Hudson v Lee

[1993] HCATrans 287

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IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Sydney No S60 of 1993

B e t w e e n -

ROBERT JAMES NEILSON

HUDSON (JNR)

Petitioner

and

MICHAEL JOHN LEE, MP

First Respondent

and

THE AUSTRALIAN ELECTORAL

COMMISSION

Second Respondent

Application for costs

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 OCTOBER 1993, AT 11.16 AM

(Continued from 6/8/93)

Copyright in the High Court of Australia

Hudson 45 1/10/93

MR J. McCARTHY, QC:  May it please Your Honour, I appear for

the first respondent in this application.

(instructed by McClellands)

MR R.J.N. HUDSON:  I appear in person, Your Honour, and I

would like to, for the Court's record, object to

legal representation on behalf of the first and

second respondents.

MR s. GAGELER: If Your Honour pleases, I appear for the

Commonwealth. (instructed by the Australian

Government Solicitor)

HER HONOUR:  I have a letter here from the Electoral

Commission seeking to be excused. I do not think

it is in any way involved in this application.

Mr McCarthy, I will formally give you leave to

appear again, although it was given on an earlier

occasion.

MR McCARTHY:	Your Honour, in the judgment that Your Honour gave in this matter on 6 August, Your Honour gave
leave to the parties to make written submissions in
relation to costs. Pursuant to that leave, the
first respondent forwarded to the Court and to the
other parties a submission on costs dated
12 August 1993.  Would it be convenient,
Your Honour, to commence at that point with those
submissions?

HER HONOUR:  Yes. I am in general terms familiar with them.

I think the problem that arose today is the

Commonwealth's involvement, it not having been a

party.

MR McCARTHY:  Yes, Your Honour. But, Your Honour, just in

terms of the procedure for today, would it be more

convenient if I commenced with our submissions and

the Commonwealth - there has been, in response to

that, a set of submissions that were handed to the

Court, as I understand it, yesterday by Mr Gageler

on behalf of the Commonwealth and I was provided

with a copy of that. My attorney took steps,

Your Honour, to contact Mr Hudson to inform him

that the matter was before the Court today
concerning an order for costs against the

Commonwealth - or our application for an order for

costs against the Commonwealth.

HER HONOUR:  If you make your submissions, that is probably

as convenient as any, and of course if Mr Hudson

has submissions thereafter, he can make them, and

then Mr Gageler.

MR HUDSON:  I would like to make a short statement before

you make any judgment on the case. Something has

Hudson 46 1/10/93

happened between the last time we met and today and

I think, in light of it, it should be given to the

Court for your information to see what you wish to

do with it. It is nothing in writing, it is just a

verbal, Your Honour. It may have some outcome on

the case.

HER HONOUR:  You can make your submissions in due course.

It is Mr McCarthy's application.	You can speak to
it.

MR McCARTHY:  Your Honour, the starting point for our

submission, first of all, was the direction by

Your Honour, and secondly, I would take Your Honour

to the Act. The relevant provision is

section 360(4). That section was a late addition

to the powers of the Court of Disputed Returns and

has only been a part of the formal powers of this

Court, but has been a part of the powers of courts

of disputed returns at State level for many years,

but in relation to the Commonwealth Court, is a

power that only dates back to the beginning of the

1980s.

Your Honour, under that power the Court has

power, in appropriate circumstances, to order that

the Commonwealth pay the costs of the parties to

the proceedings. Now, Your Honour, that power has

been, in relation to its federal locus, the subject

of some consideration by this Court in Nile v Wood

and I have brought up the judgment in that matter

and I would hand it up to Your Honour.	It is in
167 CLR.

That was a case in which the petitioner had a

fundamentally defective petition concerning the

actual proper seeking of relief as well as making
allegations concerning the respondent that, for the

purposes of relief, did not go as far as would be

necessary in terms of actual stating of

characteristics of the respondent that would

invalidate his election. Thereafter, of course, it

was discovered, between the date of the judgment

and the date on which costs were ordered, that the

respondent was in actual fact not an Australian

citizen and was not qualified to be a member of the

Senate. The Court had, at a previous time, made an order that the petitioner pay the costs of the

respondent in the matter. When the matter came on

again before the High Court, there was a hearing

which Your Honour will see at page 141, going on to

142 and 143. What I wish to draw Your Honour's

attention to is that there was an actual, over a

narrow range, but there was a dissent in the High

Court between Justices Deane and Toohey and in which the costs could be awarded.

