(1) The summary dismissal of the proceeding
13 The issues before Gordon J on 14 December 2007 on the summary dismissal motion, and the orders made are set out in [11] above. Her Honour said that the first two issues were moot because the election had been held and because the AAT had determined the issue whether Mr Dent should be enrolled as an elector and, if so, whether it should be under the name Arthur Dent with an address not to be shown on the electoral Roll.
14
In support of that conclusion, her Honour referred to the hearing before the AAT. She noted that the AAT had accepted a number of witnesses called by Mr Dent that he is known as Arthur Dent amongst those with whom he is acquainted, including his doctor, a lawyer, members of his family and his friends, and that he has some documents in that name as well as having engaged in proceedings in the Victorian Civil Administrative Tribunal under that name. Her Honour then quoted a brief passage at the conclusion of that section of the reasons of the AAT as follows:
On the basis of Mr Dent's note on his application for enrolment, I find that the name shown on his driver's licence and on his certificate of Australian citizenship is Albert Langer.
Her Honour then continued:
In light of that history I see no benefit to be gained by further evidentiary hearings or trial in this Court. As the extract from the decision of the AAT makes clear, there is no real issue of relevant fact in dispute; rather, the dispute is over the legal significance of those facts. Moreover, the outcome of that legal dispute has already been resolved by this Court and by the AAT in a manner unfavourable to the applicant. As such, the application is hopeless and bound to fail.
15 The issue concerning s 104 of the Act was addressed in the following paragraph of Her Honour's reasons:
If the applicant is dissatisfied with the decision of the AAT, he has a remedy by way of appeal. The extent that the applicant contends that the AAT's decision was incomplete on the grounds that it did not address the effect of s 104 of the Electoral Act, that contention is unfounded: see Dent [2007] AATA 1985 at [82] ff. Again, if the applicant is dissatisfied with that aspect of the AAT's decision, he has a remedy by way of appeal.
16 As to the claims for damages and exemplary changes, her Honour said:
[A]ssuming that the applicant could somehow articulate a common law or statutory right of action against the respondents for damages in connection with a past breach of the Electoral Act (an assumption that is by no means free of doubt), any such claim would nevertheless fail because it is clear that the respondents did not in fact breach the Electoral Act. The reasons why that is so were stated at length by Ryan J and the AAT, reasons which I adopt. (References omitted.)
17 Her Honour was plainly correct in deciding that the complaint that the applicant had not been enrolled as an elector following the decision of the respondents of 16 October 2007 was moot. By reason of the AAT decision, he had been enrolled as an elector, albeit not under his preferred name. He does not now complain of that part of the decision of the AAT. He may apply to have his name on the Roll changed if he is so minded.
18 The appeal also raises the correctness of the summary dismissal of Mr Dent's claim that the AEC and Mr Wight wrongly decided that his address not be shown on the electoral Roll, a request made under s 104 of the Act. That matter was raised before the AAT and had been addressed by the AAT. As Gordon J said, the appropriate avenue to complain of that decision was for Mr Dent to appeal from the decision of the AAT. Mr Dent had not then taken up that option, but he was still within time to do so. He did not appeal from that part of the decision of the AAT within time. Whether he should be granted an extension of time to do so is considered below.
19 The appeal also attacks the summary dismissal of Mr Dent's claim to be entitled to be enrolled under the name Arthur Dent at the time of his nomination so that he should have been accepted as a candidate for the Senate election under that name. That application was rejected by the AEC and Mr Wight because, at the time, he was not enrolled as an elector under that name. It is clear that s 166(2) requires a nominee to be on the Roll, and that the nomination should be in the name of that person on the Roll. Mr Dent was not on the Roll of electors at the time of his nomination. Nothing has been shown to indicate that that decision was in error. In addition, her Honour was correct to say that the failure to accept his nomination as a candidate for the Senate is moot, and so to conclude that that part of Mr Dent's claims should also be struck out. Indeed, as we discuss below, after Jessup J on 1 November 2007 declined to grant interlocutory relief to the effect that Mr Dent's nomination should be accepted, Mr Dent acknowledged that there was probably little point in this particular claim being further pursued because the time for nominations to stand as a candidate in the Senate election was about to expire.
