Bryant v CofA

[2003] HCATrans 549

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S126 of 1998

B e t w e e n -

JOSEPH RICHARD BRYANT

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

GLEESON CJ

McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 FEBRUARY 2003, AT 10.23 AM

Copyright in the High Court of Australia

MR R.B. O’HAIR:   If the Court pleases, I appear for the plaintiff.  (instructed by Peter R. Glover)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear for the defendant with my learned friends, MS R.M. HENDERSON and MR B.D. O’DONNELL. (instructed by Australian Government Solicitor)

GLEESON CJ:   Mr O’Hair, you have an application to amend the statement of claim?

MR O’HAIR:   Yes, your Honour.

GLEESON CJ:   What is your attitude to that, Mr Solicitor?

MR BENNETT:   It is opposed, your Honour.

GLEESON CJ:   Yes, Mr O’Hair.

MR O’HAIR:   Your Honours, if I could deal just with some housekeeping matters first, because the material that was put into the Registry was not in a proper format and was difficult to read.  I have already supplied it to my learned friend.  That was the legislative annexure and the submissions in reply put into a proper typeface and format, your Honours.  So as to save confusion later on, I have the unfortunate situation of having four affidavits from the same person.  One was filed on 30 January – this is Mr Montagnino - so that is plainly separate and clear.  There is another affidavit of service relative to the section 78B notice, which I think is reasonably clear on its face as to which affidavit that is.  There are two further affidavits both filed on 4 February.  The best that I can offer your Honours to distinguish them is that paragraph 6 is on line 50 on one of them and on line 55 on another of them.

That having been taken care of, your Honours, there are essentially, I suppose, two preliminary matters and I will attend directly to the amendment.  Obviously, whether the amendments are granted in part rests on whether there is a reasonable cause of action and that in part rests on what is the scope of the requirement for leave to reargue the authority of preceding cases.  So I will just indicate that at the outset.

Your Honours, I move the Court in terms of the summons to amend the statement of claim.  That was filed on 30 January 2003.  I move the Court on the affidavits of ‑ ‑ ‑

KIRBY J:   But this had a very ancient history.  It went to this Court first. Justice McHugh remitted it to the Federal Court.  It was heard before Justice Wilcox.  It was determined against your client.  There was then a belated application to appeal; that was rejected by Justice Tamberlin.  It comes into this Court and Justice Gaudron, after hearing your client, refers the matter to the Full Court.  I mean, it is very late in the day for you to be reframing your case.

MR O’HAIR:   That is certainly correct, your Honour.  The ‑ ‑ ‑

KIRBY J:   You have had plenty of time to think about this.

MR O’HAIR:   Well, the most that I can offer your Honour relative to that was that the solicitors’ and counsels’ involvement was virtually at the same time as the amended pleading was put forward.

KIRBY J:   Is this something that has arisen because you came into it or legal advice came into it, as distinct from a litigant appearing under his own interests?  Is that how the problem has arisen.

MR O’HAIR:   Yes, your Honour.  But obviously your Honour has pointed to a consideration that I have no doubt that my learned friend will ‑ ‑ ‑

KIRBY J:   One of the matters you want to argue challenges a case which goes back to 1927, I think.

MR O’HAIR:   That is correct, your Honour, Judd v McKeon.

KIRBY J:   It seeks to reopen something which has been settled by that case by unanimous decision of this Court; not a very promising application.

MR O’HAIR:   Your Honour, in our submission, the reason that that would be a promising application is that there have been two events that have happened since that case that have affected the trend of authority, one is the identification of the implied constitutional understanding relative to political communication; the other is the question of where sovereignty lies in Australia.  In our submission, we are not seeking to challenge the meaning of the words “chosen directly by the people” in section 24 itself, and so, in fact, in our submission, your Honour, the case can be run and the matter heard without any actual attack on the holding in Judd v McKeon itself.

GLEESON CJ:   Could you state, in a summary form, the difference between the statement of claim in its present form and the statement of claim as you would wish to amend it?

MR O’HAIR:   Yes, your Honour.  The statement of claim, in its previous form, to the extent that it appeared to plead any facts at all, raised an issue that appears to have been dealt with by the Court in Langer and certainly in Muldowney and that issue was the validity of compulsory preferential voting as opposed to compulsory voting itself.  The statement of claim as amended, seeks to raise the issues of compulsory voting itself and also the other issue on additional grounds.  What are the facts that are alleged ‑ ‑ ‑

GLEESON CJ:   What do you mean by the other issue?

