Caltabiano v Electoral Commission of Queensland and Anor

The applicant urged that s 364 of the Act gives me power to make the orders he seeks. That section provides that:

'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.'

Broad as that provision may be, it does not confer a jurisdiction on the Court which it does not otherwise have under the Act. Nor does it dispense with the requirements of the Act. It merely requires that the Court should not be unduly formal or technical in the conduct of proceedings under the Act and enables it to depart from the rules of evidence."

[52] Similarly s 134(2) of the Act which provides that the court is not bound by technicalities, legal forms or rules of evidence does not confer a jurisdiction on the court to hear an application which is of no effect under the Act.

[53] In Hansen v Australian Electoral Commission [2000] FCA 606, Kenny J considered the effect on the validity of an application made under Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act (the "ATSIC Act"). Clause 6 provided that no proceeding should be had on an election petition unless the requirements of clauses 3, 3A, 4 and 5 of the Schedule were met. Kenny J held at [11]:

"The Court cannot try a petition addressed to it under clause 2 of schedule 4 of the ATSIC Act unless the requirements of clauses 3, 3A, 4 (pursuant to which the petitioner must deposit $100 with the Court as security for costs) and, where applicable, clause 5 are met: schedule 4, clause 6. The Court has no power to dispense with the need for compliance."

[54] This view is also consistent with the view expressed with reference to similar provisions by the Full Court of the Supreme Court of South Australia in Featherston v Tully [2002] SASC 243 particularly at [54] per Bleby J with whom Mullighan and Williams JJ agreed.

[55] In Smith v Australian Electoral Commission [2008] FCA 953, Bennett J held that a petition filed under the Commonwealth Electoral Act which failed as a matter of form to comply with s 358 of that Act was incapable of amendment as the 40 day period for filing a petition in proper form had passed. Following Rudolphy v Lightfoot, Her Honour held that once the 40 day period had expired amendment to the petition was simply not available. The petition was therefore incurably defective.

[56] That the requirements to file within seven days of the return of the writ with a deposit of $400 are mandatory requirements are found in the terms of the Act. In particular the terms of s 130(1) make it clear that these are mandatory requirements from which the court does not have the capacity to excuse the applicant.

[57] This is in contrast to the decision of the Elections Tribunal in Re: Nicklin Election Petition; Turner v King [1993] 1 Qd R 513 where under the previous Elections Act 1983 there was no similar provision making the presentation of what was then called the "petition" within a certain period of time necessary for the petition to be effective and Ryan J held that in those circumstances the court had the capacity to excuse strict compliance with it. Ryan J in that case did not follow Williams v Mayor of Tenby (1879) 5 CPD 135 or Devan Nair v Yong Kuan Teik [1967] 2 AC 31.

[58] In Williams v Mayor of Tenby the giving of notice of the presentation of the petition and of the nature of the proposed security were held to be conditions precedent to the validity of the electoral petition. The repeal of the Elections Act 1983 and its replacement with the Electoral Act 1991 pursuant to the recommendations of the Electoral and Administrative Review Commission (EARC) which included the insertion of s 130(1) make the persuasive authority of Williams v Mayor of Tenby and of Devan Nair v Yong Kuan Teik apposite to the case.

[59] The reasons why the presentation of the application within a limited time are necessary are set out in detail in a number of cases including Devan Nair v Yong Kuan Teik at 44-45. As I have already observed there is no basis in statutory construction for considering the requirement to pay a deposit any differently. The justification given in Williams v Mayor of Tenby appears to be one of the desirability of certainty if it is sought to impugn the election. There is public interest in the determination of elections happening speedily and with certainty and that the conditions precedent to an election being successfully challenged also being known with certainty.

[60] EARC referred to policy reasons for the requirement to pay a deposit with the application in its Report No. 7 "The Review of the Elections Act 1983-1991 and Related Matters" which led to the introduction of the Electoral Act 1991, at para 13.81 - 13.84. The discussion of the question of indexing the deposit is not relevant but the rest of the discussion provides some insight into the policy reasons for providing that a deposit must be paid into court with the application for the application to have effect.

"13.81 Further issues raised in the Issues Paper were whether the security required to be paid into court with the petition should be indexed, and whether it should be forfeited if, without sufficient cause, the petitioner does not proceed.

