Fidge v Municipal Electoral Tribunal (No 2)

[2019] VSC 767

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02328

JULIAN FIDGE	Applicant
v
MUNICIPAL ELECTORAL TRIBUNAL	First Respondent
-and-
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Second Respondent

S ECI 2018 02372

JULIAN FIDGE	Applicant
v
MUNICIPAL ELECTORAL TRIBUNAL	First Respondent
– and –
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Second Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	28 November 2019
CASE MAY BE CITED AS:	Fidge v Municipal Electoral Tribunal & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 767

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ADMINISTRATIVE LAW — Public interest litigation — Costs of two unsuccessful applications for leave to appeal from VCAT decisions — Attorney-General joined as respondent in VCAT proceedings — Attorney-General seeking costs — First proceeding concerned VCAT decision refusing application to refer Charter questions to Supreme Court — Each party bear own costs of first proceeding — Second proceeding concerned VCAT decision refusing application to refer questions to Supreme Court about validity of local government election countback provisions — Unsuccessful applicant ordered to pay the Attorney-General’s costs of second proceeding — Victorian Civil and Administrative Tribunal Act 1998 s 96; Charter of Human Rights and Responsibilities Act 2006 s 33.

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APPEARANCES:	Counsel	Solicitors
For the Applicant in the first proceeding (S ECI 2018 02328) For the Applicant in the second proceeding (S ECI 2018 02372)	Ms M Isobel Self-represented	W J Gilbert & Co
For the Second Respondent	Ms S Gory	Victorian Government Solicitor

HIS HONOUR:

1. After the Court dismissed the two proceedings commenced by Dr Fidge,[1] the parties made written submissions about costs.

   [1]Fidge v Municipal Electoral Tribunal [2019] VSC 639 (‘Fidge No 1’).

1. The Attorney–General submitted that she should receive her costs of both proceedings on a standard basis. Dr Fidge submitted that each party should bear their own costs.

1. Dr Fidge challenged the decision of the Municipal Electoral Tribunal in the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The Victorian Attorney–General intervened and was joined as a respondent under s 34 of the Charter of Human Rights and ResponsibilitiesAct2006 (‘the Charter’). Dr Fidge then commenced in this Court two applications for leave to appeal the VCAT decisions against refusals to refer questions to this Court under the Charter and the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).

1. In opposing the Attorney-General’s application for costs in the first proceeding, the Charter proceeding S ECI 2018 02328, Dr Fidge described the Charter as a special piece of legislation and contended that Parliament contemplated that public interest litigation might occur raising questions about its operation. He sought a decision for the broader public interest about whether the countback provisions were incompatible with the Charter; to enliven a dialogue of rights protection; to contribute to the ongoing review and reform of the Local Government Act1989 and to have addressed what he considered to be an injustice caused by the countback provisions addressed for the benefit of others.

1. The Attorney–General submitted that even if the proceedings were in the public interest, the usual order for costs should apply. In any event, the appeal challenging the Tribunal’s exercise of its discretion under s 33 of the Charter was not a test case and did not raise any issue of ‘wide legal importance’. Dr Fidge had exercised his right to argue his case in the Tribunal which was generally a no costs jurisdiction.

1. In the second proceeding, S ECI 2018 02372, Dr Fidge submitted that the Court should make no order as to costs. This was because the second proceeding was a test case and involved public interest litigation. He submitted that there was no directly relevant case law and that the Court’s decision clarified the validity of the electoral legislation. He pointed to the following factors to support his argument that there should be no order as to costs: that his second proceeding challenged the constitutional validity of commonly used legislation; that if he had succeeded, numerous people would have benefitted; that there was no previous authority on the issue raised in the proceeding; that the Court’s judgment had had a broader application than to his proceeding; that he had no economic incentive to file the proceeding; that his conduct of the litigation was responsible and satisfactory; that the grounds of the appeal were not unreasonable, frivolous or without merit and that he was a real person with limited funds.

