Innes v Electoral Commission of Queensland (No 1)
[2020] QSC 273
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- Unreported Judgment
- Innes v Electoral Commission of Queensland (No 1)[2020] QSC 273
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Innes v Electoral Commission of Queensland (No 1)[2020] QSC 273
Innes v Electoral Commission of Queensland (No 1)[2020] QSC 273
SUPREME COURT OF QUEENSLAND
CITATION: | Innes v Electoral Commission of Queensland & Anor (No 1) [2020] QSC 273 |
PARTIES: | DONALD JAMES INNES v ELECTORAL COMMISSION OF QUEENSLAND (first respondent) MARK BRYAN JAMIESON ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND |
FILE NO: | BS 5067 of 2020 |
DIVISION: | The Court of Disputed Returns |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane sitting as the Court of Disputed Returns |
DELIVERED ON: | 22 September 2020 |
DELIVERED AT: | Brisbane |
HEARING DATES: | On the papers 31 August 2020 (application to re-open); 15 September 2020 (respondents’ submissions); 18 September 2020 (applicant’s submissions in reply). |
JUDGE: | Ryan J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where the applicant disputes the outcome of the Sunshine Coast Regional Council mayoral election of 28 March 2020 – where the Supreme Court sitting as the Court of Disputed Returns heard the application on 21 August 2020 and reserved its decision – where the applicant filed an application to re-open on 31 August 2020 – where the Court set a procedural timetable for the hearing, designed to ensure the timely exchange of outlines and evidence – where there is a legislative imperative to resolve applications which dispute the outcome of an election in an expeditious way – where the applicant seeks to re-make arguments already made and introduce additional material – whether exceptional circumstances warranting a re-opening exist – whether the interests of justice are served by the Court re-opening the hearing Local Government Electoral Act 2011 (Qld), s 142, s 145(2) Autodesk v Dyason (No 2) (1993) 176 CLR 300 |
SOLICITORS: | The applicant appeared for himself GR Cooper of Crown Law for the first respondent Holding Redlich for the second respondent Crown Law for the Attorney-General intervening |
Background
- [1]On 21 August 2020, the Court of Disputed Returns heard Mr Innes’ application, disputing the election of Mr Jamieson as Mayor of the Sunshine Coast Regional Council on 28 March 2020. At the end of the hearing, I reserved my decision, conscious of the need to use my best efforts to ensure that my final orders were given within 14 days (that is, by 4 September 2020) in accordance with s 142(4) of the Local Government Electoral Act 2011 (“LGEA”).
- [2]Just days after the hearing, on 24 August 2020, Mr Innes decided to apply to re-open the matter. He so advised the respondents and the intervenor. He filed his application to re-open on 31 August 2020, together with supporting material. I had, in the meantime, been preparing my decision in the substantive matter with a view to delivering my reasons within 14 days of the hearing as required. That goal has been de-railed by this application.
- [3]Mr Innes is self-represented. He asked me to deal with his application to re-open on the papers and the other parties were content for me to do so. Accordingly, I set a timetable for the provision of written submissions in response to Mr Innes’ application and Mr Innes’ reply to those written submissions.
- [4]For the reasons which follow, I dismiss the application to re-open the hearing.
- [5]Mr Innes argues that the respondents need to come with “clean hands” before they are entitled to their costs. Even if that were the approach mandated by the Uniform Civil Procedure Rules 1999 or relevant authorities, I see no reason why Mr Innes should not pay the costs of the first and second respondents of this application and I so order.
Procedural approach to hearing
- [6]Although he was self-represented, Mr Innes did not lack confidence nor did he appear intimidated by the legal representatives for the other parties. He informed the Court that an academic with expertise in electoral law had provided him with relevant material. He demonstrated an understanding of legislation, at least on its face, and a basic understanding of the procedural requirements for the hearing.
- [7]Mr Innes was given ample time to prepare for the substantive matter – including time to obtain legal representation although he ultimately represented himself.
