Noah v Campbell - [2007] FMCA 2128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NOAH v CAMPBELL

[2007] FMCA 2128

ADMINISTRATIVE LAW – Judicial review – disallowing the applicant’s candidature for the forthcoming federal election.

Electoral & Referendum Amendment Act (No.1) 1999

Ruddock v Batteralice (2001) FCR 115 at 229

Applicant:

LESLEY ALEXANDRA NOAH

Respondent:

IAN CAMPBELL

File Number:

BRG 933 of 2007

Judgment of:

Burnett FM

Hearing date:

21 November 2007

Date of Last Submission:

21 November 2007

Delivered at:

Brisbane

Delivered on:

21 November 2007

REPRESENTATION

Ms Noah appeared on her own behalf

Solicitors for the Respondent:

Ms Lindley
Australian Government Solicitor

ORDERS

That the application be dismissed.
That the Applicant pay the Respondent’s costs fixed in the sum of $3505.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 933 of 2007

LESLEY ALEXANDRA NOAH

Applicant

And

IAN CAMPBELL

Respondent

REASONS FOR JUDGMENT

This application came on before me about two weeks ago for judicial review of a decision made by the respondent Scott Bailey, who is an employee of the Office of the Electoral Commissioner. He was divisional returning officer for the seat of Rankin. An application was brought seeking a review of a decision made by him disallowing the applicant's candidature for the forthcoming federal election.
The application came on urgently and was heard approximately 48 hours after the application first was mentioned before the Court. It is fair to say that the application had its origin in a misunderstanding by the applicant of her entitlements under the relevant legislation. And, indeed, it would seem to have been premised upon a misreading by her of her entitlements under section 166 of the Electoral Act.
Plain reading of the legislation, in my view, clearly favoured the contention contended for by the electoral commissioner and it was, in my view, also plain that she had failed by the appointed hour to produce to the electoral commissioner an application for her candidature which was supported by 50 nominators as provided for by the Act. It is not to the point that she says she received advice, that she could have added her name to the list of nominators to bring the number of nominators up to 50 because, again, the legislation in my view is quite plain in that it required the candidate's application to be supported by 50 nominators who were eligible to vote at the election together with the candidate herself.
So that, in other words, there needed to be 51 names on the form and not 50. So irrespective of whether the applicant got the advice that she says that she got it would, in my view, have made no difference to the outcome of the application. It was, in my view, doomed to fail.
The respondent seeks the costs of resisting the application. Each of the applicant and respondent have provided a written outline. The applicant essentially contends that there should be no order as to costs largely on the basis that the application was one brought by her which could be defined as being an application in the public interest. In broad terms, one could say there was a public interest component to her application. It was an application seeking judicial review of a determination by the electoral divisional returning officer in respect of her application to be a candidate at the election.
It was supported by 56 names albeit that several of the 56 names in addition to that of the applicant's were not eligible to be nominators but, indeed, there were, obviously 56 people who had an interest in seeing her candidature at the election, and to that end it could be said that there was more than just personal gain or self interest involved in its prosecution. Arguably, it could be said that the applicant, having secured the support of that number of people had some obligation to pursue her application.
However, having made those observations the fact remains that the legislation, in my view, was quite plain and, upon reflection, if the applicant had taken or had time to consider her position she may well have taken or adopted a different course. Of course, the application was one, as I have already noted, that came on in urgent circumstances, and that probably did not afford her sufficient time to consider that position. However, coupled with the nature of the application itself was the nature of the relief which was sought, even if the applicant had not been - not taken the time or the trouble, or been sufficiently advised in relation to the proper construction of the relevant provisions of the Commonwealth Electoral Act some concern should have been raised in her mind about the prospect of the relief which she was seeking.
The prospect of the relief, of course, was quite significant. The relief sought, in essence, would have required - had her application been successful, a consideration by the Court of the need to have the divisional officer go about or consider going about the process of reorganising the election in the seat of Rankin in order to accommodate a determination by the Court that she was, indeed, entitled to be a candidate and accordingly all those steps that would have flowed from that determination.
