Hudson v Entsch

FEDERAL COURT OF AUSTRALIA

Hudson v Entsch [2005] FCA 557

ANTHONY JOSEPH HUDSON v THE HONOURABLE WARREN ENTSCH MP AND AUSTRALIAN ELECTORAL COMMISSION

QUD 46 OF 2005

DOWSETT J
26 APRIL 2005
CAIRNS

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 46 OF 2005

SITTING AS THE COURT OF DISPUTED RETURNS

BETWEEN:

ANTHONY JOSEPH HUDSON
APPLICANT

AND:

THE HONOURABLE WARREN ENTSCH MP
FIRST RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

26 APRIL 2005

WHERE MADE:

CAIRNS

THE COURT ORDERS THAT:

1.The applicant pay the first respondent’s costs on a party-and-party basis, including reserved costs, excluding the costs of and incidental to the preparation and filing of the defence.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 46 OF 2005

SITTING AS THE COURT OF DISPUTED RETURNS

BETWEEN:

ANTHONY JOSEPH HUDSON
APPLICANT

AND:

THE HONOURABLE WARREN ENTSCH MP
FIRST RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
SECOND RESPONDENT

JUDGE:	DOWSETT J
DATE:	26 APRIL 2005
PLACE:	CAIRNS

REASONS FOR JUDGMENT

1. The first respondent seeks his costs as against the applicant. The second respondent seeks no order as to costs. Pursuant to s 371 of the Commonwealth Electoral Act 1918 (Cth) (the “Electoral Act”), the Court has power to order an unsuccessful party to pay the costs of the proceedings. The applicant is clearly the unsuccessful party. The question, then, is whether the discretion ought to be exercised by making an order against him and in favour of the first respondent, and, if so, upon what terms.

2. The applicant has pointed out, in opposition to the application, that the first respondent did not file a defence until quite late in proceedings.  That is so, but it really has no relevance for present purposes.  The circumstances in which that incident occurred arose out of the way in which these proceedings have been conducted.  At an early stage, an application was made to strike out the petition.  That application was substantially successful.  Only three paragraphs remained in the petition.  Those paragraphs alleged the statement made by Mr Entsch on television and the fact that signs had been knocked down.  At the hearing at which the balance of the petition was struck out, no directions were sought as to pleadings, and it did not occur to me to give any.  It is probable that the need for pleadings was not identified simply because the factual basis of the proceedings appeared to be clear and undisputed. 

3. However, in the course of the hearing of the matters raised in the remaining paragraphs of the petition, it became apparent that counsel for the first respondent proposed to argue that the statements made by the applicant in his signs were defamatory and false and therefore contrary to s 350 of the Electoral Act. At that stage, it occurred to me that such matters ought to have been raised on the face of the…