Bradbery v Hay [2011] NSWSC 623 | Case summary

Judgment 1On 26 March 2011 an election for the Parliament of NSW took place. On 5 April 2011, Ms Noreen Hay was declared elected in the electorate of Wollongong. The candidate with the second highest number of votes was Mr Gordon Bradbery. A margin of 674 votes separated the two. 2On 18 April 2011, purportedly under s 155 of the Parliamentary Electorates and Elections Act 1912 ("the Act"), Mr Bradbery filed in this Court a document entitled: "NOTICE OF DISPUTED ELECTION (OR RETURN) OF A MEMBER OF THE LEGISLATIVE ASSEMBLY" The document named Ms Alison Dunn, Returning Officer for the Seat of Wollongong, as first respondent, and the Electoral Commissioner of NSW as the second respondent. 3Mr Bradbery claimed, pursuant to s 161(1)(vii) of the Act, a declaration that the election was [absolutely] void. 4On 18 May 2011 by leave granted on the same day by Grove AJ, Mr Bradbery filed a document entitled: "AMENDED PETITION" The amendment substituted Ms Hay as the first respondent, and retained the Electoral Commissioner as second respondent. No amendment was made to the relief sought. 5The Amended Petition was fixed for hearing on 20 June 2011. At the outset of the hearing, senior counsel who appeared for Ms Hay made an oral application for its "summary dismissal". That application was based on what were asserted to be irremediable defects in the Amended Petition. After the conclusion of the hearing, I directed senior counsel to file a Notice of Motion specifying the orders sought. When this was provided, the substantive order sought was: "That the amended petition herein be struck out and there be no proceedings thereon on the ground that it does not comply with section 157 of the [Act]." 6The defects asserted were based upon the requirements of various provisions of the Act. It is therefore convenient here to set out the relevant statutory provisions. They are: " s 155 Method of disputing elections or returns The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns, and not otherwise. s 157 Requisites of petition Every petition disputing an election or return in this Part called 'the petition' shall: (a) set out the facts relied on to invalidate the election or return , (b) contain a prayer asking for the relief the petitioner claims to be entitled to, (c) be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat, (d) be attested by two witnesses whose occupations and addresses are stated , (e) be filed with the Prothonotary of the Supreme Court within forty days of the return of the writ . s 159 No proceedings unless requisites complied with No proceedings shall be had on the petition unless the requirements of sections 157 and 158 are complied with. s 161 Powers of Court (1) The Court of Disputed Returns shall sit as an open court and its powers shall include the following: (i) ... (ii) ... (iii) ... (iv) ... (v) To declare that any person who was returned as elected was not duly elected, (vi) ... (vii) To declare any election absolutely void, (viii) To dismiss or uphold the petition in whole or in part, (ix) ... (x) ... (2) The court may exercise all or any of its powers under this section on such grounds as the court in its discretion thinks just and sufficient. (3) Without limiting the powers conferred by this section, it is hereby declared that the power of the court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election . s 164 Voiding election for illegal practices (1) ... (2) ... (3) The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected or declare any election void: (a) on the ground of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority, or (b) on the ground of any illegal practice other than bribery, treating, or corruption or attempted bribery, treating, or corruption, unless the court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. s 166 Real justice to be observed The court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not." I have emphasised those parts of the legislation most relevant to the determination of this matter. 7For the purpose of these provisions, the Supreme Court of NSW is the Court of Disputed Returns and has jurisdiction (exercisable by a single judge) to try the petition: s 156. 8It is now necessary to set out, in full, the Amended Petition: "1. On 26 th March 2011, an election was held (the Election), in the State of New South Wales including the seat of Wollongong. 2. The Petitioner, Gordon Bradbery, was an independent candidate in the Election for the seat of Wollongong. 3. On 5th April 2011, the incumbent member for the seat of Wollongong, Ms Noreen Hay, was declared winner of the poll by a margin of 674 votes over the Petitioner by the Second Respondent. 4. The conduct of the election in the seat of Wollongong was subject to a number of irregularities and/or illegal practices, which were likely to affect the final count of the election in the seat of Wollongong: a) At least 800 fraudulent how to vote cards were found at a polling booth at Farmborough Road in the seat of Wollongong on the day of the election. These cards which were repeatedly handed out to voters and falsely directed preferences to the First Respondent. b) A high incidence of double voting occurred in the election in the seat of Wollongong, particularly as a result of voters in nursing homes lodging postal votes and voting a second time on polling day. The Second Respondent failed to accurately identify and take into account double voting prior to the declaration of the poll. c) A number of posters erected on and before polling day in the seat of Wollongong, some of which displayed Labor party authorisation, instructed voters to Just Vote 1 . The potential for voters to misinterpret these posters as an official directive from electoral authorities was such that the result of the election by may have been affected. The petitioner prays that: (a) The election result declared on 5 th April 2011 date be declared void. (b) The Respondents pay the Petitioner's costs." At the commencement of the hearing counsel for the petitioner abandoned para 4(b). 9The Amended Petition is (apparently) signed by Mr Bradbery, and his signature attested by two witnesses whose addresses are stated. The occupation of neither attesting witness is given. 10Senior counsel who appeared for Ms Hay identified three asserted defects in the Amended Petition. These were stated as:

