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Supreme Court 27 June 2011

Bradbery v Hay

[2011] NSWSC 623

Public order & justice offences
COURT OF DISPUTED RETURNS ALLEGATIONS IN THE NATURE OF FRAUD NON PETITION INVALID PETITION DISMISSED

Citation: Bradbery v Hay [2011] NSWSC 623
Court: Supreme Court of New South Wales (Court of Disputed Returns)
Date: 27 June 2011
Judge: Simpson J

Background

Following the 26 March 2011 NSW state election, the returning officer declared the sitting member elected for the seat of Wollongong on 5 April 2011, with a margin of 674 votes over the runner-up. The unsuccessful candidate filed a petition in the Supreme Court seeking a declaration that the election was absolutely void.

An amended petition was filed on 18 May 2011, alleging three irregularities: that fraudulent how-to-vote cards were distributed at a polling booth; that double voting occurred in nursing homes; and that misleading "Just Vote 1" posters were displayed. The respondent elected member brought a motion to have the amended petition dismissed, arguing it contained irremediable formal defects.

  • Whether the amended petition adequately stated the facts relied upon to invalidate the election, as required by s 157(a) of the Parliamentary Electorates and Elections Act 1912 (NSW)
  • Whether the failure to state the occupations of the two attesting witnesses, as required by s 157(d), was a fatal defect
  • Whether amendment of the petition remained available after the 40-day period following the return of the writ
  • Whether the allegation that irregularities were likely to affect "the final count" satisfied the requirement under s 164 to show that the "result of the election" was likely to have been affected

Decision

Simpson J found that the amended petition failed to comply with s 157(a) in respect of two of the three remaining allegations. The allegation about fraudulent how-to-vote cards did not adequately explain the mechanism by which those cards might have affected the result. Specifically, the petition stated the cards "falsely directed preferences" to the successful candidate, but did not explain how false directions on a how-to-vote card could influence preference distribution in a single-member electorate using optional preferential voting. Similarly, the allegation about misleading posters failed to explain, with adequate particularity, why posters bearing a Labor Party authorisation would be mistaken for an official electoral directive.

On the occupation requirement, Simpson J acknowledged that the failure to record the occupations of attesting witnesses appeared to be a minor technical defect. However, her Honour held that the established authorities required strict compliance with the provisions of s 157, and that s 159 expressly bars any proceedings on a petition that does not meet those requirements. The defect could not be excused or overlooked.

Her Honour further held that no amendment to cure these defects was permissible. The 40-day period for filing a valid petition had long since passed, and the authorities consistently establish that amendments cannot be made after that deadline expires.

The third asserted defect, that the petition referred to the likely effect on "the final count" rather than the "result of the election," was rejected. Simpson J found the distinction difficult to follow and in any event held that s 164 does not specify what a petition must contain. Rather, it sets a threshold the court must be satisfied about before making an order, and it is not directed at pleading requirements.

Orders Made

  • The amended petition was dismissed.

Key Takeaways

  • The Supreme Court confirmed that the requirements of s 157 of the Parliamentary Electorates and Elections Act 1912 are to be strictly construed, and non-compliance is fatal to the petition regardless of whether the defect appears minor or technical in nature.
  • Under s 159, no proceedings may be had on a petition unless every requirement of s 157 is met. The failure to state the occupations of attesting witnesses, even if apparently inconsequential, brought s 159 into operation and required dismissal.
  • A petition alleging electoral irregularities must set out the facts with sufficient particularity to make the alleged mechanism of invalidity intelligible. Vague or conclusory allegations that do not explain how the impugned conduct could have affected the result do not satisfy s 157(a).
  • After 40 days from the return of the writ, amendment of a petition is not available. The filing deadline under s 157(e) creates a hard limit confirmed by a consistent line of High Court and State Supreme Court authority.
  • Section 164 imposes conditions on the making of orders declaring an election invalid, but it does not prescribe the content of a petition. The court treated it as a decision-making threshold rather than a pleading requirement.

Legislation and Cases Referenced

Legislation
- Parliamentary Electorates and Elections Act 1912 (NSW), particularly ss 155, 157, 158, 159, 161, 164, 166

Cases
- Cameron v Fysh [1904] HCA 49; 1 CLR 314
- In the Matter of a Petition by Helen Therese Berrill and of a poll for the Electoral Division of Boothby (SA) (1978) 52 ALJR 359
- Nile v Wood [1988] HCA 30; 167 CLR 133
- Yates v Unsworth (NSWSC, 8 July 1988, unreported, Needham J)
- Sykes v Australian Electoral Commission [1993] HCA 36; 115 ALR 645
- Re Ceminchuk (HCA, 28 October 1993, unreported, Court of Disputed Returns)
- Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- Rudolphy v Lightfoot [1999] HCA 61; 197 CLR 500
- Fels v Davies [2009] WASC 138