Nile v Wood

High Court of Australia|1987-12-16|Before: Toohey JJ

High Court of Australia Brennan, Deane and Toohey JJ. Nile v Wood [No 2] [1988] HCA 30

ORDER Petition dismissed with costs. Liberty to petitioner to apply to the Court that the Commonwealth pay the costs of the petitioner and the costs of the first respondent which the petitioner was ordered to pay. Order that the Commonwealth pay to Elaine Nile the amount of costs which she is required to pay to Robert Wood pursuant to the order of the Court made on 16 December 1987. No order as to the costs of this application.

The Court delivered the following written judgment: -

This is a motion to dismiss, alternatively to strike out, a petition addressed to this Court as the Court of Disputed Returns under s. 353 of the Commonwealth Electoral Act 1918 Cth ("the Act").

On 25 August 1987, following the last federal election, the first respondent was declared to have been elected as a senator for the State of New South Wales.

The petitioner was a candidate for a position of senator for New South Wales. Her petition alleges various matters which, it says, entitles the petitioner "to object to the declaration of the poll".

The matter came before a justice of this Court sitting as the Court of Disputed Returns on a summons for directions. At that time counsel for the petitioner applied to amend the petition which was acknowledged to be defective in at least one respect, namely in failing to contain a prayer for relief. Counsel for the first respondent objected to the amendments sought, contending that the defects were not curable. He also foreshadowed a motion to strike out the petition in its entirety. The directions hearing was then adjourned to enable the motion to be filed. As the question of amendment of the petition was closely bound up with the general attack to be made on the petition, no decision was made on the application to amend.

The first respondent's motion was subsequently filed and made returnable before a Full Court.

The first respondent abandoned two of the grounds in his motion. He did not press another ground which was that the petition was incompetent in seeking to have the Court exercise jurisdiction and powers exercisable only by the Senate under Div. 2 of Pt XXII of the Act. The other grounds go to the failure of the petition to meet the requirements of the Act. Having heard argument, the Court reserved its decision. On reflection, and although the point had not been raised by counsel in regard to the grounds of the motion being pressed, it seemed to us that the petition, coupled with the application for amendment, gave rise to a matter between the petitioner and the respondents arising under the Constitution. Moreover a necessary consideration of s. 44 of the Constitution involved or might involve its interpretation. In those circumstances the matter was relisted and the Court directed that notices be given pursuant to s. 78B of the Judiciary Act 1903 Cth. The matter was relisted for hearing and the Court heard submissions by the Solicitor-General for the Commonwealth and further submissions by counsel for the parties. We now turn to the attack made on the petition.

Section 355 of the Act sets out the requisites of a petition. Section 358 provides that no proceedings shall be had on a petition unless the requirements of certain sections, including s. 355, are complied with. Section 355 provides, for present purposes, as follows:

every petition disputing an election or return shall -

(a) set out the facts relied on to invalidate the election or return:

(b) contain a prayer asking for the relief the petitioner claims to be entitled to:

(e) be filed in the Registry of the High Court within 40 days after the return of the writ .

The requirements of the section which, it is said, the petitioner has not complied with, are those in pars. (a) and (b).

If a petition does not comply with s. 355, s. 358 ensures that no proceedings may be had on it. Nor are such defects capable of being cured by amendment, at any rate after the period of forty days fixed by par. (e) for the filing of a petition has expired. That much is clear from several decisions of this Court, in particular Cameron v. Fysh [1] ; In re Berrill [2] and Evans v. Crichton-Browne [3] . The rationale of the refusal to allow an amendment in those circumstances may be found in the judgment of Gibbs A.C.J. in In re Berrill [4] : " for to do so would in effect be to permit an evasion of the requirements of s. 185(e)." Section 185(e) of the Act, as it then stood, was in terms comparable to s. 355(e) of the present Act.

(1904) 1 C.L.R. 314. 2. (1978) 52 A.L.J.R. 359; 19 A.L.R. 254. 3. (1981) 147 C.L.R. 169. 4. (1978) 52 A.L.J.R., at p. 360; 19 A.L.R., at p. 255.

In the present case the last date for the return of the writ was 3 September 1987; the writ was in fact returned on 25 August. The period of forty days fixed by s. 355(e) had already expired when the summons for directions came on for hearing.

