Re Lack; Ex parte McManus [1965] HCA 7

High Court of Australia Barwick C.J. Kitto, Taylor, Windeyer and Owen JJ. Re Lack; Ex parte McManus [1965] HCA 7

The Court delivered the following reasons for its judgment:—

Feb. 3 Barwick C.J. Kitto, Taylor, Windeyer and Owen JJ.

These two applications came before the Full Court pursuant to an order made by Menzies J. on 26th December 1964. The first is an application for an order directing the issue of a writ of prohibition addressed to the respondent Lack, the Commonwealth Electoral Officer for the State of Victoria, prohibiting him from taking any further steps for or towards the recounting of the votes cast in the Senate election for the State of Victoria held on 5th December 1964. The grounds upon which this application was made were that (1) upon the proper construction of the Commonwealth Electoral Act 1918-1962 the present counting of the said votes should be completed before any recount is directed or carried out (2) upon the proper construction of the said Act the random selections made pursuant to s. 135 (5) (e) (v) thereof are final and should not be repeated or made afresh in the course of carrying out such a recount and (3) that the said respondent has no power under the said Act to direct a recount on a written request which relates to the whole of the State of Victoria and not to specified Divisions or portions of a Division or parcels of votes. Upon the hearing this application was abandoned and argument took place only upon the second application in which the applicant sought the issue of a writ of mandamus directing the respondent Lack to complete in accordance with the provisions of the said Act the present counting of votes cast in the said election and further, directing him to conduct in accordance with the provisions of the Act any recount of the said votes which he has directed or may direct. This application was made upon the same grounds as those specified in the first application but, it having appeared to the applicant from the evidence before the Court that on 23rd December 1964 the said respondent had decided of his own motion, pursuant to s. 137 of the Act, to direct a recount of the ballot-papers from each Division, the third ground upon which mandamus was sought was no longer relied upon. Accordingly the only questions which arose for decision were whether it was within the authority conferred upon the said respondent by the terms of the lastmentioned section to direct, as in fact he did at the stage of the scrutiny that had been reached on 24th December 1964, that there be a recount of the ballot-papers from all Divisions for the State of Victoria, and whether upon any recount the steps specified in s. 135 (5) (e) (v) should be taken after the completion of the recount of the whole of the first preference votes. This sub-paragraph of sub-s. (5) (e) in effect provides a means of selecting what are to be regarded for the purposes of the Act as the surplus votes of an elected candidate, that is to say, a candidate who has received more than the quota of votes required for his election, and for their transfer to continuing candidates in accordance with the next available preferences. It remains to be said that at the time when Lack decided that a recount should take place the scrutiny of votes had proceeded to the point where four candidates had, in the language of pars. (c) (e) and (g) of s. 135 (5), been elected and all but three of the continuing candidates had been eliminated. At the conclusion of the argument the Court announced that the applications would be dismissed and reasons given at a later stage.