Dent v Australian Electoral Commissioner (includes corrigendum dated 18 July 2008) [2008] FCAFC 111 (19 June 2008)

ARTHUR DENT v AUSTRALIAN ELECTORAL COMMISSIONER and DARYL WIGHT

VID 52 OF 2008
VID 269 OF 2008
VID 271 OF 2008

FRENCH, TAMBERLIN & MANSFIELD JJ
19 JUNE 2008 (CORRIGENDUM 18 JULY 2008)
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 52 OF 2008 VID 269 OF 2008 VID 271 OF 2008

BETWEEN:	ARTHUR DENT Appellant/Applicant
AND:	AUSTRALIAN ELECTORAL COMMISSIONER First Respondent DARYL WIGHT Second Respondent

JUDGES:	FRENCH, TAMBERLIN & MANSFIELD JJ
DATE OF ORDER:	19 JUNE 2008 (CORRIGENDUM 18 JULY 2008)
WHERE MADE:	ADELAIDE

1. Order 3 is amended to delete the words "Arthur Langer" there appearing and to substitute therefore the words "Albert Langer".

I certify that the preceding numbered paragraph is a true copy of the Corrigendum herein of the Honourable Justices French, Tamberlin & Mansfield.

ELECTIONS – electoral Roll – whether a person registered as an itinerant elector under s 96 of the Commonwealth Electoral Act 1981 (Cth) may be eligible to make a request under s 104 that that person’s address not be shown on the electoral Roll

Commonwealth Electoral Act 1981 (Cth) ss 57, 83, 90A, 90B, 93A, 96, 101, 102, 104, 166, 184A, 387
Electoral and Referendum Regulations 1940 (Cth), reg 12(1), 12(2)

Howard v Australian Electoral Commission [2000] FCA 1767 cited
Jess v Scott (1986) 12 FCR 187 applied
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 applied
Peczalski v Comcare (1999) 58 ALD 697 cited
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 cited

ARTHUR DENT v AUSTRALIAN ELECTORAL COMMISSIONER and DARYL WIGHT

VID 52 OF 2008
VID 269 OF 2008
VID 271 OF 2008

FRENCH, TAMBERLIN & MANSFIELD JJ
19 JUNE 2008
ADELAIDE (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 52 OF 2008 VID 269 OF 2008 VID 271 OF 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ARTHUR DENT
Appellant/Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSIONER
First Respondent

DARYL WIGHT
Second Respondent

JUDGES:	FRENCH, TAMBERLIN & MANSFIELD JJ
DATE OF ORDER:	19 JUNE 2008
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

1. The appeal from the orders of the Court made on 14 December 2007 be dismissed.

2. The application for an extension of time within which to appeal from the costs order made by the Court on 1 November 2007 be refused.

3. The application for an extension of time within which to appeal from the decision of the Administrative Appeals Tribunal made on 23 November 2007 is granted, limited to the issue as to whether the Administrative Appeals Tribunal erred in law in deciding that the applicant, having been enrolled on the Roll in the name Arthur Langer under s 96 of the Commonwealth Electoral Act 1981 (Cth), was not eligible to make a request under s 104 of that Act for his address not to be shown on the Roll and time to institute the appeal is extended to 19 June 2008.

4. The appeal on the issue identified in Order 3 hereof be heard instanter and the appeal be taken to have been instituted by the document entitled "Notice of Appeal" filed on 25 January 2008 with effect from 19 June 2008, subject to:

and judgment on the appeal referred to in Orders 3 and 4 hereof is otherwise reserved.

5. The first and second respondents within 14 days may make such written submissions on the costs of the appeal and of the applications as they may be advised.

6. The applicant may within a further 14 days make such written submissions on the costs of the appeal and of the applications as he may be advised.

7. The costs of the appeal and of the two applications and of the appeal for which leave has been given by Order 3 hereof be reserved to the date when judgment on the appeal referred to in Orders 3 and 4 hereof is otherwise reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 52 OF 2008 VID 269 OF 2008 VID 271 OF 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ARTHUR DENT
Appellant/Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSIONER
First Respondent

DARYL WIGHT
Second Respondent

JUDGES:	FRENCH, TAMBERLIN & MANSFIELD JJ
DATE:	19 JUNE 2008
PLACE:	ADELAIDE (HEARD IN MELBOURNE)

1 There are three proceedings before the Court, all of which are related to Arthur Dent’s desire to be recorded on the Australian Electoral Roll under that name, rather than under his former name of Albert Langer.

2 In the period leading up to the general election for the House of Representatives and for the Senate, held on 24 November 2007, Mr Dent was not registered on the electoral Roll. He had previously been on the electoral Roll under his former name. On 16 October 2007, he applied to be registered on the electoral Roll under the name Arthur Dent. His application was under s 96 of the Commonwealth Electoral Act 1918 (Cth) (the Act) as he said he did not reside in any Subdivision, and so fell within the description of an itinerant elector. At the same time, Mr Dent applied to be recorded as a "silent elector" under s 104 of the Act, that is for his address not to be shown on the Roll. Mr Dent also on 1 November 2007 nominated under the name Arthur Dent as a candidate for election to the Senate.

