Caltabiano v Electoral Commission of Queensland & Anor (No 1) [2009] QSC 109

1-1 [2009] QSC 109 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ATKINSON J No 3921 of 2009 ANDREA MICHELE CALTABIANO Applicant and ELECTORAL COMMISSION OF QUEENSLAND and STEVEN ANDREW KILBURN 1st Respondent 2nd Respondent BRISBANE ..DATE 06/05/2009 JUDGMENT -- 1 of 12 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HER HONOUR: The applicant, Andrea Michele Caltabiano, was the unsuccessful candidate in recent State Elections for the electorate of Chatsworth. On 14 April 2009, she filed an originating application under the Electoral Act 1992 (“the Act”) in the Court of Disputed Returns seeking the following orders: (1) That Steven Andrew Kilburn, the person declared to be the member elected for the electoral district of Chatsworth be taken not to have been elected; (2) That the applicant, Andrea Michele Caltabiano, be taken to have been elected for the District of Chatsworth; and (3) In the alternative to paragraph (2) that a new election be held for the District of Chatsworth. On 1 May 2009, the first respondent, the Electoral Commission of Queensland, filed an application to dismiss the applicant's originating application on the ground that the applicant had not complied with the requirement of s 130 (3)(b) of the Act to deposit $400 with the Court when filing the originating application. The same application was made by the second respondent, Steven Andrew Kilburn, by application filed on 5 May 2009. The application to dismiss the originating application is based on the requirements set out in section 130 of the Act -- 2 of 12 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 for an application to be effective. Section 130 provides as follows: "Requirements for an application to be effective (1) For an application to have effect for the purposes of this division, the requirements of this section must be complied with. (2) The application 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 an application by the commission - the electoral commissioner, and (ii) in any other case - the applicant 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 application 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 application, deposit with the court – (i) $400; or (ii) if a greater amount is prescribed - that amount. -- 3 of 12 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 (4) Subsections (1) and (2) do not, by implication, prevent the amendment of the application.” It can be seen that section 130(3)(b)(i) provides that the person disputing the election must deposit $400 or any greater amount that has been prescribed with the court when filing the application. There is no suggestion that any greater amount has been prescribed. Subsection (4) specifically provides that subsections (1) and (2) do not prevent the amendment of the application. No such exception is provided in relation to subsection (3) which emphasises the mandatory nature of subsection (3). The applicant did not dispute that the requirement to deposit $400 with the court when filing the application is mandatory. Such concession was properly made. In Tanti v Davies(No 2) [1996] 2 QdR 591, Ambrose J observed of these provisions at 595: "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 s130(1). If on the other hand it does comply with the requirements of s130(2), but is not filed in accordance with the requirements of s130(3), it does not become an effective petition for the purpose of the Act". -- 4 of 12 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 The High Court held in Rudolphy v Lightfoot [1999] HCA 61 at [9] - [10] that the time limitation set out s355(e)of the Commonwealth Electoral Act 1918, which provides for a 40 day period within which an electoral petition must be filed has the effect of stipulating “an essential condition or jurisdictional requirement for the Court of Disputed Returns." If the jurisdictional requirements of the application are not met then the Court has no jurisdiction to dispense with those requirements. As Bennett J held in Smith v Australian Electoral Commission [2008] FCA 953 at [18] such a defect would not be capable of being cured by amendment. The application would be incurably defective and no proceedings could be had on it. A decision to similar effect concerning the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (the ATSIC Act) is found in Hansen v Australian Electoral Commission [2000] FCA 606 where Kenny J said at [11]: "The court cannot try a petition addressed to it under clause 2 of schedule 4 of the ATSIC Act unless the requirements of clause 3, clause 3A, clause 4 (pursuant to which the petitioner must deposit $100 with the court as security for costs) and, where applicable, clause 5 are met; schedule 4, clause 6. The court has no power to dispense with the need for compliance.” It is therefore essential to the validity of an application to dispute an election that the application is filed within seven days after the date on which the writ for the election is -- 5 of 12 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 returned and that a deposit of $400 or, if any greater amount is prescribed, that amount is paid when the election is filed. If either condition is not complied with, the application is incurably defective. However, as I said, the argument of the applicant is not that the payment of $400 deposit when the application is filed is not mandatory but rather that as a matter of fact it should be found that she did pay the $400 deposit. The circumstances which are alleged to constitute payment of the deposit are set out in the affidavit of Liam Guy Polkinghorne, a part-time law clerk and law student. He deposed that on the morning of 14 April 2009 he telephoned the Brisbane Registry of the Supreme Court of Queensland but obtained no useful information on what payments were required when an application to the Court of Disputed Returns was made. That has no relevance to the outcome of this application. However the following passage in his affidavit is relevant. He deposes in paragraphs 5 and 6 as follows: "I subsequently attended with Ms Caltabiano and Pravilesh Premikash Chand, a solicitor employed by BCI Lawyers at the Brisbane Registry of the Supreme Court of Queensland. I had with me a copy of the Electoral Act 1992. -- 6 of 12 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 We approached the counter and I recall telling the female clerk that we wanted to file an application to the Supreme Court of Queensland sitting as the Court of Disputed Returns. I had section 130(3)(b) of the Electoral Act 1992 open and said to the female clerk in the following words or words to the effect that 'under the Act that when filing the application, deposit