Peebles v Honourable Tony Burke

REASONS FOR JUDGMENT 1 On 4 August 2010 I dismissed an application for injunctive relief under s 383 of the Commonwealth Electoral Act 1918 (Cth) and published my reasons for doing so on 9 August 2010: Peebles v Honourable Tony Burke [2010] FCA 838. These reasons concern the question of costs. 2 The respondents seek an order that the applicant pay their costs. The applicant submits that each party should pay their own costs. I have vacillated about what order should be made. At one stage I thought the observations of Dowsett J in Hudson v Entsch [2005] FCA 557 at [5] and [6] pointed clearly to ordering the applicant to pay the costs though on closer analysis of the issues in the primary proceedings (see (2005) 216 ALR 188) it is clear that the issues were quite unusual and removed from the issues in the present case. At a later stage I considered the conduct of the first and possibly second respondent in publishing election material which, in at least some respects, was arguably likely to mislead or deceive electors should disentitle a least those respondents from the benefit of a costs order in their favour against the applicant. On reflection I have concluded that the appropriate order is that the applicant pay the respondents' costs of the proceedings. My reasons for reaching this conclusion are as follows. 3 I accept that there is, in the broadest sense, a public interest in ensuring compliance with the Electoral Act. However it does not follow that any applicant seeking relief under or by reference to the Electoral Act can do so on the assumption that the discretionary power to award costs will not be exercised in the usual way. That is, costs will follow the event. I immediately acknowledge there are special provisions in the Electoral Act (s 360(4)) concerning costs which operate in certain circumstances. That is illustrated by, as the applicant points out, the costs order (in the form of an answer to question) made in Sue v Hill (1999) 199 CLR 462 at 574. Those provisions have no application in this matter. More generally, the mere making of an application under or by reference to the Electoral Act does not clothe the proceedings in the mantle of "public interest litigation" thereby enlivening some special rule in relation to costs. So much is apparent from the discussion by McKerracher J in Horn v Australian Electoral Commission [2008] FCA 43. 4 I earlier made passing reference to the observations of Dowsett J in Hudson v Entsch at [5] and [6]. What his Honour said was: [5] Finally, and this, perhaps, is the most significant of the applicant's submissions and the most meritorious, it is said that the matter involved a significant question of public interest, and that, for that reason, an order for costs ought not be made against him. It is true that the matter raises a question of public interest. The second respondent demonstrated a significant interest in having light thrown upon the relevant provisions of the legislation, which provisions pose some difficulties of construction. I do not pretend to have solved those problems. I have sought to identify them and have offered my opinions, which are conclusive as between the present parties, subject to such rights of appeal or review as may be available. Whether the decision has any wider value is for others to determine. I say that only because it highlights the fact that, whatever the public interest may have been in these proceedings, that consideration does not lead to the conclusion that the first respondent should be compelled to pay the costs incurred by him in defending them. He did not choose to come here; he did not choose to raise the issues for determination; and there can be little doubt that, had he had the option, he would not have sought to be involved in these proceedings. [6] Where a government agency is involved in proceedings which have a public interest element relevant to the activities of that agency, it may choose not to seek an order for costs in the event that it is successful. Indeed, the second respondent has adopted that course in these proceedings. However there is great potential danger in allowing individual members of the public to decide that particular issues are of public interest if that means that others must pay for the ensuing litigation. An individual should not be encouraged to think that he or she can litigate without the risk of an order for costs in the event that he or she is unsuccessful, merely because he or she considers that there is some aspect of public interest to be vindicated in the litigation. The question is whether the first respondent or the applicant should bear the first respondent's costs of these proceedings. The applicant started the proceedings; the first respondent had no choice in the matter and resisted them. I consider that the better outcome is that the applicant pay those costs. I therefore order that the applicant pay the first respondent's costs of these proceedings, including reserved costs, subject to one qualification. It is appropriate to exclude from that order the costs of and incidental to the preparation and filing of the defence. I so order. 5 I think this can reasonably be described as a fairly robust approach to the exercise of the discretionary power to award costs in proceedings broadly analogous to the present though having regard to the unusual nature of the case one cannot cavil with the approach and the result. Nonetheless his Honour's observations are apt in the sense that the characterisation by an applicant of proceedings as being in the public interest, even if a genuinely held view, should not, of itself, immunise an applicant against a costs order in the event that the application fails. 6 In the present case the appropriate costs order in relation to the third respondent is, on reflection, clear. The Australian Electoral Commission should have its costs. The AEC was necessarily drawn into this litigation because the applicant sought relief against it. The specific relief the applicant finally sought against the AEC was in these terms: [An] [o]rder restraining the [AEC] by its servants or agents or otherwise from accepting and taking any steps in relation to the postal vote application forms of the First and Second Respondents in respect of the 2010 general election in the State of New South Wales for the Senate and the House of Representatives and/or the electoral division of Watson for the poll fixed for 21 August 2010. Even if the applicant had established contravention of s 329 by the first respondent, the second respondent or both it is tolerably clear that no power is conferred on the Federal Court by s 383 to make such an order and no other clear source of power was pointed to by the applicant. Even assuming power (such as that conferred by s 23 of the Federal Court of Australia Act 1976 (Cth) though it would be highly arguable that the Electoral Act provides an exhaustive code of available remedies: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [27]) the order sought would have constrained the AEC from performing a clear statutory duty under the Electoral Act having regard to Part XV and s 188 in particular. While the AEC could have taken the position that it would meet its own costs, it has not done so and its attitude is, in the circumstances, a reasonable one. 7 I have also concluded, on reflection, that the first and second respondent should have their costs as well. It is true that the conduct of at least the first respondent was, in a general sense, arguably inappropriate or undesirable in that it is arguably likely to lead to an elector being misled or deceived at least about the provenance of the envelope and the material it contained though one must accept, as the first and second respondent pointed out, that the reply paid return envelope identified the person to whom a completed application form was to be returned (the first respondent). However these proceedings did not concern the question of whether the first respondent, the second respondent or both engaged in inappropriate or undesirable conduct. What these proceedings concerned was the question of whether either or both had engaged in conduct which constituted an offence under the Electoral Act involving contravention of s 329. That is a serious allegation and it was made by a political opponent. It was an argument that failed. While I could not characterise the application as one which was doomed to fail, the prospects of the applicant establishing that the impugned conduct was "likely to mislead or deceive an elector in relation to the casting a vote" were, in my opinion, extremely limited. The first and second respondent were drawn into the proceedings by the applicant and plainly entitled to defend them. In these circumstances they are entitled to their costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.