3 On 31 October 2007, Mr Dent was informed that his application for enrolment under s 96 of the Act under the name Arthur Dent had been refused, because that was not the name by which he was usually known: see s 93A(2)(b), and because enrolment under the name Arthur Dent was contrary to the public interest: see s 93A(3), as it would result in "a name on the electoral Roll that is not supported by any evidence of identity". It also followed that his request under s 104 of the Act was refused. On 1 November 2007, Mr Dent’s nomination to be a candidate for the election to the Senate was rejected because it did not comply with s 166(2) of the Act, as the nomination did not specify a name under which he was then enrolled. He was not on the Roll at all at that time.

5 On 31 October 2007, Mr Dent applied in the normal way by application supported by affidavit for orders that the Australian Electoral Commission (the AEC) enrol him as an elector under the name Arthur Dent, pursuant to his electoral enrolment application of 16 October 2007, and secondly that he be enrolled, pursuant to his request, with his address not to be shown on the electoral Roll and as a general postal voter (that is, for his address not to be disclosed pursuant to s 104 of the Act). He also sought damages and costs.

6 That proceeding came on for urgent interlocutory relief on the day it was instituted. Ryan J on that date declined to grant interlocutory relief in terms of the principal relief which Mr Dent claimed. At the time the matter first came before Ryan J on 31 October 2007, no decision had been made by the AEC or its relevant officer Daryl Wight whether to accept or reject Mr Dent’s application to be enrolled as an elector under the name Arthur Dent, or for his address not to be shown. The matter was adjourned overnight so that such a decision could be made. Those decisions were made by Mr Wight on behalf of the AEC on 31 October 2007 in the terms referred to above. The decision to refuse interlocutory relief is not the subject of this appeal or of any application for an extension of time to appeal.

7 On 1 November 2007, by proceedings commenced orally and which then came to be included in the application of 31 October 2007 by amendment, Mr Dent also applied for relief arising from the rejection of his nomination as a candidate for the Senate. The nomination had been lodged with the AEC at 11 am on 1 November 2007, and was apparently regular other than the nomination being in the name of Arthur Dent. Urgent interlocutory relief was sought, in effect to direct the acceptance of the nomination. It was urgent as nominations for the Senate election closed at midday on 1 November 2007 the following day. As the decision had earlier been made that Mr Dent was not entitled to be enrolled under the name Arthur Dent, Jessup J declined to grant interlocutory relief. His Honour ordered Mr Dent to pay the costs of that interlocutory application. His Honour also, as usual in such circumstances, required and received an undertaking that proceedings would be formally instituted in that matter promptly following the oral application. That undertaking was honoured by amending the existing proceeding commenced on 31 October 2007 by including orders seeking declarations that Mr Dent was entitled to be enrolled under the name Arthur Dent and so pursuant to s 166(2) of the Act was entitled to have his nomination as a candidate for the Senate accepted and that he is a candidate for election to the Senate. As Mr Dent now accepts, the election having taken place, the issue as to his entitlement to have had his nomination for election to the Senate accepted is moot. The amended claim also included a claim for exemplary damages against the AEC and Mr Wight for the rejection of the nomination.

8 Mr Dent then applied to the Administrative Appeals Tribunal (the AAT) to review the decisions of the AEC through Mr Wight of 31 October 2007 refusing to enrol him as an elector under s 96 of the Act, and it appears also refusing to grant his request that his address not be shown on the Roll. On 23 November 2007, the AAT set aside the decision dated 31 October 2007 concerning Mr Dent’s entitlement to be on the Roll, and substituted a decision that his application for enrolment be granted, but that the name of Albert Langer, rather than the name Arthur Dent, be entered on the Roll for the Subdivision to be ascertained by an Australian Electoral Officer in accordance with s 96(2A) of the Act. In the reasons for that decision, the AAT referred to s 104 in the following terms:

9 The proceeding in the Court was listed for Friday, 14 December 2007 for directions. On the preceding Monday, 10 December 2007, the AEC and Mr Wight sought to apply by motion to have the proceeding summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) on the ground that Mr Dent had no reasonable prospect of successfully prosecuting his claims. That motion was supported by an affidavit of a lawyer from the Australian Government Solicitor which, apart from referring to the history of relevant communications between Mr Dent and on the other hand the AEC and Mr Wight, included copies of the relevant decisions and brought the factual background up to date, including the details of the AAT decision.

10 Notice of the motion was given to Mr Dent by providing him with a copy of the motion without a Court seal and without a date upon it, together with a copy of the supporting affidavit. We infer that was done at about the time the motion was lodged with the Court. The following day, Tuesday 11 December 2007 the sealed motion was given to him. On both occasions, Mr Dent was notified that the AEC and Mr Wight wished to have the motion heard at 9:30 am on Friday, 14 December 2007, that is the same date as the directions hearing date, and the sealed motion specified that as its return date.

