Mr Antonio Mazzone, Managing Principal Solicitor of the Victorian Government Solicitor's Office.

1. By order dated 27 August 2007, I dismissed an application by Derek Balogh seeking to review the decision of the Municipal Electoral Tribunal which had in turn dismissed Mr Balogh's application to set aside the general election for the Grasslands Ward in the Brimbank City Council election conducted on 26 November 2005. The Victorian Electoral Commission, which had defended the application, subsequently sought costs.
2. Both the Victorian Electoral Commission and the applicant made extensive written submissions in relation to the issue of costs, and a hearing in relation to the matter was heard on 14 December 2007. After that costs hearing, I indicated that I intended to make an award of costs against the applicant in favour of the Victorian Electoral Commission, but I reserved on the quantum of costs. I also gave brief oral reasons which may be summarised as follows.
3. In this matter, there are a number of competing principles which apply to a consideration of costs, and these stem principally from s 109 of the Victorian Civil and Administrative Tribunal Act 1998. First and foremost, is the general principle that success in the action does not of itself justify an award of costs. The matters in this case that might militate against an award of costs include the fact that there is occasional benefit (in a public interests sense, and as part of the democratic processes of local government elections) in having disputes canvassed before a tribunal. In the present matter, the issue of whether the conduct of some candidates was intended to imply party endorsement was, on is face, a potentially important matter, and the applicant's case was not completely untenable on the facts in this regard. Moreover, the applicant had come before the Tribunal with some expectation of a successful finding on the facts, given an earlier Tribunal decision in Muscat v Municipal Electoral Tribunal [2001] VCAT 1847 concerning an earlier Brimbank City Council election. However, it must be noted that the decision in that case did not void an election notwithstanding some finding of inappropriate conduct. I am satisfied also that Mr Balogh, although perhaps misguided in his views, was not acting vexatiously in the proceeding that he brought.
4. However, on the other hand, there are a number of matters which militate in favour of an award of costs. The interlocutory processes were extensive, and costs were reserved on a number of occasions given the applicant's lack of readiness for a full hearing. As I noted in my primary decision, the application became somewhat of a moveable feast during these interlocutory processes. More particularly, however, is my finding that the applicant's proceeding was ultimately doomed to failure, on the basis that it was untenable in law having regard to the decision of the High Court in Evans v Crichton-Browne [1981] HCA 14; (1981) 147 CLR 169. The Municipal Electoral Tribunal, at first instance, had decided against Mr Balogh's application based on this clear authority, and my decision also followed this authority. At the hearing, Mr Balogh had not produced any evidence that suggested voters had been misled "in the casting of their vote" as that term was carefully explained by the High Court. This Tribunal is of course bound by that Court authority, as the applicant is well aware or ought to have been aware. The applicant acknowledged he had had the benefit of legal advice on this issue.
5. As Mr Mazzone for the Victorian Electoral Commission noted, the VEC had not sought costs as a result of that initial MET decision, on public policy grounds. However, having had his day before that Tribunal, Mr Balogh, at his risk, still sought to take the matter further to this Tribunal without any real prospect of success.
6. In the circumstances, and having regard to s 109 of the Victorian Civil and Administrative Tribunal Act 1998, I believe that an award of costs is appropriate - primarily based on my finding that the application was untenable in law, and that this ought to have been properly known to the applicant as a result of the initial MET decision.
7. Mr Mazzone on behalf of the Victorian Electoral Commission sought costs of $37,279.59 exclusive of GST. In the circumstances of this case, and given the considerations of s 109 and the balancing of competing principles outlined above, I have determined that it is inappropriate to award the whole of this sum against Mr Balogh. In terms of fairness (which s 109(3) requires me to consider), I believe it is appropriate that he pay something approaching 40% of those costs, and I have thus awarded the sum of $16,000.00 inclusive of GST. I had indicated to Mr Balogh at the hearing that I anticipated a costs award in the range of $15,000.00 to $25,000.00, and my ultimate award falls at the lower end of the scale.
8. Although costs would ordinarily be payable within 30 days, given the time and the sum involved, I am prepared to allow 90 days for payment.