Fels v Davies
[2009] WASC 138 (S)
•20 MAY 2009
FELS -v- DAVIES [2009] WASC 138 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 138 (S) | |
| THE COURT OF DISPUTED RETURNS | |||
| Case No: | ELE:1/2008 | 30 APRIL 2009 & ON THE PAPERS | |
| Coram: | MARTIN CJ | 20/05/09 | |
| 24/09/09 | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| B | |||
| PDF Version |
| 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
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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)
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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 by the repeated failure of Mr Fels to comply with the dates which I specified for the provision of written submissions. The submissions which he eventually filed are prolix and largely irrelevant. I will identify those parts of his submissions which are relevant in the reasons which follow.
3 The parties and the State are content for me to deal with these issues on the papers, and do not require the opportunity to present oral argument.
A brief history of the proceedings
4 The petition was filed on 8 December 2008. It specified a number of grounds. In general terms, the grounds raised two issues. The first was whether the election of Ms Davies was invalid because of her employment in the office of Mr Brendon Grylls (a member of Parliament). The second ground alleged irregularities in the conduct of the election, relating in particular to alleged breaches of supervision and security affecting ballots cast at a number of booths within the Agricultural Region.
5 The matter came before me for directions. Programming orders were made for the purpose of advancing the petition to a hearing. However, prior to the substantive hearing of the petition, Ms Davies moved for an order dismissing the petition by reason of non-compliance with the requirements of s 158 of the Act, and in particular, the requirement that the occupations of the witnesses attesting the petition be stated on the petition. She also moved, in the alternative, for an order that the ground arising from Ms Davies' employment be struck out, on the basis that it was not within the jurisdiction of the Court of Disputed Returns.
6 Both aspects of the motion were fully argued before me on 30 April 2009. On 20 May 2009, I published reasons for my conclusion that the
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- petition was incompetent by reason of non-compliance with the mandatory requirements of s 158, and should be dismissed for that reason. Having arrived at that conclusion, I noted that s 161 of the Act expressly enjoined the court from entertaining any proceedings on a petition which did not comply with s 158. Nevertheless, I made some observations about the alternative argument advanced by Ms Davies with respect to the jurisdiction of the court in relation to the issue arising from her employment. Those observations were based upon certain assumptions of fact. However, I made it clear that the observations I was proffering were advanced only out of deference to the argument that had been developed before me. I did not purport to determine the issues raised, as any such determination would have been a contravention of the constraint imposed by s 161 of the Act.
The submissions on costs
7 Ms Davies submits that she was the successful party in these proceedings, and should be awarded her costs against the unsuccessful party, Mr Fels.
8 To the extent that I am able to comprehend the written submissions provided by Mr Fels, it seems that he proposes that there be no order as to the costs of the petition. In the alternative, he proposes that I recommend that the State pay Ms Davies' costs. In support of these propositions he relies upon the assertion that Ms Davies should have moved to dismiss the petition for non-compliance with s 158 more promptly than she did, and as a consequence, should be denied any award of costs, or alternatively, any award of costs in her favour should be reduced. He also asserts that she should not have advanced her argument with respect to the ground arising from her employment until after the issue of the validity of the petition had been resolved.
9 The Attorney General on behalf of the State submits that the State would not oppose the court making a recommendation that the State pay Ms Davies' costs of the proceedings other than those incurred in relation to the ground arising from her employment, and such of her costs of that ground as she is not reasonably able to recover from Mr Fels. The State accepts that it is reasonable to infer that the failure of the form of petition specified in the Electoral Rules 1908 (WA) to make provision for the occupation of the witnesses attesting the petition contributed to the failure of Mr Fels to lodge a petition which complied with the requirements of the Act. It also accepts that it is therefore reasonable for the court to recommend that the State indemnify Mr Fels for any liability which he
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- has incurred in respect of the costs of Ms Davies in relation to that part of the petition which asserted irregularity in the conduct of the election.
10 However, the State asserts that Mr Fels should bear primary responsibility for Ms Davies' costs in relation to that part of the petition arising from her office of employment because of the observations I made to the effect that it appeared that ground may be beyond the jurisdiction of the Court of Disputed Returns. In relation to Ms Davies' costs of that ground, the State submits that I should only recommend the State pay in the event that Ms Davies is unable to recover those costs from Mr Fels.
The costs provisions of the Act
11 Section 162(1)(h) of the Act empowers the court 'to award costs'. However, the generality of that power is constrained by the particular provisions of s 169 - s 171, which are as follows:
169. Costs
The Court may award costs against an unsuccessful party to the petition, to be taxed by the Taxing Officer of the Supreme Court, and may in its discretion recommend that costs be paid by the Crown.
170. Deposit applicable for costs
If costs are awarded to any party against the petitioner, the deposit shall be applicable in payment of the sum ordered, but otherwise the deposit shall be repaid to the petitioner.
171. Other costs
All other costs awarded by the Court, including any balance above the deposit payable by the petitioner, shall be recoverable as if the order of the Court were a judgment of the Supreme Court, and such order, certified by the Court, may be entered as a judgment of the Supreme Court, and enforced accordingly.
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- exercise of that discretion would be accepted by the State, it seems clear that the State is under no legal obligation to do so.
Costs as between the parties
13 Because of the prospect, hopefully more theoretical than real, that the State might not accept a recommendation made by the court to the effect that it pay costs, it is appropriate to deal first with the responsibility for costs as between the parties to the petition before turning to the question of whether a recommendation should be made that the State bear some or all of the costs involved. Otherwise, unfairness might result to the parties in the unlikely event that the State did not accept the court's recommendation.
