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Caltabiano v Electoral Commission of Queensland (No 2)

 

[2009] QSC 138

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Caltabiano v Electoral Commission of Queensland and Anor (No 2) [2009] QSC 138

PARTIES:

ANDREA MICHELE CALTABIANO

(applicant)

v

ELECTORAL COMMISSION OF QUEENSLAND

(first respondent)

And

STEVEN ANDREW KILBURN

(second respondent)

FILE NO/S:

3921 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Court of Disputed Returns at Brisbane

DELIVERED ON:

3 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2009

JUDGE:

Atkinson J

ORDER:

The originating application filed on 14 April 2009 is dismissed.

CATCHWORDS:

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTIONS COURTS OR TRIBUNALS – PROCEDURE – where the applicant filed an originating application in the Court of Disputed Returns under the Electoral Act 1992 (Qld) seeking orders that the person declared to be the member elected be taken not to have been elected – whether the Court of Disputed Returns is the Supreme Court or a separate Court – whether the rules which govern the civil jurisdiction of the Supreme Court apply to the Court of Disputed Returns – whether an application under the Electoral Act has effect if no deposit is paid when it is filed.

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PAYMENT INTO AND OUT OF COURT – where respondents filed an application to dismiss the originating application on the basis that the applicant did not comply with the requirement to pay a deposit to the court when filing the originating application – whether deposit was paid – whether an application under the Electoral Act has effect if no deposit is paid when it is filed.

Beattie v Fine [1925] VLR 363, cited

Caltabiano v Electoral Commission of Queensland [2009] QSC 109, cited

Clampett v Kerslake (Electoral Commissioner of Queensland) [2009] QCA 104, cited

Cory Brothers & Co v Owners of the Turkish Steamship “Mecca” [1897] AC 286, cited

Devan Nair v Yong Teik [1967] 2 AC 31, cited

Featherston v Tully [2002] SASC 243, cited

Hansen v Australian Electoral Commission [2000] FCA 606, cited

Knysh v Corrales Pty Ltd (1989) 15 ACLR 629, cited

Leeson v Leeson [1936] 2 KB 156, cited

Re Nicklin Election Petition; Turner v King [1993] 1 Qd R 513, cited

Rudolphy v Lightfoot {1999) HCA 61, cited

Skyring v Electoral Commission of Queensland [2002] 1 Qd R 442, applied

Smith v Australian Electoral Commission [2008] FCA 953, cited

Tanti v Davies (No.2) [1996] 2 Qd R 591, applied

Williams v Mayor of Tenby (1879) 5 CPD 135, cited

Appeal Costs Fund Act 1973 (Qld), s 10(a)

Commonwealth Electoral Act 1918 (Cth), ss 358(1), 355, 358

Electoral Act 1992 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), rule 971

Uniform Civil Procedure (Fees) Regulation 1999 (Qld), item 1(2)(a)

COUNSEL:

P Dunning SC and P Baston  for the applicant

M Hinson SC for the first respondent

D Rangiah SC for the second respondent

SOLICITORS:

BCI Lawyers for the applicant

Crown Law for the first respondent

Carne Reidy Herd for the second respondent

  1. Andrea Caltabiano was an unsuccessful candidate for the electoral district of Chatsworth in elections held on 21 March 2009 to elect members of the Legislative Assembly of Queensland. On 14 April 2009, she filed an originating application in the Court of Disputed Returns under the Electoral Act 1992 (Qld) (“the Act”) seeking orders that Steven Kilburn, the person declared to be the member elected for the electoral district of Chatsworth, be taken not to have been elected; that she be taken to have been elected; or that a new election be held for the electoral district of Chatsworth.
  1. The circumstances concerning the filing of that originating application are at issue in these proceedings. To understand those issues it is necessary to set out the legal regime which applies to elections in Queensland and to the Court of Disputed Returns.

The Electoral Act 1992

  1. General elections are called in Queensland under Part 6 of the Act when the Governor issues a writ for a general election under s 78 of the Act.  The requirements for nomination as a candidate are set out in Division 2 of Part 6.  Section 85 provides that a deposit of $250 must be made at the same time as the nomination is given to the Electoral Commission (the “Commission”) or the returning officer.  The deposit must be made by the candidate or another person on the candidate’s behalf.
  1. The election must be held in accordance with Divisions 2 and 3 of Part 6 of the Act. Division 4 of Part 6 deals with who may vote and Division 5 with how voting takes place. Division 6 governs the counting of votes and Division 7 with notifying the results of elections. Section 123 deals with the return of the writ for the election. In the case of a general election, it provides:

123Return of writ for election

(1)As soon as practicable after the commission has received –

(a)in the case of a general election – the copies of the notifications under section 122(1) from the returning officers for all electoral districts;

 

and before the day for the return of the writ, the commission must comply with subsection (2).

(2)The commission must –

(a)write on the writ the name of each candidate elected; and

(b)return the writ to … the Governor …; and

(c)publish in the gazette the name of each candidate elected.”

  1. In this case, the Commission published in the Queensland Government Gazette on 15 April 2009 notification of the candidates who had been elected as members of the Legislative Assembly at the Queensland general election held on 21 March 2009.  The notification included the following statement:

“In pursuance of the provisions of s 123(2)(a) the abovementioned names have been written on the writ which, in accordance with s 123(2)(b), was returned to Her Excellency the Governor on 7 April 2009.”

