Garbett v Liu (No 3)

Case [2020] FCAFC 91


FEDERAL COURT OF AUSTRALIA

SITTING AS THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 354(1) OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH).
Garbett v Liu (No 3) [2020] FCAFC 91

File numbers: VID 1018 of 2019
VID 1019 of 2019
Judges: ALLSOP CJ, GREENWOOD AND BESANKO JJ
Date of judgment: 26 May 2020
Catchwords: COSTS — where the petitioners sought orders pursuant to s 360(4) of the Commonwealth Electoral Act 1918 (Cth) — whether the Commonwealth should pay the costs of the first respondent in VID 1019 of 2019 — consideration of public importance and public benefit of petitions
Legislation:

Commonwealth Electoral Act 1918 (Cth), ss 329, 353, 355, 360, 362, 363, 365

Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s 134

Commonwealth Electoral Legislation Amendment Act 1984 (Cth), s 5

Cases cited:

Australian Electoral Commission v Johnston and Others No. C17 of 2013 [2014] HCATrans 032

Evans v Crichton‑Browne [1981] HCA 14; 147 CLR 169

Free v Kelly [1996] HCA 42; 185 CLR 296

Garbett v Liu [2019] FCAFC 241; 375 ALR 117

Garbett v Liu (No 2) [2020] FCAFC 14

Green v Bradbury (No 2) [2011] FCA 469

Hudson v Lee [1993] HCA 58; 177 CLR 627

Nile v Wood (No 2) [1988] HCA 30; 167 CLR 133

Webster v Deahm, High Court of Australia, Sydney, 20 June 1996

Date of hearing: Determined on the papers
Date of last submissions: 6 April 2020 (Applicant VID 1019 of 2019)
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 59
Counsel for the Applicant: Ms L G De Ferrari SC with Mr J E Hartley
Solicitor for the Applicant: Marque Lawyers
Counsel for the First Respondent: Mr P H Solomon QC with Mr E Gisonda
Solicitor for the First Respondent: HR Legal
Counsel for the Second Respondent: Mr J Renwick SC with Mr G Ng
Solicitor for the Second Respondent Australian Government Solicitor

ORDERS

IN THE FEDERAL COURT OF AUSTRALIA SITTING AS THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 354(1) OF THE COMMONWEALTH ELECTORAL ACT (CTH).
VID 1018 of 2019
BETWEEN:

VANESSA CLAIRE GARBETT

Applicant

AND:

GLADYS LIU

First Respondent

AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

JUDGES:

ALLSOP CJ, GREENWOOD AND BESANKO JJ

DATE OF ORDER:

26 MAY 2020

THE COURT ORDERS THAT:

1.Under s 360(1)(ix) and (4) of the Commonwealth Electoral Act 1918 (Cth):

1.1the Commonwealth pay the reasonable costs of the applicant as agreed or assessed; and

1.2the Commonwealth pay the reasonable costs of the first respondent as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


ORDERS

IN THE FEDERAL COURT OF AUSTRALIA SITTING AS THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 354(1) OF THE COMMONWEALTH ELECTORAL ACT (CTH).
VID 1019 of 2019
BETWEEN:

OLIVER TENNANT YATES

Applicant

AND:

JOSHUA ANTHONY FRYDENBERG

First Respondent

AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

JUDGES:

ALLSOP CJ, GREENWOOD AND BESANKO JJ

DATE OF ORDER:

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AGLC
Garbett v Liu (No 3) [2020] FCAFC 91
Case
[2020] FCAFC 91
Decision Date

CaseChat Overview and Summary

In Garbett v Liu (No 3), the court was called upon to decide whether the Commonwealth should pay the costs of the first respondent in an electoral petition. The petitioners, Garbett, sought orders for the Commonwealth to bear the costs of the first respondent, Liu, in the proceedings. The case arose from the Commonwealth Electoral Act 1918 (Cth), specifically s 360(4), which allows for the payment of costs by the Commonwealth in certain electoral disputes.

The court was tasked with determining the public importance and benefit of the petitions presented, which were crucial in deciding whether the Commonwealth should bear the costs. The legal issue centred around the interpretation and application of s 360(4) of the Commonwealth Electoral Act 1918 (Cth), and the extent to which the public importance and benefit of the petitions warranted Commonwealth funding for the first respondent’s costs.

The court found that the petitions had a significant public importance and benefit, justifying the Commonwealth's financial responsibility for the first respondent’s costs up until the trial. However, it ruled that the petitioners should bear the costs of the trial and any subsequent proceedings, including counsel fees. This nuanced decision balanced the public interest in electoral integrity with the need to fairly allocate costs among the parties involved.

In conclusion, the court ordered the Commonwealth to pay the first respondent's costs up until the date of the trial, while the petitioners were to bear their own costs and those incurred by the first respondent from the trial onwards. This decision was made under s 360(1)(ix) and (4) of the Commonwealth Electoral Act 1918 (Cth) and in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. Under s 360(1)(ix) and (4) of the Commonwealth Electoral Act 1918 (Cth):

1.1 the Commonwealth pay the reasonable costs of the applicant as agreed or assessed; and

1.2 the Commonwealth pay the reasonable costs of the first respondent as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

1. The applicant pay his own costs.

2. Under s 360(1)(ix) and (4) of the Commonwealth Electoral Act 1918 (Cth), the Commonwealth pay the first respondent’s costs up until the date of trial as agreed or assessed.

3. The applicant pay the first respondent’s costs of the trial and thereafter, including counsel fees as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP CJ

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Ratio Decidendi

Legal Principle Established

Established by: ALLSOP CJ

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