Case: Smith v Australian Electoral Commission [2008] FCA 953
Outcome: considered
On 27 June 2008 I delivered judgment in Smith v Australian Electoral Commission [2008] FCA 953. Mr Smith filed a petition on 25 January 2008 under s 355 of the Commonwealth Electoral Act 1918 (Cth) ('the Act') in respect of the half Senate election held on 24 November 2007 ('the election'). Mr Smith was the No 1 Senate candidate for The Fishing Party, contesting the election in the above the line group ticket G. He alleged in his petition that the Australian Electoral Commission ('the Commission') had registered a political party, the Australian Fishing and Lifestyle Party, that contested the election and obtained its registration by "fraud or misrepresentation". The petition was filed in the High Court as the Court of Disputed Returns (s 354 of the Act) and the matter was referred to this Court on the application of the Commission. 2 The Commission sought an order that the petition be dismissed on the grounds that the petition fails to comply with s 358 of the Act and is doomed to failure. As the first of those grounds could be determinative of the petition, I considered it separately. 3 In Smith I determined that: 1. the statutory threshold had not been established and that the petition did not set out the essential facts relied on to invalidate the election as required by s 355(a) of the Act (at [16]); 2. the 40 day period in s 355(e) of the Act had expired and amendment to the petition was not available (at [19]); and 3. this was not a case of a lack of particularisation in the petition and, accordingly, amendment under s 355(aa) was not available (at [24] [25]). 4 I told the parties that I would hear them as to costs and the parties have now filed written submissions on this issue. 5 By letter of 30 June 2008 Mr Smith proposed that each party bear his or its own costs. He also proffered, as an alternative, that the Australian Government Solicitor's ('the AGS') costs could be paid by the Commonwealth under s 360(4) of the Act. Section 360(4) provides that: 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 . In written submissions filed later, Mr Smith clarified his position. He says that the Commission's costs, not the AGS' costs, should be paid by the Commonwealth. An order under s 360(4) would extend to an order that the Commonwealth pay the costs of the Commission. The Commission concedes that it is part of the Commonwealth and not a separate legal entity so, in effect, an order under s 360(4) that the Commonwealth pay the costs of the Commission would be an order that each party bear his or its own costs. Section 360(4) of the Act does not limit the circumstances in which the Commonwealth pays costs, in this case its own costs. 6 In his written submissions, Mr Smith also seeks orders that the Court defer its decision on costs until various matters relating to these proceedings are determined, including an application to the Administrative Appeals Tribunal ('the Tribunal') and an appeal from Smith to the Full Court. Mr Smith's primary submission is that, although I dismissed his petition for technical reasons, the underlying claim made by him remains ' unsolved '. He submits that the underlying claim will remain unsolved until the Tribunal deals with his application or until the Full Court, and ultimately the High Court, determines the appeal. 7 The Commission does not consent to Mr Smith's proposal that each party bear its own costs. The Commission seeks an order pursuant to s 371 of the Act that Mr Smith pay its costs of the proceedings before me on a party and party basis. Section 371 of the Act provides that the ' Court may award costs against an unsuccessful party to the petition '. The Commission submits that there is no reason why the Court should not exercise its discretion to order that Mr Smith pay its costs.