Lyness v Fennell & Hefferan

[1998] QSC 38

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No.3261 of 1997

Before the Hon. Mr Justice Mackenzie

[Lyness v. Fennell & Hefferan]

BETWEEN:

HARVEY JAMES ALEXANDER LYNESS
  Applicant

AND:

RON FENNELL
  First Respondent

AND:

PAUL FRANCIS HEFFERAN
  Second Respondent

JUDGMENT - MACKENZIE J.

Judgment delivered 27/3/1998

CATCHWORDS: COSTS - Statutes - operation and effect of Judicial Review Act and the Local Government Act 1993 - Financial position of applicant in determining costs - requirements for local government membership - Judicial Review Act ss.42, 49(2),(2)(b),(4) - Local Government Act 1993 ss. 169, 172, 244, 252(3), 387.

Anghel v. The Minister of Transport (No 2), (1995) 2 Qd.R 454.

O.91 Rules of the Supreme Court. 

Counsel:A.  Rafter for the applicant

P.  Bickford for the first respondent
L.  Bowden for the second respondent

Solicitors:Milburns for the applicant

King & Co for the first respondent
Carswell & Co for the second respondent

Date of hearing:                 19 March 1998

JUDGMENT - MACKENZIE J.

Judgment delivered 27 March 1998

The applicant was an unsuccessful candidate in the Hervey Bay Local Government elections. The second respondent was the successful candidate, polling 13 more votes than the applicant. The first respondent is the returning officer for the division in which the applicant stood. The application seeks a statutory order of review and an order reviewing the decision of the returning officer (the first respondent) to accept the nomination of the candidate (the second respondent). Since the applicant decided not to proceed with the application itself, the only issue to be resolved is that of costs. An application was made under s.49 of the Judicial Review Act for an order that the applicant bear only his own costs of proceeding regardless of the outcome of the proceeding. Section 49(2) requires the court to “have regard to” the financial resources of the applicant or any person associated with him who has an interest in the outcome of the proceeding, and whether the proceeding involves an issue that affects or may affect the public interest in addition to any personal right or interest of the relevant applicant, and whether the proceeding discloses a reasonable basis for the review application. Subject to s.49 the Rules of Court relating to costs apply (s.49(4)). Section 49 extends to the kind of application made in this case. In an affidavit of the applicant read by leave he deposed to his financial position which he estimated to consist of assets of $157,000 and liabilities of about $106,000. He deposed to weekly expenses of $429 out of a gross wage of $620 per week.

He also deposed that at the time of deciding to institute the proceedings he believed that they would be heard within a short period of time.  A perusal of the file indicates that the directions arrived at by consent allowed until 12 September 1997 to complete the interlocutory steps.  A place on the call over list with priority was obtained and the hearing dates of 20 and 21 November 1997 were allocated.  However because of an overrun of another trial there was no judge available to hear the matter on that day and having been returned to the call over list the case was listed on 19 March 1998.  The fact that a matter of this kind has taken 12 months to come to a hearing is not by any means ideal.  However this was contributed to by the timetable set by the parties and the other factor which was beyond the control of the parties.  There are good reasons to think that the sooner this kind of matter can be disposed of the better.

The applicant also deposed that “it would be difficult if not impossible for the Hervey Bay City Council to rescind all motions passed that had been dependent upon the vote of the second respondent”. That factor is not compelling since s.387 of the Local Government Act 1993 preserves from invalidity proceedings of a Local Government or any of its committees or actions of a person acting as a councillor or member of a committee merely because of a defect or irregularity in the election or appointment of any councillor or committee member or the disqualification of a councillor or committee member from acting as a councillor or committee member. The applicant also deposed that at the time he brought the proceedings he believed it was in the public interest to do so. Notwithstanding the submission that he was motivated principally by self-interest as the candidate who had narrowly lost the election, the notion of acting in the public interest and with a degree of self-interest are not mutually exclusive. Further s.49(2)(b) does not restrict itself to issues that affect the public interest. It extends also to issues which may affect the public interest. I am satisfied that there is an element of public interest in ensuring that local government members are duly qualified to be members of the particular local government to which they are elected.

The leading authority on s.49 of the Judicial Review Act is Anghel v the Minister for Transport  (No 2), (1995) 2 Qd.R 454. It was held that Order 91 of the Rules of the Supreme Court was displaced to the extent that its provisions were inconsistent with s.49. Fitzgerald P. left open the question whether the matters mentioned in s.49(2) are exhaustive or whether other matters may also be considered. I prefer the latter view. The statutory obligation is to “have regard” to the matters set out in s.49(2), which in many other circumstances would not be compelling factors in deciding the appropriate costs order under the ordinary power. I do not discern any reason why other relevant factors should not also be taken into account.

Under s.169 of the Local Government Act a person is qualified to become a councillor of a Local Government if the person lives in the Local Government’s area and is an elector.  The second respondent became an elector on 14 May 1996 and claimed to live in the Area.  This was disputed by the applicant.  However the fact that the application is not proceeding on the merits may reflect that  affidavit material filed by the second respondent refutes the inference which the applicant seeks to have drawn from the affidavits filed on his own behalf.