14 As between the parties to the petition, it is clear that Mr Fels is the 'unsuccessful party' within the meaning of s 169 of the Act. Applying conventional principles with respect to the award of costs of contested proceedings, which are reflected in the terms of s 169 of the Act, it would be appropriate to order that he pay Ms Davies' costs unless there is some reason for departing from those principles. The only reason advanced by Mr Fels in this regard is the proposition that Ms Davies was dilatory in taking the point with respect to the invalidity of the petition, and should have isolated that point from any other substantive issue in the case, thus reducing the costs incurred by all parties.
15 I do not accept that proposition. It seems to me that the motion brought by Ms Davies for dismissal of the petition was brought within a reasonable time of its commencement, and that it was proper and reasonable for her to combine in that motion her application to strike out part of the petition. I had made it clear in the directions hearing to which I have referred that in my view it was in the public interest for the petition to be substantively resolved expeditiously, because of the uncertainly which it created in relation to the composition of the Legislative Council. In that context it was entirely proper for Ms Davies to put before the court, on the one occasion, all legal issues capable of resolution prior to the substantive hearing of the petition.
16 For these reasons, as between Mr Fels and Ms Davies, I can see no reason for departing from the general principle, evident in the terms of s 169 of the Act, that the unsuccessful party (Mr Fels) should be ordered to pay the costs of the successful party (Ms Davies) to be taxed by the taxing officer of the Supreme Court by reference to the scale applicable to an action in that court.
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Should the State pay costs?
17 As I have noted, the State accepts that it would be reasonable for the court to recommend that the State relieve Mr Fels of his obligations to pay the costs he is ordered to pay Ms Davies in respect of the grounds of the petition other than the ground arising from her employment. I agree with the reasoning which has led to the State adopting that position. It is reasonable to infer that Mr Fels' failure to comply with the requirements of s 158 of the Act was, at least in part, induced by the defective form of the petition specified in the Electoral Rules, for which the State must accept responsibility. As between Mr Fels and the State then, the State should bear responsibility for the consequences suffered by Mr Fels by reason of his non-compliance with s 158 of the Act, including his responsibility to Ms Davies for her costs.
18 I do not accept the State's proposition that it is appropriate to distinguish between the grounds of the petition for this purpose. That proposition overstates the significance and effect of the observations which I made at the time of delivering my reasons for dismissing the petition. Those observations were based upon assumptions of fact that may or may not have ultimately proven to be correct, and did not purport to constitute a final determination of the issues raised by that ground, not least because of the constraints imposed by s 161 of the Act, and the issues that might have arisen under Art 9 of the Bill of Rights 1689 (Imp) had a final determination of those issues been appropriate. Accordingly, I do not think it can be said that the ground relating to Ms Davies' employment was determined against Mr Fels.
19 Rather, the appropriate principle to be applied is that as a consequence of non-compliance with s 158, Mr Fels was denied the substantive determination of any aspect of his petition and will be ordered to pay Ms Davies' costs of that petition. As the defective form of the petition specified in the Electoral Rules contributed to Mr Fels' failure to comply with s 158 of the Act, in my view it is appropriate for the State to make good any losses incurred by Mr Fels as a consequence of that non-compliance.
Practical issues
20 These conclusions give rise to some practical issues which effect the terms in which orders should be expressed to give effect to these conclusions. A recommendation that the State indemnify Mr Fels in respect of costs which he is ordered to pay Ms Davies has a number of practical disadvantages, even if that recommendation is accepted by the
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- State. Mr Fels is not legally represented. Therefore, the State is better equipped than Mr Fels to participate in any proceedings for the taxation of Ms Davies' costs, and if the State is ultimately to bear responsibility for those costs, is a more appropriate respondent to those taxation proceedings in any event. Further, a structure which would require Mr Fels to first pay Ms Davies' costs, and then seek reimbursement from the State, may impose unnecessary hardship upon Mr Fels.
21 For these reasons it seems to me that the most appropriate form of orders to be made is to direct that Mr Fels pay Ms Davies' costs of the petition to be taxed by the taxing officer of the Supreme Court by reference to the scale applicable to an action in that court, but to also direct that such taxation not take place until such time as the State has advised the parties to the petition of the position which it takes in relation to my recommendation that it should, in effect, bear Ms Davies' costs of the petition. I would then propose to further direct that in the event that the State advises the parties to the petition that it accepts that recommendation, the State should act for and on behalf of Mr Fels in relation to the taxation of Ms Davies' costs and should assume responsibility for the payment of those costs without first calling upon Mr Fels to pay.
22 Finally there is the question of the deposit lodged by Mr Fels at the time of lodging his petition. Section 170 of the Act requires that the deposit be applied in payment of any costs awarded against the petitioner. Accordingly, if and when Ms Davies' costs are taxed, the deposit must be applied in reduction of those costs. However, it is consistent with the general principle which I am applying to recommend that the State reimburse Mr Fels in respect of the deposit which he has lost as a consequence of his failure to comply with s 158 of the Act.
23 Accordingly, the orders of the court will be as follows:
(1) The petitioner pay the respondent's costs of the petition to be taxed by the taxing officer of the Supreme Court by reference to the scale applicable to an action in that court.
(2) The court recommends that the State bear responsibility for the respondent's taxed costs, and should reimburse Mr Fels in respect of the deposit which he paid at the time of lodgement of the petition, and which will be applied in part satisfaction of the costs awarded to the respondent.
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- (3) Taxation of the respondent's costs is to be deferred until such time as the State advises the parties to the petition whether or not it accepts the court's recommendation.
(4) In the event that the State advises the parties to the petition that it accepts the recommendation of the court, the State is to act for and on behalf of Mr Fels in any taxation of costs pursuant to these orders and should assume primary responsibility for payment of the respondent's taxed costs.
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