Chapman, E.C. v. Dubs, R.V. & Ors [1987] FCA 41

CATCHWORDS

ADMINISTRATIVE LAW - The Australian National University - Election for office of Dean of the Faculty of Arts - Election

required by Statutes of the University - Method of election provided by rules made thereunder - Decisions by Returning Officer not to admit certain voting papers to the count - Ballot box containing empty sealed outer envelope and separate sealed inner envelope - Whether Returning Officer bound to conclude that two envelopes connected - Whether to have voting papers delivered by internal messengerial service was to "post" the papers within the meaning of the voting instructions - Voting papers not marked in accordance with voting instructions - Whether compliance with requirements mandatory - Whether declaration of poll involved a decision reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) - Whether irregularity in conduct of election by reason of Returning Officer sending to voters biographical material relating to the candidates.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Australian National University Act 1946 (Cth), ss.4, 10, 23, 27, Faculties (The Faculties) Statute Faculty of Arts (The Faculties) Rules Membership of the Council Statute Membership of the Council Rules

EDWARD CHARLES CHAPMAN v. ROSALIND VIVIENNE DUBS & ORS.

No. ACT G 53 of 1986

Neaves J.

4 February 1987

Canberra

Pr te

128 + sags bey 168)

WERE AL CouRT

BUSTRALIA OF

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

) ) ) ) No. ACT G 53 of 1986 ) ) )

GENERAL DIVISION

BETWEEN : EDWARD CHARLES CHAPMAN Applicant AND: ROSALIND VIVIENNE DUBS

First Respondent

THE AUSTRALIAN NATIONAL

UNIVERSITY

Second Respondent

ROBERT CUSHING

Third Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER Neaves J.

DATE OF ORDER

4 February 1987

WHERE MADE : Canberra

THE COURT ORDERS THAT:

i. The application be dismissed.

2. The interlocutory injunctions granted by Everett Jd. on 6 August 1986 be dissolved.

3. The applicant pay the respondents' costs of the application including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

No. ACT G 53 of 1986

DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN : EDWARD CHARLES CHAPMAN Applicant AND: ROSALIND VIVIENNE DUBS

First Respondent

THE AUSTRALIAN NATIONAL

UNIVERSITY

Second Respondent

ROBERT CUSHING

Third Respondent

CORAM: Neaves J.

DATE: 4 February 1987

REASONS FOR JUDGMENT

This application for an order of review under the

Administrative Decisions (Judicial Review) Act 1977 (Cth)

concerns an election held within The Australian National University for the office of Dean of the Faculty of Arts. Dr Robert Cushing, the third respondent, was declared elected, Mr

Edward Charles Chapman, the applicant, being the unsuccessful

candidate.

2.

The Australian National University ("the University"), the second respondent, is established and incorporated by the

Australian National University Act 1946 (Cth), s.4. The

governing authority of the University 1s the Council (s.10). Section 7 provides that there shall be, within the University, a group of faculties and other bodies, as determined by the Council, to be known as "The Faculties". One of the group of

faculties is the Facuity of Arts.

Subject to the Act and the Statutes of the University, the Council may from time to time appoint deans and other officers and servants of the University (s.23). The Council is empowered by sub-s.27(1) from time to time to make, alter and repeal Statutes of the University with respect to all or any of the matters set out in some 26 lettered paragraphs. Those matters include the manner of appointment of deans (par.(g)).

Sub-section 27(2) provides:

"(2) The Statutes may provide for empowering any authority (including the Council) or officer of the University to make by-laws, rules or orders (not inconsistent with this Act or with any Statute) for regulating, or providing for the regulation of, any specified matter (being a matter with respect to which Statutes may be made) or for carrying out or giving effect to the Statutes, and any such by-law, rule or order shall have the same force and effect as a Statute."

Every Statute when approved by the Council is to be sealed with the common seal of the University, and 1s to be transmitted by the Chancellor for the approval of the

Governor-General, and upon being so approved is to be

3.

notified in the Commonwealth of Australia Gazette.