Section 172 of the Local Government Act gives standing (without limiting the persons who may apply) to any elector of the Local Government to make application for review under the Judicial Review Act 1991 of:-

(a) the lawfulness of the election or appointment of a councillor; or

(b) the continued eligibility of a person to act as a councillor.     

Section 42 of the Judicial Review Act abolishes quo warranto and substitutes jurisdiction, in cases where any information in the nature of quo warranto would have lain and in cases where the person acts in an office in which the person is not entitled to act, to grant an injunction restraining the person from acting in the office and a declaration that the office is vacant.  The application may be made by application to review.

Under s.244 of the Local Government Act a person qualified to become a councillor may nominate for election.  A candidate for election must be so qualified.  The duty of the returning officer (the chief executive officer of the local government, unless he cannot act) is that if satisfied that the person has been properly nominated for the election the nomination must be certified.  A person is properly nominated if the person is qualified to be a candidate, is nominated by the appropriate person or persons in the prescribed form, the nomination is delivered to the returning officer by the prescribed time and the prescribed amount is deposited with the returning officer.  The returning officer’s certificate does not validate a nomination if the certificate has been irregularly given.  The returning officer is not obliged to look beyond the form of nomination and payment of the deposit and the voters roll and documentary evidence produced by the nominee that the nominee is an elector for the election. 

The application seeks a statutory order of review and an order reviewing the decision of the  returning officer (the first respondent) to accept the nomination of the candidate (the second respondent).   The application then alleges that the applicant is aggrieved by the decision because he was deprived by it of the opportunity to be elected as a councillor.  The grounds relied on are that there was an improper exercise of power conferred by the Local Government Act by reason of the failure to take into account a relevant consideration, viz, that the second respondent did not live in the local government area.  Also relied on is a decision which is alleged to be otherwise contrary to law because it was based on misrepresentation or error of law that the second respondent lived in the local government area.  A variety of relief is sought including the quashing or setting aside of the first respondent’s decision to accept the second respondent’s nomination; a declaration that the second respondent is not duly elected; and an injunction restraining the second respondent from continuing to act as councillor. 

It is not necessary to address in detail what seem to be deficiencies in the application particularly with respect to the second respondent’s position. It is difficult to see why the returning officer’s decision to accept the nomination was attacked and why the returning officer was joined having regard to the stage the matter had reached by the time the application was made. It would seem to be superfluous to do so since s.42 allows a direct attack on the officer holder himself. Since the ouster provision in the Local Government Act 1936 operated concurrently with quo warranto the case is one where the procedure in s.42 can be used. It was conceded by the applicant as early as 12 September 1997 that the returning officer had performed all of his obligations pursuant to the Local Government Act and that on that basis there would be no allegations of misconduct against him.  However arguments about costs meant that the returning officer’s position was not finalised by discontinuance against him. 

Having regard to s.252(3) of the Local Government Act 1993 that was clearly a correct concession. As has been demonstrated above the fact that the nomination had been certified did not cure any grounds for invalidity of the nomination. It was therefore only necessary to proceed against the holder of the office on the basis that he was acting in an office in which he was not entitled to act. The provisions of s.49(2) are in my view not exclusive. They impose a special regime where factors relevant to applications of the kind contemplated by the Judicial Review Act, but not so relevant to ordinary litigation, must be had regard to.    If the legislature had intended that there was to be a general rule that a party was to bear only his her or its own costs of the proceeding in cases with a public interest component regardless of the outcome, there would be good reason to think that the legislature would have said so directly.  It is a provision which favours applicants and no doubt its purpose is to ensure that people of limited means who raise matters of public interest where there is a reasonable basis for making the application are not deterred by the risk that, if ultimately unsuccessful, a costs order would be made against them.

In the present case the applicant is not by any means impecunious but is equally not possessed of a large excess of assets over liabilities. Nor will his cash flow generate any significant surplus. There is an element of public interest, in addition to private interest, in ensuring that a holder of elective office was duly qualified to be elected. With respect to whether the proceedings disclose a reasonable basis for the application, for the reasons given previously, the joinder of the returning officer was, having regard to the nature and timing of the complaint inappropriate in light of his limited obligations. With respect to the second respondent, it is difficult to see why if proper inquiries had been made prior to commencing the proceedings he would not have uncovered the matters which are now apparent and apparently accepted by him as to the place of living of the second respondent. The fact that the proceedings have, in effect, been discontinued is a factor which has to be placed in the balance. It is hardly likely that the intent of s.49 was to divorce consideration of whether there was a reasonable basis for the application from an examination of the proceeding as it stood at the time of the s.49 application. It has been observed (e.g. in Anghel (No 2) by McPherson J, 459) that the power in s.49 is not confined to prospective costs, and that one purpose is to enable applicants to find out at an early stage if they are to be indemnified against payment of costs of other parties. Perhaps another facet of it is that it may be more advantageous to apply early before the proceeding has matured to the stage where what may have originally disclosed a reasonable basis for the application no longer does so.

Having regard to the matters in s.49(2) and these other factors I have come to the conclusion that the proper order to make is that the applicant ought to pay the costs of and incidental to the application to each of the respondents. The order is that the applications are dismissed. The applicant is ordered to pay each of the respondent’s costs of and incidental to the applications to be taxed.