Bradbery v Hay

Judgment 1On 27 June 2011 I delivered judgment dismissing an Amended Petition brought by Mr Gordon Bradbery under s 155 of the Parliamentary Electorates and Elections Act 1912 ("the Act") ( Bradbery v Hay [2011] NSWSC 623 - "the principal judgment"). An issue now arises as to the costs of the proceedings. 2The Amended Petition concerned the election of Ms Noreen Hay, who represents the seat of Wollongong, in the general election for the State of NSW that took place on 26 March 2011. The Amended Petition named Ms Hay as first respondent, and the Electoral Commissioner of NSW as the second respondent. The reasons for dismissal were two irremediable defects in the Amended Petition: one, the failure to state, as is mandatorily required by s 157(d) of the Act, the occupations of two attesting witnesses; two, the failure to state, as is mandatorily required by s 157(a), the facts replied upon to invalidate the election. I observed that, while the second requirement is of substance, the first is of little substance and technical in nature. I also observed, on the basis of established authority, that no amendment, at least after 40 days after the return of the writ, is possible ([28]). The 40 day limitation is a consequence of s 157(e) of the Act which requires that a petition be filed within 40 of the return of the writ. 3A power to award costs is conferred by s 161(1)(ix) and s 172 of the Act which provides: "The court may award costs against an unsuccessful party to the petition and may in its discretion recommend that costs be paid by the Crown." 4Ms Hay seeks an order that her costs be paid. Such an order can only be made against Mr Bradbery; the power of the Court with respect to the Crown is limited to making a recommendation under s 172. 5Mr Bradbery resists the application and seeks, in the event that that resistance fails, a recommendation that costs be paid by the Crown. 6The first question, therefore, is whether an order for costs ought be made. 7Counsel who appeared for Mr Bradbery urged that no such order should be made. She argued that the proceedings had been undertaken by Mr Bradbery's legal representatives on a pro bono basis as a result of what had been asserted to be "a very significant irregularity" in respect of a number of how to vote cards in the electorate. She asserted that Mr Bradbery was unable to afford representation, and went on to say that if costs were ordered against him, that would mean that the costs were to be paid by the solicitor and that, in turn, would have "a very substantial impact" upon the willingness of other practitioners to undertake pro bono cases. 8It is not clear to me why, if costs are ordered against Mr Bradbery, it would fall to the solicitor to become liable, and this was not spelled out. 9I am prepared to accept that the legal representatives undertook the representation of Mr Bradbery on a pro bono basis (properly so called, that is, "in the public interest", as distinct from the more common use of the term meaning "for no charge"). The proper conduct of elections, and the exposure of any untoward activities or irregularities in the process is clearly, in my view, a matter of significant public interest. 10On the other hand, Ms Hay has been put to expense in defending the proceedings, and defending her own election and there is no good reason, the proceedings having failed, why she should be out of pocket in respect of the petition. That is particularly so in the absence of any evidence that she was personally involved in any impropriety or irregularity in the election. 11I have, somewhat reluctantly, come to the conclusion that an order for costs ought to be made. 12The next question, therefore, is whether a recommendation under s 172 ought be made. There is, of course, no guarantee that if such a recommendation were made, the Crown would in fact pay the costs. 13The Electoral Commissioner, who was a party to the proceedings, seeks no order as to the payment of his costs, and provided me with very helpful written submissions as to the manner in, and the principles upon, which s 172 (and its counterparts in other States and the Commonwealth) have been applied. It is appropriate here to note that the power under the comparable Commonwealth legislation (the Commonwealth Electoral Act 1918 (Cth), in s 360(4) is not confined to making a recommendation: it permits a court to make an order that the Commonwealth pay the costs. That extends to proceedings to which the Commonwealth is not a party. However, the principles applicable to the exercise of that power, in my opinion, give guidance as to the exercise of the power under s 172. 14The history of petitions challenging elections shows a surprising uniformity - almost invariably, so far as the authorities to which I was referred go, an order or recommendation has been made, even where a petition has been unsuccessful, and including where it has failed, without determination on the merits, because of defects in the petition itself. However, the circumstances that yielded that result vary quite widely. 15In Nile v Wood [1988] HCA 30; 167 CLR 133, a petition was purportedly brought under the Commonwealth Electoral Act but was dismissed with costs because of incurable defects in the petition. 16Subsequently, an application was made for an order under s 360(4) that the Commonwealth pay the costs. Brennan J (as he then was) could find "no warrant" for making such an order and would have dismissed the application. However, Deane and Toohey JJ took a different view. They considered that the power: "... should be exercised when considerations of what is fair and just support, on balance, an order indemnifying a party against costs which the party may have incurred in connexion with an electoral petition." (p 143) 17Their Honours declined to order that the Commonwealth pay the petitioner's own costs of the proceedings, but ordered that the costs she was ordered to pay the respondent be paid by the Commonwealth. This was, however, an unusual case: although the petition in that case was dismissed for the reasons stated, it was subsequently discovered, and established, that the respondent was, for reasons apparently not stated in the petition, not qualified to be elected as a senator. Their Honours therefore concluded that the interests of justice would be served by exercising the power given by s 360(4). 