11 The motion was dealt with on that date. Gordon J considered that claims made by Mr Dent had no reasonable prospect of success and that his application was hopeless and bound to fail. The claims her Honour identified were:

1. the failure of the AEC and Mr Wight to enrol the applicant as an elector in the 24 November 2007 election under the name Arthur Dent, including as a consequence that his request for his address not to be disclosed had also not been granted;

2. the failure of the AEC and Mr Wight to accept Mr Dent’s nomination as a candidate for election to the Senate in the 24 November 2007 Federal election; and

Her Honour said that there was a complete answer to each of those claims, and that they were either moot or failed as a matter of law. She accordingly dismissed the proceeding with costs ordered to be paid by Mr Dent.

1. an appeal, or alternatively an application for leave to appeal (if leave is necessary), from the decision of Gordon J on 14 December 2007 summarily dismissing the proceeding (involving both the original claim and the amended claim);

2. an application made on 28 April 2008 for an extension of time within which to appeal from the costs order made by Jessup J on 1 November 2007; and

3. an application made on 28 April 2008 for an extension of time within which to appeal from the decision of the AAT given on 23 November 2007.

13 The issues before Gordon J on 14 December 2007 on the summary dismissal motion, and the orders made are set out in [11] above. Her Honour said that the first two issues were moot because the election had been held and because the AAT had determined the issue whether Mr Dent should be enrolled as an elector and, if so, whether it should be under the name Arthur Dent with an address not to be shown on the electoral Roll.

In support of that conclusion, her Honour referred to the hearing before the AAT. She noted that the AAT had accepted a number of witnesses called by Mr Dent that he is known as Arthur Dent amongst those with whom he is acquainted, including his doctor, a lawyer, members of his family and his friends, and that he has some documents in that name as well as having engaged in proceedings in the Victorian Civil Administrative Tribunal under that name. Her Honour then quoted a brief passage at the conclusion of that section of the reasons of the AAT as follows:

15 The issue concerning s 104 of the Act was addressed in the following paragraph of Her Honour’s reasons:

17 Her Honour was plainly correct in deciding that the complaint that the applicant had not been enrolled as an elector following the decision of the respondents of 16 October 2007 was moot. By reason of the AAT decision, he had been enrolled as an elector, albeit not under his preferred name. He does not now complain of that part of the decision of the AAT. He may apply to have his name on the Roll changed if he is so minded.

18 The appeal also raises the correctness of the summary dismissal of Mr Dent’s claim that the AEC and Mr Wight wrongly decided that his address not be shown on the electoral Roll, a request made under s 104 of the Act. That matter was raised before the AAT and had been addressed by the AAT. As Gordon J said, the appropriate avenue to complain of that decision was for Mr Dent to appeal from the decision of the AAT. Mr Dent had not then taken up that option, but he was still within time to do so. He did not appeal from that part of the decision of the AAT within time. Whether he should be granted an extension of time to do so is considered below.

19 The appeal also attacks the summary dismissal of Mr Dent’s claim to be entitled to be enrolled under the name Arthur Dent at the time of his nomination so that he should have been accepted as a candidate for the Senate election under that name. That application was rejected by the AEC and Mr Wight because, at the time, he was not enrolled as an elector under that name. It is clear that s 166(2) requires a nominee to be on the Roll, and that the nomination should be in the name of that person on the Roll. Mr Dent was not on the Roll of electors at the time of his nomination. Nothing has been shown to indicate that that decision was in error. In addition, her Honour was correct to say that the failure to accept his nomination as a candidate for the Senate is moot, and so to conclude that that part of Mr Dent’s claims should also be struck out. Indeed, as we discuss below, after Jessup J on 1 November 2007 declined to grant interlocutory relief to the effect that Mr Dent’s nomination should be accepted, Mr Dent acknowledged that there was probably little point in this particular claim being further pursued because the time for nominations to stand as a candidate in the Senate election was about to expire.

20 The applicant’s affidavit of 30 October 2007 filed in support of his application does not disclose a basis upon which damages or exemplary damages were sought. It simply records the history of his attempts firstly to be enrolled as an itinerant voter; secondly his attempts to be eligible to have his nomination for the Senate accepted; and thirdly to be enrolled as a silent elector pursuant to s 104 of the Act. There is nothing in that material to demonstrate the foundation for a claim for damages or exemplary damages. Order 4 r 1 of the Federal Court Rules requires the commencement of proceedings by application and O 4 r 6 requires the application to be commenced, supported either by an affidavit or a statement of claim which is required to show the nature of the applicant’s claim and the material facts upon which it is based. The applicant in the course of submissions indicated that his claim against Mr Wight was for damages and exemplary damages for misfeasance in public office. That asserted basis for the claim does not appear from the material filed in support of the application. It was not apparent in the material before her Honour at the time of her decision. Such an allegation would involve an allegation of wilful default on the part of Mr Wight, so the application should have been supported by a statement of claim: see O 4 r 6(1A). In our view, her Honour’s reasons on the basis of the material before her do not demonstrate error in her conclusion because on the material there was simply no foundation for a claim for damages or exemplary damages.

