Innes v Electoral Commission of Queensland & Anor

• [1] The applicant disputed the election of the second respondent as Mayor of the Sunshine Coast Regional Council and made an application to the Court of Disputed Returns seeking orders including those which would have the effect of setting aside the election result.
• [2] His application alleged incompetence and "unfairness" on the part of the Electoral Commission of Queensland ("ECQ") and made serious allegations about the conduct of the second respondent. Because of the nature of some of his allegations, the Attorney-General for the State of Queensland intervened on matters which engaged the Human Rights Act 2019.
• [3] On 24 September 2020, I dismissed the applicant's application. I delivered my reasons for doing so and invited written submissions as to costs: see Innes v Electoral Commission of Queensland & Anor (No 2) [2020] QSC 293.
• [4] Costs in the Court of Disputed Returns are governed by section 148 of the Local Government Electoral Act 2011 ("LGEA"). Under section 148(1) LGEA, the Court "may order an unsuccessful party to an application to pay the reasonable costs of the other parties to the application".
• [5] The first and second respondents seek their costs. The intervenor does not.

• [6] Under section 141(2) of the LGEA, the ECQ is a respondent to any application filed by another person under Division 1 of Part 7 (Disputed Results).
• [7] In Caltabiano v Electoral Commission of Queensland & Anor (No 5) [2009] QSC 341, Atkinson J discussed the circumstances in which an unsuccessful applicant may be required to pay a respondent Commission's costs. Her Honour said at [3] -

The circumstances in which an unsuccessful applicant may be required to pay a respondent Commission's costs were set out by Brennan CJ in Free v Kelly [1996] HCA 42; (1996) 185 CLR 296 at 305; [1996] HCA 42 at [13]. The Chief Justice discussed the role of the Commission in that case in which it was a respondent party and its submissions had largely been accepted. However his Honour said that an order for costs should depend not on the deemed status of the Commission as a party but on the function which the Commission performs in being represented and heard on the trial of such an application. His Honour said:

"The Commission may be represented and heard under s 359 [of the Commonwealth Electoral Act 1918 (Cth)] in at least four categories of case: cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election; cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions; cases where the Commission adopts a partisan stance supporting one party or another; and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition. It may be appropriate to make an order [for costs] for or against the Commission in the first three categories of case, but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest". (citation omitted)

• [8] The present case is primarily an example of the first category of case: the ECQ defended its conduct of the election.
• [9] The applicant's allegations against the ECQ were very serious ones. I consider the ECQ's defence of the allegations made about it necessary and justified. I found, in effect, that in almost every respect, the ECQ had conducted itself appropriately and reasonably in the face of the pandemic. The ECQ was successful against the applicant.

• [10] For obvious reasons, it was necessary for the second respondent to defend himself against the allegations made about him by the applicant (see section 141(3) LGEA). His defence was justified and he was successful against the applicant.

• [11] The ordinary or usual rule is that costs follow the event.
• [12] I consider it appropriate to apply the ordinary rule in this electoral case.
• [13] In accordance with the ordinary rule - the applicant is to pay the first and second respondents' costs unless there is a reason to depart from the rule.
• [14] The applicant submits that there are reasons for departing from the ordinary rule in this case. The respondents submit there are not.
• [15] Before dealing with those submissions, it is important to bear in mind the policy behind the ordinary (or usual) rule (to which the first respondent referred) -[1]

The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.

• [16] The first respondent submits (in effect) that there is no reason why the ordinary rule ought not to be applied here. Further, it submits that the public interest would not be served by requiring the taxpayers of Queensland to fund the ECQ's successful defence of the applicant's application.
• [17] The second respondent submits that to do otherwise than apply the ordinary rule would impose an unjustifiable burden on the second respondent for the costs of defending a baseless claim that has been wholly rejected by the Court and would only serve to encourage further baseless litigation by disappointed election candidates.
• [18] The applicant submits that his application was of "significant public interest", warranting a departure from the ordinary rule.
• [19] Also, he submits that the first and second respondents should be "deprived of any costs associated with [the] hearing given their purported agreement (and offer) to withdraw and terminate matters, without costs".
• [20] He suggests that, had he withdrawn the application in pursuance of the invitation of the first and second respondents to do so, that "would have had the effect of throwing away the considerable endeavour of the Attorney-General" in her submissions in relation to the Human Rights Act 2019.
• [21] The applicant makes other arguments about substantive matters in support of his submission that costs ought not to be awarded against him. For example, he asserts that he was denied natural justice and that the onus of proof had been reversed. His arguments about substantive matters are irrelevant to the question of costs and I will make no further mention of them.

Should the court not award costs against the applicant because he brought his application in the public interest?