non-compliance with s 157(a) in that the facts relied upon to invalidate the election were not set out;
non-compliance with s 157(d) in that the occupations of the attesting witnesses were not stated;
non-compliance with s 164(3) in that (so it was asserted) the Amended Petition fails to state, as required, that "the result" was likely to have been affected [by the illegal practices asserted]. 11Senior counsel referred to substantial authority, consistently to the effect that the various provisions of the Act are to be strictly construed, and that non-compliance will result in dismissal of the Amended Petition, and that, at least after 40 days since the return of the writ, no amendment is permissible. Central to those propositions is s 159, which precludes proceedings on a petition unless the requirements of s 157 (and s 158, which is not presently relevant) are met. 12The authorities include, but are not limited to, Cameron v Fysh [1904] HCA 49; 1 CLR 314; In the Matter of a Petition by Helen Therese Berrill and of a poll for the Electoral Division of Boothby (SA) (1978) 52 ALJR 359; Nile v Wood [1988] HCA 30; 167 CLR 133; Yates v Unsworth (NSWSC, 8 July 1988, unreported, per Needham J); Fels v Davies [2009] WASC 138 (per Martin CJ). 13The first asserted defect concerns the statement of facts in the Amended Petition relied upon to invalidate the election as required by s 157(a). This is clearly a matter, if made out, of considerable substance. The question is whether it is correct that the Amended Petition fails (adequately) to state the facts. 14The second defect (the existence of which is unconstestable) may properly be considered to be of little substance, a technical defect. That is the failure of the Amended Petition to include the occupations of the attesting witnesses. It may well appear that a defect of such a technical (and seemingly unimportant) nature in the Amended Petition ought not to have such drastic consequences as to bring about, by guillotine, the demise of the proceedings. However, authority, to which I will return, is against that conclusion. 15The third defect asserted concerns, as I understand the argument, the extent of compliance (or non-compliance) with the requirements of s 164(3). I will return also to this. 16It is convenient to deal with the acknowledged defect in the Amended Petition in the omission of the occupations of the attesting witnesses. In Yates v Unsworth Needham J dealt with a petition which asserted a number of irregularities in a NSW Parliamentary election. Two grounds, in substance, similar to, if not identical with, the first and second the subject of the present application, were taken. His Honour held that the petition did not comply with s 157(a), in that facts were not adequately stated. That was sufficient to bring about the application of s 159. 17However, relevantly for the immediate purposes, Needham J also dealt with the failure to include in the petition a statement of the occupations of the attesting witnesses. His Honour clearly felt uncomfortable in relying upon that circumstance as a ground for dismissal of the petition; he said: "I think also, although one does not like to determine matters on such unimportant grounds, the provisions of s159 of the Act make it necessary to declare that the petition cannot be proceeded upon because of the failure of the witnesses to state their occupations. That being the case, I think the petition should be dismissed with costs." 18Since that decision, the High Court has reconsidered the approach to be taken, as a matter of statutory construction, to the consequences of non-compliance with statutory provisions: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. Whether non-compliance with an express provision renders the exercise of power invalid depends upon an analysis of the purpose of the legislation. The same must apply to the determination whether non-compliance with a requirement that Needham J considered "unimportant" ought to be held to render the Amended Petition invalid, ineffective, or, in the words of s 159, such that "no proceedings [may] be had" upon it. 19That very question was fully considered by Martin CJ in Fels v Davies , in respect of Western Australian legislation parallel to the Act. Although Martin CJ considered the requirement that the occupations of attesting witnesses be stated to be "mundane", he nevertheless concluded that, even on the approach mandated by Project Blue Sky , the failure to state the occupations of the attesting witnesses of itself rendered the petition invalid. Counsel who appeared for Mr Bradbery accepted that the weight of authority supported that view, but submitted that I ought not to follow Martin CJ's decision. 