  1. The Gazette shows that the candidate Steven Andrew Kilburn had been elected as the member of the Legislative Assembly for the electoral district of Chatsworth.
  1. Part 8 of the Act creates the Court of Disputed Returns. Section 127 provides that the Supreme Court is the Court of Disputed Returns for the purposes of the Act and that all the jurisdiction and powers of the Court of Disputed Returns may be exercised by a single judge who constitutes that court. The Court of Disputed Returns is therefore not a separate court but is part of the Supreme Court of Queensland. As Chesterman J held in Skyring v Electoral Commission of Queensland [2002] 1 Qd R 442 at 446-447, with which I respectfully agree:

“[13]… The scheme of s. 127 is that the particular jurisdiction of deciding contested elections to the Legislative Assembly is conferred on the Supreme Court …

[14] The opinion that Part 8 confers jurisdiction on the Supreme Court is supported by the decision of the High Court in Sue v Hill (1999) 199 CLR 462, concerned with the Commonwealth Electoral Act 1918.  That Act conferred jurisdiction on the High Court to determine the eligibility of candidates for election to Federal Parliament.  The terms of the Commonwealth Act are similar to those of the Electoral Act 1992 which in turn are very different to the provisions of the earlier Elections Act (Qld) 1915 which the High Court thought did not make the Supreme Court the Court of Disputed Returns.  It will be recalled that the Elections Act created an Elections Tribunal which was itself made a court of record and was thus clearly distinct from the Supreme Court.  The Tribunal was constituted by a judge whose name was given to the Speaker each year by the Chief Justice.  Such a scheme is quite different from the present which confers the role of determining disputed returns on the Supreme Court, does not create any separate tribunal and does not require the selection of any individually named judge to perform the role.  Section 354 of the Commonwealth Act which, similarly to s. 127 of the State Act, provided that the High Court “shall be the Court of Disputed Returns” and should have jurisdiction to try an election petition.  This was said to make the High Court a Court of Disputed Returns.  It differed from the earlier legislation which had been the subject of controversy in Holmes v Angwin.  Gleeson CJ., Gummow and Hayne JJ said in their joint judgment (480-481):

‘Counsel … relied upon what was said to be involved in the reasoning in the judgments in Holmes v Angwin.  Section 354 … differs from the provisions of the Electoral Act … (WA) which … was construed as … creating a new and separate tribunal consisting of a judge of the Supreme Court of Western Australia as a persona designate.  On the other hand, s 354(1) fixes upon ‘the High Court’ and specifies two matters in respect of the High Court.  First (it) ‘shall be the Court of Disputed Returns’ and secondly, it ‘shall have jurisdiction’ to try … the petition.’

[15] Gaudron J came to the same conclusion.  At 519-520 her Honour held that the Commonwealth Electoral Act conferred a special jurisdiction on the High Court and did not constitute a separate, special tribunal to be known as the Court of Disputed Returns.  Her Honour found in a number of provisions which have their counterpart in the Electoral Act (s 134(2), s 136) indications that the Court of Disputed Returns was to exercise judicial power.  The significance of this point is that a factor influencing the outcome of the early decisions concerned with State Electoral Acts was that the power conferred on the ‘Court’ of Disputed Returns was not judicial but was legislative, being an adjunct to the power of Parliaments to determine who should constitute their membership.  See Holmes v Angwin at 305-306 per Griffith CJ and 309 per Barton J.  In Sue v Hill Gleeson CJ, Gummow and Hayne JJ pointed out that more recent legal analysis of power conferred by statute shows that it may change character depending upon who is to exercise it: 199 CLR 481-482 [32]-[33] and Gaudron J.at 516-517 [134]-[136].

[16] The fact that the power to determine electoral disputes is judicial rather than administrative or legislative indicates that a judge sitting as the Court of Disputed Returns does so in a judicial capacity, as a member of the Supreme Court, and not as an individual chosen by name.  The power so exercised is that of the Supreme Court.

[17] The terms of s 127 of the Electoral Act, and more generally of the provisions in Part 8 of that Act, the marked differences between the legislation and the earlier Acts, and the approach taken by the High Court to similar Commonwealth legislation all lead me to think that the Court of Disputed Returns is the Supreme Court exercising a particular jurisdiction.”

  1. Section 128 of the Act provides that an election of a person may only be disputed by an application to the Court of Disputed Returns under Division 2 of Part 8 or an appeal under Division 4 of Part 8. Section 129 sets out who may dispute an election. In this case the election is disputed by Andrea Caltabiano who falls within the persons referred to in s 129(a) of the Act, being a candidate at the election for the electoral district concerned.
  1. Section 130 sets out requirements for an application to the Court to dispute an election to be effective. Since the interpretation of this section is critical in this matter, I set out the section in full as follows:

130Requirements for an application to be effective

(1)For an application to have effect for the purposes of this division, the requirements of this section must be complied with.

(2)The application must –

(a)set out the facts relied on to dispute the election; and

(b)set out the order sought from the Court of Disputed Returns; and

(c)be signed by –

(i)in the case of an application by the commission – the electoral commissioner; and

(ii)in any other case – the applicant before a witness; and

(d)if paragraph (c)(ii) applies – contain the signature, occupation and address of the witness.

(3)The person disputing the election must –

(a)file the application with the Supreme Court registry in Brisbane within 7 days after the day on which the writ for the election is returned as mentioned in section 123(2)(b); and

(b)when filing the application, deposit with the court –

(i)$400; or

(ii)if a greater amount is prescribed – that amount.

(4)Subsections (1) and (2) do not, by implication, prevent the amendment of the application.”

