FEDERAL COURT OF AUSTRALIA Ponnuswamy v Australian Electoral Commission [2002] FCA 1086 ADMINISTRATIVE LAW – judicial review – appeal from Federal Magistrate – Federal Magistrate dismissed application in default of attendance, then dismissed application to vacate dismissal order – appellant appealed from latter decision alleging an error of law and bias – no reviewable error Commonwealth Electoral Act 1918 (Cth) s 166(1)(b)(i), 172, 353(1), 354(1), 362 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Federal Court of Australia Act 1976 (Cth) s 25(1A) Federal Magistrates Court Rules 2001 r 16.05(2) NADAR PONNUSWAMY v AUSTRALIAN ELECTORAL COMMISSION N 411 OF 2002 HELY J 26 AUGUST 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 411 OF 2002 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NADAR PONNUSWAMY APPELLANT AND: AUSTRALIAN ELECTORAL COMMISSION RESPONDENT JUDGE: HELY J DATE OF ORDER: 26 AUGUST 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 411 OF 2002 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NADAR PONNUSWAMY APPELLANT AND: AUSTRALIAN ELECTORAL COMMISSION RESPONDENT JUDGE: HELY J DATE: 26 AUGUST 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Nominations closed at 12 noon on 18 October 2001, for the election of members to the House of Representatives in the 2001 Federal Elections scheduled to be held on 10 November 2001. On 18 October 2001, the appellant's nomination for the Division of Grayndler was rejected by the Divisional Returning Officer on the ground that it had been signed by only 43 persons entitled to vote at the election, rather than by 50 persons as required by s 166(1)(b)(i) of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"). 2 On 23 October 2001, the appellant filed an application for an Order of Review in this Court. The application sought an order that the rejection of the appellant's nomination be quashed, as well as an order that the appellant be permitted to contest the election for the Division of Grayndler in the "ensuing election of 10 November 2000". The reference to 2000 is an obvious error for 2001. The relief which was sought in the application was expressed to be sought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). 3 On 23 November 2001, after a number of directions hearings, Hill J transferred the proceedings to the Federal Magistrates Court. On 4 February 2002 a directions hearing was scheduled to be heard before Driver FM. The appellant did not appear on that occasion and Driver FM adjourned the proceedings to 13 March 2002. The appellant arrived at Court after the hearing had been concluded and filed an affidavit in which he indicated that his failure to attend at the directions hearing that morning was because of heavy rain, and because of an assassination attempt which was made against him on the train whilst he was on his way to Court. At the further directions hearing on 13 March 2002, the appellant again failed to appear and Driver FM dismissed his application. 4 Later on that day the appellant attended at the registry and filed an application in which he sought reinstatement of his case. The appellant asserted that his failure to appear that morning was because he had been assaulted by a solicitor and because he could not walk fast. I have described the application as being one in which the appellant sought reinstatement of his case because that was the language the appellant used. In fact, the application appears to have been made pursuant to rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 which empowers the Court to vary or set aside a judgment or order which has been made in the absence of a party. 5 The application to set aside the orders made on 13 March 2002 was heard before Driver FM on 7 May 2002. On that occasion Driver FM refused the application for vacation of the orders which he had made on 13 March 2002. Driver FM delivered reasons for judgment which can be summarised as follows: first, the explanation given by the appellant for his non-attendance on previous occasions was neither sufficient nor plausible; second, the appellant failed to contact the Court in advance to secure an adjournment; and third, the material filed by the appellant in support of his original application was difficult to follow and did not indicate that the application, if reinstated, would have a reasonable prospect of success. 6 On 7 May 2002 the appellant appealed from that decision of Driver FM. The appeal was heard by me as a single judge, in the exercise of the appellate jurisdiction of the Court; see Federal Court of Australia Act 1976 (Cth) s 25(1A). The ground given in the Notice of Appeal is that Driver FM erred in law "without studying my case. The whole case may be ordered to be heard". 7 The issue which I have to decide is whether Driver FM erred in refusing on 7 May 2002 to vacate the orders which he had made on 13 March 2002 dismissing the application. No error has been shown by the appellant in the decision of Driver FM. The reasons which Driver FM gave for adopting the course which he did are sufficient to sustain his decision for the three reasons given by Driver FM. The most compelling of those reasons was that the appellant had not established that his application, if ordered to be reinstated, would have reasonable prospects of success. 8 Although the original application to the Court was purportedly made in reliance on s 5 of the ADJR Act, the relief which the appellant sought was that he be permitted to contest the election for the division of Grayndler held on 10 November 2001. That necessarily involves a challenge to the validity of that election, a challenge which may only be disputed by petition to the Court of Disputed Returns; see Electoral Acts 353(1). The High Court is the Court of Disputed Returns, which may either try any petition presented to it or refer it to the Federal Court of Australia: s 354(1). An election may only be avoided on the ground of an illegal practice if the court is satisfied that it is likely to affect the outcome of the election: s 362. An illegal practice would include rejection of a nomination which satisfied the provisions of the Electoral Act including s 166; see s 172. 9 A petition is required to be filed in the High Court within 40 days of the return of the writ. Whilst that date has not been established in evidence before me, it must have long since passed. Thus if what the appellant wants to do, as his application suggests, is to challenge the November 2001 election result on the ground that he was wrongly excluded as a candidate, then the only method open to him to achieve that result was by petition to the Court of Disputed Returns, a method which he has not adopted. 10 For this additional reason it seems to me that the appellant has not established that he would be the victim of injustice by reason of the orders made by Driver FM. 11 There are two other things that I should advert to. First, the appellant submitted that Driver FM was biased. It was said that he gave a premeditated decision, that he came to the case with a closed mind and he did not ask the appellant any questions about the rejection of the nomination. I have before me the transcript of the proceedings before Driver FM on 7 May 2002, as well as the decision given by Driver FM on that date. There is nothing in the transcript of the proceedings nor is there anything in Driver FM's decision, which could possibly sustain a finding of bias. 12 Apart from the claim of bias, the appellant has not advanced any intelligible reasons in his submissions as to why the orders of Driver FM should be set aside. He has filed a number of affidavits, including affidavits of 10 July, 26 July, 1 August and 27 August 2002 in support of his application. All of those affidavits are largely illegible. Some attempt has been made to transcribe those parts of them which can be understood, but nothing has emerged from that process which indicated any error on the part of Driver FM. 13 The appellant spent some one and a half hours today putting submissions to me orally. I endeavoured to focus his attention upon the issue which he had to address, but he did not obey my request or direction that he should confine his remarks to matters which were germane to the appeal. Instead he spoke about a number of matters of his choosing that had no apparent relevance to the appeal. They included matters such as the corruption of governments; the assassination of Mahatma Gandhi and other political figures; the restoration of King James II to the throne of England; the terms of Abraham Lincoln's Gettysburg address; the partition of India; the unification of Korea; the abolition of the monarchy; some dealings that he had had with the former New South Wales premier Mr Wran; and refusals of the immigration authorities to grant him an entry visa. 14 These matters, as I endeavoured to explain to him, are irrelevant to his present appeal. There are no grounds for upholding that appeal and it should be dismissed, and would ordinarily be dismissed with costs. However, I was informed by counsel for the respondent that an order for costs against the appellant is not sought. In those circumstances, the only order which I will make is that the appeal be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 4 September 2002 The appellant appeared in person Counsel for the Respondent: Ms R Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 August 2002 Date of Judgment: 26 August 2002