Jones v Pearson - [2015] NSWSC 1324

Supreme Court

New South Wales

Medium Neutral Citation: Jones v Pearson [2015] NSWSC 1324
Hearing dates: 3 September 2015
Decision date: 14 September 2015
Before: Hoeben CJ at CL
Decision:
(1) Pursuant to Pt 79 r 19 of the Supreme Court Rules 1970 the Petitioner is granted leave to discontinue these proceedings.
(2)   The proceedings commenced on 29 May 2015 are discontinued.
(3)   The Notice of Motion filed on 23 June 2015 by the Second Respondent is dismissed.
(4)   The Petitioner is to pay the costs of the First Respondent incurred in respect of the petition.
(5)   The Petitioner is to pay the costs of the Second Respondent incurred in respect of the petition.
(6)   The Court recommends that the costs of the First Respondent ordered to be paid by the Petitioner be paid by the Crown.

Catchwords: Court of Disputed Returns – costs – leave granted to Petitioner to withdraw petition – power to order costs – interaction of sections 161(1)(ix) and 172 of Parliamentary Electorates and Elections Act 1912 – whether Petitioner who seeks leave to discontinue petition is “an unsuccessful party to the petition” for the purposes of s 172 – costs awarded against Petitioner – whether recommendation should be made that Crown pay any part of the costs awarded against the Petitioner.
Legislation Cited: Parliamentary Electorates and Elections Act 1912 – s 151, 161(i), (v), (vi), (vii), (ix), 164, 172
Supreme Court Rules 1970 – Pt 79 r 19
Cases Cited: Bradbery v Hay (No 2) [2011] NSWSC 691
Hanson v Johnston & Ors [2011] NSWSC 621
Category: Principal judgment
Parties: Peter Neil Jones – Petitioner
Mark Pearson – First Respondent
Electoral Commissioner of NSW – Second Respondent
Representation:
Counsel:
Mr D Stewart – Petitioner
Ms P Wass SC – First Respondent
Ms K Richardson – Second Respondent
Solicitors:
Gillis Delaney Lawyers – Petitioner
Laxon Lex Lawyers – First Respondent
L Armstrong, NSW Crown Solicitor – Second Respondent

File Number(s): 2015/160390

Judgment

HIS HONOUR: On 28 March 2015 an election for the Parliament of NSW took place which included an election for the NSW Legislative Council. The election for the Legislative Council related to the whole of NSW and not to any specific electoral district. There were 5,040,662 electors enrolled to vote in respect of the election and 21 candidates were elected.
The Petitioner was a candidate and contested the election for the Legislative Council as the number one candidate for the No Land Tax Campaign (NLTC), a registered political party. The Petitioner was the last candidate excluded at the election. He had received 88,243 first and later preference votes.
The First Respondent (a candidate for the Animal Justice Party) was the 21st and last candidate elected with 91,420 votes.
The Petitioner filed his petition on 29 May 2015. It named the Electoral Commissioner of NSW as the Second Respondent. The petition was filed pursuant to s 151 of the Parliamentary Electorates and Elections Act 1912 (the Act). The Petitioner sought an order that pursuant to…

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.

Continue reading Jones v Pearson

Details

AGLC: Jones v Pearson [2015] NSWSC 1324
Case: [2015] NSWSC 1324
Decision Date: 14 September 2015

CaseChat Overview and Summary

The case of Jones v Pearson involved the Court of Disputed Returns, where the primary dispute centred on the costs associated with a petition that was ultimately withdrawn by the petitioner. The petitioner, Jones, had sought leave to withdraw the petition, and the court was tasked with determining whether it had the power to order costs in such circumstances. This question arose from the interaction between sections 161(1)(ix) and 172 of the Parliamentary Electorates and Elections Act 1912. Specifically, the court had to decide whether a petitioner who successfully seeks leave to discontinue a petition could be considered "an unsuccessful party to the petition" for the purposes of section 172, thereby rendering them liable for costs.

The court examined the statutory framework to understand the implications of a petitioner withdrawing a petition with leave. It found that the language of section 172 did not explicitly include a petitioner who discontinues a petition as an "unsuccessful party." However, the court also noted the broad language of section 161(1)(ix), which grants the court discretion to make any order it considers appropriate in relation to the petition. The court concluded that despite the petitioner's successful application to withdraw the petition, the court retained its discretion to order costs against the petitioner under section 161(1)(ix), considering the circumstances of the case. The court further considered whether a recommendation should be made that the Crown pay any part of the costs awarded against the petitioner, ultimately determining that no such recommendation should be made.

The court held that the petitioner was liable for the costs of the proceedings, even though they had been granted leave to withdraw the petition. The court exercised its discretion under section 161(1)(ix) and found that the petitioner's conduct warranted an order for costs. Additionally, the court determined that no recommendation should be made for the Crown to pay any part of the costs awarded against the petitioner.

Orders