Hanson v Johnston & Ors

Judgment 1HIS HONOUR: The petitioner, Pauline Lee Hanson, was a candidate in the elections for the Legislative Council held in March this year. She was not elected but was the last candidate eliminated in the count. 2Immediately after the writ for the election was returned the petitioner was sent and received an email from a person purporting to be Michael Rattner. The email raised allegations that officers of the Electoral Commission had been involved in a deliberate failure to count valid votes during the process of sorting and counting ballet papers. The allegation was that votes which may have been lodged for the petitioner had been improperly placed in a pile containing blank ballot papers. 3The email indicated that Mr Rattner had obtained this information from his "girlfriend" who allegedly worked for the Electoral Commission. She in turn had allegedly provided him with copies of emails purportedly exchanged between officers of the Commission. 4The full text of the emails in the relevant sequence are as follows: "AN INTERNAL EMAIL FROM THE ELECTORAL COMMISSION REGARDING THE VOTE 3 messages Michael Rattner13 April 2011 19.07 To: pauline@paulinehanson.net.au Dear Hanson Team, Scroll down and read this email that my partner got access to today. She is close to someone in the electoral commission. Thought you might find it interesting. Please don't use my name in using this. All the best. Michael. From: Ian.Brightwell@elections.nsw.gov.au To: Richard.Carroll@elections.nsw.gov.au Date: Tues, 12 Apr 2011 15.48.17 Subject: RE: Media Enquiries: NSW Upper House Dear Richard, Thank you for your enquiry regarding advice on media enquires relating to today's pushing of the button for the Upper House preferences. Just stonewall them as much as possible when it comes to Hanson and her issues with the count. Do not mention that there is any possible provision for a recount. We know some of her people and the media are looking at the blank ballots and are trying to get them all rechecked because one of her scrutineers was meant to of found some of her votes in amongst the blanks (I have heard through the chain that there could be as many as 1200 across the state that are in with the blanks as there were a few dodgy electoral staff on, but don't offer that). Let them put in an official request and go through those channels. If you have any further issues then feel free to give me a call. Ian Brightwell CIO NSWEC From: To: Date: Tues, 12 Apr 2011 14:21:03 Subject: RE: Media Enquiries: NSW Upper House Hi Ian, Just a quick note on your thoughts on the media and their requests for comment regarding today's Upper House vote. We are starting to get a few Pauline Hanson nutters called through with accusations of foul play with the count and various conspiracy theories. Thanks, Richard Carroll Election Advertising and Communication Officer NSW Electoral Commission Level 25, 201 Kent Street Sydney NSW 2000 Switch:" (02) 9290 5999, Direct: (02) 9290 5936, Fax: (02) 9290 5991 Email: CONFIDENTIALITY NOTICE This message is intended for the addressee named and may contain confidential information. If you are not the intended recipient, please delete it and notify the sender. Views expressed in this message are those of the individual sender and are not necessarily the views of the NSW Electoral Commission, Election Funding Authority or the Electoral Commissioner." 5When this information came to her the petitioner was already aware that during the course of the count an innocent mistake had been made and 15 votes for her had been placed in the pile of blank votes. In these circumstances I believe it was reasonable that the petitioner would connect this undoubted mistake with the allegations communicated to her of other similar irregularities, raising concerns in her mind about the validity of the election result. 6The petitioner commenced these proceedings on 5 May 2011. She has sworn and I am satisfied she believed that the emails were genuine. Her solicitor took steps to secure the attendance of Michael Rattner at court and also sought an affidavit from him. 7As it happens Michael Rattner does not exist. He is a fictitious person created by a person named Sean Castle. Mr Castle supported the fictitious person by creating an email account, a Facebook profile and making communications purporting to be from Michael Rattner. 8When the matter first came before this Court the petitioner's counsel called upon a subpoena addressed to Michael Rattner to attend to give evidence. He did not appear. As a consequence I issued a warrant for his arrest. The warrant was not executed. However, Mr Castle voluntarily came to court and indicated that the person Michael Rattner was fictitious and admitted that he had created him. He also gave evidence that the email was false and confirmed that he had no information to support any suggestion of inappropriate conduct by officers of the Electoral Commission. 9In these circumstances the petitioner took the only course available to her and consented to the petition being dismissed. The question which remains is who should pay the costs of the proceedings. 