Undoubtedly the petition as formulated contains no prayer for relief. This is no mere oversight of an unimportant matter. Section 355(b) is clear as to what it demands. When the matter was before the Full Court counsel for the petitioner sought leave to amend the petition by adding a paragraph, to read:

The Petitioner Elaine Nile was a candidate at the election for the Senate 1987 and would be entitled to election if the election of Robert Wood is declared void. Counsel also applied to include a prayer for relief in these terms:

(1) That this Court declare the said Robert Wood to have been disqualified for election; and

(2) Your Petitioner Elaine Nile to be elected to the Senate; and

It is only by reference to the proposed amendments that it is possible to divine which of the powers of the Court the petitioner seeks to invoke. From the proposed amendments, it appears that the case which she would wish to make is that the first respondent was disqualified at the time of his election. When a petition comes before the Court of Disputed Returns under Pt XXII of the Act, the Court is empowered by s. 360 to do various things including declaring that a person who was returned as elected was not duly elected (s. 360(1)(v)), declaring a candidate duly elected who was not returned as elected (s. 360(1)(vi)) and declaring an election absolutely void: s. 360(1)(vii). To comply with the mandatory requirements of s. 355, it is encumbent on a petitioner to specify the relief sought. As the above-mentioned cases establish, the petitioner's failure to do so cannot now be remedied by amendment. That being so, the application to amend the petition must be refused. The defect in the petition arising from the absence of a prayer for relief precludes the taking of further proceedings on it.

The absence of a prayer for relief is not the only defect in the petition. The petition is notable for a failure to "set out the facts relied on to invalidate the election ". The petition must set out facts which would justify relief under the Act: see Cole v. Lacey [5] . This it fails to do.

The petition makes the following assertions in par. 2:

(a) Robert Wood has been convicted of the offence of obstructing shipping, being an offence which carries a term of imprisonment.

(b) He was convicted in 1972 of offences in relation to National Service, and served a term of imprisonment.

(e) His actions against the vessels of a friendly nation indicate allegiance, obedience or adherence to a foreign power.

These assertions are derived from s. 44 of the Constitution. That section renders incapable of being chosen or of sitting as a senator any person who:

(i.) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: or

(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or

Assuming that s. 360 of the Act empowers the Court of Disputed Returns to declare void the election of a person who is incapable of being chosen as a senator by reason of s. 44 of the Constitution, does the petition set out the facts relied on to invalidate the election?

Paragraph 2(a) of the petition does not set out facts which bring the first respondent within par. (ii) of s. 44 of the Constitution. It is not conviction of an offence per se of which s. 44(ii) of the Constitution speaks. The disqualification operates on a person who has been convicted of an offence punishable by imprisonment for one year or more and is under sentence or subject to be sentenced for that offence. The references to conviction and sentence are clearly conjunctive, although counsel for the petitioner argued otherwise. This is so as a matter of construction of the language used in s. 44(ii). And it is apparent that it was the intention of the framers of the Constitution that the disqualification under this paragraph should operate only while the person was under sentence: see Quick & Garran, Annotated Constitution of the Australian Commonwealth (1901), pp. 490, 492; Official Report of the National Australasian Convention Debates, Sydney (1891), pp. 655-659. The petition does not identify the precise offence to which the words "obstructing shipping" are intended to refer and nothing at all is said in the petition regarding sentence.

Paragraph 2(b) of the petition is open to much the same objection. But more than that, it positively asserts that the first respondent had already served a sentence for the offences vaguely described, thereby in terms taking the objection out of s. 44(ii).

Paragraph 2(c) of the petition is simply a conclusion the petitioner invites the Court to reach. It sets out no facts.

Paragraph 2(d) merely reproduces one of the words in s. 44(iii) of the Constitution. The Solicitor-General for the Commonwealth, supported by counsel for the first respondent, submitted that the adjective "undischarged" in par. (iii) attaches both to "bankrupt" and to "insolvent". In other words, insolvent is not adjectival and merely describing a person who cannot pay his debts as they fall due. It is, the Solicitor-General submitted, part of a composite reference to the status of a person who has been declared bankrupt or insolvent and who has not been discharged from that condition. That view of s. 44(iii) is, we think, correct.

At the turn of the century some Australian Colonies had bankruptcy laws (Bankruptcy Act 1898 N.S.W., Bankruptcy Act 1892 W.A., Bankruptcy Act 1870 Tas.); some had insolvency laws: Insolvency Act 1890 Vict., Insolvency Act 1874 Q., Insolvent Act 1886 S.A.. In each case the statute provided for the adjudication of a person by a court as either a bankrupt or an insolvent. In each case the statute provided machinery for the discharge of the person so adjudicated. It is true that the word "insolvent", standing on its own, is not a term of art and may mean no more than unable to pay debts that are due: Re Muggeridge's Trusts [6] . But against a statutory background such as the Insolvent Act 1886 S.A., the term has been held to mean adjudicated insolvent: In re Salom; Salom v. Salom [7] . Again, this view of s. 44(iii) is borne out by records of the time: see Official Record of the Debates of the Australasian Federal Convention, Sydney (1897), pp. 1015-1019; Melbourne (1898), pp. 1932-1940.

