Mitchell v Bailey & Anor [2008] HCATrans 93 (21 February 2008)

Last Updated: 25 February 2008

[2008] HCATrans 093

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Melbourne No M10 of 2008

B e t w e e n -

ROB MITCHELL

Petitioner

and

FRAN BAILEY

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 FEBRUARY 2008, AT 9.31 AM

Copyright in the High Court of Australia

MR P.J. HANKS, QC: Your Honour, I appear with MR A.D. LANG for the petitioner. (instructed by Holding Redlich)

MR R.A. BRETT, QC: If it please the Court, I appear with MR D.W. BENNETT for the first respondent. (instructed by Gadens)

MR P.D. SANTAMARIA, QC: If your Honour pleases, I appear with MR P.R.D. GRAY for the second respondent. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, Mr Hanks.

MR HANKS: Your Honour, it is our summons for directions. As I think your Honour will know, we filed the summons for directions I think on 13 February together with our outline of submissions in support of the orders that we seek. Last night we received submissions from the second respondent.

HER HONOUR: Yes, I have read those.

MR HANKS: Those submissions raise a difficult question about how the Court of Disputed Returns might conduct this inquiry. The submissions suggest that the Court might have access to the material which lies at the core of the petition, namely, the ballot papers that were reserved for the decision of the Australian Electoral Officer, but that the parties will be denied any access to those ballot papers.

It will not surprise your Honour that the petitioner and, indeed, I think I might be able to speak for the first respondent, are concerned that the petition could be, or the inquiry could be conducted in that way with the Court receiving no assistance from the petitioner or the first respondent on the issues raised by the petition, no practical assistance, and with the parties being denied access to material that is central to the petition, but that is the position that the second respondent has taken.

The second respondent has also raised in what we think a somewhat oblique way some other possibility about the conduct of the election, but it has not raised that in a way, as we understand it, that invites the Court to do anything about it. No petition has been filed by the second respondent. Now, if I could come to how we might move forward.

HER HONOUR: Yes. Then, as I understand it, the second respondent has no objection to the first two orders sought in the summons for directions.

MR HANKS: Yes, subject to one - - -

HER HONOUR: But does object to order 3, as I apprehend it?

MR HANKS: That is right.

HER HONOUR: And wants the matter to stay in this Court.

MR HANKS: Well, at least in the short term or in the immediate future and we are not resisting that point because we want to have an opportunity to respond to the written submissions that were filed late yesterday on behalf of the second respondent and I understand that my friend, Mr Brett, wants the same opportunity. We have discussed how we might progress that and at present we are minded to ask the Court to direct that there be a timetable for the filing by the petitioner and the first respondent of submissions answering the submission filed on behalf of the second respondent, the Commission.

We would ask, if your Honour is inclined to make such a direction – and this is, I am afraid, a problem of competing commitments and I hesitate to raise that in the High Court but both Mr Brett and I need a little time to work on this. We will ask your Honour to direct that we file our submissions in answer to the second respondent on 14 March. I have discussed this also with Mr Santamaria and he is agreeable to that course and I believe that he would ask your Honour to direct that the Commission have an opportunity to file a submission in response seven days later. That would be 21 March. Your Honour may then want to bring the matter back. I think Mr Santamaria wants to observe Good Friday, so perhaps it should be the 20th.

HER HONOUR: Is the purpose of approaching the matter that way to postpone the debate about where this matter should be heard, partly?

MR HANKS: We understand that the Commission wants to raise in this Court what it regards as an important question of principle. If the Commission wishes to do that, we do not want to stand in its way. We have not put forward anything to the Court which, from our point of view, would require the matter not to be remitted. We understand that the preferred position would be to remit. It is almost the presumptive position, as we understand it, to remit a petition where the petition particularly seems to relate to factual dispute which may involve the scrutiny of 640-odd ballot papers that the Court might prefer to remit it.

HER HONOUR: Yes. My recollection is from time to time judges are asked to undertake an examination of disputed ballot papers.

MR HANKS: We had thought that this was a matter or a petition that could not properly, as far as we were concerned, be retained here. We could not urge the Court to retain it. I understand the second respondent has a different position on that. Perhaps they ought to be heard on that.

HER HONOUR: Yes, I will have to hear from Mr Santamaria in relation to that. Mr Brett, I take it you are ad idem with Mr Hanks?

