FELS -v- DAVIES [2009] WASC 138 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 138 (S)
Court:	THE COURT OF DISPUTED RETURNS
Case No:	ELE:1/2008	Heard:	30 APRIL 2009 & ON THE PAPERS
Coram:	MARTIN CJ	Delivered:	20/05/09
Supplementary Delivered:	24/09/09
No of pages:	9	Judgment Part:	1 of 1
Result:	Orders made
Category:	B
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Parties:	ANTHONY JAMES FELS MIA DAVIES ELECTORAL COMMISSIONER FOR WESTERN AUSTRALIA
Catchwords:	Costs Court of Disputed Returns Costs may only be awarded against an unsuccessful party Discretion to recommend that the costs be paid 'by the Crown' Turns on own facts
Legislation:	Bill of Rights 1689 (Imp), Art 9 Commonwealth Electoral Act 1918 (Cth), s 360 Electoral Act 1907 (WA), s 158, s 161, s 162, s 169, s 170, s 171 Electoral Rules 1908 (WA)
Case References:	Fels v Davies [2009] WASC 138 O'Connor v Cash (Unreported, WASC, Library No 930682, 20 December 1993)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF DISPUTED RETURNS CITATION : FELS -v- DAVIES [2009] WASC 138 (S) CORAM : MARTIN CJ HEARD : 30 APRIL 2009 & ON THE PAPERS DELIVERED : 20 MAY 2009 SUPPLEMENTARY
DECISION : 24 SEPTEMBER 2009 FILE NO/S : ELE 1 of 2008 BETWEEN : ANTHONY JAMES FELS

Petitioner

AND

MIA DAVIES

Respondent

ELECTORAL COMMISSIONER FOR WESTERN AUSTRALIA

Intervenor

Catchwords:

Costs - Court of Disputed Returns - Costs may only be awarded against an unsuccessful party - Discretion to recommend that the costs be paid 'by the Crown' - Turns on own facts

(Page 2)

Legislation:

Bill of Rights 1689 (Imp), Art 9

Commonwealth Electoral Act 1918 (Cth), s 360
Electoral Act 1907 (WA), s 158, s 161, s 162, s 169, s 170, s 171
Electoral Rules 1908 (WA)

Result:

Orders made

Category: B

Representation:

Counsel:

Petitioner : In person

Respondent : Mr R L Hooker

Intervenor : Ms S J Keighery

Solicitors:

Petitioner : In person

Respondent : McCallum Donovan Sweeney

Intervenor : Electoral Commission of Western Australia

Case(s) referred to in judgment(s):

Fels v Davies [2009] WASC 138
O'Connor v Cash (Unreported, WASC, Library No 930682, 20 December 1993)

(Page 3)

1 MARTIN CJ: On 20 May 2009 I dismissed the petition which had been lodged by Mr Anthony James Fels disputing the election of Ms Mia Davies as a member of the Legislative Council for the Agricultural Region: Fels v Davies [2009] WASC 138. I reserved the issue of the costs of the proceedings, and directed that the Attorney General, on behalf of the State, be given notice that I was considering exercising the power conferred by s 169 of the Electoral Act 1907 (WA) (the Act) to recommend that costs be paid 'by the Crown' and inviting submissions from the State on that topic. Following receipt of such submissions from the State, I requested the parties to provide written submissions in response.

2 The timetable for the disposition of the costs issue has been protracted…

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 Fels v Davies

Details

AGLC: Fels v Davies [2009] WASC 138 (S)
Case: [2009] WASC 138 (S)
Decision Date: 20 MAY 2009

CaseChat Overview and Summary

The case of Fels v Davies was heard in the Court of Disputed Returns. The parties involved were Fels and Davies, with the nature of the dispute centering around the awarding of costs in a litigation context. The court was required to determine whether costs could be awarded against an unsuccessful party and, if so, whether there was discretion to recommend that such costs be paid by the Crown.

The legal issues before the court involved the principles governing costs in litigation and the extent of the court's discretion in directing who should bear those costs. Specifically, the court needed to consider whether the court's discretion to recommend that costs be paid by the Crown was applicable in this case and whether such discretion should turn on the unique facts presented. The case hinged on interpreting the relevant statutory provisions and case law concerning costs and their allocation, particularly when it came to the court's power to make recommendations about the Crown's liability for costs.

The court, in its reasoning, examined the statutory framework and relevant precedents. It found that while the general principle is that costs may only be awarded against an unsuccessful party, there is indeed a discretion to recommend that the costs be paid by the Crown. However, this discretion is not automatic and must be exercised with consideration of the particular circumstances of the case. The court held that the decision to recommend Crown liability for costs must turn on the specific facts of each case, ensuring that justice is appropriately served. Based on this reasoning, the court made its determination regarding the allocation of costs.

The court's final orders were that costs may be awarded against the unsuccessful party, but the discretion to recommend that such costs be paid by the Crown must be exercised with due regard to the unique facts of the case. The court's decision underscores the importance of a fact-specific approach in determining the appropriate allocation of litigation costs.

Orders

Orders of the court

Orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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