Form 55

Form 55    Notice of appeal

(Order 52, rule 12)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

No.                  .

On appeal from the Federal Court

BETWEEN:

                                                                        Arthur Dent

Appellant

                                                     AND

Australian Electoral Commission

First Respondent

Daryl Wight

Second Respondent

NOTICE OF APPEAL

The appellant appeals from the whole of the judgment delivered and the orders made of the Honourable Justice Gordon of the Federal Court given on 14 December 2007 at MELBOURNE.

TAKE NOTICE

The appellant seeks an expedited hearing and if necessary an ex parte hearing forthwith, without further notice, of so much of the appeal as involves matters that ought to be heard speedily in view of the date on or before Friday 25 January 2008 fixed for the return of the writ for an election of Senators for Victoria issued on Wednesday 17 October 2007 and announced in the Victoria Government Gazette No S260 on that day and of the announced return of the writ on 21 December 2007 and sections 5, 6, 7, 9, 11, 12, 15, 17 and 18 of the Constitution and sections 153, 159, 181, 283, 285 and 286 of the Commonwealth Electoral Act 1918 (Cth) and having regard to the report to the Parliament of Victoria by the Scrutiny of Acts and Regulations Committee pursuant to s 17 of the Parliamentary Committees Act 2003 (Vic) that certain provisions of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) and corresponding provisions of the Senate Elections Act 1958 (Vic) may be incompatible with human rights and having regard to the fact that some 70,000 voters who cast provisional votes were disenfranchised as a result of the “Proof of Identity” recently introduced as implemented by the respondents and that a much larger number of other persons qualified to vote will be disenfranchised or will decide not to attempt to enroll for as long as the respondents are permitted to continue their current conduct.
GROUNDS OF APPEAL:

1.              Jurisdiction

a.   The judge erred in having been entirely without jurisdiction, plainly wrong and wholly erroneous as shown in the grounds and orders sought below and the documents to be filed and included in the Appeal Book in support of those orders.

b.   The judge erred in being prohibited from exercising jurisdiction to make orders involving matters arising under the Constitution or involving its interpretation by s 78B of the Judiciary Act 1903 (Cth). Respondent’s case for motion to summarily dismiss applicant’s claims for relief relating to the rejection of applicant’s nomination to run as a candidate in the election with respect to which writs were returned a week later on 21 December 2007 raised the following matter:

The events that have overtaken that part of the application are obviously the completion of the election. So, there is no relief sought by the applicant that has any – that is capable of being granted by this court anymore. Nor, in our submission, is the application capable of amendment to fix that problem. (Transcript page 3, lines 30-35).

c.     The Judge erred in failing to provide an intelligible explanation of the process of reasoning that has led from the above assertion by Ms Rowena Orr appearing on behalf of both respondents to a conclusion by Gordon J that the assertion is correct and that the conclusion that it is correct does not involve consideration of matters arising under or involving the interpretation of sections 7, 9, 11, 13, 34 and Chapter III of the Constitution and that no case presented by the applicant, if the applicant were permitted to present a case, could raise such matters.

2.              Summary Judgment without notice

a.     The Judge erred in hearing a Notice of Motion applying for summary judgment by the Respondents at a Directions Hearing on the 14 December 2007, in circumstances where the Respondents had not given at least 3 days notice before the Directions as required by Order 10, r 4(2) of the Federal Court Rules.

b.     The Judge did not invite submissions from the Appellants as to why the Respondents should be dispensed from providing service of the Notice of Motion in accordance with Order 10, r 4(2) of the Federal Court Rules.

c.     The Judge erred in not ruling, or giving any reasons why, the Respondents should be excused from complying with Order 10, r 4(2) of the Federal Court Rules.

d.     The Judge denied the Appellant procedural fairness in dealing with the Notice of Motion for summary judgment at a Directions Hearing without the Appellant being provided appropriate notice and an opportunity to prepare legal argument to oppose the Notice of Motion.

e.     The Judge erred in not adjourning the Notice of Motion when the Appellant was taken by surprise by the Notice of Motion; in the circumstances were the Appellant as a party in the proceedings, had no legal representation.

3.              Refusal by the Australian Electoral Commission (‘AEC’) to Enrol the Appellant as an Elector

a.     The Judge erred in not finding that the Appellant had succeeded his application to be enrolled as an elector in the 24 November 2007 Federal Election (‘the Federal election’), pursuant to the Form lodged by the Appellant to the AEC.

b.     The Judge misunderstood the decision and the effects of the decision by the AAT on the 23 November 2007 concerning the Appellants enrolment as an elector in the Federal election insofar as:

                                      i.     The respondents had refused to enrol the Appellant as an elector on or before the 24 November 2007.

                                    ii.     The AAT set aside the decision of the respondents to refuse to enrol the Appellant and in fact enrolled the Appellant pursuant to his original application to the AEC and without receiving any evidence of the type demanded by the Respondents as a condition for enrolment in their letters threatening to refuse enrolment.

c.     The Judge should have found the refusal of the Respondents to make a decision as to whether and in what manner to enrol the Appellant as an elector, prior to the close of Rolls on 23 October was a contravention of the Commonwealth Electoral Act 1918.l

4.              Refusal by the AEC to Accept Appellants Nomination as a Senate Candidate in the Federal Election.

a.     The Judge did not consider whether the AEC was entitled to reject the Appellant’s nomination as a Senate candidate in the Federal election

b.     The Judge erred in purporting to rely upon the judgment of Justice Ryan, dated 1 November 2007, as if it dealt with the respondents rejection of the nomination which occurred before noon that day while that judge was still delivering judgment and shortly before the adjournment recorded in the transcript as having occurred at 12:24pm (page 43). The only remarks made by Justice Ryan on that subject are at page 42 of the transcript after pronouncing judgment and were as follows:

If what you say is right, and not for me to make a view about, then there was an obligation to accept the nomination form. If that hasn’t occurred, then that will be a matter ---

Well, I’ll have enquiries made about the ability of the court to furnish an urgent hearing in relation to that matter---

--- and you can make enquiries of the Registry after the court has adjourned.

c.     The Judge erred in not finding that the AEC had breached s 172 of the Commonwealth Electoral Act 1918 by refusing to accept the Appellant’s nomination as a candidate for the Senate in the Federal election.

