Fenlon v Radke & Electoral Commissioner of Queenland [1995] QSC 253

t_61~~' State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested In the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION AMBROSE J Pet No 15 of 1995 16 of 1995 IN THE MATTER OF THE ELECTORAL ACT 1992 IN THE MATTER OF THE ELECTION OF ONE MEMBER OF THE LEGISLATIVE ASSEMBLY FOR THE ELECTORAL DISTRICT OF MUNDINGBURRA IN THE STATE OF QLD FRANK JOHN TANTI and KENNETH HENRY DAVIES and ELECTORAL COMMISSIONER OF QUEENSLAND GARY BERNARD FENLON and TED RADKE and 1 r .-..-,,•~-~ ~ ...... ,., ..... s '"SUED j J-lJ- ., 1"'• .. -: I• i..• :-'tt-. • ::,. ; ,_.,,._;_,._, V .../1 ,_ I• ·1 Slate Repo~:~g E·JrGau~ i Date r},,O I ,)_ I C-; {p {) / Petitioner First Respondent Second Respondent Petitioner First Respondent -- 1 of 21 -- ELECTORAL COMMISSIONER OF QUEENSLAND Second Respondent BRISBANE .• DATE 04/10/95 10 JUDGMENT 20 30 40 50 so 2 -- 2 of 21 -- 041095 lu (Ambrose J) HIS HONOUR: In this matter in the application for amendment of the petition made by Frank John Tanti in petition 16 of 1995 I grant leave to make the amendments of that petition in the terms sought. In respect of the application by Gary Bernard Fenlon in petition number 15 of 1995 I grant leave to Mr Fenlon to make the amendments of his petition sought in the application argued. I publish my reasons for judgment in respect of both matters. JUDGMENT 3 ,o 20 30 40 50 50 -- 3 of 21 -- IN THE SUPREME COURT OF QUEENSLAND SITTING AS THE COURT OF DISPUTED RETURNS Pet. No. 16 of 1995 and Pet. No. 15 of 1995 BETWEEN: AND: IN THE MATTER of the Electoral Act 1992 - and - IN THE MATIER of The election of one member of the Legislative Assembly for each of the electoral districts of Mundingburra and Greenslopes in the State of Queensland FRANK JOHN TANTI Petition 16 of 1995 KENNETH HENRY DAVIES Petitioner First Respondent AND: ELECTORAL COMMISSIONER OF QUEENSLAND AND BETWEEN: GARY BERNARD FENLON Petition 15 of 1995 TED RADKE Second Respondent ~ 0s-/2SS Petitioner First Respondent AND: THE ELECTORAL COMMISSIONER OF QUEENSLAND Delivered 04/10/1995 CATCHWORDS: Second Respondent REASONS FOR JUDGMENT - AMBROSE J COURT OF DISPUTED RETURNS - Amendment of petition to state additional facts - application to amend made after expiration of time limited for riling petition - principles for exercise of discretion - The Electoral Act 1992 ss. 130, 134, 136. -- 4 of 21 -- Counsel: Solicitors: Hearing Date: 2 Mr J A Jerrard QC with him Ms K Carmody for the Greenslopes Petitioner and the first respondent to the Mundingburra Petition Mr P A Hastie with him Mr P J Dunning for the Mundingburra Petitioner and the first respondent to the Greenslopes Petition Mr R M Derrington for the second respondent in each petition Messrs Goss Downes Came for the Greenslopes Peti~ioner and the first respondent to the Mundingburra Petition Prentice Solicitors for the Mundingburra Petitioner and the first respondent to the Greenslopes Petition Messrs Minter Ellison & Quinlan Miller Treston for the second respondents to both petitions 28 September 1995 " ("-•. ! ( C) -- 5 of 21 -- IN THE SUPREME COURT OF QUEENSLAND SITTING AS THE COURT OF DISPUTED RETURNS Pet. No. 16 of 1995 and Pet. No. 15 of 1995 BETWEEN: AND: IN THE MATTER of the Electoral Act 1992 - and - IN THE MATIER of the election of one member of the Legislative Assembly for each of the electoral districts of Mundingburra and Greenslopes in the State of Queensland FRANK JOHN TANTI Petition 16 of 1995 KENNETH HENRY DAVIES Petitioner First Respondent AND: ELECTORAL COMMISSIONER OF QUEENSLAND Second Respondent AND BETWEEN: GARY BERNARD FENLON Petition 15 of 1995 Petitioner AND: TED RADKE First Respondent AND: THE ELECTORAL COMMISSIONER OF QUEENSLAND Second Respondent REASONS FOR JUDGMENT - AMBROSE J Delivered 04/10/1995 These are applications for leave to amend petitions by petitioners who, as unsuccessful electoral candidates in the Queensland State Election in the electorates of Mundingburra and Greenslopes in elections held in July 1995 dispute those elections. -- 6 of 21 -- 2 It will be convenient to refer to those petitions as the Mundingburra Petition and the Greenslopes Petition respectively. Pursuant to s.128 of the Electoral Act 1992 each petition was filed on 8 August 1995. The elections were held on 15 July 1995 and on 1 August 1995 pursuant to s.123(2), the Electoral Commission returned the election writ duly endorsed with the name of each of the first respondents as candidates elected. Pursuant to s.132(1) it was ordered by this Court on 15 August 1995 