LogFAQs > #876721190

Blundell v Vardon

Blundell v Vardon, was the first of three decisions of the High Court of Australia concerning the 1906 Election for Senators for South Australia. Sitting as the Court of Disputed Returns, Barton J held that the election of Anti-Socialist Party candidate Joseph Vardon as the third senator for South Australia was void due to irregularities in the way the returning officers marked some votes. The Parliament of South Australia appointed James O'Loghlin. Vardon sought to have the High Court compel the Governor of South Australia to hold a supplementary election, however the High Court held in R v Governor of South Australia; Ex parte Vardon that it had no power to do so. Vardon then petitioned the Senate seeking to remove O'Loghlin and rather than decide the issue, the Senate referred the matter to the High Court. The High Court held in Vardon v O'Loghlin that O'Loghlin had been invalidly appointed and ordered a supplementary election. Vardon and O'Loghlin both contested the supplementary election, with Vardon winning with 54% of the vote.

The 1906 election
On 12 December 1906 there was an election in South Australia to choose three Senators, to sit from 1 January 1907 to 31 December 1912. The method of Senate voting at the time, referred to as block voting, set out in section 150 and 158 of the Commonwealth Electoral Act 1902, to make a cross next to the name of the candidate. As there were three Senators to be elected, each voter was required to mark three candidates, so that the total formal votes is divisible by three to show the number of voters. On this occasion in South Australia the block voting system did not result in the usual landslide majority for one party, with support divided among the various candidates.

After the first count, Crosby had a majority of just 14 votes. The electoral officer, at the request of Vardon, directed a recount, after which Vardon had a majority of 34 votes and the candidates declared to be elected on 8 January 1907 were Sir Josiah Symon, Russell, and Vardon.

The political context in the Senate was that the minority Protectionist government, with the support of Labour, had 18 of the 36 seats while the Anti-Socialist had 16 seats, with the inclusion of Vardon. Thus the government could only expect a majority of votes, with the support of the Labour leaning independent from Victoria, William Trenwith, or the conservative Senator from Tasmania, Henry Dobson, who was elected as part of the Tariff Reform party.

Blundell v Vardon
Blundell filed a petition in the High Court, seeking a declaration that the election of Vardon was void and that either Crosby or himself should be declared to have been elected. The petition set out various grounds of irregularity said to have occurred in relation to the election. The petition initially sought to challenge the validity of the election of all Senators, including Senator Sir Josiah Symon and Blundell's party colleague Senator Russell, however he was given leave to limit the petition to only challenge the election of Vardon.

The Court appointed the Deputy-Marshall to conduct a recount. During the recount, it was thought that the 9,000 votes cast in the Division of Angas had been accidentally destroyed. The missing votes were around 12.8% of the votes cast in the election. It would appear however that these votes were later found, although it is unknown what, if any, effect these missing votes would have had on the recount. The Deputy Marshall identified 828 votes of doubtful formality in several classes. The question for the court was whether the irregularities affected the result of the election. Barton J followed Chanter v Blackwood[18] that focused on the disputed votes and the size of the majority, hence the attention in the judgement to the few hundred irregular votes and not the 9,000 missing votes.

Barton J went through each class, accepting most as valid votes, with Vardon in third place in front of Crosby by just two votes. 21 votes had rightfully been rejected because the presiding officer had initialled the votes in a place where the initials could not be seen on the folded ballot paper. Those 21 did not affect the result as 2 were for Vardon and none for Crosby. There were 185 votes that were rejected because they had not been initialled. Had these votes been valid, Vardon's majority of 2 would have been a minority of 4. Barton J held that the missing 9,000 votes were not shown to involve errors that would have been sufficient to affect the seats of Senator Sir Josiah Symon and Senator Russell. The identified errors by Returning Officers did however affected the outcome of the election for the third seat. On 1 June 1907 Barton J declared the election of Vardon to have been absolutely void, by reference to s205(iii) of the Commonwealth Electoral Act 1902.

Appointment of O'Loghlin