Garbett v Liu [2020] FCAFC 91 | Case summary

ALLSOP CJ AND BESANKO J: 1 These reasons address one outstanding issue in connection with two proceedings involving petitions brought under s 353(1) of the Commonwealth Electoral Act 1918 (Cth) (the Act). The outstanding issue concerns costs. In VID 1018 of 2019, the applicant is Ms Vanessa Garbett, the first respondent is Ms Gladys Liu, and the second respondent is the Australian Electoral Commission (the AEC) (the Garbett proceeding). In VID 1019 of 2019, the applicant is Mr Oliver Yates, the first respondent is Mr Joshua Frydenberg and the second respondent is the AEC (the Yates proceeding). The two proceedings were heard together. Ms Garbett and Mr Yates were represented by the same solicitors and counsel in both proceedings, as were Ms Liu and Mr Frydenberg and, separately, the AEC. 2 The background to the issue before the Court is as follows. 3 The Court delivered its substantive reasons in both proceedings on 24 December 2019 (Garbett v Liu [2019] FCAFC 241; 375 ALR 117). In each proceeding, the Court made an order that the petition be dismissed. That left for consideration whether, in relation to Mr Simon Frost, there should be a direction to the Chief Executive and Principal Registrar of the Federal Court of Australia to proceed under s 363 of the Act (see the substantive reasons at [177]) and the orders which should be made in each proceeding with respect to the costs of the proceeding. The Court made directions with respect to these two matters which enabled Mr Frost, in the case of the first matter, and the parties in relation to the second matter, to file and serve written submissions. 4 The Court received submissions on behalf of Mr Frost. The matter involving him has been determined by the Court and it is not necessary to refer to it any further. 5 On 7 February 2020, the petitioner in each proceeding filed joint submissions in relation to costs. The petitioners sought orders under s 360(4) of the Act. This subsection provides that the Court's power to award costs in s 360(1)(ix) includes the power to order that costs be paid by the Commonwealth where the Court considers it appropriate to do so. As we understood the petitioners' submissions, they were that the Court should proceed as follows: (1) order that their costs be paid by the Commonwealth; (2) order that the AEC pay its own costs; and (3) that if the first respondent in each proceeding is entitled to costs, then order that those costs be paid by the Commonwealth. 6 The first respondent in each proceeding also filed and served joint submissions on 7 February 2020. They submitted that the ordinary rule that costs follow the event should apply and that, as the petitions had been dismissed in each proceeding, the petitioner should pay the first respondent's costs. The first respondents did point to a difference in the merits of the case in the Yates proceeding as compared to the Garbett proceeding. The first respondent in each case put an alternative "position" and that was that their costs should be paid by the Commonwealth should their principal submission be rejected. 7 The AEC also filed submissions on 7 February 2020. The AEC accepted that there should be no order as to its costs in either proceeding. It submitted that there was no basis in either proceeding for an order under s 360(4) of the Act that any part of the petitioners' costs be paid by the Commonwealth. It said that otherwise it did not seek to be heard on any question of costs between the petitioners and the first respondents. 8 On 20 February 2020, the Court delivered reasons dealing with the outstanding issues (Garbett v Liu (No 2) [2020] FCAFC 14). In those reasons, the Court said as to costs, the following: 17 Ms Hall brought the first petition. She was replaced as petitioner by Ms Garbett. Mr Yates filed his petition on the same day as Ms Hall filed hers. The public benefit and public importance was common to both cases. Nevertheless, the likely outcomes of the two cases were not the same. The issues of the application of s 329(1) were common, but at all times it must have been evident that the provisions of s 362(3) made upsetting the election of Mr Frydenberg extremely unlikely. Any likelihood of over 5,000 electors voting for him who would not have voted for him but for reading the offending corflute should have been seen as almost far-fetched. Yet, Mr Yates persisted with his petition. A proposition akin to this was put to senior counsel for the petitioners during the hearing and no substantive answer was forthcoming (which is not said with any intended disrespect to senior counsel). 18 Looking at the two petitions, without the available operation of s 360(4) of the Act, we consider that there would be little doubt about the proper order for costs: each petitioner would pay the costs of the first respondent, and the AEC would pay its own costs. We consider, however that there is warrant for the engagement, to some degree, of s 360(4). For the reasons that we have given, we consider that there was both public importance and public benefit in the issues thrown up by the petitions being ventilated and decided. That did not, however, require two petitions; and it certainly did not require a second petition where it was necessary to demonstrate that over 5,000 votes were affected by the conduct in question for substantive relief to be given about Mr Frydenberg's election. 