Thereupon it has the force of law (sub-s.28(1)).

One of the Statutes of the University 1s the Faculties (The Faculties) Statute. Sub-section 1(1) prescribes the persons who are to comprise the Faculty of Arts. By virtue of s.6, there 1s to be a dean of the faculty who is to be elected in accordance with the rules made by the faculty under s.8. Under par.8(1)(f) a faculty

may make rules providing, inter alia, for:

(i) the eligibility of members for election to the office of dean of the faculty; and

(11) the method of election of the dean of the faculty, and the determination of questions arising in relation to the conduct or result of such an election.

Pursuant to the power conferred by par.8(1)(f) above, the Faculty of Arts has made rules entitled the Faculty of Arts (The Faculties) Rules. By those rules it is provided that at an election of the Dean of the Faculty, voting is to be by a ballot of members of the Faculty

(sub-rule 2(1)). Sub-rule 2(3) provides:

"(3) The election of a Dean shall be by postal ballot of members; the method used shall be that set out in The Schedule of the Membership of the Council Rules."

The Membership of the Council Rules are rules made pursuant to the Membership of the Council Statute. The Schedule to those rules makes the following provisions which are of relevance to the present application. Clause 1

provides:

"L. In the conduct of an election under these Rules the Returning Officer shall allow the intervals specified hereunder between the events severally set out ~

(1) between the publication of the fact that an election is necessary and the time prescribed for the receipt of nominations; not less than 14 and not more than 30 days;

(2) between the time prescribed for the receipt of nominations and the issue of voting papers; not more than 28 days;

(3) between the time of issuing voting papers and the time by which voting papers must reach the Returning Officer; not less than 28 and not more than 60 days."

Clause 3 provides for the nomination of candidates. Each candidate is entitled to nominate a scrutineer (cl.10). Clauses 4-8 inclusive and clauses 12, 13 and 14 should be

set out in full. They provide:

"4. With every voting paper there shall be issued -

(a) an envelope that is marked 'Voting Paper'; and

(b) another envelope that is addressed to the Returning Officer and on which is endorsed a form of declaration.

5S. Every voting paper shali contain the names of the candidates in alphabetical order (the names of any retiring candidates being

indicated). Where a voting paper has been lost or destroyed a duplicate shall be supplied on written application to the Returning Officer.

6. There shall be set out at the head of every ballot paper the following instructions:

'INSTRUCTIONS TO VOTER

1. Indicate your preference, or the order of your preference, on this voting paper by writing the number 1 against the name of the candidate for whom you wish to vote or by writing a series of consecutive numbers, beginning with the number 1, against the names of the candidates for whom you wish to vote, 1 number being written against the name of each such candidate. You are not required to write a number against the name of every candidate.

2. Place this voting paper in the envelope marked 'Voting Paper'.

3. Seal that envelope and place it in the envelope addressed to the Returning Officer.

4. Sign the declaration on the envelope addressed to the Returning Officer and post or deliver the envelope to the Returning Officer.'

7. A voter shall vote in conformity with the instructions set out in clause 6.

8. All such envelopes that are received by the Returning Officer shall remain unopened until the close of the poll, at which time the Returning Officer or his deputy shall ~

(a) open each envelope in respect of which

the declaration has been signed by a qualified voter;

(b) place the envelopes containing the voting papers together; and

(c) after all the envelopes containing the voting papers have been so placed together, open the envelopes and ascertain the result of the election.

eons

12. No voting paper shall be accepted unless 1t 1s received by the Returning Officer before the close of the poll.

6.

