ELECTION PETITION (BRADFIELD) – S100/2025

Form 22

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF DISPUTED RETURNS 

SYDNEY REGISTRY

BETWEEN:                                                                                                    GISELE KAPTERIAN
                                                                                                                                                      Petitioner

   and

                                                                                                                               NICOLETTE BOELE             

                                                                                                                                        First respondent

                                                                     THE AUSTRALIAN ELECTORAL COMMISSION 

                                                                                                                            Second respondent

ELECTION PETITION

This petition concerns the election to the House of Representatives for the electoral division of Bradfield, New South Wales, held on 3 May 2025.

RETURN OF WRIT

The writ for the election was returned on 12 June 2025.

ENTITLEMENT TO FILE THIS PETITION

The petitioner is entitled to file this petition because she was a candidate at the election in dispute.

STATEMENT OF FACTS

1.       On 3 May 2025, there was a federal election.  As a part of the federal election, there was an election to the House of Representatives for the electoral division of Bradfield (the Election).
2.       There were 8 candidates in the Election, including the petitioner and the first respondent.
3.       From shortly after 6.00 pm on 3 May 2025, to 23 May 2025, the second respondent conducted a first count of the votes cast in the Election.
4.       At the conclusion of the full distribution of preferences on the first count, the petitioner led the first respondent by a margin of 8 votes.
5.       The second respondent’s Divisional Returning Officer for Bradfield determined that there would be a formal recount.
6.       From shortly after 9.00 am on 26 May 2025, to 4 June 2025, the second respondent conducted a formal recount of the votes cast in the Election.
7.       From around midday on 26 May 2025, to 4 June 2025, Ms Rebecca Main, the Australian Electoral Officer for New South Wales (the AEO), made determinations in respect of 795 reserved ballot-papers (AEO determinations). 
8.       At the conclusion of the formal recount, the first respondent was declared the successful Election candidate, with a margin of 26 votes.
9.       Within the AEO determinations the AEO wrongly rejected at least 56 of the reserved ballot-papers, where those ballot-papers indicated a preference, by the voter, for the petitioner ahead of the first respondent. In particular:
   1.        The AEO rejected:
      1.       at least 1 ballot-paper on the basis that she was not satisfied that the figure 1 in one square was distinguishable from the figure in another square;
      2.       at least 3 ballot-papers on the basis that she was not satisfied that the figure 2 in one square was distinguishable from the figure in another square;
      3.       at least 3 ballot-papers on the basis that she was not satisfied that the figure 3 in one square was distinguishable from the figure in another square;
      4.       at least 3 ballot-papers on the basis that she was not satisfied that the figure 4 in one square was distinguishable from the figure in another square;
      5.       at least 5 ballot-papers on the basis that she was not satisfied that the figure 5 in one square was distinguishable from the figure in another square;
      6.       at least 4 ballot-papers on the basis that she was not satisfied that the figure 6 in one square was distinguishable from the figure in another square;
      7.       at least 1 ballot-paper on the basis that she was not satisfied that the figure 7 in one square was distinguishable from the figure in another square; and
      8.       at least 2 ballot-papers on the basis that she was not satisfied that the figure 8 in one square was distinguishable from the figure in another square.

Each decision was made even though in each case the two figures were distinguishable, such that one of the figures was a different figure from 1 to 8; it was clear from the ballot-paper as a whole that the voter intended to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was not informal and should not have been rejected.

1.       The AEO rejected:
   1.       at least 4 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 1;
   2.       at least 3 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 2;
   3.       at least 3 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 3;
   4.       at least 8 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 4;
   5.       at least 5 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 5;
   6.       at least 2 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 6; and
   7.       at least 7 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 7.

Each decision was made even though in each case the figure in question was discernible and the remaining squares on the ballot-paper contained the remaining figures 1 to (at least) 7; it was clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure in question, and to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was not informal and should not have been rejected.

