Heathorn v Ausn Electoral Commission

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Hobart No H9 of 1998

B e t w e e n -
LAURISTON BROWNELL HEATHORN
Petitioner
and
THE AUSTRALIAN ELECTORAL COMMISSION

Respondent

NEIL MAXWELL ROBSON, LEYLAND L. WALTERS, and NORMA JAMIESON
Parties Joined

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON THURSDAY, 22 JULY 1999, AT 11.59 AM

MR S.J. GAGELER: If your Honour pleases, I appear for the Australian Electoral Commission, the respondent to the petition and the applicant on the summons, dated 8 July 1999. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, thank you, Mr Gageler.

Mr Gageler, I hold a number of certificates from the Deputy Registrar. In the first, she certifies that she holds a letter from the petitioner, Lauriston Brownell Heathorn, indicting that he will “withdraw my petition”. Next, a certificate that she holds a letter from Norma Jamieson, a party who has filed an appearance in the matter, indicating that she will not be opposing the summons. Next, a certificate that she holds a letter from Neil Maxwell Robson, a party who has filed an appearance in the matter, indicating that he will not be appearing or opposing the summons. Next, a certificate that she holds a letter from solicitors on behalf of Leyland L. Walters, a party who has filed an appearance, indicating that he will not be appearing or opposing the summons. Finally, a letter from Ross William Pullin, a signatory to the original list of appearers but someone who did not file appearance, indicating that he would not be appearing or opposing the summons. In light of all that information, do I need to have the matter called in Hobart?

MR G AGELER: Your Honour, there is one minor wrinkle and that is that there is a further person by the name of Marilyn Murdock who is also a signatory to the document to which your Honour refers, a document of uncertain status. A letter was sent to Ms Murdock on 13 July 1999 advising her of the application and no response has been received.

HIS HONOUR: Yes. Well, in the circumstances, perhaps if the Court officer in Hobart would be good enough simply to call the matter, Heathorn v Australian Electoral Commission.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Yes. Thank you very much. Mr Gageler?

MR G AGELER: In those circumstances, I should read formally the affidavit of Geoffrey Charles McCarthy, dated yesterday. I draw your Honour’s attention particularly to paragraphs 6 and 7 of that affidavit. Paragraph 6 annexes the list to which I have referred; paragraph 7 annexes a letter sent to Ms Murdock.

HIS HONOUR: Yes. I must say, Mr Gageler, I had taken those who had signed that petition as, in truth, not having appeared, at least not having appeared in accordance with the Rules and, therefore, probably not being entitled to have had the courtesies which your client has been good enough to extend to them. I well understand the reason for them doing it and I am not to be taken as suggesting they should not in future but - - -

MR G AGELER: Well, your Honour’s disposition means that I do not have to say what I would otherwise have said.

HIS HONOUR: Yes. There is an application on foot, Mr Gageler. I think it is yours.

MR G AGELER: I am very sorry, your Honour, there is indeed. Your Honour, in those circumstances, I seek only the order that the petition be dismissed. I do not seek any other order in the summons.

HIS HONOUR: Yes, thank you.

On 8 December 1998, Lauriston Brownell Heathorn 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 Tasmania 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.

AT 12.06 PM THE MATTER WAS CONCLUDED

Heathorn (the applicant) sought judicial review of a decision by the Australian Electoral Commission (the AEC) to refuse to register his political party, the "Australian Protectionist Party". The matter came before Hayne J of the Federal Court of Australia.

The central legal issue before the Court was whether the AEC had acted lawfully in refusing to register the applicant's party. Specifically, the Court was required to consider whether the AEC's interpretation and application of the relevant provisions of the *Commonwealth Electoral Act 1918* (Cth) concerning party registration were correct. This involved an examination of the AEC's assessment of the party's name and its compliance with the statutory requirements for registration.

Hayne J found that the AEC's refusal was based on a misinterpretation of the Act. The AEC had concluded that the name "Australian Protectionist Party" was substantially the same as the name of another registered party, the "Protectionist Party of Australia", and that this similarity would be likely to mislead or deceive electors. However, Hayne J determined that the statutory test for substantial similarity was not met. His Honour reasoned that the names, while containing similar words, were sufficiently distinct in their overall composition and likely to be understood by electors as referring to different entities. The AEC's decision was therefore found to be affected by an error of law.

The Court ordered that the AEC's decision to refuse registration be set aside and remitted to the AEC for reconsideration according to law.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established