13. The Returning Officer shall decide whether any voting paper shall be accepted or rejected.

14. In an election at which only 1 candidate is to be elected the result of the election shall

be determined in the manner following:

(1) The Returning Officer shall count the first preference votes given for each candidate on all unrejected voting papers;

(2) the candidate who has received the largest number of first preference votes shall, if that number constitutes an absolute majority of votes, be elected;

(3) aif no candidate has received an absolute majority of first preference votes, the counting of votes shall proceed as follows:

(a) the candidate who has' received the fewest first preference votes shall be excluded, and each voting paper counted to that candidate shall be counted to the candidate next in the order of the voter's preference;

(b) if a candidate then has an absolute majority of votes that candidate shall be elected, but if no candidate then has an absolute majority of votes, the process of excluding the candidate who has the fewest

votes, and counting each of that candidate's voting papers to the

unexcluded candidate next in the order of the voter's preference, shall be repeated until 1 candidate has received an absolute majority of votes; and

(c) the candidate who has received an

absolute majority of votes shall be elected."

Clause 15 provides for the method of determining which candidates are elected in an election at which more

than one candidate is to be elected.

The Returning Officer may, on the request of any candidate setting forth the reasons for the request, or of the Returning Officer's own motion, recount the voting papers received in connection with any election (cl.20). Where, before the poll is declared at an election, the Returning Officer is satisfied that the election has been vitiated by reason of an irregularity in the course or conduct of the election, the Returning Officer may declare the election to be void from its commencement or from such point in the proceedings of the election as the Returning

Officer specifies (cl.20A).

There are in the Schedule to the Membership of the Council Rules references to "the Returning Officer", an expression which is not defined ain the Schedule or in the rules themselves or in the Faculty of Arts (The Faculties) Rules. Section 9 of the Membership of the Council Statute, however, refers to the Registrar of the University as being the Returning Officer but only for the purposes of an election referred to in that statute. Rosalind Vivienne Dubs, the first respondent, is, and was at the material time, the Registrar of the University. She has deposed in an affidavit sworn on 27 August 1986 that the practice at the University is for the Registrar to be the Returning Officer for, inter alia, elections to the office of dean of a faculty and for a member of the staff of the Registrar's Division to act as Deputy Returning Officer in conducting

such elections. In accordance with this practice, the first

8.

respondent was the Returning Officer for the election in question and Mr Bryan Unwin, Faculty Secretary of the Faculty of Arts, acted as Deputy Returning Officer and, as such, had the conduct of the election. No point was taken that by reason of these practices being followed the conduct

of the election was irregular.

On or about 3 April 1986, Mr Unwin on behalf of the Registrar as Returning Officer issued to the persons on the roll of eligible voters which he had prepared a notice stating that the office of Dean of the Faculty of Arts would become vacant on 10 August 1986 and inviting nominations for the position. The notice further stated that nomanations would close at 4.00 p.m. on 21 April 1986 and that, should more than one valid nomination be received, a ballot would

be held in accordance with the Faculty of Arts (The

Faculties) Rules.

Two valid nominations were received, those of Mr Chapman and Dr Cushing. One of those nominating Dr Cushing

was Dr Beryl Rawson, the retiring Dean of the Faculty of

Arts.

On or about 23 April 1986 Mr Unwin sent to all persons on the roll of voters a voting paper accompanied by two envelopes, an inner (brown) envelope marked "Voting Paper" and an outer (white) envelope addressed to the Returning Officer, A.N.U. On the outer envelope there

appeared in the top left hand corner the words "(Internal

9.

Mail)" and in the bottom left hand corner the words "Election of Dean of Faculty of Arts". The voting paper was

in the following terms:

"THE AUSTRALIAN NATIONAL UNIVERSITY

Election of

Dean, Faculty of Arts, 1986-1989

VOTING PAPER

Instructions to Voter

1. Indicate your preference, or the order of your preference, on this voting paper by writing the number 1 against the name of the candidate for whom you wish to vote or by writing a series of consecutive numbers, beginning with the number 1, against the names of the candidates for whom you wish to vote, one number being written against the name of each such candidate. You are not required to write a number against the name of every candidate.