MR O’HAIR:   The other issue is the compulsory preferential voting argument as to whether that is consistent with implications drawn from Chapter I.  Previously, the argument appears to have been broadly an attempt to essentially reargue the result in Langer and Muldowney, and the most that could be argued in its favour would be that there had been some amendment to the legislation since the case of Langer had been decided, but I am sure my learned friend will argue that that amendment was not relevant to the material and probably merely led to the situation that the Commonwealth legislation was on all fours with the legislation of the State of South Australia in Muldowney.

GLEESON CJ:   Now, what is the difference in the proposed amended statement of claim? 

MR O’HAIR:   The difference in the proposed amended statement of claim ‑ if I talk in terms of legal rights and then recur to facts, your Honour, the difference in the proposed amended statement of claim is that it seeks to raise the validity of compulsory voting itself and compulsory preferential voting by reference to implications drawn from Chapter I. 

GLEESON CJ:   What implications? 

MR O’HAIR:   The implication identified in Lange v Australian Broadcasting Corporation, and also it alights upon issues of the identification of sovereignty in Australia since the Australia Act 1986. His Honour Justice Hayne has conveniently collected cases relative to that point in his Honour’s judgment in Joosse v Australian Securities and Investment Commission. 

GLEESON CJ:   Now, if leave to amend your statement of claim – the amendment I think was first foreshadowed a few days ago ‑ ‑ ‑

MR O’HAIR:   Yes, your Honour.

GLEESON CJ:   ‑ ‑ ‑ if leave to amend your statement of claim is refused, do I gather that you will not be pressing the arguments raised by the original statement of claim? 

MR O’HAIR:   Well, I am instructed to, your Honour, by my client, but obviously there is manifest difficulty in presenting an argument on that ground. 

GLEESON CJ:   Thank you.  Now, is there anything further you want to say in support of your application for leave to amend? 

MR O’HAIR:   Well, I think that Justice Kirby has identified the fact that these amendments have occurred since professional legal advice was engaged.  I think the further thing that ought to be drawn to your Honours’ attention is that these are not insubstantial issues, particularly having regard to one of the cases on the list of my learned opponent, namely, the case of Mulholland v Australian Electoral Commission in the Federal Court. 

GLEESON CJ:   Now, the Court was first notified of these proposed amendments I think on about 29 January, is that right?

MR O’HAIR:   That is certainly correct, your Honour.

GLEESON CJ:   You will have noticed that the constitution of the Court is of five Justices.

MR O’HAIR:   Certainly, your Honour.

GLEESON CJ:   A constitution arranged, if I may say so, on the assumption of the original statement of claim.

MR O’HAIR:   Certainly, your Honour.

KIRBY J:   Your client could pursue ‑ I am not wishing to encourage this, but nothing that we decided in refusing an enlargement of the statement of claim would prevent your client – subject always to the problems of costs ‑ from bringing the proceeding separately.

MR O’HAIR:   That is certainly correct, your Honour.  There is no limitation period or any other issue that has expired.  Whether that would be a provident use of the Court’s time having regard to authorities such as Clough v Frog and given that I am instructed to offer to pay costs, which obviously under the Rules that would have to be paid is the costs resulting from the amendment.  Your Honour, I would submit that the full issue that arises as between the plaintiff and the defendant essentially does turn on issues of whether the plaintiff can be compelled to vote for persons that he does not wish to vote for and that it essentially rests on two ‑ ‑ ‑

GLEESON CJ:   It depends on what you mean by “vote for”.

MR O’HAIR:   Certainly, your Honour.  Perhaps if I could frame the submission a different way.  The plaintiff’s grievance is that he would like to be able to express his view for one candidate or no candidate at all.  Certainly the sections of the Commonwealth Electoral Act that are challenged are sections that directly pertain to that issue.

GLEESON CJ:   Does that cover what you want to say in support of the application to amend?

GUMMOW J:   Am I right in thinking that both in its original form and in its present form you seek leave to reopen Judd v McKeon, or is that only a reopening application that would be made on your amended documents?

MR O’HAIR:   I would believe, your Honour, that that could only be successfully advanced on the amended documents, having regard to the fact that the Commonwealth would not have had fair notice from a natural justice point of view of the case that it has to meet ‑ ‑ ‑

GUMMOW J:   I just want to know what the answer is.

MR O’HAIR:   Certainly, your Honour.

McHUGH J:   Must not your application be not only to amend but also to adjourn today’s proceedings?  The issues which you now seek to raise challenge longstanding decisions of the Court.  There are only five Justices and it would certainly be desirable that such issues should be determined by the seven Justices in the Court.