Hudson 47 1/10/93

What the majority, Justices Deane and Toohey,

found is at page 143 at about point 3 on the page
where it sets out that, having found at 142 and 143

that if this fell to be determined in terms of

ordinary legal principle of litigation between

parties, then Mrs Nile's petition having been

dismissed, there would be no occasion on which the

Commonwealth could be called upon to pay or have any involvement in relation to costs. But the

Court then goes on to state that the power given to

award costs under section 360(l)(ix) is a different

power and is to be controlled by different

principles to the making of an order for costs

inter partes. It was a general power to be

exercised in a special jurisdiction and could be

exercised wherever it was appropriate to do so.

The majority then go on to say that they would

not attempt to confine that discretion:

beyond saying that it 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.

In that case they felt that, in the circumstances,

it was appropriate that the Commonwealth pay such

costs as Mrs Nile might have had to pay concerning
Robert Wood, the respondent in that petition.

Justice Brennan dissented. At page 142 he, in actual fact, defined at least two ways in which he

thought, as a matter of principle, this power ought

to be exercised. He said that it should be used

where the proceedings have arisen - this is at

page 142 point 5, where:

an officer of the Commonwealth has failed

properly to perform his function or when the

proceedings have resulted in some public

benefit.

He went on to find, in that case, that he did not

think that either of those tests had been met and

did not support the making of an order.

But they have been the parameters within which

the considerations of this provision have fallen.

There is no further authority as such concerning

this power, but I would observe to Your Honour that

it has been a part of the State power, for instance

in New South Wales, for a generation and has been

exercised as such. There is no particular

reference that I could take Your Honour to, except

to point out to Your Honour - and I do not think

this is in dispute - that certainly it has never

Hudson 48 1/10/93

been the test at the State level that, for

instance, a party had to succeed before an order

would be made against the Crown. In other words, a

petitioner could be unsuccessful in terms of his
petition - and there are a number of examples of

that at the State level, where a party's costs have

been awarded against the Crown even though he was

an unsuccessful petitioner or an unsuccessful party

in the litigation.

Your Honour, we say that if Your Honour looked

at the balance in terms of the majority or of

justice or of the test put forward by Mr Justice

Brennan and applied it to this case, that Your

Honour would be within a proper grounds of
discretion on balance in making an order that the

Commonwealth pay the first respondent's costs.

The two grounds that we would essentially take

Your Honour to are these - and we set out this at

the third page of our submission.	We say that
there has been a public benefit that can be	.

identified in relation to these proceedings and

that that is the gravamen of the exercise of the

discretion, in our submission, and would be a

matter that is central to it.

We say, Your Honour, that what has been set

out in Your Honour's judgment concerning the ambit
of section 362 of the Act had not been stated in

those terms before. It is a significant

contribution to jurisprudence in this area, one

where there is often long time lags as to the

development of any particular sections of the Act

and what has been stated in this case concerning

the nature of illegal practices would be a matter

that would have a bearing on how other parties

would approach petitions in the future and, as

well, makes a very clear distinction between the

nature of illegal practices as they are now to be

understood as against what was the position under

the Commonwealth Electoral Act before 1983 and generally is the case in relation to the State Electoral Acts which do not have a similar

provision within them.

In other words, Your Honour, there is a public

benefit that can be identified; the principle that,

Your Honour, if one can say by analogy, providence

often writes straight in crooked lines, but often

it is strange proceedings that bring about an

actual benefit or development in the law.

So, Your Honour, we say that what we set out

in paragraph 4 concerning what Your Honour has

stated in the judgment is an aspect of our

jurisprudence, that it was not there before, and

Hudson 49 1/10/93

the nature of the powers for illegal practices that

culminate in Your Honour's expression that, "It

would be incongruous if the Court's powers were

entirely at large with respect to matters

extraneous to the Act", was nothing that has been

specifically stated in those sort of terms prior.