2. Place this voting paper in the envelope marked 'Voting Paper'.

3. Seal that envelope and place it in the envelope addressed to the Returning Officer.

4, Sign the declaration on the envelope addressed to the Returning Officer and post or deliver the envelope to the Returning Officer, Faculty of Arts by 5.00 pm on Friday, 30 May 1986.

J CHAPMAN, Edward Charles CUSHING, Robert Gale"

Each of the candidates nominated a scrutineer.

10.

On either 21 or 22 April 1986 Mr Unwin had received from Dr Beryl Rawson a memorandum dated 21 April 1986

reading as follows:

"I have had enquiries about what sort of information will be distributed about candidates for the Deanship.

In 1980 some form of c.v. was distributed for each candidate and that seems desirable again. It has also been suggested that some brief policy statement would be welcome.

Do you have views?

Will you discuss with candidates, please?

I'm reluctant to delay sending out the first papers - 1s it acceptable to say that 'x' and 'y' will follow?"

Mr Unwin responded on 22 April 1986 in the

following terms:

"Yes, I have strong views on biographical profiles/c.v.'s/policy statements - I don't believe they can be done objectively, equally or equitably. If not done objectively and at arm's length, they fall into the realms of personal propaganda and hence have no place in the official electoral process. Of course, what the candidates choose to do outside the official process is up to them."

It appears that, following upon the receipt by Mr Unwin of the Dean's memorandum, he spoke by telephone with Dr Cushing asking whether Dr Cushing wished to have biographical material circulated. Dr Cushing expressed no interest in doing so. Mr Unwin was unable to speak with Mr Chapman and he so informed Dr Cushing. In the result, no

biographical material was included with the voting papers

sent to those on the roll.

11.

A meeting of the Faculty of Arts was held on 1 May 1986. Mr Chapman, Dr Cushing and Mr Unwin in his capacity as Faculty Secretary attended. At the meeting the question of despatch of biographical material for election candidates was discussed and it was decided that the Faculty would despatch such material in respect of future elections with the voting papers if the candidates so wished. It was acknowledged at the meeting that the decision taken did not apply to the election for Dean of the Faculty then in progress as, indeed, it could not as the voting papers for that election had already been despatched. This evidence was admitted subject to objection. On further reflection I

am satisfied that it was admissible.

On 2 May 1986, Mr Unwin received from Dr Cushing a

memorandum as follows:

"After yesterday's discussions at Faculty plus some inquiry by members of Faculty after the meeting, I would like tao take you up on your offer of a second mailing in re biographical

details and the like of candidates for the Deanship.

Could you send these out probably with similar material from Ted."

Accompanying the memorandum was a document of two pages setting out biographical details relating to Dr Cushing and containing a statement headed "A perspective on the Faculty

and deanship".

12.

Mr Unwin has sworn, and I accept his evidence, that the only offer of the kind attributed to him in Dr Cushing's memorandum was the offer he made prior to the voting papers being distributed. However, he did on 5 May 1986 send a copy of the document accompanying the memorandum to all persons on the roll of voters. There was no covering letter or note with the document and the material was sent in an envelope bearing the words "Australian National University" but having nothing upon it toa indicate that it had been despatched by the Returning Officer or the Deputy Returning Officer. On the same day, Mr Unwin responded to Dr

Cushing's memorandum as follows:

"This has gone out as a personal mailing from yourself. You will understand that it cannot be part of the official process at this stage."

On 8 May 1986 Mr Chapman became aware that the document above referred to had been sent to those on the roll of voters. He telephoned Mr Unwin and during the course of the conversation Mr Unwin said that he regarded the material as a personal mailing from Dr Cushing and that he would be happy to do the same for him. Mr Chapman said that he would have his secretary prepare biographical material and have it delivered to Mr Unwin who said he would

send it out as soon as it was received.

On 12 May 1986 Mr Unwin received material from Mr Chapman, It consisted of a document setting out his

experience, a statement headed "Tasks for the next Dean" and

13.

a pro forma letter dated 10 May 1986 addressed "Dear Faculty

Colleague" and reading as follows:

"I am attaching a statement relating to my candidature for the Deanship. Those of you who attended the Faculty meeting on 1 May will recall the decision that statements of this kind should, at future elections, be sent out with the balilot papers.