that the Electoral Commission give to the Court the various documents and other things held by the Commission in relation to the elections. This was done on 21 August 1995. Since that time the petitioners and the respondents have had the opportunity of examining those documents and things and generally collecting evidence in preparation for the hearing of the petitions. The Mundingburra Petitioner appears by the same legal representatives as does the first respondent to the Greenslopes Petition and the Greenslopes Petitioner appears by the same legal representatives as does the first respondent to the Mundingburra Petition. The Electoral Commission of Queensland is the second respondent to each petition C) and appears by the same legal representatives in each matter. To date interlocutory proceedings with respect to both petitions have been conducted together and it is contemplated that the hearing of one petition will immediately follow on the hearing of the other and that the same legal representatives of all parties involved in both petitions will appear on each hearing. Each petitioner applies upon this application for leave to amend his petition. The Mundingburra Petitioner's application is opposed by the first respondent to that petition. The Greenslopes Petitioner's application is not opposed by the first respondent to that petition. -- 7 of 21 -- \ i ) 3 The application by each petitioner is opposed by or at least not assented to by the Electoral Commission of Queensland, the second respondent to each petition. It is convenient to set forth the terms of each amendment sought showing the additional words and/or figures to be added shaded, and the proposed deletions ruled out. The Mundingburra Petition Paragraphs S(b) and (c) are sought to be amended as follows: "5. That the facts relied upon by the Petitioner to dispute the election are:- (a) (b) (c) That certain electors in the electoral district of Mundingburra voted or may have voted more than once; ~~~c~e~~inJ:~~:~b~~:in:d f~\!!~'-f~:I,~ ~~:: f~; r.amiRPBSC.lNtd~J persons who were on the Roll of the electoraf distdct""o't M~~d~gb~~~ but did not in fact Yote; That persons who were entitled to vote in the electoral district of• Mundingburra pursuant to Section 101(1):{~If!f!{).[ (c) of the Electoral Act 1992 were denied the vote or such votes were not counted. Particulars The best particulars the Petitioner can provide are as follows: approximately 347 persons cast declaration votes at polling booths outside the electoral district of Mundingburra; the Returning Officer did not attempt to and did not determine if such persons' names were or were not on the electoral roll for the electoral district of Mundingburra by reason of official error and did not count such votes." The Greenslopes Petition "GROUNDS A. 1. That the staff of the Second Respondent included approximately 261-G ~iPfflt informal ballot papers in the count of formal ballot papers. 2. That solely by reason of default of tl1e staff of the Second Respondent approximately ~ IwQ.~4.}\ declaration votes were rendered without -- 8 of 21 -- 4 effect to indicate a vote· for the purposes of the Electoral Act 1992 ("the Act"). 3. That approximately~ !{St.i.B.4-11 persons entitled to vote in the electoral district of Greenslopes were prevented from voting within the meaning of the Act by error or omissions of the staff of the Second Respondent. 4. That in the holding of the said election breaches of the Act were committed by staff of the Second Respondent in respect of approximately~ t~O.W,:J:) declaration votes.· :•,······························ Particulars (i) After the ballot papers in approximately ~ [(4•.8:#J~ declaration envelopes were accepted for counting and taken out of their declaration - envelopes by staff of . the Second Respondent,. those staff did not, before unfolding those ballot papers or allowing another person to unfold them, put those ballot papers in a sealed ballot box as required by the Act and thereby rendered the ballot papers informal. 11 Further amendments to various orders sought in the Greenslopes Petition are sought to reflect the amendments to which I have referred above. With respect -to the power of the Court of Disputed Returns to amend a petition, I refer to the following provisions of the Electoral Act 1992 . ... 11 127.(1) The Supreme Court is the Court of Disputed Returns for the purposes of this Act. (2) A single Judge may constitute, and exercise all the jurisdiction and powers of, the Court of Disputed Returns. 128.