MR BRETT: Yes, your Honour, with just a couple of qualifications. First of all, as regards the second order in the summons, the summons currently seeks the production of the relevant ballot papers to the Federal Court Registry on assumption that the matter will have been referred. I think in Mr Santamaria’s submissions he says that should be to the Melbourne Registry of the High Court and we would, on that basis, agree with orders 1 and 2.

HER HONOUR: Yes.

MR BRETT: As for dealing with the point about access to the ballot papers, yes, we agree with what Mr Hanks has said and we would submit it is a very important point and it will be an important point, not only for this case, but, one would imagine, for a lot of cases to follow. For that reason we would submit that, at least until that point has been determined, the matter should stay in this Court.

As to whether it is ultimately referred to the Federal Court, we do not wish to put a position firmly at this point. We certainly are not saying, yes, it should be referred. It is a matter which I think we will need to give further consideration to, perhaps after we have seen the ballot papers if we eventually get to see them.

HER HONOUR: Yes, thank you. Yes, Mr Santamaria.

MR SANTAMARIA: Your Honour, may I address the comments made by my learned friend, Mr Hanks, in the order in which he addressed the Court. Firstly, so that it may not be misunderstood in other parts, this is not a situation where the Commission itself is denying access to ballot papers. By virtue of the submission which we filed in Court, the Commission points out to the Court that there appears to be a hurdle which must be addressed before the Court should make a direction in the terms that were sought by our learned friend as the petitioner and the submission squarely addressed that section of the Act, section 360(1)(iii), because it did not appear to be squarely addressed in our friend’s submission. So we thought it proper that the attention of the Court be directed to the provision squarely.

Secondly, your Honour, in terms of the matter of dual votes, we have raised the matter with the Court and with the parties, not intending to do so in any oblique way, but merely to point out that when we file our affidavit reference will be made to the fact that there are, to the knowledge of the Commission, some eight dual votes. The existence of dual votes may be something which the Court, whether it be this Court or the Federal Court in due course, may need to take into account in the exercise of the discretion under Part XXII.

As to the directions sought, we would adopt what our learned friend, Mr Brett, says, that it is difficult to foresee in advance, without the determination of the present question as to access and inspection of papers being determined, where in fact the more appropriate forum would be. Of course, if the exercise entails, as we fear there may be this possibility, a court or the Court actually looking at each of the 643 ballot papers, there is therefore a fact-finding exercise which might ordinarily be referred to the Federal Court if there is such a convention to be observed, but it is really too early to say.

What we do say is that if it be the case that this section does constitute a hurdle, however inconvenient to the parties, to their inspection of the ballot papers, then it may be the case that other issues of principle arise as to how a Court of Disputed Returns approaches the determination of the question where the parties are not permitted access to the actual ballot papers. So it is for that reason, we submit, that it is premature at this stage to form a view, with respect, as to the appropriate court to hear the matter.

For the present, we perceive that there may be issues that will justify this Court retaining the matter in case some guidance is laid down as to what is to happen in the future in circumstances where there are challenges to the formality of votes after reference to the Australian Electoral Commissioner pursuant to the relevant provision of the Act.

So for those reasons, your Honour, we would support the directions sought this morning by our learned friend, Mr Hanks, and otherwise adopt the submissions as to a forum submitted by our learned friends for the first respondent.

HER HONOUR: Thank you. Anything further, Mr Hanks?

MR HANKS: Nothing further from here, your Honour.

HER HONOUR: Mr Brett?

MR BRETT: No, your Honour.

HER HONOUR: I am not persuaded that the matter is not a suitable matter for remission to the Federal Court, therefore I propose to make an order in those terms.

It seems to me, having heard from all the parties, the appropriate orders would be:

1. Within 14 days of the date of this order the second respondent file and serve an affidavit deposing to the facts alleged in paragraphs 1 to 6 and 9 to 11 of the statement of facts contained in the petitioner’s election petition.

2. Within 14 days of the date of this order the second respondent produce to the Victoria Registry of the Federal Court of Australia all those ballot papers at the election of the Member of the House of Representatives for the electoral division of McEwan held on 24 November 2007 that were reserved for the decision of the Australian Electoral Officer for Victoria in accordance with section 281 of the Commonwealth Electoral Act 1918 (Cth).

3. The petitioner and the first respondent file any submissions in answer to the second respondent on or before 14 March 2008.

4. The second respondent file and serve any reply to the submissions of the petitioner and the first respondent on or before 20 March 2008.

5. The petition be referred for trial to the Victoria Registry of the Federal Court of Australia.

6. Costs reserved.

Thank you.

AT 9.46 AM THE MATTER WAS CONCLUDED