Bd [HIGH COURT OF AUSTRALIA.) ICHARD ARMSTRONG CROUCH . ._ PrrrrionEr; AND LFRED THOMAS OZANNE . i e . RESPONDENT.

CORIO ELECTION PETITION. COURT OF DISPUTED RETURNS.

Parliamentary election - Liability of candidate for acts of his agent - Canvassing H.C. or A. "at entrance to polling booth - Scrutineers - A voiding election - Evidence that 1910. result of election was affected - Commonwealth Electoral Act 1902-1909 (No. 19 ~ of 1902 - No. 19 of 1909), secs. 1824, 198a. MELBOURNE,

Sept. 15, 16, Where a candidate at an election is sought to be made responsible for illegal ©?" yy" 1% acts done during the election by his agent, it must be proved that the candidate

either countenanced or directed the doing of those acts. O'Connor J.

Semble, that canvassing for votes on or at the top of the steps leading to a polling booth, is within the prohibition in sec. 1824 of the Commonicealth Hlectoral Act 1902-1909 against canvassing for votes at the entrance to a polling booth, but canvassing between the gate of the land on which the polling booth is and the building itself is not within that prohibition.

The presiding officers at certain booths wrongly prevented serut the defeated candidate from entering the polling booths,

Held, that the mere fact that at those booths the majority of votes for the successful candidate was larger than his total majority, was not cient ground for avoiding the election in the absence of reasonable gro concluding that the result of the election was affected by the exclusion o scrutineers. 3

Hearn of election petition. At the election held on 13th April 1910 for the Divi Corio, in the State of Victoria, for the House of Representat there were two candidates, Richard Armstrong Crouch Alfred Thomas Ozanne, of whom Ozanne was on 22nd 1910 declared by the returning officer to be duly elected. A petition was subsequently filed by Crouch seeking a di lar- ation that Ozanne was not duly elected and a declaration Crouch was duly elected, or alternatively that the electi declared absolutely void. The matters upon which the election was challenged we follow : - 1, That presiding officers improperly prevented serutii from performing their duties. 3 2. That contrary to secs. 128 and 147 of the Commo Electoral Act 1902-1909 presiding officers permitted voting such election to be other than by ballot and did not comply the requirements of those sections. 3, That the presiding officers permitted voters to be imprope influenced inside and outside the polling booths. 4. That persons who improperly influenced voters were by presiding officers in the polling booths. 5. That presiding officers improperly permitted persons ot than scrutineers to perform scrutineers' duties. 6. That at such election several persons who were qualifi vote thereat were not permitted to do so. 7. That voters were so unduly delayed by the presiding that they were unable to vote.

8. That certain persons were allowed to vote twice at election.

9. That there were generally such undue influence, i

regularities and illegalities tending to benefit Ozanne H. C. or A.

lection as were sufficient to avoid such election. ee petition was heard by O'Connor J. Cee tor e facts are sufficiently stated in the judgment hereunder. eee

jonnor J. The grounds upon which this petition is based themselves naturally by a very sharp line of division ro classes. The first is the ground of bribery. If I were bribery proved, I would have no option than to declare lection void and, necessarily, the sitting candidate unseated. ht be that the act of bribery was an attempt only dand that no single vote was affected by it, yet if I ind that bribery had been established, I should be obliged lare the election void.

other class of complaints which forms the'ground of all the legations in the petition come within sec. 198a (3). (His read it). In regard therefore to all the irregularities - I a general word that will include all the charges - whether yal practices within the meaning of sec. 198 or not, it is sufficient to show that they took place, but it also must be m that their taking place was likely to have affected the ult of the election, and that, because of their having taken , it is just that the candidate should be declared not to be elected. Bearing in mind the law with regard to these different classes of grounds, I turn to a consideration of the

ww in regard to the charge of bribery, the allegation in ice is that there was an attempt to bribe an elector named Connors by promising her a silk dress if she voted for , and it is alleged that the promise was made to Maggie nors by Ozanne himself. There are two witnesses only who ort it. The first is a Mrs. Zagabria. She describes that wo or three days before the election Ozanne and his can- r or agent, Dorgan, came to her house at Portarlington, and

