Abbotto v Cwealth Electoral Comm

[1997] HCATrans 138

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
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451 Little Bourke St
Melbourne VIC 3000
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Melbourne VIC 3001
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  O/N 9997
  A  11.6.97

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS     

MELBOURNE OFFICE OF THE REGISTRY

No. M37 of 1996

B E T W E E N:  JOHN MURRAY ABBOTTO

Petitioner

- and -

COMMONWEALTH ELECTORAL  COMMISSION

Respondent

For Judgment

DAWSON J

AT MELBOURNE, TUESDAY THE 3RD DAY OF JUNE 1997

AT 9.00 AM

HIS HONOUR:   This application was heard in Melbourne by me sitting as the Court of Disputed Returns.  I would dismiss the petition and I publish my reasons.  The order of the Court is: petition dismissed.

MS KENNY:   Would your Honour permit me to be heard on the question of costs.

HIS HONOUR:   Yes.

MS KENNY:   Your Honour, I would make an application for costs against the petitioner.

HIS HONOUR:   What is this?

MS KENNY:   It is a heater, I think, your Honour.  It is certainly warm.  It is a little frightening.  I rather thought it might - - -

HIS HONOUR:   Yes.  I am sorry.

MS KENNY:   - - - but I am instructed to apply for costs, your Honour, in this case.  I would submit that the ordinary rule should apply, that costs should follow the event.  The provision for awarding costs is contained in the Commonwealth Electoral Act in two places;  one, in section 360 in subsection 1 in subparagraph 9.

HIS HONOUR:   What does that say?

MS KENNY:   That says the Court sitting as the Court of Disputed Returns has the power to award costs.

HIS HONOUR:   Yes.

MS KENNY:   And then there is a new section, section 371, which says that the Court may in its discretion award costs. 

HIS HONOUR:   I notice that in a number of previous petitions costs have not been awarded.

MS KENNY:   Yes, your Honour, that is quite correct.  In the matter of Sykes and the matter of Pavlikovich-Smith, for example, which - - -

HIS HONOUR:   Well, Sykes was a particular case because there I think he was being financed, was not he?

MS KENNY:   I am not sure that he was being financed, but I know that on that occasion the Commission did not seek costs.

HIS HONOUR:   Yes.

MS KENNY:   There have been other occasions when the Commission has not made this application.  On the other hand in at least two cases the Court sitting as the Court of Disputed Returns has awarded costs.  One is the case of Nile v Woods.  Your Honour will remember that the full Court awarded costs when it dismissed the petition.  The second is the case of Snowden v Dondas, which the full Court heard not so long ago, and in that case the Court also awarded costs against the petitioner.  It is a matter of discretion, your Honour.

In this case the petitioner had already brought proceedings in the High Court relating to the question of the misleading character, the alleged misleading character, of the notice accompanying the ballot paper, that is, that one must either mark above or below the line, and your Honour held in that case that there was no substance in effect to that submission, so that in my submission - - -

HIS HONOUR:   Did I award costs in that?

MS KENNY:   No, your Honour, your Honour did not.  In that case your Honour simply dismissed the application.  The report does not reveal whether costs were sought, but the order of the Court was simply that the application be dismissed.  The other matter, your Honour, is this;  when one comes to look at this petitioner's petition your Honour will recall that exhibit 1 to the petition is a bundle of letters of support, if I may broadly call them that, for the petitioner.  In those letters of support there is reference to the question of costs.

Some of the supporters of Mr Abbotto say that they do not propose to be at risk for costs.  One I think offers a small contribution to Mr Abbotto's costs.  In my submission it is clear from that that the petitioner was aware at the time he took out this petition that he was at risk on this matter, so in substance, your Honour, I put the application in three ways.

HIS HONOUR:   Well, I am searching for some sort of principle.  Why is it that on some occasions the Commission does not seek costs and on others that it does?  Why is it that on some occasions costs are awarded and others they are not?

MS KENNY:   I think, your Honour, that in the ordinary case, absent any special circumstance, costs would follow the event.  That seems to be the accepted rule.  It is not suggested - - -

HIS HONOUR:   Well, it is the accepted rule elsewhere then with the electoral petitions.

MS KENNY:   Yes.  There is one clear or specified exception to that, and that is the kind of exception to which Gaudron J referred to in I think the Hudson case, the matter of hardship.  If a petitioner can show hardship then it may be an occasion for the Court to say either the Commission or the Commonwealth ought to bear the costs of the matter, or there ought to be no costs awarded at all.  Absent any special circumstance there does not seem to be any matter referred to by the Court which would displace the ordinary rule.

So far as the Commission is concerned it in each case would be a question for it to consider as to whether it wants to make that application.  It might bear in mind the nature of the application, whether it thought the petitioner had adequately investigated the matter earlier.

HIS HONOUR:   What if one took the view that although the legislation was valid there was some point in the suggestion which was the thrust of the petitioner's argument here that there was a disadvantage to independent candidate?