21 Mr Dent also submitted that her Honour’s decision should be set aside by reason of the process by which the motion for summary judgment came to be heard. He complained of a lack of procedural fairness. The procedure by which that application came to be heard was not ideal. It is recorded above. However, the fact is that he was given notice of the proposed application on Monday, 10 December 2007, together with a copy of the motion which was not then issued by the Court and did not have a return date on it or a Court stamp on it, and informed that it was proposed to have the motion heard the following Friday, 14 December 2007. He was then formally notified the following day, that is 11 December 2007, of the hearing at 9:30 am on 14 December 2007. He was in fact given the three days notice of the motion for summary dismissal of his claims, and of the return date for the motion as required by the Rules, albeit not strictly by receiving the sealed copy of the motion on the Monday. It may have been desirable to formally make an order dispensing with compliance with the Rules to the extent to which the procedure required under the Rules was not fully complied with (if they had not been complied with), but the substance is that he was given not less than three clear days notice of the terms of the motion and of the material upon which the respondents relied and of its return date. He expected the motion to be called on when he attended for the directions hearing at 9:30 am on 14 December 2007.

22 Although he complained in submissions that he did not have the opportunity of presenting material or argument on the motion, that does not emerge from the transcript of the hearing on 14 December 2007. He could have indicated, but did not indicate, that he wished an opportunity to further consider the terms of the motion and to consider how it might be responded to. He could have indicated, but he did not indicate, that he wished an opportunity to adduce material in response to the motion. There is still nothing to indicate what material he might have adduced on the hearing of the motion had he sought and been given the opportunity to do so. In submissions on the appeal he did not really assert that there was material which he might have adduced which he did not otherwise adduce. It is also apparent from the transcript that he addressed the substantive arguments on the motion once counsel for the AEC and Mr Wight had made their submissions. It might have been desirable, having regard to his status as a self-represented litigant, to have asked Mr Dent whether he was in a position to proceed with the motion or wished it to be adjourned, but that was a judgment to be made at the time of the hearing and in the overall context. As Mr Dent acknowledged, he is not a person inexperienced in Court processes. The transcript reveals that he understood the nature of the motion and addressed the issues it raised coherently, and without seeking any adjournment of it. There was, in our view, no failure to accord him procedural fairness in hearing the notice of motion on 14 December 2007, or in the manner it was heard.

23 Accordingly, we do not consider that her Honour fell into error in summarily dismissing the application as it then stood.

24 In reaching that conclusion, we have not overlooked that her Honour in her reasons also said the legal dispute had already been resolved by the Court and by the AAT in a manner adversely to Mr Dent, so that "the application is hopeless and bound to fail". That would appear to overstate the effect of the earlier decisions of Ryan J and of Jessup J on their Honours’ respective interlocutory hearings. The decision of Ryan J was to refuse, on an interlocutory basis, Mr Dent’s enrolment under the name Arthur Dent. As the reasons of Ryan J indicate, at that time Mr Dent had taken the view that he was entitled to be so enrolled without providing evidence to the AEC or Mr Wight to support the requirement of s 93A(2)(a) of the Act that he was then usually known by the name Arthur Dent. The interlocutory decision of Ryan J was therefore one which did not determine the general issue as to Mr Dent’s entitlement to be enrolled so as to be able to vote at the election. Subsequently, before the AAT, the applicant adduced evidence to show the name by which he was usually known, and the AAT made findings of fact on that topic. The decision of Jessup J was also only an interlocutory one, and one which was based upon an express assumption that Mr Dent was usually known by his associates by the name Arthur Dent (a finding of fact which the AAT subsequently made). His Honour declined to grant interlocutory relief mainly because, even assuming that fact, s 166(2) required a nomination to be in the name of the candidate on the electoral Roll and Mr Dent was not then on the Roll under the name Arthur Dent. His Honour also did not therefore determine conclusively all the matters which Gordon J was required to consider. We read her Honour’s reasons as really adopting, to the extent they were applicable, the respective reasons of Ryan J and Jessup J. That passage in her Honour’s reasons does not demonstrate that the summary dismissal of the proceeding was in error.

25 The fact that the AAT had determined that Mr Dent was entitled to be on the Roll under the name Albert Langer was made upon the evidence and the construction of s 93A(2)(b). There may be a question as to whether the AAT understood the correct operation of s 93A(2)(b). It is referred to below. However, the fact that the AAT had made its decision did not, in our view, provide an additional reason for summarily dismissing the proceeding except in the way previously pointed out, namely by rendering moot Mr Dent’s complaint that he had not been able to be entered on the Roll of electors. As her Honour immediately went on to say, if Mr Dent considered the AAT decision involved an error of law, he could appeal from that decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). We do not regard an apparently infelicitous reference to the significance of the AAT decision to demonstrate that there was error in summarily dismissing the proceeding. Her Honour clearly addressed the several claims and gave reasons why they would clearly fail. We have considered the correctness of that conclusion above.