(1) The election of a person may be disputed under this Part by a petition to the Court of Disputed Returns in accordance with this Division. (2) The election may not be disputed in any other way. 11 ( -- 9 of 21 -- ,, I 5 130.(1) For a petition to have effect for the purposes of this Division, the requirements of this section must be complied with. (2) The petition must - (a) set out the facts relied on to dispute the election; and (b) set out the order sought from the Court of Disputed Returns; and (c) be signed by - (i) in the case of a petition by the Commission - the Electoral Commissioner; and (ii) in any other case - the petitioner before a witness; and (d) if paragraph (c) (ii) applies - contain the signature, occupation and address of the witness. (3) The person disputing the election must - (a) file the petition with the Court within 7 days after the day on which the writ for the election is returned as mentioned in section 123(2)(b); and (b) when filing the petition, deposit with the Court - (i) $400; or (ii) if a greater amount is prescribed - that amount. (4) Subsections (1) and (2) do not, by implication, prevent the amendment of the petition." The only express reference to amendment to be found in the Act is. that in s.130(4) which assumes the existence of a power to amend the petition in spite of the mandatory requirements of ss.130(1) and (2). "134.(1) The Court of Disputed Returns may conduct hearings and other proceedings in relation to the petition. (2) The Court must not have regard to legal forms and technicalities, and is not required to apply the Rules of Evidence. -- 10 of 21 -- 6 (6) The rules of court of the Supreme Court may include prov1s1on, not inconsistent with this Division, with respect to the practices and procedures of the Court of Disputed Returns. 11 The Rules of the Supreme Court of Queensland contain no rules specifically directed to the practices and procedures of the Court of Disputed Returns. 11 136.(1) Subject to sections 137 and 138, the Court of Disputed Returns may make any order or exercise any power in relation to the petition that the Court considers just and equitable. 11 Section 137- purports to constrain the power of the Court to make orders of the sort specified in s.136(2) which do not on their face relate to applications for amendment. Section 138 constrains the power of the Court to take into account evidence or to make inquiries of the kinds specified. Section 130(4) assumes that this Court has power to amend an effective petition. The Act constitutes the Supreme Court of Queensland as the Court of Disputed Returns. . I proceed on the basis that the general practice of the Supreme Court ought be followed except where it is apparent from the terms of the Electoral Act that some rule of practice ought not be applied. In this respect I refer to the observations of Dixon J in Australian Tramway and Motor Omnibus Employees Association v. Commissioner for Road Transport and Tramways (NSW) (1935) 54 CLR 470 at pp. 502-503 and to the judgment of r the Full Bench of the High Court in Electric Light and Power Supply Corporation Ltd v. Electricity Commission of New South Wales (1956) 94 CLR 554 at p. 560. The practice of the Supreme Court of Queensland with respect to amending proceedings before it is to be found in RSC 0.32 and in particular 0.32 r.l. It is ·not suggested in this case that either of the petitions as it stands unamended is not an effective petition as defined under S.130(1) of the Electoral Act. Section 130(4) of the Act obviously refers to the amendment of a petition after it has been filed as an effective petition. Unless there is a petition effective under the Act, no -- 11 of 21 -- 7 proceedings even of an interlocutory kind can successfully be taken upon it before this Court. Upon filing a petition pursuant to S.130(3) of the Act, that petition becomes an effective one if it complies with the requirements of S.130(2). If it does not at the time of filing comply with S.130(2), the petition is not effective under the Act by the express terms of S.130(1). If on the other hand it does comply with the requirements of S.130(2), but is not filed in accordance with the requirements of ) S.130(3), it does not become an effective petition for the purpose of the Act. "-.. _, · If one disregards a constraint on amendment of the petition of the sort implied in Cameron v. Fysh (1904) 1 CLR 314 and the cases following that authority or citing it with approval, it is difficult to determine to what other "implication" s.130(4) could refer. Griffiths CJ in the course of legal argument at p.316 