Ritchie v Davis & Anor

Challenges to the Second Respondent's authority, and the decisions he makes in the conduct of ALC (and indeed other) elections, are seriously constrained by Acts, Regulations and the general law. Traditionally such challenges are not agitated until after the result of the election is declared.

For the declared result of an ALC election to be overturned when challenged, any errors found to have been made by the Second Respondent must be " material ", in the sense that the result, as declared, is " unsafe ".

On 20 April 2000, the parties to this particular challenge appeared before me on a notice of motion brought in consequence of the concession on the part of the respondents that the applicant was entitled to the relief sought in his class 4 application. The court dealt with the Notice of Motion on the basis of an agreed statement of facts ( Exhibit R1 ), which dealt only with the substance of the conceded claim.

The applicant proceeded to satisfy me that I should, in fact, make the orders he sought, and I did so, on the basis that I found a " material error " in the conduct of the relevant election. As I said in making the orders which the applicant sought, and the respondents eventually conceded should be made:

The case turns on the decision taken by the Commissioner to accept the nomination of one Mal Cochrane as a candidate to contest the relevant election. It would appear that he may have been entitled to enrol as a member of the relevant local Aboriginal Land Council, and thus to appear on the certified roll thereof, and on the certified Regional Roll, but as a result of certain chain of events, he was not so enrolled. Not having been enrolled, he was, by force of law, not eligible to contest the election as a candidate.

It is common ground, whatever the factual explanation may be, that allowing him to do so, as one of 10 candidates, was an error of law (see ALRA s 27 and Regulation 47), on the part of the Commissioner. Mr Cochrane received 16 votes and in the penultimate count, the First Respondent's majority over the eliminated candidate was 13 votes.

The uncontested argument of the applicant is that these circumstances infected the result of the election to such an extent that the process miscarried, and the election is void, and I agree respectfully with that conclusion of law.

In fairness to the Second Respondent, I should note that his counsel conceded the electoral process to have been infected by an error of law, such as to render the election unsafe, in only one respect . That important limitation on his concession was made perfectly clear in Mr Craddock's written submissions of 20 April 2000, in pars 10-11 of which he said: Eligibility to nominate for election is determined by the fact of enrolment. The certified roll is the returning officer's only resource for determining eligibility. The legislation sanctions no further inquiries. No discretion is provided for.

It appears that Mr Cochrane was entitled to be enrolled. His membership was approved by a LALC. An error in the compiling of the roll led to his non-enrolment. He was thus ineligible to stand for election. However, the returning officer, in the absence of a ruling as to the effect of clause 47, looked to the justice of the situation. He observed that there was in existence proof perfect of Mr Cochrane's acceptance by the LALC. The omission of his name from the local roll was treated as a slip and his candidature accepted. Regrettably, that determination was made in error, and the election for that region miscarried.

The parties were agreed that there should be no order as to costs as between the applicant and the First Respondent, but that I should reserve the applicant's request for an order for costs against the Second Respondent.

That reserved question has now been argued by way of a Notice of Motion by the applicant, and the court was greatly assisted by the filing of comprehensive written submissions by both sides.

In class 4 matters generally, costs are at the discretion of the court, but the usual order made, in the absence of exceptional circumstances, is that costs follow the event. The general principles this court applies are discussed, e.g., in Duncan v Moore & Ors (2000) 107 LGERA 430, at 454-457. The way those principles should be applied, in the context of electoral proceedings of this particular type, was usefully summarised and discussed by the learned Chief Judge in Brandy v Dickson & Ors (40080 of 1992, 23 March 1994).

However, s 27AF(3) was inserted in the ALR Act in 1995, i.e. after the Brandy judgment was written and delivered, and s 27AF(3) provides that in these matters the court must now be " satisfied that there are exceptional circumstances that warrant the making of " a costs order (emphasis added).

The amendment appears (from the written submissions) to have been made with support from all sides in the Legislature, on the grounds that it eliminated potential discrimination against aboriginal challengers, while deterring vexatious litigation, and retaining access to the court.

This appears to be the first case in which entitlement to an order for costs under s 27 AF(3) has been argued. However, the question of " exceptional circumstances " is frequently argued in this court in other contexts.

Conduct of parties to litigation is often a key factor in courts deciding issues of costs. See Latoudis v Casey (1991) 70 CLR 534 and Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622.