MS KENNY:   Yes.

HIS HONOUR:   Would that be a relevant circumstance to take into account?

MS KENNY:   It might be a relevant circumstance, your Honour, save that in this particular case the authorities are reasonably clear that although the legislature may work a disadvantage to an independent candidate it is neither - it neither renders it constitutionally invalid, nor is it misleading.

HIS HONOUR:   Yes.  It could be only on the basis that one could at least understand the desire to make a complaint in some way, but it is not frivolous.

MS KENNY:   The difficulty that Mr Abbotto faces in my submission is that at least one aspect of his petition was dealt with by your Honour on an earlier occasion, and that is the question of whether or not the instruction is misleading.  And your Honour had decided last year that it was not misleading.

HIS HONOUR:   That is a slightly different point to the one he was seeking to put here.

MS KENNY:   It is an additional point in this sense, your Honour.  He did raise again the question of whether or not this instruction was misleading.

HIS HONOUR:   Yes.

MS KENNY:   It was one of his grounds.  One ground was the question of constitutional invalidity, but it was only one of a number of grounds, so in my submission at least in the area of issues which have already been dealt with the Commission should be entitled to its costs.  In relation to the constitutional matter, your Honour, it is of course a matter for your Honour's discretion, but thus far the matter which has persuaded the Court to vary or depart from the usual rule has been the question of hardship, whether the petitioner can show that he will suffer some kind of financial hardship if an order for costs is made against him.  The petitioner does not allege that here, and it is now shown.

HIS HONOUR:   Well, we have not heard him yet.

MS KENNY:   We have not heard him.  He certainly has not placed any material before the Court to that effect.  Your Honour, I do not think there is anything I can usefully add.  Those are my submissions.

HIS HONOUR:   Thank you, Ms Kenny.  Mr Abbotto, what do you have to say about the costs.

MR ABBOTTO:   Yes, if it please the Court, I do object to the costs, of course, sir.  I do have with me returns of taxation which all show under $7000 per year, so it would certainly disadvantage me to have costs awarded against me.  In any event, I believe that the independents were disadvantaged in the last elections, that is why I brought the petition to the Court.  In conscience I felt compelled to do so in spite of the fact that it may or may not cost me a lot of money.  So, I came to the Court in good will and thinking and still do that I had a valid point to bring to the Court. 
As a consequence I would ask the Court not to award costs against me in this case, because I do not believe that the matters I have placed before the Court are frivolous or vexatious, but I do believe there were points of contention which need to be canvassed by the Court and the public as a whole, and as a consequence, sir, I would ask the Court that it does not award costs against me in this case.

HIS HONOUR:   Your financial position you say is - - -

MR ABBOTTO:   Yes.  I do have returns with me, sir, if the Court wishes to view them, taxation returns for the years 93, 94, 95.  96 is not available at the moment, but certainly each one indicates that the return is under $7000.  I am self-employed, and I placed myself in the position where I am not in the financial strength to be - for costs to be paying out a lot of money on the basis that I have come to the Court, as I said before, with a clear conscience, and it certainly would disadvantage me financially should costs be awarded against me.

HIS HONOUR:   Yes.

MR ABBOTTO:   Thank you, sir.

HIS HONOUR:   Ms Kenny.

MS KENNY:   Well, your Honour, so far as the matter of hardship is concerned one would need not only to look at the income tax returns.  I would want indeed to ask Mr Abbotto about his assets and like matters.  In my submission there is not sufficient before the Court to persuade it to vary the rule.  In any event - - -

HIS HONOUR:   Well, you say the rule.  It does not appear there is a rule in the - - -

MS KENNY:   I beg your pardon, your Honour.  I am using the word loosely in the sense that one speaks of the ordinary rule, that costs follow the event.  And I use it in that sense.

HIS HONOUR:   There is one consideration which is - in a very loose sense the electoral petition is part of the democratic process.

MS KENNY:   Yes, your Honour.

HIS HONOUR:   In that way it is somewhat different to other litigation, and a Court of Disputed Returns is a very different sort of Court, if it is a Court at all, from other Courts.

MS KENNY:   Your Honour, I cannot take the matter much further other than to say this Court has awarded costs in applications such as this.  The cases of Nile v Woods is one.  It is clear from the documentation that Mr Abbotto ought to, was aware of the question of costs and that he is at risk of costs should he fail, and that he has already troubled the Court on one occasion in relation to one issue which he raises in the petition and he was told that his submission was not accepted on that occasion.  I do not think there is anything I can usefully add.

HIS HONOUR:   Thank you, Ms Kenny.  I do not propose to make any order for costs.

MS KENNY:   As your Honour pleases.

MR ABBOTTO:   Sir, there is one more thing, if I may;  would the reasons for judgment be expedited, would they?

HIS HONOUR:   Well, they are available immediately.

MR ABBOTTO:   Thank you.

AT 9.15 AM THE MATTER WAS ADJOURNED
INDEFINITELY