observed: "This is substantially a new ground of objection to the election. The Electoral Act requires the petition to set out the facts relied on to invalidate the election, and it must be filed within forty days after the return of his writ. If I were to allow the application I should practically be extending the time for presenting the petition. I refuse the application." The rationale of the constraint expressed in Cameron v. Fysh is that th·e adding of another fact to a petition by amendment will have the effect that the amended petition does not rely upon or state facts all of which have been set out in a petition filed within seven days after the return of writ for election as required by s.130(1) and therefore by implication s.130(1) and s.130(2) proscribe the exercise of any discretion to permit such an amendment. For instances where implication of the constraint stated in Cameron v. Fysh has been adopted or approved see Nile v. Wood (1987-8) 167 CLR 133 at 137, Re Berrill (1978) 19 ALR 254 and Hickey v. Tuxworth (1987) 47 NTR 44 at 46-47. -- 12 of 21 -- 8 However, under the Queensland legislation which became effective 19 June 1992, it is expressly provided that s.130(1) and (2) do not by implication prevent the amendment of the petition. To my mind by s.130(4) the legislature' has, in express and unambiguous terms , negated any implication of the sort enunciated in Cameron v., Fysh which might otherwise have been drawn as a matter of statutory construction having regard to the time constraints for filing an effective petition contained in s.130(3). It was contended that the fact that s.130(4) refers only to ss.130(1) and (2) and makes () no mention of s.130(3) indicates that an implication of the sort drawn in Cameron v. Fysh ought still be drawn under s.130 of the 1992 Queensland Electoral Act because - · 1: / (1) The implication in Cameron v. Fysh was based in part at least upon the time constraint for filing a petition of the sort found in s.130(3) of the 1992 Act; and (2) Section 130(4) could still have effect with respect to an amendment made within the time constraints specified in s.130(3)(a) - i.e. within a period of seven days from the return of the writ for election. I find that contention unpersuasive. Section 130(1) specifies two requirements for a legally effective petition: (i) relates to its contents; and (ii) relates to its filing. Section 130(2) deals only with the contents required of an effective petition and s.130(4) deals or can have effect only with respect to the contents of the petition. It is only by reference to both the requirements as to contents and the requirements as to filing that an implication proscribing amendment of the sort drawn in Cameron v. Fysh can as a matter of statutory construction be drawn. ! ) -- 13 of 21 -- ) 9 In my view, the express provision in s.130(4) prevents the use of the provisions of s.130(2) to imply as a matter of statutory construction a prohibition of the sort implied in construing the Electoral Act in Cameron v. Fysh whether that section be considered alone or whether it be considered standing with s.130(3). Stated shortly, it was unnecessary in my view for the legislature to include sub (3) with sub (2) in the terms of s.130(4) to overcome the constraint on powers of amendment implied in Cameron v. Fysh because that implication relied upon the mandatory compli~ce with statutory provisions the equivalent of both sub (2) and sub (3) considered together. It could not have been founded upon only one of those two requirements. It does not of course follow that a petition which is "not effective II because it does not comply with the requirements of s.130(1) due to failure to meet the requirements of both s.130(2) and s.130(3) may be amended. Section 130(4) does not purport to have application to an amendment of anything other than an effective petition; the ratio of Re Berrill, which of course is a binding authority, has no application to these applications which relate to petitions which are "effective" because they adequately state facts from which conclusions may be drawn which arguably at least support the grant of relief sought, and they had this characteristic when they were filed within the constraints of s.130(3). Nor does it follow that upon application for an amendment of facts stated in a petition pursuant to s.130(2) a proper exercise of discretion will always result in the grant of leave to amend by adding additional facts; every application must be considered on its own facts. Section 134(2) prohibits this Court from having