IN THE DISTRICT COURT HELD AT AUCKLAND
MA No. 650/01
IN THE MATTER of the Local Electoral Act 2001
AND
IN THE MATTER of a petition for inquiry under section 93
of that ActBETWEEN PENNY BRIGHT AND OTHERS
Petitioners
AND GRAEME MULHOLLAND AND OTHERS
First Respondents
AND DALE MATHEW OFSKOFSKE
Second Respondent
Date of Hearing: 23 November 2001
Date of Judgment: 28 November 2001
Counsel: Graeme Minchin for Petitioners
John Collinge for First Respondents
Graeme Palmer for Second Respondent
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RESERVED ORAL DECISION OF JUDGE FWM McELREA
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Solicitors:
Otene & Ellis, DXEP7.1003, Onehunga for Petitioners
John Collinge, Akarana' 10 London St, St Mary's Bay, Auckland for First Respondents
Simpson Grierson, Solicitors, DX M 0092, Auckland for Second Respondent
THE PETITION AND THE COURSE OF THE INQUIRY
[1] Penny Bright and nine other “electors of the Auckland area” filed in this
Court a petition for inquiry under s 93 of the Local Electoral Act 2001 concerning
the election of councillors for the Auckland City Council held on 13 October 2001.
The petition is dated 9 November 2001 and was filed in court that day, accompanied by the prescribed deposit of $750. The Registrar gave public notice of the petition on 16 November 2001 and the inquiry was commenced (and indeed completed) within 14 days after the filing of the petition, as required by s 96. (All references to section numbers in this decision refer to the Local Electoral Act 2001 unless otherwise stated.)
[2] The petition sought a determination that the Electoral Officer (the second
respondent) and Mr Angus Ogilvie had committed breaches of the Act, that Graeme
Mulholland, David Hay and Noeline Raffills were not duly elected as Councillors,
and that "the election was void". At the commencement of the hearing Mr Minchin
obtained leave to amend the petition by deleting Mr Hay as a respondent. He was
nevertheless called as a witness by the other first respondents.
[3] The inquiry into the petition occupied all of the hearing day of 23 November
2001. Evidence was given for the petitioners by Penny Bright and two others. David
Hay, Maurice Chatfield and Angus Ogilvie gave evidence for the first respondents,
and Mr Ofsoske gave evidence for himself as second respondent. Legal submissions
were made by all three counsel. A preliminary jurisdictional point raised by Mr
Palmer for the second respondent was argued at the conclusion of evidence in case
any evidence may have affected the evidential basis upon which the point was founded.
2. GROUNDS OF THE PETITION
[4] The petition states that at the election for which voting concluded on 13
October 2001, Mr Mulholland, Mr Hay, Ms Raffills and Paul Forlong were
candidates and the first three of those persons were returned by the Electoral Officer Mr Ofsoske as duly elected. The evidence disclosed that all four were candidates for the office of Auckland City Councillor standing in the Avondale Roskill ward of the Auckland City Council. All four were members of the association Auckland Citizens and Ratepayers Now ("ACRN").
5] The essence of the petitioners' complaint is that the four candidates had made
public statements for electioneering purposes opposing the privatisation of
Auckland's water supply when they had in fact contemporaneously made pledges to
ACRN to support the future privatisation of Auckland's water supply.[61 In addition Mr Ogilvie as Vice President of Auckland Now (one of the two
parties working in association with each other under the umbrella ACRN) had stated to the petitioner Penny Bright (being a spokesperson for the Water Pressure Group) that "Auckland Now does not have a privatisation agenda [and] nor does C&R."
This statement was made by e-mail to Miss Bright on 17 September 2001 in
response to a request from the Water Pressure Group for advice of the position of
ACRN on water services. All Auckland City Council candidates had been asked for
their position on this topic by the Water Pressure Group with a view to that group
advising electors in the Auckland City Council elections of where all candidates
stood on this particular issue.
[7] It was accepted by the first respondents that a loyalty statement by intending
candidates contained a pledge to support ACRN policy expressed in the following
terms:'Service provision should be contracted out as much as possible " ...