26 Finally, we note that Mr Dent asserted in oral argument that a constitutional matter arose implicitly in the proceeding which Gordon J should have identified, and so her Honour should have adjourned the hearing. Shortly before the hearing of the appeal, he filed a "Notice of a Constitutional Matter". As best as we can discern from that document and from his submissions, Mr Dent wishes to raise:

(1) the validity of s 57 of the Act which provides that one member of the House of Representatives shall be chosen for each Electoral Division, because it is "an arbitrary determination of the number of members for electoral divisions"; and

(2) the validity of what he called the "Proof of Identity" measures in the Act, by which he appeared to refer to s 101 of the Act;

(3) the more rhetorical claim that somehow the Act provides public officials with a discretionary power to decide who may stand for election to the House of Representatives and the Senate, and a discretionary power to remove a nominated candidate or candidates from participating in the election in which they have been validly nominated.

No such matters, assuming they or any of them would attract the application of s 78B of the Judiciary Act 1903 (Cth), arose in the proceeding before Gordon J. There is no hint of them in the application, or the amended application, or the affidavit of Mr Dent filed in support of the application. At the hearing before Gordon J, Mr Dent said an unidentified constitutional matter might arise if the proceeding went forward in a certain way. But her Honour was entitled to, and did, dispose of the proceeding as it then stood. There was no error in dealing with the merits of the application before her – the strike out motion – in the circumstances. See also the observations of Branson J in Howard v Australian Electoral Commission [2000] FCA 1767 at [9]- [10].

27 For those reasons, we consider that the appeal from the decision of Gordon J should be dismissed.

28 Thus far we have assumed that an appeal lay as of right from the summary dismissal of the proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). However, we are not to be taken to be endorsing the view expressed in Jefferson Ford Pty Ltd v Ford Motor Company of Australia [2008] FCAFC 60 by Finkelstein J at [2]-[13] and by Gordon J at [159]-[191] that the summary dismissal of the proceeding under s 31A(2) of the FCA Act is a final one, so that an appeal as of right lay from the decision of Gordon J in this matter. There are two Full Court decisions to the opposite effect, namely that such a decision is an interlocutory one so that leave to appeal from it should be sought: see Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 240 ALR 624; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179; and see the remarks of Rares J in Jefferson Ford at [42]-[56]. We did not need to consider that question because the AEC and Mr Wight, in the circumstances, acknowledge that leave to appeal from the decision of Gordon J should be given, if it were necessary, so that the appeal could be considered on its merits. We will accordingly give that leave to the extent it is necessary to do so.

29 The application for an extension of time to appeal from the decision of Jessup J given on 1 November 2007, by which his Honour ordered that Mr Dent pay the costs of the unsuccessful interlocutory application heard on that day, can be shortly dealt with.

30 Any appeal should have been instituted by 22 November 2007 (O 52 r 15(i) of the Federal Court Rules). An extension of time to appeal under O 52 r 15(2) of the Rules may be granted, having regard to all the circumstances, provided that special reason exists to do so: see the discussion in Jess v Scott (1986) 12 FCR 187 at 195. As the appeal is from a costs order on an interlocutory judgment, leave to appeal may also have been required (s 24(1A) of the FCA Act), and so an extension of time to seek leave to appeal would also have been necessary. We do not need to explore that question.

31 In our view, there is no basis upon which an extension of time to appeal should be granted. There is no identified question of principle which arises, or indeed any real legal issue in dispute. Mr Dent simply says that no costs order should have been made. But he is seeking to challenge the exercise of a discretion to award costs under s 43 of the FCA Act. No arguable ground of error in the exercise of that discretion has been made out, or even suggested. The transcript discloses that his Honour, having determined that no interlocutory relief as claimed should have been granted, raised the question of costs. Mr Dent asked that the costs of the interlocutory order be reserved, but then indicated that it was unlikely that the complaint about the rejection of his candidacy for the Senate election would be persevered beyond the failed interlocutory application (a realistic attitude, given the date for the close of nominations). In view of that, his Honour thought it appropriate to address costs of the interlocutory application at that time, and made the order for costs. Moreover, there is no evidence to explain the delay in making the application until the present time: see QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7].

32 Mr Dent suggested in the course of argument that his Honour wrongly assumed that the proceeding was effectively at an end by the decision on the interlocutory application. His Honour, as the transcript reveals, did not make that assumption but made the order for costs as it appeared likely – as Mr Dent himself said at the time – that the complaints about rejection of his nomination would not be pursued because the close of nominations was imminent. It was entirely proper for his Honour, in that circumstance, to deal with the costs of the interlocutory application and to award them against Mr Dent who had failed on that application.

