Case: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407
Outcome: applied
there is no power to relieve a petitioner of the requirements of s 355(a): Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409 per Toohey J. Nor is there any ability for the Petitioner to now seek to amend the petition to remedy his failure to comply with s 355(a). After the period nominated for the filing of the petition by s 355(e), there is thereafter no power to amend: Rudolphy v Lightfoot [1999] HCA 61 at [10] , [1999] HCA 61 ; 197 CLR 500 at 507. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there observed: [12] The provision with respect to the 40 day period plainly is designed to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns. Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355. The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period. Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but ... that is how the matter should be understood. See also: Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 648 to 649 per Dawson J; Hudson v Entsch [2005] FCA 300 at [4] per Dowsett J. If the essential facts necessary to the conclusion of invalidity of the election in question are not set out, no proceeding may be had upon the petition: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [12] per Kiefel J. And, even if the requirement imposed by s 355(a) was to be met, s 362 " provides exhaustively as to the general grounds on which an election may be invalidated or declared void ": Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 631 per Gaudron J. Toohey J has observed that Her Honour's reasons for reaching this conclusion were " persuasive " but found it unnecessary to express a concluded view: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409. See also: Sue v Hill [1999] HCA 30 at [209] to [210] [1999] HCA 30 ; , 199 CLR 462 at 540 to 541 per McHugh J. More recently, however, it has been observed that a submission proceeding " from the premise that s 362(3) is an exhaustive statement of the circumstances in which the court may declare an election void ... may very well be stated too broadly ": McClure v Australian Electoral Commission [1999] HCA 31 at [25] , [1999] HCA 31 ; 163 ALR 734 at 740 per Hayne J. Order 3 stands in a different position. The order as sought is an order " that the election be declared null and void ", namely the election to which the petition relates &#8212; the by-election held in Lyne on 6 September 2008. It was not disputed that the Petitioner was enrolled and entitled to vote in that by-election. Although reference was made by the Petitioner in submissions to an election in another electorate, the Mayo electorate, no question arises as to declaring void the result in any election other than that of Lyne. It was not disputed that the Petitioner was entitled to claim the relief he sought in order (3): Muldowney v Australian Electoral Commission [1993] HCA 32 ; (1993) 178 CLR 34 ; Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37 ; (1993) 115 ALR 641 ; Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 Abbotto v Australian Electoral Commission (1997) 44 ALD 481. See also: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [8] to [9] per Kiefel J.