  1. Section 131 provides that the Registrar of the Supreme Court must give a copy of the application to the candidate who was elected and the Commission unless it was the Commission that filed the application. In accordance with that section, notice was given on 20 April 2009 to the successful candidate, Steven Kilburn, and to the Commission, of the filing of the originating application.
  1. The parties to an application are set out in s 133.  They are: the person who filed it; the Commission; and the person who was elected if that person, within seven days after receiving a copy of the application, files a notice in the Supreme Court Registry in Brisbane stating that the person wishes to be a respondent.  That was done in this case so the parties are the applicant, Andrea Caltabiano; the first respondent, the Commission; and the second respondent, Steven Kilburn.
  1. Section 134 sets out how the application is to be dealt with by the Court and provides that the Court of Disputed Returns is not bound by technicalities, legal forms or rules of evidence and must deal with the application as quickly as is reasonable in the circumstances. Subsection (6) provides that the rules of the Supreme Court may include provision with respect to the practices and procedures of the Court of Disputed Returns so long as they are not inconsistent with Part 8 Div 1 of the Act.  Subsection 134(7) provides that:

“Without limiting subsection (6), the rules of court may make provision regarding the withdrawal of applications, the consequences of the death of applicants and the substitution of applicants in such circumstances.”

  1. The rules of court referred to are the rules which govern the civil rather than the criminal jurisdiction of the court. No specific provisions have been made in those rules, the Uniform Civil Procedure Rules (UCPR), for proceedings in the Court of Disputed Returns.  Since the Court of Disputed Returns is part of the Supreme Court, in the absence of rules specifically covering its procedure, its procedure is governed by the UCPR unless any rule found in the UCPR is inconsistent with Part 8 Div 1 of the Act.  This is consistent with the assumption made by Ambrose J in Tanti v Davies (No. 2) [1996] 2 Qd R 591 at 595 and the authorities therein referred to, which provide that when a jurisdiction is conferred on a court, the legislature takes the court as it finds it with its rules and procedures unless it specifically says otherwise.  Ambrose J held of this Act:

“The Act constitutes the Supreme Court of Queensland as the Court of Disputed Returns.  I proceed on the basis that the general practice of the Supreme Court ought be followed except where it is apparent from the terms of the Electoral Act that some rule of practice ought not be applied.  In this respect I refer to the observations of Dixon J in Australian Tramway and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW) (1935) 54 C.L.R. 470 at 502-503 and to the judgment of the Full Bench of the High Court in Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 C.L.R 554 at 560.

  1. As Chesterman J held in Skyring v Electoral Commission of Queensland at [16] the power exercised by the Supreme Court Judge sitting as the Court of Disputed Returns is that of the Supreme Court.  It follows from the reasoning of Chesterman J that, as the Court of Disputed Returns is the Supreme Court, the rules which govern the civil jurisdiction of the Supreme Court apply to the Court of Disputed Returns.
  1. Section 140 deals with costs. It provides that the Court of Disputed Returns may order an unsuccessful party to the application to pay the reasonable costs of the other parties to the application. If costs are awarded against the applicant, the deposit filed with the application must be applied toward the payment of the costs and if not the deposit must be returned to the person. The deposit is therefore a pledge or form of security.

Applications to dismiss the application

  1. On 23 April 2009, various directions were given by the court including an order that any application for leave to amend the application or to strike out the whole or part of the application or under s 132 of the Act be filed by 5 May 2009.
  1. On 1 May 2009, the Commission filed an application for orders pursuant to s 136(2)(d) of the Act which provides that the court may make orders which include an order to dismiss the application in whole or in part.  Amongst the orders sought was the following:

“The originating application in this proceeding filed on 14 April 2009 (‘the originating application’) be dismissed on the ground that the applicant has not complied with the requirement of s 130(3)(b) [of] the Act that the applicant deposit with the court $400 when filing the originating application.”

  1. Filed with the application was an affidavit by the Assistant Crown Solicitor, Administrative Law Team, who deposed that on 23 April 2009 he requested a search be conducted in the Supreme Court Registry of the fees and deposits paid by the applicant in the application. He exhibited a copy of the certificate of search provided by the Deputy Registrar in response to that request. The Deputy Registrar of the Supreme Court, sitting as the Court of Disputed Returns in Brisbane, certified that a search of the records in her custody disclosed that:

“1.An Originating Application for the above matter was issued in favour of the applicant in the Supreme Court of Queensland, sitting as the Court of Disputed Returns at Brisbane on 14 April 2009.

  1. The filing fee payable for an originating process under Schedule 1, Item 1 of the Uniform Civil Procedure (Fees) Regulation 1999 and the fee payable pursuant to Schedule 1 of the Appeal Costs Fund Regulations 1999, were paid by the applicant.
  1. No deposit pursuant to s 130(3)(b) of the Electoral Act 1992 has been received at this office as at close of business 27 April 2009.”
  1. The application has stamped on it that a fee of $502.50 was paid on 14 April 2009 when it was filed and subsequently handwritten on it that a deposit of $400 was received on 5 May 2009, some three weeks after it was filed.
  1. On 5 May 2009 the second respondent, Steven Kilburn, filed an application seeking inter alia an order that:

“The originating application in this proceeding filed on 14 April 2009 (‘the originating application’) be dismissed on the ground that the applicant has not complied with the requirement of s 130(3)(b) of the Act that the applicant deposit with the court $400 when filing the originating application.”

  1. On 5 May 2009, the applicant filed an interlocutory application seeking orders to amend the originating application to amend the facts relied upon to dispute the election and for directions. In support of that application and in response to the material filed by the first respondent, the applicant filed on 5 May 2009 an affidavit by Liam Polkinghorne, a law student and part-time law clerk working for a barrister.
  1. Mr Polkinghorne deposed that on the morning of 14 April 2009 he telephoned the Brisbane Registry of the Supreme Court of Queensland seeking information about what payments were required for an application to the Court of Disputed Returns. He received no useful information. Those phone calls have no relevance to the outcome of this application. He then deposed to events that happened later on the same day. He said in paragraphs 5 and 6 of his affidavit:

“5.Later on Tuesday 14th April 2009 I witnessed the signing of the Application in these proceedings by the Applicant, ANDREA MICHELE CALTABIANO.  I subsequently attended with Ms Caltabiano and Pravilesh Premikash Chand, a solicitor employed by BCI Lawyers at the Brisbane Registry of the Supreme Court of Queensland.  I had with me a copy of the Electoral Act 1992.

