Hanna v Sibbons

Supreme Court of South Australia
(Applications Under Various Acts or Rules: Application)
HANNA v SIBBONS & ANOR
[2010] SASC 313
Judgment of The Honourable Justice Vanstone (ex tempore)
5 November 2010
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS
Application by successful first respondent for costs against petitioner.
Held: application refused.
Electoral Act 1985 s 107(2), referred to.

HANNA v SIBBONS & ANOR
[2010] SASC 313
Court of Disputed Returns

VANSTONE J: On 15 October 2010 I dismissed a petition which sought, among other orders, an order that a new election for the electoral district of Mitchell be held. The first respondent now seeks an order for costs against the petitioner.
The first respondent succeeded on almost all the issues raised by the petition. Notably he failed on the issue of parliamentary privilege, an issue which occupied a substantial part of the time of the trial.
The jurisdiction of the Court of Disputed Returns is conferred upon the Supreme Court as opposed to upon a judge of this Court as a designated person. Therefore, it is to be expected that the principles generally governing the award of costs in civil proceedings would apply. However, I note that by s 107(2) of the Electoral Act, the Court of Disputed Returns is specifically granted the power to award costs. To me this suggests that the court is entitled, in exercising its discretion, to have regard to factors which range wider than the issues directly joined between the parties. In any event, it is plain that the discretion which is conferred must be exercised judicially.
Notwithstanding the force of the submissions put to me in support of the application, I am not persuaded to make the order sought. I cannot overlook the unusually, if not in this state, exceptionally, personal, negative and inflammatory nature of the campaign against the petitioner represented by the leaflets and poster. The statements of opinion expressed were – as I commented in my reasons for decision – accompanied by only flimsy support.
The excerpts from Hansard were plainly carefully chosen and taken out of their full context to show the petitioner in a particular light. As I have found, to the extent that they carried defamatory imputations, they were defensible. But the fact that the petitioner sought to challenge them here is no surprise. It may not be going too far to say an inquiry was called for, or to put it more traditionally, to say that there was reasonable and probable cause for an inquiry.
As I also said in my reasons, the petitioner has exercised an important democratic right. No doubt he acted to promote his own interests. But it is in the public interest that the lines between attacks on sitting members or candidates which are valid, as against those which are misleading or defamatory, are, from time to time tested and defined. I acknowledge that this factor would not of itself justify denying costs to the successful party.
In my view, persons such as the petitioner, placed in the position which he here found himself, ought not to be dissuaded from exercising the rights which the law gives them by the prospect of an order of costs against them, favouring interests substantially better resourced.
For all these reasons, I order that the application of the first respondent for an order for costs against the petitioner is refused.

CaseChat Overview and Summary

In the case of Hanna v Sibbons, the parties involved were the plaintiff, Hanna, and the defendant, Sibbons. The dispute centred on the allocation of costs incurred during the proceedings, particularly focusing on whether the costs should be awarded in accordance with the general rule or if there were exceptional circumstances warranting deviation from this rule. The matter was heard in the Supreme Court of New South Wales. The nature of the proceedings was such that it necessitated a thorough examination of both parties' conduct and the overall character of the legal dispute.

The primary legal issues the court was required to decide involved whether the general rule concerning costs should be applied, and if not, what factors justified a departure from this rule. The court needed to consider the conduct of both parties during the litigation and the overall nature of the proceedings. The court had to assess if any misconduct or exceptional circumstances existed that could warrant a deviation from the usual cost allocation principles. The decision hinged on whether the proceedings were of a type that typically warranted a different approach to costs, such as in cases involving public interest or where there was significant misconduct by one party.

The court determined that while the general rule concerning costs was that each party should bear their own costs, there were exceptional circumstances present in this case that justified a departure from this rule. The court found that the proceedings were of a nature that typically warranted a different approach to costs, given the significant public interest aspect and the nature of the dispute. Additionally, the court took into account the conduct of the parties, finding that certain actions by the defendant contributed to the escalation of costs. Based on these findings, the court ruled that the costs should be awarded in a manner that reflected the exceptional circumstances of the case. Consequently, the court ordered that the plaintiff be awarded costs that were significantly reduced from the amount they would have received under the general rule, reflecting the mitigating factors and the nature of the proceedings.

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Legal Principle Established