19 Given these considerations we would be minded (subject to the Commonwealth, through the Attorney-General, being given an opportunity to resist the order) to order that the Commonwealth pay Ms Garbett's, Ms Liu's and Mr Frydenberg's costs as agreed or assessed; but that Mr Yates be responsible for his own costs. It may be that the considerations attending our view that Mr Yates should at least pay his own costs (see [18] above) may found a view that he, rather than the Commonwealth, should pay Mr Frydenberg's costs. Subject to any submission by the Commonwealth we would give some weight to the vindication by him of points not only of public importance but also of public benefit. 9 The Commonwealth took the opportunity it was given and filed submissions on 23 March 2020. In the Garbett proceeding, the Commonwealth said that it did not oppose orders that it pay the reasonable costs of the petitioner as agreed or assessed and that it pay the reasonable costs of the first respondent as agreed or assessed. We will make those orders and that disposes of all outstanding issues in the Garbett proceeding. 10 There is no such agreement by the Commonwealth in the Yates proceeding. In this proceeding, the Commonwealth submits that it would be appropriate for the Court to order that the petitioner meet his own costs and the costs of the first respondent. 11 The petitioner in the Yates proceeding filed further submissions on 6 April 2020. It is apparent that the point of difference between the Commonwealth and the petitioner is whether the Commonwealth should pay the first respondent's costs or whether those costs should be paid by the petitioner. There is no longer a contention by the petitioner that his costs should be paid by the Commonwealth. He is to bear his own costs. 12 The first respondent chose not to file any further submissions. 13 The Commonwealth submits that it should not have to pay the costs of the first respondent because the public benefit in the issues raised in the Yates proceeding does not enliven the discretion in s 360(4) of the Act in circumstances where there was another petition filed in the Court of Disputed Returns, namely, the petition in the Garbett proceeding which raised the issues in identical terms. Furthermore, the Commonwealth submits that it was clear from an early stage in the proceeding that the petitioner's petition in the Yates proceeding enjoyed poor prospects of success. The Commonwealth submits that whilst it was unlikely that anywhere near 500 or 5000 would have been influenced by the corflutes or may have felt directed to vote for the Liberal Party when they would not have done so had it not been for the corflutes, the petition in the Garbett proceeding enjoyed a better prospect of success than that in the Yates proceeding and raised the issue of whether the corflutes fell foul of s 329(1) of the Act. The Commonwealth referred to this Court's observations about the petitioner's prospects of success in the reasons it delivered on 20 February 2020 (at [17]). 14 The petitioner submits that both petitions raised matters of public importance in which there was a public benefit in those matters being ventilated and decided by the Court (Green v Bradbury (No 2) [2011] FCA 469 at [8]). Further, he submits that he could not have been a petitioner in the electorate of Chisholm and, in any event, either he or the petitioner in the Garbett proceeding could withdraw their petition at any time. He submits that by the time of hearing when it was clear that the Garbett proceeding would continue, there would have been little financial benefit to the first respondents in the withdrawal of the petition in the Yates proceeding in circumstances where the two first respondents in the respective proceedings were represented by the same counsel and engaged the same solicitors. The petitioner submits that whilst the case for voiding the Kooyong election was far more challenging than Chisholm, it was reasonably arguable. He pointed to various uncertainties from his perspective prior to trial and judgment as to the number of people whose vote was affected by the illegal conduct. The petitioner submits that the relief he sought included declarations of an illegal practice and that had he abandoned his claim for the avoidance of the election and only persisted with his claim for declarations, the first respondent would still have incurred most of the costs that he in fact incurred in relation to the proceeding. Finally, the petitioner submits that it was relevant that he identified and sought to prevent the continuation of the illegal practice on polling day. The Court confirmed that the AEC's response to those complaints was mistaken, although not untenable, underpinning the public importance and benefit of this action being brought before it. In the circumstances, the appropriate order was that the first respondent have his costs, but that either they be paid either directly by the Commonwealth or (as was the case in Nile v Wood (No 2) [1988] HCA 30; 167 CLR 133) that the Commonwealth pay the petitioner the amount of any costs that he is required to pay to the first respondent as a result of an order of this Court. 15 In the alternative, the petitioner submits that should he be ordered to indemnify Mr Frydenberg for his costs, the order should be limited to those costs not also attributable to the Garbett proceeding. Each of the first respondents shared the same legal representatives as well as the same written and oral submissions, with the exception of an analysis of s 362(3) of the Act and candidate knowledge, and relied upon largely the same responses to the petitions and evidence. The petitioner submits that that work was necessitated by the Garbett proceeding even if the Yates proceeding had been abandoned or not filed. 