Case: Gunter v Hollingworth [2002] FCA 943
Outcome: applied
which a petitioner seeks to dispute by a petition, and the relief claimed, are thus " to be ascertained from the terms of the petition itself as a matter of construction ": Gunter v Hollingworth [2002] FCA 943 at [28] per Cooper J. Set forth in the petition under the heading " Statement of Facts " are contained (among others) the following statements: "If in Australia, where the Westminster System should be characterised by a career public service which 'impartially serves the government of the day' and the ABC is both an independent public service and Australia's national public broadcaster, then the ABC's performance during the campaign period breached its impartiality with particular respect to its content and program level on the one hand and its platform levels of ABC Television, ABC Radio and ABC Online on the other. ..." "The ABC was responsible for an inequitable candidate profile detailing the background of each candidate ..., gave inequitable broadcast time to each candidate (able to be verified by ABC political broadcasting requirements) and carried a link to the webpages of three of the candidates, one of which (that of the declared winner) carried no political authorisation statement as required of all political advertising by the Australian Electoral Commission. ..." "... the winner's website carried a You Tube attachment (again without authorisation statement) and media releases from the candidate's extensive 12 year state political career, each of which was a political advertisement and all of which was available during the mandatory, electronic media 'blackout period.'" It is also there stated: "Possibly a breach of both the Westminister System and the Australian Constitution , the ABC has an election coverage policy document that apportions 'free-to-air' radio coverage time to candidates ..." The statement as provided by the petition is a combination of assertions, submissions and conclusions based upon unstated facts and possibly a limited number of identifiable facts. So expressed, it is difficult to isolate " the facts relied on " from the balance of the other statements also made. Although it may be preferable for a petitioner to clearly isolate " the facts relied on " from such other statements as he may wish to make, s 355(a) itself does not expressly impose that obligation. But the present difficulty of identifying " those facts with sufficient particularity " does little to assist the identification of " the subject matter or matters on which " the Petitioner relies. But, whatever may be the other powers that the Court may have, it is not considered that it has power to make such orders as are sought in the petition in orders (1) and (2). In McClure v Australian Electoral Commission [1999] HCA 31 , 163 ALR 734 at 736 to 737, Hayne J made the following observations when declining like relief: The petition [10] In his petition, the petitioner makes two kinds of complaint. The first is a complaint about the lack of media coverage of his candidacy in the election and of his platform of policies. The second is a complaint that he was disadvantaged by the application of those provisions of the Act that govern group and individual voting tickets in a Senate election [ss 211 and 211A], and what has become known as voting above or below the line [s 209(1)]. He seeks declarations that the half Senate election for Victoria was void and that none of the six candidates returned was duly elected. ... The claims for relief other than avoidance of the election [12] The petitioner says, at the start of his petition, that he is not a lawyer and asks the Court to give him whatever assistance is necessary to ensure "the lawful and democratic conclusion" of the matter. But even giving the most generous construction to his petition, it is plain that much of the relief sought is relief of a kind that cannot be given. ... The publicity claim [17] It is not clear what the petitioner means when he says that the Court should "informally instruct" the chiefs of staff of media bodies about how they should act in the future. If he seeks to have the Court give some advice to these persons, it is enough to say that this is not the Court's function. If he seeks to have the Court make some order about future conduct, there is no basis in the Act for concluding that the Court has any power to do so. There being no power to do so, the further questions that might then have arisen about framing an order with sufficient certainty need not be considered. The relief claimed cannot be given. This decision has since been applied to decline like relief in Gunter v Hollingworth [2002] FCA 943 at [44] per Cooper J.