 

  1. We approached the counter and I recall telling the female clerk that we wanted to file an application to the Supreme Court of Queensland sitting as the Court of Disputed Returns.  I had section 130(3)(b) of the Electoral Act 1992 open and said to the female clerk in the following words or words to the effect that ‘under the Act that when filing the application, deposit with the court $400 or if a greater amount is prescribed that amount’.  The female clerk left the counter and returned to us.  She then looked at a document and said ‘that will be $502.50’.  At this stage Ms Caltabiano wrote out a cheque for $502.50 and gave it to the clerk.”
  1. On 1 May 2009 the first respondent also filed an affidavit by the Director of Election Operations at the Commission whose duties include the operational conduct of the Queensland State elections. He deposed to the conduct of the election, the members elected and the return of the writ.
  1. The application came on for hearing on 6 May 2009 and I ruled, giving ex tempore reasons,[1] that on the evidence as it presently stood and on the basis of the submissions that had been made before me at that stage I would not summarily dismiss the originating application on the ground that the applicant had not complied with s 130(3)(b) of the Act.  I then gave further directions for the interlocutory matters requiring attention before the matter could be heard.
  1. On 8 May 2009, the first respondent filed an affidavit by Alicia Chantel McPaul, an administrative officer employed in the civil registry of the Supreme Court of Queensland who was serving on the civil registry counter in the Supreme Court Registry on 14 April 2009. She deposed as follows:

“3.Sometime after 2pm, I recall that a male person approached my counter with a female person.  It appeared that another male person was also with them, but standing in the background.

  1. The parties handed me a document.  I looked at the document and saw that it was an originating application for hearing in the Court of Disputed Returns and that the applicant in the matter was Andrea Michele Caltabiano.
  1. I was not familiar with the Court of Disputed Returns so I explained that I would seek assistance about this application.  I left the counter and entered the registry seeking assistance.  I was not able to locate anybody to assist me so returned to the counter.
  1. I then proceeded to commence processing the application for filing.  Generally, I stamp the document with the filing date, get a file number for the parties, and then ask if they have any preferred hearing dates.  In this case, the parties had nominated Monday, 11 May 2009 for hearing.
  1. I listed the application for hearing in CIMS (the court civil case management database) and charged the parties a filing fee.  I am unable to recall whether I told the parties that there was a ‘filing fee’ or simply a ‘fee’ payable on filing this application, but I recall that I informed them of the amount of $502.50.
  1. The female person took out a cheque book and wrote a personal cheque for the filing fee.  She asked to whom the cheque should be made and I told her ‘Department of Justice and Attorney-General’.
  1. I processed the payment for the filing of the document and produced a receipt.  The document annexed and marked ‘ACM1’ is a true copy of the receipt provided to the parties in the matter.
  1. There was no discussion at any time between myself and the parties about the fee payable to include a deposit in this matter.  I was not aware that a deposit needed to be paid in this type of matter.  The parties did not mention the payment of a deposit in this matter to me at any time.
  1. I have had an opportunity to read the affidavit of Liam Guy Polkinghorne dated and sworn 5 May 2009.  I reject the assertion by Mr Polkinghorne in paragraph 6 of his affidavit that the parties told me that they wanted to file an application in the Court of Disputed Returns.  The reason I became aware of the parties wanting to file the application in the Court of Disputed Returns is because I read it on the header of the originating application.
  1. I also reject the assertion by Mr Polkinghorne that he at any time produced to me or directed me to the Electoral Act 1992, in particular section 130, and the need for the payment of a deposit of $400 with the Court.  At no time was the payment of a deposit of $400 ever mentioned to me by the parties in this matter.  I was not aware of the provisions of the Electoral Act 1992 which required a deposit to be paid in matters of this type.”
  1. The receipt referred to in paragraph 9 of her affidavit, shows receipt of $502.50 from AM and MA Caltabiano made up of payments of $482.00 for “Supreme Court, Originating Application” and $20.50 for “Supreme Court, Appeal Costs Fund.” $482.00 is the fee prescribed for filing on application which is an originating process, as this document was, in the Supreme Court of Queensland. Rule 971(1) of the UCPR provides that:

“A document may be filed only if any prescribed fee for filing it is paid when the document is given to the registrar.”

  1. Rule 971(9) provides that:

“In this rule – relevant fee means the fee payable under the Uniform Civil Procedure (Fees) Regulation 1999, (the ‘Regulation’) schedule 1, item … 1(2)(a) … for filing … -

(b)any application that is an originating process.”

  1. Item 1(2)(a) of the Regulation stipulates a fee of $482.00 for filing any application that is an originating process in the Supreme Court.
  1. $20.50 is the additional fee required to be paid on any originating process in the Supreme Court under s 10(a) of the Appeal Costs Fund Act 1973 (Qld) and Schedule 1 Item (a) of the Appeal Costs Fund Regulation 1999.
  1. Accordingly, the receipt shows payment of the amounts prescribed for payment when a party files an application which is an originating process in the Supreme Court.
  1. Following receipt of that material the matter was listed for further directions before me on 13 May 2009. I ordered that any further evidence to be relied upon by any party regarding the applications to strike out the originating application be filed by 4.00pm on Friday 15 May 2009 and that the applications to strike out on the ground of failure to pay the deposit be listed for Tuesday 19 May 2009 at 2.30pm. I stayed all other directions until this matter was determined. There was no opposition to those directions.
  1. On 15 May 2009 the applicant filed an affidavit by Mr Chand from the firm of solicitors acting on her behalf. He deposed that he was instructed by his principal to go to the barrister’s chambers and accompany the applicant to the Supreme Court Registry to lodge the application. He attended at the Registry with Ms Caltabiano and Liam Polkinghorne. He deposed that prior to leaving the barrister’s chambers, Mr Polkinghorne printed a copy of what Mr Chand understood was a section of the Act. In paragraphs 5 and 6 of his affidavit he deposed:

“5.I can not recall the exact conversation other than to say that the registry officer did not seem to know much about the Court of Disputed Returns.  I remember that most of what was discussed was about the amount to be paid.  I was standing next to Andrea Caltabiano and Liam and a bit to one side.  Liam did all of the talking.

