Freemantle v O'Neill

REASONS FOR JUDGMENT 1 The Petitioner, Mr Graham Freemantle (the Petitioner), has commenced a proceeding under Part XXII of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act). In his petition filed in the High Court on 27 October 2010 (the Petition), the Petitioner disputes the validity of the election and return in the division of Robertson in the election for the House of Representatives held on 21 August 2010. The Petition names as respondents: Ms Deborah O'Neill, the successful candidate in the election, "Australian Labor Party (NSW branch)" and the Australian Electoral Commission (the Commission). 2 The Commissioner and Ms O'Neill have moved for summary dismissal of the Petition. In addition, Ms O'Neill has moved for the removal of the second named respondent on the basis that there is no such legal entity capable of being a party to the Petition. By way of response to the latter application, the Petitioner has moved for the joinder of Mr Sam Dastyari to represent the members of the Australian Labor Party (NSW branch). 3 On 17 September 2010, the Commission certified Ms O'Neill as the candidate elected and returned for the division of Robertson. The Petitioner filed the Petition within 40 days of that date. The Petition included a statement of facts, which is set out in Schedule 1 to these reasons. By the Petition, the Petitioner claimed, relevantly: a declaration that certain postal vote applications lodged with the District Returning Officer for Robertson by Ms O'Neill were invalid and that any votes cast by the relevant electors were invalid; a declaration that Ms O'Neill was not duly elected; an order for a recount of votes; alternatively, a declaration that the election in the division of Robertson was absolutely void. 4 On 25 November 2010, the High Court ordered that the Petition be referred to the Federal Court of Australia for trial. On 13 December 2010, by notice of motion, the Commission applied to the Federal Court for an order that the Petition be dismissed on the basis that it does not set out the facts relied on to invalidate the election or return as required by s 355(a) of the Electoral Act. Alternatively, the Commission asked that certain paragraphs of the statement of facts be dismissed on the basis that they do not allege any illegal practice within the meaning of s 352 and do not give rise to any basis upon which the Court could grant the relief sought in the Petition. By notice of motion also dated 13 December 2010, Ms O'Neill applied for the reference to 'Australian Labor Party (NSW branch)' in the Petition to be struck out and for an order that the Petition be dismissed. Alternatively, Ms O'Neill asked for orders that particular paragraphs of the statement of facts and prayers for relief be struck out. 5 The Petitioner also applied, on 14 December 2010, for interlocutory orders for the further prosecution of the Petition. The Court directed that the applications by the Commission and by Ms O'Neill be dealt with first, on the basis that, if they were successful, there would be no utility in granting the interlocutory relief sought by the Petitioner. 6 Ms O'Neill contends that the statement of facts included in the Petition does not satisfy s 355(a), and that allegations in it are legally misconceived, such that the Petition does not set out facts that are capable of invalidating the election of Ms O'Neill. The Commission contends that the Petition does not set out facts sufficient to invalidate the election either on the basis of illegal practice or on the basis of undue influence, and therefore fails to meet the requirement of s 355(a). 7 The Petitioner foreshadowed further particulars to the Statement of Facts in the Petition, as indicated in Schedule 2 to these reasons. However, much of those particulars add additional facts rather than simply providing further particularisation of facts already alleged in the Petition. For example, proposed additional particulars to paragraph 20 assert that Ms O'Neill's wining margin of 2,252 votes is less than the minimum number of invalid votes contended for, of 2,427. The contention appears to be that the majority, if not all, of the allegedly invalid votes were cast in favour of Ms O'Neill, or a candidate whose preferences went to Ms O'Neill. Otherwise, their invalidity would not have any effect on the result of the election. The additional particulars could not be allowed in so far as they add additional facts that were not asserted within the 40 day period limited by s 533(e). 8 The Petitioner's complaints mirror, to a substantial degree, the complaints made by Mr Andrew Green, the petitioner in proceeding NSD 1668 of 2010 (see Green v Bradbury [2011] FCA 71) and this proceeding was heard at the same time as that proceeding. Submissions were made in both proceedings by the same counsel. It is my understanding that, having regard to the conclusions I have reached concerning the deficiency of the petition in proceeding NSD 1668 of 2010, no additional argument could be advanced on behalf of the Petitioner that would distinguish the result in this proceeding, NSD 1665 of 2010, from the result in proceeding NSD 1668 of 2010. It follows, in my view, for the reasons that I have given in proceeding NSD 1668 of 2010, that no proceedings should be had on the Petition and that the Petition should be dismissed. It also follows, for the reasons given in proceeding NSD 1668 of 2010, that, even if the Petition were to proceed to trial, it would be appropriate that the reference to 'Australian Labor Party (NSW branch)' as a respondent be removed. For the same reasons, it would have been inappropriate for Mr Dastyari to be joined. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.