33 In any event, the application for an extension of time to appeal would serve no real purpose. On 14 December 2007, the principal proceedings were summarily dismissed by Gordon J, and Mr Dent was ordered to pay the costs of those proceedings. Her Honour did not specifically address the costs of the interlocutory hearing before Jessup J, obviously because the costs of that interlocutory hearing had already been awarded. We have determined that the appeal from the decision of Gordon J should be dismissed. Had the costs order made by Jessup J not been made, as the proceedings themselves have been dismissed with costs, there can be no doubt that the costs of the proceedings would have included the costs of that interlocutory hearing.

34 As noted above, the AAT set aside the decision of the AEC and Mr Wight of 31 October 2007 to refuse Mr Dent’s application for enrolment on the Roll under that name.

35 The AAT considered whether s 93A(2)(b) is a reference to the name by which Mr Dent is usually known by those with whom he is acquainted, or whether because of his wider reputation it is a reference to the name by which he is usually known in the wider community. The AAT concluded at [74]:

Upon that basis, the AAT was not satisfied that Albert Langer is not the name by which Mr Dent is usually known within the meaning of s 93A(2)(b). It also considered that the public interest referred to in s 93A(3) required accuracy in the Roll and that the identifying documents prescribed in the Electoral and Referendum Regulations 1940 (Cth) (the Regulations) indicated that Mr Dent was known as Albert Langer, so that it was contrary to the public interest to register Mr Dent under that name in the roll rather than the name Albert Langer. Having regard to the wider community awareness of the previous activities of Mr Dent, and to the name that appears on documents of the sort referred to in Sch 3 to the Regulations, the AAT concluded that it would not be in the public interest to include the name Arthur Dent in the Roll because it would not maintain the accuracy of the Roll when the name Arthur Dent has not been established on the basis of the evidence as that by which he was usually known. Consequently, it ordered that Mr Dent be entered on the Roll in the name of Albert Langer.

36 As we have noted, on the hearing of this appeal/application, Mr Dent did not contend that he should be given an extension of time to appeal from that part of the AAT’s decision. As Gordon J said, there was at the time of the hearing of the summary dismissal application no factual dispute: Mr Dent was found to be known by his associates by the name Arthur Dent but in the wider community where he had some notoriety (a word used by the AAT) he was not known by that name but as Albert Langer and certain documents such as his driver’s licence were in that name. Mr Dent may have elected to take the practical path of seeking to be entered on the Roll under the name Arthur Dent at some later time. He may have decided that, by further evidence either to the AEC or on review by the AAT, he could bring himself within the requirements of s 93A(2)(b) so as to qualify to be entered on the Roll under that name. They are steps available to him in the future.

37 The second issue concerned s 104 of the Act. As to that, the AAT regarded the applicant’s enrolment application – indicating that he did not reside in any particular subdivision and has no fixed address so that he was in essence "homeless" – is entirely at odds with a request under s 104. Having been registered as an elector under s 96, the AAT considered that he was not entitled to make a request under s 104 and therefore did not further consider that matter. Its orders did not further deal with his application under s 104, but it is obvious that the decision was that the application under s 104 should be refused, and the decision of the AEC and Mr Wight was therefore affirmed in that respect. It is only in respect of this decision of the AAT that, in our view, an extension of time to appeal from the AAT should be given.

38 The error of law asserted by Mr Dent is that the AAT wrongly proceeded on the basis that a person who had been registered as an itinerant voter under s 96 could not have an address for the purposes of s 104, and therefore s 104 could not be applicable to such a person. It was argued that that was in error because, even for an itinerant person, the Act and the Regulations impose obligations of disclosing an address (obviously at least for the purposes of communication) and the disclosed address may expose the registered person on the Roll to the detriment to which s 104(1) refers, and secondly that the status of an itinerant elector was not necessarily a permanent one.

39 Eligibility for an enrolment on the Roll as an itinerant elector depends on the person not residing in any Subdivision: s 96(1)(b). The AEC then enrols the person for a Subdivision for the State in which the application is made. Section 96(2A) directs the enrolment to be in the Subdivision in which the applicant was last enrolled, or if that does not apply in the Subdivision of one of his next of kin, or in which the applicant was born or has the closest connection. The Roll is annotated to indicate that the person is an itinerant elector: s 96(2B). Regulations 12(1) and (2) of the Regulations require that the applicant must provide details of a driver’s licence (as Mr Dent apparently did) or other identification: s 96(2AA) and s 96(2AB); but it does not follow that any address shown on identification documents should appear on the Roll. There is nothing in s 96 which requires or anticipates that a person enrolled on the Roll as an itinerant elector will have an address recorded on the Roll. Section 96(2B) suggests the contrary.