 

  1. Whilst I can not recall the conversation between the registry officer and Liam.  I remember that Liam had in front of him the copy of the document that he had printed earlier.  I remember that Andrea Caltabiano wrote out a cheque for the amount nominated by the registry officer.  I can not recall this amount.”
  1. An affidavit was filed by the applicant, Ms Caltabiano on 18 May 2009. No point was taken about it being filed after the time set by the directions. In that affidavit she gave evidence of what occurred when she, Mr Chand and Mr Polkinghorne went to the Supreme Court Registry. She says:

“6.When our number was called the three of us went forward to the counter.  I recollect that I was standing in the middle with Mr Chand on one side and Liam on the other side.  As best I can recollect it was at some time after 2pm on that day.

 

  1. My recollection is that the solicitor did not speak at all and Liam did the speaking on our behalf.

 

  1. I recollect Liam saying words to the effect that we have a lodgement for the Court of Disputed Returns.

 

  1. I recollect the lady at the counter had a look at the documents that Liam had provided.  I recollect the lady then saying words to the effect just a moment.  She then left the counter and went away.

 

  1. I recollect the lady then coming back and saying to Liam words to the effect yes that is okay.

 

  1. I do not now recollect whether Liam asked or the lady without prompting nominated how much had to be paid.  However, she ultimately told us a figure.

 

  1. I then said words to the effect who do I make the cheque out to.  The lady behind the counter had then informed me of who to make the cheque out to, which I did to the payee she had nominated and in the amount she had stated and handed it to her.

 

  1. My recollection is that Liam had some documents in his hand, but I do not recollect what those documents were.”
  1. When the matter came on for hearing on 19 May 2009, only Ms McPaul and Mr Polkinghorne were required for cross-examination.
  1. Ms McPaul said in cross-examination that she remembered the occasion when this matter was filed because it was the first time she had dealt with a matter in the Court of Disputed Returns. She said three people approached the counter, the applicant and a younger gentleman and a third person who was in the background. She noted that the document had the heading “Court of Disputed Returns” and, as she was unfamiliar with that jurisdiction, went away to seek advice from her supervisor. She was unsuccessful in obtaining assistance so returned to the counter and took the documents for filing. She told Ms Caltabiano the filing fee and Ms Caltabiano wrote a personal cheque for that amount, $502.50. Ms McPaul stamped the application to show on its face that the filing fee had been paid. The administrative officer was unaware at that time of the statutory requirement in the Electoral Act for a deposit of $400 to be paid as well.
  1. She made rough notes of what had occurred after speaking to her superior officer in the Registry, spoke again to senior registry officers and was then interviewed by an officer from Crown Law who showed her Mr Polkinghorne’s affidavit on which she was asked to comment. She did not use her notes during the interview with the officer from Crown Law or in the preparation of her affidavit because she did not need them to remember what had happened.
  1. Ms McPaul was very frank in giving her evidence and readily conceded that it was possible that things were said that she no longer recollected or that she was shown a piece of legislation. It seems however to be quite unlikely that Mr Polkinghorne communicated to her about the requirement to pay the deposit or showed her the relevant section of the relevant Act. The conclusion of her cross-examination by Mr Dunning SC was instructive:

“You can't dispute positively that Liam, as you call him, when he came up to the counter said something along the lines of, ‘Under the Act when filing the application we have to deposit with the Court $400 or if a greater amount is prescribed, that amount.’?-- I can't with a hundred per cent certainty say that never happened, but I'm quite sure that that conversation didn't take place.

 

Would it be more accurate to say you don't remember that being said?-- I don't believe it did.  I don't believe it was said.

 

But you can't say that for certain?--  No.”