with the Court $400 or if a greater amount is prescribed that amount'. The female [sic] left the counter and returned to us. She then looked at a document and said 'that will be $502.50'. At this stage Ms Caltabiano wrote out a cheque for $502.50 and gave it to the clerk." The originating application filed in court shows that $502.50 was paid and that amount is written against a stamp which identifies it as a fee. A subsequent handwritten endorsement on the originating application records that on 5 May 2009 what is referred to as "deposit $400" was paid. On 23 April 2009, the Assistant Crown Solicitor acting on behalf of the Electoral Commission requested a search be conducted in the Supreme Court Registry of the fees and deposits paid by the applicant in the application. A certificate of search was provided by the Deputy Registrar of the Supreme Court sitting as the Court of Disputed Returns pursuant to r981(4) of the Uniform Civil Procedure Rules (UCPR) disclosing that: -- 7 of 12 -- 1-8 JUDGMENT 1 10 20 30 40 50 60 “ 1. An originating application for the above matter was issued in favour of the applicant in the Supreme Court of Queensland, sitting as the Court of Disputed Returns at Brisbane on 14 April 2009. 2. The filing fee payable for an originating process under schedule 1, item 1 of the Uniform Civil Procedure (Fees) Regulation 1999 and the fee payable to schedule 1 of the Appeal Costs Fund Regulation 1999, were paid by the applicant. 3. No deposit pursuant to section 130(3)(b) of the Electoral Act 1992 has been received at this office as at the close of business 27 April 2009.” The applicant submitted that, notwithstanding how the matter was recorded in the Registry, the applicant attended to lodge the section 130(3)(b) payment and it does not matter that she paid more than that or how this was recorded by the Registry staff. The respondents argued that the $502.50 paid when the applicant filed the application was the payment of a filing fee. In the support of that submission they referred to Rule 971 of the Uniform Civil Procedure Rules (UCPR) which provides as follows: “(1) A document may be filed only if any prescribed fee for filing it is paid when the document is given to the registrar … -- 8 of 12 -- 1-9 JUDGMENT 1 10 20 30 40 50 60 (3) An individual may apply to the registrar for an order exempting the individual from payment of a relevant fee on the ground that, having regard to the individual's financial position, it is clearly in the interests of justice to make the order. (4) The registrar may, by order, exempt an individual from payment of a relevant fee if the registrar considers that having regard to the individual's financial position, it is clearly in the interests of justice to make the order. (5) The registrar may decide the application summarily and without extensive investigation. … (9) In this rule – relevant fee means the fee payable under the Uniform Civil Procedure (Fees) Regulation 1999, schedule 1, item 1, item 1(a), 1(2)(a) or 1 (3)(a) for filing any of the following - … (b) any application that is an originating process.” It was submitted that the payment of $502.50 was represented by the sum of $482 being the filing fee payable for an originating application under schedule 1, 1(2)(a) of the Uniform Civil Procedure Fees Regulation 1999, and $20.50 being the prescribed additional fee under section 10 of the Appeal Costs Fund Act (1973) and section 4 in Schedule 1 of the Appeal Costs Fund Regulation 1999. The question to be determined is how the $502.50 paid should be characterised. The applicant, when filing the application, -- 9 of 12 -- 1-10 JUDGMENT 1 10 20 30 40 50 60 was aware of the requirement to pay the $400 deposit and communicated the intention to pay that deposit to the Registry staff. Accordingly, in my view, on the evidence as it presently stands, the matter falls to be determined by the general rule stated by Cussen J in Beattie v Fine [1925] VLR 363 at 375 that "where money is paid it is to be applied according to the will of the payer, and not of the receiver." See also Broom’s Legal Maxims 10 th ed, pp 553-558. The will of the payer was that the moneys were to pay the deposit required under the Act. That intention was expressed at the time of payment of the money. The moneys should therefore first be appropriated to the payment of the $400 deposit and the rest to the filing fee. That means that the deposit was paid upon filing the application as but not the full filing fee. The applicant therefore did not fail to comply with s130(3)(b) of the Act but rather failed to comply with r971 of the UCPR. The UCPR provide that the failure to comply with the rules does not render such an application a nullity. It does not make it incurably defective. The first respondent argued that r371 which provides that such a failure is an irregularity capable of being cured is inconsistent with Division 2 Part 8 of the Act, and so should be disregarded because of section 134(6) of the Act. Section 134(6) of the Act provides that the rules of the Supreme Court may include provision, not inconsistent with this Division -- 10 of 12 -- 1-11 JUDGMENT 1 10 20 30 40 50 60 with respect to the practices and procedures of the Court of Disputed Returns. It is unchallenged that no rules of court specifically for the practices and procedures of the Court of Disputed Returns have been made, and so the UCPR apply to this application unless they are inconsistent with Division 2 of Part 8 of the Act. It is my view that a provision in the Rules which purported to make the time for filing of the application in the court, or the paying of a deposit, an irregularity, would be invalid, as inconsistent with Division 2 of Part 8 of the Act. However, the failure to pay a filing fee which is not specifically set out in the Act, but rather is found in the Uniform Civil Procedure Rules, is governed by the Uniform Civil Procedure Rules, which provides that it is an irregularity which is capable of being remedied. There is no relevant inconsistency with the Act. Where there is such an irregularity, the Court has a discretion set out in r371(2) and that discretion is in the widest possible terms. Where the full filing fee has not been paid, an appropriate exercise of the discretion would be to order the remainder of the filing fee to be paid. However, in this case, that is not necessary because the remainder of the filing fee has been paid. So on the evidence as it presently stands and on the basis of the submissions that have been made before me at this stage, I -- 11 of 12 -- 1-12 JUDGMENT 1 10 20 30 40 50 60 would not summarily dismiss the originating application on the ground that the applicant has not complied with s130(3)(b) of the Act. ----- -- 12 of 12 --