Hirsch v Phillips [1904] HCA 4

Hirsch v Phillips [1904] HCA 4

Electors enrolled for other polling places who on the original polling day were absent from the polling place for which they were enrolled are, per sec. 139, entitled to vote at another polling place, including at an adjourned poll. The refusal of such votes can only vitiate the election if the number was sufficient to affect the result. Merely formal or technical defects in a petition or refusal not demonstrably affecting the outcome do not of themselves suffice to void the election.

Parties
Petitioner: Maximilian Hirsch; Respondent: Pharez Phillips
Jurisdiction
Australia
Judgment Date
12 March 1904
Procedural Posture
Election Petition / Reference From the Court of Disputed Returns to the Full Court
Outcome
Questions answered; petition not struck out on formal grounds
Legal Topics
Elections—adjourned Poll, Absentee Voting, Interpretation of Commonwealth Electoral Act 1902, Sec. 139 and Sec. 153, Effect of Procedural Irregularities on Validity of Election
Electoral Law Elections—adjourned Poll Absentee Voting Interpretation of Commonwealth Electoral Act 1902, Sec. 139 and Sec. 153 Effect of Procedural Irregularities on Validity of Election

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Parties

Maximilian Hirsch

Petitioner

Pharez Phillips

Respondent

Procedural Posture

Election Petition / Reference From the Court of Disputed Returns to the Full Court

Legal Issues

  1. 1 Whether refusal to receive certain 'absent electors' votes under sec. 139 at an adjourned poll constitutes a valid ground for disputing the election
  2. 2 Whether the number of such votes refused could have affected the result and thereby vitiated the election

Ratio Decidendi

Electors enrolled for other polling places who on the original polling day were absent from the polling place for which they were enrolled are, per sec. 139, entitled to vote at another polling place, including at an adjourned poll. The refusal of such votes can only vitiate the election if the number was sufficient to affect the result. Merely formal or technical defects in a petition or refusal not demonstrably affecting the outcome do not of themselves suffice to void the election.

Court Disposition

Questions answered; petition not struck out on formal grounds

Orders

  • Questions answered accordingly
  • Costs of the reference in the discretion of the judge hearing the petition