MR O’HAIR:   Certainly, your Honour.  In fact, we had sought through the Registry to have the matter listed before a Chamber Judge and we had proposed, as your Honours will see from the correspondence annexed to the affidavits, to vacate the hearing date.  Once it is plain that the Bench is constituted as it is, it would seem that it is inevitable that the plaintiff’s application would have to be to adjourn as well.  The further submission I would put to the Court is that, whilst Judd v McKeon might in a sense be challenged, my submission is that Judd v McKeon does not have to in any sense be overruled in terms of the construction of the provisions that were considered in that case.

McHUGH J:   Compulsory voting was not challenged in Langer, was it?

MR O’HAIR:   That is correct, your Honour.

KIRBY J:   But it was challenged in a case in 1927.

MR O’HAIR:   That is certainly correct, your Honour, Judd v McKeon, but Judd v McKeon ‑ ‑ ‑

KIRBY J:   It was directly challenged and directly dealt with by the Justices who sat in that case.

MR O’HAIR:   Yes, your Honour.  Firstly, the only argument that was put to their Honours was an argument concerning the meaning of the words “directly chosen by the people” in section 24.  There had not been the advance that is seen in Lange v Australia Broadcasting Corporation.  Further to that, there was not the situation of the Australia Act with the question of ‑ ‑ ‑

KIRBY J:   Are you referring to the Act of the Australian Federal Parliament or the Acts of the State Parliaments or are you referring to the Act of the foreign Parliament?

MR O’HAIR:   Your Honour, given that they are all relevantly identical, I do not think that it particularly matters.  Your Honour has identified an issue that would no doubt be resolved in the course of the proceedings.  I understand that your Honour’s view – and please correct me if I am wrong – is that Australia, since it achieved international personality, had only to, the States with the Commonwealth, act in concert to pass the federal legislation by request in order to establish the legal effect of that legislation.  Other minds going back to cases, I suppose, like Bistricic v Rokov and so forth might have disagreed.  Unequivocally, your Honour, the situation that met then Justice Isaacs in that year was a situation where the Imperial Parliament had the sovereignty relative to Australia.  I mean, we are looking at the Balfour declaration only within a couple of years of that.

GUMMOW J:   What has that to do with the Commonwealth power with respect to elections?

MR O’HAIR:   Well, your Honour, the submission is put in two ways:  the first area, that that would be an issue that one would not expect to reach until one had resolved the question of Lange v Australian Broadcasting Corporation and the implication and I am indebted to your Honour for raising that, because it would not be necessary to reach that if the matter can be resolved in a simpler and more straightforward way.  There is though, ultimately, a grundnorm question if one is unable to resolve it in any other way and it may well be, your Honour, that that grundnorm question is resolved against the plaintiff, but the importance of that question is, is whether, if sovereignty be vested in the Australian people relative to the cases that were identified or collected by his Honour Justice Hayne in Joosse v Australian Securities and Investment Commission, whether it is part of that grundnorm that opinion can be coerced of the people who are sovereign by the instruments of the legislature that has been established.

GUMMOW J:   But all this depends upon the assumption, does it not, that confronting somebody with a list of five candidates and requiring that person to assign five numbers as an order of preference, involves, amongst other things, compelling that person to “vote for” the person who is numbered five.  That is what it amounts to, does it not?

MR O’HAIR:   On the statement of claim as pleaded presently, your Honour, yes, that is indeed what it does amount to.

GUMMOW J:   Well, it carries through to the other argument too, does it not?  I can tell you that in the 1950s there was a memorable electoral advertisement in the days of contests between Sir Robert Menzies and Dr Evatt and there was a north of England or a south of Scotland voice that used to urge voters to put the Liberals last, and I never regarded that as urging a vote for the Liberals.

MR O’HAIR:   Certainly, your Honour.  In fact, in terms of the written submissions supplied, your Honour, as a practical matter, the person who was put last is not voted for.  So, as a practical matter, the expression of preference is for the candidates above the last candidate and so, for instance, in a case where there are only two candidates, no matter what could be technically or otherwise urged, as your Honour has completely punctured the error, the error of indicating that to have to put a second preference vote where there are only two candidates, does not raise any constitutional issue at all; the issue would only be raised on the optional preferential aspect if there are more than two candidates and, in any case, your Honour, you are quite correct, that on no practical analysis of the legislation could the person who achieves the last preference possibly be regarded as having been voted for and that was why, as in the written submissions, from a practical point of view, it was indicated that that was, indeed, the outcome.

KIRBY J:   But given that the vote is secret, the ballot, the actual voting is secret, then the effect of the legislation is to merely require that the person turn up and go into the balloting booths.  There is no way that the Commonwealth, or anyone else, can know how that person votes.  Many people put a stroke through the vote or write their messages to the nation on the ballot and so on.  It is not uncommon.  I mean it is a percentage less than one per cent, but it is in every election in Australia.

