//
[2009] WASC 138
General information, not legal advice.
Supreme Court of WA
2009-05-20
Martin CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : FELS -v- DAVIES [2009] WASC 138
Elections - Court of Disputed Returns - Whether petition complies with s 158 of the (WA) - Failure to state occupation of witnesses - Effect of of the (WA) - Limitations on amendment of petitions - Applicability of doctrine of precedent to Court of Disputed Returns - Turns on its own facts
Commonwealth Electoral Act 1918 (Cth), s 185, s 187, s 355, s 358, s 364
Constitution (Parliamentary Privileges) Amendment Act 2004 (WA)
Constitution Acts Amendment Act 1899 (WA), s 32, s 33, s 34, s, 36, s 37, s 38, s 39, s, 41, s 149A
Electoral Regulations 1996 (WA), r 28
Electoral Rules 1908 (WA)
Intervenor : Electoral Commission of Western Australia
Cameron v Fysh [1904] HCA 49; (1904) 1 CLR 314
Hickey v Tuxworth [1987] NTSC 33; (1987) 87 FLR 161
In the Matter of a Petition by Berrill (1978) 19 ALR 254
Nile v Wood [1988] HCA 30; (1988) 167 CLR 133
O'Connor v Cash (unreported, WASC, 930649, 26 November 1993)
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Ceminchuk (Unreported (oral judgment), HCA, Court of Disputed Returns, 28 December 1993)
Re Parliamentary Election for Bristol South East [1964] 2 QB 257
Re Porter's Election Petition [1923] HCA 16; (1923) 31 CLR 600
Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500
Smith v Australian Electoral Commission [2008] FCA 953
Sykes v Australian Election Commission [1993] HCA 36; (1993) 67 ALJR 714
Taplin v Hegney (1947) 50 WALR 4
Wheeley v Australian Electoral Commission [2005] FCA 473
Yates v Unsworth (unreported, NSWSC, 12703 of 1988, 8 July 1988)
1 MARTIN CJ: The respondent, Mia Jane Davies, moves for an order dismissing the petition which has been lodged by Anthony James Fels seeking to set aside the election of Ms Davies as a member of the Legislative Council for the Agricultural Region or, alternatively, striking out that part of the petition which disputes Ms Davies' qualification to be a member of the Legislative Council.
2 A number of facts pertaining to the disputed election have been agreed by the parties. The chronology of events which follows in relation to the election is taken partly from those agreed facts, and partly from other non-contentious materials before the court.
3 On 7 August 2008, the Governor of Western Australia issued a writ directing that elections be held in all regions of the Legislative Council. In accordance with s 69 of the Electoral Act 1907 (WA) (the Act), the writ fixed 15 August 2008 as the last day for the nomination of candidates, 6 September 2008 as polling day, and 27 October 2008 as the last day for the return of the writ. Twenty six people nominated as candidates for the Agricultural Region of the Legislative Council. Both Mr Fels and Ms Davies nominated as candidates.
4 The poll was held on 6 September 2008. On 26 September 2008, the result of the poll was declared by the Electoral Commission. Ms Davies was one of the six persons declared to have been elected for the Agricultural Region of the Legislative Council. The Electoral Commissioner issued a certificate to that effect on 3 October 2008. Mr Fels was not one of those declared to have been elected. The writ for the election was returned to the Governor on 27 October 2008.
5 The following facts relating to Ms Davies' employment are taken from the agreed statement of facts filed by the parties, and the affidavit of Ms Davies sworn 27 March 2009.
6 Prior to 13 August 2008, Ms Davies was employed under a written contract of employment as a ministerial officer within the Office of the Leader of the Second Party in Opposition (Mr Brendon Grylls). On 13 August 2008, she nominated as a candidate for election to the Agricultural Region of the Legislative Council. On the same day, she wrote to the Chief of Staff of the Leader of the Second Party in Opposition requesting leave of absence without pay from her employment for the election period in accordance with reg 28 of the Electoral Regulations 1996 (WA).
7 Also on the same day (13 August 2008), the Chief of Staff of the Leader of the Second Party in Opposition wrote to the Director General of the Department of Premier and Cabinet seeking the Director General's approval of Ms Davies' application for leave of absence without pay. On 14 August 2008, the Director General of the Department of Premier and Cabinet wrote to the Chief of Staff to the Leader of the Second Party in Opposition approving Ms Davies' application for leave without pay from 13 August 2008. The respondent accordingly took leave of absence without pay from her employment as a ministerial officer. Her employment as such terminated on 23 September 2008, which was the date upon which the then Leader of the Second Party in Opposition ceased to hold office as such.
8 By 23 September 2008, Mr Grylls had become a minister of the new executive government of Western Australia. Ms Davies undertook work in the office of Mr Grylls, including assisting with the management of correspondence and issues, and attendance at meetings with and on behalf of Mr Grylls.
9 On or about 3 October 2008, Ms Davies received from the Director General of the Department of Premier and Cabinet a written offer of a contract of employment as a ministerial officer in the position of Principle Policy Advisor in the Office of the Minister for Regional Development; Land; Minister Assisting the Minister for State Development; Minister Assisting the Minister for Transport (being the various portfolios held by Mr Grylls). The offer stipulated that the period of employment commenced on 23 September 2008. Ms Davies accepted the written offer by signing it on or about 6 October 2008.
10 On the morning of 15 October 2008, Ms Davies sought and received certain oral legal advice from a barrister. Following receipt of that advice (which has not been disclosed) and after returning to her office, she telephoned an officer of the Department of Premier and Cabinet and told him that as a result of the legal advice she had received, she proposed to resign immediately and not receive any payment for the work she had performed. Later that day she confirmed her position in an email which she sent to the Director General of the Department of Premier and Cabinet and to the officer of that department with whom she had spoken.
11 On 20 October 2008, Ms Davies sent to the Director General of the Department of Premier and Cabinet a facsimile which gave notice of her resignation from the position which she had accepted on 6 October 2008, and requested that steps be taken to stop any payment of remuneration to her in respect of the services which she had rendered. The facsimile was dated 16 October 2008 to reflect the representations Ms Davies made on 15 October 2008. Ms Davies has deposed that she did not in fact receive any remuneration for those services.
12 Ms Davies tendered in evidence the published records of the proceedings of the Legislative Council and the Legislative Assembly on 3 December 2008 and 4 December 2008 respectively (Hansard). Mr Fels did not object to the tender. However, irrespective of the position adopted by the parties, I have given consideration to the question of whether the tender and use of the record of the proceedings of the Parliament might infringe the privileges, immunities and powers of the Parliament, and in particular the privileges and immunities enshrined in Art 9 of the Bill of Rights 1689 (Imp). That article provides:
That freedom of speech in debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
13 By reason of the combined operation of the Parliamentary Privileges Act 1891 (WA) and the Constitution (Parliamentary Privileges) Amendment Act 2004 (WA), Art 9 applies to the privileges of the Houses of the Parliament of Western Australia, because it applied to the privileges of the Commons House of Parliament of the United Kingdom, which provides the yardstick for the ascertainment of the privileges of the Houses of Parliament of Western Australia.