20The obligation of courts of equivalent jurisdiction to accord due respect to the decisions of one another is well established and well known: unless satisfied that Martin CJ was plainly wrong, it is my duty to follow his decision. I am not so satisfied. His Honour's conclusion was reached after an exhaustive review of the relevant authorities, and analysis of the legislation, and of the judgments in Project Blue Sky itself, which relieves me of the need to undertake a similar process. At [49]-[50] his Honour pithily gave four reasons why, even taking the Project Blue Sky approach, the requirements of s 157 are mandatory. He proceeded to support that conclusion by reference to a long line of authority. Far from being satisfied that Martin CJ was "plainly wrong", I am persuaded by his reasoning that his Honour was "plainly right". I am therefore satisfied that, by reason alone of the omission of the occupation of the two attesting witnesses, the Amended Petition is invalid and must be dismissed. 21That means that I can deal briefly with what would otherwise have been the major ground: the asserted failure of the Amended Petition to state the facts relied upon to invalidate the election. What are presumably intended to be the facts are sketchy, at best and stated in two short paragraphs. They are: " At least 800 fraudulent how to vote cards were found at a polling booth ... These cards which were repeatedly handed out to voters and falsely directed preferences to [Ms Hay]. A number of posters erected on and before polling day in the seat of Wollong ong, some of which displayed Labor party authorisation, instructed voters to Just Vote 1 . The potential for voters to misinterpret these posters as an official directive from electoral authorities was such that the result of the election by (sic) may have been affected." 22The first is entirely inadequate. That how to vote cards were "fraudulent" is a conclusion - a conclusion that contains elements of law, as well, possibly, as of fact. 23While s 157 does not prescribe the level of specificity with which facts are required to be stated, in my opinion (especially when such a serious allegation is to be made) it requires, at the least, specification of the factual matters upon which it is to be asserted that the how to vote cards were "fraudulent", and the nature of the fraud alleged, as well as the facts, so far as they are known and can be proved, upon which it is alleged that they were "repeatedly handed out to voters", and on what basis it is said that they "falsely directed preferences to" Ms Hay. 24One way of testing the adequacy of the facts stated is to ask whether, if all those stated in a petition are proved, they would warrant the exercise of one or more of the powers of the Court stated in s 161. (From affidavit evidence filed in the proceedings, it appears that the allegation is that the how to vote cards were created to give the appearance of being campaign material of the Liberal party, directing preferences of Liberal voters to Ms Hay, a Labor party candidate. But that does not clearly emerge from the Amended Petition, and the affidavit evidence cannot be taken into account in the consideration of the adequacy of the material in the Amended Petition to meet the requirements of s 157.) 25I am satisfied that this ground (in relation to the how to vote cards) also is made out and requires (somewhat more substantially) the dismissal of the Amended Petition. 26Exactly the same criticism applies to the allegation concerning the posters. It seems that, essential to this allegation, is the assertion that certain posters had potential to mislead voters into believing that they were "an official directive from electoral authorities". Just why that should be so is completely unclear from the Amended Petition. Indeed, the assertion sits uncomfortably with that which immediately precedes it, that some of the posters displayed Labor party authorisations. 27This ground also is made out. 28No amendment, at least at a point after 40 days from the date of the declaration of the poll (which has long since passed) is possible: s 157(e); Nile v Wood ; Yates v Unsworth ; Sykes v Australian Electoral Commission [1993] HCA 36; 115 ALR 645; 67 ALJR 714; Re Ceminchuk (HCA, 28 October 1993, unreported, Court of Disputed Returns); Rudolphy v Lightfoot [1999] HCA 61; 197 CLR 500; Fels v Davies . 29A final criticism made of the Amended Petition (which criticism, I confess, I found somewhat difficult to follow) calls for only passing mention. This criticism concerns the assertion that those parts of para 4, that claimed that the irregularities or illegal practices "were likely to affect the final count of the election" failed to accord with the requirements of s 164, which precludes the court declaring an election invalid unless satisfied that the "result of the election was likely to be affected". So far as I could make out, the argument was that an assertion that "the final count" was likely to be affected was somehow different from an assertion that "the result of the election" was likely to have been affected. The distinction is lost on me. 30In any event, s 164 does not purport to specify requirements of a petition, but imposes a barrier for the making of an order of the kind sought. It is not directed to what must be contained in the petition, but to the conclusion the court must reach before taking the very serious step of declaring an election invalid. 31The other matters are such that the only order possible is that the Amended Petition be dismissed. I so order.

Bradbery v Hay

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