose to make, I should note that the Deputy Registrar has certified that she has been informed by an officer of the Australian Government Solicitor that the first to sixth respondents in this matter, Senator George Campbell, Senator Helen Coonan, Senator Elect Kerry Nettle, Senator Marise Payne, Senator Sandy MacDonald and Senator Elect Ursula Stephens, have been contacted and have given permission to convey the following in each case: (a) the respondent is aware of Mr Kelly's petition to the Court of Disputed Returns; (b) the respondent has elected not to take an active role in the matter; and (c) the respondent understands that the Electoral Commission has sought to exercise the right of appearance conferred by section 359 of the Commonwealth Electoral Act to argue in opposition to the orders sought in the petition.

I will make the order sought in the application of the Australian Electoral Commission that it be given leave to enter an appearance in the proceedings and be represented and heard thereon. Having regard to the terms of the Act, it is deemed to be a party respondent to the petition.

I also order:

1. That the petition be referred for trial in the Federal Court of Australia New South Wales District Registry.

2. That the proceeding be continued in the Federal Court as if steps already taken in this Court had been taken in the Federal Court.

3. The Registrar of this Court provide to the proper officer of the Federal Court photocopies of all documents filed in this Court and the deposit which has been lodged pursuant to section 356 of the Commonwealth Electoral Act 1918 .

4. The costs of proceedings in this Court to date be costs in the Federal Court.

5. The costs referred to in this Court, including the costs of this order, be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable in the Federal Court and in the discretion of the Federal Court.

Ms Henderson, I do not think there is any need to certify for counsel, is there, because we are in open court in the Court of Disputed Returns? We are not sitting in chambers.

MS HENDERSON: I think that is so, your Honour, with respect.

HIS HONOUR: Yes. Any further order that you seek, Ms Henderson?

MS HENDERSON: No, your Honour, nothing further.

HIS HONOUR: Mr Kelly, any further order you seek?

MR KELLY: No, I think that is - - -

HIS HONOUR: Yes, very well. Adjourn the Court of Disputed Returns.

AT 10.50 AM THE MATTER WAS CONCLUDED