13.82 As to indexing the security, no other Australian jurisdiction provides for this effect. Such a provision would be an added administrative burden for the court though it is arguable that such a provision is necessary in order to keep all monetary units mentioned in the Act up to date.

13.83 The forfeiture of the security if the petitioner does not proceed with the action without sufficient reason is something of a deterrent against lodging frivolous claims when there is no intention of pursuing them and which may serve to damage the reputation of persons named in the petition.

13.84 The current security required to be paid into court with the petition ($400) is only slightly higher than that required in other Australian jurisdictions. If the security were to be increased, it might deter persons wishing to bring an action, yet conversely its decrease may not serve as a sufficient deterrent to persons bringing frivolous actions."

[61] The recommendation arising from this found its expression in s 130 of the Act. The policy reason for requiring a deposit to be paid when the application is filed is said to be to deter frivolous actions. Some may regard, with some justification, that this result works inconvenience or worse[14] but that is no reason not to apply the natural meaning of the Act and the policy choice of the legislature.

[62] In the Act, both the time limitation and the deposit limitation are contained in s 130(3) and as I have said there is no reason of statutory interpretation to distinguish between them. As the time limitation is an essential condition or jurisdictional requirement, it follows that the deposit requirement is of similar effect.

[63] As I said when delivering the ex tempore judgment on 6 May 2009:

"It is therefore essential to the validity of an application to dispute an election that the application is filed within seven days after the date on which the writ for the election is returned and that a deposit of $400 or, if any greater amount is prescribed, that amount is paid when the application is filed. If either condition is not complied with, the application is incurably defective."

[64] As the deposit was not paid and the intention of the party paying the money was not conveyed to the member of the Registry staff receiving that money the general rule stated by Cussen J in Beattie v Fine [1925] ArgusLawRp 38; [1925] VLR 363 at 375 that "where money is paid it is to be applied according to the will of the payer, and not of the receiver" has no application. The will of the payer must be made known to the receiver otherwise the receiver is free to apply the payment to any debt. In this case the only debt was the payment of the filing fee and the monies were appropriated by the receiver of the monies to that debt. The rule that applies in that situation was stated by Lord Macnaghten in Cory Brothers & Co v Owners of the Turkish Steamship "Mecca" [1897] AC 286 at 293:

"When a debtor is making a payment to his creditor he may appropriate the money as he pleases, and the creditor must apply it accordingly. If the debtor does not make any appropriation at the time when he makes the payment the right of application devolves on the creditor."

[65] An undisclosed intention in the mind of the person making the payment is not sufficient to support an appropriation: see Leeson v Leeson [1936] 2 KB 156 at 162-163 per Green LJ quoted with approval by the Full Court of the Federal Court in Knysh v Corrales Pty Ltd (1989) 15 ACLR 629 at 633.

[66] As the deposit of $400 required to be paid under s 130(3)(b) of the Act for an application to dispute an election to have effect was not paid, the application filed is not effective under Part 8 of the Electoral Act and must be struck out. I order that the originating application in this proceeding filed on 14 April 2009 ("the originating application") be dismissed on the ground that the applicant has not complied with the requirement of s 130(3)(b) of the Act that the applicant deposit with the court $400 when filing the originating application.

[1] [2009] QSC 109

[2] Nothing turns upon the other sections referred to in s 358(1), ss 356 and 357. The first of these deals with the provision of security for costs and the second with a petition filed by the Australian Electoral Commission.

[3] [1922] HCA 33; (1922) 31 CLR 76 at 100-101.

[4] [1962] HCA 13; (1962) 108 CLR 471 at 488-489.

[5] [1962] HCA 13; (1962) 108 CLR 471 at 488. See also David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 276-277; Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 at 130-131, 156.

[6] [1904] HCA 49; (1904) 1 CLR 314 at 316.

[7] Unreported, Court of Disputed Returns, 28 October 1993.

[8] Unreported, Court of Disputed Returns, 28 October 1993 at 2-3.

[9] [1904] HCA 49; (1904) 1 CLR 314 at 316.

[10] (1978) 52 ALJR 359 at 360; 19 ALR 254 at 255.

[11] [1988] HCA 30; (1988) 167 CLR 133 at 137.

[12] [1993] HCA 36; (1993) 67 ALJR 714 at 716-717; [1993] HCA 36; 115 ALR 645 at 648.

[13] [1993] HCA 50; (1993) 116 ALR 407 at 408-409.

[14] See Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 247.