We therefore go on to say, Your Honour, that

there is a public benefit; that it is a public
benefit of the sort that was stated in Nile v Wood,

and that it is therefore a matter that could be

brought up to the line, on balance, as to the

circumstances in which the Commonwealth would

appropriately be paying an order for costs.

We then go on to say, Your Honour, that the

wider context for that is that in the way that the

Act is structured, the parties are called upon -

that is the respondents - to defend what is a part

of a public process; that there was - first of all,

in terms of a threshold, what was being alleged

against the first respondent was something

pertaining to him and his own activities, it was

appropriate that he be represented in these

proceedings.

Secondly, in relation to the petition and the

petitioner, there is sworn evidence in these
proceedings - and I say that for the benefit of

Mr Gageler because he says to the contrary or he does not bring the point out, or says that there is

no evidence about Mr Hudson and his financial

position - Mr Hudson sworn in an affidavit of

13 July that he, in actual fact, is a recipient of

social security.

HER HONOUR:  And, indeed, sought relief from compliance with

certain matters on that basis.

MR McCARTHY:  Yes, Your Honour, and that is sworn evidence

in these proceedings. It is not a matter for

speculation. It was stated that way.

On the first occasion that we were before the

Court, the first respondent, in my respectful

submission properly, brought to Your Honour's

attention two matters concerning the case that were

of essential importance. Firstly, that any

application to set aside publication in the Gazette

was opposed and, secondly, that there were good

grounds including decisions in analogous cases at

State level as to whether a discretion for that

ground existed or not. That remained even though

it was finally not had to be determined in this

matter. That was a live issue in these proceedings

for some time and was an important issue that may

Hudson 50 1/10/93

well have required this Court to make a decision

about some important points of discretion.

I know that the matter is left up in the air

but on the way that the proceedings were going

forward, it was something that, at least in its

initial phases, it was appropriate to bring the

matter up and it was a matter on which the Court

may well have had to exercise its mind.	As well as
that, the first respondent, again, in my

submission, appropriately, put a copy of the

Chief Justice of New South Wales decision before

this Court and at Your Honour's direction made a

copy of that decision available or knowledge about

that decision available to Mr Hudson.

On the first occasion, also, that the matter

was before Your Honour, Your Honour requested the

first respondent to write to the petitioner and set

out why it was that it was said that the petition
was invalid and why it did not comply with the Act

and why it was the case that that should not go

forward. The petition could not be regarded,

therefore, as valid. That was complied with, as

Your Honour is aware. Letters were sent. And the

point about illegal practices; the point about the

nature of the claim that was being made about

Mr Lee and his electoral expenses, was set out and

that material was tendered.

As well, to formalize the proceedings, again

at Your Honour's direction, both the first and the

second respondents arranged for notices of motion

to be filed and to be served and it was on that

basis that the matter came back before Your Honour.

In the last sections of our written

submissions, Your Honour, we make reference to

those steps should be regarded as being reasonable

and that the costs that had been incurred up to

that time as being reasonably incurred in the

proceedings.

In paragraph 8, Your Honour, we make the wider

point concerning the fact that what was being

defended by Mr Lee was his part in an electoral

was not any private rights or any matter that

process for his return to the House of

pertained to him in a private capacity that he was

brought before this Court. He, obviously, as a

member of Parliament, was entitled to defend

himself and did so.

The way that our law is structured in terms of the Act, any citizen, with relevant qualifications,

is entitled to take out a petition. That has been

Hudson 51 1/10/93

exercised by Mr Hudson. To defend that, in terms

of a public process that has been ordained by

Parliament on behalf of the Australian people, has

left the first respondent in a position where he is

out of pocket. It is clear that there would be no

other source from which any relief, in terms of

costs, could be obtained. Obviously, it will not

be from Mr Hudson, in terms of his own background

and finances.

In those circumstances, Your Honour, since it

is an open process that the public has allowed and

that there has been some public benefit achieved by

it, we submit that this is a matter in which an

order under subsection (ix) would be appropriate.