No submissions made suggest any fault or " disentitling conduct " on the part of the challenger, nor on the part of the First Respondent, in this matter. Hence, the only conduct relevant to this question of costs is that of the Second Respondent.

The regime in place for ALC elections envisages that errors on the part of the Electoral Commissioner and his assistants (such as his delegate, or the Regional Electoral Officer, or the Deputy Electoral Officer) and their staff are a key factor to be examined in determining the issues, including questions of costs, in Disputed Returns cases.

As challenges like this one do not succeed without a finding of " material error ", the major issue now argued before the court in this matter is whether any " material error " on which this challenge turned makes the circumstances of the case " exceptional ".

Are the circumstances exceptional? - the contentions

The applicant says that the " exceptional circumstances " in this case are to be found in: (i) (particularly) the error of the Second Respondent in allowing Mr Cochrane to contest the election; (ii) the delay of the Second Respondent in admitting that error, of which he knew when served with the class 4 application; (iii) " other errors in the conduct of the election and/or failure to ensure other errors were rectified prior to the election "; and (iv) the applicant's having been " deprived of the remuneration available to a councillor" , as a result of the Second Respondent's delay.

In respect of ground (ii), delay , I note that the class 4 application is dated 10 January 2000, and that the crucial concession was made on 18 April 2000. In that period the matter was before the Registrar on four occasions for directions, return of subpoenas, etc, namely 8 February, 29 February, 7 March and 14 March.

In that context any " delay " involved could hardly be regarded as " exceptional ". Apart from the Cochrane claim, in which the applicant asserted that the Second Respondent incorrectly accepted nominations from " one or more persons ", ineligible to so nominate, but named only Cochrane, the class 4 application included four other challenges, alleging: (1) the acceptance of 29 disputed votes for further scrutiny (2) the qualifications of those who nominated the First Respondent, and candidate Paulson (3) possible disenfranchisement of eligible voters as a result of not following roll certification procedures, and (4) an alleged error in the rejection of one particular vote as informal.

It would appear that until 18 April the applicant was preparing its evidence on the Cochrane claim, and claims (1), (3) and (4), but apparently not (2).

Mr Craddock submits that the class 4 application and its particulars " raised a multiplicity of issues, both factual and legal ". The parties needed to examine the relevant documents fully and give/obtain advice. The Second Respondent, when apprised of all the material produced, found an error of law and concluded from the election result that that error was " material ". He then persuaded the First Respondent that the applicant should succeed, and the matter was settled.

I would not make any order for costs in this case on the ground of " delay ".

Likewise, there is no substance in ground (iv) . Installation of Councillors, or the need for reinstatement of one declared to have lost an election, is the very reason for the jurisdiction. The fact that they are renumerated while in office, and the unsuccessful candidates are not, is not an " exceptional " circumstance.

Accordingly, the court must, and will now, focus on the two grounds which are based on " error ", namely (i) the Cochrane claim, and (iii) the " other errors " claim.

The applicant's written submissions quote extensively from the relevant Hansard reports of the passage of the 1995 amendment to the ALR Act. Resort to Hansard would normally not be permissible as the words of the statutory provision are not ambiguous. However, the applicant went to Hansard to endeavour to find support for his central contention and I do not find that inappropriate in the circumstances.

The applicant's central contention is that some errors on the part of the relevant electoral officials, which lead the court to declare an election void, and/or to set aside its result, were intended by the legislature to constitute " exceptional circumstances " for the purposes of grounding an order for costs in favour of a successful challenger, in the absence of " fault " on the part of the parties or candidates involved.

As Mr Craddock points out, the Minister's published view is that " most successful challenges to elections are a result of errors made by Electoral Officials ". As this challenge is one of that type, Mr Craddock submits that its " circumstances " are more " norm " than " exception ", and Parliament has not legislated for costs to " follow the event " simply because a candidate mounts a successful challenge in the event of official error.