  1. While she readily conceded a lack of one hundred per cent certainty she was quite sure that he had not said those words to her.
  1. After Ms McPaul was cross-examined, Mr Polkinghorne was cross-examined. He admitted that, contrary to what appeared in his affidavit, he did not take a copy of the Act with him but rather that he printed out Part 8 of the Act which included s 130.  He agreed with Mr Rangiah SC that the words in quotes in paragraph 6 of his affidavit “under the Act that when filing the application, deposit with the court $400 or if a greater amount is prescribed that amount” were not precisely what he said.  It does appear when one reads those words that other words would have had to have been inserted for the statement to make sense.  He did not agree when it was put to him that he did not say those words or words to that effect.  Mr Polkinghorne was inexperienced in filing documents and was unaware of what the filing fee for filing an originating application was.
  1. It remains for the court to determine precisely what did happen on the basis of the evidence from Ms McPaul, Ms Caltabiano, Mr Chand and Mr Polkinghorne. I am satisfied on the balance of probabilities that what occurred was that some time not long after 2.00pm on 14 April 2009, Mr Polkinghorne, Ms Caltabiano and Mr Chand, the solicitor, went to the civil registry counter at the Supreme Court. Mr Polkinghorne had brought with him an originating application to file in this matter, and a print out of Part 8 of the Act. Ms Caltabiano brought her cheque book and Mr Chand attended without any particular role except that he worked for the firm of solicitors acting for Ms Caltabiano. The three of them approached the counter when their number was called but Mr Chand stayed in the background.
  1. Ms McPaul was the registry officer on duty at the counter. She took the document for filing and noted that that court heading on the Originating Application included the words “Court of Disputed Returns”. She went away to seek assistance because she was unfamiliar with the Court of Disputed Returns but could not find any superior officer from whom to seek assistance so she returned to the counter and said that she would take the document. Mr Polkinghorne knew of the requirement in the Electoral Act to pay a $400 deposit but, if he did attempt to communicate that to the registry clerk, then he failed to do so.  Mr Polkinghorne is quietly spoken, he did not have a distinctive copy of the Act such as a pamphlet copy of the Act with him and I am satisfied that Ms McPaul did not know of the statutory requirement to pay a deposit of $400.  Mr Polkinghorne failed to communicate that to her and when Ms McPaul told the parties that the filing fee was $502.50, that amount was paid by Ms Caltabiano.  Accordingly the filing fee of $502.50 was paid when the application was filed but the deposit of $400 was not.
  1. These findings accord with the evidence of Ms Caltabiano and Mr Chand who were not challenged; and the evidence of Ms McPaul who gave her evidence honestly and forthrightly and made appropriate concessions. She remembered the occasion and I have little doubt that had she specifically had her attention drawn to the relevant provision of the Electoral Act or told of the requirement to pay $400, she would recall that and would not have ignored it and instead requested only the filing fee.
  1. The applicant’s primary submission was that no filing fee was payable and that therefore the payment made could be taken to be payment of the deposit. The submission was based on the erroneous premise that the Court of Disputed Returns is quite separate from the Supreme Court. As I held in paragraph [7], s 127 of the Act provides that the Supreme Court is the Court of Disputed Returns.  It follows that if a filing fee is to be paid to file any application which is an originating process in the Supreme Court then, unless that is inconsistent with Div 1 of Part 8 of the Act, it is to be paid when filing an application which is an originating process in the Supreme Court sitting as the Court of Disputed Returns.
  1. There is no relevant inconsistency with Part 8 of the Act. Failure to pay the filing fee will not render the application ineffective under the Act. It will merely raise a debt that is required to be paid. However, the filing fee was paid in this case and there is no debt owing.
  1. However, the deposit was not paid when the application was filed. The payment of such a deposit is a requirement if the application filed is to be effective under the Act. Subsection 130(1) makes that apparent in the clearest possible terms when it says that “for an application to have effect for the purposes of this division, the requirements of this section must be complied with.” Those requirements include the requirement found in subsection 130(3)(b) that a person disputing the election must, when filing the application, deposit with the court $400, or if a greater amount is prescribed, that amount.
  1. This is similar in terms of s 84 and s 85 of the Act which provide for how and when a person may be nominated as a candidate.  Section 84(2) provides that to have effect for the purposes of the Act, the nomination must comply with s 84 and s 85.  Section 85(1) provides that at the time the nomination is given to the Commission or returning officer, the candidate (or another on the candidate’s behalf) must deposit $250, or if a greater amount is prescribed, that amount.  As the Court of Appeal held in Clampett v Kerslake (Electoral Commissioner of Queensland) [2009] QCA 104, subsection 85(1) of the Act, “… does not create a debt, but simply requires a deposit of $250 if a nomination of a candidate for election is to be effective.” 
  1. Similarly, s 130(3)(b) of the Act requires a deposit of $400 if an application in the Court of Disputed Returns is to be effective.  The Act provides that the deposit must be paid when filing the application.  That was not done so the application did not have any effect as an application under Part 8 of the Act.
  1. This statutory analysis is supported by authority. In Tanti v Davies (No. 2) [1996] 2 Qd R 591 at 595, Ambrose J held:

“Upon filing a petition pursuant to s 130(3) of the Act, that petition becomes an effective one if it complies with the requirements of section 130(2).

 

If it does not at the time of filing comply with s 130(2), the petition is not effective under the Act by the express terms of s 130(1).  If on the other hand it does comply with the requirements of s 130(2), but is not filed in accordance with the requirements of s 130(3), it does not become an effective petition for the purpose of the Act.”

  1. Subsection 130(4) assumes the existence of a power to amend the application in spite of the mandatory requirements of subsections 130(1) and (2). As Ambrose J held in Tanti v Davies (No. 2) at 595:

“Section 130(4) of the Act obviously refers to the amendment of a petition after it has been filed as an effective petition.  Unless there is a petition effective under the Act, no proceedings even of an interlocutory kind can successfully be taken upon it before this Court.”

As his Honour further said at 596:

“Section 130(4) does not purport to have application to an amendment of anything other than an effective petition.”

  1. Another requirement for the application to have effect, other than the requirement for the payment of the deposit, is that the application must be filed within seven days after the day on which the writ for the election was returned. There is ample authority which supports the view that this requirement is mandatory and if not complied with the application will be of no effect. There is no reason that the court could or should distinguish between the requirement set out in subsection 130(3)(a) and the requirement set out in subsection 130(3)(b) both of which are governed by subsection 130(1) and neither of which are covered by subsection 130(4) which allows for the possibility of amendment.
  1. The Commonwealth Electoral Act 1918 s 358(1) provides that, subject to an exception that is irrelevant for these purposes, “no proceedings shall be had on the [election] petition unless the requirements of sections 355, 356 and 357 are complied with.”  One of those requirements, found in s 355(e), is that the petition must be filed within 40 days after the return of the writ.  There is no power under the Commonwealth Electoral Act for the court to relieve the petitioner from complying with that section.  This is in contradistinction to the power found in s 358(2) which provides that the court may, at any time after the filing of the petition and on such terms (if any) as it thinks fit relieve the petitioner wholly or in part from compliance with paragraph 355(aa).  Section 355(aa) specifies the particularity of the content of the petition. Such relief may be granted only in circumstances set out in s 358(3).  In Rudolphy v Lightfoot (1999) HCA 61 at paragraphs [9] to [13], the High Court held:

“9.The 40 day requirement in s 355(e) is thus one of the requirements which must be complied with if proceedings are to be had on the petition within the meaning of s 358(1).  Section 355 (aa) specifies the particularity of the content of the petition.  Relief from compliance with this provision may be granted pursuant to s 358(2) and (3).  These provisions were added by s 111 (as to s 355(aa)) and by s 113 (as to sub-ss (2) and (3) of s 358) of the Electoral and Referendum Amendment Act 1989 (Cth) (“the 1989 Act”).  Their inclusion emphasises the imperative nature of the other provisions of s 355, including par (e).[2]

 

  1. 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.