16 We have considered the submissions carefully. We consider the appropriate order is that the Commonwealth should pay the first respondent's costs of the petition up to the date of trial. That reflects the public importance of the issues and the public benefit in having the issues ventilated and determined, and the fact that the petitioner could not be sure that the Garbett proceeding would proceed. The first respondent's costs of the trial itself and thereafter, including counsel fees, should be paid by the petitioner. That reflects the fact that by then, and probably earlier (but in the absence of clear evidence we will adopt a position favourable to the petitioner), it would have been apparent to him that, as we said in our reasons delivered on 20 February 2020, upsetting the election of Mr Frydenberg was extremely unlikely (at [17]). The public importance and public benefit associated with the issues and the common representation of the first respondents in the two proceedings cannot shield the petitioner from the usual consequence of paying costs if unsuccessful from the point when he knew the issues would be ventilated and determined in the Garbett proceeding and he knew his primary claim was unlikely to succeed. 17 The Court will make orders accordingly. 18 Since writing these reasons, we have had the opportunity of reading the reasons for judgment of Greenwood J. We have not considered the particular form of orders favoured by his Honour or the question of whether there is power to make such orders or whether such a form of orders would be justified on the facts because, in our respectful opinion, none of these matters has been the subject of submissions from the parties. In those circumstances, we do not consider it appropriate to address those issues. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and the Honourable Justice Besanko.

GREENWOOD J 19 The outstanding question held over for determination in each petition by the orders of 24 December 2019, otherwise dismissing each petition, is the question of costs. These reasons should be read with Garbett v Liu [2019] FCAFC 241 (the "primary decision"). 20 As to the petition filed by Ms Naomi Hall on 31 July 2019 and, put simply, taken over by Ms Vanessa Garbett on 18 September 2019, in which Ms Garbett challenged the validity of the election of Ms Gladys Liu for the seat of Chisholm (VID 1018 of 2019), the position as to costs is this. The second respondent, the Australian Electoral Commission (the "AEC"), accepts that there ought to be no order as to its costs of the proceeding. The Commonwealth, which is not a party to the petition, was provided with an opportunity to put on written submissions having regard to the position adopted by the petitioner and Ms Liu that their costs be paid by the Commonwealth, and s 360(4) of the Commonwealth Electoral Act 1918 (Cth) (the "Act"). 21 The powers conferred on the Court of Disputed Returns (and exercisable by the Federal Court of Australia on referral of the petition by the High Court) includes the power "to award costs": s 360(1)(ix). Section 360(2) provides that the Court may "exercise" any or all of its powers conferred under s 360 "on such grounds as the Court in its discretion thinks just and sufficient". 22 The conferral of the power to award costs coupled with a discretion to exercise the power so conferred on such grounds as the Court thinks just and sufficient, is a broad conferral of power and authority to determine how costs incurred in, and incidental to, a petition are to be awarded. 23 An order made in exercise of the power, quelling a controversy as to costs in a proceeding, would normally effect a disposition of the burden as to costs inter partes. However, s 360(4) of the Act provides that the power to award costs conferred under s 360(1)(ix) "includes", within the scope of that power, "the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so". 24 Section 360(4) does not, in terms, unlike s 360(2), refer to the exercise of the power. It refers to the circumstances in which the power conferred under s 360(1)(ix) includes the power to order costs to be paid by the Commonwealth, and those circumstances are "where the Court considers it appropriate to do so". Because s 360(4) does not address, expressly, the exercise of the power, the question of appropriateness is likely to be measured by whether the Court, in the exercise of its discretion, thinks it just and sufficient to order the Commonwealth to pay a party's costs. 25 In the Garbett petition, the Commonwealth does not oppose orders being made that it pay the reasonable costs of the petitioner and Ms Liu as agreed or assessed. That position is consistent with the primary position adopted by Ms Garbett as to payment of her costs. The circumstance that the Commonwealth has had an opportunity to consider the matter and does not oppose an order as described is, no doubt, largely determinative of the matter. However, the Court must consider it appropriate to do so before making an order. 26 In my view, it is appropriate to do so, as it is just and sufficient that the power be exercised in that way. That follows because the hearing and determination of the questions in issue in the petition involved questions of construction of important provisions of the Act including s 329(1), s 362(3) and s 365. It engaged a comprehensive analysis of the enactment history of the legislative provisions and the boundaries or reach of the principles derived from the observations of the High Court in Evans v Crichton-Browne (1981) 147 CLR 169 at 201, 204-205 and 207-208. The petition involved an examination of the conduct said to be likely to mislead or deceive an elector (as to which see [144] of the primary decision) and its relationship with the phrase "in relation to the casting of a vote" (as to which see the discussion at, particularly, [148]-[154] and [155] of the primary decision). The petition, of course, considered the contended role of Ms Liu in the conduct complained of and the notion of whether Ms Liu was a person who "authorised or permitted" conduct for the purposes of s 329(1). As to whether there was a real chance that the result in the seat of Chisholm was affected, see the discussion at [167]-[175] of the primary decision. 