1. He contested the Attorney–General’s submission in support of her costs application that he had apparently not heeded his counsel’s advice about the prospects of the second proceeding and argued that that was not a reason to award costs. He also argued that the case law provided by the Attorney–General was not directly relevant and he could not have known that his second proceeding had no chance of success.

1. In the second proceeding, the Attorney-General submitted that there was no reason to depart from the usual rule as to costs.

Consideration of submissions

1. The usual rule in civil litigation, including in public law litigation, is that costs follow the event. This rule is not to punish the unsuccessful party, but to recompense the successful party.[2]

   [2]Northern Territory v Sangare (2019) 372 ALR 117.

1. The first proceeding raised the important issue of the scope of the referral power in s 33 of the Charter and of the pathway by which a person can seek a declaration of inconsistency under s 36. The only detailed authority on these issues is the High Court judgment in Momcilovicv The Queen,[3] in which at least three approaches were adopted by different members of the Court.[4] The proper application of that decision awaits further consideration as cases are decided.

   [3](2011) 245 CLR 1.

   [4]Discussed in Fidge (No 1) [45]-[47].

1. Dr Fidge, as a resident of Victoria, sought to engage the human right to take part in public life. He sought a Supreme Court ruling on the application of that right to the municipal election countback provisions. A review panel had recommended a legislative change that reflected his views, but a Bill that followed the review lapsed in 2018. As Dr Fidge emphasised, the outcome of his case might affect other municipal elections where countbacks were required.

1. The first proceeding raised important issues about how a citizen might seek a declaration of inconsistency under the Charter. In view of the uncertainty as to the effect of Momcilovic and bearing in mind that the Attorney–General was exercising rights of intervention, I consider that each party should bear their own costs. I do not intend that this decision, which is the exercise of a discretion, will necessarily guide the award of costs in other cases under s 33 of the Charter. Each case is to be decided on its own facts.

1. I reach a different conclusion in the second proceeding and consider that Dr Fidge should pay the Attorney-General’s costs of that proceeding on a standard basis. In the second proceeding, he challenged the Tribunal’s decision not to refer questions to this Court concerning the constitutional validity of the countback provisions. I decided in effect, as the Tribunal had, that those submissions lacked merit and that the Tribunal had not erred in refusing to refer the questions. The matters raised by Dr Fidge about costs in public interest cases may well be significant in a given case, but I consider that they are not persuasive in the second proceeding because the arguments advanced lacked merit. Dr Fidge took the opportunity to raise those arguments in VCAT, but was unsuccessful. In the second proceeding there is no justification to depart from the general rule that costs follow the event. Although acting under statutory rights of intervention, the Attorney-General’s involvement provided a contradictor to Dr Fidge’s submissions. Dr Fidge must pay the Attorney-General’s costs of the second proceeding on a standard basis to be taxed by the Costs Court in default of agreement.

1. I emphasise that Dr Fidge should not have to pay any of the Attorney-General’s costs associated with the first proceeding, but the Attorney-General’s standard costs of the second proceeding.

ADDENDUM

1. After I delivered the above judgment, the Victorian Government Solicitor’s Office (VGSO) sent an email to my chambers stating that contrary to my statement set out in [3] above, the Attorney-General had not intervened in the proceedings under s 34 of the Charter. Rather the Attorney-General had been joined as a respondent by an order of VCAT made on 20 April 2018 made under s 60(1) of the VCAT Act and had been so joined before Dr Fidge had raised any Charter issue. An examination of the order shows this to be the case despite VCAT’s statement in its decision that ‘the Attorney-General intervened as second respondent’.[5] The order to which the VGSO refers indicates that the Attorney-General was joined as a party and that the MET intended to take a Hardiman approach. The joinder of the Attorney-General therefore provided a contradictor.

   [5]Fidge v Municipal Electoral Tribunal [2018] VCAT 1654 [12].

1. My reasons for costs in the first proceeding are set out in [12] above and refer to a number of matters. I have noted the matters communicated by the VGSO. My orders as to costs are not altered.[6]

   [6]The catchwords of this judgment have been amended to delete the reference to the Attorney-General intervening.

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