General Provisions Governing Petitions
16 A petition is the only way in which the validity of an election or the declaration of a poll may be disputed (cl 2). The jurisdiction to try the petition is vested in the Federal Court (cl 2(2) and (1)(1)). It is a condition of that jurisdiction that the petition comply with the requirements of cl 3 as to form and content, the requirements of cl 3A as to time limits for lodgment and the requirements of cl 4 for a deposit as security for costs (cl 6). As with the Commonwealth Electoral Act 1918, the ATSIC Act contains no provision for an extension of the time allowed for the filing of a petition - Robertson v Australian Electoral Commission (1993) 116 ALR 407 at 409; Nile v Wood (1988) 167 CLR 133 at 137.
17 The requirement of cl 3(a) is that the petition shall set out the facts relied on to invalidate the election or declaration. If on the face of the petition the facts are insufficient to invalidate the election, then the petition is liable to be dismissed or stayed on the basis that the Court lacks jurisdiction. That is the case in respect of the similarly worded s 355(a) of the Commonwealth Electoral Act. In Sykes v Australian Electoral Commission (1993) 115 ALR 645 at 649, referring to s 355(a), Dawson J said:
"The dividing line between what is essential and what amounts merely to particularity may sometimes be difficult to draw. What is clear, however, is that the facts which para (a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity."
The requirement of sufficiency will also apply to facts relied upon severally rather than collectively to invalidate the election. Importantly, the statement of facts relied on cannot be amended if, as in the present case, more than forty days have elapsed since the declaration of the poll. If such amendment were possible then the time limit provisions would be evaded - Sykes v Australian Electoral Commission at 648.
18 Recently in Rudolphy v Lightfoot (1999) 167 ALR 105 at 107, dealing with like provisions in the Commonwealth Electoral Act, the High Court said:
"The requirement that the petition be filed within the 40 day period specified in s 355(e) is to be read with the limited disputation of any election or return permitted by s 353(1) and the interdiction in s 358(1) of proceedings on a petition unless requirements, including that in s 355(e), are complied with. Section 355(e) stipulates an essential condition or jurisdictional requirement for the Court of Disputed Returns. In particular s 358(1) does not give rise merely to a defence of non-compliance which may be waived by a respondent to the petition or displaced by relief given by the Court of Disputed Returns."
Their Honours there cited with approval the observations of Windeyer J in Australian Iron Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-9 that the forty day requirement under the Commonwealth Electoral Act 1918 does not bar an existing cause of action but rather imposes a condition "which is of the essence of a new right". The purpose of the time limit identified by their Honours in respect of the Commonwealth Electoral Act also applies to the electoral provisions of the ATSIC Act, ie:
"… to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns."
19 The provision of particulars cannot be relied upon to cure a deficiency in the facts set out in the petition. If such a procedure were open, it would amount to amending the petition and, if the particulars were provided outside the forty day time limit, thereby avoiding the time limit condition. As has been observed time and again in other contexts, particulars cannot be used to fill gaps in the principal pleading which ought to have been filled by appropriate statements of the various material facts which together constitute a cause of action - Bruce v Odhams Press Limited [1936] 1 KB 697; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 419.
20 In the event of an allegation of an illegal practice the effect of cl 12(3) of Schedule 4 is that an election cannot be declared void on the grounds of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority or on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption unless the Court is satisfied that the result of the election was likely to be affected and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. Importantly, to the extent that the facts alleged in the petition assert an illegal practice in categories (a) or (b) in cl 12(3) it is necessary that facts are also alleged which, if made out, could satisfy the Court that the result of the election was likely to be affected. Positive satisfaction in that regard is a condition of its power to invalidate the election.
21 Clause 14 headed "Immaterial Errors not to Vitiate Elections" precludes the Court from avoiding any election on account, inter alia, of any error of or omission by, any officer which did not affect the result of the election. The expression of this condition in the negative distinguishes cl 14 from cl 12. The petitioner is not required to allege facts showing that such an error or omission affected the election. This proposition derives originally from dicta of Taylor J in Cole v Lacey (1965) 112 CLR 45 at 48-9. In that case Taylor J referred to s 194 of the Commonwealth Electoral Act 1918 as it then stood. It had previously been considered, in different form, by Isaacs J in Kean v Kerby (1920) 27 CLR 449. Referring to an English statute which required that "non-compliance…did not affect the result of the election" Isaacs J said at 458:
"In other words, if the matter is left so that the mistake may have affected the result, the election may be declared invalid."
Taylor J's view, based upon what Isaacs J had said, was then expressed at 48:
"…on the assumption that an unspecified number of informal votes were admitted in the course of the scrutiny, it was not incumbent upon the petitioner to allege, or at a later stage, to prove that they were sufficient in number or such as to affect the result of the election. I do not, of course, mean to say that if it appeared from the petition that they were insufficient in number to affect the result the petition should proceed. But as I understand the position the petitioner, in a matter such as the present, is not obliged to prove that the result of the election was affected and, therefore, not under any obligation to allege in his petition facts showing that it was or that it is probable that it was."
In Sykes v Australian Electoral Commission, Dawson J considered s 365 of the Commonwealth Electoral Act 1918 which provided:
"No election shall be avoided…on account of the absence or error of or omission by any officer which did not affect the result of the election."
His Honour noted that the analysis of Taylor J was supported by the Second Reading Speech for the Commonwealth Electoral Bill 1922 and that Starke J in construing a similarly worded provision in Varty v Ives [1986] VR 1 at 10-16, had come to the same conclusion. Nevertheless as Dawson J pointed out, originally there was no definition of "illegal practice" in the Commonwealth Electoral Act and in the absence of a definition the wrongful rejection of a nomination would constitute an "error or omission" rather than an "illegal practice". The definition of "illegal practice" was added by amendment in 1983 - Commonwealth Electoral Legislation Amendment Act 1983 (Cth) s 128. His Honour said, at 652:
"There can, I think, be no doubt that the wrongful rejection of a nomination is a "contravention of the Act" and it must follow, in accordance with the definition, that it is an illegal practice. That means that s 362 is the more specific section and is the section which operates where applicable in preference to s 365. Under s 362 the Court, before granting relief, must be satisfied that the result of the election was likely to be affected by the illegal practice. Under s 355(a) the petitioner must set out the material facts upon which he relies to establish that likelihood."
See also Hudson v Lee (1993) 177 CLR 627 at 631 where Gaudron J said:
"Although there is no express statement in the Act to that effect, s 362, in my view, provides exhaustively as to the general grounds on which an election may be invalidated or declared void."
The application of these observations to cls 12(3) and 14(1) of Schedule 4 was accepted by O'Loughlin J in Australian Electoral Commission v Lalara (1994) 53 FCR 156 at 165. See also Pettit v Atkinson (1994) 50 FCR 174 at 179 (Gray J).
22 What emerges from these authorities is that where the petition alleges facts capable of characterisation as disclosing an illegal practice it will be caught by cl 12(3) and the petitioner will be required to allege facts showing that the election result is likely to have been affected. If the facts alleged do not amount to an illegal practice but to an official error or omission then a positive allegation of that kind is not required.
23 It is necessary now to consider each of the facts set out in the petition which are, on the face of it, relied upon severally, but also, according to counsel for the petitioner, collectively. In dealing with the Australian Electoral Commission's motion, I confine my consideration to the facts as they appear on the face of the petition. If they are sufficient, resort to the particulars is unnecessary. If they are insufficient, resort to the particulars will not rectify that deficiency.