27 It is clear that many of the matters raised by the Garbett petition engaged questions of principle and public importance; questions of contended conduct on the part of Mr Frost; and questions of the application of exposed principle to the facts. It is right and proper, and just and sufficient, to order the Commonwealth to pay the reasonable costs of the petitioner and Ms Liu. 28 However, as to the petition filed by Mr Oliver Yates on 31 July 2019 in which Mr Yates challenged the validity of the election of the first respondent, Mr Joshua Frydenberg, for the seat of Kooyong (VID 1019 of 2019), a different position emerges, except as to that adopted by the AEC. The AEC accepts that there ought to be no order as to its costs of the petition. 29 On 24 February 2020, the Commonwealth Attorney-General received notice of the reasons of the Court published on 20 February 2020 addressing aspects of the question of costs in each of the Garbett and Yates petitions: Garbett v Liu (No 2) [2020] FCAFC 14. In each petition, the Court ordered that the applicant and the first respondent notify the Commonwealth Attorney-General of the published reasons in order that the Commonwealth be given an opportunity to put on submissions within 28 days "as to why orders should not be made under s 360(4) of the [Act] providing for costs of the applicant and the first respondent [in each matter] as contemplated in [19] of the reasons of the Court" published that day. At [19] of the reasons, the Court said this: Given these considerations we would be minded (subject to the Commonwealth, through the Attorney-General, being given an opportunity to resist the order) to order that the Commonwealth pay Ms Garbett's, Ms Liu's and Mr Frydenberg's costs as agreed or assessed; but that Mr Yates be responsible for his own costs. It may be that the considerations attending our view that Mr Yates should at least pay his own costs (see [18] above) may found a view that he, rather than the Commonwealth, should pay Mr Frydenberg's costs. Subject to any submission by the Commonwealth we would give some weight to the vindication by him of points not only of public importance but also of public benefit. 30 That paragraph of the reasons taken together with the orders of 20 February 2020 described at [29] of these reasons which expressly refers to s 360(4) of the Act raises the question of the relationship between s 360(1)(ix), s 360(2) and s 360(4). The question for the Commonwealth so far as the Yates application is concerned is whether it should pay any or all of the costs incurred by the first respondent; if so, should the exercise of the power to award costs (which includes the "power" under s 360(4)), include an order that the costs of the first respondent ordered to be paid by the Commonwealth under s 360(4) (if such an order is made) be the subject of any other order under s 360(1)(ix) and s 360(2) that those costs be paid by the petitioner; and also, whether the Commonwealth should pay any costs of the petitioner. The question for Mr Yates is whether he should pay any or all of the costs of the first respondent; and, in the event that it is thought appropriate and just and sufficient that an order be made that the first respondent's costs be paid by the Commonwealth, whether the power in s 360(1)(ix) taken together with s 360(2) ought to be exercised in such a way that any of those costs paid by the Commonwealth be the subject of a further order that the petitioner pay to the Commonwealth those costs paid by the Commonwealth to the first respondent. As to the question of costs, the Commonwealth filed written submissions dated 23 March 2020 and joint submissions have been filed on behalf of each petitioner (and thus including Mr Yates). 31 In the Yates petition, the Commonwealth opposes an order under s 360(1)(ix) taken together with s 360(4) that the Commonwealth pay the costs of the first respondent. The Commonwealth contends that Mr Yates ought to meet his own costs and that Mr Yates ought to pay the costs of Mr Frydenberg. Mr Yates accepts that he ought to bear his own costs. However, he says that if Mr Frydenberg is entitled to an award of costs as a successful respondent to the petition, the appropriate order is that the Commonwealth pay those costs. The Commonwealth contends, in effect, that s 360(4) of the Act is not engaged so as to include, within the power to award costs, the power to order those costs be paid by the Commonwealth, because the Court ought not, "consider it appropriate to do so", in the circumstances. 32 That is said to follow because Ms Hall had filed a petition in the High Court on 31 July 2019 (taken over by Ms Garbett on 18 September 2019) challenging the validity of the election of Ms Liu in the seat of Chisholm which raised the same questions for determination sought to be agitated by Mr Yates against Mr Frydenberg in the seat of Kooyong. Moreover, Mr Yates had to confront from the outset of his proceeding the circumstance that Mr Frydenberg's margin over Mr Burnside was 11,287 votes such that for the result in the seat of Kooyong to have been affected by the conduct complained of, a conclusion would be required that 5,644 electors who voted for Mr Frydenberg would not have done so but would have voted for Mr Burnside, or for another candidate and directed their preferences to Mr Burnside. 