MR O’HAIR:   Certainly, your Honour.  The way the proposed further amendments to the statement of claim seeks to overcome that is that there is a pleading that proceeds through to indicate essentially that, the plaintiff has to attend at a polling booth and that the attending at a polling booth itself on the case that is made, rather like the flag salute in Barnette’s Case ‑ ‑ ‑

KIRBY J:   It is not really.  Without getting into the detail too much of the argument, just to see what its contours are for the purpose of considering this application ‑ ‑ ‑

MR O’HAIR:   Certainly, your Honour.

KIRBY J:   ‑ ‑ ‑ you are really trying to pitch two implications of the Constitution, one deriving from what you say is the sovereignty of the people and the other from the implied constitutional prohibition on derogations from free expression, relevant to the exercise of the representative democracy of the Constitution, against express provisions of the Constitution empowering the Federal Parliament to enact laws for the conduct of elections in the Federal Parliament.

MR O’HAIR:   Your Honour, in our submission that would not go further than Australian Capital Television because in Australian Capital Television the provisions that were challenged, one set of sections was against the States and Territories, another set of sections was relative to federal elections themselves.  It was indeed indicated that those sections relative to the Commonwealth could be, as it were, justified under those provisions relating to Commonwealth elections.  So one gets into cases like Smith v Oldham about whether one can require a person to disclose their name to a pamphlet urging a particular vote.

So, at any rate, your Honour, the implication that is derived is derived from Chapter I as a whole, and given that the implication is derived from Chapter I as a whole, and section 51 itself is expressed to be subject to this Constitution, and as the learned Solicitor‑General in his statutory annex has indicated the provision in section 51 that picks up the provision relative to elections and the rest of Chapter I, that is expressed subject to the Constitution. It is, therefore, subject to the other implications in Chapter I. Just as it was found that the legislation in Australian Capital Television were vulnerable, our submission would be that the legislation in this case is vulnerable.  That would be our principal submission.  Questions of sufficient under the days “the evil thereof”, issues of sovereignty and so forth which, for instance, Justice Gummow has dealt with in his lectures are matters that are something that one gets to in the end, it is not something that one first has recourse to in order to decide a concrete legal question.

GLEESON CJ:   Thank you.  We will hear what the Solicitor‑General has to say about your application.

MR O’HAIR:   Certainly, your Honour.  If the Court pleases.

GLEESON CJ:   Yes.

MR BENNETT:   If the Court pleases.  Might I start with the affidavit of Mr Montagnino of 29 January, which is the affidavit which annexes the proposed further amended statement of claim.  Your Honours will observe that paragraph 4 of the affidavit refers to:

advice that the Plaintiff’s claim be amended to properly determine the full scope of the dispute ‑

What in fact has happened, when one looks at the document, is that your Honours will see that apart from two formal paragraphs, 1 and 2, the whole of the initial statement of claim in paragraphs 3 to 11 is deleted and the completely new set of allegations are set out, some of which are incomprehensible and some of which seem to have no relevance to any issue.  I challenge your Honours to work out for example what paragraph 52 means.  It is something we have not been able to ascertain.

KIRBY J:   Is not the bottom line:  we are constituted here of five.  These are matters which challenge authority of the Court; that authority would not be considered by a Court of five.  It would have to be considered by a Court at least of six or seven, so that we cannot proceed today with the matter. 

MR BENNETT:   That is so, your Honour. 

KIRBY J:   It is acknowledged that the plaintiff can come back on another day if he wants to, subject of course to the penalties of costs.  That just seems to me to be an end to the matter, unless I am missing something. 

MR BENNETT:   Well, your Honour, we ‑ ‑ ‑

GUMMOW J:   You have the further point that what is proffered is a defective pleading anyway, so why would one grant leave to ‑ ‑ ‑

GLEESON CJ:   And proffered for the first time on about Thursday or Friday of last week. 

KIRBY J:   I, for my part, would feel a bit disinclined to knock the substance of the matters over without proper argument on the matters.  Here, it is only possible for us, as it were, to savour them and see what they taste like, without necessarily chewing them and gobbling them up. 

GUMMOW J:   You could not demur to this amended statement of claim? 

MR BENNETT:   It would be very hard, your Honour.  It would be very hard to formulate the issue under demurrer. 

GUMMOW J:   You say you could not plead either. 

HAYNE J:   Why? 

MR BENNETT:   Because how does one plead to something which is meaningless, as, for example, paragraph 52 is? 