20 The applicant's affidavit of 30 October 2007 filed in support of his application does not disclose a basis upon which damages or exemplary damages were sought. It simply records the history of his attempts firstly to be enrolled as an itinerant voter; secondly his attempts to be eligible to have his nomination for the Senate accepted; and thirdly to be enrolled as a silent elector pursuant to s 104 of the Act. There is nothing in that material to demonstrate the foundation for a claim for damages or exemplary damages. Order 4 r 1 of the Federal Court Rules requires the commencement of proceedings by application and O 4 r 6 requires the application to be commenced, supported either by an affidavit or a statement of claim which is required to show the nature of the applicant's claim and the material facts upon which it is based. The applicant in the course of submissions indicated that his claim against Mr Wight was for damages and exemplary damages for misfeasance in public office. That asserted basis for the claim does not appear from the material filed in support of the application. It was not apparent in the material before her Honour at the time of her decision. Such an allegation would involve an allegation of wilful default on the part of Mr Wight, so the application should have been supported by a statement of claim: see O 4 r 6(1A). In our view, her Honour's reasons on the basis of the material before her do not demonstrate error in her conclusion because on the material there was simply no foundation for a claim for damages or exemplary damages.
21 Mr Dent also submitted that her Honour's decision should be set aside by reason of the process by which the motion for summary judgment came to be heard. He complained of a lack of procedural fairness. The procedure by which that application came to be heard was not ideal. It is recorded above. However, the fact is that he was given notice of the proposed application on Monday, 10 December 2007, together with a copy of the motion which was not then issued by the Court and did not have a return date on it or a Court stamp on it, and informed that it was proposed to have the motion heard the following Friday, 14 December 2007. He was then formally notified the following day, that is 11 December 2007, of the hearing at 9:30 am on 14 December 2007. He was in fact given the three days notice of the motion for summary dismissal of his claims, and of the return date for the motion as required by the Rules, albeit not strictly by receiving the sealed copy of the motion on the Monday. It may have been desirable to formally make an order dispensing with compliance with the Rules to the extent to which the procedure required under the Rules was not fully complied with (if they had not been complied with), but the substance is that he was given not less than three clear days notice of the terms of the motion and of the material upon which the respondents relied and of its return date. He expected the motion to be called on when he attended for the directions hearing at 9:30 am on 14 December 2007.
22 Although he complained in submissions that he did not have the opportunity of presenting material or argument on the motion, that does not emerge from the transcript of the hearing on 14 December 2007. He could have indicated, but did not indicate, that he wished an opportunity to further consider the terms of the motion and to consider how it might be responded to. He could have indicated, but he did not indicate, that he wished an opportunity to adduce material in response to the motion. There is still nothing to indicate what material he might have adduced on the hearing of the motion had he sought and been given the opportunity to do so. In submissions on the appeal he did not really assert that there was material which he might have adduced which he did not otherwise adduce. It is also apparent from the transcript that he addressed the substantive arguments on the motion once counsel for the AEC and Mr Wight had made their submissions. It might have been desirable, having regard to his status as a self-represented litigant, to have asked Mr Dent whether he was in a position to proceed with the motion or wished it to be adjourned, but that was a judgment to be made at the time of the hearing and in the overall context. As Mr Dent acknowledged, he is not a person inexperienced in Court processes. The transcript reveals that he understood the nature of the motion and addressed the issues it raised coherently, and without seeking any adjournment of it. There was, in our view, no failure to accord him procedural fairness in hearing the notice of motion on 14 December 2007, or in the manner it was heard.
23 Accordingly, we do not consider that her Honour fell into error in summarily dismissing the application as it then stood.
