Part 13Disputed returns

Part 13—Disputed returns 67—Constitution of the Court (1) There will be, for the purposes of this Act, a Court of Disputed Returns. (2) The Court is constituted of a District Court Judge. (3) The Court, separately constituted under this section, may sit contemporaneously to hear separate proceedings. (4) The Court is a court of record. (5) Subject to this Part, the procedure and powers of the Court are the same as those of the District Court when exercising its civil jurisdiction. 68—The clerk of the Court (1) There will be a clerk of the Court appointed by the Chief Judge of the District Court. (2) The office of clerk of the Court may be held in conjunction with any other office. 69—Jurisdiction of the Court (1) The Court has jurisdiction to hear and determine any petition addressed to it disputing the validity of an election under this Act. (2) The Court will not call into question the eligibility of a person whose name appears on the voters roll as an elector to be a candidate for election under section 17(1)(b)(i). 69A—Electoral Commissioner may lodge petition (1) The Electoral Commissioner may lodge a petition in the Court disputing the validity of an election under this Act if the Electoral Commissioner considers that it is appropriate to do so on the basis of an error in the recording, scrutiny, counting or recounting of votes in the election. (2) Section 70(1)(c) and (d) and (2)(b) do not apply to a petition lodged by the Electoral Commissioner disputing the validity of an election, but such a petition must be signed by the Electoral Commissioner. 70—Procedure upon petition (1) A petition to the Court must— (a) set out the facts relied on to invalidate the election; and (b) set out the relief which the petitioner seeks; and (c) be signed by a candidate at the election in dispute or by an elector for that election; and (d) be lodged with the clerk of the Court within 28 days after the conclusion of the election; and (e) be accompanied by the prescribed amount as security for costs. (2) A copy of the petition must be served on— (a) any person declared elected in the disputed election; and (b) if it is alleged that the election is invalid on account of an act or omission of an electoral officer—if the Electoral Commissioner was the returning officer—the Electoral Commissioner; and (c) the council. (3) If a person or council served under subsection (2) proposes to contest the petition, the person or council must, within 14 days after service, or such further time as may be allowed by the Court (on application made either before or after the expiration of the period of 14 days), lodge with the clerk of the Court, and serve on the petitioner, a reply. (4) A reply must— (a) set out the facts on which the applicant proposes to rely; and (b) ask for any relief to which the applicant claims to be entitled; and (c) be signed— (i) if the applicant is a natural person—by the applicant; or (ii) if the applicant is the council—by the chief executive officer or returning officer of the council. 71—Powers of the Court (1) The Court must sit as an open court, and its powers include the following: (a) to adjourn; (b) to compel the attendance of witnesses and the production of documents; (c) to examine witnesses on oath, affirmation or declaration; (d) with the consent of the parties to the proceedings, to receive evidence on affidavit or by statutory declaration; (e) subject to this Act and the rules, to determine its procedure in each case; (f) to declare— (i) that a person who was returned as elected was not duly elected; and (ii) that a candidate who was not returned as elected was duly elected; (g) to declare an election void; (h) to dismiss or uphold a petition, in whole or in part; (i) to amend or allow the amendment of a petition or reply; (j) to punish 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 just and sufficient. (3) The Court is not bound by the rules of evidence. (4) The Court must act according to good conscience and the substantial merits of the case without regard to legal technicalities. (5) A decision of the Court is final and without appeal. 72—Certain matters not to be called in question The entitlement to vote of a person whose name appears on the voters roll as an elector cannot be called in question by the Court. 73—Illegal practices and orders that may be made (1) The Court cannot declare an election void, or that a candidate returned as elected was not duly elected, on the ground of an illegal practice found by the Court to have been committed unless the Court is satisfied, on the balance of probabilities, that the result of the election was affected by the illegal practice. (2) If an illegal practice under section 57, 58 or 59 is found by the Court to have been committed, the illegal practice will be taken to have affected the result of the election unless the contrary is proved on the balance of probabilities. (3) No finding by the Court as to whether an illegal practice was committed constitutes a bar to criminal proceedings in relation to the illegal practice or may be admitted as evidence in such proceedings. (4) If the Court finds that an illegal practice occurred in relation to an election or poll, the clerk of the Court must report the finding to the Minister. (5) An election may be declared void on the ground of the defamation of a candidate but only if the Court is satisfied, on the balance of probabilities, that the result of the election was affected by the defamation. (6) An election may be declared void on the ground of publication of misleading material but only if the Court is satisfied, on the balance of probabilities, that the result of the election was affected by the publication of that material. 74—Effect of decision (1) If pursuant to this Part a person returned as elected is declared not to have been duly elected, that person ceases to be a member of the council, and the person declared to have been duly elected will take his or her place accordingly. (2) If pursuant to this Part an election is declared void, a person returned as elected at the election ceases to be a member of the council. 75—Participation of council in proceedings (1) The Court may— (a) on the application of a party to the proceedings—order that the council be joined as a party to the proceedings; or (b) on the application of the council—allow the council to intervene in the proceedings. (2) A council may only be joined as a party to the proceedings or allowed to intervene if the Court is satisfied that it is fair and reasonable that the council participate in the proceedings. (3) If a council is allowed to intervene in the proceedings, it may intervene in the manner and to the extent directed by the Court, and on such other conditions as the Court may direct. 76—Right of appearance A party to proceedings before the Court may appear personally or be represented by counsel. 77—Reference of question of law The Court may, on its own initiative or on the application of a party to proceedings, refer a question of law for the opinion of the Court of Appeal. 78—Costs (1) The Court may make orders for costs as it thinks just (including an order for costs in favour of or against a council that has been joined as a party to the proceedings or that has intervened in the proceedings). (2) If an election is declared void, or a candidate returned as elected is declared not to have been duly elected, on account of an act or omission of an electoral officer, any costs in favour of the petitioner must, to the extent to which they are attributable to that act or omission, be awarded against the council. (3) An order under this section may be enforced as an order of the District Court. 79—Rules of the Court The Chief Judge of the District Court may make rules— (a) regulating the practices and procedures of the Court; and (b) fixing fees to be paid in respect of proceedings before the Court; and (c) making any other provision necessary or expedient for the purposes of this Part.