Now, my friend has put a series of

submissions, and I will just briefly refer to this.

There are two things about these submissions - and

I will let Mr Gageler develop them - but if I might

just say this, Your Honour: there is one matter in

these submissions - and he has dealt with a whole

series of issues appropriately in terms of thrust.

But might I just say this: as in that famous story

of Conan Doyle's, about the dog that did not bark, one of the things that is not referred to in these

submissions is any argument that there has not been

a public benefit in what has happened. The

Commonwealth says nothing about that because the

fact is there has been a benefit.

HER HONOUR:	They may think otherwise.
MR McCARTHY:	Your Honour, they did not think otherwise

enough to say it. But, certainly, there is no

written submission that there has not been a public

benefit and that, as a basic test, Your Honour, is,

in our submission, at the core of the matter.

Obviously, there are - in terms of the other

matters that are raised, my friend can seek to
distinguish Nile v Wood, and that is appropriate,

but what is not sought to distinguish is the

principle in Nile v Wood which is the fairness and

justice of the case and the fact that some public

benefit has been achieved. That has not really

been put forward.

I also say, just if I might say so

respectfully, that we are well aware that there are

proceedings set out there whereby one can recover

costs against a petitioner, that is true, but we

have got to look realistically at this thing and

the Court is asked to look at this in

discretionary circumstances as to what is fair and

just and reasonable.

Hudson 52 1/10/93

Now, if it is the case that all of that is

extremely unlikely, to tell us how you go about

obtaining costs and enforcing a judgment against a

pensioner, it seems to me, is beside the point.

For those reasons, Your Honour, and subject to if

there are some matters raised by Mr Gageler or

Mr Hudson that I have not covered, they are the

matters that we put forward as to why this is an

appropriate case for an order under

section 360 ( ix) .

HER HONOUR: Yes, thank you. Yes, Mr Hudson.

MR HUDSON:  I think _I would like to defer mine until after

Mr Gageler has had a little - if that is all right.

HER HONOUR:  That is most unusual. I take it you do not

want costs ordered against you. You would rather

have them ordered against the Commonwealth.

MR HUDSON:	I would prefer them not to be, most definitely.
HER HONOUR:	I thought you would be supporting Mr McCarthy's

submissions.

MR HUDSON:  I do, in certain circumstances. I still believe

that one point he brought out there, that this

was - he said this was not a personal thing brought

against Mr Lee, well actually when you read his

letter that he put out to the people on 3 March, I

believe it is, because he has published a letter in

which he stated that "the Labor Party" is

committed. Now, we have been through this before,

but if he had put in there "I am committed" that

would have been a personal letter and I would have

no complaint about it. So as something that has

been put out by him, published by him and signed by

him, it is a private matter in a sense. So that is

as far as I want to go with that.

The other matter that I wish to raise: on or

about 14 September, whilst attending a Gosford City

Council meeting, the Labor councilor up there by

the name of Belinda Neil, did advise her colleagues

that this Court had awarded a $50,000 cost against

me and she told that to all nine colleagues. Now,

I find that to be either trying to pre-empt the

Court's judgment or something that I will have to

deal with privately, but I just thought it would be

something that you should be aware of and I do ask

that - I am quite happy to pay my own costs as they

have gone, and I feel that I should not have to pay

Mr Lee's, on the grounds that that was, as far as I

am concerned, a private matter.

HER HONOUR: Thank you, Mr Hudson. Yes, Mr Gageler.

Hudson 53 1/10/93

MR GAGELER:  Your Honour, this is one of six election

petitions that have been brought in respect of the

most recent elections to the House of

Representatives and the Senate.

HER HONOUR:  Is that all that there have been

Australia-wide?

MR GAGELER:	On my instructions, yes.
HER HONOUR:	Why did we have two in New South Wales?
MR GAGELER:	I think Victoria might be leading the field.

HER HONOUR: Three.