18Hudson v Lee [1993] HCA 58; 177 CLR 627 also involved proceedings under the Commonwealth Electoral Act . The petition in that case was based upon a misconception concerning the grounds on which an election could be declared invalid or void. The petitioner appeared in person. Gaudron J noted that the petitioner was an invalid pensioner. She took a pragmatic view, observing: "A commendable feature of the Act is that very few impediments are placed in the way of a person who wishes to bring proceedings challenging an election in the Court of Disputed Returns. Under s 356 a petitioner must deposit $100 as security for costs. That dollar amount reflects the change to decimal currency but, otherwise, the deposit required has not been altered since 1902. General accessibility is also maintained by s 370 which provides that no party to a petition is to be represented by counsel or a solicitor, "except by consent of all parties, or by leave of the Court'. When regard is had to ss 356 and 370, it is to be expected that there will be cases where, as here, a person who has been declared duly elected is faced with a petition raising matters which reflect on him or her personally, but which are outside the scope of the Act. The only sanction against a petition of that kind is the power to order costs against the petitioner. However, that course is not likely to assist or to appeal to an elected representative if, as here, the petitioner is a person of limited means who has taken a course which, without the benefit of legal advice, he might reasonably regard as open to him. In these circumstances, it is, in my view, fair and just that the Commonwealth pay the respondent's costs of the petition and of this application." (internal references omitted) 19Dunbier v Mallam [1971] 2 NSWLR 169 involved a petition brought in respect of a general election for the NSW Parliament. Hardy J dismissed the petition and ordered that the petitioner pay the costs of the first respondent. Subsequently, he recommended that the costs of the petitioner and those he had been ordered to pay to the successful respondent be paid by the Crown. He gave no reasons for this order. However, examination of the reasons for dismissal of the petition shows that it was based upon errors made by the returning officers, and the consequences of those errors, that were held to invalidate a number of votes otherwise apparently valid. In that case, the errors might be seen as technical - they involved the returning officer initialling the front, rather than the back (as required) of the ballot papers. In other words, it was errors on the part of state election officials that created the issue the subject of the petition. 20Scott v Martin (1988) 14 NSWLR 663 also involved a petition disputing the validity of a state election in NSW. The allegation was of bribery in the course of an election by the distribution of public money to causes perceived to be worthy in the electorate. Needham J accepted that the actions of the respondent were not corrupt in the ordinarily accepted meaning of that word and that the use of the money by the respondent had been authorised by and participated in by ministers of the Crown. In those circumstances he recommended that the costs of both parties be paid by the Crown. 21Fels v Davies [2009] WASC 138 (S) was a decision on costs following dismissal of a petition disputing a WA state election ( Fels v Davies [2009] WASC 138, to which reference has been made in the principal judgment). The reason for the dismissal of the petition was the failure of the petition to state the occupation of the attesting witnesses, which is one of the defects in the petition the subject of the present judgment. There, a form of petition had been provided which failed to make provision for the occupation of the witnesses. Martin CJ accepted that the absence of such provision contributed to the failure of the petitioner to lodge a petition that complied with the requirements of the legislation. He rejected an argument advanced on behalf of the State that it would be reasonable to distinguish between two grounds on which the petition was based. 22His Honour made a recommendation under the WA equivalent of s 172. 23In two cases, each under the Commonwealth Electoral Act , orders were refused. Free v Kelly [1996] HCA 42; 185 CLR 296 also involved a petition under the Commonwealth Electoral Act . It was accepted that the candidate declared elected was incapable of holding office because she held an office of profit under the Crown ( Constitution , s 44(iv)). Brennan CJ declared the election absolutely void, and ordered that the petitioner recover a proportion of the costs incurred in the proceedings. He declined to make an order under s 360(4) of the Commonwealth Electoral Act . He said that the argument advanced was "far from persuasive" and that part of the argument was already foreclosed by an earlier decision of the court. 24Similarly, in Green v Bradbury (No 2) [2011] FCA 469, Emmett J declined to make such an order. He posed a relevant question as: "8. However, the question is not whether there is an issue of general public importance identified by a proceeding, but whether the conduct of the proceeding results in a public benefit associated with the grounds sought to be argued." He considered that no such public benefit arose. 25In the present case I am satisfied that the defects in the Amended Petition were, at least in part, the result of the pace with which such petitions have to be prepared having regard to the time limits imposed by the Act. There are obvious and good reasons of public interest for the Act to impose those tight time limits and to impose conditions, which must be strictly complied with, on what is to be contained in a petition under s 155. These reasons of public interest include the need for finality in elections, and that the results be confirmed, in order that the business of government can proceed in an orderly fashion, and, further, so that the citizens of an electorate have certainty as to the identity of their elected representative. 26I find it difficult to see how that public interest extends to the nomination of the occupation of attesting witnesses to a petition, but, as I explained in the principal judgment, that that is an essential requirement is well established by authority from which I do not feel free to depart. 27Forty days is a remarkably short time in which to require a petitioner to marshal all of the facts on which the petition is to be based. As was asserted in this case, the petitioner had available some information which he had little opportunity to verify until the processes of the law permitted compulsory disclosure, by parties other than the Electoral Commissioner. I was informed that much of the material which would have been tendered had the petition proceeded was only available as a result of the issue of subpoenas, and was not available until shortly before or after the 40 days had expired. 28As I have indicated, there are good reasons why this should be so. However, there is a price to pay for the time limits. 29The evidence filed in support of a petition, if it had been dealt with on its merits, raise real issues concerning the propriety of some practices in the election process. That being the case, I have concluded that this is an appropriate case in which to make the recommendation that the Crown pay the costs. 30The orders I make are: (i) The petitioner is to pay the costs of the first respondent incurred in respect of the petition; (ii) Recommend that the costs be paid by the Crown.