Hanna v Sibbons

[2010] SASC 313

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

1. 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. 

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. For all these reasons, I order that the application of the first respondent for an order for costs against the petitioner is refused.