Hudson v Lee

[1993] HCA 58

HIGH COURT OF AUSTRALIA

GAUDRON J

HUDSON v. LEE AND ANOTHER

(1993) 177 CLR 627

19 October 1993

Parliamentary Elections (Cth)

Parliamentary Elections (Cth)—Court of Disputed Returns—Powers—Declaration that election of candidate void—Grounds—Electoral petition—Costs—Commonwealth Electoral Act 1918 (Cth), ss. 352(1) "bribery", "corruption", "illegal practice", 360(1), (4), 362.

Orders

Order that the Commonwealth pay to Michael John Lee the amount of costs incurred by him in the proceedings with respect to Petition No. S60 of 1993, including the costs of this application.

Decision

GAUDRON J Michael John Lee ("the respondent") has applied for
an order that the Commonwealth pay his costs ((1) Note, the respondent also sought an order that the Australian Electoral Commission's costs be paid by the Commonwealth. The Commission, however, sought no orders as to costs and took no part in the present application.) of opposing an electoral petition ("the Petition") brought by Robert James Neilson Hudson (Jnr) ("the Petitioner") with respect to the election for the Commonwealth Electoral Division of Dobell held on 13 March 1993 ((2) See Hudson v. Lee (1993) 67 ALJR 720; 115 ALR 343.).

2. Power to order costs against the Commonwealth is conferred by s.360 of the Commonwealth Electoral Act 1918 (Cth) ("the Act") which
relevantly provides:

"(1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following: ...

(ix) To award costs; ... (4) The power of the Court of Disputed Returns under paragraph (1) (ix) to award costs includes the power to
order costs to be paid by the Commonwealth where the Court considers it appropriate to do so."

3. The discretion conferred by s.360(4) of the Act was considered in Nile v. Wood ((3) (1988) 167 CLR 133.). In that case Brennan J expressed the view, without being exhaustive, that costs might properly be awarded "because an officer of the Commonwealth ha(d) failed properly to perform his function or when the proceedings have
resulted in some public benefit" ((4) ibid., at p.142.). A somewhat wider view was taken by Deane and Toohey JJ, who said that the power conferred by s.360(4) "is not constricted by reference to the principles controlling the making of an order for costs inter partes", and should be exercised "when considerations of what is fair and just support, on balance, an order indemnifying a party against costs which the party may have incurred in connexion with an electoral petition" ((5) ibid., at p.143.). Given the subject-matter of the Act and the nature of the jurisdiction exercised by the Court of Disputed Returns, I think that wider view is to be preferred.

4. The Petitioner is an invalid pensioner. That fact was disclosed in an application by him to be excused from compliance with O.68, r.3 of the High Court Rules which requires a petition to be published in the Commonwealth, and relevant State, Government Gazette. His application was made on the ground of financial hardship. No ruling was made on the application as the Petition was dismissed on the ground that it raised no issue under the Act and, hence, no issue
which could result in an order with respect to the election.

5. A commendable feature of the Act is that very few impediments are placed in the way of a person who wishes to bring proceedings challenging an election in the Court of Disputed Returns. Under s.356 a petitioner must deposit $100 as security for costs. That dollar amount reflects the change to decimal currency ((6) See s.3 and the First Schedule of the Statute Law Revision (Decimal Currency) Act 1966 (Cth).) but, otherwise, the deposit required has not been altered since 1902 ((7) See s.195 of the Commonwealth Electoral Act 1902
(Cth), which required a deposit of pounds 50.). General accessibility is also maintained by s.370 which provides that no party to a petition is to be represented by counsel or a solicitor, "except by consent of all parties, or by leave of the Court".

6. When regard is had to ss.356 and 370, it is to be expected that there will be cases where, as here, a person who has been declared duly elected is faced with a petition raising matters which reflect on him or her personally, but which are outside the scope of the Act. The only sanction against a petition of that kind is the power to order costs against the petitioner ((8) See s.371 of the Act. Note that by s.372 the deposit lodged under s.356 must be applied in payment of costs awarded against a petitioner.). However, that course is not likely to assist or to appeal to an elected representative if, as here, the petitioner is a person of limited means who has taken a course which, without the benefit of legal advice, he might reasonably regard as open to him. In these circumstances, it is, in my view, fair and just that the Commonwealth pay the respondent's costs of the Petition and of this application.