Chief Justice Refuses To Establish Election Court

Press, Volume XCI, Issue 27591, 23 February 1955, Page 6

Chief Justice Refuses To Establish Election Court

(New Zealand Press Association)

WELLINGTON. February 22. The Chief Justice (Sir Harold Barrowclough) said today that he had no jurisdiction to nominate an election court to determine a petition to upset the General Election result in the Lyttelton electorate. If he was wrong, the petitioner could apply to the Supreme Court for a declaratory judgment as to his rights or otherwise to have an election court appointed. “In such a case I would arrange for a Full Court to hear and determine the matter/' he said.

His Honour held that the petition was in proper form and delivered to the returning officer in time, but failed to give security within the time prescribed by the Electoral Act, 1927. The purported petition was in truth a nullity, he said. The petition sought a declaration that Harry Robson Lake was not duly elected or returned and that Thomas Malcolm McGuigan was duly elected and ought to have been returned. The petitioner was Charles Henry Goodman, a company manager, of Sumner, Christchurch. The petition had been addressed to the Chief Justice and the position was discussed before him last week.

Mr D. J. Hewitt appeared for the petitioner; Mr N. R. Bain appeared for the respondents, Duncan Stewart Aitken, Lyttelton Returning Officer, and A. Besley, Registrar of Electors. Mr J. G. Leggat appeared for Lake. His Honour was not holding a sitting of the Supreme Court or sitting as a member of an election court. Faults Seen in Petition

In a memorandum today, his Honour said that security which should have been given not later than January 10 was not given until January 28. Advertisement of the petition which should have been effected not later than January 14 (unless excused) was not effected until January 29; service of the petition on the respondents or persons deemed to be respondents which should have been effected not later than January 21 was not effected until February 4 on the Registrar of Electors, January 28 on the Returning Officer and January 31 on Lake. He had not yet been asked by the petitioner or anyone else to nominate two Judges of the Supreme Court to be an election court to try the petition, he added. He had been informed that the petitioner had not yet requested the constitution of a court.

His Honour said that in proper circumstances he could nominate an election court whether or not he had been asked to do so.

It seemed clear that the right to challenge an election in an election court and the duty of the Chief Justice to constitute the court could be invoked only by way of petition addressed to the Chief - Justice, and unless such a petition existed the Chief Justice could have no duty, and therefore no jurisdiction, to nominate members of an election court. The requirement of giving security could lawfully be complied with by giving security on any day within seven days after the presentation of the petition, and his Honour held that this was a condition precedent to the right to have an election court, and that if it was not fulfilled it deprived him of jurisdiction to constitute such a court.

“The Legislature has not expressly given the Chief Justice power to waive irregularities or to extend the time for doing things which the act expressly declares shall be done within a specified time,” said his Honour. “That power cannot be implied. Indeed, there is in the act a section which in my opinion is distinctly against any suggestion that such a power could be implied.

I am clearly of th,e opinion that in this case I have no jurisdiction to constitute an election court for the trial of this petition, because there was a failure to give security within the time prescribed by the act,” he said. His Honour said he thought he would have come to the same conclusion on the ground that service of the petition was not effected in time. This was not an irregularity going to the root of his jurisdiction, and it was not necessary for him to decide it. Without deciding the matter, his Honour said that failure to advertise the petition in time did not appear to be a condition precedent to the right to have an election court.

“I hold that I have no power to nominate the members of an election court, and I must therefore decline to do so,” said his Honour.

“I think my proper course is to notify the parties at once so that the petitioner, if he be so advised, may take appropriate proceedings to correct me if I have wrongly conceived my duty. I apprehend that if I am wrong it would be open to the petitioner to apply to the Supreme Court for a declaratory judgment as to his right or otherwise to have an election court appointed. In such a case I would arrange for a Full Court to hear and determine the matter. As at present advised, I shall take no action to nominate an election court.”

His Honour said that the present objection to the petition was not formal but vital and fundamental, going to the root of his jurisdiction.