H.C. or A. after having asked her to vote for him at the election - the con

versation on that point is immaterial - he and Dorgan were goi away when Miss Connors met them at the gate. I shall from the evidence what took place according to Mrs. Zagabria. "Mr. Dorgan introduced Maggie Connors to Mr. Ozanne, Mr. Ozanne said 'Miss Connors, if you vote for me, when I in I will give you a new silk dress. 'There was no more sai my presence by either Mr. Dorgan or Mr. Ozanne. Ma; Connors laughed and said 'You're the one, or something lik that. (Lo His Honor). He did not promise me a silk dr Mr. Ozanne passed no remark to me. (To Mr. McArthur). that I heard was about the silk dress. They went away togetl (To His Honor). I really thought he meant it at the time. thought he was serious." Maggie Connors is called and she admits there was sucl conversation, but she says it did not take place in Mrs. Zagabi a presence at all. She gives very much the same account of i except, she says, it was understood by her, and intended by Ozanne, as a joke. When one considers the circumstances un which this supposed bribe was offered it seems to me to be al shocking to common sense to suppose anyone could take incident seriously. I have no doubt whatever it was merely: joke, and was understood by both parties to be so, and it is to be regretted that a serious charge of bribery should be brou, before this Court to be solemnly tried upon such an exceeding] flimsy ground. I pass now to the other charges, and in regard to all of them must be satisfied of two things before I can find them estab- lished. I must be satisfied in the first place that the illegal tice or irregularity took place, and in the next place I must b satisfied that each irregularity complained of was, or the whole of them together were, such as to be likely to affect the result of th election. The first important fact is that in this election th respondent Ozanne had a majority of 1,645. It must be sho therefore that these irregularities or illegal practices were lik to affect that majority. There is no doubt that in some cases irregularities were proved ; in some cases the proof failed. I not think it necessary to go into the details. Assuming ev

"assuming them to have affected all the votes which the evidence tes were affected, it could not possibly have affected the elec- ion to the extent of more than 20 votes. If I come to that conclu- ion, it becomes obviously unnecessary to further inquire whether x fact the irregularities took place. I may assume that all the i irregularities were established. If I determine that all of them gether did not affect the election to the extent of more than 20 votes, it is impossible that I can find in the petitioner's favour. The irregularities may be generally classed under several headings, and I propose to refer to them in that way, because I do not think any good purpose can be served by dealing with them otherwise than generally.

It is charged that at the Bellarine booth there was insufficient accommodation for the electors - that in a small room the electors were so crowded together that it was impossible for them to vote, the result being that persons went away without voting. The room does seem to have been very small, but the petitioner has entirely failed to satisfy me that there was any deprivation of the right of any voter on account of those conditions. It is true that some few persons apparently went away at one time, but there is nothing to show that they did not come back again to vote. There is nothing to show their votes were not recorded, and, when one looks at the proportion of votes recorded at that particular place, it certainly amounts to a very fair average of the votes given throughout the electorate generally - that is to say, taking the proportion between the number of electors on the roll and the number of votes recorded. I find that at Bellarine there were 1,487 electors enrolled and there were 1,003 voting papers issued. Making allowances for any few irregularities or informalities that may have taken place in the marking of the voting papers, the proportion of votes may be taken generally to be indicated by the ballot papers issued. When I find that out of 1,487 voters on the roll 1,003 voted, it certainly does not indicate to me that there could have been any substantial number of persons prevented from voting by reason of the con- dition of the polling booth. It was a necessary part of the petitioner's case to show that this condition of the polling booth

egularity charged to have been proved to the hilt, and H.C. or A.

nothing whatever to indicate to me that the result of the vo at that particular place was in any way substantially influer by the condition of things which is complained of.

There is another objection of the same kind, that is, that some of the polling booths the arrangements of the box in wl the voter marked his vote were such as not to allow the voter make his marking without being liable to be overlooked « observed - in other words, a violation of sec. 128. In my opini the apparatus which has been shown in Court was sufficie to sereen the voters from observation while they were mar! their ballot papers. Certainly the provision is rather sli the boxes might be higher, but, unless the person marking hi vote deliberately stands up and looks over the partition, I do D think it is possible to see what another elector is doing wl marking his paper. However that may be, there is no eviden to show that any vote was affected by that irregularity. TT! e seems to be a difference of opinion between Mr. Crouch and M Williams as to what the construction of these booths was. do not attribute anything else than some mistake to Crouch in supposing there was some kind of a desk or slopi board fixed up inside these places which made it more likel than not that an elector voting would look over and see what h neighbour was doing on the other side of the partition, but 0 a that I take Mr. Williams' statement to be true. He was tl responsible officer; it was his duty to see what the constru tion of these boxes was, and he swears very positively to tl condition of them. There is no other evidence which seems me to be worth consideration which contradicts him. J Crouch's evidence, given really from what must have been nm sarily a more or less casual observation, I do not think e weigh against it. If, however, any irregularity of that kind were shown there is no evidence that it could have affected the result of the election.

