Division 1Division 1 Disputed elections and returns
This Division does not, except as provided in Division 4, apply to or in respect of an election referred to in section 22C or 22D of the Constitution Act 1902 or in clause 4 or 5 of Schedule 4 to the Constitution and Parliamentary Electorates and Elections (Amendment) Act 1978.
155 Method of disputing elections or returns
The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns, and not otherwise.
156 The Court of Disputed Returns
(1) The Supreme Court shall be the Court of Disputed Returns, and shall have jurisdiction to try the petition.(2) The jurisdiction of the Supreme Court sitting as a Court of Disputed Returns may be exercised by a single judge.
Every petition disputing an election or return in this Part called “the petition” shall:(a) set out the facts relied on to invalidate the election or return,(b) contain a prayer asking for the relief the petitioner claims to be entitled to,(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat,(d) be attested by two witnesses whose occupations and addresses are stated,(e) be filed with the Prothonotary of the Supreme Court within forty days of the return of the writ.
158 Deposits as security for costs
At the time of filing the petition the petitioner shall deposit with the Prothonotary the sum of two hundred and fifty dollars as security for costs.
159 No proceedings unless requisites complied with
No proceedings shall be had on the petition unless the requirements of sections 157 and 158 are complied with.
160 Right of Electoral Commissioner to be represented
The Electoral Commissioner shall be entitled by leave of the Court of Disputed Returns to enter an appearance in any proceedings in which the validity of any election or return is disputed, and to be represented and heard thereon, and in such case shall be deemed to be a party respondent to the petition.
(1) The Court of Disputed Returns shall sit as an open court and its powers shall include the following:(i) To adjourn,(ii) To compel the attendance of witnesses and the production of documents,(iii) To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot papers) used at or in connection with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents,(iv) To examine witnesses on oath,(v) To declare that any person who was returned as elected was not duly elected,(vi) To declare any candidate duly elected who was not returned as elected,(vii) To declare any election absolutely void,(viii) To dismiss or uphold the petition in whole or in part,(ix) To award costs,(x) To punish any contempt of its authority by fine or imprisonment.(2) The court may exercise all or any of its powers under this section on such grounds as the court in its discretion thinks just and sufficient.(3) Without limiting the powers conferred by this section, it is hereby declared that the power of the court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
(1) The court shall inquire whether or not the petition is duly signed, and so far as rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the roll to be correct, but the court shall not inquire into the correctness of any roll.(2) (Repealed)
164 Voiding election for illegal practices
(1) If the Court of Disputed Returns finds that a candidate has committed or has attempted to commit the offence of bribery or treating or undue influence, his or her election, if he or she is a successful candidate, shall be declared void.(2) No finding by the Court of Disputed Returns shall bar or prejudice any prosecution for any illegal practice.(3) The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected or declare any election void:(a) on the ground of any illegal practice committed by any person other than the candidate and without his or her knowledge or authority, or(b) on the ground of any illegal practice other than bribery, treating, or corruption or attempted bribery, treating, or corruption,unless the court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
165 Court to report cases of illegal practices
When the Court of Disputed Returns finds that any person has committed an illegal practice, the Prothonotary shall forthwith report the finding to the Governor.
166 Real justice to be observed
The court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
167 Immaterial errors not to vitiate election
No election shall be voided on account of any delay in the declaration of nominations, the polling, or the return of the writ, or on account of the absence or error of or omission by any officer which did not affect the result of the election:Provided that where any elector was, on account of the absence or error of, or omission by, any officer, prevented from voting in any election, the court shall not, for the purpose of determining whether the absence or error of, or omission by, the officer did or did not affect the result of the election, admit any evidence of the way in which the elector intended to vote in the election.
168 Evidence that person not permitted to vote
On the trial of any petition the court shall not admit the evidence of any witness that he or she was not permitted to vote in any election unless the witness satisfies the court:(a) that he or she claimed to vote, in the election, pursuant to that provision of this Act under which he or she was entitled or might be permitted to vote, and(b) that he or she complied with the requirements of this Act and the regulations made thereunder relative to voting by electors in so far as he or she was permitted so to do.
(1) All decisions of the court shall be final and conclusive and without appeal, and shall not be questioned in any way.(2) No appeal shall lie to the Court of Appeal from any decisions of the court.(3) Subsection (2) does not limit the generality of subsection (1).
170 Copies of petition and order of court to be sent to Clerk of Assembly
(1) The Prothonotary shall forthwith after the filing of a petition disputing an election for or the return of a member of the Legislative Assembly forward to the Clerk of the Legislative Assembly a copy of the petition, and after the trial of the petition shall forthwith forward to such clerk a copy of the order of the court.(2) The Prothonotary shall forthwith after the filing of a petition disputing a periodic Council election or the return of a member of the Legislative Council forward to the Clerk of the Legislative Council a copy of the petition and, after the trial of the petition, shall forthwith forward to that clerk a copy of the order of the court.
171 Australian legal practitioner
(1) No party to the petition shall, except by consent of all parties, or by leave of the court, be represented by an Australian legal practitioner.(2) In no case shall more than one Australian legal practitioner appear on behalf of any party.
The court may award costs against an unsuccessful party to the petition and may in its discretion recommend that costs be paid by the Crown.
173 Deposits applicable for costs
If costs are awarded to any party against the petitioner, the deposit shall be applicable in payment of the sum ordered, but otherwise the deposit shall be repaid to the petitioner.
All other costs awarded by the court, including any balance above the deposit payable by the petitioner, shall be recoverable as if the order of the court were a judgment of the Supreme Court, and such order may be entered as a judgment of the Supreme Court, and enforced accordingly.
Effect shall be given to any decision of the court as follows:(i) If any person returned is declared not to have been duly elected, he or she shall cease to be a member of the Legislative Assembly or Legislative Council, as the case may be,(ii) If any person not returned is declared to have been duly elected, he or she may take his or her seat accordingly,(iii) If any election is declared absolutely void a new election shall be held.Whenever a new election is to be held pursuant to paragraph (iii) to return a member of the Legislative Assembly the Speaker shall issue the writ for such election or if there is no Speaker or if the Speaker is absent from New South Wales or by reason of illness or other cause is unable to do so the Governor may issue the writ.
Whenever a new periodic Council election is to be held pursuant to paragraph (iii) the Governor may issue the writ for that election.
175A Power to make Rules of Court
(1) Rules not inconsistent with this Act may be made under the Supreme Court Act 1970 for carrying this Part into effect, and in particular for regulating the practice and procedure of the court, and the forms to be used.(2) Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act 1970.(3) Notwithstanding the Supreme Court Act 1970, any provision of that Act and any provision of any rule made by or pursuant to that Act which is inconsistent with this Act shall, to the extent of such inconsistency and while such inconsistency continues to exist, not apply to or in respect of any proceedings under this Part.
175AA Regulations re court fees
The Governor may make regulations fixing or otherwise relating to fees to be paid by parties in respect of the business of the court.