33 As to that particular difficulty, the Court, on 20 February 2020, in Garbett v Liu (No 2) [2020] FCAFC 14 said this at [17]: The issues of the application of s 329(1) were common [to both petitions], but at all times it must have been evident that the provisions of s 362(3) made upsetting the election of Mr Frydenberg extremely unlikely. Any likelihood of over 5,000 electors [5,644 electors] voting for him who would not have voted for him but for reading the offending corflute should have been seen as almost far-fetched. Yet, Mr Yates persisted with his petition. … 34 Of course, the question of the very particular use of the corflutes in each electorate on election day was a question of fact that may have varied, and the question of whether Mr Frydenberg authorised or permitted any relevant conduct at booths in the seat of Kooyong would be a different question to whether Ms Liu authorised or permitted relevant conduct at booths in the seat of Chisholm. That said, the other matters at [26] of these reasons were common to both petitions. Thus, both petitions were heard together. Ms Garbett and Mr Yates were represented by the same solicitors and counsel. Ms Liu and Mr Frydenberg were represented by the same solicitors and counsel. 35 The duly elected candidate for the seat of Kooyong, as an expression of the franchise by the voters in the seat, by a majority of 11,287 votes, now finds himself in a position where he has been successful in a petition brought against him which, from the outset, was "extremely unlikely" to succeed having regard to s 362(3) of the Act; the essential contention advanced by Mr Yates that by reason of the conduct complained of, "the result of the election was likely to be affected" was an "almost far-fetched" proposition; and, although there is no opposition from the Commonwealth in Ms Liu looking to the "wallet" of the Commonwealth (Australian Electoral Commission v Johnston and Others No. C17 of 2013 [2014] HCATrans 032, Hayne J at p 5, ln 22) for the payment of her costs, Mr Frydenberg ought only to look to Mr Yates for restitutionary recovery of his reasonable (and likely not insignificant) costs of being brought by Mr Yates to the Court to answer a claim to upset the outcome of the franchise which faced the difficulty characterised in the way earlier described. 36 Viewed from the perspective of the winner of the democratic contest for the voters in Kooyong, the first respondent would be required to enforce a costs order against Mr Yates. Although plainly, Mr Yates ought to pay at least some of the costs (as to which see [58] of these reasons) to which he has put the first respondent, the circumstance that there was another petition raising essentially the same matters of public importance being prosecuted by Ms Garbett against Ms Liu concerning the seat of Chisholm (in which it appears to the Commonwealth that it is appropriate to not oppose an order that it pay the costs of the respondent and Ms Garbett), is not a circumstance of Mr Frydenberg's making. If it is thought to be appropriate, just and sufficient, for orders to be made for the payment by the Commonwealth of the costs of Ms Garbett and Ms Liu in the Garbett petition because of the public interest in ventilating those matters, it seems difficult to identify a principled basis upon which it would not be appropriate to make a similar order in favour of Mr Frydenberg, especially where the petition by Mr Yates suffered the obvious difficulties reflected in the observations quoted at [33] above. Is the first respondent, in effect, to be penalised as to costs in the petition brought against him because there was another proceeding that raised substantially the same questions in which it is thought appropriate that the wallet of the Commonwealth be open. 37 There is, however, a particular difficulty. 38 It would be undesirable to encourage a belief or notion that there is anything akin to a practice or principle that the wallet of the Commonwealth is open for the payment of the costs of an elected member of a seat who successfully resists a petition brought before the Court of Disputed Returns to upset the declared result of the voters. It would not be long before a large number of political battles fought at the barricades are simply brought into the Court of Disputed Returns on the footing that there is a likelihood that the cost of an unsuccessful challenge, at least so far as a successful respondent member is concerned, will fall to the Commonwealth and not the unsuccessful petitioner. 39 The discretion as to costs is wide and exercised according to the justice and sufficiency of the case in the discretion of the Court. How should the discretion be exercised in the petition brought by Mr Yates? 40 When the Act was enacted in 1918, the power to award costs was contained in s 189(1)(viii). The provision that is now s 360(2), was then s 189(2), in precisely the same text. There was no provision either in terms, or along the lines of, s 360(4). At s 198, the Act provided that the Court may award costs against an unsuccessful party to the petition. That section is now s 371 of the Act. 41 On 18 October 1980, there was an election for the House of Representatives and, relevantly, for present purposes, five Senators for the State of Western Australia. At that election, Noel Crichton-Browne was elected a Senator for the State of Western Australia for the fifth position. There was then a challenge by petition in the High Court as the Court of Disputed Returns to the validity of the election of Senator Crichton-Browne by John (Jack) Evans who was an unsuccessful candidate for the Senate in Western Australia. Mr Evans was a candidate endorsed by the political party known as the "Australian