- [8]The hearing on 21 August 2020 followed a series of reviews on 20 May 2020, 29 May 2020 and 6 June 2020.
- [9]The Court set a timetable for the hearing, designed to ensure the timely exchange of outlines and evidence, and to keep the matter on track.
- [10]There is a legislative imperative to resolve applications which dispute the outcome of an election in an expeditious way, reflected in s 142 of the LGEA. However, at Mr Innes’ request, the timetable in this case made allowances for Mr Innes’ personal difficulties as a self-represented litigant with a small business to run. Mr Innes was only available on Friday of each week to devote time to this matter and, for that reason, the timetable was a protracted one – leading to a relatively lengthy time between the filing of Mr Innes’ application and the hearing.
- [11]The extended lead-up to the hearing was, in my view, to Mr Jamieson’s particular disadvantage, because it is his election which is under challenge. However, he raised no issue about the relatively slow progress of the matter; nor did the Electoral Commission of Queensland (“ECQ”) nor the intervenor.
- [12]Notwithstanding that the timetable had been set to accommodate Mr Innes, he did not comply with it when it came to the filing of evidence. He filed several affidavits late. He said – in effect – that he had done the best he could to file his material on time. I have reserved my decision on whether to admit his late-filed evidence and will include that decision in my final reasons in the substantive matter.
- [13]At the hearing, Mr Innes cross-examined the witness called by the ECQ and made oral submissions. Mr Innes was permitted latitude in his cross-examination and the respondents were, in my view, appropriately restrained in their objections to his advocacy. Mr Innes was also permitted great latitude in his written and oral submissions.
The application to re-open
- [14]The basis of Mr Innes’ application to re-open is not easy to understand.
- [15]Doing the best I can, and speaking generally, it seems that Mr Innes asks the Court to re-open the hearing so that he may make further submissions about, and challenge, the evidence led by the respondent at the hearing because, he says, it would be otherwise unfair.
- [16]He suggests that he was taken by surprise by “the removal and re-instatement of online nominations publications” and says, in effect, that he was not able to peruse those publications until after the hearing. He complains about references to well-known authorities or text books by the legal representatives about which he had no notice. He complains about evidence from the bar table from counsel for the ECQ (about the scheduling of visitor elector visits). He also says that he was unable to acquire information from the Human Rights Commissioner in time for the hearing which he now wishes to introduce.
- [17]He concludes a document entitled “Notice of Intention to File an Application to Re-Open the Hearing Conducted 21st August 2020” with the following paragraph (grammar and capitalisation as per original) –
I DO believe that justice would be served IF the letters to and from the HR Commission were a part of consideration, and so IF the matter can be listed to deal with the surprise engineered other then that could be admitted.
- [18]Mr Innes’ formal application to re-open the hearing (filed on 31 August 2020 as noted above) alleges that “surprises were engineered at the hearing” which were “designed” to cause a denial of natural justice and which amount to “effective procedural unfairness”.
- [19]I think that the basis for those assertions is that the ECQ’s outline of argument and the second respondent’s oral submissions referred to cases not contained in the list of authorities provided to the Court; although Mr Innes might also be referring to the publication of the nomination forms of candidates for the Sunshine Coast Regional Council. He says –
- [11]However, the upshot is that oral outline [in writing] was handed up which included material that was a complete surprise to me & further than I was unaware that the (I say) improperly removed online nomination “prescribed information” publication material was re-published without me being notified at all – depriving me of the opportunity to question the ECQ.
- [12]Had that opportunity NOT been engineered away from me, in the manner that it was, I believe that I would have been able to establish conclusively that the nomination & “prescribed information” was NOT properly published – as according to the details set out in my Facebook post Tuesday 4th August – “ECQ removing electronic links from publication” listed in the SCHEDULE OF FACEBOOK LINKS ELECTRONIC USE (Exhibit C to the Affidavit D J Innes Court Document No. 26). That post has “reached” 2,158 “people” as at the time of writing.
