Green v Bradbury

JUDGE: EMMETT J DATE OF ORDER: 13 APRIL 2011 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The petitioner pay the costs of the first and third respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1665 of 2010

JUDGE: EMMETT J DATE: 13 ApRIL 2011 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me applications for costs in three electoral petitions. Two of the petitions related to elections for the House of Representatives, while the third related to an election for the Senate. On 31 January 2011, I gave leave for the petition in relation to the Senate election to be withdrawn. On 3 February 2011, I ordered that no proceedings be had on the other petitions and that the proceedings be dismissed. I have now heard argument on several days concerning the question of the costs of the petitions. 2 In each petition relating to the House of Representatives elections, the successful candidate in the relevant electoral division was named as the first respondent, while the Australian Electoral Commission (the Commission) was named as the third respondent. In the Senate petition, a successful candidate, the Commission, and, by addition, Senator Faulkner, were named as respondents. 3 Section 360(1)(ix) of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act) provides that the Court of Disputed Returns is to sit as an open court, and that its powers include the power to award costs. Section 371 of the Electoral Act provides that the Court may award costs against an unsuccessful party to a petition. Section 360(4) provides that the power to award costs includes the power to order costs to be paid by the Commonwealth, where the Court considers it appropriate to do so. Under s 360(2), the Court may exercise all or any of its powers under s 360 on such grounds as the Court in its discretion thinks just and sufficient. 4 The petitioner in each petition asks for an order to be made under s 360(4) of the Electoral Act. The petitioners submit, in the alternative, that if no order is made under s 360(4), then there should be no order as to the costs of any of the petitions. The Commonwealth has been served and has appeared in relation to the application under s 360(4). Neither the Commonwealth nor any of the respondents to any of the petitions supports an order under s 360(4). Rather, they seek orders against the unsuccessful petitioners. The successful candidates seek orders for costs either on a solicitor/client basis or an indemnity basis. Those orders are opposed by the petitioners. 5 The statements of facts appended to the petitions are, in some respects, not easy to comprehend. The petitioners say that they raised in those statements matters of public interest that have led to the clarification of the law in some respects, and that that is a justification for the making of an order under s 360(4). The petitioners say that the underlying merits of their case, notwithstanding that the petitions were dismissed summarily in two cases and withdrawn in the third, justify either the making of an order under s 360(4), or a direction that there be no order as to costs. 6 The complaints made by the petitioners are that postal voting applications to the divisional returning officers were redirected to the electorate office of sitting members by the device of providing pre-addressed applications with material having an official appearance. They say that, consequently, there was conduct affecting the ballot that constituted undue influence within the meaning of s 327 of the Electoral Act. An allegation of bribery in contravention of s 326 of the Electoral Act was also implicit. In their submissions on costs, the petitioners refer to misleading and deceptive conduct within the meaning of s 327 of the Electoral Act, and an erroneous form of declaration under s 168(2) of the Electoral Act. However, the petitioners face the difficulty that, even if it were the case that there was some legal merit or substance in their complaints, the deficiency in the formulation of their claims in the petitions was such that those complaints were not capable of being addressed. 7 The petitioners also assert that the reasons that I gave for the summary dismissal of the petitions give rise to implications for future elections. I had not understood, either from the submissions put on behalf of the successful parties or, indeed, from the submissions put on behalf of the petitioners, that I was deciding the proceedings otherwise than in accordance with established legal authority. Be that as it may, however, the basis upon which the proceedings were terminated was that they were never likely to succeed in the form in which they were brought. Certainly, the Court's power under s 360(4) involves a broad discretion. For example, it could be exercised when an officer of the Commonwealth has failed properly to perform a function, or where a proceeding results in some public benefit. The petitioners rely on the proposition that these proceedings have resulted in a public benefit. 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. The way in which the petitions were disposed of indicates that no public benefit arose from the proceedings. Even if there were a public interest in the ventilation of the underlying issues that the petitioners sought to advance, that was not capable of being dealt with in the proceedings because the petitions did not satisfy the essential and mandatory requirements of the Act. Thus, even though it may be that the power in s 360(4) is not restricted by reference to the principles controlling the making of an order for costs inter partes, but may be exercised when it is just and sufficient, it is difficult to contemplate that it is just and sufficient to require the Commonwealth to pay costs of the petitioners in circumstances where one petition was withdrawn, and the others were dismissed summarily on the basis that they could not possibly succeed. 9 The petitioners point to the decision of the Court in Smith v Australian Electoral Commission (No 2) [2008] FCA 1310. The result in that proceeding is curious. The only respondent appears to have been the Commission. It was put that there was other litigation on foot in which a question raised in the proceeding was also in issue, namely, an application to the Administrative Appeals Tribunal. Bennett J said that, if there was no merit in the allegations the subject of the petition before her Honour, there would be no basis to decline to order the petitioner to pay the Commission's costs. However, apparently because of the other litigation, it could not be determined, at that stage, whether there was any merit. Accordingly, her Honour took the view that it was in the interests of justice that the payment of costs await the determination of that other proceeding. Nevertheless, in the interests of finality of litigation, her Honour made an order under s 360(4) that the Commonwealth pay the Commission's costs. As her Honour said, that meant that each party would pay its own costs rather than defer for an indeterminate time the question of whether the petitioner should pay the Commission's costs. Whether that decision was right in principle does not have to be determined. 