MR GAGELER: 

Your Honour, all of those six petitions, with

the exception of Mr Webster's petition, which has
only been partially dismissed, have been dismissed

by the Court.  The argument put forward by

Mr McCarthy in this case, if it is correct, would

seem to be, at least prima facie, likely to be

equally applicable to the successful respondents in

each of the other cases.  The difficulty with the

argument is that it is not so much an argument for

the indemnification of the successful respondent
but an argument for the indemnification of the
unsuccessful petitioner.

What it means, Your Honour, is that a

petitioner can bring a petition to the Court,

irrespective - - -

HER HONOUR:  That is the Act. I mean that is really one of

the most worrying aspects of the Act. The Act is

by no means a model of clarify as to who can bring

petitions and in what respect and thereupon, in

many respects, it sets it up so that a person can

come without the benefit of legal advice, which

might deflect it. In fact, it discourages,

positively prohibits legal representation, without

leave, so that the Act is virtually inviting
people, I would have thought, to bring petitions

which have not had the benefit of legal analysis.

MR GAGELER: It allows that, Your Honour.

HER HONOUR:  Yes. It is not the costs order that is going

to do it, if that happens; it is the Act that

allows is. It is because the Act allows it and

does it with $100 deposit.

MR GAGELER:  Your Honour, interestingly, the 1918 version of

the Act had 50 pounds. That has not been changed.

HER HONOUR:	It may have been some deterrent.
Hudson	1/10/93
MR GAGELER:	It would have been a significant deterrent in

those days, and it would have been a realistic

estimate, probably, of the costs of defending a

petition in those days. No doubt there is a

difficulty in that nobody has thought to revise

that provision of the Act and bring it up to date.

A realistic estimate now might be somewhere between

$2000 and $5000. But be that as it may,

Your Honour, we are here concerned with the scope of the discretion conferred by - - -

HER HONOUR:  There is nothing in the Act that confines it,

expressly confines it.

MR GAGELER:	No, Your Honour, but it is
HER HONOUR:	It can only be confined by the purposes of the

Act.

MR GAGELER:  Indeed, and by the scheme of the Act.

Your Honour would have to have regard to the scheme

that the Act sets up. Now, Your Honour is entirely

correct in pointing out - - -

HER HONOUR:  I would assume that the scheme that is set up

is one to give everybody who wants to challenge an

election unimpeded access to this Court.

MR GAGELER:  Let me not contradict what Your Honour has put

to me.

HER HONOUR: Virtually unimpeded access, and as you tell me,

five out of six have failed. One well knows that

some of the grounds that have been advanced in

these petitions - and I put Mr Hudson's to one

side - have been grounds that one would not think

would have survived legal advice. So should I not

work on the basis that it is unimpeded access

regardless of any understanding of the nature of

the proceedings or the matters that may be agitated

in them.

MR GAGELER:  Your Honour could say the same about any

proceedings in any court. Nobody needs to seek

legal advice before commencing proceedings in a

court.

HER HONOUR:  But very rarely do you have a provision such as

this - you do in some Acts, but not commonly - no

legal representation except by leave. So what you are doing is you are in fact encouraging people to

come to the Court with arguments that do not

necessarily have a basis in law.

MR GAGELER:  Your Honour, may I say this about the

restrictions that the Act places upon people coming

to the Court: be that as it may that they can come

Hudson 55 1/10/93

without legal representation, indeed they have to

get the leave of the Court to have legal

representation, but they have to come within the

strict time limit allowed by the Act; they have to

come with a technically - - -

HER HONOUR: That, too, may be some sort of encouragement to

not having the petition well thought out or well

drafted and putting the respondents to further

expense.

MR GAGELER:  Yes, well Your Honour, it is 40 days after the

return of the writ. It is plenty of time to get a

piece of paper in order, one would have thought, in

the ordinary case. But they have - - -

HER HONOUR:	Not necessarily, if you have not got lawyers.
MR GAGELER:	Your Honour, they have to come with that piece of paper technically correct and Your Honour is
familiar with section 358 and particularly
subsection (2) of the Act, and they come at risk as to costs. Built in to the scheme of the Act is
quite elaborate provisions not found ordinarily in other legislation regarding the costs of a
petitioner. Section 356, Your Honour has already
referred to in substance. That requires a deposit
to be lodged at the time of filing the petition.
Section 371 specifically says - this is in addition
to the general powers under section 360 - that the
Court may award costs against an unsuccessful party
to the petition. Section 372 then credits the deposit against the costs that might be awarded
against the petitioner. Then section 373 allows an
award of costs to be registered as a judgment of
the High Court and enforced accordingly.

