Horn v Australian Electoral Commission - [2008] FCA 43

FEDERAL COURT OF AUSTRALIA
Horn v Australian Electoral Commission [2008] FCA 43
COSTS – submission that there be no order as to costs in relation to litigation said to be pursued in the public interest – submission rejected – costs awarded on the basis of conventional principles recognising degree of success of each party
Federal Court of Australia Act 1976 (Cth) ss 43(1), 43(2)
Cretazzo v Lombardi (1975) 13 SASR 4
Horn v Australian Electoral Commission [2006] FCA 1887
Horn v Australian Electoral Commission [2007] FCA 1827
Oshlack v Richmond River Council (1998) 193 CLR 72
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Save The Ridge Inc v Commonwealth (2006) 230 ALR 411
Williams v Minister for Environment & Heritage (2004) 132 LGERA 368
DIETER HANS GUSTAV HORN v AUSTRALIAN ELECTORAL COMMISSION
WAD 208 OF 2007
MCKERRACHER J
30 JANUARY 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 208 OF 2007

BETWEEN:

DIETER HANS GUSTAV HORN
Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSION
Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

30 JANUARY 2008

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The applicant pay 60 per cent of the respondent’s costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 208 OF 2007

BETWEEN:

DIETER HANS GUSTAV HORN
Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSION
Respondent

JUDGE:

MCKERRACHER J

DATE:

30 JANUARY 2008

PLACE:

PERTH

REASONS FOR JUDGMENT

On 23 November 2007, following an urgent hearing, I made the following orders:
1.The application be dismissed.
2.The respondent’s notice of motion to dismiss the proceedings filed on 2 November 2007 be dismissed.
3.Costs reserved.
Counsel expressed a desire to make written submissions on the question of costs in light of the fact that each of the parties had been partially successful in their arguments. I have now had the advantage of considering those written submissions.
STATUTORY BACKGROUND
Sections 43(1) and (2) of the Federal Court of Australia Act 1976 (Cth) (the Act) enables the Court to award costs in its discretion.
The text of s 43 relevantly provides as follows:
(1)…, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.
…
(2)Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.
GENERAL PRINCIPLES
The usual approach is that costs will follow the event. The effect of this approach is that even if an unsuccessful litigant has succeeded on some parts of the claim, the unsuccessful litigant would usually pay the costs of the successful litigant. I say ‘usually’ as there are widely recognised exceptions. Costs following the event, as counsel for both parties recognise, is a rule which may be modified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 43
Decision Date: 30 January 2008

CaseChat Overview and Summary

In the case of Horn v Australian Electoral Commission, the applicant, Mr Horn, sought a declaration that a certain matter was sufficient to ground the jurisdiction of the Court, and he also contested the respondent's assertion that the proceedings were frivolous or vexatious. The court was tasked with determining the appropriate costs order in light of both parties achieving partial success in their arguments. The primary legal issue revolved around whether the proceedings should be considered as public interest litigation, which could potentially affect the costs order. The court also had to assess the degree of success of each party to determine the appropriate costs allocation.

The court, having considered the written submissions on costs, decided not to treat the case as public interest litigation, which would have invoked special considerations in the costs order. The court noted that the case was not "close" in the manner contemplated by the authorities, thus precluding a complete denial of costs to the respondent. The court emphasised that while Mr Horn had achieved some success, the respondent had also made significant arguments that warranted a portion of the costs to be awarded to them. The court concluded that a fair disposition of the matter was for the respondent to receive 60% of the costs, to be taxed if not agreed.

The court's reasoning was based on the general principles of costs following the event, with exceptions where each party has enjoyed some success. The court carefully weighed the arguments and found that the respondent had significant arguments that deserved recognition in the costs order. The court's final order was that the applicant would pay 60% of the respondent's costs, subject to taxation if not agreed. This decision reflects a balanced approach, recognising the partial success of both parties while adhering to the conventional principles of costs allocation.