HAYNE J:   I would have thought that would make the statement of claim apparently demurrable. 

McHUGH J:   It does not disclose a cause of action. 

HAYNE J:   I would have thought that it was the archetypal case for demurrer. 

MR BENNETT:   Yes, in that sense it could be pleaded to. 

GUMMOW J:   Yes, but the demurrer has to allow of the facts. 

MR BENNETT:   Yes, and it is almost impossible to work out the relevance of some of the matters in it.

GLEESON CJ:   They would be striking-out points, would they not? 

MR BENNETT:   Yes, they would.  When one seeks to amend at the last minute by, in effect, the substitution of a completely different case, then, in my respectful submission, one does not ask the sort of question asked in Frog and say, “Well, what is the real dispute between the parties?” and let the parties formulate it at the last minute if they need to.  This is really someone saying, “Well, I have a case before the High Court, I have a slot.  Now I’ll abandon that and try a completely different set of constitutional arguments”. 

HAYNE J:   Well, is the consequence of that that the order we should make today is simply to vacate the setting down of the demurrer and allow the plaintiff to make such application as he is advised for leave to amend to a single Justice?  Then directions would follow about giving time for pleaded answer or demur. 

MR BENNETT:   Well, bearing in mind, your Honour, that he can start again anyhow, subject to issues of costs, we would submit it is more appropriate to put the plaintiff to his election of proceeding on the original statement of claim or abandoning it.  If he abandons it, it is ‑ ‑ ‑

KIRBY J:   That would be a good argument if the plaintiff had been represented throughout, but we are told that this has come about because he was not represented originally and he now is, and that this has arisen out of his having representation.  For my own part, I would do nothing to discourage representation of litigants before this Court, on constitutional matters at least. 

MR BENNETT:   But this is not, in any real sense of the phrase, an amendment. 

KIRBY J:   Well, it is another way, a different way, of expressing an objection to the electoral system to which the plaintiff apparently has objections. 

MR BENNETT:   They are different aspects of it, your Honour. 

GLEESON CJ:   There is a related problem, is there not?  This is not litigation inter partes in which there is a subject matter of a dispute.  This plaintiff wants to say that a provision of the Commonwealth Electoral Act is invalid, and presumably will say it on whatever ground occurs to him or is put to him by some legal adviser yesterday, today or tomorrow. 

MR BENNETT:   Except, your Honour, it is a different section which is said to be invalid.  Do your Honours have the Electoral Act? 

McHUGH J:   He originally alleged section 240(2) was invalid, but now he alleges the invalidity of 245, 240(1)(b) and 268(1)(c).

MR BENNETT:   Yes.

KIRBY J:   But we are told that those arose after he got legal counsel.

McHUGH J:   I am with Justice Kirby on this point.  Why should he not be given leave to amend if he pays the costs?  There is an important point involved here, is there not, as to whether or not the words “directly chosen” enable a government to legislate for compulsory voting?  The inmates of Long Bay Gaol do not choose to live there.  They are compelled to go there.

MR BENNETT:   Your Honour, the plaintiff is in no worse a position, in one sense, if ordered to pay the costs and to make an application for leave to ‑ ‑ ‑

GLEESON CJ:   But if there is a serious possibility that he will be given leave to amend today, then you will need to put all your arguments on the formal deficiencies of the proposed amendment, because involved in an order giving him leave to amend today is an acceptance of the formal regularity of the proposed pleading.

MR BENNETT:   And that is one of the difficulties we are in, your Honour.

KIRBY J:   But is there not a difficulty that then that matter itself would be ruled on by a Court of five instead of a Court of seven?

MR BENNETT:   Yes, and that is a further reason why we submit that there should simply be a refusal of leave to amend.

GLEESON CJ:   Does that not mean that you should tell us every one of the formal objections you have to this proposed amendment, because for us to allow the amendment is to override any formal objections you wish to make to it?

MR BENNETT:   I could do that, your Honour.

GLEESON CJ:   Why do you not do that?

MR BENNETT:   I will in a moment, your Honour.  Before I do, may I just say this.  Your Honours have been talking about Judd v McKeon.  There is a more recent decision of this Court which applies Judd v McKeon and refused to overrule it in Faderson v Bridger (1971) 126 CLR 271 and that is a further decision the plaintiff would need to overcome and obtain leave against. Your Honours, in relation to the statement of claim itself, it is ‑ ‑ ‑

GLEESON CJ:   I think before we allow your opponent to amend the statement of claim we need to read it, in detail I mean.

MR BENNETT:   Yes.