14 Ms Davies does not tender the relevant extracts from Hansard for the purpose of impeaching or questioning the debates or proceedings in either House of Parliament. Rather, she tenders the extracts for the purpose of supporting an argument that the question of her membership of the Legislative Council, having regard to her employment, has been determined by the Parliament and should not therefore be called into question in any court, including this court. It therefore seems to me that Art 9 of the Bills of Rights is not infringed by the tender and use of the extracts from Hansard for that purpose, nor does their use for that purpose give rise to any contravention of the privileges, immunities and powers of either House of Parliament.
15 Those extracts establish that on 3 December 2008, the Legislative Council resolved:
That this house direct that Ms Mia Davies, on becoming the holder of an office or place at the material time, shall be disregarded for the purposes of section 38 of the Constitution Acts Amendment Act 1899 and that the Legislative Assembly be invited to pass a similar resolution.
16 On 4 December 2008, the Legislative Assembly resolved that it concurred with the resolution passed by the Legislative Council.
17 Read literally, the resolution of the Legislative Council, with which the Legislative Assembly concurred, does not make sense. Read literally, the resolution directs that Ms Davies be disregarded for the purposes of s 38 of the Constitution Acts Amendment Act 1899 (WA) (the CAAA) on becoming the holder of an office or place. It seems clear that some words have been inadvertently omitted from the resolution passed by the Legislative Council. It seems most likely that the resolution was intended to direct that the office held by Ms Davies be disregarded for the purposes of s 38 of the CAAA_._ It is perhaps arguable that entry upon the question of whether the resolutions of the Houses of Parliament should be construed in some way other than their literal meaning might involve a course which could infringe the privileges of Parliament. However, for reasons which will appear, it is unnecessary for me to determine whether or not the resolution should be read in that way.
18 On 8 December 2008, Mr Fels filed the petition which initiated these proceedings. The document was accepted by the court, as was the sum of $100 paid as and by way of security of costs pursuant to s 160 of the Act. Notice of receipt of the petition was given by the court to the Clerk of the Legislative Council. Notice of receipt of the petition was also advertised in a newspaper circulating throughout the State.
19 The petition follows the form specified in the First Schedule of the Electoral Rules 1908 (WA). Ground 1 asserts that:
20 Ground 2 asks that the declared election result for the Agricultural Region of the Legislative Council be voided due to breaches of the Act and various electoral irregularities which are particularised in succeeding paragraphs of the petition.
21 The petition seeks various forms of relief. The first form of relief sought is a declaration to the effect that Ms Davies was not duly elected by reason of her disqualification. The second relief sought is essentially a declaration to the effect that the resolutions of the Legislative Council and of the Legislative Assembly which I have set out above should be disregarded. The third relief sought is a declaration to the effect that the election for the Agricultural Region of the Legislative Council be declared absolutely void and that it be directed that a new election be held.
22 The fourth relief sought, presumably in the alternative to the preceding grounds of relief, is to the effect that there be a recount of the election for the representatives of the Agricultural Region disregarding 5,405 ballots cast at the polling stations in the town of Northam.
23 The petition is signed by Mr Fels. His execution of the petition appears to have been witnessed by two witnesses whose names and addresses are stated in full. However, the petition contains no statement of the occupations of those witnesses.
24 As I have mentioned, the petition was received and duly advertised pursuant to the provisions of the Electoral Rules. An appearance was entered on behalf of Ms Davies, and the Electoral Commissioner filed a summons seeking leave to intervene.
25 The matter came before me, sitting as the Court of Disputed Returns, for directions on 11 February 2009. I made various orders, including an order granting the Electoral Commissioner leave to intervene and orders directing service of a copy of the petition on those people additional to Ms Davies who were declared elected to the Legislative Council as members for the Agricultural Region at the election. I made further directions relating to the exchange of draft statements of agreed facts, and setting a timetable for the filing of any application by Ms Davies to summarily dismiss or strike out ground 1 of the petition (such an application having been foreshadowed at the hearing before me). I further directed that conferral take place between the intervenor and Mr Fels in respect of the provision of informal inspection of documents.
26 I further directed that the Electoral Commissioner file any affidavits or other associated materials which he proposed to place before the court by 13 March 2009. Pursuant to that direction, various affidavits by officers of the Electoral Commission were sworn and filed, and other materials associated with the conduct of the election were provided to the court.
27 By summons dated 3 March 2009, Ms Davies sought orders that the petition be summarily dismissed or, alternatively, ground 1 of the petition struck out. The summons was brought on two grounds. The first was that no proceedings might be had on the petition because of the absence of a statement of the occupation of each of the two witnesses attesting the petition. The second was that ground 1 of the petition (which concerned Ms Davies' qualification for election) and the paragraphs of relief relating to that ground should be struck out, essentially for two reasons - first, that the question of Ms Davies' qualification for election to the Legislative Council was not within the jurisdiction of the Court of Disputed Returns, and second, that the resolutions of the Houses of Parliament to which I have referred exclusively determined the question of Ms Davies' qualification for membership of the Legislative Council and could not be questioned in any court.
28 The summons was returned before me on 19 March 2009. I made directions for the filing of any further statement of agreed facts and/or affidavits upon which the parties wished to rely, and for the exchange of written submissions. I listed the chambers summons to strike out the petition for hearing on 30 April 2009.
29 On 28 April 2009, Mr Fels filed a document headed 'Information for the Court' in which he gave notice of the occupations of each of the two witnesses to the petition. On the same day, Mr Fels filed a notice of motion seeking leave to amend the petition by including the occupations of the witnesses.
30 The qualifications for membership of the Legislative Council are to be found in a combination of the Act, and the CAAA.
31 Section 32 of the CAAA provides that a person is disqualified from membership of the legislature (which includes both the Legislative Council and the Legislative Assembly) if they are an undischarged bankrupt or have been convicted of certain offences. Section 33 of the CAAA provides that except as provided by succeeding provisions of the CAAA, or s 149A(2) of the Act, neither the election of a person as a member of the legislature shall be rendered void, nor the seat of a person as a member of the legislature become vacant by reason of his holding any office or place of profit from or under the Crown or any other office.
32 Section 34 of the CAAA provides that a person is disqualified from membership of the legislature if, among other things, he holds any office mentioned in Pt I of Sch V of the CAAA.
33 Part 1 of Schedule V of the CAAA refers to various specific offices, including judicial and quasi judicial offices, and a miscellany of other specific offices. There are two more general categories of office included within Pt I of Sch V - that of 'senior executive officer' within the meaning of the Public Sector Management Act 1994 (WA) and that of a prescribed office within the meaning of the Salaries and Allowances Act 1975 (WA). However, although (for reasons which will appear) it is neither necessary nor appropriate for me to determine the point, it does not seem that Ms Davies was a holder of any of the offices specified in Pt I of Sch V of the CAAA, nor does the petition place any reliance upon s 34 of the CAAA.
