Smith v Australian Electoral Commission [2008] FCA 953

Smith v Australian Electoral Commission [2008] FCA 953

The petition did not set out facts capable of establishing the statutory threshold that the result of the election was likely to be affected, as required by s 355(a) of the Commonwealth Electoral Act. As the 40 day time limit in s 355(e) had expired, cure by amendment was not possible, and the petition was incurably defective and must be dismissed.

Parties
Petitioner: Robert Arthur Smith; Respondent: Australian Electoral Commission
Jurisdiction
Australia
Judgment Date
27 June 2008
Procedural Posture
Petition Under Commonwealth Electoral Act 1918 (cth) S 355 / Application for Dismissal for Non Compliance With Statutory Requirements
Outcome
petition dismissed
Legal Topics
Senate Election Petitions, Requirements for Invalidating an Election, Amendment of Petitions, Procedural Compliance Under Commonwealth Electoral Act
Electoral Law Senate Election Petitions Requirements for Invalidating an Election Amendment of Petitions Procedural Compliance Under Commonwealth Electoral Act

Case Brief

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Parties

Robert Arthur Smith

Petitioner

Australian Electoral Commission

Respondent

Procedural Posture

Petition Under Commonwealth Electoral Act 1918 (cth) S 355 / Application for Dismissal for Non Compliance With Statutory Requirements

Legal Issues

  1. 1 Whether the petition sets out facts relied on to invalidate the election as required by s 355(a) of the Commonwealth Electoral Act 1918 (Cth)
  2. 2 Whether amendment to the petition is available after the 40 day statutory period has expired

Ratio Decidendi

The petition did not set out facts capable of establishing the statutory threshold that the result of the election was likely to be affected, as required by s 355(a) of the Commonwealth Electoral Act. As the 40 day time limit in s 355(e) had expired, cure by amendment was not possible, and the petition was incurably defective and must be dismissed.

Court Disposition

petition dismissed

Orders

  • The petition is dismissed.