In respect of ground (iii) , the alleged " other errors ", the applicant's written submissions on costs say (in pars 20 and 22): Other errors alleged by the Applicant in respect to the acceptance of disputed votes in error and the preparation of the rolls for the election are further matters which support a finding that exceptional circumstances exist in this case. The Applicant was obliged to plead, and file evidence in respect of these matters because of the Second Respondent's delay in admitting his legal error in respect to the candidacy of Mr Cochrane. … This error in respect to the candidacy of Mr Cochrane was ascertainable by the Second Respondent immediately upon receiving the application, but the Second Respondent waited for a period of over 3 months before indicating his consent to the orders sought by the Applicant. In that time, the Applicant prepared his case on the basis that all of the allegations in the application, as well as the orders sought, were being opposed. The Applicant incurred substantial costs which were thrown away by the manner in which the proceedings were resolved.

The applicant chose to raise those other grounds of challenge; the court assumes that they were, and remain, disputed by the Second Respondent; and, because the Cochrane claim was conceded, it has not been necessary for them to be determined.

As such circumstances are hardly " exceptional " in litigation, I would not make any order for costs on ground (iii).

However, the Second Respondent's error in respect of Mr Cochrane ( ground (i) ) was the centrepiece of the applicant's challenge to the election.

Mr McCarthy relies on the substance of the Second Respondent's concession (as set out in par 9 above), and says in his written submissions (pars 1.1 and 1.2): …There was no 'misunderstanding of the effect of the candidature provisions in the Regulation' …. This was not a case where the second respondent was called upon to make a judgment with which the Court, after a contested hearing on the facts, came to a different conclusion (cf. clause 71(4)(a) in relation to admitting disputed votes after 'making such inquiries as the officer considers necessary'); nor is it a case where a clerical mistake was made (eg. if the name M. Cochranes (sic) had been on the roll but it was a different person to the nominee). This is a case where the second respondent consciously acted contrary to the mandatory instructions in regulations 47 and 48 and instead 'looked to the justice of the situation'.

There is no doubt the Second Respondent made an error of law regarding Mr McCochrane's candidature, and that it was " material ".

As Mr Craddock says, if there is no material error of law this court's jurisdiction to intervene in the ALC electoral process is not enlivened, so " something more " must be required for the circumstances to be so " exceptional " in a particular case that the legislature thought it appropriate for the court to have power also to order costs.

Obviously some " errors " must be more relevant to the question of costs than others, otherwise the provision for costs in s 27 AF(3) would be in different terms. Mr McCarthy sees " something more " in the fact that the Second Respondent asserted a discretion to admit a candidate where clearly the electoral regime allowed no such discretion.

This was not a simple " mistake ", but a fundamental breach of the statutory code the Second Respondent must uphold and administer.

Finding " exceptional circumstances " can take the court into difficult terrain, as it is a fundamental principle underlying the costs discretion that costs orders are compensatory and not punitive in character ( Latoudis ), and boundaries and principles are hard to establish.

Mr Craddock acknowledges that this court has frequently expounded on the concept of " exceptional circumstances ", given particularly the law and practice of the court on awards of costs in classes 1, 2 and 3 of its jurisdiction. He referred in particular to Foboco Pty Ltd v Kiama Municipal Council [1998] NSWLEC 64, in which I reviewed the relevant authorities, applied them to the circumstances of that case, and made no order as to costs.

Foboco was a merits appeal, conducted by way of hearing de novo . It was a quite unusual class 1 appeal, and turned on its own facts and circumstances (see pp 19-20 of my judgment). The mistake(s) made by the Council were not " material " to the appeal and its outcome. The Council had proceeded to assess the DA on an erroneous basis, but, on appeal to this court, it was the specifics of sewerage disposal arrangements, and not zoning issues (which had been the subject of error) which were dealt with. The Council conceded its error, and dealt with it at the hearing (see pp 8-9 of my judgment). " When the Council discovered its mistake, it focused on the merit issues, rather than the instrument itself ". The Commissioner made no criticism of Council's stand against the development application, but found for the applicant on the merits.

I can find nothing in Foboco that would lead me to dismiss the applicant's Notice of Motion in this case. " Better " examples of " errors " by public officials which proved to be " material ", and may constitute " exceptional circumstances ", in various matters in classes 1-3 might be found by reference to cases such as Minas v Botany Municipal Council (1988) 65 LGRA 129; Raiti v Leichhardt Municipal Council (1991) 72 LGRA 337; Murray Publishers Pty Ltd v Valuer General (1994) 84 LGERA 13; and Dunne v CCSR [2000] NSWLEC 52.