• [22] The first respondent submits that the proceeding was not public interest litigation. It submits that the applicant had a private interest in the relief sought. Further, the applicant did not inform the Court or the respondents that the matter comprised a test case or a public interest case.
• [23] The second respondent observes that in his originating application, the applicant made claims that -
  • the election was conducted "unfairly";
  • his campaign costs were "thrown away and wasted"; and
  • his rights as a candidate and his reasonable and timely complaints were ignored by the ECQ.
• [24] He also made specific allegations of misconduct against the second respondent.
• [25] The second respondent submits (in effect) that the applicant was primarily pursuing private ends, including direct financial compensation, and there could be no valid suggestion by the applicant that his application had the character of public interest litigation.
• [26] In reply, the applicant submits that any claim that he was self-interested in bringing his application is baseless. He submits that "the simple fact is IF the election was conducted unfairly to ANY CANDIDATE (as it was) then it is a public interest matter to have a determination as regards LGEA 136(2) simply because 'The election may not be disputed in any other way' AND this judgment failed to identify any alternative means".
• [27] In my view, any public interest element to the applicant's application was incidental to its primary purpose, which was to unseat the second respondent as Mayor.
• [28] The applicant's focus was on the unfairness of the conduct of the election insofar as it concerned him and his idiosyncratic response to the challenges presented by COVID19 - although he mentioned broader concerns. Further any claim to public interest was, in my view, overwhelmed by the applicant's many allegations of no substance against the second respondent.
• [29] I do not accept the applicant's argument that he should not be ordered to pay costs because he brought an application in the public interest.

Should the court not award costs against the applicant because, by refusing to settle with the first and second respondents and withdraw his application, the Court was required to consider the Human Rights Act 2019 and that was in the public interest?

• [30] The second respondent's "offer to settle" (which encompassed an offer to settle by the first respondent also) made on 4 August 2020 - before the hearing - included the following -

This offer represents our client's final attempt to bring these proceedings to an end in a reasonable manner before further unnecessary costs are incurred.

Despite repeated recommendations from the parties for you to obtain legal advice about your matter and despite you requesting and being granted by Her Honour a period at the commencement of the proceedings to enable you to obtain advice, you have failed to do so. You have also been warned repeatedly by the parties about the cost consequences of continuing your claim and the intention of [the] First and Second Respondent[s] to seek orders for costs against you if you continue to pursue your claim.

We have conferred with the First Respondent which has confirmed that if you agree to withdraw your matter in conjunction with an agreement with the First Respondent [sic][2] that he will not pursue you for his legal costs, the First Respondent would also agree not to make any application for costs against you. That commitment by ECQ could be formalised as appropriate to provide you with confirmation of that position.

This offer remains open until 5.00 pm 10 August. In light of all [of] the issues outlined above, rejecting our client's proposal would be entirely unreasonable conduct and if you fail to accept this offer before it lapses our client puts you on notice that he will bring this letter, in addition to our previous correspondence warning you about costs, to the attention of the Court in the matter of costs, including indemnity costs.

• [31] The applicant's response to this correspondence (that he was "concerned" about it, because it was not a formal offer under the Uniform Civil Procedure Rules 1999 and therefore should be brought to the Court's attention in the course of the substantive hearing) was misconceived. Regardless, neither the fact of this offer, nor the applicant's rejection of it, provides a reason why costs ought not to be ordered against the applicant. (Indeed, the respondents would say that it provides a reason for costs to be awarded against him.)
• [32] It is correct to say that, because the applicant did not withdraw his application, the Attorney-General intervened in the hearing and made submissions about the Human Rights Act 2019. But the applicant was not in a position to respond to the Attorney's submissions. Indeed, it seems that, when he brought his application, he had not contemplated the intervention of the Attorney-General or the reframing of his arguments as human rights arguments. In fact, he was somewhat resistant to the reframing of his arguments in terms of the rights protected under the Human Rights Act 2019.
• [33] As I noted in my substantive judgment, because the applicant was in no position to assist in the interpretation of the Human Rights Act 2019, I did not consider it appropriate to make any definitive statements about the application of the Act in Queensland. In that sense, there was little public interest benefit in my consideration of the interpretation of the Act.

• [36] There is no reason why the ordinary rule ought not to apply in this case.
• [37] The applicant was not successful in his application. The first and second respondents responded appropriately to it.
• [38] There was no genuine public interest element to the applicant's application and the fact that he declined offers to settle it does not detract at all from the appropriateness of costs orders in favour of the first and second respondents.
• [39] Accordingly, and giving effect to the policy behind the usual rule, costs will follow the event.

[1] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] per McHugh J (footnote omitted), quoted in New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119 at [44]; and Rintoul v State of Queensland [2018] QCA 20 at [40].

[2] I understand this to be a reference to the second respondent.