24 In reaching that conclusion, we have not overlooked that her Honour in her reasons also said the legal dispute had already been resolved by the Court and by the AAT in a manner adversely to Mr Dent, so that "the application is hopeless and bound to fail". That would appear to overstate the effect of the earlier decisions of Ryan J and of Jessup J on their Honours' respective interlocutory hearings. The decision of Ryan J was to refuse, on an interlocutory basis, Mr Dent's enrolment under the name Arthur Dent. As the reasons of Ryan J indicate, at that time Mr Dent had taken the view that he was entitled to be so enrolled without providing evidence to the AEC or Mr Wight to support the requirement of s 93A(2)(a) of the Act that he was then usually known by the name Arthur Dent. The interlocutory decision of Ryan J was therefore one which did not determine the general issue as to Mr Dent's entitlement to be enrolled so as to be able to vote at the election. Subsequently, before the AAT, the applicant adduced evidence to show the name by which he was usually known, and the AAT made findings of fact on that topic. The decision of Jessup J was also only an interlocutory one, and one which was based upon an express assumption that Mr Dent was usually known by his associates by the name Arthur Dent (a finding of fact which the AAT subsequently made). His Honour declined to grant interlocutory relief mainly because, even assuming that fact, s 166(2) required a nomination to be in the name of the candidate on the electoral Roll and Mr Dent was not then on the Roll under the name Arthur Dent. His Honour also did not therefore determine conclusively all the matters which Gordon J was required to consider. We read her Honour's reasons as really adopting, to the extent they were applicable, the respective reasons of Ryan J and Jessup J. That passage in her Honour's reasons does not demonstrate that the summary dismissal of the proceeding was in error.
25 The fact that the AAT had determined that Mr Dent was entitled to be on the Roll under the name Albert Langer was made upon the evidence and the construction of s 93A(2)(b). There may be a question as to whether the AAT understood the correct operation of s 93A(2)(b). It is referred to below. However, the fact that the AAT had made its decision did not, in our view, provide an additional reason for summarily dismissing the proceeding except in the way previously pointed out, namely by rendering moot Mr Dent's complaint that he had not been able to be entered on the Roll of electors. As her Honour immediately went on to say, if Mr Dent considered the AAT decision involved an error of law, he could appeal from that decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). We do not regard an apparently infelicitous reference to the significance of the AAT decision to demonstrate that there was error in summarily dismissing the proceeding. Her Honour clearly addressed the several claims and gave reasons why they would clearly fail. We have considered the correctness of that conclusion above.
26 Finally, we note that Mr Dent asserted in oral argument that a constitutional matter arose implicitly in the proceeding which Gordon J should have identified, and so her Honour should have adjourned the hearing. Shortly before the hearing of the appeal, he filed a "Notice of a Constitutional Matter". As best as we can discern from that document and from his submissions, Mr Dent wishes to raise:
(1) the validity of s 57 of the Act which provides that one member of the House of Representatives shall be chosen for each Electoral Division, because it is "an arbitrary determination of the number of members for electoral divisions"; and
(2) the validity of what he called the "Proof of Identity" measures in the Act, by which he appeared to refer to s 101 of the Act;
(3) the more rhetorical claim that somehow the Act provides public officials with a discretionary power to decide who may stand for election to the House of Representatives and the Senate, and a discretionary power to remove a nominated candidate or candidates from participating in the election in which they have been validly nominated.
No such matters, assuming they or any of them would attract the application of s 78B of the Judiciary Act 1903 (Cth), arose in the proceeding before Gordon J. There is no hint of them in the application, or the amended application, or the affidavit of Mr Dent filed in support of the application. At the hearing before Gordon J, Mr Dent said an unidentified constitutional matter might arise if the proceeding went forward in a certain way. But her Honour was entitled to, and did, dispose of the proceeding as it then stood. There was no error in dealing with the merits of the application before her - the strike out motion - in the circumstances. See also the observations of Branson J in Howard v Australian Electoral Commission [2000] FCA 1767 at [9]-[10].
27 For those reasons, we consider that the appeal from the decision of Gordon J should be dismissed.
28 Thus far we have assumed that an appeal lay as of right from the summary dismissal of the proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). However, we are not to be taken to be endorsing the view expressed in Jefferson Ford Pty Ltd v Ford Motor Company of Australia [2008] FCAFC 60 by Finkelstein J at [2]-[13] and by Gordon J at [159]-[191] that the summary dismissal of the proceeding under s 31A(2) of the FCA Act is a final one, so that an appeal as of right lay from the decision of Gordon J in this matter. There are two Full Court decisions to the opposite effect, namely that such a decision is an interlocutory one so that leave to appeal from it should be sought: see Zoia v Commonwealth Ombudsman Department (2007) 240 ALR 624; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179; and see the remarks of Rares J in Jefferson Ford at [42]-[56]. We did not need to consider that question because the AEC and Mr Wight, in the circumstances, acknowledge that leave to appeal from the decision of Gordon J should be given, if it were necessary, so that the appeal could be considered on its merits. We will accordingly give that leave to the extent it is necessary to do so.