Orders

Orders of the court

1. The applicant pay 60 per cent of the respondent’s costs, to be taxed if not agreed.

Background

Background to the litigation

Counsel expressed a desire to make written submissions on the question of costs in light of the fact that each of the parties had been partially successful in their arguments. I have now had the advantage of considering those written submissions. STATUTORY BACKGROUND Sections 43(1) and (2) of the Federal Court of Australia Act 1976 (Cth) (the Act) enables the Court to award costs in its discretion. The text of s 43 relevantly provides as follows:(1)…, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.…(2)Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.GENERAL PRINCIPLES The usual approach is that costs will follow the event. The effect of this approach is that even if an unsuccessful litigant has succeeded on some parts of the claim, the unsuccessful litigant would usually pay the costs of the successful litigant. I say ‘usually’ as there are widely recognised exceptions. Costs following the event, as counsel for both parties recognise, is a rule which may be modified where each of the litigants has enjoyed some success. Mr Horn has asked that I should treat his application as one involving public interest litigation which would attract special considerations in the exercise of the Court’s discretion. In particular, Mr Horn says that the following matters should be taken into account:(a)his success in the notice of motion, both as to the existence of a ‘matter’ sufficient to ground the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) and further, my rejection of the respondent’s assertion that the proceedings were in some way brought frivolously or vexatiously;(b)my findings at [26] of the reasons for judgment (Horn v Australian Electoral Commission [2007] FCA 1827) as to Mr Horn’s motivation and responsible conduct of the proceedings;(c)the legitimate characterisation of the proceedings as being within the category of ‘public interest litigation’; and(d)the strongly arguable nature of numerous aspects of the application’s merits.PUBLIC INTEREST LITIGATION Mr Horn’s primary position is that I should make no order as to costs for reasons reflected in the subparagraphs outlined above. His secondary position is that any costs order made in favour of the respondent should reflect a variety of matters including those factors listed above. The submission that there should be no order as to costs turns in significant measure on the suggested characterisation of this litigation as public interest litigation. That argument in turn relies primarily upon the High Court decision of Oshlack v Richmond River Council (1998) 193 CLR 72 in which the appellant had sought a declaration that a development consent order the council had granted was void and of no effect. Notwithstanding his failure to obtain such an order, the appellant was not ordered to pay the costs of the respondent. The Court of Appeal of New South Wales overturned that order and the High Court, by a narrow majority, in turn allowed the appeal from the decision of the Court of Appeal. In the joint judgment of Gaudron and Gummow JJ at [49], their Honours said:[49]The primary judge reasoned from a starting point which favoured costs orders against the appellant as the unsuccessful party. However, he correctly drew a distinction earlier expressed as follows by Menzies J, with the concurrence of Kitto, Taylor and Windeyer JJ:"Prohibitions and restrictions such as those under consideration are directed towards public health and comfort and the orderly arrangement of municipal areas and are imposed, not for the benefit of particular individuals, but for the benefit of the public or at least a section of the public, viz those living in the municipal area."Having characterised the nature of the litigation as concerned with public rather than private rights, Stein J stated that "something more" than the categorisation of proceedings as public interest litigation was needed before a successful defendant should be denied costs. Stein J then isolated the factors identified in pars (iii), (iv) and (v) of the summary given earlier in these reasons as sufficient special circumstances. In proceeding to exercise in this fashion the discretion conferred by s 69, Stein J did not take into account considerations which can be said to have been definitely extraneous to any objects the legislature could have had in view in enacting s 69 and in relation to the operation of s 69 upon proceedings instituted under s 123 of the EPA Act. The contrary is the case. (footnotes omitted) Earlier in the judgment at [20] there was reference to the factors mentioned by their Honours. Those factors were:…(iii)The appellant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law and to preserve the habitat of the endangered koala on and around the site; he had nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna".(iv)In the present case, "a significant number of members of the public" shared the stance of the appellant as to the development to take place on the site, the preservation of the natural features and flora of the site, and the impact on endangered fauna, especially the koala. In that sense there was a "public interest" in the outcome of the litigation.(v)The basis of the challenge was arguable and had raised and resolved "significant issues" as to the interpretation and future administration of statutory provisions relating to the protection of endangered fauna and relating to the ambit and future administration of the subject development consent; these issues had "implications" for the Council, the developer and the public.” (footnotes omitted)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MCKERRACHER J

I do not consider the case was ‘close’ in the sense considered by the authorities. Therefore I would be disinclined to accede to any argument that the respondent should be fully denied its costs.CONCLUSION In my view two arguments were dominant. The argument by the respondent that Mr Horn had raised no ‘matter’ and the argument that there had been a breach, occupied a similar amount of time. The argument by the respondent that the motion should be struck out as being frivolous and vexatious occupied little time. In my view a fair disposition of the matter is that the respondent have 60% of its costs to be taxed if not agreed. Accordingly I will so order.

Ratio Decidendi

Legal Principle Established

Established by: MCKERRACHER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 208 OF 2007

BETWEEN:	DIETER HANS GUSTAV HORN Applicant
AND:	AUSTRALIAN ELECTORAL COMMISSION Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	30 JANUARY 2008
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 208 OF 2007

JUDGE:	MCKERRACHER J
DATE:	30 JANUARY 2008
PLACE:	PERTH