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 2019Judges: 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
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
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Ratio Decidendi
Legal Principle Established
Established by: ALLSOP CJ
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