 

  1. The present is an example of legislation of the kind identified by Isaacs J in The Crown v McNeil[3] and by Windeyer J in Australian Iron & Steel Ltd v Hoogland.[4]  The 40 day requirement does not, to adapt the terms used by Windeyer J, ‘bar an existing cause of action’; rather ‘[i]t imposes a condition which is of the essence of a new right.’[5]

 

  1. The provision with respect to the 40 day period plainly is designed 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.  Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355.  The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period.  Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but, as indicated above, that is how the matter should be understood.

 

  1. The authorities to which we refer commence with the reasons of Griffith CJ in Cameron v Fysh.[6]  More recently, in Re Barry Ceminchuk,[7] Dawson J dismissed an application seeking an extension of time within which to file a petition.  After referring to s 355(e) and s 358, Dawson J said that the applicant had been unable to point to anything giving power to the Court of Disputed Returns to waive the requirements of s 355(e).  His Honour continued:[8]

‘In Cameron v Fysh,[9] Re Berrill,[10] Nile v Wood,[11] and Sykes v Australian Electoral Commission,[12] it was held that amendment of a petition is not possible if to do so would in effect evade the requirements of s 355(e).  These cases assumed that the requirements of s 355(e) cannot be dispensed with.  That was the express decision of Toohey J in Robertson v Australian Electoral Commission.[13]

 

The applicant urged that s 364 of the Act gives me power to make the orders he seeks.  That section provides that:

‘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.’

Broad as that provision may be, it does not confer a jurisdiction on the Court which it does not otherwise have under the Act.  Nor does it dispense with the requirements of the Act.  It merely requires that the Court should not be unduly formal or technical in the conduct of proceedings under the Act and enables it to depart from the rules of evidence.”

 

  1. Similarly s 134(2) of the Act which provides that the court is not bound by technicalities, legal forms or rules of evidence does not confer a jurisdiction on the court to hear an application which is of no effect under the Act.
  1. In Hansen v Australian Electoral Commission [2000] FCA 606, Kenny J considered the effect on the validity of an application made under Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act (the “ATSIC Act”).  Clause 6 provided that no proceeding should be had on an election petition unless the requirements of clauses 3, 3A, 4 and 5 of the Schedule were met.  Kenny J held at [11]:

“The Court cannot try a petition addressed to it under clause 2 of schedule 4 of the ATSIC Act unless the requirements of clauses 3, 3A, 4 (pursuant to which the petitioner must deposit $100 with the Court as security for costs) and, where applicable, clause 5 are met: schedule 4, clause 6.  The Court has no power to dispense with the need for compliance.”

  1. This view is also consistent with the view expressed with reference to similar provisions by the Full Court of the Supreme Court of South Australia in Featherston v Tully [2002] SASC 243 particularly at [54] per Bleby J with whom Mullighan and Williams JJ agreed.
  1. In Smith v Australian Electoral Commission [2008] FCA 953, Bennett J held that a petition filed under the Commonwealth Electoral Act which failed as a matter of form to comply with s 358 of that Act was incapable of amendment as the 40 day period for filing a petition in proper form had passed.  Following Rudolphy v Lightfoot, Her Honour held that once the 40 day period had expired amendment to the petition was simply not available.  The petition was therefore incurably defective.
  1. That the requirements to file within seven days of the return of the writ with a deposit of $400 are mandatory requirements are found in the terms of the Act. In particular the terms of s 130(1) make it clear that these are mandatory requirements from which the court does not have the capacity to excuse the applicant. 
  1. This is in contrast to the decision of the Elections Tribunal in Re: Nicklin Election Petition; Turner v King [1993] 1 Qd R 513 where under the previous Elections Act 1983 there was no similar provision making the presentation of what was then called the “petition” within a certain period of time necessary for the petition to be effective and Ryan J held that in those circumstances the court had the capacity to excuse strict compliance with it.  Ryan J in that case did not follow Williams v Mayor of Tenby (1879) 5 CPD 135 or Devan Nair v Yong Kuan Teik [1967] 2 AC 31.
  1. In Williams v Mayor of Tenby the giving of notice of the presentation of the petition and of the nature of the proposed security were held to be conditions precedent to the validity of the electoral petition.  The repeal of the Elections Act 1983 and its replacement with the Electoral Act 1991 pursuant to the recommendations of the Electoral and Administrative Review Commission (EARC) which included the insertion of s 130(1) make the persuasive authority of Williams v Mayor of Tenby  and of Devan Nair v Yong Kuan Teik apposite to the case. 
  1. The reasons why the presentation of the application within a limited time are necessary are set out in detail in a number of cases including Devan Nair v Yong Kuan Teik at 44-45.  As I have already observed there is no basis in statutory construction for considering the requirement to pay a deposit any differently.  The justification given in Williams v Mayor of Tenby appears to be one of the desirability of certainty if it is sought to impugn the election.  There is public interest in the determination of elections happening speedily and with certainty and that the conditions precedent to an election being successfully challenged also being known with certainty. 
  1. EARC referred to policy reasons for the requirement to pay a deposit with the application in its Report No. 7 “The Review of the Elections Act 1983-1991 and Related Matters” which led to the introduction of the Electoral Act 1991, at para 13.81 – 13.84.  The discussion of the question of indexing the deposit is not relevant but the rest of the discussion provides some insight into the policy reasons for providing that a deposit must be paid into court with the application for the application to have effect.