(1860) Johns. 625, at p. 627 [ 70 E.R. 569, at p. 570]. 2. [1924] S.A.S.R. 93.

The petition fails to allege that the first respondent was an undischarged bankrupt or an undischarged insolvent; clearly par. 2(d) is formulated on the basis that it is enough to allege that the first respondent is unable to pay his debts, a mistaken view of the paragraph.

Paragraph 2(e) of the petition falls well short of setting out facts which bring the first respondent within s. 44(i) of the Constitution. It does not, in terms, assert allegiance, obedience or adherence to a foreign power. And the facts it sets out in order to establish the conclusion that the first respondent was under any acknowledgment of allegiance, obedience or adherence to a foreign power are clearly insufficient for the purpose. It does not even identify a foreign power. Furthermore it would seem that s. 44(i) relates only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgment: see Crittenden v. Anderson [8] ; also Quick & Garran, pp. 490, 491; Official Report of the National Australasian Convention Debates, Adelaide (1897), p. 736. That however is a matter we do not have to decide.

Unreported; 23 August 1950; High Court of Australia; Fullagar J., n. (1977) 51 A.L.J.R. 171.

It follows that the petition fails completely to comply with the requirements of s. 355(b) of the Act. We also conclude that each of the sub-paragraphs of par. 2 of the petition fails to comply with s. 355(a). The consequence is that the petition is incurably defective and that no proceedings may be had on it.

The petitioner, as Mrs. Nile was described in our judgment in this matter, filed a document which was intended to serve as a petition disputing the election of William Robert Wood as a Senator for the State of New South Wales. We held that the putative petition was incurably defective. The putative petition failed to comply with either par. (a) or par. (b) of s. 355 of the Commonwealth Electoral Act 1918 Cth. The petition was dismissed. Mrs. Nile was ordered to pay the costs of Senator Wood.

When judgment was delivered, counsel for Mrs. Nile stated that she wished to seek an order that her costs (including the costs she had been ordered to pay Senator Wood) be paid by the Commonwealth. Mrs. Nile was given leave to make an application for such an order upon giving notice to the Commonwealth of the order sought. The matter has now been relisted, written submissions have been received and they have been supplemented by oral argument. Mrs. Nile seeks an order for costs to be paid by the Commonwealth pursuant to the provisions of s. 360(1)(ix) and (4) of the Act. Sub-section (4) reads as follows:

The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so.

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 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.

I can find no warrant for making an order in this case. The proceedings in respect of which an order is sought consisted of no more than the filing of the putative petition and Mrs. Nile's resistance to an application to strike out the incurably defective document. From start to finish the proceedings were concerned with the form of the document and its sufficiency to launch an attack on Senator Wood's election. I see no reason to order that the Commonwealth should carry any part of a burden of costs which was created solely by the defects in the putative petition.

If this 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, we would be of the view that no order at all should be made. Mrs. Nile's petition against Mr. Wood failed because it was defective both as to form and as to substance. Accordingly, it was dismissed and she was ordered to pay Mr. Wood's costs. There is no reason why the Commonwealth should, in those circumstances, be ordered to pay to Mrs. Nile either the costs which she has been ordered to pay to Mr. Wood or her own costs of the proceedings. Indeed, the Commonwealth was not even a party to the proceedings.

The matter does not, however, fall to be determined by reference to those ordinary principles. Section 360(4) of the Commonwealth Electoral Act 1918 Cth 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 so to do. We would not attempt to confine it by definition beyond saying that it 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.

We are not persuaded, in the circumstances of the present case, that it would be appropriate to make an order that the Commonwealth pay Mrs. Nile's own costs of the proceedings. The position is, however, different in so far as the costs which she has been ordered to pay to Mr. Wood are concerned. It is now known that Mr. Wood was not qualified to be elected as a senator. If that fact had been known at the conclusion of these proceedings, in which Mr. Wood was defending his putative position as a senator, a question would have arisen about whether an order for costs should have been made in his favour. Be that as it may, we think that, 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, we consider it appropriate that an order be made which will have that effect.

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