Nile v Wood

[1988] HCA 30

HIGH COURT OF AUSTRALIA

Brennan, Deane and Toohey JJ.

NILE v. WOOD AND ANOTHER

(1988) 167 CLR 133

15 June 1988

Parliamentary Elections (Cth)—Costs

Parliamentary Elections (Cth)—Senate—Petition disputing return—Failure to comply with statutory requirements—Constitutional grounds of incapability—Conviction and under sentence or subject to be sentenced for offence punishable by imprisonment for year or longer—Undischarged bankrupt or insolvent—Acknowledgment of allegiance, obedience or adherence to foreign power—The Constitution (63 &64 Vict. c. 12), s. 44—Commonwealth Electoral Act 1918 (Cth), ss. 355, 358. Costs—Parliamentary elections (Cth)—Court of Disputed Returns—Power to order costs to be paid by Commonwealth—Commonwealth Electoral Act 1918 (Cth), s. 360(1)(ix), (4).

Decisions

BRENNAN J. The petitioner, as Mrs Nile was described in our judgment in this matter, filed a document which was intended to serve as a petition disputing the election of William Robert Wood as a Senator for the State of New South Wales. We held that the putative petition was incurably defective: Nile v. Wood (1987) 62 ALJR 52; 76 ALR 91. The putative petition failed to comply with either par.(a) or par.(b) of s.355 of the Commonwealth Electoral Act 1918 (Cth). The petition was dismissed. Mrs Nile was ordered to pay the costs of Senator Wood.

2. When judgment was delivered, counsel for Mrs Nile stated that she wished to seek an order that her costs (including the costs she had been ordered to pay Senator Wood) be paid by the Commonwealth. Mrs Nile was given leave to make an application for such an order upon giving notice to the Commonwealth of the order sought. The matter has now been relisted, written submissions have been received and they have been supplemented by oral argument. Mrs Nile seeks an order for costs to be paid by the Commonwealth pursuant to the provisions of s.360(1)(ix) and (4) of the Act. Sub-section (4) reads as follows:

" The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so."

3. This is a special provision which exposes the Commonwealth to potential liability for the costs of proceedings to which it may not be a party. It was not a party to the proceedings in this case. It is clear that the discretion conferred by sub-s.(4) is not merely a discretion to determine which party in adversary proceedings should bear the costs. Indeed, the Commonwealth does not dispute the jurisdiction of the Court under sub-s.(4) to make an order in favour of Mrs Nile, but submits that it is not appropriate to do so.

4. In my opinion the discretion may properly be exercised when the proceedings have arisen because an officer of the Commonwealth has failed properly to perform his function or when the proceedings have resulted in some public benefit. In such cases it may be appropriate that the public purse ought bear the costs or some of them. I do not suggest that these categories are exhaustive, but it would not be appropriate to exercise the discretion whenever a litigant chooses to put the validity of an election to the test. Some warrant for imposing a liability on the funds of the Commonwealth must appear before it is appropriate to make an order.

5. I can find no warrant for making an order in this case. The proceedings in respect of which an order is sought consisted of no more than the filing of the putative petition and Mrs Nile's resistance to an application to strike out the incurably defective document. From start to finish the proceedings were concerned with the form of the document and its sufficiency to launch an attack on Senator Wood's election. I see no reason to order that the Commonwealth should carry any part of a burden of costs which was created solely by the defects in the putative petition.

6. I would dismiss the application.

DEANE AND TOOHEY JJ: If this application by Mrs. Nile for an order for costs against the Commonwealth fell to be determined by reference to the ordinary principles upon which orders for costs are made between parties to litigation, we would be of the view that no order at all should be made. Mrs. Nile's petition against Mr. Wood failed because it was defective both as to form and as to substance. Accordingly, it was dismissed and she was ordered to pay Mr. Wood's costs. There is no reason why the Commonwealth should, in those circumstances, be ordered to pay to Mrs. Nile either the costs which she has been ordered to pay to Mr. Wood or her own costs of the proceedings. Indeed, the Commonwealth was not even a party to the proceedings.

2. The matter does not, however, fall to be determined by reference to those ordinary principles. Section 360(4) of the Commonwealth Electoral Act 1918 (Cth) expands the Court of Disputed Returns' power to "award costs" (s.360(1)(ix)) by including "the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so". This power to order costs against the Commonwealth, which is unlikely in the ordinary case to be a party to proceedings before the Court of Disputed Returns, is not constricted by reference to the principles controlling the making of an order for costs inter partes. It is a general power conferred upon the Court of Disputed Returns, in the exercise of its special jurisdiction, to order that the Commonwealth pay the costs of a party whenever the Court considers it appropriate so to do. We would not attempt to confine it by definition 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 connection with an electoral petition.

3. We are not persuaded, in the circumstances of the present case, that it would be appropriate to make an order that the Commonwealth pay Mrs. Nile's own costs of the proceedings. The position is, however, different in so far as the costs which she has been ordered to pay to Mr. Wood are concerned. It is now known that Mr. Wood was not qualified to be elected as a senator. If that fact had been known at the conclusion of these proceedings, in which Mr. Wood was defending his putative position as a senator, a question would have arisen about whether an order for costs should have been made in his favour. Be that as it may, we think that, on balance, the interests of justice would be served if Mrs. Nile did not have to bear the ultimate burden of the order to pay Mr. Wood's costs of the proceedings. That being so, we consider it appropriate that an order be made which will have that effect.

Orders

Order that the Commonwealth pay to Elaine Nile the amount of costs which she is required to pay to Robert Wood pursuant to the order of the Court made on 16 December 1987.

No order as to the costs of this application.