"In the long term (5+ years) we look forward to a public-private operating
partnership structure that works so well in other countries/jurisdictions (such as
Victoria, Australia, and many communities in the USA). "[81 The specific statements that were said to be inconsistent with such policies
were, first, the e-mail by Mr Ogilvie to Miss Bright, and secondly an election hand
bill authorised by Mr Chatfield as ACRN Secretary, signed by the four ACRN
candidates already mentioned and circularised in the Avondale Roskill ward. This
hand bill stated that the candidates "have never, and will never support privatisation
of water and sewerage assets".[9] The petition alleged that Mr Ogilvie's e-mail was a misrepresentation and
was intended to be a fraudulent means of inducing Miss Bright and other members
of the Water Pressure Group to vote for ACRN. Further the petition alleged that the
election hand bill was a fraudulent devise perpetrated for the purpose of inducing
electors to vote for the named candidates by misrepresenting them as opposed to the
privatisation of Auckland water supply when they had in fact contemporaneously
pledged (so it was alleged) to support the future privatisation of Auckland's water
supply.
[10] The petition then alleged that such fraudulent conduct constituted "acts of
Undue Influence proscribed by s 127. This section states127 Undue influence
(1) Every person commits the offence of undue influence- -
(a) who, directly or indirectly, on that person's own or by another person, makes
use of or threatens to make use of any force, violence, or restraint against any person -(i) in order to induce or compel that person to vote or refrain from voting:
(ii) on account of that person having voted or refrained from voting:
(b) who, by abduction, duress, or any fraudulent device or means,- -
(i) impedes or prevents the free exercise of the vote of any elector:
(ii) compels, induces, or prevails upon any elector either to vote or to refrain from
voting.(2) Every person who commits the offence of undue influence is liable on
conviction on indictment to imprisonment for a term not exceeding 2 years.
The words underlined are those said by the petitioners to apply in this case.
[11] The complaint against the second respondent was that as Returning Officer
he failed to investigate the conduct of the first respondents when it was drawn to his
attention by Miss Bright on 24 September 2001, and that he failed to refer a written
complaint from Miss Bright to the police when that was subsequently received. I
will deal with that evidence separately.
3. JURISDICTIONAL OBJECTION BY SECOND RESPONDENT
[12] It was Mr Palmer's submission that the petition itself did not comply with the
requirements of the Act and therefore should be dismissed. This was because the 10
petitioners came from different wards and in Mr Palmer's submission where a
territorial authority was divided into wards (as was the Auckland City) then there
needed to be 10 petitioning electors from the relevant ward, in this case Avondale
Roskill. Mr Collinge supported the objection.
[13] Section 93 requires a petition to be filed by any candidate "or any 10 electors
with a complaint about the conduct of an election ..." It was Mr Palmer's
submission that in the case of elections to territorial authorities which are divided into wards there is one election over the whole district for the office Mayor and there are separate elections in each ward for the office of councillor.[14] The term "elector" is defined in s 5 to mean:
“any person entitled under any law for the time being in force to vote at an election
... held under this Act”.[15] The argument therefore is that because there is a separate election in each ward of Auckland City the 10 "electors" required to bring a petition under s 93 must be eligible to vote in the election in question - i.e. in the ward in question. It was accepted that only five of the 10 petitioners are electors in the Avondale Roskill ward.
[16] More particularly Mr Palmer submitted that the statutory definition of “elector" given above in turn refers to an "election" which is defined in s 5 to mean:
"election to any office in, under, or in connection with any local authority, community board, or other body required by law to be filled by the election of the electors of any local government area".
(Emphasis added)
The term 1ocal government area" is in turn defined in s 5 to mean "the area comprised within the jurisdiction of a local authority; and includes a subdivision of that area". Finally, "subdivision" is defined to mean "a ward of a district of a territorial authority ... or any other division of a local government area for electoral purposes".
[17] As a result Mr Palmer was able to submit that an "election" must be in respect of a ward (where a district is so divided) and therefore the "electors" in that election must be persons entitled to vote in that ward.
[18] The argument was further supported by looking at other provisions relating to elections. Thus, where a district is divided into wards, nominations of candidates must be done on a ward basis, the electoral rolls are kept on a ward basis and voting papers are likewise distributed on a ward basis - see s 26 and s 75 of the Act and s 7BC of the Local Elections and Polls Act 1976.
[19] For the petitioners Mr Minchin argued that the adoption of Mr Palmer's submission would mean that it would take 70 petitioners to call for a new election of an entire council for a city divided into seven wards where an election irregularity affected all wards e.g. through the conduct of a party contesting elections in all wards. Mr Minchin preferred to rely on the broad wording of s 93 which referred to "any candidate" and "any 10 electors". In his submission the electors in question were electors in these elections, i.e. the Auckland City Council elections.