regard to "legal forms and technicalities" in the conduct of proceedings of this kind in relation to effective petitions. Section 136(1) empowers the Court upon this application for amendment to make any order and an exercise any power which it considered just and equitable. -- 14 of 21 -- 10 In exercising powers under the Act the· Court of Disputed Returns will keep in mind the observation of Foster J in Australian Electoral ·commission v. Towney (1994) 51 FCR 250 at 255 where after considering a number of authorities he said: "These passages are important in indicating that the primary role of a Court of disputed returns is to protect the integrity of the franchise. " In exercising my discretion on both applications for amendment I pay regard to the principles upon which discretion is exercised upon applications made to the Supreme Court of Queensland for leave to amend pursuant to RSC 0.32 r.1(1) and I have regard also to the way in which discretion is exercised upon applications to which 0.32 r.1(2) and (5) relate. While upon its express terms RSC 0.32 r.1(2) refers to proceedings instituted by writ of summons under O. 7 and not to those instituted by petition under O. 63, I take the view that for the purposes of exercising a discretion of a kind given under 0.32 r.1(1) upon these applications it is helpful to have regard to 0.32 r.1(5) and the authorities thereon for assistance in determining the principles to be applied. Order 32 r.1(5) provides: "An amendment may be allowed under subrule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment." Order 32 r.1(2) empowers a judge to grant leave to amend after the expiration of a relevant period of limitation current at the date of commencement of proceedings (by writ of summons). In considering these applications therefore I take into account whether the facts sought to be added by way of amendment to the petition are "substantially the same facts" or "to substantially the same effect" as those already stated and upon which the same or substantially the same conclusions are sought to be drawn. C) -- 15 of 21 -- 1 1 It is clear that an amendment of proceedings to raise a cause of action which has become statute barred since the proceedings were instituted will be more readily granted in Queensland than used be the situation in England where "very peculiar circumstances" would have to be shown - see Weldon v. Neal (1887) 19 QBD 394, particularly at p.395. In Adam v. Shiavan [1985] 1 Qd R 1, the Full Court of Queensland declined to follow the English cases applying the rather strict test enunciated in Weldon v. Neal (supra), and held that in any event the wide terms of 0.32 r.1(5) give a discretion to add a new cause of action by way of amendment after the expiration of a limitation period provided it arose "out of substantially the same facts" in respect of which the proceedings sought to be amended were instituted. In considering these applications for amendment of petitions, I propose to consider: (1) The grounds upon which the petition seeks to dispute the election it challenges. (2) The facts stated in the petition which must be established to support those grounds. (3) The orders sought in the petition on the assumption that all or some of the grounds will be made out. It is clear of course that the Court is not constrained to make or to refuse to make only an order sought in the petition. The powers of the Court to make orders upon the hearing of the petition are set forth in s.136(2) subject to the constraints expressed in s.137 of the Act. I tum now to consideration of the amendments sought in each petition. The Mundingburra Petition - 5(b) In essence, the fact/ground of complaint stated in para.S(b) of the petition is that some persons who voted in the election for the Mundingburra electoral district impersonated other persons enrolled for that electoral district in requesting ballot papers and lodging votes contrary to the provisions of s.102 of the Electoral Act 1992. -- 16 of 21 -- 12 In my judgment the amendments proposed by the petitioner do not assert any new facts but merely state more succinctly the essential facts already stated. To the extent that the category of "certain persons" referred to in para.S(b) _is enlarged by expanding it to include all persons who impersonated others enrolled for the Mundingburra electoral district - whether such persons did or did not vote also in their own names - such expansion in my view merely removes the illogical and probably unintended· limitation •of that category to alleged impersonators who