- [20]I pause to note that document 26 was a document filed late and I am yet to rule on its admissibility in the substantive proceeding.
- [21]In his application document, Mr Innes develops his argument about his inability to prove that the ECQ failed to publish the prescribed information as required at the hearing.
- [22]Mr Innes also wishes to make other arguments (as I understand him) about the allegedly unlawful “cancellation” of mobile polling booths, the Acts Interpretation Act 1954, and s 200L LGEA.
- [23]Mr Innes supported his application to re-open with an affidavit which contains mostly correspondence between the parties about the “Joint List of Authorities” prepared for the hearing.
The ECQ’s response to the application to re-open
Applicable principles
- [24]The ECQ outlined the principles which apply to applications to re-open, having regard to the Uniform Civil Procedure Rules 1999 and the general law.
- [25]Those principles may be briefly stated as follows –
- submissions should not be received after a hearing has concluded, in the absence of “very exceptional circumstances”[1];
- the opportunity for a party to put his or her case, in accordance with the rules of natural justice, is given at the hearing and “a party has no legal right to continue to put submissions to the Court [oral or written] after the hearing”[2] has concluded;
- the jurisdiction to re-open is not to be exercised for the purposes of “re-agitating” arguments already considered by the Court;[3]
- the jurisdiction to re-open is not to be exercised simply because the party seeking a re-hearing has failed to present their argument in all its aspects, or as well as the party might have wished to.[4]
- [26]To those principles, I add the following –
- a matter may be re-opened when the interests of justice require it;
- the interests of justice may (but not must) require a re-opening if new evidence has come to light (which could not have been discovered before the trial) which would probably produce a different result; and
- finality is important in litigation.
Submissions
- [27]The ECQ submits, in effect, that the application of these principles would lead to my dismissing the application to re-open the hearing. It is not enough that Mr Innes failed to anticipate his opponents’ arguments, and any new evidence he claims to have uncovered is irrelevant to the issues for the Court of Disputed Returns. Further, there has been compliance with s 31 of the Human Rights Act 2019. Mr Innes has already been given a reasonable opportunity to be heard, to present his case and to respond to the arguments of the respondents and the intervener.
The second respondent’s response to the application to re-open
- [28]The second respondent also submits that the application to re-open ought to be dismissed, emphasising the importance of finality in litigation and the importance of the judicial system running efficiently so as to maintain public confidence in it.
- [29]The second respondent makes the point that one of the applicant’s purposes in seeking the re-opening of the matter is to seek an order for further disclosure of material (relating to the publication by the ECQ of the nomination forms for candidates) which is, in any event, irrelevant to the issue for the Court of Disputed Returns. (I note that, in his application, Mr Innes seems to be asking for an order from the Court that the ECQ provide “precise copies of EXACTLY what was published at ALL MATERIAL TIMES”.)
- [30]Further, the second respondent submits that Mr Innes is involved in a fishing expedition for information which would enable him to re-run arguments he has already made.
- [31]As to the issue about notifying Mr Innes of relevant authorities, the second respondent submits that there is no natural justice obligation requiring one party to notify the other of the authorities upon which they intend to rely. Nor do the Uniform Civil Procedure Rules 1999 require such notification.
- [32]The second respondent submits that the applicant, who was the moving party in these proceedings, has been provided with a fair opportunity to put his case. The fact that he failed to identify authorities relevant to his submissions prior to the hearing is not a ground for allowing him to prolong the litigation, at further cost to all parties, and to agitate the same matters.
- [33]Further, the principle of finality has “particular resonance” in the present matter because of the statutory imperative to deal with the matter as quickly as reasonably possible.
- [34]Both the first and second respondents point out that whatever issue Mr Innes has with the ECQ about taking down from publication the “prescribed information” about candidates (which seems to dominate his concerns), that conduct occurred after the election of the second respondent as Mayor and could not possibly be said to have any relevance to the question for the Court.