There is another set of grounds which refer to what I m: call irregular canvassing at different polling places. As r those grounds I am assuming, although there is no evidence of

Mr. Ozanne to do so, but it must not be taken for granted that, a candidate has appoifited a canvasser he is liable for act the canvasser may do in the course of the election. must be to support such a charge some evidence that the

s complained of. I am assuming for the purposes of this at Mr. Ozanne authorized or approved of the irregularities itted. The irregularities consisted of the canvasser following ) the elector, in some cases right to the steps of the hall door - the door of the polling place itself. In some cases the assing took place in the space between the street gate and e building. The only prohibition against canvassing is con- ned in sec. 1824. (His Honour read the section).

There are two cases in which it is alleged that illegal canvassmg 1k place in the polling booth - that in which Mrs. Zagabria was id to have been canvassed and that of the three Martinis. I me in the petitioner's favour that those cases were established. amounts to three votes altogether, and if one takes all the of the cases established with regard to the same class of irregularity - canvassing in an improper place, at the entrance to, ithin, a polling booth - the total number of votes affected would not be more than a dozen at the outside. It is not necessary r me to express any opinion as to whether what took place was illegal or not, but, as the question is raised, perhaps it may be as ll for me to say that "entrance toa polling booth" must be interpreted in a reasonable way. If a canvasser chooses to go ht up to the steps, and on the steps, of the building in which he polling is going on, to pursue his canvass, it seems to me he uns a very great risk of being prosecuted for committing the offence charged, the penalty for which is £25, besides running the risk of being guilty of an irregularity which may upset the election. As regards the canvassing which took place in the _ passage between the gate and the building, it does not seem to me that it comes within the prohibition.

: I turn now to the other class of irregularity or illegality or illegal practice, however it may be described, and it is the most important of the charges brought before the Court on this

canvassers, if hee did act illegally, were authorized by H. ©. or A.

H.C. or A. petition. The charge is that the presiding officer at three b

refused to permit the serutineers of the petitioner to go ina out of the booths in the discharge of their ordinary duti serutineers. It is well known that the duty of a scrutineer look after the interests of the candidate both inside and ou the building. It appears that at three of the polling boot Barwon, Geelong and Geelong West - the presiding officers to it into their heads to prevent scrutineers from going in an of the building. They took the view that a scrutineer must eit remain outside the building altogether or inside the buik altogether, that if he elected to stay inside the building he stay there the whole time, and if he once went outsid building he must stay out. I need hardly say that such act on the part of these officers was an absolutely unwarran' interference with the discharge of the duties of the scruti Apparently the presiding officers acted upon a misinterpretat of No. 7 of the instructions issued by the Electoral Departm on 15th January 1910. The last sentence of that partie instruction is somewhat ambiguously worded "The presid officer will see that scrutineers do not communicate with pei s¢ other than officers inside the polling booth." The meai of that to any person who understands scrutineers' duti obviously that the scrutineer inside the polling booth will be allowed to communicate with persons other than offi ia But unfortunately the words used are open to the reading # the presiding officer will see that the scrutineers do not municate with persons other than the officials inside the p booth. No person who understood the duties of a scrutineer read these rules with the most reasonable allowance of comn sense could make any mistake about the meaning of them, | there was undoubtedly an opening for mistake to persons in the habit of interpreting documents and disposed to tal narrow view. I think what has happened at this elect ought to be a warning to those responsible for the issue electoral rules to be exceedingly careful to see that they clearly worded and to remember that they are intended to read, not only by persons who are in the habit of interpret documents and who know all the duties of presiding officers

to interpreting documents, who may not know the f a serutineer, and who may have no one at hand m they can consult in a difficulty. I say this in justice she presiding officers themselves. If their conduct had been tely wanton they would be subject to very severe censure. zy made a mistake in interpreting the rule because the rule f is unfortunately not as clear as it might be. However may be, at those three polling places the presiding officers up that position, and they practically put the scrutineers of petitioner in the position of having to elect whether they give up the discharge of their duties outside altogether nd remain inside, or whether they would elect to go outside and lect their duties inside the polling booth. Of that there is no bt, and I come to the conclusion that two scrutineers at least each of these places were prevented from exercising their ies in looking after Mr. Crouch's interests during the day in he polling booth, and also were prevented from taking the part h they ought to be allowed to take in the scrutiny. There 0 doubt that this interference with his scrutineers must have cted Mr. Crouch's interests. To what extent? There is no idence before me to indicate to what extent, if at all, the result of he election was affected by the irregularity, failure or error in

