Case: Kean v Kerby (1920) LR 449
Outcome: considered
The next argument raised by the petitioner focuses attention on the requirement in s 360(1) that the Court sit "as an open Court" and on the "open justice principle" which is a fundamental pillar of the rule of law. Attention was directed to the well known statements of Lord Atkinson in Scott v Scott [1913] AC 417 at 463 and Kirby P in John Fairfax Group v Local Court (NSW) (1991) 26 NSWLR 131 at 143. It was contended that it would be inconsistent with the "open Court" requirement and the "open justice" principle were the Court to rule on the formality of disputed ballot-papers without the parties being able to see those ballot-papers, or to make submissions in relation to them. This, it is said, would be the consequence of a refusal to make the orders sought. In this context the petitioner drew attention to the judgment of Isaacs J, sitting as a Court of Disputed Returns, in Kean v Kerby [1920] HCA 35 ; (1920) 27 CLR 449 and pointed to passages of his Honour's judgment which, it was submitted, suggested that counsel had had access to ballot-papers in order to assist the Court. 36 Kean v Kerby was decided in 1920. The decision in Hedges had, seven years earlier, established that access to electoral documents could not be obtained by means of an order for discovery directed to electoral officers who were not party to the proceeding. This did not mean that a petitioner could not obtain access to the ballot-papers by other means. In Hedges , Barton ACJ was at pains to stress (at 334) that the application before him was not directed to securing the attendance of an electoral official to produce documents, thereby suggesting that the petitioner might have been successful had he sought the issue of a subpoena duces tecum . No doubt conscious of the ruling in Hedges , both the petitioner and the respondent, in Kean v Kerby, obtained subpoenas directed to the Divisional Returning Officer for the relevant electoral division. The petitioner's subpoena required the production to the Court of "the parcels of ballot papers containing thirty five ballot papers reserved for the decision of the Commonwealth Electoral Officer for the State of Victoria and the ballot papers examined, counted and dealt with by [the Returning Officer] under section 135 subsection 3 of the Commonwealth Electoral Act 1918-1919 ." The respondent's subpoena required the production of the official roll of electors for the division and all documents relating to postal and absentee voting by certain named electors. 37 The ballot-papers were produced to the Court by the Electoral Officer. It is clear from his judgment that Isaacs J examined each of the disputed ballot-papers. What is not apparent from the judgment is whether the parties and/or their legal advisors were given access to the ballot-papers in the course of the hearing. I can find nothing in Isaacs J's judgment which expressly or by necessary implication suggests that such access was given. No transcript of the hearing was taken. There is, however, a contemporaneous newspaper report of what occurred. The Argus of 13 May 1920, reported that, on the previous day: "Charles Henry Anderson, the divisional returning officer at Ballarat, produced a sealed packet, which he said had been received by him on January 3, by registered post from the chief electoral officer to whom 35 ballot papers had been referred. Robert H Lawson, chief electoral officer for Victoria, identified the packet. ... After Mr Justice Isaacs had obtained an assurance that the ballot papers bore no identifying marks, and that the secrecy of the ballot would not be affected, he consented to the packet being opened. It contained 35 ballot papers which were inspected by counsel and solicitors for both parties during the luncheon adjournment." 38 Kean v Kerby was decided before the forerunner of s 360(1)(iii) was introduced into the Act. It was not, therefore, necessary for Isaacs J to consider whether he was prevented by such a provision from directing that the ballot-papers be made available to counsel. Had it been necessary he may have been persuaded that he was not so constrained because he would have been granting leave to counsel to inspect documents which were in the custody of the Court rather than the Commonwealth Electoral Officer and that access was being provided during the course of a hearing under the Court's supervision for the limited purpose of providing assistance to the Court.