Case: Nile v Wood [1988] HCA 30 ; (1988) 167 CLR 133
Outcome: considered
The High Court has addressed costs orders under the Act in Nile v Wood [1988] HCA 30 ; (1988) 167 CLR 133 and Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627. 9 In Nile , Deane and Toohey JJ (at 143) held that s 360(4) of the Act conferred a general power 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. Their Honours observed that the power 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 '. The same view was taken by Gaudron J in Hudson (at 633). 10 The Commission seeks to distinguish these cases. It argues that in Nile , although Mrs Nile had been ordered to pay Mr Wood's costs, Deane and Toohey JJ had found that it was (at 143): ... 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. 11 The Commission submits that although the Court in Nile had ordered that the Commonwealth pay the amount of costs which Mrs Nile had to pay to Mr Wood, it appeared to be of the view that Mrs Nile should not be financially penalised, as subsequent events demonstrated that there was some merit to her petition. The Commission argues that in the present case no subsequent events have occurred which demonstrate that there is any merit to Mr Smith's petition. 12 The Commission also notes that in Hudson , the petitioner applied for an order that the Commonwealth pay his costs. Justice Gaudron stated that the Act contained ' very few impediments ' against a person seeking to challenge an election in the Court of Disputed Returns (at 633) and concluded that in the circumstances where the petitioner was a person of ' limited means ' it was fair and just that the Commonwealth pay the respondent's costs (at 634). The Commission submits that in the present case there is no material before the Court regarding the capacity of Mr Smith to meet any costs order which may be made against him. 16 Mr Smith also relies on Nile at 143. He submits that the Court should have regard to what the ' constitutional consequences ' would be if the Australian Fishing and Lifestyle Party is found by the Tribunal to have been registered by fraud or misrepresentation and that this Court is aware of his allegations. He emphasises, again, that the inclusion of the Australian Fishing and Lifestyle Party on the Senate ballot was in contravention of the Act and says that that party was knowingly registered by the Commission despite having obtained registration by fraud or misrepresentation. 17 The Act contains few impediments to a person seeking to challenge an election in the Court of Disputed Returns. However, the assertion of public interest is not, of itself, sufficient reason to deny the Commission its costs. I have dismissed the petition. Section 371 of the Act provides that the ' Court may award costs against an unsuccessful party to the petition '. Mr Smith was the unsuccessful party in this case. I have no evidence of Mr Smith's financial capacity or otherwise to pay the costs. Mr Smith has not informed me of the basis of his application to the Tribunal other than to say that at the Tribunal hearing ' the Constitutional validity of the cause of [the] election petition...will be either confirmed or denied '. He asserts, and the Commission does not dispute, that the merit of his allegations will be determined in the Tribunal. 18 Mr Smith submits that the Court should defer its decision on costs until after the following events have occurred: 1. the appeal he has sought to file in the Full Court ' is heard and further evidence on questions of Constitutional fact from that Appeal can be filed to the High Court '. Mr Smith submits that this Court should award him his costs ' in the event that those Constitutional questions of fact are confirmed by Appeal or in the High Court '; 2. the Tribunal makes a ruling on the matter listed before it and where the constitutional validity of the election petition will be ' confirmed or denied '; 3. the Commonwealth Ombudsman decides on the matter of false statutory declarations that Mr Smith has put before him; 4. the Governor General decides on the constitutional matter Mr Smith has put before him of invalid certification of writs for the election; and 5. the Commonwealth Director of Public Prosecutions makes a decision on the matter of the false statutory declarations as an offence against the Commonwealth. 19 Mr Smith's main submission as to why each party should bear its own costs appears to be that, ultimately, it will be found that the matters alleged by him are true and that the Australian Fishing and Lifestyle Party was illegally registered by the Commission. As the petition was deficient, that determination was not made. Mr Smith has sought to appeal to the Full Court from my decision to dismiss the petition. If the Full Court should find in Mr Smith's favour it will be in the discretion of that Court to make appropriate costs orders. Those costs orders may include the costs of the hearing before me. Mr Smith has also instigated proceedings in the Tribunal. The Tribunal hearing has not taken place, so there has been no consideration of the merits of Mr Smith's case. 20 The proceedings before me are concluded. Mr Smith is not legally represented and his petition was dismissed because it failed to comply with s 355(a) of the Act, in that it did not set out the essential facts relied on to invalidate the election (at [16], [26] [27]). The remaining matters, as set out in [18], may disclose merit in Mr Smith's allegations. That would provide a basis for the exercise of discretion to conclude that, as in Nile , the interests of justice would be served if Mr Smith did not bear the Commission's costs. 21 If there is no merit in the allegations the subject of the petition, there is no basis on the material before me to decline to order Mr Smith to pay the Commission's costs. However, that cannot be determined at this stage. In my view it is in the interests of justice that the payment of costs await that determination. 22 As the proceedings in the Full Court, the Tribunal and possibly the High Court may take some time to resolve, in the interests of finality of litigation I will make an order pursuant to s 360(4) of the Act that the Commonwealth pay the respondent's costs. That means that each party will pay its own costs rather than defer for an indeterminate time the question whether Mr Smith should pay the Commission's costs of the hearing before me.