34 Section 36 of the CAAA is concerned with persons who hold office in the service of the Crown in right of the Commonwealth, a Territory or another State of the Commonwealth. It does not appear to have any application to the circumstances of this case. However, s 37 applies to persons, among others, who hold any office mentioned in Pt II of Sch V of the CAAA. That Part includes any person who is an employee within the meaning of the Public Sector Management Act 1994 (WA). Again, although I am not required to determine the point, it is at least arguable that Ms Davies was such a person between 23 September and 16 October 2008. Section 37(3) provides that if a person to whom the section applies is declared to be elected as a member of the legislature, that person shall, upon and by virtue of being so declared, vacate the office by reason of which the section applies.
35 Accordingly, if Ms Davies was the occupant of an office bringing her within the scope of s 37 by reason of her commencement of duties on 23 September 2008, it would seem to follow that upon the declaration of her election on 26 September 2008, the effect of s 37(3) of the CAAA is to deem her to have vacated that office upon the declaration of her election on 26 September 2008.
36 Section 38 of the CAAA provides that subject to any resolution passed by the legislature under s 39, if any member of the legislature, after election, becomes a person to whom s 36 or s 37 applies, that person's seat shall thereupon become vacant.
37 For reasons which will appear, it is significant to note that s 38 only applies to events which occur after a person has been elected and has become a of member of the legislature.
38 Section 39 of the CAAA applies to any case where it is alleged that a person has become the holder of an office or place specified in Pt I or Pt II of Sch V and, at that time, was a member of the legislature. Accordingly, as with s 38, it is a section which can only apply after a person has been elected and has become a member of the legislature. Section 39 provides that, in cases to which it applies, the legislature may, by resolution passed by both Houses, direct that the person becoming the holder of the relevant office shall be disregarded for the purposes of s 38. It seems reasonable to infer that this was the power purportedly exercised by the Parliament at the time of the resolutions to which I have referred above (see [12] - [17]).
39 Section 41 of the CAAA provides that any person entitled to vote for the election of a member of the Legislative Assembly at a general election may apply to the Court of Appeal for a declaration as to whether or not, among other things, by operation of s 36 or s 38 the seat of a person as a member of the legislature has become vacant, or whether, by operation of s 37, a person has vacated an office.
40 The section specifically requires the Court of Appeal to give effect to any resolution made under s 39 of the CAAA when hearing and determining an application under the section.
The Electoral Act
41 Section 76A of the Act sets out the various qualifications required of a person who seeks election as a member of the Legislative Council or the Legislative Assembly. There is no suggestion that Ms Davies lacks any of the qualifications specified in that section. Section 76B provides that persons to whom s 32 or s 34 of the CAAA apply, are disqualified from being elected as a member of the legislature. As I have mentioned, without purporting to determine the issue, it seems that Ms Davies is not such a person, nor does the petition assert that she is, or ever was, such a person.
42 Various divisions of Pt IV of the Act make provision for such things as nominations for election, voting, the counting of votes, the declaration of the poll and the return of the writ to the Governor.
43 Part V of the Act makes provision for disputes with respect to the validity of elections or returns. Section 157 of the Act provides that the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns, and not otherwise. The same section provides that a judge of the Supreme Court sitting in open court is to constitute the Court of Disputed Returns.
44 The provisions of Pt V relating to proceedings in a Court of Disputed Returns that are relevant to the issues in this case are as follows:
Every petition disputing an election or return, in this Part called the petition, shall -
(1) set out the facts relied on to invalidate the election or return;
(2) contain a prayer asking for the relief the petitioner claims to be entitled to;
(3) be signed by a candidate at the election in dispute;
(4) be attested by 2 witnesses whose occupations and addresses are stated;
(5) be filed in the Central Office of the Supreme Court within 40 days after the return of the writ.
No proceedings shall be had on the petition unless the requirements of the preceding sections are complied with.
(1) The powers of the Court of Disputed Returns shall include the following:
(a) To adjourn.
(b) To compel the attendance of witnesses and the production of documents.
(c) To examine witnesses on oath.
(ca) To grant to any party to the petition, leave to inspect in the presence of a prescribed officer, the rolls and other documents (except ballot papers) used at or in connection with any elections and to take, in the presence of the prescribed officer, extracts from those rolls and documents.
(cb) To permit, at any stage of the proceedings and on such terms as may be just, all such amendments to the petition or other pleadings, as shall appear to the Court to be necessary or convenient.
(d) To declare that any person who was returned as elected was not duly elected.
(e) To declare any candidate duly elected who was not returned as elected.
(f) To declare any election absolutely void.
(g) To dismiss or uphold any petition, in whole or in part.
(h) To award costs.
(i) To punish any contempt of its authority by fine or imprisonment.
(2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks fit 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.
(1) The Court shall inquire whether or not the requisites of section 158 have been observed, and, so far as the voting is concerned, may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, and whether the result of the polling was correctly ascertained, but the Court shall deem the roll conclusive evidence that the persons enrolled were, at the date of the completion of the roll, entitled to be enrolled.
The respondent's application for summary dismissal
45 Ms Davies seeks summary dismissal of the petition on the ground that s 158 of the Act has not been complied with because of the failure to state on the petition the occupation of each of the witnesses attesting to the petition, with the consequence that pursuant to s 161 of the Act, 'No proceedings shall be had on the petition ...'. Alternatively, Ms Davies seeks summary dismissal of that part of the petition which challenges her qualification to be a member of the Parliament on two alternative grounds. The first is that because the challenge to her membership does not derive from any matter relating to the validity of her election, there is no jurisdiction in the Court of Disputed Returns to entertain or resolve that issue, and the exclusive jurisdiction for the resolution of that issue resides in the Court of Appeal pursuant to s 41 of the CAAA. In the alternative she submits that, by reason of the resolutions of each of the Houses of Parliament to which I have referred, the issue of her membership of the Parliament has been resolved by the Parliament itself, and cannot be questioned in any court.
The effect of non-compliance with s 158 of the Act
46 It is clear that the petition lodged by Mr Fels did not strictly comply with s 158 of the Act, because it did not state the occupations of the two witnesses who had attested to the petition. Whether or not there can be any proceedings on that petition depends upon the resolution of two issues:
(a) the effect of a failure to comply with all the requirements of s 158 of the Act; and
(b) whether the petition can now be amended so as to cure the omission.
47 Prior to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, the consequences of non-compliance with s 158 would have been addressed in a vernacular which asked whether the relevant legislative requirement was 'mandatory' or 'directory'. However, since that decision, that terminology is to be eschewed and the question stated in terms of whether or not 'it was a purpose of the legislation that an act done in breach of the provision should be invalid' (Project Blue Sky [93]). As the issue is essentially one of statutory construction, the task of the court is to identify the intention of the legislature having regard to the words used in the relevant statutory provision, viewed in the context of the statute as a whole, and having regard to the apparent object, scope and purpose of the statutory provision viewed in that context.
48 In the particular context of the issue of whether or not the legislature intended that non-compliance with a statutory provision should produce invalidity, McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky observed that ordinarily, but not always, the meaning to be given to a statutory provision will correspond with its grammatical meaning. However:
The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. (footnotes omitted) (Project Blue Sky [78])
49 The words used in the relevant provisions of the Act support the proposition that non-compliance with the requirements of s 158 of the Act renders the petition invalid.