The Faculty Secretary has kindly agreed to my

request to send out the attached statement for your information. The poll closes on 30 May."

The material provided by Mr Chapman was sent by Mr Unwin to all persons on the roll of voters on the date of its receipt

by him.

On or about 23 April 1986, a metal ballot box with a locked lid and provision for locking the slot in the lid was located in the Faculty Office on the ground floor of the Haydon-Alicn Building within the University for the receipt of voting papers. The box was available to those wishing to lodge voting papers between the hours of 9 a.m. and 5 p.m.

on each day, Monday to Friday, until 5 p.m. on 30 May 1986 when the slot in the lid of the box was locked and the box

removed to Mr Unwin''s office.

Counting of the votes took place on 2 June 1986. The counting concluded and the declaration of the poll was signed at approximatley 10.15 a.m. on that day. Of the

votes counted Dr Cushing received 53 and Mr Chapman 49.

14.

At the commencement of counting the contents of the ballot box were examined. There was one outer envelope on which the declaration by the voter had not been completed. That envelope was rejected and no question arises in regard thereto. There was also one sealed outer envelope endorsed with a declaration by the voter in proper form which, when opened, was found to contain no inner envelope. There was also in the ballot box one sealed inner envelope which may have contained a voting paper. That inner envelope was not opened and any voting paper which it may have contained was

not included in the count.

There were nine voting papers which had no numerical markings but which were marked with a tick ora cross opposite the name of one of the candidates. Those voting papers were rejected by Mr Unwin. It is not in dispute that, if those voting papers had been treated as

valid, 6 expressed a preference for Mr Chapman and3 a

preference for Dr Cushing.

On 2 June 1986, three further envelopes addressed to the Returning Officer were received in the Faculty Office, one in the morning at approximately 10.30 a.m. and two in the afternoon between 2 p.m. and 5 p.m. Mr Unwin took the view that these envelopes had been received after the poll had closed and, as a consequence, the envelopes were not opened and any voting papers contained therein were not included in the count. The three envelopes had been

received in the Faculty Office through what has been

15.

referred to as the University's internal mail system. The evidence discloses that this is a messengerial pick-up and delivery service for letters, other documents and packages. Within the bu2rldings which comprise the Arts and Economics precincts of the University, the service is operated by three employees designated attendants. The pick-up and delivery service within those precincts is made as a matter of routine four times each working day at approximately 10 a.m., 12 noon, 3 p.m. and 4 p.m. A pick-up service is also provided each working day at approximately 8.30 a.m. The items picked up are brought to a central point and there sorted for delivery. Delivery 1s made to the respective addressees on the next delivery round. In respect of the 4 p.m. pick up ona Friday evening, the items picked up are sorted for delivery that evening but are not delivered until

the first delivery round on the following Monday morning.

On 13. June 1986 Mr Chapman wrote to the Registrar in her capacity as Returning Officer referring to certain telephone conversations which had taken place some days earlier, requesting an explanation in respect of the rejection of certain voting papers and requesting that there be a re-count of the votes cast. The Registrar replied by letter dated 17 June 1986 providing information on the matters raised by Mr Chapman and informing him that his request for a re-count of the votes cast was refused. Mr Chapman unsuccessfully renewed his request for a re-count of the votes cast ina letter to the Registrar dated 20 June

1986. By letter dated 7 July 1986 Mr Chapman's solicitors

16.

requested the Registrar to exercise her discretion to

conduct a fresh election. That request was also refused.

The decisions in respect of which orders of review

are sought are identified in the amended application filed

herein on 2 September 1986 as:

. the decision of the first respondent to declare Dr Cushing elected to the position of Dean of the Faculty of Arts;

» the decision of the first respondent not to admit 13 votes to the count; and

. the decision of the first respondent not

to declare the election void for irregularity.

