ballot papers were not initialled as required by section 77 of the Electoral Act. The said Ian Lindsay Tuxworth received 14 first preference votes from the said uninitialled ballot papers, and your petitioner received 6 votes therefrom. (g) Aboriginal polling officers employed at the polling place were discharged from their duties at lunchtime, thus depriving many Aboriginal voters of necessary assistance in understanding voting procedures.' 5. The Petitioner, on 19 June 1987, informed this Tribunal and the other parties that application would be made for permission to amend the Petition. The application came forward on 29 June 1987. The amendment sought contained allegations reflecting upon the Executive Government. The Honourable the Attorney-General appeared by Mr Pauling of Queen's Counsel to oppose the application. Both Respondents opposed the granting of permission to amend. 6. The amendment for which leave is sought is the addition of the following: 'The said election was irregular in that the writs for the said election were issued forthwith upon the first public announcement that such election would be held, with the result that many persons were denied any reasonable opportunity to enrol or vote by force of the provisions of section 32(3) of the Electoral Act.' 7. The Petitioner submitted that the Tribunal has power to permit the amendment, and , in the circumstances, it ought to exercise its discretion to do so. Mr McDonald of counsel for the Petitioner said that the words of the provision empowering the Tribunal to permit amendment have a wide scope, and that the Tribunal has power to grant permission in this case. Mr Pauling, on the other hand, submitted that the Tribunal has no such power. 8. The Tribunal has no inherent powers. The Electoral Actcontains a section headed: 'POWERS OF TRIBUNAL'. Concerning amendment of Petitions, subsection 124(1) confers power on the Tribunal to:

(g) permit, at any stage of its proceedings and on such terms as it thinks fit, such amendments to a petition or other pleadings, as the Tribunal thinks fit. Subsection (2) of the same section provides that the Tribunal may exercise all or any of its powers under section 124 on such grounds as it thinks fit. 9. Mr Pauling submitted that those provisions must be read in the light of certain authorities cited by him. So read, he said, the power to permit amendment is narrower than it might at first seem. I do not wish to do injustice to Mr Pauling's submission by oversimplifying it, but I understood it to go thus: The amendment sought, if permitted, would amount to pleading a new cause of action which would defeat the clear intent of paragraph 120(3)(e) of the Electoral Act requiring a Petition to be filed not later that 21 days after the day fixed for the return of the writ for the election. That date was 16 March 1987. Mr Pauling said that if the Tribunal had power to permit such amendments, the

limitation imposed by the provision referred to would be negated; the rigidity of the Act could be sidestepped in favour of the flexibility of the Tribunal's discretion; a Petition could be filed on any ground, however unmeritorious, while the Petitioner excogitated an effective ground which could be included by amendment. The Parliament, he says, has made clear its requirement that anyone who wishes to rely upon a cause for relief under the Act must file a Petition stating the facts showing the cause within 21 days of the return of the writ. In truth, said Mr Pauling, what the Petitioner wants is a fresh Petition disguised as the old one. 10. As well as relying upon the force of the logic of his submissions, Mr Pauling relied upon authority. In Cameron v Fysh [1904] HCA 49; (1904) 1 CLR 314, the High Court, sitting as the Court of Disputed Returns, had before it a petition praying, inter alia, that the respondent Sir Philip Fysh be declared not to have been duly elected to parliament, and that the petitioner, Norman Cameron, be declared to have been duly elected. In the course of the hearing of Cameron v Fysh, counsel for the petitioner asked leave to amend the particulars by inserting an allegation that several eligible persons had been refused permission to vote. Griffith C.J. observed that this was substantially a new ground of objection to the election. He said: 'The Electoral Act requires the petition to set out the

facts relied on to invalidate the election, and it must be filed within forty days after the return of his writ. If I were to allow the application I should practically be extending the time for presenting the petition. I refuse the application.' (p 316) Mr Pauling submitted that the very same reasoning would lead the Tribunal to the conclusion that to allow the proposed amendment in this case would practically extend the time for presenting a petition. 11. Mr McDonald sought to distinguish Cameron v Fysh on the basis of differences in the respective legislation. The Electoral Act (Comm.) contains no express power to allow amendment of a petition; the Electoral Act (NT) does. Furthermore, the NT Act embodies the power in the broadest of terms. Indeed, it was in reliance upon this breadth of expression that Mr McDonald sought to distinguish the case of Crafter v Webster and Guscott (1979) 23 SASR 61: the relevant South Australian legislation conferred a power of amendment in terms narrower, said Mr McDonald, than did the NT Act. 12. Nothing material to the present application turns on these distinctions. Griffith C.J. did not suggest there was no jurisdiction in the Court of Disputed Returns to allow a petition to be amended. The reason for his Honour's refusal could not have been more clearly expressed. His words (supra) speak for themselves. The great authority of Griffith C.J. is evident from the High Court's unanimous judgment in Re Berrill and the Poll for the Electoral Division of Boothby (1978) 19 ALR 254, Gibbs A.C.J. said: 'Further, it is established by the decision of Griffith C.J. in Cameron v Fysh ...,that if the petition does not set out the facts relied on to invalidate the election it is not possible to allow an amendment of the petition after the period of 40 days has elapsed, for to do so would in effect be to permit an evasion of the requirements of s185(e).' 13. For present purposes I regard the Commonwealth legislation under which the the cases in the Court of Disputed Returns were decided as the same as the NT legislation in material respects. I do not regard section 124(1)(g) as an expression of legislative intention that the Tribunal should depart from well established precedent. There are many potential reasons for amending petitions or other pleadings not involving the introduction of a fresh cause of action out of time. 14. The rule, insofar as it applies to election disputes, is a special application of the well established rule of law authoritatively stated in Weldon v Neal (1887) 19 QBD 394. The rule was affirmed by the Federal Court as recently as November 1986 in Bradshaw v Hair Transplant Pty Ltd (1987) 70 ALR 503. The logic of the rule is compelling. 15. The argument that took place at the hearing of this application concerning whether the Tribunal has the power to grant leave for the proposed amendment is, in retrospect, unhelpful. The authorities make it clear that such leave will not be given. Whether there is jurisdiction to flout the rule, I do not know. I would not do so in any event. I prefer to adopt the word of Gibbs A.C.J. (supra) and to say that 'it is not possible to allow the amendment'. 16. For these reasons I refuse permission to amend the petition. The parities may raise the question of the costs of this application at any time. 17. In the result, having regard to the basis of this decision, it is unnecessary to decide whether the proposed amendment amounts to a setting out of facts that, if proved, would invalidate the election: (s120(3)(a)). It is also unnecessary to consider the statement of primary facts that the Petitioner was to furnish to the Tribunal and to the other parties.