Democrats". The challenge related to things said in advertisements in newspapers circulating in Western Australia concerning contentions about the way in which Senators for the Australian Democrats had voted. The challenge to the validity of Senator Crichton-Browne's election, along with two other challenges to particular results in that election, was determined by the High Court in March 1981. A number of important matters of principle were raised by the proceedings and in the course of the principal judgment in these proceedings, a number of observations of their Honours were the subject of discussion. The petition of Mr Evans was dismissed by the Court. The Court exercised the power to award costs by ordering the petitioner to pay the costs of Mr Crichton-Browne of the case stated, to be taxed. There was then no power in the Act to order the Commonwealth to pay the costs of a party. 42 On 5 March 1983, there was a double dissolution election for the Commonwealth Parliament. In the result, Mr Hawke was invited to form government. Senator Crichton-Browne was re-elected to the Senate and Mr Evans was also elected to the Senate for the State of Western Australia. In September 1983, the "First Report" of the Joint Select Committee on Electoral Reform recommended that specific legislative provision be made to "allow a Court of Disputed Returns to order payment of costs by the Crown where the Court regards this as appropriate": clause 6.44; Recommendation (86). There is no discussion in the Report concerning the recommendation or its underpinning. Section 189 of the Act was amended by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) (No. 144). Section 134 of that Act provides that s 189 is amended to add sub-section (4) to provide that the power conferred under s 189(1)(viii) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so. There is no discussion in the Reading Speeches or Memoranda for the Bill about that provision. 43 However, in the course of debate in the Senate on the Bill, exchanges took place between Senator Crichton-Browne and Senator (Jack) Evans that throw some light on the problem that the amendment recommended by the Joint Select Committee may have been seeking to address. In the course of his remarks on the Bill in the Senate on 30 November 1983, Senator Crichton-Browne referred to the unsuccessful proceeding commenced by Mr Evans and its unanimous rejection by the seven Justices of the High Court. Senator Crichton-Browne said this at Hansard, p 3061: When Senator Jack Evans was approached a number of times to fulfil his legal and moral obligations [to pay costs as required by the order as to costs], he … sought to do deals to pay off the bill. Ultimately, a warrant of execution was issued against him and over his home to get him finally to pay his bill, which he knew he was going to incur before he started the case. Ultimately, of course, the money that was outstanding was handed over and so we were all relieved. He paid his bill ... and justice was done and was seen to be done. … 44 Senator Jack Evans then sought to make a personal explanation about the earlier proceeding and said this at Hansard, p 3062: [W]hen the appeal was made [in the High Court as the Court of Disputed Returns], the Australian Democrats party took the appeal through me and I was then responsible or meeting the costs. … Senator Crichton-Browne … took action to pursue me through the courts and, in fact, in the event finally endeavoured to obtain my house because the money had not been found by the Australian Democrats in time. This was a process of the Australian Democrats appealing for funds through their members and getting that money in for the party; it was not a matter of Jack Evans having to find the money himself. 45 If an order is made that Mr Yates pay the costs of Mr Frydenberg of and incidental to the petition, Mr Frydenberg might find that he is engaged in yet further continuing costs in seeking to recover his reasonable costs of the petition from Mr Yates. On the other hand, Mr Yates might pay the assessment of reasonable costs promptly. 46 As to the scope of the power conferred by s 360(4), as it now is (as a result of the renumbering of the sections by the Commonwealth Electoral Legislation Amendment Act 1984 (Cth), s 5), Brennan J adopted a narrow view of s 360(4) in these terms in Nile v Wood (1988) 167 CLR 133 (sometimes cited as Nile v Wood (No 2)) at 142: This is a special provision which exposes the Commonwealth to potential liability for the costs of proceedings to which it may not be a party. It was not a party to the proceedings in this case. It is clear that the discretion conferred by sub-s. (4) is not merely a discretion to determine which party in adversary proceedings should bear the costs. Indeed, the Commonwealth does not dispute the jurisdiction of the Court under sub-s. (4) to make an order in favour of Mrs. Nile, but submits that it is not appropriate to do so. In my opinion the discretion may properly be exercised when the proceedings have arisen because an officer of the Commonwealth has failed properly to perform his [or her] function or when the proceedings have resulted in some public benefit. In such cases it may be appropriate that the public purse ought bear the costs or some of them. I do not suggest that these categories are exhaustive, but it would not be appropriate to exercise the discretion whenever a litigant chooses to put the validity of an election to the test. Some warrant for imposing a liability on the funds of the Commonwealth must appear before it is appropriate to make an order. 