voted also in their own names as they were lawfully entitled to do. That is a limitation which in my view may quite properly be disregarded as having no relevance to the real matter of complaint which relates to persons voting by wrongly impersonating other persons entitled to vote in· the electoral district. I grant leave to amend paragraph S(b) of the Mundingburra Petition as sought. The Mundingburra Petition - S(c) In essence the fact/ground of complaint in para.S(c) is to be found in the particulars given in support of that ground. , Stated shortly, the particulars are that 347 persons cast declaration votes (vide s.105(1)) and the returning officer did not because of official error determine whether the names of those persons were or were not on the electoral roll for the electoral district of Mundingbtirra and did not count such votes. Section 101 of the Electoral Act provides: "(101)(1) The following persons are the only persons who are entitled to vote in an election for an electoral district. (a) persons enrolled on the electoral roll for the district; (b) persons who are not enrolled, but are entitled to be enrolled on the electoral roll for the district because of section 64(1)(a)(ii); (c) persons whose names are not on the electoral roll for the district because of official error. 11 () -- 17 of 21 -- 13 It emerged upon the application that after examination of the declaration envelopes containing declaration votes particulars have been provided of 93 persons who are alleged to come within the category of voters comprised within s.lOl(c) - i.e. voters not on the electoral roll because of official error. However in the course of considering the circumstances in which all 347 persons particularised made use of the declaration envelopes, for the purpose of giving further and better particulars with respect to para.S(c) as it presently stands, it has been determined that the votes of 11 of that number were simply not counted due apparently to oversight or inadvertence by staff of the second respondent performing their duties under s.119 of the Act. This oversight does not come within the description of "official error" in determining their acceptability for counting in the course of a preliminary processing under s.116(1) of · the Act. I infer that those 11 declaration envelopes were determined to be acceptable for counting and it was a mere oversight on the part of some members of the second respondent's staff acting under s.119 which resulted in their not in fact being counted. In para.S(c) of the petition reference is made only to a failure to count votes of persons entitled to vote pursuant to s.101 (l)(c) - i.e. of 347 persons asserted not to be on the electoral roll because of official error. The amendment seeks to add another category of person said to be included in the 347 persons particularised as those having cast declaration votes which were not counted by reason of official error. This new category is one specified in s.101 (l)(a) - i.e. persons enrolled on the electoral roll for the Mundingburra electoral district whose votes for some reason, presumably oversight, were not counted as required. Upon the evidence it seems likely that there were 11 declaration votes which were by oversight not counted. There is no contest on this matter which indeed is conceded by the second respondent. -- 18 of 21 -- 14 Both the first and second respondents however contend that the failure of the petitioner to refer to s.l0l(l)(a) as well as to s.lOl(l)(c) in his petition will result in the proposed amendment stating new and quite different facts from those already stated and ought therefore be refused. The petition asserts that by "official error" each of the 347 declaration votes lodged by the second respondent with the Court on 21 August 1995 pursuant to order made on 15 August 1995 pursuant to s.132(1) were not counted. " No party at this stage of course knows in whose favour those votes have been cast. (-) However it has emerged that it is likely that 11 of those 347 declaration votes have not been counted due to what might ·be described as "official oversight" or "official inadvertence" as distinct from "official-error" contemplated by s.116. This fact does not appear to be seriously in issue. What is in issue is whether 93 of those specified 347 declaration votes which were undoubtedly not counted were not counted because of official error. In my view the critical facts and grounds stated in para.5(c) are that 347 votes which are in possession of the Court and which were not counted should have