Martin v Electoral Districts Boundaries Commission (No 2) - [2017] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MARTIN v ELECTORAL DISTRICTS BOUNDARIES COMMISSION (No 2)
[2017] SASCFC 43
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly, The Honourable Justice Blue, The Honourable Justice Bampton and The Honourable Justice Hinton)
15 May 2017
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - NATURE OF PROCEEDINGS - PUBLIC DUTY INVOLVED
Application for costs on dismissal of appeal.
The Court previously delivered reasons for dismissing the appeal against an electoral redistribution order made by the Electoral Districts Boundaries Commission: Martin v Electoral Districts Boundaries Commission [2017] SASFC 18.
The appellant is the Secretary of the Australian Labor Party (South Australian Branch) and acts on its behalf. The second respondent is the State Director of the Liberal Party of Australia (South Australian Division) and acts on its behalf.
The second respondent seeks an order that the appellant pay her costs of the appeal. The appellant resists a costs order on the ground that the appeal was in the nature of a test case.
At a directions hearing before the hearing of the appeal, a representative of the Australian Democrats sought leave to appear on the appeal if neither party would seek costs against them. The appellant and second respondent declined to so agree. No orders were sought by the parties at that stage relating to costs on the basis that the case was a test case or a public interest case.
Held by the Court:
1. The appeal does not fall within the category of a test case (at [8]-[9]).
2. Although in certain circumstances it might be appropriate in the public interest not to order costs against an individual appellant or intervenor on an appeal against a redistribution, in the present case the protagonists were representatives of major political parties who were well aware that ultimately an adverse costs order might be made. Particularly taking into account the conduct of the parties, there is no reason to depart from the general rule that costs follow the event (at [10]-[13]).
3. Order that the appellant pay the second respondent’s costs of the appeal and that there be no order as to the costs of the first respondent (at [14]).
Constitution Act 1934 (SA) s 77, s 86, Part 5; Supreme Court Civil Rules 2006 (SA) r 263(1), referred to.

MARTIN v ELECTORAL DISTRICTS BOUNDARIES COMMISSION (No 2)
[2017] SASCFC 43
Full Court: Kourakis CJ, Kelly, Blue, Bampton and Hinton JJ

THE COURT: On 10 March 2017 this Court delivered its decision in Martin v Electoral Districts Boundaries Commission.[1]The second respondent, Sascha Meldrum, was joined pursuant to s 86(6) of the Constitution Act 1934 (SA) (the Constitution Act). Ms Meldrum is the State Director of the Liberal Party of Australia (South Australian Division) and acts on its behalf. On the hearing of the appeal, s 86(7) of the Constitution Act allows the Full Court to make ‘any ancillary order as to costs’. That power is ancillary to the Full Court’s power to quash or vary the decision of the Commission or dismiss the appeal. Ms Meldrum has applied for her costs. The appellant, Reggie Martin, who is the Secretary of the Australian Labor Party (South Australian Branch) and acts on its behalf, opposed a costs order on the ground that the appeal brought was in the nature of a test case. The first respondent, the Commission itself, made no application for costs.
[1] [2017] SASCFC 18.
The usual rule is that costs follow the event.[2] In the ordinary course the second respondent, having been successful in the principal litigation, would be entitled to the costs of the appeal. However the nature of this appeal and the parties involved require the question of costs to be considered in greater detail.
[2] Supreme Court Civil Rules 2006 (SA) rule 263(1).
Section 86(6) of the Constitution Act provides that ‘any person having an interest in the proceedings may upon application to the Court be joined as a party to the proceedings’. It does not require the appellant to join other persons who appeared before the Commission as respondents to the appeal. Ms Meldrum, as the representative of the Liberal Party, applied to be joined as the second respondent, and did so voluntarily. There is some analogy, as a matter of legal form, between the position of the second respondent and an intervenor. Nonetheless, the forensic reality is that the Liberal and Labor parties were the principal adversaries before the Commission, just as they will be the major political opponents and contenders for government in the next election.
Section 86(6) of the Constitution is drawn as widely as it is so that any interested party may, if it so chooses, contest an appeal brought against an order of the Commission. Part 5 constitutionally entrenches parliamentary democracy and representative government. The drawing of boundaries by the Commission, acting as an independent tribunal and in accordance with the structures of Part 5, ensures the fairness of the electoral process. In exercising the costs discretion conferred by s 86(6) of the Constitution Act, this Court must take care not to discourage invocation by individual electors of its supervisory jurisdiction over the Commission’s discharge of that vital role. There may be good reason not to order costs against an individual who brings an appeal on reasonable grounds, and without any prospect of personal benefit, if the appeal is ultimately dismissed. So too with respect to a similarly placed intervenor.
