FEDERAL COURT OF AUSTRALIA

Kelly v Australian Electoral Office

[2002] FCA 556

EDWARD KELLY v AUSTRALIAN ELECTORAL OFFICE

N 1480 OF 2001

GYLES J

SYDNEY

29 APRIL 2002

THE COURT ORDERS THAT:

1.                  The hearing of the respondent’s notice of motion dated 11 March 2002 is stood over to a date to be fixed.

2.                  The proceedings be transferred to the Queensland Registry of the Court.

3.                  The applicant’s notice of motion dated 22 April 2002 is otherwise dismissed.

4.                  Costs of the proceeding to date are reserved for further order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     On 5 November 2001 leave was granted to file an amended statement of claim in this unusual action.  When the matter came before me on 8 February 2002 the applicant was then represented by counsel and sought leave to file an amended statement of claim, which was then handed up.  That document was plainly not in a form appropriate to be filed.  It is an embarrassing document, containing a mish-mash of allegation and evidence which does not comply with the rules of court.  I do not have a transcript of those proceedings in front of me at the moment, but counsel was unable to mount any defence of that document.  It was rejected and I marked it “MFI 1”.

2                     I then granted leave for motions to be made returnable before me today at 10.15am provided that any such motion was filed and served on or before 11 March 2002, and the matter was adjourned until today for directions.  On 11 March 2002 a notice of motion was filed by the respondent seeking dismissal of the proceeding or, in the alternative, an order for security for costs.  On 23 April 2002 a notice of motion was filed by the applicant seeking leave to amend the statement of claim, an order for discovery, an order for trial by jury and an order transferring the proceedings to the Queensland Registry.

3                     Notwithstanding the opposition of the respondent, I decided to hear the applicant’s motion first, because it seemed to me sensible that that be dealt with prior to the hearing of the notice of motion to seek dismissal.  The document which is annexed to the affidavit in support of the motion, and is said to be an amended statement of claim, appears to me to be the same document as that which was handed up by counsel on the last occasion.  If it is not the same, it is very similar.  Again, it suffers from the difficulty that it does not, in my opinion, comply with the rules of the court as to pleading.  Again, it has a mish-mash of allegations of mixed fact and law and of evidence in a manner which would not enable the proper preparation or hearing of the case.  That is not to say there may not be matters appropriate for argument arising out of the general circumstances.  I have not formed any view about that.  The document simply needs to be read for it to be understood that it does not comply with the rules of pleading.  That is not surprising, as Mr Kelly says that he had prepared the pleading personally.  I therefore again rejected the application to amend in that form.

4                     I should indicate that in the course of discussion Mr Kelly indicated that at least the matter raised by par 6 of the existing amended statement of claim is the subject of proceedings in the Court of Disputed Returns, constituted by the High Court, which are listed before that court in the next week or two and which he has been told will be dealt with promptly.  He also says that there are some other associated proceedings in the High Court arising out of Queensland proceedings, giving rise to a special leave application.  Counsel for the respondent is able to confirm on instructions that the matter in par 6 is encompassed by the Court of Disputed Returns proceeding and indeed most, if not all, of the matters included in the amended statement of claim which I have rejected, are also encompassed by the Court of Disputed Returns proceeding.

5                     In those circumstances, counsel for the respondent was unable to advance any good reason against the suggestion of the applicant that the respondent’s motion should await, at least in the first instance, what happens in the High Court.  That being the case, it seems to me that if this proceeding may become moot for one reason or another arising out of the High Court proceedings, it would be imprudent of me to go on and hear the application to dismiss the proceeding summarily in the meantime.  I therefore conclude that I should stand over that motion.

6                     Mr Kelly is, he tells me, unrepresented.  He states that he is at the moment living in Queensland but his address which may be regarded as permanent is in Tweed Heads, New South Wales, and that it is inconvenient to him to have this matter managed and heard in the New South Wales Registry of the Court, and seeks transfer to the Queensland Registry.  In addition, he says that any witnesses who are liable to be called are resident neither in Sydney nor in Brisbane and both places would be equally inconvenient for them as the place for trial - if there be one.

7                     In those circumstances, as the unrepresented applicant has a proper basis for his preference for the matter being managed in the Queensland Registry of the Court and heard in Brisbane, and as the respondent is unable to suggest any reason against a transfer, I think that is the appropriate course.  I therefore stand over the hearing of the respondent's motion to a date to be fixed, and on the application of the applicant, I transfer the proceeding generally to the Queensland Registry of the Court.  The other matters which arise on Mr Kelly's motion, namely, the orders for discovery and trial by jury, are premature and not appropriate to be dealt with at the moment.  I therefore otherwise dismiss the applicant's motion of 22 April 2002.  Because of the early stage of the proceedings (I include in that the unresolved questions of the amendment on the one hand and summary dismissal on the other), it is inappropriate to make orders for costs and I reserve those costs for further order.

Associate:

Dated:              3 May 2002