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…
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.
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AGLC
Nile v Wood [1988] HCA 30
Case
[1988] HCA 30
Decision Date
CaseChat Overview and Summary
The case of *Nile v Wood* concerned a dispute between the plaintiff, Nile, and the defendant, Wood, regarding a contract for the sale of land. The matter was heard by the High Court of Australia.
The central legal issue before the High Court was whether the contract for the sale of land was void for uncertainty, specifically concerning the description of the land to be sold. The court was required to determine if the description provided in the contract was sufficiently clear to identify the subject matter of the sale with the necessary certainty.
The High Court held that the description of the land in the contract was not sufficiently certain to identify the subject matter. Brennan, Deane and Toohey JJ reasoned that for a contract for the sale of land to be valid, the description of the land must be sufficiently precise to enable the identification of the property without further agreement between the parties. In this instance, the description was found to be ambiguous and lacking the necessary particularity, rendering the contract void for uncertainty.