50 First, it is to be noted that s 158 applies to 'every petition', and the requirements of the section are designated by the imperative 'shall'. Second, the words used in s 161 are all embracing and emphatic - 'No proceedings shall be had ...'. Third, s 161 and s 163 describe the provisions of s 158 as 'requirements' and 'requisites' respectively. When read with the imperative language used in s 158 and s 161, those words are apt to describe matters that must be satisfied if the petition is to be valid. The Macquarie Dictionary uses the word 'indispensable' in its description of the meaning to be given to the term 'requisite'. Fourth, s 163 of the Act requires the court, in peremptory terms, to inquire whether or not the requisites of s 158 have been observed. The imposition of that obligation in peremptory language is consistent with, and supports the proposition that it was the intention of the legislature that failure to observe the requirements of s 158 would mean that the petition was invalid.
51 The literal meaning of the words used in the relevant statutory provisions would also preclude Mr Fels' application to amend the petition in order to cure the omission. The power of the court to amend a petition may, according to s 162(cb) be exercised '... at any stage of the proceedings...'. However, s 161 of the Act provides that '[n]o proceedings shall be had ...' on the petition unless the requirements of s 158 are met. So, as that section requires there to be 'no proceedings' on a petition which does not comply, there cannot be a 'stage of the proceedings' at which the court could exercise a power to amend.
52 On the other hand, it must be acknowledged that the statutory requirement to specify the occupation of each attesting witness is mundane. It can be argued with some force that it would be surprising to attribute to the legislature an intention that the fate of Mr Fels' petition should turn upon the question of whether or not he has complied with that requirement. There are, however, two obstacles in the path of this line of argument.
53 The first is that in s 158 the legislature has not distinguished in any way between a requirement which might be considered mundane - such as the requirement to state the occupation of the attesting witnesses - and requirements which are of considerable substance - such as the requirement that the petition set out the facts relied on to invalidate the election and that the petition be filed within a specified time. As the legislature has failed to differentiate in any way between the various requirements specified in s 158 of the Act, any attempt by a Court of Disputed Returns to undertake that process of differentiation by reference to those requirements which the court considers should go to validity, and those which should not, would be necessarily subjective and dependent upon the possibly idiosyncratic view of the court. This would in turn generate uncertainty in relation to the important issue of the validity of a petition challenging the outcome of an election.
54 The second obstacle in the path of the argument is a long line of authority which compels the conclusion that failure to satisfy each and every requirement specified with respect to the lodgment of a petition disputing an election renders the petition invalid.
55 In Cameron v Fysh [1904] HCA 49; (1904) 1 CLR 314, the petitioner challenged the election of a member of the Commonwealth House of Representatives for the seat of Denison in Tasmania on the ground of alleged irregularity in the conduct of the election. The Commonwealth Electoral Act 1902 (Cth) designated the High Court of Australia as the relevant Court of Disputed Returns. During the course of proceedings, the petitioner sought leave to amend the petition by inserting an allegation that several persons had been refused permission to vote at a specific polling place. Griffith CJ refused the application to amend, stating that the amendment would introduce a substantially new ground of objection to the election and that having regard to the requirement that a petition must be filed within 40 days after the return of the writ for the election, an amendment of that character outside the 40 day period would, in practical terms, be extending the time for presenting a petition.
56 The provisions of the Commonwealth Electoral Act 1918 (Cth) (Commonwealth Act) applicable in the case of Re Porter's Election Petition [1923] HCA 16; (1923) 31 CLR 600 were very similar to the provisions of the Act relevant to this case. Section 185 of the Commonwealth Act provided that:
Every petition disputing an election or return ... shall ...
(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 in the Principal Registry of the High Court ... within forty days after the return of the writ.
57 Section 187 of the Commonwealth Act provided that no proceedings shall be had on the petition unless the requirements of the preceding sections (including s 185) 'are complied with'.
58 Within the 40 day period specified by s 185 of the Commonwealth Act, the Principal Registrar of the High Court at Melbourne received a telegram from Darwin in the form of a petition. The paper on which the telegram was printed included the typewritten names of the petitioner and the witnesses, but they had not signed it. Knox CJ observed that the words of s 185 were clear and unambiguous. Because the document lodged with the court had not been signed by either the petitioner or the witnesses, it did not comply with s 185 of the Commonwealth Act, with the consequence that, by s 187, no proceedings were to be had on the petition which was dismissed.
59 Isaacs J commented on the history behind the provisions of the Commonwealth Act in the following terms:
The Court takes the place of the former Election Committee and, before that, of Parliament itself; and the common law was that the original petition had to be presented to the House concerned. Filing in the Court is the substitute for the presentation to Parliament, and presentation of the copy was never heard of. The original petition had to be very rigidly examined, and the present law is a mere adaptation of the former method to the new practice. Section 187 is therefore a bar to proceeding on the petition. (605)
60 In Taplin v Hegney (1947) 50 WALR 4, the petitioner claimed a declaration that he be duly elected as the member of the Legislative Assembly of Western Australia for the Pilbara district, on the ground that the returning officer had wrongfully rejected two postal votes in his favour. The respondent, who had been declared the successful candidate, argued in response that he had been wrongly denied three postal votes. However, on examination of the ballot papers, it emerged that one of the votes claimed by the respondent was actually cast in favour of the petitioner. The petitioner then applied to amend the petition, after the expiry of 40 days within which the petition was required to be lodged, in order to allege that he had been wrongly denied the third vote. Wolff J relied upon Cameron v Fysh, and held that there was no power under the Act to permit an amendment which would raise a new ground of objection.
61 After the decision in Taplin, the Act was amended to insert s 162(1)(cb) which gives the Court of Disputed Returns power to amend a petition. In the Parliamentary Debates relating to the amendment, the Attorney General of the day described it in the following terms:
Power is also given to enable the court at any time to give leave to amend the petition or other pleadings if it appears to the court to be necessary or convenient. This will bring the proceedings in a court of disputed returns into line with those now existing in respect of other judicial proceedings in other courts. (Western Australia, Parliamentary Debates, Legislative Assembly, 25 November 1948, 2751 (Mr VR Abbott, Attorney General))
62 It is to be noted that in Taplin, the application to amend the petition was not made in order to cure an omission which went to the validity of the petition. That might explain why the language used in s 162(1)(cb) is consistent with the language of s 161 which followed the language of s 187 of the Commonwealth Act by referring to 'any stage of the proceedings' and which had been construed by the High Court in Re Porter's Election Petition. It might also explain why there is no reference in the Parliamentary Debates to a question which is critical to this case - namely, whether the power to amend could be used to overcome a failure to comply with the requirements of s 158 of the Act.
63 In the Matter of a Petition by Berrill (1978) 19 ALR 254, the petitioner challenged the declaration of the election for the electoral division of Boothby in the Commonwealth House of Representatives. The closest the petition came to setting out the substance of the petitioner's complaint was an assertion that a number of sections of the Commonwealth Act had not been complied with, or were wrongly applied in the election.
