Garcia v Ausn Electoral Commission

[1999] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Perth  No P58 of 1998

B e t w e e n -

RODERICK DAVID GARCIA

Petitioner

and

THE AUSTRALIAN ELECTORAL COMMISSION

Respondent

RICHARD V. FINNEY, ALAN BATESON and LINDA ANN BATESON

Parties Joined

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 22 JULY 1999, AT 12.12 PM

Copyright in the High Court of Australia

MR S.J. GAGELER:   If your Honour pleases, I appear for the Australian Electoral Commission, the respondent to the petition and the applicant on a summons dated 8 July this year.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, thank you, Mr Gageler. 

I hold a certificate from the Deputy Registrar that she has a letter from the petitioner, Roderick David Garcia, indicating that he will not be appearing or opposing the summons. 

I hold a further certificate from her that she has a letter from Richard V. Finney, a party who has filed an appearance in the matter, indicating that he will not be appearing or opposing the summons.  There is a further certificate from her that she holds a letter from Alan Bateson, a party who has filed an appearance, indicating that he will not be appearing or opposing the summons.  And there is then a further certificate that she holds a letter from Linda Ann Bateson, a party who has filed an appearance, indicating that she will not be appearing or opposing the summons listed today.  In light of that, do I need to have the Court officer call the matter in Perth?

MR G AGELER:   No, your Honour, that covers all of the parties to the proceedings.  In those circumstances, your Honour, I seek only order 1 in the summons, that is that the petition be dismissed.

HIS HONOUR:   Yes.

On 7 December 1998, Roderick David Garcia filed an election petition pursuant to Div 1 of Pt XXII of the Electoral Act 1918 (Cth).  The petition was said to “[concern] the election of the Half Senate for the Commonwealth of Australia in the State of Western Australia held on 3rd October 1998”.

By summons filed on 8 July 1999 the respondent seeks orders that the petition be dismissed or that it be stayed on the ground either that there is no reasonable or probable cause of action or suit or that the proceeding is an abuse of the process of the Court.  The petitioner has not appeared on the return of this summons.  Three persons who claimed to have voted or to have had the right to vote at the election to which the petition relates entered an appearance.  None sought to be heard on the return of this summons.

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734. For the reasons I gave in that matter, this petition cannot succeed. It is dismissed. The respondent does not seek costs and there is no order as to costs.

I will adjourn until 2.15 pm.

AT 12.16 PM THE MATTER WAS CONCLUDED