GLEESON CJ:   What do you understand to be the relevance of the allegations that the plaintiff does not live in a remote division and has not applied for a postal vote?

MR BENNETT:   I assume, your Honour, that whole group of allegations is presumably directed to locus standi which would not be in issue. 

GLEESON CJ:   The allegation that he has not been in hospital?

MR BENNETT:   Yes, that must mean he has always physically attended or been bound to attend the polling booth.  If he had been in a hospital ‑ ‑ ‑

GLEESON CJ:   Say that again.

MR BENNETT:   If he had been in a hospital, your Honour, he might not have been bound by law to attend the polling booth because there is an exception in relation to various matters.

GLEESON CJ:   Paragraph 27?

MR BENNETT:   That we would simply deny.  It is part of his ‑ ‑ ‑

GUMMOW J:   It is an embarrassment, is it not? 

GLEESON CJ:   I am not sure I understand what paragraph 27 means.  I would have thought it was embarrassing to have to plead to paragraph 27.

MR BENNETT:   Yes.  Your Honour, one assumes that what is being said in paragraphs 27 and 28, combined with 26, is that attending at a polling booth or being obliged to attend a polling booth is an interference with the free speech one exercises, or the free communication one exercises, by not attending a polling booth ‑ ‑ ‑

GUMMOW J:   That is a matter for legal submission, I suppose.

MR BENNETT:   Yes, that is the way we would construe that, your Honour.  But a great many paragraphs just seem to have no particular relevance at all, like 33, 34, and 37 seems to have no relevance, 38 ‑ ‑ ‑

GLEESON CJ:   Paragraph 37 seems to be related to 52, does it not?

MR BENNETT:   Yes.  I do not understand what is being said there, which makes it difficult to make any submission other than it is incomprehensible.  Paragraph 38 seems to be fairly meaningless too.

GLEESON CJ:   Your opponent is not seeking leave to amend generally or leave to replead.  Your opponent is seeking leave to make this amendment to this pleading.

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   Whether or not such leave ought to be granted, I would have thought, would require consideration of the form as well as the substance of the proposed amendment.

MR BENNETT:   We would so submit.

KIRBY J:   But a preliminary question is whether such a matter, which is in a sense a pleading matter, would be dealt with ordinarily by a Court of five or of seven.  It would ordinarily be dealt with by a Court of one.

MR BENNETT:   It would, your Honour, but it is made to a Court of five and we are here and I am defending myself.

KIRBY J:   Yes, but why should we, as it were, rule on these matters now?  The plaintiff has legal counsel.  He wants to have these amendments.  Normally they would be dealt with by a Court of one.  Why is that not the appropriate matter, given that on all accounts we cannot proceed with the matter today?  After all, he was not legally represented and now is.  I will do nothing for my part that will discourage the course that has been adopted.  It is hard enough to have to deal with special leave matters with litigants appearing in their own interest; it is next to impossible for the Full Court to deal with that.

MR BENNETT:   That does not justify a pleading which on its face is impossible to deal with.

McHUGH J:   It may be that he needs leave to amend.  For the moment I do not see Judd v McKeon having much to do with this case.  After all, Judd v McKeon concerned the validity of choosing senators. Section 9 of the Constitution expressly gives the Parliament the power to determine the method of choosing senators. There is no equivalent provision in respect of the House of Representatives, which refers to being directly chosen. It seems to me that there is an argument – it may be weak, it may be strong – that you are not directly chosen by the people if you are forced to vote for a particular candidate. I said in ACTV that I did not think the Parliament could give people a list of names and tell them to vote for them.

MR BENNETT:   But that would be for a different reason, your Honour.

McHUGH J:   I know.

MR BENNETT:   We would submit that, as was said, I think, in both cases, the requirement to express a preference is always possible.  There is no such thing as total equality of virtue or of iniquity.  However much one likes or dislikes a candidate, it is always possible to like or dislike another candidate more or less because there are infinite relations of humanity and personality.

McHUGH J:   Yes, I appreciate that, but just assume an extreme hypothetical case that everybody in a particular division does not like either candidate.  All the voters are compelled to vote for them.

MR BENNETT:   But they are not asked to say they like them.

McHUGH J:   Can you say that the person is directly chosen when the people do not want to vote and they are compelled to vote?

MR BENNETT:   Yes, your Honour, so long as there is at some stage an appropriate opportunity for people to get their name onto the ballot paper.  If there is some restriction on that, one may have to look at the validity of that restriction, but so long as that is available, then the citizen does not have the right that he or she should be entitled to elect between every Australian whether or not that person has put himself or herself forward.

