KEATING v DICKSON [1991] NSWCA 167

KEATING v DICKSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP

4 June 1991, 4 June 1991

[1991] NSWCA 167

INTERIM INJUNCTION

Samuels AP By agreement with counsel, it may be taken that the process which Ihave before me is a motion for an injunction in which Mr Anthony Keating joins Mr Edward Dickson, Mr Gregory Murnane and the State of New South Wales seeking an order in terms of par 2 of the Notice of Motion which has been filed. The reason for the necessity to mention this formal question is that the motion which has been filed was filed in the Court of Appeal and in the proceedings which were disposed of by the Court yesterday.

However, it seems to me that since the determinative order in those proceedings was to dismiss the summons which had been transferred to the Court of Appeal by dint of Pt12 of the Rules, there is no proceeding in the court to which the motion could be material. Further, there is no order in force which could be stayed. Accordingly, it seems to me that I am exercising jurisdiction to entertain an application for the order I have mentioned as a Judge of the Supreme Court, the jurisdiction of which I have pursuant to s44 of the Supreme Court Act.

The matter arises in this way. If I may borrow from the judgment in Keating v Dickson delivered yesterday by a court of which I was a member: A general election was held in this State on 25 May 1991. The plaintiff was, or I suppose is, a candidate for election as member of the Legislative Assembly in the Electoral District of Maitland. There was evidence that he and Mr Peter Blackmore were the two most successful candidates. Although the results of the election have not yet been declared, it appears that not many votes will separate them.

The complaint made in the summons with which the Court dealt yesterday was that the returning officers in the electorate have treated votes as informal where the elector has placed on the ballot paper nothing but a tick or a cross. It was suggested that the informality of such ballot papers, if indeed they are informal as a matter of law, has redounded to Mr Keating's disadvantage.