[20] This argument might be said to beg the question as to whether there is one or seven elections for councillors and if so which election is referred to in s 93.
[21] However Mr Minchin also submitted that councillors, although elected from a ward, are elected to the Auckland City Council and once elected determine matters affecting the whole city. Therefore, he submitted, all persons in Auckland City have an interest in the way in which elections are conducted in each ward and should therefore be eligible as "electors" to sign a petition.
[22] This last point is undoubtedly correct, but again begs the question as to how many petitioners are required.
[23] Mr Collinge supported Mr Palmer's argument on the grounds that if the position were otherwise it would open the way for "busy bodies or meddlers" to bring about an inquiry into the election of candidates who do not represent them and possibly on local issues that do not affect them.
[24] While initially attracted to Mr Minchin's argument I have come to the conclusion that the logic of Mr Palmer's analysis is undeniable and indeed the result is not without merit either. If seven new elections are required to be held for Auckland City, it is not unreasonable to ask that 70 persons are prepared to sign petitions (10 in each ward) calling for such an outcome. It is also appropriate, in my view, that the 10 electors needed for a petition should be persons entitled to vote in the ward where the election is challenged - just as it is appropriate (in my view) that a single candidate able to call for a judicial inquiry under s 93 is a candidate in the ward in question. Indeed, looked at from the point of view of candidates rather than electors, Mr Palmer's argument becomes even stronger. It would be very odd, to say the least, if a single candidate in say the Hobson Ward could demand an inquiry into the election of a candidate in the Avondale Roskill Ward.
[25] My conclusion is that the jurisdictional point is well founded and the petition must be dismissed on the grounds that it has not been signed by 10 electors.
[261 In case I am wrong in that conclusion I go on to consider the petition on its merits.
4. ONUS AND STANDARD OF PROOF
[27] It was accepted by the petitioners that the onus or responsibility of making out the grounds of the petition lay upon them.
[28] What was not so clear however was the appropriate standard of proof. For the first respondents. Mr Collinge accepted that the civil standard of proof applied to the hearing of electoral petitions. Mr Minchin made no submissions on the subject. Mr Palmer argued that the standard was one of proof beyond reasonable doubt, relying on a decision of a full bench of the High Court in Re Wairarapa Election Petition [ 1988]2 NZLR 74, 115:
"This raises a question of the classification of the offence created by the statute [Electoral Act 1956]. We use the word "offence" advisedly because, although this is not a criminal proceeding, for which provision is made separately in the Act for trial on indictment, it could not be right that some different classification or standard should apply to the finding of guilt of corrupt practice by an Electoral Court on an electoral petition. We must apply the same principles in this hearing on this charge as would be applied in a trial on indictment charging the same matters. "
[29] To put the matter in context however, it must be noted that in that case there was an allegation of corrupt practice relating to excessive election expenses. Such corrupt practice if proved was an offence under s 139 of the 1956 Act and the Court was obviously concerned with the possibility of different outcomes being reached in the hearing of the petition and in any trial upon indictment for corrupt practice.
[30] The High Court does not appear to have considered the decision of the High Court of the Cook Islands in Re Mitiaro Election Petition [1979] 1 NZLR S1, a decision of Donne CJ. In that case an election in the Cook Islands was challenged on the grounds of "treating" -i.e. corruptly providing food for the electors for the purpose of procuring election to the Legislative Assembly. The election in question was declared void and a by-election was ordered. At page S7 of the report the following passage is to be found:
"As to the standard of proof required in proceedings such as these I am satisfied it is as submitted by Mr Temm namely, on the balance of probabilities. These proceedings are civil and while the Court is concerned with the allegation of treating which is an offence under the Electoral Act, the standard of proof is still that which applies to civil cases. However, as was stated in Hornal v Neuberger Products Lid [1957]1 QB 247; [1956] 3 All ER 970 the standard of proof required in circumstances such as these is high. It is put this way in the Hornal case:
“-- the standard of proof depends on the nature of the issue. The more
serious the allegation the higher the degree of probability that is required:
but it need not, in a civil case, reach the very high standard required by the
criminal law" (ibid, 258; 9 73). "
[31] There does not appear to have been any dispute about the standard of proof in that case, and it is noted that three of the counsel appearing therein (P B Temm QC, B H Giles and D A R Williams, as they then were) subsequently became Judges of the High Court of New Zealand.