McHUGH J:   Well, the bottom line, it seems to me, is that you have a determined litigant who is prepared to pay the Commonwealth’s costs and is obviously not going to let this issue die.  Now, the choice is, we say you cannot amend and send the plaintiff away without day, as the common lawyers used to say, and allow the plaintiff to bring another action or we give them general leave to amend and adjourn these proceedings and the matter can be settled in front of a judge at first instance.

GUMMOW J:   Would you oppose a general leave to amend?

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   Nobody has asked for a general leave to amend.

GUMMOW J:   That is right.

GLEESON CJ:   The only application before us is an application to make this amendment to this statement of claim.

KIRBY J:   Because normally a pleading summons involves a discussion between the judge and counsel and in the course of that discussion and the submissions there are sometimes further amendments and the matter is then put into shape, especially if it involves novel concepts.  We are hardly well constituted for that to take place today.

MR BENNETT:   The real issue I would put a little differently.  It is this:  a person that commences a proceeding in this Court, ultimately it comes on for hearing, then the person says very shortly prior to that hearing, “I have decided I would like to run a totally different case, making totally different allegations that totally different sections are invalid – there may be one or

two common arguments, but otherwise it is a totally different sort of thing – and I would like to use the vehicle that I already have to do that.”  The question we ask is, why should the person be entitled to use that vehicle to do it when he can, if he chooses, commence another action subject to a series of costs and ‑ ‑ ‑

McHUGH J:   That would have been a powerful argument in front of Mr Baron Parke in the Court of Exchequer Chamber but ‑ ‑ ‑

KIRBY J:   It was a golden era.

MR BENNETT:   I rest my case, your Honour.

GLEESON CJ:   Now does that cover what you want to say?

MR BENNETT:   That covers all I want to say, your Honour.

GLEESON CJ:   Yes, Mr O’Hair.

MR O’HAIR:   Your Honour, obviously the learned Solicitor‑General would have a right of reply, because that application had not been made, but ‑ ‑ ‑

GUMMOW J:   We have to get down to tintacks, Mr O’Hair.  This proposed further amended statement of claim is not the healthiest document.

MR O’HAIR:   Certainly, your Honour.  I will take you through that, your Honour, but I will, at least, submit that I would like leave to ‑ ‑ ‑

GUMMOW J:   Sooner or later, if your client wants to proceed with your legal advice, it has to be put in proper shape and it is not in proper shape at the moment.

MR O’HAIR:   Yes, I would seek leave to amend generally, your Honour. I will just make ‑ ‑ ‑

GLEESON CJ:   Well, let us just work out what is going on here.

MR O’HAIR:   Yes.

GLEESON CJ:   You filed a summons on Thursday or Friday of last week for leave to make this amendment?

MR O’HAIR:   Certainly, your Honour.

GLEESON CJ:   You have now encountered some difficulties about this amendment in the course of argument.

MR O’HAIR:   Yes, your Honour.

GLEESON CJ:   Do you now have a further application to make?

MR O’HAIR:   Yes, your Honour, in the light of what has fallen from the Bench.

GLEESON CJ:   And what is that application?

MR O’HAIR:   That there be leave to amend generally and ‑ ‑ ‑

GLEESON CJ:   And what has happened to the application that you filed last Thursday or Friday?  Is that withdrawn?

MR O’HAIR:   If I could not withdraw it at this stage, your Honour, subject to answering what the criticisms were, but then I would probably withdraw at that point, your Honour.

GLEESON CJ:   Yes.

MR O’HAIR:   So I do not want to render the issue of what is in the statement of claim moot because the point is that one has the benefit of a Full Bench here and it would be of assistance ‑ ‑ ‑

GLEESON CJ:   Well, let us take one concrete criticism of it, just for a start.  Paragraph 38 of the proposed amendment, what does that mean?

MR O’HAIR:   Your Honour, the purpose of 38 which ties to the purpose of 33, 34, 35, 36, 37, 38, that the plaintiff is not in a position to particularise or to plead which candidate he does not want to vote for and whether he wants to boycott the poll at all, because he is not aware of what the candidates are.  So the reason for that pleading is that rather than indicate that the pleading is deficient because it is incapable of having those particulars because they cannot be known until a short period before the poll, and I accept it has been inartistically done, is that the purpose is to indicate that the cause of action is one that is constituted by the general issues and the acceptance of those general issues because they cannot be pleaded more particularly, which ties to concepts of mootness.

So, for instance, your Honour, there are cases to the effect that if an order of an administrative commission expires before the full time, before the case can be fully heard, that the matter can still be heard or, in a case such as Roe v Wade, which was an abortion case, whatever one may think of the result in that case, that the nine‑month period is expired and therefore the same essential problem will be raised again.  So, I am indebted to your Honours for indicating that that has been inartistically put and perhaps does not belong in the pleading and perhaps is a matter of submission.