40 There are other provisions of the Act which appear to recognise that position. Section 83(1) provides that the Roll shall include the "place of living" of each elector, but s 83(2) says that it shall not do so in the case of an itinerant elector. The Roll is available for public inspection: s 90A, and s 90B also provides for the provision of information on the Roll to certain other persons or entities. Section 90B(6) precludes the provision of information about a person whose address has been excluded under s 104. Section 99(3) also provides expressly for itinerant electors: they do not have to reside in a Subdivision to be on the Roll for that Subdivision or to maintain the address they had at the time of enrolment. Sections 101 and 102 deal with compulsory enrolment and the processing of claims for enrolment. They also specifically exclude persons enrolled under s 96 from their ambit, so although they require disclosure of a residential address of electors generally, they do not require that of itinerant electors.

41 Mr Dent placed some weight on s 96(12) of the Act. It provides that, for the purpose of s 96, a person is taken to reside at a place if, and only if, the person has a real place of living at that place. Although Mr Dent sought to make something of that subsection, it does not directly advance his contention. It informs the circumstances of eligibility to apply for enrolment under s 96(1) because the applicant must not reside in any Subdivision. It also informs subs 96(7), (8) and (10): those provisions refer to circumstances where an itinerant elector has come to reside at a particular place and so is no longer eligible to be an itinerant elector. For reasons which appear below, however, it has some significance to the point presently under consideration.

42 There is some basis for arguing that a putative itinerant elector must provide some contact address to the AEC. Section 96(2)(a) requires the person applying for enrolment as an itinerant elector to use the approved form. The term "approved" is defined in s 4 of the Act to mean approved by the AEC by notice published in the Gazette. Mr Dent exhibited the approved form "Electoral enrolment for persons with no fixed address", as completed by him. It does not require a current address, although it required him to specify which of the alternatives in s 96(2A) might apply. However, it then requires a residential address and a postal address to be given. Mr Dent provided the same address for both those sections of the form. An unsuccessful applicant for enrolment under s 96 must be notified in writing of the decision: s 96(5). It may be that the relevant form requires an address so that s 96(5) may be complied with. Also, s 387 requires the AEC to send all electoral papers by post. That, too, may provide a reason for seeking an address from a putative itinerant elector. The terms "residential address" and "postal address" are not defined in the Act.

43 However, in our view, those considerations do not demonstrate an arguable case that an address provided by an itinerant elector as discussed in the preceding paragraph should or may be entered on the Roll. The statutory scheme relating to itinerant electors makes it clear that no address of such an elector will appear on the Roll.

44 Mr Dent’s argument had another limb. Section 104 entitles an elector, or a putative elector in certain circumstances, to apply for that person’s address not to be shown on the Roll. Mr Dent made such an application when he sought enrolment as an itinerant elector. On the approved form for that application, he gave the same address as that given as his residential and postal address on the form for enrolment as an itinerant elector. On that form he was given, and took, the option of becoming a postal voter under s 184A of the Act. One of the grounds of eligibility for being registered as a general postal voter is the exclusion of the elector’s address from the Roll under s 104. The mere fact of being enrolled as an itinerant elector does not entitle a person to apply to be registered as a general postal voter.

45 Eligibility to be enrolled as an itinerant elector may be a temporary one. That is clearly so. Subsections 96(8) and 96(10) provide for the circumstance where (inter alia) an itinerant elector has resided in a Subdivision – not apparently necessarily at the same address – for one month or longer. The person then ceases to be eligible to be treated as an itinerant elector, and the AEC must cancel the annotation under s 96(2B). That would, or may, result in the residential address on the application form being entered on the Roll, although neither the Act nor the evidence indicates expressly what should be done in that regard. Consequently, Mr Dent argued, even if the "address" of an itinerant elector as given when applying for enrolment under s 96 is not included on the Roll whilst the person has the status of an itinerant elector, that status is not necessarily coterminous with that person’s enrolment on the Roll. If subs 96(8) and (10) are enlivened so the annotation under s 96(2B) is removed, the person ceases to be an itinerant elector but does not cease to be an elector. Consequently, he argues, it was an error of law on the part of the AAT to proceed on a contrary assumption, and to fail to consider his request under s 104 at all.

47 Accordingly, in our view it is arguable that the AAT erred in law in assuming that s 104 could not be considered in respect of a person registered at a particular point in time as an itinerant elector under s 96.

48 Section 44 (2A) of the AAT Act requires an appeal to be instituted within 28 days of the decision being given to the person concerned, but the Court may extend that time under O 53 r 7 of the Rules. Factors relevant to the exercise of that discretion include the explanation for the delay, the conduct of the person seeking the extension of time, prejudice to the other party, and the merits of the application: see Peczalski v Comcare (1999) 58 ALD 697; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344.