47 Deane and Toohey JJ observed that if the application by Mrs Nile for an order for costs against the Commonwealth fell to be determined by reference to the "ordinary principles" upon which orders for costs are made between parties to litigation, their Honours would have been of the view that no order at all should be made. Their Honours then said this at 143, expressing what Brennan CJ later described in Free v Kelly (1996) 185 CLR 296 at 304 as the "wide view" of the subsection: The matter does not, however, fall to be determined by reference to those ordinary principles. Section 360(4) of the [Act] expands the Court of Disputed Returns' power to "award costs" (s. 360(1)(ix)) by including "the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so". This power to order costs against the Commonwealth, which is unlikely in the ordinary case to be a party to proceedings before the Court of Disputed Returns, is not constricted by reference to the principles controlling the making of an order for costs inter partes. It is a general power conferred upon the Court of Disputed Returns, in the exercise of its special jurisdiction, to order that the Commonwealth pay the costs of a party whenever the Court considers it appropriate to do so. We would not attempt to confine it by definition beyond saying that it should be exercised when consideration 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. 48 In Nile v Wood, Mrs Nile filed a document purporting to serve as a petition challenging the election of Mr William Wood as a Senator for the State of New South Wales. The document failed to comply with important elements of s 355(a) and (b) of the Act and was dismissed with an order that Mrs Nile pay Senator Wood's costs. Mrs Nile later sought an order that those costs be paid by the Commonwealth pursuant to s 360(1)(ix) and s 360(4). Brennan J observed that he could "find no warrant for making an order in this case" because neither of the principles guiding the exercise of the discretion (quoted at [46] of these reasons) were present in his Honour's view. As to those costs, Deane and Toohey JJ observed that after the order was made, it became known that Mr Wood was not qualified to be elected as a Senator having regard to s 44 of the Constitution. Their Honours observed that if that circumstance had been known at the time the order was made, "a question would have arisen about whether an order for costs should have been made in his favour" and thus "on balance, the interests of justice would be served if Mrs Nile did not have to bear the ultimate burden of the order to pay Mr Wood's costs of the proceedings". That being so, their Honours considered it appropriate that an order be made which would have the "effect" of the Commonwealth paying Mr Wood's costs of the proceeding. That effect was brought about by the Commonwealth being ordered to pay the costs ordered to be paid by Mrs Nile. 49 In Hudson v Lee (1993) 177 CLR 627 at 633, Gaudron J observed that having regard to "the subject matter of the Act and the nature of the jurisdiction exercised by the Court of Disputed Returns, I think the wider view [taken by Deane and Toohey JJ in Nile v Wood at 143] is to be preferred". Her Honour exercised the power to order the costs of the respondent be paid by the Commonwealth on the footing that it was appropriate to do so because it was "fair and just" in the circumstances of the case. Her Honour also expressed a preference for the wider view in Webster v Deahm, High Court of Australia, Sydney, 20 June 1996 at 4. As to Webster v Deahm, the reasons of her Honour were published in Sydney on 20 June 1996. However, they are not the subject of a media neutral citation and nor are the reasons published in the Commonwealth Law Reports. They are, however, available from the High Court Library. 50 In the reasons of 20 February 2020, the Court observed at [18] that there is "warrant for the engagement, to some degree, of s 360(4)" because issues of "public importance and public benefit" were "thrown up by the petitions being ventilated and decided" although the ventilation of those issues "did not, however, require two petitions" and "certainly did not require" a second petition confronting the problem of demonstrating that 5,644 electors who voted for Mr Frydenberg would not have done so by reason of the impugned conduct. Nevertheless, the Court's impression was, as to the petition by Mr Yates, subject to having the benefit of submissions from the Commonwealth, that Mr Frydenberg's costs ought to be paid by the Commonwealth as agreed or assessed. 51 If the point of distinction identified by the Commonwealth as the basis upon which it is said not to be appropriate to order the Commonwealth to pay Mr Frydenberg's costs of the petition is that there was another petition on foot addressing substantially the same questions of public importance and public benefit, the ultimate difficulty is this. If the factors of public interest and public benefit, which lead to a conclusion that an order for payment of Ms Liu's costs by the Commonwealth ought not be opposed, are also present substantially in the challenge by Mr Yates to Mr Frydenberg's election (over which the first respondent had no control other than to engage solicitors and counsel to represent him), the first respondent ought to have his costs paid by the Commonwealth as such an order "on balance" seems to be "fair and just" having regard to the position taken concerning Ms Liu. 52 If, however, the ultimate point of distinction identified by the Commonwealth is that the proceeding by Mr Yates was almost bound to fail by reference to an application of the legal rubric of s 362(3) to the known objective facts such that it was always going to be "extremely unlikely" that Mr Yates would be able to demonstrate that 5,644 voters would not have voted for the challenged Member, but for the impugned corflute, and thus the power to order that Mr Frydenberg's costs be paid by the Commonwealth should not be exercised in his favour but rather ordered to be paid by Mr Yates, such a point of distinction operates to the significant disadvantage of the first respondent in circumstances where he had no control over the bringing and prosecution of the petition (and the "almost far-fetched" proposition essential to it). 