GUMMOW J:   It is not a question of inartistic.  First of all, you have to make out your locus standi.

MR O’HAIR:   Yes, your Honour.

GUMMOW J:   Right. Do you need to do more than 12 and 13? Your locus standi ‑ this is a case under 76(i) of the Constitution, I guess.

MR O’HAIR:   Certainly, your Honour.

GUMMOW J:   Why do you need all the rest, that you are not in hospital and all the rest of that?

MR O’HAIR:   Out of an abundance of caution, your Honour.  Otherwise there is no need to actually present at a polling booth.

GUMMOW J:   Why should the Commonwealth have to plead as to whether you have been in hospital or not?

MR O’HAIR:   Because he would have had a reasonable opportunity then to not have to attend the polling booth and so he would have had a choice.

GUMMOW J:   There is no question as to whether your client has or has not in the past committed some offence under the Electoral Act, is there?

MR O’HAIR:   Not as I am aware, your Honour, certainly.

GUMMOW J:   You do not want to raise that as a case.  There is no prosecution of your client for any failure to observe the requirements of the Electoral Act, is there?

McHUGH J:   I mean, think of the case in terms of if an Attorney-General of a State wanted to challenge this legislation.  The only additional factor that you have to put in is something showing your own standing to challenge, but apart from that, your case would be exactly the same as an Attorney‑General for a State.  You say the legislation is invalid.  It is not dealing with any particular voting of your particular client, you just simply say it is invalid.

MR O’HAIR:   I am indebted too for that, your Honour.  So, in answer to the Chief Justice’s question, I would withdraw the application to amend as per this and would seek ‑ ‑ ‑

GLEESON CJ:   Well, the application was of 30 January, is that right?

MR O’HAIR:   Yes, your Honour.

GLEESON CJ:   The summons does not have a date on it on my copy, but I infer from the stamp that the Court put on it that it was the application of 30 January?

MR O’HAIR:   Yes, your Honour.

GLEESON CJ:   So we can note that the application of 30 January is not pressed?

MR O’HAIR:   That is correct, your Honour, and leave is sought to amend generally.

GLEESON CJ:   What you now seek is leave to amend your statement of claim generally as the plaintiff may be advised?

MR O’HAIR:   Yes, your Honour, but it will basically be by culling relative to the rest of what was proffered.

GLEESON CJ:   What you seek is leave to amend generally as the plaintiff may be advised.

MR O’HAIR:   Yes, your Honour, certainly.

GLEESON CJ:   Yes, and you do not seek to resist an order that you pay the defendant’s costs thrown away as a result of any adjournment that becomes necessary?

MR O’HAIR:   We are not in a position to, your Honour, although I would draw your Honour’s attention merely that we showed the Court courtesy in the sense that we were trying to seek to have the summons listed before a single Justice so five of your Honours would not be detained in the matter.

GLEESON CJ:   Last Friday it was a little too late for us to find another case for hearing today.

MR O’HAIR:   Certainly, your Honour.

GLEESON CJ:   My attention has been drawn to Order 26 rule 11 which deals with the subject of amendment of pleadings while there is a demurrer pending.  You would have to pay the costs of the demurrer too, would you not?

MR O’HAIR:   Certainly, your Honour, we drew that to the attention of the Commonwealth and offered to pay and, indeed, that is in one of the annexures to one of the affidavits, your Honour.

GLEESON CJ:   I just want to make this clear, but I think you have already indicated to us that your preference would not be to have to proceed with the unamended statement of claim and argument on the demurrer. 

MR O’HAIR:   Certainly, your Honour.  That in itself would just involve an attempt to overrule a recent decision of this Court that there does not seem to be any material differences in the legislation. 

GLEESON CJ:   All right.  We will adjourn for a short time to consider the course we will take. 

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.24 AM:

GLEESON CJ:   Nothing you wanted to add?

MR O’HAIR:   No, your Honour.

GLEESON CJ:   We note that the application of 30 January 2003 is not pressed.  The order of the Court is that the plaintiff is to have leave to amend his statement of claim generally as he may be advised.  The plaintiff is to pay the costs of the defendant of the demurrer and the costs thrown away by today’s adjournment.  If the plaintiff files an amended statement of claim any pleading issues that may arise can be listed for consideration before a single Justice of the Court in the ordinary way. 

On that basis, the matter is adjourned to a date to be fixed.

AT 11.25 AM THE MATTER WAS ADJOURNED