64 The provisions of the Commonwealth electoral legislation applicable to that case were relevantly identical to the provisions of the Act applicable to this case. Gibbs ACJ held that the petition did not comply with the requirement that the facts relied on to invalidate the election be set out. Rather, the petitioner had asserted conclusions of law without stating the facts from which those conclusions might be drawn. He observed:
A number of earlier decisions of this court sitting as the Court of Disputed Returns, make it clear, if there was any doubt about it, that the provisions of s 187 are effective to achieve the result that unless the provisions of s 185 are complied with the petition shall not be allowed to proceed.
Further, it is established by the decision of Griffiths CJ 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 s 185(e) (255) ...
In my view, it is impossible to say that this petition does comply with the provisions of s 185(a) and it must inevitably follow that no proceedings can be had upon it. (256)
65 The other members of the court concurred with Gibbs ACJ.
66 By the time of Nile v Wood [1988] HCA 30; (1988) 167 CLR 133, the Commonwealth Act had been amended with the result that the provisions previously found in s 185 and s 187 were to be found in s 355 and s 358 of that Commonwealth Act. The petition which was filed failed to comply with the requirement, now in s 355, that it set out the facts relied on to invalidate the election or 'contain a prayer asking for the relief that the petitioner claims to be entitled to'. The court observed:
If a petition does not comply with s 355, s 358 ensures that no proceedings may be had on it. Nor are such defects capable of being cured by amendment, at any rate after the period of 40 days fixed by par (e) for the filing of a petition has expired. That much is clear from several decisions of this court, in particular Cameron v Fysh; In Re Berrill and Evans v Crichton-Brown. The rationale of the refusal to allow an amendment in those circumstances may be found in the judgment of Gibbs ACJ in In Re Berrill: '... for to do so would in effect be to permit an evasion of the requirements of s 185(e)'. (footnotes omitted) (137)
67 Because the court concluded that the petition did not comply with s 355 of the Commonwealth Act, it concluded that:
The consequence is that the petition is incurably defective and that no proceedings may be had on it. (140)
68 The decision in Yates v Unsworth (unreported, NSWSC, 12703 of 1988, 8 July 1988) has a number of similarities to the present case. Sections 157 and 159 of the relevant New South Wales legislation were in materially identical terms to the provisions of s 158 and s 161 of the Act.
69 The respondent applied to dismiss the petition on the ground that it had two material omissions - namely, a statement of the facts relied on, and the failure to state the occupations of the attesting witnesses. In that case, like this, the form of petition prescribed in rules made under the legislation did not specifically indicate that the occupation of the witnesses had to be stated. Needham J observed:
There is a history of decisions by this Court and by the Commonwealth Court of Disputed Returns, which is constituted by the High Court, which indicates that the provisions of s 157 must be complied with strictly. Whether or not a petition may be amended is perhaps a matter of controversy, but the authorities are quite plain that after 40 days no amendment can be accepted which would constitute a statement of fact contesting the claim that the election was valid.
70 Needham J concluded that the obligation to set out in the petition the facts relied on to invalidate the election had not been complied with. Accordingly, to that extent, that case is distinguishable from the present. However, Needham J went on:
I think also, although one does not like to determine matters on such unimportant grounds, the provisions of s 159 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.
71 In O'Connor v Cash (unreported, WASC, 930649, 26 November 1993), petitions were lodged challenging the election of members of the Legislative Council of Western Australia for the North Metropolitan Region. While referring to Re Porter's Election Petition, Murray J observed:
... under the Act, s 161, 'No proceedings shall be had on the petition unless the requirements of the preceding sections are complied with'. The then equivalent section, s 187 of the Commonwealth Electoral Act 1918, which is identically worded to s 161, has been held to mean precisely what it says ... I think that must mean that the Court of Disputed Returns may not enter upon any proceedings upon the petition, except those directed to ensuring that the requirements, particularly of s 158, have been complied with, and then as to the final disposition of the petition. That view is reinforced by the provisions of s 163(1) which opens by imposing the obligation that 'the Court shall inquire whether or not the requisites of s 158 have been observed'. The obligation is imposed directly upon the court, and in my view the court is obliged to make that inquiry of its motion.
72 In the context of an assertion that the petitions were invalid because they failed to set out the facts which would lead to a conclusion of invalidity of the election, or to claim relief justified by those facts, Murray J observed:
Nor, in my opinion, could any such fundamental deficiency be cured by exercising the power of amendment which the Court of Disputed Returns possesses under the Act, s 162. That section, in my opinion, is designed to provide various discretionary powers to the court upon the substantive hearing of a valid petition, at least insofar as it does not deal with final orders to be made upon the petition. For example, I have already expressed the view that the consequence of a petition's invalidity, having regard to the terms of s 161, would certainly be its dismissal, and without doubt then the court would have power to award costs. The power of amendment provided to the court under s 162(1)(cb) is as follows:
...
It is not that the power of amendment is too narrow or restricted which is the problem which prevents the use of the power to cure fatal validity derived from non-compliance with s 158. It is that the power conferred is a power exercisable at any stage of the proceedings upon the petition. Under s 161 there are to be none, unless such s 158 has been antecedently complied with. That has long been the view taken in other jurisdictions: see, for example, Cameron v Fysh ... Re Berrill ...I am of the view that no power of amendment could be exercised so as to cure any invalidity arising out of non-compliance with the requirements of s 158.
73 Sykes v Australian Election Commission [1993] HCA 36; (1993) 67 ALJR 714 was another one of those cases in which a petition disputing the validity of an election failed to set out the facts relied on to invalidate the election. Dawson J followed Cameron v Fysh and Re Berrill's case and observed that the petition could not be amended to cure the defect after the period of 40 days specified for lodgement of the petition, because such an amendment would in effect evade the temporal limitation.
74 Hickey v Tuxworth [1987] NTSC 33; (1987) 87 FLR 161 concerned the electoral legislation of the Northern Territory. Under that legislation, a petition disputing the validity of an election was required to be filed not later than 21 days after the day fixed for the return of the writ for the election. The legislation also gave the Election Tribunal (a body constituted by a judge of the Supreme Court of the Northern Territory) power to amend a petition on terms relevantly identical to s 162(cb) of the Act. After the time for filing a petition had expired, the petitioner applied for leave to amend the petition to add an additional ground upon which the election was said to be irregular. Nader J relied upon the line of authority in the High Court to which I have referred for the proposition that the express power to amend did not encompass amendments which would, in practical terms, defeat the temporal limitation imposed with respect to the filing of a petition (see especially p 164). The application to amend was therefore refused, as being beyond the power of the court.
75 In Re Ceminchuk (Unreported (oral judgment), HCA, Court of Disputed Returns, 28 December 1993), the petitioner courageously sought an extension of time within which to file a petition and waiver of the requirement that the petition be signed by two witnesses. He did so in reliance upon s 364 of the Commonwealth Act which provided:
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.
76 However, Dawson J observed that although the provision was cast in broad terms, it did not confer upon the court jurisdiction which it did not otherwise have under the Commonwealth Act, nor did it dispense with the requirements of the Commonwealth Act.