Your Honour, they are quite elaborate

provisions in what is a relatively short scheme

which deal with and show a legislative intention

to, in the ordinary case, make the bringing of a
petition available, as Mr McCarthy says, to any
petitioner who can meet the rather formal
qualifications, provided that the petitioner acts
at risk as to the petitioner's costs and as to the

costs of the other parties.

Now, I certainly do not say that the

respondent in this case did anything other than

what was proper in the circumstances, to come to

the court and to defend the petition and to have

legal representation and to incur costs. All I say

is that it would not be an appropriate exercise of

Your Honour's discretion under section - - -

Hudson 56 1/10/93

HER HONOUR:  And why not? What is it - here we are; we know

that an order, say, for the $100 is likely to be of

no great avail to the respondent.

MR GAGELER: Well, Your Honour, I accept the correction that

was made to my submissions.	I was not aware of the
evidence before the Court.	I did say in the

submissions that there is no evidence as to the

costs of Mr Lee. That is not required. But there

is an allegation that the petitioner would not be

able to pay whatever costs might be ordered.	That
is simply not made out by saying that the
petitioner is an invalid pensioner.	Now, I agree

that it is more difficult in the normal course for

an invalid pensioner to pay costs than, one would

think, it would be for an employed person. But if
the costs were in the order of $3000 - $5000 when
taxed it may not be inconceivable that he could pay

those costs. Your Honour, what I say is that Nile

v Woods was an exceptional case.

HER HONOUR: Why? There is a provision; it says what it

means, does it? Is there anything there to limit

it?

MR GAGELER:  Your Honour has a general discretion under

section 360(4).

HER HONOUR:	Yes.
MR GAGELER:	Your Honour, I say there are two things that

limit it. One is the scheme of the Act;

Your Honour should not use that provision to

subvert the scheme of the Act -

HER HONOUR: Well, what is the scheme of the Act that you

say that -

MR GAGELER: It is, Your Honour, that ordinarily a

petitioner who comes to the Court, as the

petitioner is entitled, to challenge an election,

does so at risk as to costs. That is the

fundamental policy of the Act and, Your Honour, as

the majority in Nile v Wood put it, the discretion

has to be exercised having regard to considerations

of what is fair and just in the particular

circumstances of the case. Now, fairness and

justice, in my submission, must take into account

the broader public interest - - -

HER HONOUR: 

And including what one must assume is the

policy that there be virtually unimpeded access to
the courts.

MR GAGELER: 

Your Honour, perhaps I am going over ground

that I have already covered, but - - -

Hudson 57 1/10/93

HER HONOUR:  But is that not part of the structure of this

Act?

MR GAGELER:  Your Honour, it is unimpeded access to the

courts, subject to the petitioner being at risk as

to costs. Your Honour, there is quite elaborate

provision that is made in the relevant part of the
Electoral Act for the petitioner to be risk as to

costs. It goes quite beyond what is ordinarily the case, and that is the quid pro quo for the

unimpeded access to which Your Honour refers.

So far as the other points I wish to make,

Your Honour, are set out in my written submissions,
I do not wish to simply repeat what is already

there. My friend has said that I have said nothing

about public benefit. Far be it for me to say that

Your Honour's judgment is not a significant

contribution to jurisprudence, and I do not wish to

be heard to say that, but may I say this,

Your Honour, that it is apparent, from what I

understand as to what happened at the interlocutory

stages of this matter, that the views expressed in

Your Honour's judgment may have been apparent to
Your Honour at a very early stage in the

proceedings, and what I would wish to say about
public benefit is, in effect, caught up in what I

said in paragraph 6 of my submissions in any event.

I have said there is no general public

interest, and I may have equally said no general

public benefit in having all matters relating to the conduct of elections ventilated in the court

irrespective of merit.