“13.81Further issues raised in the Issues Paper were whether the security required to be paid into court with the petition should be indexed, and whether it should be forfeited if, without sufficient cause, the petitioner does not proceed.

 

13.82As to indexing the security, no other Australian jurisdiction provides for this effect.  Such a provision would be an added administrative burden for the court though it is arguable that such a provision is necessary in order to keep all monetary units mentioned in the Act up to date.

 

13.83The forfeiture of the security if the petitioner does not proceed with the action without sufficient reason is something of a deterrent against lodging frivolous claims when there is no intention of pursuing them and which may serve to damage the reputation of persons named in the petition.

 

13.84The current security required to be paid into court with the petition ($400) is only slightly higher than that required in other Australian jurisdictions.  If the security were to be increased, it might deter persons wishing to bring an action, yet conversely its decrease may not serve as a sufficient deterrent to persons bringing frivolous actions.”

  1. The recommendation arising from this found its expression in s 130 of the Act.  The policy reason for requiring a deposit to be paid when the application is filed is said to be to deter frivolous actions. Some may regard, with some justification, that this result works inconvenience or worse[14] but that is no reason not to apply the natural meaning of the Act and the policy choice of the legislature.
  1. In the Act, both the time limitation and the deposit limitation are contained in s 130(3) and as I have said there is no reason of statutory interpretation to distinguish between them.  As the time limitation is an essential condition or jurisdictional requirement, it follows that the deposit requirement is of similar effect.
  1. As I said when delivering the ex tempore judgment on 6 May 2009:

“It is therefore essential to the validity of an application to dispute an election that the application is filed within seven days after the date on which the writ for the election is returned and that a deposit of $400 or, if any greater amount is prescribed, that amount is paid when the application is filed.  If either condition is not complied with, the application is incurably defective.”

  1. As the deposit was not paid and the intention of the party paying the money was not conveyed to the member of the Registry staff receiving that money the general rule stated by Cussen J in Beattie v Fine [1925] VLR 363 at 375 that “where money is paid it is to be applied according to the will of the payer, and not of the receiver” has no application.  The will of the payer must be made known to the receiver otherwise the receiver is free to apply the payment to any debt.  In this case the only debt was the payment of the filing fee and the monies were appropriated by the receiver of the monies to that debt.  The rule that applies in that situation was stated by Lord Macnaghten in Cory Brothers & Co v Owners of the Turkish Steamship “Mecca” [1897] AC 286 at 293:

“When a debtor is making a payment to his creditor he may appropriate the money as he pleases, and the creditor must apply it accordingly.  If the debtor does not make any appropriation at the time when he makes the payment the right of application devolves on the creditor.”

  1. An undisclosed intention in the mind of the person making the payment is not sufficient to support an appropriation: see Leeson v Leeson [1936] 2 KB 156 at 162-163 per Green LJ quoted with approval by the Full Court of the Federal Court in Knysh v Corrales Pty Ltd (1989) 15 ACLR 629 at 633.

Conclusion

  1. As the deposit of $400 required to be paid under s 130(3)(b) of the Act for an application to dispute an election to have effect was not paid, the application filed is not effective under Part 8 of the Electoral Act and must be struck out.  I order that the originating application in this proceeding filed on 14 April 2009 (“the originating application”) be dismissed on the ground that the applicant has not complied with the requirement of s 130(3)(b) of the Act that the applicant deposit with the court $400 when filing the originating application.
  1. I will hear submissions as to costs.

Footnotes

[1] [2009] QSC 109

[2] Nothing turns upon the other sections referred to in s 358(1), ss 356 and 357.  The first of these deals with the provision of security for costs and the second with a petition filed by the Australian Electoral Commission.

[3] [1922] HCA 33; (1922) 31 CLR 76 at 100-101.

[4] [1962] HCA 13; (1962) 108 CLR 471 at 488-489.

[5] [1962] HCA 13; (1962) 108 CLR 471 at 488.  See also David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 276-277; Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 at 130-131, 156.

[6] [1904] HCA 49; (1904) 1 CLR 314 at 316.

[7] Unreported, Court of Disputed Returns, 28 October 1993.

[8] Unreported, Court of Disputed Returns, 28 October 1993 at 2-3.

[9] [1904] HCA 49; (1904) 1 CLR 314 at 316.

[10] (1978) 52 ALJR 359 at 360; 19 ALR 254 at 255.

[11] [1988] HCA 30; (1988) 167 CLR 133 at 137.

[12] [1993] HCA 36; (1993) 67 ALJR 714 at 716-717; 115 ALR 645 at 648.

[13] [1993] HCA 50; (1993) 116 ALR 407 at 408-409.

[14] See Clayton v Heffron (1960) 105 CLR 214 at 247.

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Editorial Notes

  • Published Case Name:

    Caltabiano v Electoral Commission of Queensland and Anor (No 2)

  • Shortened Case Name:

    Caltabiano v Electoral Commission of Queensland (No 2)

  • MNC:

    [2009] QSC 138

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    03 Jun 2009

Litigation History

Event Citation or File Date Notes
Primary Judgment [2009] QSC 138 03 Jun 2009 -
Appeal Determined (QCA) [2009] QCA 182 26 Jun 2009 -

Appeal Status

{solid} Appeal Determined (QCA)