[32] I do not believe that the decision of the High Court in Re Wairarapa Election Petition should be read as laying down a general rule applying to all election petition hearings. The Court was dealing with a serious charge of corrupt practice. The decision itself does not indicate that argument had even been directed to the question of the standard of proof as such; the point under consideration in the judgment was rather the question of the classification of the offence in terms of a mens rea element. (It was decided that mens rea was not required to be proved but the defendant could escape liability by showing an absence of fault - in line with Civil Aviation Department v MacKenzie [19831 NZLR 78, and Millar v Ministry of Transport [1986] 1 NZLR 660.)
[33] In fact many of the irregularities that might justify (e.g.) a re-count of votes under s 97(1)(b) might be quite inadvertent lapses on the part of officials which do not constitute an offence of any sort. It is the task of the District Court Judge presiding over the inquiry to determine whether, as a result of any such irregularity that materially affected the result of the election, that election is void, or whether any candidate was elected (s 98). In many cases no criminal charges may be laid.
[34] In my respectful view the approach adopted by Donne CJ in the Mitiaro decision is the appropriate one. If petitioners are able to prove irregularities on the balance of probabilities, but not to the criminal standard of proof beyond reasonable doubt, and the judge making the inquiry is therefore powerless to interfere with the result of the election, this would not encourage confidence in the electoral process
and would appear to be inconsistent with the statutory principle to be found in
s 4(1), namely:"(c) public confidence, and public understanding of local electoral processes ... "
[35] Further, and although this is only a small indication, I note that s 97(1)(a) confers upon the District Court Judge conducting the inquiry
"... all the powers of citing parties, compelling evidence, and maintaining order that the Judge would have in the Judge's ordinary civil jurisdiction ".
The Act is silent as to the standard of proof but it may be relevant that it is the civil jurisdiction that is used to define the powers given in that provision.
[36] Finally, I note that the Mitiaro decision recognises that "the more serious the allegation the higher the degree of probability that is required". Thus where fraud is alleged the judge is entitled to require a high standard of proof, although not reaching the standard of proof beyond reasonable doubt. In this way the integrity of the electoral process can be protected while recognising that a different result could (at least, in theory) ensue in the event of a criminal prosecution of any individual.
[37] In this case I accordingly apply the civil standard of proof on the balance of probabilities but conclude that a higher level of probability is required for the allegations against the first respondents (where fraud is alleged) than for the allegations against the second respondent (failure to investigate or act on complaints).
5. FINDINGS IN RELATION TO FIRST RESPONDENTS
[38] The essence of the allegations against the first respondents is fraudulent misrepresentation. The portions of s 127 underlined above (paragraph 10) indicate that fraud is alleged in order to establish an offence of "undue influence".
[39] While the section read literally might be taken to mean that the fraud induces any elector "to vote or refrain from voting" at all, Mr Collinge accepted that it is enough to show an inducement "to vote or refrain from voting" in a particular manner - i.e. for or against a particular candidate. In my view that concession was very properly made. The principle of "protection of the freedom of choice of voters" contained within s 4(1)(c) must be taken to mean a freedom as to how a vote is exercised and not just whether a vote is exercised.
[40] The question therefore is whether the first respondents or any of them by fraudulent means induced any elector either to vote or refrain from voting, either at all or in a particular way. My conclusion is that the petitioners have not proved any such irregularity. My reasons are as follows:
1. The petition unfairly takes excerpts from the ACRN philosophy and policy principles out of context. The reference to "service provision" being "contracted out as much as possible" is a very general reference, and the policy statement about looking forward to a public-private operating partnership in the long term ("5+ years") is one of five policy principles of which the first two are as follows:
"[i] Pipes and reticulation assets must be publicly owned.
[ii] The existing "LATE Metrowater, should be retained."
[41] The evidence established that Metrowater is a local authority trading enterprise or corporation wholly owned by Auckland City Council. It is therefore in public ownership, and a policy of retaining Metrowater is inconsistent with a policy of privatisation.
2. Likewise an insistence on pipes and reticulation assets being publicly owned is inconsistent with the concept of privatisation at least as it is understood by academics and others who make a study of public sector administration. In this regard I accept the undisputed evidence of Mr Ogilvie who has spent seven years studying public administration, first of all for his MA (Hons) Degree in Political Studies and secondly in his current studies for a Graduate Diploma in Business Administration. Mr Ogilvie's evidence was that in such circles the term "privatisation" refers to the sale of assets or a majority interest therein into private ownership. "Privatisation in the New Zealand context means the sale of a controlling interest (typically 100%) in a State or Local Body owned asset to the private sector". He contrasted this with "contracting out", where the private sector contracts to operate or manage for a limited period assets which remain in public ownership. The Papakura water system was said to be an example.