Having regard to the electoral timetable, it's unlikely that on a discretionary basis the relief would have been available to her because by the time the application came to Court much of the administrative processes involved with the organising of the election had already been undertaken. To that end I indicate, for instance, there had been a ballot undertaken for the identification of the position of candidates on the electoral ballot paper; pre polling had commenced - in other words from the Monday which preceded the determination of the application by three days - from that Monday various candidates no doubt would have been actively assisting people in nursing homes and the like and others who wouldn't otherwise be able to attend the poll. With the pre polling exercise that commonly is undertaken in the weeks leading up to an election itself.
That, of course, would have meant that all those votes would have been cast and would have to have been set aside with the attendant difficulties that may arise, of people dying or otherwise becoming ineligible to vote, and so on. The problems, of course, magnify from there. That, of course, ignores in addition the difficulties that would have been occasioned with polling in centres remote from Rankin, overseas and throughout Australia.
There were many many issues, I think, that militated against the prospect of discretionary relief. And, again, matters of perhaps, with a little reflection may have suggested another course to the applicant in this case.
Of course, when considering the position of costs, the position is in broad terms as a matter of general principle the Courts powers in relation to costs are discretionary. The general principle to be applied is that an unsuccessful applicant should ordinarily pay the respondent's costs.
There is a line of authority that indicates or suggests that in the context of what could be described as public interest litigation that principle might be overridden by the public interest factor. The matter itself has been the subject of some debate in both State and Commonwealth Courts. In particular, the Full Court of the Federal Court in a decision of Ruddock v Batteralice (2001) FCR 115 at 229, examined the issue in some detail in the context of an application again for the exercise of prerogative relief in respect of some decisions made by the Commonwealth.
The Court there examined in detail, at paragraph 9, the principles governing the award of costs, and looked with a particular focus upon the issue of costs in the context of public interest litigation. At paragraph 20 of the judgment their Honours there set out what they considered to be significant matters for consideration by a Court in the present context and provided that, in effect, to define public interest by setting out conditions for the making of such orders.
“The Court or Tribunal should be satisfied first if it is feasible to determine, enforce, or clarify an important right or obligation affecting the community or a significant sector of the community.”
As I have already indicated in this case there was, in essence, an important right at stake here, and that of course is the right of not only the applicant but also the electors of, in this case, Rankin, to have regard to her candidature. Second, the proceedings will affect the development of the law generally and may reduce the need for further litigation. In this case, the legislation, in my view, was quite plain on its reading. Nothing was advanced by the prosecution of the application so far as impact upon the development of law was concerned and I do not think it will bear upon the prospect of further litigation or in the proceedings otherwise have the character of public interest or test case proceedings. They were some recommendations were picked up in the Australian Law Reform Commission Report, cost shifting if faced with litigation.
When one has regard to those matters in particular and, in particular, if one has regard to the question of whether or not the application itself had that quality of a test case, in my view, it is quite plain that it did not. It was, as I have already said, a case of simple statutory construction and nothing will rise or fall on the outcome of this particular case.
In my view, there is really no basis in this instance to displace the usual principle that costs should follow the event. It is a matter I think parties should weigh up when considering the prosecution of applications, and in this case I think it is appropriate that the applicant pay the respondent's costs.
I propose to fix costs in accordance with the scale of costs which are provided by the rules. In that regard, I am particularly mindful that the application contained in very short compass. It came on quickly. It was resolved, as I say, within about 48 hours of it first being brought to my docket. So in the circumstances I propose to allow the scale of fee of $2005 for the preparation, which is the stage 1 initiating application up to completion of the first Court day. And I propose to allow the daily hearing fee of $1500 for counsel.
I note that Mr Gotterson of Queens Counsel appeared, but I do not think it was really an appropriate case to certify for senior counsel, and accordingly I will limit the hearing fee to $1500. In that event I estimate costs at $3505 and I will direct the applicant the respondent's costs fixed in the sum of $3505.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 19 December 2007