The amended application sets out the grounds of the

application with particulars of the matters relied upon in

respect of each such ground. Some of the matters so

particularised were not pursued at the hearing and nothing

further need be said about them.

There must be considerable doubt whether the ageclaration by the Returning Officer that Dr Cushing was the successful candidate at the election for the office of Dean of the Faculty of Arts involved a decision of the kind

reviewable under the Administrative Decisions (Judicial

Review) Act 1977 (Cth) but, in the light of the conclusions at which I have arrived in relation to the other matters argued, 1t is unnecessary to examine this question further. I am prepared to assume that the decisions made by the

Returning Officer not to admit to the count the 13 voting

17.

papers to which reference has been made are decisions

reviewable under that Act.

I shall deal, first, with the sealed inner envelope

which was not contained in an outer envelope bearing a declaration by a _ voter. The basis upon which it 1s submitted that any voting paper which may have been contained in that inner envelope should have been admitted to the count is that Mr Unwin should have concluded that the sealed inner envelope and the empty sealed outer envelope found separately in the ballot box were connected. The question was, of course, one of fact and one for Mr Unwin's decision (cl. 13 of the Schedule to the Membership of the Council Rules). He was not satisfied that the two envelopes were connected or that any voting paper contained in the inner envelope was the voting paper of the voter who had completed the declaration on the sealed outer envelope. That conclusion was clearly open to him. He was not bound to be satisfied of the contrary. In my opinion, no basis has been shown upon which the Court could properly interfere

with his decision not to open the inner envelope and examine

any ballot paper it might contain.

I turn now to consider the three outer envelopes which were not received by Mr Unwin until 2 June 1986. Some criticism was made of the language in which the voting paper referred to the closing of the poll. The instruction there

given to each voter was to "post or deliver the envelope to

the Returning Officer, Faculty of Arts by 5.00 p.m. on

18.

Friday, 30 May 1986". In my opinion, that instruction was sufficiently clear to indicate to each voter what was necessary to be done if his or her vote was to be included in the count. The envelope containing the voting paper either had to be delivered to the Returning Officer by 5.00

p.m. on 30 May 1986 or had to be posted by that time on that

date.

The three envelopes in question were not delivered to the Returning Officer by 5.00 p.m. on 30 May 1986 so as to comply with the voting instructions. What the applicant contends 15 that they were "posted" to the Returning Officer by that time on that date. In my opinion, that contention

has not been established as it cannot be said that to have the envelope delivered from one location within the Arts and Economics precincts of the University to another location within those precincts, namely the Faculty Office of the Faculty of Arts, by a messengerial service operated by the University is to post the envelope within the meaning of the voting instructions. Although it is not directly relevant to the issue, it is of some interest that sub-s.11(1) of the Membership of the Council Statute draws a clear distinction between sending a notice or voting paper in connection with an election for members of the Council by messenger toa

place within the University and sending the same by post.

Moreover, even if the conclusion were to be reached that the envelopes had been "posted", no basis has been

shown on which the Court could be satisfied that the two

13.

envelopes which were delivered to Mr Unwin on the afternoon of 2 June 1986 were "posted" by 5.00 p.m. on 30 May 1986 as was essential if they were to be counted. The only inference that can be drawn from the evidence concerning the messengerial service is that they were put into the system after that time. It is also consistent with the evidence that the envelope delivered at approximately 10.30 a.m. may have been placed in the messengerial system early on that morning. I should add, in the light of the submissions that were made, that I do not see it as any part of the Returning Officer's function to make inquiries of the voters concerned as to the circumstances in which the envelopes were

delivered.