[42] No evidence other than that from Mr Ogilvie was called to show the usual meaning of the term "privatisation" in the context of public sector administration, and Mr Ogilvie was not shaken in any way by cross-examination on that topic.
[43] However, I accept that ordinary members of the public may not be familiar with the terminology used by academics and others involved in public sector administration and I must therefore ask whether the term might have some other meaning in common parlance. The New Shorter Oxford Dictionary contains the following meanings of "privatise":
"1. Make private as opposed to public; especially (of the State) assign a
business, service, etc.) to private as distinct from State control or ownership;
de-nationalise. "Likewise the Collins Dictionary (1997) makes it clear that privatisation is the sale (by a State owned company) to individuals or a private company. These definitions are close to Mr Ogilvie's definition.
[44] In any event, given that the ACRN candidates were committed to retain "pipes and reticulation assets" in public ownership and to retain Metrowater, I do not see any way in which a statement by Mr Ogilvie that "Auckland Now does not have a privatisation agenda [and] nor does C & R” - or by the candidates signing the election hand bill to the effect that they would "never support privatisation of water and sewerage assets" - can be said to be a misrepresentation, let alone a fraudulent misrepresentation. In short, the allegation that the first respondents pledged to support future privatisation is not proved.
[45] I have considered whether the retention of pipe lines and other reticulation assets but the transfer of management of the water supply system to private ownership might be thought to be "privatisation". Mr Chatfield very properly accepted as an accountant that pipelines and other reticulation equipment are not the only things entitled to be called "assets". They are fixed assets as distinct from intangible assets such as the right to an income stream. However I accept Mr Collinge's submission that even if there was a transfer of such an intangible asset to private enterprise (as in the Papakura example), it is not a permanent alienation of that asset from the public (as it would almost certainly be for a term of years only) and is therefore not a transfer of assets.
[46] At most Mr Minchin was able to argue with some possible credibility that there may be some confusion in the public mind about exactly what privatisation comprises. In the view of Mr Minchin's clients, there are several different types of privatisation, which would include a complete transfer of ownership, or a transfer of
management only of assets that remain in public ownership. It was thought that under the guise of this confusion the ACRN candidates may have been secretly supporting something like the so-called "public-private" model to be found at Papakura. In fact this was denied strongly by Mr Hay who said that he did not support such a model and he doubted that the other respondents did either.
[47] Even if there is some confusion in the public mind as to the term "privatisation", it is a very different thing to say that candidates have fraudulently induced electors to vote in a particular way. Even if a candidate took advantage of such confusion, knowing that different interpretations might be put on the meaning of his or her words, I do not see how that can be regarded as any sort of electoral irregularity or misrepresentation. Indeed some might say that it is of the very nature of politics that candidates will promote their policies in this way, unrestrained by any political equivalent of the "misleading or deceptive conduct" provisions of the Fair Trading Act relating to commerce.
[48] I do not suggest that the ACRN candidates have deliberately taken advantage of any such ambiguities but the point to be made is that even if they had, it could not be regarded as an electoral offence or irregularity.
[49] There is also a constitutional point to be made here. In Re v Election for Mayor of the Far North District [1993] DCR 769, Moore DCJ held that "irregularity" in the context of the Local Elections and Polls Act 1976 was confined to matters which were not in conformity with the law prescribing and regulating the electoral process and that it was not sufficient to raise some non-conformity with moral principle.
[50] That approach was followed by Adeane DCJ in Re Taradale Ward Election Petition [1994] DCR 221 where the alleged irregularity was the publication of defamatory statements about the petitioner by other candidates and a local newspaper. This was held not to be an irregularity within the meaning of the 1976 Act. At p 224 the following passage is found:
"In submitting for a broad and moralistic interpretation of "irregularity" counsel
for the petitioner colourfully suggested that to construe otherwise would risk
"squashing the delicate flower of democracy".I accept that constitutional issues arise in the course of defining the scope of
justiciable irregularity, but they lie elsewhere than in generalised notions of the
preservation of democracy.specifically, they arise within the concept of separation of powers which just as
firmly proscribes judicial involvement in the political process as does it prohibit
political involvement in the business of the Courts.The constitutional aspect favours a narrow construction. The Court should assume
no greater power to review decisions made in the democratic ballot-box than is
absolutely necessary to correct specific, manifest and material errors in electoral
process. The Local Elections and Polls Act 1976 cannot be construed as conferring
on the Court the right to revise the results of democratic election on broad moral
or philosophical grounds ".