• the discharge of their duty by the returning officers. There wre eighteen polling places and out of those it was only in the three places complained of that apparently this irregularity took place. Apparently Mr. Ozanne's scrutineers elected to remain but unfortunately at these three places scrutineers of the etitioner elected to remain out. The evidence of Mr. Williams 'is that as soon as he heard of the difficulty - he seems to have heard of it somewhere about ten o'clock in the morning - he set about remedying it by giving instructions to the presiding officers that they had no right whatever to prevent the mere ingress and egress of scrutineers. There is no evidence - one would not expect it in the petitioner's case - that that was communicated to both sides. All we know is that Mr. Crouch did not hear about it. Mr. Crouch says he endeavoured to find Mr. Williams, but was not able to see him. Apparently that was not com-

rs, but also by persons in remote country places who are H- C. oF A

in this election, because they appear to have been what w known as labour strongholds. Mr. Crouch says he hoped to hold his own there, and the actual result of the election that the majority against him in those three polling booths 1,769. Is there any evidence to indicate to me that majority would have been less by ten votes if this did not ta place? It would be almost impossible to prove that any were lost thereby, and it is not reasonable to expect evidence, but I cannot act upon the mere conjecture that t result of the election would have been different if the serutine had not been interfered with. If, for instance, it were shor that there was a great deal of irregularity at these particul booths or that there were a number of informal votes or pe voted there who ought not to have voted at all, there might some grounds for supposing that the absence of scrutineers hi affected the result of the election. But there is nothing pi before me which goes beyond furnishing means for conjectut The question for my determination is whether I would justified in disturbing the choice of the electors by so large a majority on the mere supposition or conjecture that, if these three polling places Mr. Crouch had had the full benefit the presence of his scrutineers, the result would have been so. different as to have affected the result of the election. I am obliged to come to the conclusion that there is no evidence beft me upon which I can arrive at that finding, and therefor although it is much to be regretted that this unfortunate mistal was made by these presiding officers, I cannot see any groun upon which I can find that that mistake was likely to affected the election. For these reasons I am obliged to fir that the petition has not been supported by sufficient eviden that the petitioner's own evidence has not established his

ondent for an answer. That being so, I have come to H.C. or A. sonclusion that I must dismiss the petition. I order the 1910 itioner to pay the respondent's costs to the extent of £100, Grovcn d the £50 deposit to be applied towards payment of the costs. os

in a . . . Cont Je Petition dismissed with costs, °°

Solicitors, for the petitioner, Strongman & Crouch. ~ Solicitors, for the respondent, McCay & Thwaites. BL. ee a ae (HIGH COURT OF AUSTRALIA] STIGGANTS APPELLANT ; DEFENDANT, AND _ JOSKE RESPONDENT. INFORMANT,

Dentist - Person "recorded" by the Dental Board - Use of word ' Dentist" - 4 ©. op A, Words implying that he is practising dentistry - Dentists Act 1898 (Vict.) (No. 491], 1595), sec. 7* - Dentists Act 1910 (Vict.) (No. 2257), see. 13 +.

• Sec. 7 of the Dentists Act 1898 pro- _words "' dental company " or "dental {EEBOURNEs

_ vides that : - No person other than a legally qualified medical practitioner or other than a person registered under the Dentists Act 1887 or under this or the Principal Act shall, nor shall any company (other than an associa- tion consisting wholly of registered dentists), take or use or by inference

institute" or 'dental hospital" or Oct. 9, 10, *« dental college" or "college or school of dentistry " or " mechanical dentist" Griffith C.4., or any name title word letters addition {arton and, or description implying or tending to °Com™F 9. the beliet that he or euch company is

adopt the name title word letters addi- tion or description, of "dentist" or "dental practitioner" or 'dental surgeon " or "surgeon dentist," or use or have attached to or exhibited at his or its place of business or residence (either alone or in combinations with any other word or words or letters) the

or under this or the Principal Act or that he orsuch company is qualified to practice dentistry or is carrying on the practice of dentistry or is entitled to or

to use such name title word letters addition or description,

+See. 13 of. the Dentists Act 1910 provides that : -