77 In relation to that portion of the application seeking dispensation from the requirement that the petition be attested by two witnesses, Dawson J referred to, and relied upon, the decision of Needham J in Yates v Unsworth to the effect that compliance with the legislative requirements relating to attestation was a requirement going to the validity of the petition. The application was dismissed.
78 In Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500, the petition disputing the validity of the choice of Senator Lightfoot to replace the late Senator Panizza was filed well outside the period of 40 days specified in s 355(e) of the Commonwealth Act. Section 355 of the Commonwealth Act was in identical terms to s 158 of the Act. Section 358(1) of the Commonwealth Act was in substance identical to s 161 of the Act.
79 On a case stated by Gummow J sitting as a Court of Disputed Returns, the High Court held that the petition was incompetent. The court observed at pars 10 - 12:
80 More recently, judges of the Federal Court, sitting as the Commonwealth Court of Disputed Returns, have confirmed, and acted upon, the line of authority which establishes that after the time within which a petition must be filed, no amendment can be made for the purpose of overcoming a failure to comply with the requirements of s 355 of the Commonwealth Act (see Wheeley v Australian Electoral Commission [2005] FCA 473 and Smith v Australian Electoral Commission [2008] FCA 953).
81 It is clear from these decisions that there is a long and unbroken line of authority in this and other jurisdictions which confirms that the provisions of the Act to which I have referred are to be construed in accordance with their natural and ordinary meaning, with the result that:
(a) failure to comply strictly with the requirements of s 158 of the Act renders a petition invalid and deprives the court of jurisdiction to entertain any proceedings on it; and
(b) the power given to a Court of Disputed Returns to amend a petition does not extend to an amendment made for the purpose of overcoming a failure to strictly comply with the requirements imposed by s 158 of the Act.
82 The line of authority to which I have referred is so well established that it is reasonable to infer that if it had been the intention of the Parliament that the Act should be construed otherwise than in accordance with that line of authority, express provisions having that effect would have been included within the Act.
83 In opposition to these propositions, Mr Fels advances essentially four lines of argument. The first is the proposition that the requirement of s 158(d), that the occupation of the attesting witnesses be stated, is not a mandatory requirement, in the sense that non-compliance results in invalidity of the petition. That argument must be rejected. The language of the relevant provisions, supported by the authorities to which I have referred, leads inexorably to the conclusion that strict compliance with all the requirements of s 158 is essential if the petition is to validly invoke the limited jurisdiction of the Court of Disputed Returns. There is nothing in the language of s 158 which would enable a Court of Disputed Returns to rationally discriminate between the requirements of that section which go to validity, and those which do not. Any such approach to the construction of the section would produce uncertainty, contrary to the legislative intention apparent in the language used. Further, the decision in Yates v Unsworth, which was approved by the High Court sitting as a Court of Disputed Returns in Re Ceminchuk, is authority directly on point. In that case, it was held that the failure to state the occupations of the attesting witnesses rendered the petition invalid.
84 The petitioner's second argument relies upon the fact that the form of petitions set out in the First Schedule to the Electoral Rules does not specifically provide for the insertion of the occupation of the attesting witnesses. This is undoubtedly a defect in the form which should be rectified. However, the form does not preclude the insertion of the occupation of the attesting witnesses, it simply does not encourage that insertion. Further and in any event, obviously any rules made under the Act, and any forms produced as part of any such rules, must be subordinate to the Act itself, and cannot modify the obligations imposed by the Act. The decision in Yates v Unsworth provides further support for the proposition that an omission in the relevant form does not exempt a petitioner from compliance with the requirements of the Act.
85 The third argument advanced by Mr Fels concerns the express power to amend the petition conferred by s 162(cb) of the Act. He submits that the power conferred is sufficiently wide to enable the amendment which he seeks, and further, that in this case there have been 'proceedings' on the petition because the petition was accepted by the court and directions have been made with respect to the provision of documents and the like. As I have observed, the language used in s 162(cb) read with s 161 compels the conclusion, supported by the long line of authority to which I have referred, that the power to amend does not extend to amendments proposed in order to cure a failure to comply with the requirements of s 158. A failure to comply with those requirements deprives the petition of validity, and the court of jurisdiction. Obviously there is nothing which the court or the parties can do to expand the limited jurisdiction conferred upon the Court of Disputed Returns by the Parliament. Section 161 of the Act clearly and unequivocally provides that there can be no proceedings on the petition if the requirements of s 158 have not been met, from which it follows that the power to amend 'at any stage of the proceedings' conferred by s 162(cb) cannot be exercised.
86 The fourth line of argument advanced by Mr Fels is to the effect that the line of authority to which I have referred should not be followed, because the Court of Disputed Returns is not subject to the doctrine of precedent. There are two answers to this argument. First, the line of cases to which I have referred clearly establishes that Courts of Disputed Returns do take account of and follow the decisions of other similarly constituted courts. The second answer is that a Court of Disputed Returns, like any subordinate or court or tribunal, is entitled to take into account decisions of the courts enunciating the law (see Re Parliamentary Election for Bristol South East [1964] 2 QB 257, 300). Rudolphy v Lightfoot was not a decision of a Court of Disputed Returns, but a decision of the High Court on a case stated from a Court of Disputed Returns. That decision affirmed the applicability of the line of authority to which I have referred. It is therefore entirely appropriate for me to take into account that line of authority.
87 For these reasons I have concluded that the failure to set out the occupations of the attesting witnesses in the petition lodged by Mr Fels is fatal to its validity and deprives the court of jurisdiction to entertain the petition, which must therefore be dismissed.
88 No doubt Mr Fels and his supporters will regard this conclusion as the triumph of form over substance. There is every justification for that view. Their sense of grievance will no doubt be exacerbated by the fact that the omission of the occupation of the witnesses was encouraged by the form of petition specified in the Electoral Rules, which fails to make express provision for the insertion of those occupations. Plainly the form should be amended to reduce the prospect of future petitioners falling into the same error.
89 However, the Parliament has conferred upon the Court of Disputed Returns a strictly limited jurisdiction, in an area previously regulated by Parliament itself. The clear and unequivocal language used by the Parliament in the legislation which it has enacted, construed in the context of a long line of authorities of which the Parliament can be taken to be aware, compels the conclusion that the validity of any petition, and the jurisdiction of the Court of Disputed Returns, depends upon strict compliance with the statutory requirements. It is the duty of the court to give effect to the intention of the Parliament made manifest in the terms of the statute which it has enacted. Any relaxation of the requirements which have been imposed by the Parliament is a matter for the Parliament, and not for the court.
90 Because of my conclusion that the petition is invalid and the court lacks jurisdiction, it is neither necessary nor appropriate for me to make any determinations with respect to the arguments advanced on behalf of Ms Davies with respect to the attack upon her qualification for membership of the Legislative Council. That is because s 161 of the Act expressly enjoins the court from entertaining any proceedings on a petition which does not comply with s 158.
91 However, in deference to the full argument that was advanced on those issues, it may be of assistance if I proffered some observations in relation to those arguments without purporting to make any determination in respect of them.
