Dent v Australian Electoral Commission [2007] FCA 1991

FEDERAL COURT OF AUSTRALIA

Dent v Australian Electoral Commission [2007] FCA 1991

Commonwealth Electoral Act 1918 (Cth) ss 93A, 96(1), 166(2), 172(1) Federal Court of Australia Act 1976 (Cth) ss 31A(2), 31A(3)

Dent v Australian Electoral Commission [2007] FCA 1698 Dent v Wight [2007] AATA 1985 ARTHUR DENT v AUSTRALIAN ELECTORAL COMMISSION AND DARYL WIGHT VID 982 OF 2007

GORDON J

14 December 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 982 OF 2007

BETWEEN: ARTHUR DENT

Applicant

AND: AUSTRALIAN ELECTORAL COMMISSION

First Respondent

DARYL WIGHT

Second Respondent

JUDGE: GORDON J DATE OF ORDER: 14 December 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), there be judgment for the respondents. 2. The application be dismissed. 3. The respondents' costs of, and incidental to, these proceedings, including the costs of the hearing before Ryan J on 31 October and 1 November 2007, be paid by the applicant, whether in the name of Arthur Dent or Albert Langer, to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 982 OF 2007

BETWEEN: ARTHUR DENT

Applicant

AND: AUSTRALIAN ELECTORAL COMMISSION

First Respondent

DARYL WIGHT

Second Respondent

JUDGE: GORDON J

DATE: 14 december 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By an application dated 30 October 2007, the applicant, Arthur Dent (also known as Albert Langer), sought orders compelling the first respondent, the Australian Electoral Commission (the "AEC"), to enrol him as an elector under the name Arthur Dent with an address not to be shown on the electoral roll and as a general postal voter for the Federal Election held on 24 November 2007. He also sought damages and costs. By an amended application dated 2 November 2007, the applicant sought the same relief and, in addition, an order that the Court quash the decision of the respondents to reject his nomination for election to the Senate under the name Arthur Dent. 2 On 31 October 2007, the second respondent refused the applicant's requests for enrolment pursuant to ss 93A and 96(1) of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") on the bases that the name "Arthur Dent" was fictitious and was not the name by which the applicant was usually known and that enrolment of the applicant under that name would be contrary to the public interest (the "Primary Decision"). 3 The applicant also sought orders on an interlocutory basis. On 1 November 2007, that application was refused. On 7 November 2007, the Court published detailed reasons for judgment: Dent v Australian Electoral Commission [2007] FCA 1698 (Ryan J). 4 Also on 1 November 2007, the applicant made an oral application for interlocutory orders compelling the AEC to accept his nomination for the senate in the Federal Election, which had been rejected by the AEC pursuant to ss 166(2) and 172(1) of the Electoral Act. That application was dismissed ex tempore by Jessup J with orders that the applicant pay the respondents' costs in relation to that oral application. 5 On 23 November 2007, the Administrative Appeals Tribunal (the "AAT"), after hearing the applicant's request for review of the Primary Decision, set aside the Primary Decision and substituted a decision granting the applicant's request for enrolment as an elector, but under the name Albert Langer: Dent v Wight [2007] AATA 1985. Notwithstanding the decision of the AAT, the applicant continues to seek the relief described in para [1] above. 6 Now before the Court is a motion for summary judgment filed by the respondents on 10 December 2007 pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). For present purposes, it is sufficient to note that s 31A(2), read in conjunction with s 31A(3) of the Federal Court Act, enables the Court to grant judgment in favour of the respondents in this case if the Court is satisfied that the applicant has "no reasonable prospect of prosecuting" the proceedings, even if the application is not "hopeless" or not "bound to fail." 7 I am satisfied not only that the applicant has no reasonable prospects of prosecuting the proceedings but that the application is in fact hopeless and bound to fail. There are, in general terms, three issues raised by the applicant: (1) The failure of the respondents to enrol the applicant as an elector in the 24 November 2007 Federal Election under the name Arthur Dent; (2) The failure of the respondents to accept the applicant's nomination as a candidate for the Senate in the 24 November 2007 Federal Election; and (3) Damages alleged to have been occasioned by those failures. 8 There is a complete answer to each of these claims. The claims are either moot or fail as a matter of law. The application in relation to the first two issues is moot because the Federal Election has been held and further, and no less significantly, the AAT has determined the issue of whether the applicant should be enrolled as an elector under the name Arthur Dent with an address not to be shown on the electoral roll. 9 It must be noted that the applicant has had the benefit of a full hearing before the AAT where a number of witnesses were called on his behalf and where other material relating to his name and identity were put before the AAT: see Dent [2007] AATA 1985 at [5]-[13]. In particular, the tribunal heard and determined that: At the hearing, Mr Dent called a number of witnesses to give evidence to support his statement that he has, since a date in 2005, … been known as Arthur Dent by them. They also gave evidence that they had heard others refer to him by that name. On occasion, they had also lapsed into calling him Albert but that was only because they had known him for so long as Albert Langer. Generally, they refer to him as Arthur and know that is the name he regards Arthur Dent as his name (sic). I accept that Mr Dent is known as Arthur Dent among these people. They include his medical practitioner, a legal practitioner who has undertaken work for him from time to time, members of his family and his friends. The legal practitioner has a trust account ledger in the name of Arthur Dent and I accept that this relates to the applicant in this case. On the basis of his evidence, I also accept that Mr Dent has been engaged in proceedings in the Victorian Civil and Administrative Tribunal under the name of Arthur Dent. His application to the Federal Court that the AEC enrol Mr Langer forthwith was in the name of Arthur Dent. On the basis of Mr Dent's note on his application for enrolment, I find that the name shown on his driver's licence and on his certificate of Australian citizenship is Albert Langer. 10 In light of that history, I see no benefit to be gained by further evidentiary hearings or trial in this Court. As the extract from the decision of the AAT makes clear, there is no real issue of relevant fact in dispute; rather, the dispute is over the legal significance of those facts. Moreover, the outcome of that legal dispute has already been resolved by this Court and by the AAT in a manner unfavourable to the applicant. As such, the application is hopeless and bound to fail. 11 If the applicant is dissatisfied with the decision of the AAT, he has a remedy by way of appeal. The extent that the applicant contends that the AAT's decision was incomplete on the grounds that it did not address the effect of s 104 of the Electoral Act, that contention is unfounded: see Dent [2007] AATA 1985 at [82]ff. Again, if the applicant is dissatisfied with that aspect of the AAT's decision, he has a remedy by way of appeal. 12 In relation to the third issue, the question of damages, assuming that the applicant could somehow articulate a common law or statutory right of action against the respondents for damages in connection with a past breach of the Electoral Act (an assumption that is by no means free of doubt), any such claim would nevertheless fail because it is clear that the respondents did not in fact breach the Electoral Act. The reasons why that is so were stated at length by Ryan J and the AAT, reasons which I adopt: see [2007] FCA 1698 at [17]-[21]; [2007] AATA 1985 at [70]-[85]. 13 Accordingly, I would grant summary judgment in favour of the respondents pursuant to s 31A(2) of the Federal Court Act and dismiss the application. I would further order that the applicant, whether in the name of Arthur Dent or Albert Langer, pay the respondents' costs of, and incidental to, the proceedings, including the costs of the hearing before Ryan J on 31 October and 1 November 2007, to be taxed in default of agreement. In those circumstances, it is unnecessary to deal with paragraph 1 of the respondents' notice of motion dated 10 December 2007. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.