1.        The AEO rejected at least 2 ballot-papers on the basis that she was not satisfied that the mark in one square on the ballot-paper was discernible as the figure 8. This decision was made even though in each case the figure 8 was discernible and the remaining squares on the ballot-paper contained the remaining figures 1 to 7; it was clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure 8, and to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was not informal and should not have been rejected.

1.   Further or alternatively, within the AEO determinations the AEO wrongly admitted at least 95 of the reserved ballot-papers, where those ballot-papers indicated a preference, by the voter, for the first respondent ahead of the petitioner. In particular:
   1.        The AEO admitted:
      1.       at least 10 ballot-papers on the basis that she was satisfied that the figure 1 in one square was distinguishable from the figure in another square;
      2.       at least 9 ballot-papers on the basis that she was satisfied that the figure 2 in one square was distinguishable from the figure in another square;
      3.       at least 5 ballot-papers on the basis that she was satisfied that the figure 3 in one square was distinguishable from the figure in another square;
      4.       at least 2 ballot-papers on the basis that she was satisfied that the figure 4 in one square was distinguishable from the figure in another square;
      5.       at least 4 ballot-papers on the basis that she was satisfied that the figure 5 in one square was distinguishable from the figure in another square;
      6.       at least 10 ballot-papers on the basis that she was satisfied that the figure 6 in one square was distinguishable from the figure in another square;
      7.       at least 6 ballot-papers on the basis that she was satisfied that the figure 7 in one square was distinguishable from the figure in another square;
      8.       at least 3 ballot-papers on the basis that she was satisfied that the figure 8 in one square was distinguishable from the figure in another square;

Each decision was made even though in each case the two figures were not distinguishable; it was not clear from the ballot-paper as a whole that the voter intended to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was informal and should not have been admitted.

1.       The AEO admitted:
   1.       at least 5 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 1;
   2.       at least 3 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 2;
   3.       at least 2 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 3;
   4.       at least 8 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 4;
   5.       at least 8 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 5;
   6.       at least 6 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 6;
   7.       at least 6 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 7; and
   8.       at least 6 ballot-papers on the basis that she was satisfied that the mark in one square on the ballot-paper was not indiscernible as the figure 8.

Each decision was made even though in each case the figure in question was not discernible; it was not clear from the ballot-paper as a whole that the voter intended the mark in question to be the figure in question, and to indicate a first preference for 1 candidate and an order of preference for all remaining candidates. In each such case the ballot-paper was informal and should not have been admitted.

1.        The AEO admitted at least 2 ballot-papers despite the ballot-paper in each case having upon it a mark or writing (not authorised by the Act or the regulations to be put upon it) by which the voter could be identified. In each such case the ballot-paper was informal and should not have been admitted.

1.   In making the erroneous determinations referred to in paragraphs 9 and/or 10 above, the AEO contravened s 279B(7) of the Commonwealth Electoral Act 1918 (Cth) (the Act).
2.   In the premises:
   1.        illegal practices were committed in connexion with the Election, within the meaning of ss 352(1) and 360(3) of the Act;
   2.       the first respondent was not duly elected at the Election; and
   3.        the petitioner was duly elected at the Election.

RELIEF

1.     The petitioner asks the Court to declare:

1.       Pursuant to ss 360(1)(v) and (3) of the Act, that first respondent, who was returned as elected, was not duly elected to the House of Representatives for the electoral division of Bradfield.
2.       Pursuant to s 360(1)(vi) and (3) of the Act, that the petitioner was duly elected to the House of Representatives for the electoral division of Bradfield.

1.      The petitioner asks the Court to order, pursuant to s 360 of the Act, that the respondents, alternatively the Commonwealth, pay the petitioner’s costs of the petition.

Dated 15 July 2025

…….....................................

Gisele Kapterian, Petitioner

IN THE PRESENCE OF:

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Signed by Witness Signed by Witness

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Name of Witness Name of Witness

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Occupation of Witness Occupation of Witness

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Address of Witness Address of Witness

TO:

THE FIRST RESPONDENT

Ms Nicolette Boele

AND TO:

THE SECOND RESPONDENT
The Australian Electoral Commission

 

The petitioner is represented by Buchanan Rees Dispute Lawyers