92 Ground 1 of the petition asserts reliance upon s 38(c) and s 37(1)(a) of the CAAA. It is therefore to be concluded that Mr Fels asserts that Ms Davies was the holder of an office mentioned in Pt 2 of Sch V, as that is the only possible application of s 37 to Ms Davies. The evidence adduced by Ms Davies suggests that if she was the holder of such an office, her occupancy of that office may have commenced prior to the declaration of her election and continued for a short period thereafter.
93 If those facts were established, the effect of s 37(3) would appear to be to deem Ms Davies' office to have been vacated upon the declaration of her election. Accordingly, her occupancy of that office prior to the declaration of her election would not appear to preclude her membership of the legislature.
94 Accordingly, ground 1 should probably be construed as focusing upon the operation of s 38 of the CAAA. As I have pointed out however, that section only applies to events which occur after a person has been elected and has become a member of the legislature. But the jurisdiction of this Court of Disputed Returns is confined to the validity of the election. Jurisdiction with respect to the question of whether s 38 has operated to deem the seat of a member of the legislature to be vacant is conferred upon the Court of Appeal.
95 For these reasons, on the assumptions of fact to which I have referred, on the face of it, the allegations made in ground 1 of the petition would not appear to be within the jurisdiction of the Court of Disputed Returns.
96 The issues raised by Ms Davies arising from the resolutions passed by the Houses of Parliament to which I have referred would also appear to be matters falling exclusively within the jurisdiction of the Court of Appeal, and not within the jurisdiction of this court. Any further comment upon those issues would require the resolutions to be construed, having regard to the infelicity of language used. As there is a possible question as to whether such a process of construction might infringe Art 9 of the Bill of Rights, and therefore infringe upon the privileges of the Parliament, and having regard to my conclusion that this court lacks jurisdiction, it would be inappropriate for me to express any view on that subject.
97 For these reasons, the petition must be dismissed.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : FELS -v- DAVIES [2009] WASC 138 (S)
Costs - Court of Disputed Returns - Costs may only be awarded against an unsuccessful party - Discretion to recommend that the costs be paid 'by the Crown' - Turns on own facts
Electoral Rules 1908 (WA)
Intervenor : Electoral Commission of Western Australia
Fels v Davies [2009] WASC 138
O'Connor v Cash (Unreported, WASC, Library No 930682, 20 December 1993)
1 MARTIN CJ: On 20 May 2009 I dismissed the petition which had been lodged by Mr Anthony James Fels disputing the election of Ms Mia Davies as a member of the Legislative Council for the Agricultural Region: Fels v Davies [2009] WASC 138. I reserved the issue of the costs of the proceedings, and directed that the Attorney General, on behalf of the State, be given notice that I was considering exercising the power conferred by s 169 of the Electoral Act 1907 (WA) (the Act) to recommend that costs be paid 'by the Crown' and inviting submissions from the State on that topic. Following receipt of such submissions from the State, I requested the parties to provide written submissions in response.
2 The timetable for the disposition of the costs issue has been protracted by the repeated failure of Mr Fels to comply with the dates which I specified for the provision of written submissions. The submissions which he eventually filed are prolix and largely irrelevant. I will identify those parts of his submissions which are relevant in the reasons which follow.
3 The parties and the State are content for me to deal with these issues on the papers, and do not require the opportunity to present oral argument.
4 The petition was filed on 8 December 2008. It specified a number of grounds. In general terms, the grounds raised two issues. The first was whether the election of Ms Davies was invalid because of her employment in the office of Mr Brendon Grylls (a member of Parliament). The second ground alleged irregularities in the conduct of the election, relating in particular to alleged breaches of supervision and security affecting ballots cast at a number of booths within the Agricultural Region.
5 The matter came before me for directions. Programming orders were made for the purpose of advancing the petition to a hearing. However, prior to the substantive hearing of the petition, Ms Davies moved for an order dismissing the petition by reason of non-compliance with the requirements of s 158 of the Act, and in particular, the requirement that the occupations of the witnesses attesting the petition be stated on the petition. She also moved, in the alternative, for an order that the ground arising from Ms Davies' employment be struck out, on the basis that it was not within the jurisdiction of the Court of Disputed Returns.
6 Both aspects of the motion were fully argued before me on 30 April 2009. On 20 May 2009, I published reasons for my conclusion that the petition was incompetent by reason of non-compliance with the mandatory requirements of s 158, and should be dismissed for that reason. Having arrived at that conclusion, I noted that s 161 of the Act expressly enjoined the court from entertaining any proceedings on a petition which did not comply with s 158. Nevertheless, I made some observations about the alternative argument advanced by Ms Davies with respect to the jurisdiction of the court in relation to the issue arising from her employment. Those observations were based upon certain assumptions of fact. However, I made it clear that the observations I was proffering were advanced only out of deference to the argument that had been developed before me. I did not purport to determine the issues raised, as any such determination would have been a contravention of the constraint imposed by s 161 of the Act.
7 Ms Davies submits that she was the successful party in these proceedings, and should be awarded her costs against the unsuccessful party, Mr Fels.
8 To the extent that I am able to comprehend the written submissions provided by Mr Fels, it seems that he proposes that there be no order as to the costs of the petition. In the alternative, he proposes that I recommend that the State pay Ms Davies' costs. In support of these propositions he relies upon the assertion that Ms Davies should have moved to dismiss the petition for non-compliance with s 158 more promptly than she did, and as a consequence, should be denied any award of costs, or alternatively, any award of costs in her favour should be reduced. He also asserts that she should not have advanced her argument with respect to the ground arising from her employment until after the issue of the validity of the petition had been resolved.
9 The Attorney General on behalf of the State submits that the State would not oppose the court making a recommendation that the State pay Ms Davies' costs of the proceedings other than those incurred in relation to the ground arising from her employment, and such of her costs of that ground as she is not reasonably able to recover from Mr Fels. The State accepts that it is reasonable to infer that the failure of the form of petition specified in the Electoral Rules 1908 (WA) to make provision for the occupation of the witnesses attesting the petition contributed to the failure of Mr Fels to lodge a petition which complied with the requirements of the Act. It also accepts that it is therefore reasonable for the court to recommend that the State indemnify Mr Fels for any liability which he has incurred in respect of the costs of Ms Davies in relation to that part of the petition which asserted irregularity in the conduct of the election.
10 However, the State asserts that Mr Fels should bear primary responsibility for Ms Davies' costs in relation to that part of the petition arising from her office of employment because of the observations I made to the effect that it appeared that ground may be beyond the jurisdiction of the Court of Disputed Returns. In relation to Ms Davies' costs of that ground, the State submits that I should only recommend the State pay in the event that Ms Davies is unable to recover those costs from Mr Fels.
11 Section 162(1)(h) of the Act empowers the court 'to award costs'. However, the generality of that power is constrained by the particular provisions of s 169 - s 171, which are as follows:
The Court may award costs against an unsuccessful party to the petition, to be taxed by the Taxing Officer of the Supreme Court, and may in its discretion recommend that costs be paid by the Crown.
If costs are awarded to any party against the petitioner, the deposit shall be applicable in payment of the sum ordered, but otherwise the deposit shall be repaid to the petitioner.