Mr Innes’ reply submissions
- [35]Mr Innes provided written submissions in reply to the respondents’ submissions. I have, of course, taken them into account. Mr Innes disputes the suggestion that he is seeking to re-litigate matters already raised. And he now seeks (as I understand him) an order for the “production of the election period online publication”.
Conclusion
- [36]The interests of justice in matters to be decided by the Court of Disputed Returns are served, in my view, by prioritising expediency and finality – although not at the expense of a fair trial.
- [37]In dismissing Mr Innes’ application, I have taken into account that he was given more than enough time to prepare his matter for hearing and that no issue was taken with the content of his material, which included statements and accusations which would not be tolerated from a represented litigant.
- [38]Notwithstanding the generous timetable, and a generous approach to the content of his material, he failed to file on time. He now seeks to re-open the matter and to re-hash, or approach from another angle, arguments which he has already made.
- [39]In my view, the interests of justice are not served by this Court re-opening the hearing for Mr Innes’ purposes including to let in additional material.
- [40]I find that the ECQ behaved fairly in its approach to this matter. Mr Innes’ complaints to the contrary are unfounded. The ECQ’s conduct is exposed in the email exchange Mr Innes tendered in support of his application to re-open. In that exchange indeed, in all of the correspondence I have seen and in the ECQ’s attitude to the hearing overall, I have detected nothing but patience (tempered with appropriate firmness) and propriety.
- [41]As to Mr Innes’ complaints about references to authorities of which he was unaware, I observe that it is of assistance to the Court to have just one set of authorities (that is, “Joint Authorities”). Also, it is of assistance to the Court to have a list of those authorities as – in effect – a list of references. But it is not uncommon for parties to refer to authorities which have not been included in any list in the course of their submissions. Indeed, competent legal representatives ought to be able to draw upon other authority if the legal argument demands it.
- [42]Regardless, in a case such as the present, the answer to the question for the Court turns on the Court’s evaluation of the evidence/the facts – not on the Court’s interpretation of other decisions or consideration of academic commentary. In other words, the answer to the question whether the election of Mr Jamieson reflects the will of the electorate is not to be found in case law or text book authority. The principles governing the jurisdiction of the Court of Disputed Returns are well known and (perhaps with the exception of human rights issues), the Court is better served by the parties’ discussion of the evidence (or lack of it) than by any reference to authority or academic opinion.
- [43]Even if Mr Innes was surprised by the reference to certain authorities, the outcome of the substantive application does not turn on my interpretation of the authorities and Mr Innes was therefore at no practical disadvantage. There is no basis for a re-opening to be found in this issue.
- [44]Mr Innes’ other complaints, which provide the basis for his application to re-open, are misconceived or of no relevance to the issue that the Court of Disputed Returns has to decide or involve arguments which were made at the hearing. Re-opening the hearing to consider them would probably not produce a different result.
- [45]Even if, as it seems, Mr Jamieson’s nomination form or prescribed information was not properly displayed on the ECQ website (which was the assertion made by Mr Innes at the hearing), there is no basis for thinking that that had any bearing on the election result. Section 145(2) of the LGEA would apply. Providing Mr Innes with an opportunity to obtain more information about what was published by the ECQ – including about himself – would add nothing to the weight of his substantive application. There is no basis for a re-opening to be found in this issue.
- [46]Mr Innes has had ample opportunity to make his arguments about the unlawfulness of cancelling mobile voting. The matter will not be re-opened to allow him to make further arguments about that issue. Similarly, he has had ample time to make human rights arguments.
- [47]The Court is well attuned to, and on the lookout for, inaccuracies in chronologies or inconsistencies between submissions and evidence. The Court is well aware of the need to take care with evidence from the bar table. These and similar concerns raised by Mr Innes do not provide a basis for re-opening the matters.
- [48]I find nothing exceptional in the matters raised by Mr Innes. Bearing in mind the relevant principles, none of the reasons given by Mr Innes warrant a re-opening of the hearing.
- [49]As above, the application is dismissed with Mr Innes to pay the first and second respondents’ costs.