10The petitioner initially indicated through her counsel that she would seek an order for costs against Mr Castle. Against that eventuality Mr Castle was joined in the proceedings in relation only to the matter of costs. Following a tentative indication of the course I proposed to take the application that Mr Castle pay the costs was not pursued. As it happens, although it is not necessary for me to resolve the issue, my tentative view is that I do not have the power to make an order for costs against a third party to the proceedings. 11When sitting as a Court of Disputed Returns a judge of the Supreme Court exercises the powers provided by the Parliamentary Electorates and Elections Act 1912 ("the Act"). Part 6 of that Act provides for the Court of Disputed Returns. Section 161 states the powers vested in that court. Those powers include a power to award costs (section 161(1)(ix)). Ordinarily one would construe that power as unconfined and like the power to award costs under s 98 of the Civil Procedure Act 2005, conclude that the court could make an order for costs against third parties. However, s 172 of the Act makes express provision for an award of costs which the Court of Disputed Returns may make which is confined to an order awarding costs against an unsuccessful party. 12That section is in the following terms: "The Court may award costs against an unsuccessful party to the petition and may in its discretion recommend that costs by paid by the Crown." 13The petitioner has failed in her petition and for the purposes of s 172 is an "unsuccessful party." Accordingly, her counsel accepts that costs must follow the event and she should be ordered to pay the costs of each of the three respondents to the petition. However, she asks that I, in the exercise of my discretion, recommend that the costs she is ordered to pay and her own costs should be paid by the Crown. 14Each of the respondents seeks an order for costs, the first two respondents seeking an order for indemnity costs. I am not persuaded that an order for indemnity costs is appropriate. However, I accept that the petitioner should be ordered to pay the costs of each of the respondents. I am also persuaded that I should recommend that those costs should be paid by the Crown. 15It was submitted by each of the respondents that the petitioner unreasonably commenced proceedings in circumstances when she should have been aware that those proceedings were doomed to fail. They each emphasised the fact that the email which raised questions in relation to the validity of the election was not capable of proving that there had been an irregularity in the count. The email was merely an assertion by a person who claimed to have knowledge from within the Electoral Commission that there was an irregularity which if established would prove that the count was fraudulent. Accordingly it was submitted that without any expectation that the petitioner would actually be able to establish the asserted irregularity and without first undertaking further preliminary investigations into the authenticity of the email, it was unreasonable for her to commence the proceedings. 16I do not accept these submissions. It seems to me that the petitioner being aware of an irregularity in relation to the 15 votes, (which I hasten to emphasise was an entirely innocent mistake), which was of the same character as that asserted in the email, although asserted to be an irregularity on a much larger scale, the petitioner was entitled to maintain a real doubt as to the integrity of the election result. Of course she did not know Mr Rattner and, apart from the efforts made by her solicitor to obtain an affidavit from Mr Rattner and secure his attendance at court, she had no power to conclusively investigate and establish the truth or falsity of the email. Her only avenue was to commence proceedings in this Court where the matter could be authoritatively determined. 17It was submitted that during the course of the matter the Electoral Commission brought forward evidence which should have persuaded the petitioner to terminate the proceedings at an earlier date. In support of this submission the Electoral Commission emphasised the fact that an independent audit was conducted of the Commission email communications which failed to identify the email which Mr Rattner represented to have been received. Furthermore, the sender and receiver of the emails swore affidavits denying that they had ever sent these emails. 18As it happens the Electoral Commission's position has been completely vindicated. However, in the circumstances where the allegation which was brought forward was of electoral fraud in which the Commission's officers had participated I am satisfied that it was reasonable for the petitioner to bring and maintain the proceedings so that the allegations could be authoritatively resolved one way or the other. Although it was obviously in the petitioner's interests that the proceedings be brought, once the allegations were raised and made public it was clearly in the public interest that the issue be resolved in this Court. And for that reason I believe it to be appropriate for the Crown to pay those costs. 19In Dunbier v Mallam [1971] 2 NSWLR 169 at 177 Hardie J made orders that an unsuccessful party pay the costs of the successful parties but recommended that all of the unsuccessful party's costs including those incurred on its behalf in bringing the proceedings should be paid by the Crown. I am satisfied that it is appropriate for me to make orders in similar terms in these proceedings.