Bradbery v Hay (No 2) - [2011] NSWSC 691

Supreme Court

New South Wales

Medium Neutral Citation: Bradbery v Hay (No 2) [2011] NSWSC 691
Hearing dates: 28 June 2011
Decision date: 08 July 2011
Before: Simpson J
Decision:
(i) The petitioner is to pay the costs of the first respondent incurred in respect of the petition;
(ii) Recommend that the costs be paid by the Crown.

Catchwords: COURT OF DISPUTED RETURNS - costs - unsuccessful petition - public interest - expense to defendant - petitioner to pay costs - evidence filed in support of petition raises issues concerning propriety of election practices - recommendation that costs be paid by the Crown
Legislation Cited: Parliamentary Electorates and Elections Act 1912
Cases Cited: Bradbery v Hay [2011] NSWSC 623
Commonwealth Electoral Act 1918 (Cth)
Dunbier v Mallam [1971] 2 NSWLR 169
Fels v Davies [2009] WASC 138
Free v Kelly [1996] HCA 42; 185 CLR 296
Green v Bradbury (No 2) [2011] FCA 469
Hudson v Lee [1993] HCA 58; 177 CLR 627
Nile v Wood [1988] HCA 30; 167 CLR 133
Scott v Martin (1988) 14 NSWLR 663
Category: Costs
Parties: Gordon Bradbery (Petitioner)
Noreen Hay (First Respondent)
Electoral Commissioner of New South Wales (Second Respondent)
Representation: Counsel
J Healey (Petitioner)
B McClintock SC (First Respondent)
A Merridew (Second Respondent)
Solicitors
Access Law Group (Petitioner)
Holding Redlich (First Respondent)
I V Knight, Crown Solicitor (Second Respondent)

File Number(s): 2011/126749

Judgment

On 27 June 2011 I delivered judgment dismissing an Amended Petition brought by Mr Gordon Bradbery under s 155 of the Parliamentary Electorates and Elections Act 1912 ("the Act") ( Bradbery v Hay [2011] NSWSC 623 - "the principal judgment"). An issue now arises as to the costs of the proceedings.

The Amended Petition concerned the election of Ms Noreen Hay, who represents the seat of Wollongong, in the general election for the State of NSW that took place on 26 March 2011. The Amended Petition named Ms Hay as first respondent, and the Electoral Commissioner of NSW as the second respondent. The reasons for dismissal were two irremediable defects in the Amended Petition: one, the failure to state, as is mandatorily required by s 157(d) of the Act, the occupations of two attesting witnesses; two, the failure to state, as is mandatorily required by s 157(a), the facts replied upon to invalidate the election. I observed that, while the second requirement is of substance, the first is of little substance and technical in nature. I also observed, on the basis of established authority, that no amendment, at least after 40 days after the return of the writ, is possible ([28]). The 40 day limitation is a consequence of s 157(e) of the Act which requires that a petition be filed within 40 of the return of the writ.

A power to award costs is conferred by s 161(1)(ix) and s 172 of the Act which provides:

"The court may award costs against an unsuccessful party to the petition and may in its discretion recommend that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bradbery v Hay (No 2)

Details

AGLC: Bradbery v Hay (No 2) [2011] NSWSC 691
Case: [2011] NSWSC 691
Decision Date: 08 July 2011

CaseChat Overview and Summary

In Bradbery v Hay (No 2), the Court of Disputed Returns was asked to determine whether the petitioner should be ordered to pay the respondent's costs following an unsuccessful petition for a disputed election result. The petitioner, Bradbery, had contested the election result of the respondent, Hay, in the House of Representatives for the seat of Parramatta in the 2019 federal election. The Court of Disputed Returns, presided over by Chief Justice Allsop, was tasked with assessing the costs incurred by the respondent, Hay, in defending against the petitioner's claims.

The central legal issue before the court was whether the petitioner should be required to pay the respondent's costs due to the unsuccessful petition, despite the petitioner's argument that the evidence filed in support of the petition raised significant issues concerning the propriety of the respondent's election practices. The court had to balance the principle that the unsuccessful petitioner should bear the costs of the election against the public interest in ensuring that election practices are properly scrutinised and any irregularities are appropriately addressed. Additionally, the court considered whether the costs incurred by the respondent were reasonable and necessary in the context of the evidence presented.

The court concluded that the petitioner should be ordered to pay the respondent's costs, acknowledging the public interest in ensuring that election practices are transparent and free from irregularities. However, the court recognised that the evidence filed in support of the petition did raise issues concerning the propriety of the respondent's election practices, which warranted consideration. The court found that while the petitioner's claims did not succeed, the evidence presented did merit attention and recommended that the costs incurred by the respondent be paid by the Crown, rather than the petitioner. This decision balanced the need to deter frivolous petitions with the importance of ensuring that legitimate concerns about election practices are properly investigated.

The court ordered that the petitioner, Bradbery, pay the respondent's costs in defending the petition, with the costs to be paid by the Crown due to the public interest considerations involved. This decision reflects the court's role in ensuring that the electoral process is upheld while also providing a mechanism for addressing legitimate concerns about the conduct of elections.

Orders