However, more commonly, as is the case on this appeal, the parties to an appeal against an order of the Commission will be representatives of major political parties. Political parties, particularly large ones, are those most interested in the boundaries drawn by the Commission as those boundaries directly affect their ability to win elections and to govern. In the South Australian political environment the major parties are likely to take opposing views of the ‘fairness’ of an electoral redistribution. The party which is negatively affected by the redistribution has an interest in appealing against the order of the Commission and the other party has an interest in defending that appeal. That is how the interests of the parties fell in the present appeal. That position is closely analogous to ordinary litigation.
The appellant contended that the appeal was a test case brought to resolve a ‘difficult or contentious issue’ surrounding the construction of s 77 of the Constitution Act. That controversy was said to exist because the 2016 Commission departed from the interpretation of s 77 which previous Commissions had adopted.
The appellant conceded that this appeal did not raise an issue of law that was common to any other action pending before the courts. Rather, the appellant submitted that this decision was a test case that would assist future Commissions in interpreting s 77 of the Constitution Act. If this appeal were not brought, future Commissions would be presented with submissions advocating conflicting constructions of s 77 of the Constitution Act. The Full Court’s decision provides guidance as to how s 77 should be interpreted.
Two observations must be made concerning the appellant’s contention. First, on the face of it, that argument suggests that the appeal is a public interest case and not a test case. According to Dal Pont a test case can be distinguished from a public interest case because a ‘test case focuses on the curial interpretation of a law that, upon the court pronouncing on it, is likely to benefit a considerable number of others who are consequently left in less doubt as to their legal position.’[3] The legal interests affected by this case are primarily the interests of those who will contest the next election. While the effects of the decision are far reaching for electors, the decision does not affect the legal interests of electors in the sense of bringing a matter before the courts. It is more likely that this appeal was brought in the public interest. Yet, when making submissions on costs, the appellant eschewed suggesting that the appeal was a public interest case, accepting that the authorities do not necessarily support an order that there be no order for costs against the party agitating the public interest in the way that the test case line of authorities do.
[3] Dal Pont, G, Law of Costs 2^nded LexisNexis, Australia, 2009 at [9.30].
Secondly, the appellant’s primary consideration in bringing the appeal was not to settle how future Commissions might interpret s 77 of the Constitution Act. The appellant’s primary concern, as discussed above, was having the Commission’s orders quashed so that more favourable boundaries would be drawn and consequentially the Labor Party would have an increased chance of winning the next election.
The ultimate question on an application for costs is what is the justice of the case as between the parties before the Court. The general rule to ensure justice as between the parties is that costs will follow the event. Notwithstanding the subject matter of the appeal, there is no reason to depart from that general rule. The Labor Party and the Liberal Party are the major political parties in this State. They engage in election campaigns funded by substantial grants of public money and substantial private donations. Both parties, in particular their Parliamentary representatives and other leading cadre, benefit substantially from electoral success and the winning of government.
Moreover, in engaging in this contest both the appellant and the second respondent were well aware that ultimately an adverse costs order might be made against the unsuccessful party. At a directions hearing held on 16 January 2017, a representative of the Australian Democrats sought leave to appear on the appeal if neither party would seek costs against them. In response, the appellant submitted that the ordinary course is that the question of costs would not be determined until after judgment is delivered. The appellant submitted that no order should be made before the court is in a position to assess the conduct of the parties over the entirety of the proceeding. The second respondent agreed with this submission. Ultimately, neither party was prepared to grant the Australian Democrats the indulgence they sought. The consequence was that the Australian Democrats withdrew their application to be joined. It is to be observed that at the time of that hearing the issues were clearly defined by the appellant’s grounds of appeal and objectively there was no reason to anticipate that the factors bearing on the exercise of the costs discretion would differ whether considered then or after determination of the appeal.
Ordinarily, when a party intends to submit that a matter comprises a test case or public interest case in which each party should bear its own costs regardless of success, that party should inform the Court and the opponent beforehand. This affords an opportunity for the Court to consider whether an order about costs should be made in advance regardless of the result of the appeal. It also avoids a party awaiting the result of the appeal and then submitting that costs should follow the event if the party is successful and submitting that each party should bear its own costs if the party is unsuccessful.
In the present case, neither the appellant nor the second respondent committed themselves in advance of the hearing to the position that the public interest in the subject matter of the appeal was such that the proper order pursuant to s 86(3) of the Constitution Act would be to make no order as to costs.
In the circumstances the appellant is ordered to pay the second respondent’s costs of the appeal. There is no order as to the costs of the first respondent.