5.              The Judge erred in deciding that the failure of the Respondents to enrol the Appellant and accept his nomination as a Senate candidate were moot in the circumstances where the Federal election had been held. The judge did not consider that declarations as to the Appellants rights could give a right to seek damages and did not consider whether declarations concerning the respondents duties in relation to the return of the writ might be appropriate.

ORDERS SOUGHT:

1.    A declaration that the respondents contravened the Commonwealth Electoral Act 1918 (Cth) (“CEA”) and other laws by:

a.    failing to enroll the applicant forthwith as an elector pursuant to the Electoral Enrolment Form dated 16 October 2007

b.    failing to take a decision and/or to notify the applicant of a decision prior to the close of rolls on Tuesday 23 October 2007

c.    continuing that refusal to even notify the applicant of a decision until required by Justice Ryan to give an undertaking to do so before 10am on Thursday 1 November 2007 with the intention of continuing to refuse to do so until after the close of nominations at 12 noon that day

d.    refusal to enrol the applicant prior to the close of nominations

e.    continuing to refuse to enrol the applicant until ordered to do so by the AAT on the day before polling day, Saturday 24 November 2007

f.     not notifying the applicant of the enrolment until a letter dated 7 December 2007 that was sent by the first respondent postmarked 10 December 2007

g.    not instructing their representatives at the hearing before Gordon J on 14 December 2007 that the applicant had been enrolled.

2.    Declare that itinerant electors, eligible overseas electors and other electors whose place of living is not set out on the electoral roll pursuant to s 83(1) of CEA or other provisions of CEA are entitled to apply pursuant to s 104 of CEA and that the respondents contravened CEA and other laws by:

a.    failing to enroll the applicant forthwith as an elector pursuant to the Request by an Elector for Address not to be shown on the Electoral Roll dated 16 October 2007 and as a general postal voter

b.    failing to take a decision and/or to notify the applicant of a decision prior to the close of rolls on Tuesday 23 October 2007

c.    refusing to enrol the applicant pursuant to that request prior to the close of nominations on Thursday 1 November 2007

d.    breaching the undertaking they gave to Justice Ryan to make a decision by 10am on that day by claiming to the AAT that no decision had been made, after first claiming that the decision made was not reviewable by the AAT

e.    continuing those failures and refusals even after polling day on Saturday 24 November with the intention of continuing to refuse to even make and notify a decision beyond the date fixed for the return of the writs on Friday 25 January 2008 and beyond the deadlines for this appeal and for appeal from the AAT

f.     not instructing their representatives at the hearing before Gordon J on 14 December that they had decided to pretend that the request had been refused by a letter from Divisional Returning Officer on 7 December 2007 postmarked 10 December 2007 whose refusal could now be reviewed by the second respondent and by that letter having been sent to a name and address where the respondents could reasonably assume the applicant would not receive it in time for the hearing before Gordon J instead of using the address for service and postal address and current name provided to them and previously used by them.

3.    Damages, including aggravated damages to be assessed by this Court after particulars have been filed and served.

4.    Costs.

5.    Declare that the applicant is entitled to be enrolled under the name Arthur Dent pursuant to section 166(2) of the Commonwealth Electoral Act 1918 and was so entitled at the hour of nomination, 12 noon on Thursday 1 November 2007.

6.    Quash the decision made by the respondents to reject the nomination for election to the Senate of the candidate Arthur Dent.

7.    Declare that the applicant is a candidate for election to the Senate as a representative of the people of the State of Victoria pursuant to the writs for an election issued on Wednesday 17 October 2007.

8.    Exemplary damages to be assessed by this Court after particulars have been filed and served.

9.    Declare that the writ purportedly returned on 21 December 2007 was null and void.

10. Declare that the election of Senators representative of the people of the State of Victoria pursuant to the writs for an election issued on Wednesday 17 October 2007 has wholly failed.

11. Stay proceedings on each sub-paragraph of item 2, and on items 3 and 8 until after AAT has completed hearing and made orders on all aspects of AAT matter 2007/5484 with directions for registrar to notify AAT of decisions of this Court so far and leave for Appellant to join any appeal against AAT decisions to these proceedings without separate fee.

12. Vacate order for costs made by Justice Jessup in these proceedings.

13. Such further, other, ancillary or consequential orders as are appropriate.

13. Appellant has liberty to apply.

To the respondents of 2 Lonsdale Street, Melbourne 3000

TAKE NOTICE:

(a)                Before taking any step in the proceeding you must enter an appearance in the Registry, unless you have already entered an appearance under Order 52, rule 7.

(b)               The papers in the appeal will be settled before the Registrar at    

                        on                    (place, date and time to be inserted by the Registrar).

                    Time and date for directions hearing:

                    Place:

The appellant’s address for service is 302-308 King Street, Melbourne 3003

Date: Friday 25 January 2008

(Signed, appellant or his solicitor)