As to the nine voting papers which were marked only by a tick or across opposite the name of one of the candidates, it was submitted that they should have been admitted to the count as each of them indicated in a sufficiently clear manner the voter's preference for one of

the candidates. The marking of the voting papers does not accord with what was expressed to he required in the instructions to voters issued by the Returning Officer. The requirements are specific: the use of numbers is specifically prescribed and what Mr Unwin did was to require strict compliance. I am unable to conclude that, in so doing, he fell into error particularly as cl. 7 of the Schedule to the Membership of the Council Rules provides that a voter "shall vote in conformity with" those

requirements. This, to my mind, amounts to an imperative

20.

requirement. There is, again, a marked contrast between the requirements set out in the Schedule to those rules and the provisions relating to elections for members of the Board of the Faculties as set out in the Board of the Faculties Rules made under the Board of the Faculties Statute. Sub-rule 9(2) of those rules simply provides that a voter in such an election is to indicate the candidate or candidates, as the case requires, for whom the voter wishes to vote "by marking the voting paper accordingly". No more specific requirement

is there prescribed.

Counsel for the applicant referred to a number of

decisions: Blakey v. Elliott (1929) 41 C.L.R. 502; Kane v.

McClelland £19621] 111 C.L.R. 518; Fell v. Vale £1974] V.R. 134; and Allen v. Vehicle Builders Employees Federation (1977) 16 A.L.R.

69. These decisions, however, turned on the proper construction and effect of the relevant legislative provisions then under consideration and do not

govern the present situation.

In any event, to admit the nine votes to the count would not, in itself, affect the result of the poll except to reduce Dr Cushing's majority. As I have concluded that there was no error on Mr Unwin's part in excluding from the count the other disputed voting papers, even if the view were taken that the nine votes should have been counted, the

applicant has not established a sufficient basis for the

relief sought.

21.

It was also submitted on behalf of the applicant that the action of Mr Unwin in sending to voters on 5 May 1986 the biographical and other material provided by Dr Cushing unaccompanied by similar material from Mr Chapman amounted to an irregularity in the conduct of the election

and that a new election should be held. Counsel referred to

Re Penhallurick (1983) 51A.L.R.

589. It was further

submitted that Mr Unwin's action disclosed bias, or the

appearance of bias, on his part: R. v. Watson; Ex parte

Armstrong (1976) 136 C.L.R.

248.

In my opinion there is no foundation for this argument. Mr Unwin did not in any way identify himself with either of the candidates: he sent to voters material provided by both candidates in envelopes which, so far as the evidence goes, did not give the material official status or the appearance of such status. There was nothing to indicate that either candidate had official support and nothing to connect the Returning Officer with the material except so far as Mr Chapman's pro forma letter may have done

so. It is difficult to identify any decision of Mr Unwin

reviewable under the Administrative Decisions (Judicial

Review) Act 1977 (Cth) as to which it can be said that any observer should have had a reasonable apprehension that he was not approaching the making of that decision ina fair and unprejudiced way. Further, the circumstance that the material provided by Dr Cushing was sent a few days before that provided by Mr Chapman cannot be said, in my view, to

amount to an irregularity vitiating the election.

It follows

has been shown for the

22.

from what has

making

of an

been said that no basis

order of review in

respect of the decision of the first respondent not to order

& re-count or in respect

respondent to accede to 20A of the Schedule

In any event,

that clause was doomed to

the poll was declared, an express requirement of cl.

the request to

of

the applicant's request

the

refusal of the first

under cl.

to the Membership of the Council Rules.

the Returning Officer under

the

For these reasons, with costs including reserved injunctions granted by Everett dissolved.

Counsel for the applicant Solicitor for the applicant

Counsel for the first and second respondents

Solicitor for the first and second respondents

Counsel for the third

respondent Solicitor for the third respondent

Date of hearing

failure as it was not made before

20A. application 1s dismissed costs. The interlocutory Jd. on 6 August 1986 are

I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves,

Vick RRM Associate Dated: 4 February 1987

Mr T.J. Higgins Macphillamy Cummins & Gibson

Mr G.J.D. Richardson

Stephen Jaques Stone James

Mr G.P. Walker Power Haslem

10 November 1986