Insley v State Electoral Commissioner (No. 2)

CITATION:	Insley v State Electoral Commissioner & Ors (No. 2) [2001] NSWADT 24
DIVISION:	General Division
PARTIES:	APPLICANT Terry Insley FIRST RESPONDENT State Electoral Commissioner SECOND RESPONDENT Returning Officer for Comenarra Ward, Ku-ring-gai Municipal Council THIRD RESPONDENT Elaine Malicki FIRST RESPONDENT State Electoral Commissioner SECOND RESPONDENT Returning Officer for Comenarra Ward, Ku-ring-gai Municipal Council THIRD RESPONDENT Elaine Malicki
FILE NUMBER:	993230
HEARING DATES:
SUBMISSIONS CLOSED:	08/22/2000
DATE OF DECISION:	02/16/2001
BEFORE:	Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs Application
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Local Government (Elections) Regulation 1998 Local Government Act 1993
CASES CITED:	Raethel -v- Director-General, Department of Education and Training [2000] NSWADT 56 Latoudis v Casey (1990) 170 CLR 534 Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSW ADT 4
REPRESENTATION:	APPLICANT In Person FIRST RESPONDENT I V Knight, Crown Solicitor SECOND RESPONDENT I V Knight, Crown Solicitor THIRD RESPONDENT S Klinger, solicitor
ORDERS:	1. No orders as to costs

1 This is a decision “on the papers,” pursuant to s 76 of the Administrative Decisions Tribunal Act , 1997 (the Tribunal Act) and concerns the issues of costs. Mr Insley, the successful applicant in the matter of Insley -v- State Electoral Commissioner & ors [2000] NSWADT 90, and Ms Elaine Malicki, the third respondent in that matter seek orders for costs in relation to that decision (the original decision).

2 The original decision concerned an application brought under s329 of the Local Government Act (1993) (the LG Act) which relevantly provides that the Administrative Decisions Tribunal may order the dismissal of a person from civic office if there has been any irregularity in the manner in which the person has been elected or appointed to that office. The Tribunal found that there had been an irregularity in the manner in which the third respondent, Elaine Malicki, had been elected to her office as councillor of Ku-ring-gai Council, and ordered her dismissal.

3 Subsequent to the original decision, Mr Insley and subsequently, Ms Malicki, separately, made applications for costs.. Written submissions were made by all parties. All respondents opposed a costs order in favour of the applicant.

Legislative provisions

4 Section 329(6) of the LG Act provides that:
(6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.

5 Section 88 of the Tribunal Act provides:
(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.
(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987…