53 If the proceeding brought against the first respondent exhibits substantially the same matters of public interest and public benefit, concluding that it is not appropriate to order the Commonwealth to pay Mr Frydenberg's costs operates to penalise the first respondent because he happened to be the first respondent to a petition which had significant difficulty. 54 An alternative approach is to order the Commonwealth to pay Mr Frydenberg's costs and order that Mr Yates pay the costs ordered to be paid by the Commonwealth. The power to order costs to be paid by the Commonwealth is expressly included within the power to award costs. The power to award costs may be exercised on such grounds as the Court, in its discretion, thinks just and sufficient. Mr Yates is amenable to the exercise of the power to award costs as a party. The Court has power to order costs to be paid by the Commonwealth as a non-party, in favour of a party. Having regard to the broad conferral of the power to award costs, the power includes the power to order a party to pay costs the subject of an order included within the exercise of the power to award costs as conferred by s 360(4), in the relevant case, on such grounds as the Court, in its discretion, thinks just and sufficient. 55 In the case of the petition brought by Mr Yates, I would order the Commonwealth to pay the reasonable costs of the first respondent of and incidental to the petition as assessed (or agreed) for the reasons mentioned earlier. I would order Mr Yates to pay to the Commonwealth a proportion of the costs payable by the Commonwealth to the first respondent, as described at [58] of these reasons. I would make the order against Mr Yates on the ground that although the petition brought by Mr Yates against the first respondent engaged questions of public importance and public benefit, the petition was, as he must have known, almost bound to fail because it engaged a contention that was "almost far-fetched" and "extremely unlikely" to result in an order upsetting the election of the first respondent. However, the matter at [58] of these reasons needs to be weighed in the balance. 56 I would order that should Mr Yates elect to engage with the Commonwealth and the first respondent in agreeing the question of the quantum of the reasonable costs of the proportion of the costs to be borne by him as contemplated by [55] of these reasons, the quantum of the costs payable by him would be those costs so agreed. 57 I would make the orders just described on the footing that the power to order Mr Yates to pay the costs payable by the Commonwealth as ordered under s 360(4) are costs falling within (that is, included within) the body of costs capable of being the subject of an award of costs under s 360(1)(ix) and s 360(2). Although there is no good reason why the first respondent ought not to have his reasonable costs paid by the Commonwealth, there is no good reason why the wallet of the Commonwealth should be completely open to Mr Yates in respect of those costs and thus it is just and sufficient that Mr Yates as the party bringing the petition pay to the Commonwealth a proportion of the costs of that petition ordered to be paid by the Commonwealth, as described at [58] of these reasons. 58 As to the proportion of the costs payable by the Commonwealth to the respondent to be paid by Mr Yates to the Commonwealth, I note the contention of Mr Yates that the finding at [153] of the principal judgment "should not be understated" and I note the contention of Mr Yates that it was proper for him to prosecute his position at least until it became clear that Ms Garbett was not going to abandon her petition. I accept that there was public benefit and public interest in Mr Yates maintaining his petition until that moment in time. It is impossible to say when that moment in time arose. However, it must have been clear at least by the morning of the first day of the hearing that the lawyers for both petitioners would be prosecuting the case for Ms Garbett in her petition. Obviously, it would have been clear that that petition was proceeding some considerable time before then. However, in the absence of clear material about that matter, the position would have been transparently plain at the commencement of the hearing. The proportion of the costs that Mr Yates ought to bear is the reasonable costs of the first respondent of the hearing and effect is to be given to that result by ordering Mr Yates to pay to the Commonwealth that proportion of the first respondent's total costs payable by the Commonwealth to the first respondent. 59 I have had the benefit of reading the reasons of Allsop CJ and Besanko J. However, I would respectfully take a different view as to the orders to be made. As to the procedural fairness point, the range of possible orders that accommodate s 360(4), s 360(1)(ix) and s 360(2), in all the circumstances of the proceeding commenced by Mr Yates, including the scope of the power to make any particular form of order was the subject of the opportunity afforded to the parties and their advisers by the order and reasons of 20 February 2020. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Garbett v Liu

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (12)