The battle for Bradfield arrives in court – three months after the election

The news

The battle for Bradfield moves to the High Court on Friday for a directions hearing into Liberal candidate Gisele Kapterian’s challenge to the outcome of the May election in the northern Sydney seat.

The hearing will provide the first insight into how Kapterian’s challenge, in which she is disputing the validity of some 151 votes, will play out. Kapterian has asked the High Court, sitting as the Court of Disputed Returns, to overturn the result and declare her the winner.

How we got here

Bradfield, now the most marginal federal seat in the country, was a rollercoaster ride for Kapterian and her opponent teal Nicolette Boele from the moment the polls closed on May 3.

Boele, who also ran in 2022, was ahead on election night but Kapterian ultimately edged in front and won the first count by just eight votes. Under the Australian Electoral Commission’s rules, for any result where the margin is 100 votes or fewer, an automatic recount is ordered.

At the end of that recount, by which time most ballots had been counted seven times, Boele was ahead by 26 votes. She was declared the winner and has been sworn into parliament.

On July 15, about 10 weeks after the election, Kapterian lodged a petition with the High Court to challenge the result.

Boele could be liable for costs as she is named as the first respondent in the challenge, while the AEC is the second respondent.

What’s at stake

Kapterian has not asked the court to declare the result void, which would force Bradfield voters back to the polls for a byelection, but has instead asked that the court to overturn the result and declare her the Bradfield MP.

Boele, however, has already taken her seat in parliament and has given her inaugural speech, so if Kapterian’s challenge is successful, Boele would be removed as the MP for Bradfield.

Kapterian believes at least 56 ballot papers were wrongly rejected in the final recount of the ultra-marginal seat, while 95 were incorrectly allowed.

Kapterian has not seen the ballot papers, and her legal team will be provided with them once the AEC hands them to the court. However, her concerns were formed based on feedback and notes taken by scrutineers overseeing the final recount.

The NSW Liberals have agreed to provide Kapterian indemnity against costs in the event she loses the challenge, while Boele is seeking donations from her Bradfield supporters, although she has vowed to return them or pass them on to a nominated cause if she is not required to pay costs.

What they said

Kapterian: “The refs on the field have made a call, and we’re going to the video umpire. That’s all this is, it is a pure extension of the count.”

Boele: “We have absolute confidence in the work of the Australian Electoral Commission and in the integrity of its processes.”

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