49 Mr Dent has provided no explanation for the delay in appealing from the decision of the AAT. He was aware of the right of appeal. It was pointed out to him by Gordon J in her decision on 14 December 2007. He was then still within the 28 day period to appeal from the AAT decision allowed by s 44(2A) of the AAT Act. One may infer that he elected to pursue the appeal avenue to the Court, as his notice of appeal from the decision of Gordon J (brought within the time permitted by the Court) included the claim that, having been enrolled as an itinerant elector under s 96, he was nevertheless entitled to have considered his request under s 104 that his address not be shown on the Roll. It is from the terms of the notice of appeal that the real nature of the three matters before the Court identified in [11] above emerged. Mr Dent pursued the appeal in a timely manner. Moreover, after the decision of the AAT on 23 November 2007, Mr Dent corresponded with the AEC and Mr Wight on the matter of his request under s 104 on 4 January 2008 without having his request acceded to.

50 Whilst there is a public interest in the speedy resolution of claims that an administrative decision has been made invalidly, the particular circumstances of the matter suggest that the most efficacious way to have this question resolved is to return it to the AAT. In addition, Mr Dent when making the request under s 104 on 16 October 2007 claimed that having his residential address disclosed on the Roll would place the personal safety of himself and members of his family at risk and explained why in the accompanying statutory declaration. There has been no decision upon the correctness of that claim by the AAT. If it be correct, the continued exposure of an address for him on the Roll may cause him or his family prejudice.

51 Having regard to the view we have reached about the arguable character of this issue as advanced by Mr Dent, we therefore propose to grant him leave to appeal from the decision of the AAT limited to the question whether the AAT erred in law in deciding that Mr Dent, having been enrolled as an itinerant elector under s 96, was not eligible to make a request under s 104 of the Act for his address not to be shown on the Roll.

52 There remains the question whether that appeal should be heard instanter. In fairness to the AEC and to Mr Wight, although the particular question was raised in the notice of appeal, Mr Dent did not develop his submission on it until his oral submissions and then largely in reply. It is not therefore clear that the AEC and Mr Wight have had a full opportunity to address the contentions. They did not deal with it in their written submissions. We therefore propose to stand over the appeal to a date to be fixed:

(1) to enable the AEC and Mr Wight within 14 days to make such further written submissions in answer to Mr Dent’s submissions on the point as they may be advised;

(2) to enable Mr Dent within a further 14 days to make written submissions in reply.

53 As the AAT has not addressed the merits of the request under s 104, if the appeal on that issue is then successful, it would appear appropriate for the issue to be then remitted to the AAT to consider the request according to law. Of course, that course of action does not preclude the AEC from revisiting its decision on that request in the meantime. If it does so in favour of Mr Dent, it should promptly notify the Court so that the decision on the other outstanding issue, the costs of the appeal and the applications, may be given.

54 In our view, Mr Dent has largely failed on his appeal in any event. He has succeeded in part only on a matter which requires the Court’s indulgence, and of course may not ultimately succeed on the appeal on that matter. If his contention on that appeal from the AAT does not succeed at all, at present we are minded to order him to pay the AEC and Mr Wight their costs of that appeal and of the appeal and the applications with which we have already dealt. If his appeal succeeds on that limited point, at present we are minded to order him to pay the AEC and Mr Wight 80% of their costs of the appeal and of the applications with which we have already dealt, including the now outstanding appeal, to balance the extent to which the parties would have respectively succeeded. The limited matter did not occupy one fifth of the hearing, but we have selected that percentage to reflect some allowance to Mr Dent if he were to succeed on that point, and also bearing in mind that he was not legally represented.

55 In the orders we propose to make, we have allowed for written submissions on costs within the same time frame.

1. The appeal from the orders of Gordon J made on 14 December 2007 be dismissed.

2. The application for an extension of time within which to appeal from the costs order made by Jessup J on 1 November 2007 be refused.

3. The application for an extension of time within which to appeal from the decision of the AAT made on 23 November 2007 is granted, limited to the issue as to whether the AAT erred in law in deciding that Mr Dent, having been enrolled on the Roll by the name Arthur Langer under s 96 of the Act, was not eligible to make a request for his address not to be shown, and time to institute the appeal is extended to 19 June 2008.

5. The AEC and Mr Wight within 14 days may make such written submissions on the costs of the appeal and of the applications as they may be advised.

6. Mr Dent may within a further 14 days make such written submissions on the costs of the appeal and of the applications as they may be advised.

7. The costs of the appeal and of the two applications referred to and of the appeal for which leave has been given by Order 3 hereof are reserved to the date when judgment on the appeal referred to in Orders 3 and 4 hereof is delivered.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Tamberlin & Mansfield.

Counsel for the First Appellant:	The appellant appeared in person

Counsel for the First and Second Respondents:	S Donaghue

Solicitor for the First and Second Respondents:	Australian Government Solicitor

Date of Hearing:	19 May 2008

Date of Judgment:	19 June 2008

Federal Court of Australia - Full Court

Dent v Australian Electoral Commissioner (includes corrigendum dated 18 July 2008) [2008] FCAFC 111 (19 June 2008)