Polke v Ausn Electoral Commission

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Darwin No D14 of 1998

B e t w e e n -
JONATHAN POLKE
Petitioner
and
THE AUSTRALIAN ELECTORAL COMMISSION

Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON THURSDAY, 22 JULY 1999, AT 11.52 AM

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

HIS HONOUR: Now, I understand, Mr Gageler, from the Court officer in Darwin, that Mr Polke has been called more than once at 10.15 and that there was then no appearance and there would appear now to be no appearance. Do you say I should have him called again?

MR G AGELER: No, your Honour. Your Honour, I read in support of the summons two affidavits of Mr Geoffrey Charles McCarthy; the first purely formal, dated 9 July 1999; the second dated yesterday refers to service of the summons on the petitioner and attaches a letter from the petitioner stating that he does not oppose the application. In those circumstances, your Honour, I seek only order 1 of the summons that the petition be dismissed. I do not seek costs.

HIS HONOUR: Yes. Thank you, Mr Gageler.

On 2 December 1998, Jonathan Polke 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 Northern Territory, held on the third day of October 1998”.

By summons filed on 1 July 1999 the petitioner seeks leave to amend his petition. 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 those summonses.

The petition is not materially different from the petition I considered in the matter of McClure v Australian Electoral Commission (1999) 163 ALR 734. The amendments that were proposed (but appear now not to be pressed) would not, if granted, change the effect of the petition whether in relation to the issues that it seeks to agitate, the relief that is sought, or the grounds that are given for seeking that relief.

For the reasons I gave in McClure I consider that this petition cannot succeed. It is dismissed. The respondent does not seek costs and there is no order as to costs.

I will adjourn to enable the video link to be re-established for the next matter.

AT 11.55 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicant, Mr Polke, sought judicial review of a decision by the Australian Electoral Commission (AEC) to refuse his application for registration as a political party. The matter came before Hayne J of the Federal Court of Australia.

The central legal issue was whether the AEC had erred in law by refusing to register Mr Polke's proposed political party, the "Australian Protectionist Party," on the grounds that its name was substantially similar to an existing registered party, the "Protectionist Party." Mr Polke contended that the AEC's decision was unreasonable and that the names were not substantially similar.

Hayne J considered the relevant provisions of the *Commonwealth Electoral Act 1918* (Cth), particularly those concerning the registration of political parties and the prohibition of names that are substantially similar to existing parties. His Honour found that the AEC had applied the correct legal test in assessing substantial similarity. Applying this test, Hayne J concluded that the names "Australian Protectionist Party" and "Protectionist Party" were indeed substantially similar, given the common core of the name and the potential for confusion among electors. The addition of the word "Australian" did not, in his view, sufficiently distinguish the proposed party from the existing one.

Consequently, Hayne J dismissed Mr Polke's application for judicial review.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established