HER HONOUR:  There may be some in ensuring that only those

that do have some public interest aspect are

litigated - - -

MR GAGELER:  Yes, I am not sure how that can be done,

Your Honour, except perhaps in the appropriate

exercise of discretion as to costs.

HER HONOUR: Yes, I understand that.

MR GAGELER: If Your Honour pleases.

HER HONOUR:  I was hoping maybe that the legislature might

see fit to do something with respect to the

provisions as they stand. It is by no means a

model of clarity is it, that part of the Act?

MR GAGELER:  Your Honour, there are some difficulties with

the Act, but so far as who may bring a petition is

concerned, that is really quite clear, although

some of the proceedings before Justice Brennan, of

Hudson 58 1/10/93

course, turned on that issue. Those are my

submissions.

HER HONOUR:	Yes. Anything further, Mr McCarthy?
MR McCARTHY:	I think my friend is a bit tongue in cheek about the consequences of the judgment,
Your Honour. With all due respect to him, I do
think that is much more important than he is really
putting forward. Your Honour, it is the case that
the Act changed in 1983, as I think Your Honour is
aware, and - - -
HER HONOUR:	I take it that apart from Nile v Wood, an

orders not being made under the section -

MR McCARTHY:  I think that is right, Your Honour.

MR GAGELER: That I my understanding, Your Honour.

MR McCARTHY: That is point No 1. But, Your Honour, that

think about illegal practices is a very impor~ant point, and I do not think that it can be gainsaid

as being important for the future. Your Honour is

absolutely correct in relation to what the Act is

encouraging, and I would have thought the

High Court is fairly well clear as to what the

consequences of that are now, as to what court time

is involved.

My friend made some points about other

petitions. I do not want to canvass those other

petitions, but could I just say this: I have read

every one of those other judgments, as I surmise

that if it has not been the case that Your Honour

has, Your Honour probably will. There is a couple

of things that could be said about Mr Hudson and

his petition. Mr Hudson seems to have been, for

want of a better word, sui generis. He has got

some point. He has not claimed that all this

election was invalid, that everyone was not

properly elected, that there was not some major

political campaign involved there. I just say that

in relation to what seemed to me, if I could put a

noun on it, Your Honour, stunts by some other

people around the place. That would be one thing,

but I do not take it any further than that.

Your Honour, I would have expected that if

there is something other than just the fact that
the scheme of the Act provides for costs, that my

friend could point to as being a reason for the

discretion to go the other way, it could have been

perhaps more clearly stated. I do not really think

that there is an answer to the fact that anyone is

encouraged to bring cases, and that what was

50 pounds in 1918 and $100 not, is a very, very

Hudson 59 1/10/93

significance difference, in terms of the thresholds

that one has to cross. Those thresholds are

minimal, Your Honour, and in my submission the

threshold in relation to section 360(ix) should be

regarded, as Your Honour's brethren on this Court has regarded it, as also being minimal, and in my

respectful submission, Your Honour, that threshold

has been crossed in this case.

HER HONOUR: Anything you wish to say further, Mr Hudson?

MR HUDSON: I appreciate what both the learned friends on

either side of me have said this morning, and, as

far as I am concerned, I would, as per the letter

that I did submit to Your Honour, that should there

be any court costs awarded this morning, that I be

granted seven days to write back to the Court.

HER HONOUR:	That is any costs awarded against you?
MR HUDSON:	Yes.

HER HONOUR: There is no application against you.

MR HUDSON: Is there not? Fair enough. It could work out.

I know which way this gentleman is going, but he

has got to convince you, has he not? That is what

I am saying. You could go by the letter of the law

and it is up to you to work it out, so - but I do

seek liberty to ..... the decision within seven days

to give me time to - - -

HER HONOUR:  Yes, that you. There will be no order of costs

against you, Mr Hudson.	You can take that as
certain.	I will reserve this.

MR McCARTHY:	As Your Honour pleases.
HER HONOUR:	The Court will now adjourn.

AT 12.00 PM THE MATTER WAS ADJOURNED SINE DIE

Hudson 60 1/10/93