been counted. I find that the· reasons specified in para. 5(c) for the failure to count each of the specified declaration votes could not be advanced to explain why 11 of those specified votes were not counted if those 11 are not of voters to whom s.l0l(l)(c) refers. Of those 347 declaration votes apparently the petitioner seeks to explain the non-counting of 93 based upon the voters coming within s. lOl(l)(c) as stated in the petition. He now seeks by his amendment to explain the non-counting of a further 11. of those specified declaration votes as a mere oversight on the part of those responsible for counting votes already determined to be acceptable for counting. ( \ \_ -- 19 of 21 -- 15 In my view it would be a very technical approach indeed and not at all designed to "protect the integrity of the franchise" to refuse the amendment sought on the ground that it would involve stating new and quite different facts. Even accepting that the grant of leave to amend as sought will have that result, I take the view that the "new facts" involved in characterising 11 of the 347 specified declaration votes as coming within s. l 01 (l)(a) rather than within s.101 (l)(c) when s.101(1) specifies the persons entitled to vote and s.105(1) specifies the persons entitled to make declaration votes, will involve adding what in the circumstances is a statement of substantially the same sort of critical facts as those already stated upon which substantially the same conclusion may be drawn. Moreover the newly specified facts (by including a reference to s.lOl(l)(a)) will not even be in issue. The substantial similarity of the matters sought to be added by amendment with matters already stated in the petition results in my view from the thrust of para.S(c) that all the specified 347 declaration votes not counted were votes which should have been counted because they came within a category specified in s.101(1) of the Act. Furthermore, until the relevant material brought to this Court by the s~cond respondent was inspected by the petitioner, he had no way of knowing that a statement made to his scrutineer during the counting of votes that the 347 declaration ballots referred to in para.S(c) appeared to have been made by persons whose names did not appear on the electoral roll was incorrect. That returning officer according to the affidavit of Mr Massingham declined to make any inquiries to ascertain why those persons were not on the electoral roll. In my view this could be considered a circumstance of a very special or "peculiar" kind within the test expressed in Weldon v. Neal (1887) 19 QBD 394 which of course as I have already held is stricter than the test adopted by the Full Court of Queensland in Adam v. Shiavan (supra). In Crofter v. Webster (1979) 23 SASR 61 the -- 20 of 21 -- 16 circumstances thought not to be "peculiar" within the Weldon v. Neal test were not in any event reported - see p.64. I grant leave to the petitioner to amend para.5(c) of the petition in the terms sought. The Greenslopes Petition The essence of the ground of complaint by this petitioner is an alleged failure on the part of persons counting declaration votes to comply strictly with the requirements of s.116(2) of the Electoral Act. It is unnecessary to refer to the nature of the alleged non-compliance upon this application. The amendment seeks merely to assert that there were 3084 declaration votes counted by persons failing to comply with the obligations imposed upon them by s.116(2) instead of the 2610 votes specified in the petition as it presently stands. In my view, there is no argument which can be advanced to support a rejection of the application to amend based upon s.130 of the Electoral Act. Indeed the respondent to this petition did not seek to oppose the granting of leave to make the amendment sought. Q It would be a very technical approach to regard an amendment to specify an () additional 474 declaration votes as having the effect of specifying 474 "new facts". I find it unnecessary to con.sider whether such an amendment would or would not come within an implied constraint upon the powers to amend considered in Cameron v. Fysh in the context of other electoral Acts because for reasons already given at length I take the view that such an implied constraint is inconsistent with the express provisions of s.130(4) of the Electoral Act 1992 of Queensland. I grant leave to make the amendment sought by the petitioner to the Greenslopes Petition. I will hear argument from parties to the applications on the question of costs. -- 21 of 21 --