All other costs awarded by the Court, including any balance above the deposit payable by the petitioner, shall be recoverable as if the order of the Court were a judgment of the Supreme Court, and such order, certified by the Court, may be entered as a judgment of the Supreme Court, and enforced accordingly.
12 I respectfully agree with the observations made by Murray J in O'Connor v Cash (Unreported, WASC, Library No 930682, 20 December 1993), to the effect that s 169 of the Act limits the power of the court with respect to costs, in that costs may only be awarded against an unsuccessful party. It is also clear from the terms of s 169 that unlike the equivalent provision in the Commonwealth Electoral Act 1918 (Cth) (s 360) there is no power to order that the State pay costs. Rather, the court is given a discretion to make a recommendation to that effect. While one would ordinarily assume that a recommendation made by the court in the exercise of that discretion would be accepted by the State, it seems clear that the State is under no legal obligation to do so.
13 Because of the prospect, hopefully more theoretical than real, that the State might not accept a recommendation made by the court to the effect that it pay costs, it is appropriate to deal first with the responsibility for costs as between the parties to the petition before turning to the question of whether a recommendation should be made that the State bear some or all of the costs involved. Otherwise, unfairness might result to the parties in the unlikely event that the State did not accept the court's recommendation.
14 As between the parties to the petition, it is clear that Mr Fels is the 'unsuccessful party' within the meaning of s 169 of the Act. Applying conventional principles with respect to the award of costs of contested proceedings, which are reflected in the terms of s 169 of the Act, it would be appropriate to order that he pay Ms Davies' costs unless there is some reason for departing from those principles. The only reason advanced by Mr Fels in this regard is the proposition that Ms Davies was dilatory in taking the point with respect to the invalidity of the petition, and should have isolated that point from any other substantive issue in the case, thus reducing the costs incurred by all parties.
15 I do not accept that proposition. It seems to me that the motion brought by Ms Davies for dismissal of the petition was brought within a reasonable time of its commencement, and that it was proper and reasonable for her to combine in that motion her application to strike out part of the petition. I had made it clear in the directions hearing to which I have referred that in my view it was in the public interest for the petition to be substantively resolved expeditiously, because of the uncertainly which it created in relation to the composition of the Legislative Council. In that context it was entirely proper for Ms Davies to put before the court, on the one occasion, all legal issues capable of resolution prior to the substantive hearing of the petition.
16 For these reasons, as between Mr Fels and Ms Davies, I can see no reason for departing from the general principle, evident in the terms of s 169 of the Act, that the unsuccessful party (Mr Fels) should be ordered to pay the costs of the successful party (Ms Davies) to be taxed by the taxing officer of the Supreme Court by reference to the scale applicable to an action in that court.
17 As I have noted, the State accepts that it would be reasonable for the court to recommend that the State relieve Mr Fels of his obligations to pay the costs he is ordered to pay Ms Davies in respect of the grounds of the petition other than the ground arising from her employment. I agree with the reasoning which has led to the State adopting that position. It is reasonable to infer that Mr Fels' failure to comply with the requirements of s 158 of the Act was, at least in part, induced by the defective form of the petition specified in the Electoral Rules, for which the State must accept responsibility. As between Mr Fels and the State then, the State should bear responsibility for the consequences suffered by Mr Fels by reason of his non-compliance with s 158 of the Act, including his responsibility to Ms Davies for her costs.
18 I do not accept the State's proposition that it is appropriate to distinguish between the grounds of the petition for this purpose. That proposition overstates the significance and effect of the observations which I made at the time of delivering my reasons for dismissing the petition. Those observations were based upon assumptions of fact that may or may not have ultimately proven to be correct, and did not purport to constitute a final determination of the issues raised by that ground, not least because of the constraints imposed by s 161 of the Act, and the issues that might have arisen under Art 9 of the Bill of Rights 1689 (Imp) had a final determination of those issues been appropriate. Accordingly, I do not think it can be said that the ground relating to Ms Davies' employment was determined against Mr Fels.
19 Rather, the appropriate principle to be applied is that as a consequence of non-compliance with s 158, Mr Fels was denied the substantive determination of any aspect of his petition and will be ordered to pay Ms Davies' costs of that petition. As the defective form of the petition specified in the Electoral Rules contributed to Mr Fels' failure to comply with s 158 of the Act, in my view it is appropriate for the State to make good any losses incurred by Mr Fels as a consequence of that non-compliance.
20 These conclusions give rise to some practical issues which effect the terms in which orders should be expressed to give effect to these conclusions. A recommendation that the State indemnify Mr Fels in respect of costs which he is ordered to pay Ms Davies has a number of practical disadvantages, even if that recommendation is accepted by the State. Mr Fels is not legally represented. Therefore, the State is better equipped than Mr Fels to participate in any proceedings for the taxation of Ms Davies' costs, and if the State is ultimately to bear responsibility for those costs, is a more appropriate respondent to those taxation proceedings in any event. Further, a structure which would require Mr Fels to first pay Ms Davies' costs, and then seek reimbursement from the State, may impose unnecessary hardship upon Mr Fels.
21 For these reasons it seems to me that the most appropriate form of orders to be made is to direct that Mr Fels pay Ms Davies' costs of the petition to be taxed by the taxing officer of the Supreme Court by reference to the scale applicable to an action in that court, but to also direct that such taxation not take place until such time as the State has advised the parties to the petition of the position which it takes in relation to my recommendation that it should, in effect, bear Ms Davies' costs of the petition. I would then propose to further direct that in the event that the State advises the parties to the petition that it accepts that recommendation, the State should act for and on behalf of Mr Fels in relation to the taxation of Ms Davies' costs and should assume responsibility for the payment of those costs without first calling upon Mr Fels to pay.
22 Finally there is the question of the deposit lodged by Mr Fels at the time of lodging his petition. Section 170 of the Act requires that the deposit be applied in payment of any costs awarded against the petitioner. Accordingly, if and when Ms Davies' costs are taxed, the deposit must be applied in reduction of those costs. However, it is consistent with the general principle which I am applying to recommend that the State reimburse Mr Fels in respect of the deposit which he has lost as a consequence of his failure to comply with s 158 of the Act.
23 Accordingly, the orders of the court will be as follows:
(1) The petitioner pay the respondent's costs of the petition to be taxed by the taxing officer of the Supreme Court by reference to the scale applicable to an action in that court.
(2) The court recommends that the State bear responsibility for the respondent's taxed costs, and should reimburse Mr Fels in respect of the deposit which he paid at the time of lodgement of the petition, and which will be applied in part satisfaction of the costs awarded to the respondent.
(3) Taxation of the respondent's costs is to be deferred until such time as the State advises the parties to the petition whether or not it accepts the court's recommendation.
(4) In the event that the State advises the parties to the petition that it accepts the recommendation of the court, the State is to act for and on behalf of Mr Fels in any taxation of costs pursuant to these orders and should assume primary responsibility for payment of the respondent's taxed costs.
(1904) 1 CLR 314
(1987) 87 FLR 161
(1978) 19 ALR 254
(1988) 167 CLR 133
(1998) 194 CLR 355
(1923) 31 CLR 600
(1999) 197 CLR 500
(1993) 67 ALJR 714