RE BARRY CEMINCHUK

RE BARRY CEMINCHUK

JUDGMENT DAWSON J. (oral) 28 October 1993

RE_ BARRY CEMINCHUK

This is an ex parte summons seeking an extension of time to file an electoral petition, and waiver of the requirement that a petition be signed by two witnesses. If I grant the relief sought, the applicant intends to

challenge the March 1993 federal elections.

Section 355 of the Commonwealth Electoral Act 1918

(Cth) ("the Act") provides that:

"Subject to section 357, every petition disputing an election or return ... shall:

(d) be attested by 2 witnesses whose occupations and addresses are stated;

(e) be filed in the Registry of the High Court within 40 days after the return of the writ; or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution, within 40 days after the notification of that choice or appointment."

The summons seeks that I waive both these requirements.

But s.358 provides that:

"Subject to subsection (2), no proceedings shall be had on the petition unless the requirements of section[] 355 ... are complied with."

The applicant was unable to direct me to anything in the Act which gives me power to waive the requirements of s.355(d) and s.355(e). Certainly such a waiver is outside any of the powers conferred on the

Court of Disputed Returns by s.360(1).

In Cameron v. Fysh\), ke gerrilt'?), Mile v. wood 3) , and Sykes v. Australian Electoral Commission\*), it was held that amendment of a petition is not possible if to do so would in effect evade the requirements of s.355(e). These cases assumed that the requirements of s.355(e) cannot be

dispensed with. That was the express decision of

(1) (1904) 1C.L.R. 314, at p.316.

(2) (1978) 52 A.L.J.R. 359, at p.360; 19 A.L.R. 254, at p.255.

(3) (1988) 167 C.L.R. 133, at p.137.

(4) (1993) 67 A.L.J.R. 714, at pp.716-717; 115 A.L.R. 645, at p.648.