I agree. The Courts are not an appropriate guardian of the conscience of political candidates.
[51] Likewise I consider that the sort of matter complained of here is not something that judges should be enquiring into. Even if the candidates had made electoral promises which were inconsistent with loyalty pledges made to their party, that could be relevant in one of two ways. First it might show poor character on the part of the candidates. In that case the remedy is for others to expose the alleged deficiency of the candidate to the public and leave it to the public to make its decision at the ballot box. The second possible relevance might be the likelihood of the candidate breaking his/her electoral promise. However that matter is also one to be judged at the ballot box - at the following election, by which time the voters will have been able to see whether the election promise was broken or not. It should not be judged in advance by a Court.
[52] Evidence was given of a media statement made by Mr Minchin in which he said that politicians should be more accountable and that this petition would encourage politicians to be more honest and deter them from saying one thing and doing another. If Parliament by enacting the Local Electoral Act 2001 had intended to allow courts to preside over such matters as the honesty or integrity of politicians and their political promises, then it would have needed very clear words indeed to achieve that end because it would be inconsistent with the traditional separation of powers between the political process and the judicial process.
[53] Finally in this regard I comment that if the petitioners' approach were to be accepted, the courts would likely be inundated with electoral petitions after elections and the object of certainty as to outcome would be imperilled.
FINDINGS IN RELATION TO SECOND RESPONDENT
[54] I can deal more briefly with these allegations. Mr Ofsoske gave evidence that he was the Electoral Officer (formerly known as the Returning Officer) for Auckland City Council for the elections in question and for many before that. I accept his evidence that when approached by Miss Bright on 24 September 2001 about this matter it was not clear at all to him that she was alleging any offence and this was just one of many complaints per day that was received about the conduct of the election. He advised her to take her concerns to the media and that while he was not a policeman, if she believed any offence had been committed, she should refer the matter to the police. I accept his evidence that it is unlikely that she used the term "fraud" because if she had done so it would have rung an alarm bell with him. Rather her focus was on trying to get him to deal directly with ACRN about the behaviour in question.
[55] In the light of the findings 1 have already made there was no offence to be investigated but in any event, I find that no allegation of an offence was made.
[56] The letter dated 4 October 2001 from the Water Pressure Group signed by Miss Bright and received by Mr Ofsoske asked him to take certain steps which he felt unable to do (such as extending the election date). Again it was not clear that a written complaint was being made about the commission of an offence - although the letter did refer in another context to "corrupt practice, i.e. unduly influencing voters by making a deliberately false statement of fact". The context there was a request to disqualify the ACRN candidate, Mr Ogilvie if a certain advertisement did not appear retracting his statement.
[57] In any event Mr Ofsoske's view of the matter was that, at worst, what was complained of was that the candidates' public position was not the same as their private position (although even then, the difference appeared to depend upon the definition of "privatisation"), and it was his view that it did not amount to an offence. He therefore saw no need to report the matter to the police.
[58] Out of an abundance for caution Mr Ofsoske wrote back to Miss Bright a few days later (9 October) seeking clarification as to whether she believed an offence had been committed, in which case the matter would be forwarded on to the police for investigation. No reply was received to that letter.
[59] In those circumstances and given the findings I have already made I agree
with his responses.[60] I note finally that Miss Bright did go directly to the police herself and laid a complaint which they refused to act upon as they believed that no offence had been committed.
[61] CONCLUSION
[62] Because of the absence of the required number of petitioners the petition was not properly brought and must be dismissed on jurisdictional grounds. Even if that had not been the case the petition would have been dismissed upon the grounds that no irregularity had been made out.
[63] I will now hear counsel as to costs.
(FWM McElrea)
District Court Judge
Addendum
Upon hearing submissions as to costs I realised that I have not dealt with Mr Palmer's arugment concerning lack of proof of material effect. I uphold his argument as will be seen in my decision on costs.
Brief of evidence - The Water Pressure Group
Brief of evidence - Maurice Chatfield
Brief of evidence - David Hay
Brief of evidence - Angus Ogilvie
Judgement from Judge FWM McElrea