I have concluded that Raiti and Minas are the most relevant authorities to my consideration of this Notice of Motion. I considered Raiti and Minas not only in Foboco , but also in, e.g., Thomson Landscape & Garden Supplies Pty Ltd v Hornsby Shire Council [2000] NSWLEC 59.

In Thomson my comments of most relevance to this current case were as follows: 41. In Raiti, the Council played effectively a "dead bat" in the appeal. The test applied by Hemmings J (at 336) was whether there had been a "failure of Council to properly discharge or even attempt to discharge its duties …", such that the applicant was compelled to come to court to obtain a consent it would have obtained had Council performed those duties. His Honour found that the obligation to come to court "should never have arisen" and made an order for costs.

42. In Minas…, Bignold J found that exceptional circumstances were made out when the Council had made "a very material mistake" which "so influenced" the Council's dealing with the matter that the litigation became necessary. … 44. … Accordingly, I do not find the logic of Hemmings J, albeit I would agree with his decision in Raiti, to be compelling in this case.

I still agree with Hemmings J's decision in Raiti , but, unlike Thomson , I find it most compelling in this case, where the relevant public official had no basis or justification at all for admitting Cochrane to the ballot, and all the applicant could do about it was await the outcome of the election and bring the challenge.

Not only did the challenge succeed, it was conceded at an early stage, thus saving costs all round.

I accept the applicant's submission that those circumstances make this case " exceptional ", in the sense that events such as those dealt with in the submissions quoted above in pars 9 and 35, are more " exception " than " norm ".

Accordingly, I uphold the Notice of Motion for costs, and will order the Second Respondent to pay the applicant's costs of the substantive matter.

Turning then to the question of the costs of the Notice of Motion, I think this is a case where the considerations which prevailed on Lloyd J in MacDonald v Mosman Municipal Council [2000] NSWLEC 67, rather than those which prevailed on me in Thomson, are more relevant and appropriate, and I have concluded that those costs should follow the event.

As the applicant has been entirely successful in both the substantive proceedings and his Notice of Motion for costs, the orders of the court will be that: (i) The Second Respondent is ordered to pay the costs of the applicant in the substantive proceedings; and (ii) The Second Respondent is ordered to pay the costs of the applicant on the Notice of Motion filed 4 February 2000,

such costs to be agreed or assessed according to law. 52. Further, Exhibit R1 may now be returned to the applicant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

41. In Raiti, the Council played effectively a "dead bat" in the appeal. The test applied by Hemmings J (at 336) was whether there had been a "failure of Council to properly discharge or even attempt to discharge its duties ...", such that the applicant was compelled to come to court to obtain a consent it would have obtained had Council performed those duties. His Honour found that the obligation to come to court "should never have arisen" and made an order for costs.

42. In Minas..., Bignold J found that exceptional circumstances were made out when the Council had made "a very material mistake" which "so influenced" the Council's dealing with the matter that the litigation became necessary.

44. ... Accordingly, I do not find the logic of Hemmings J, albeit I would agree with his decision in Raiti, to be compelling in this case.

46. I still agree with Hemmings J's decision in Raiti, but, unlike Thomson, I find it most compelling in this case, where the relevant public official had no basis or justification at all for admitting Cochrane to the ballot, and all the applicant could do about it was await the outcome of the election and bring the challenge.

47. Not only did the challenge succeed, it was conceded at an early stage, thus saving costs all round.

48. I accept the applicant's submission that those circumstances make this case "exceptional", in the sense that events such as those dealt with in the submissions quoted above in pars 9 and 35, are more "exception" than "norm".

49. Accordingly, I uphold the Notice of Motion for costs, and will order the Second Respondent to pay the applicant's costs of the substantive matter.

50. Turning then to the question of the costs of the Notice of Motion, I think this is a case where the considerations which prevailed on Lloyd J in MacDonald v Mosman Municipal Council [2000] NSWLEC 67, rather than those which prevailed on me in Thomson, are more relevant and appropriate, and I have concluded that those costs should follow the event.

51. As the applicant has been entirely successful in both the substantive proceedings and his Notice of Motion for costs, the orders of the court will be that:

(i) The Second Respondent is ordered to pay the costs of the applicant in the substantive proceedings; and

(ii) The Second Respondent is ordered to pay the costs of the applicant on the Notice of Motion filed 4 February 2000,

such costs to be agreed or assessed according to law.

52. Further, Exhibit R1 may now be returned to the applicant.