10 In the present case, there is no suggestion that there is still any outstanding issue between any of the petitioners and any of the respondents that is likely to be determined in some other forum or proceeding. In all of the circumstances, I do not consider that any basis has been established in the present cases for making an order under s 360(4). Similarly, it seems to me, there is no reason why the successful parties should not be given their costs of the proceedings. The question thus becomes whether an order for costs against the petitioners should be made on a special basis. 11 In relation to the Senate petition, it is clear that the formulation of the statement of facts was undertaken under a total misapprehension. It has been suggested that the formulation was based on a pre-existing petition in relation to an election for a division of the House of Representatives. Significant parts of the statement of facts, therefore, made no sense. Further, it would have been necessary to join successful candidates in the Senate election. The petitioner was not prepared to do that, notwithstanding that it ought to have been apparent from the commencement of the proceeding that they were necessary parties insofar as the petition sought relief that would affect them. 12 The Senate petition was, as I have said, withdrawn. However, while the intention to withdraw was foreshadowed, and the requisite public announcement of the intention to seek leave to withdraw was made in early January, no formal application for leave to withdraw was made until after the commencement of the hearing on 31 January 2011. What costs were reasonably incurred as a result may ultimately be a matter for a taxing officer. In my view, the appropriate order would be to require the petitioner in the Senate petition to pay the first respondent's costs on the basis that the order relate to all reasonable costs, reasonably incurred. That could entail an examination as to whether or not all of the costs that were actually incurred were reasonably incurred and, of course, could also entail an examination as to whether the costs that were reasonably incurred were reasonable costs for the work done. 13 In relation to the question of the Commission's costs, the petitioners raised the principles concerning the role of the Commission in proceedings. The Commission accepts that those principles are analogous with those set out with respect to the Australian Broadcasting Tribunal in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13. That is to say, the role of the Commission is to assist the Court. That is not to say that the Commission should simply submit to such orders as the Court may make, as is, perhaps, the case where Constitutional relief is sought against a tribunal or other Commonwealth decision-maker. 14 Section 359 of the Electoral Act clearly contemplates that, if it chooses to do so, the Commission may appear and be heard in any proceeding in which the validity of an election return is disputed. In fact, the petitions named the Commission as a respondent. I do not consider that the submissions of the Commission were other than helpful, albeit that they were contrary to the interests of the petitioners. In all of the circumstances, I consider that it is appropriate that the petitioners be ordered to pay the Commission's costs in each proceeding. The Commission does not ask for a special order. 15 That, then, brings me to the question of the costs of the successful candidates in the House of Representatives petitions, being the first respondents to those petitions. When these proceedings first came before the High Court, a written outline of submissions was provided on behalf of the first respondent to each petition, and served on the petitioners' solicitor on 24 November 2010. Those submissions asserted that no allegation of bribery or corruption within the meaning of s 326 of the Electoral Act had been made. The submissions also asserted that on no view could the conduct of the first respondents constitute undue influence within the meaning of s 327 of the Electoral Act or of s 28 of the Crimes Act 1914, as alleged in the petitions. 16 Further, the submissions pointed out that neither of the petitions contained any statement of fact that could lead the Court to conclude that the result of the election was likely to be affected. Accordingly, the submissions said, the petitions did not comply with ss 355(a), 355(aa) and 358(1) of the Electoral Act. The submission made to the High Court was that both petitions should therefore be dismissed. The High Court nevertheless remitted the petitions to the Federal Court, sitting as the Court of Disputed Returns. 17 The submissions to which I have just referred were developed in the course of the hearing before me and it is fair to say that they constitute the basic propositions that led to the dismissal of the petitions. Following the submissions made to the High Court, the solicitors for the first respondents wrote to the petitioners' solicitor, indicating that there were defects in the petitions as identified in the written submissions. The letter pointed out that those defects were not capable of being cured by amendment. 18 On 21 December 2010, following a direction that the motions for summary dismissal be fixed for hearing on 31 January 2011, the first respondents' solicitors wrote again to the petitioners' solicitor, asserting that it was apparent that the petitions were fatally flawed. The letter of 21 December 2010 drew particular attention to the requirements of s 355(a) of the Electoral Act, and asserted that those requirements had not been met, in that none of the petitions set out the facts relied upon to invalidate the elections concerned. The letter pointed out that, since it was no longer open to the petitioners to seek leave to amend the petitions, the petitions were bound to be dismissed. The petitioners were invited to discontinue the petitions forthwith. That is the background relied upon by the first respondents in seeking a special order. 19 The question of indemnity costs is not a straightforward one. It is true that the petitions were dismissed summarily, more or less on the grounds outlined to the High Court by counsel for the successful candidates, and briefly referred to in the letter of 21 December 2010. Nevertheless, the argument that was necessary to reach the conclusion that I reached was not perfectly straightforward. It may be that, to some extent, the argument was muddied by the contentions advanced in relation to the substantive questions that the petitioners sought to raise. While the petitions were certainly flawed, I do not consider that it was unreasonable for the petitioners to have persisted in the contentions advanced by them. It is not appropriate to order that the costs of the successful candidates should be paid otherwise than on the ordinary basis. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.