Peebles v Honourable Tony Burke (No 2) - [2010] FCA 861

FEDERAL COURT OF AUSTRALIA
Peebles v Honourable Tony Burke (No 2) [2010] FCA 861

Citation: Peebles v Honourable Tony Burke (No 2) [2010] FCA 861

Parties: MS ROBYN PEEBLES v THE HONOURABLE TONY BURKE MP, AUSTRALIAN LABOR PARTY (NSW BRANCH) and AUSTRALIAN ELECTORAL COMMISSION

File number: NSD 963 of 2010

Judge: MOORE J

Date of judgment: 13 August 2010

Catchwords: COSTS – federal parliamentary elections – electoral advertising – prohibited acts – conduct not prohibited under Commonwealth Electoral Act 1918 (Cth) – submission that proceedings were in public interest – characterisation of proceedings as public interest litigation, even if a genuinely held view, does not immunise party against costs order

Legislation: Commonwealth Electoral Act 1918 (Cth)
Federal Court of Australia Act 1976 (Cth)

Cases cited: Horn v Australian Electoral Commission [2008] FCA 43 cited
Hudson v Entsch [2005] FCA 557 applied
Hudson v Entsch (2005) 216 ALR 188 cited
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 cited
Peebles v Honourable Tony Burke [2010] FCA 838 cited
Sue v Hill (1999) 199 CLR 462 cited

Date of hearing: 4 August 2010

Date of last submissions: 10 August 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 7

Counsel for the Applicant: P E King

Solicitor for the Applicant: Robert Balzola and Associates

Counsel for the First and Second Respondents: R Darke SC & J Spinak

Solicitor for the First and Second Respondents: Watson Mangioni

Counsel for the Third Respondent: K Stern

Solicitor for the Third Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 963 of 2010

BETWEEN:
MS ROBYN PEEBLES
Applicant

AND:
THE HONOURABLE TONY BURKE MP
First Respondent

AUSTRALIAN LABOR PARTY (NSW BRANCH)
Second Respondent

AUSTRALIAN ELECTORAL COMMISSION
Third Respondent

JUDGE:

MOORE J

DATE OF ORDER:

13 AUGUST 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicant pay the respondents' costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 963 of 2010

BETWEEN:
MS ROBYN PEEBLES
Applicant

AND:
THE HONOURABLE TONY BURKE MP
First Respondent

AUSTRALIAN LABOR PARTY (NSW BRANCH)
Second Respondent

AUSTRALIAN ELECTORAL COMMISSION
Third Respondent

JUDGE:

MOORE J

DATE:

13 AUGUST 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 4 August 2010 I dismissed an application for injunctive relief under s 383 of the Commonwealth Electoral Act 1918 (Cth) and published my reasons for doing so on 9 August 2010: Peebles v Honourable Tony Burke [2010] FCA 838. These reasons concern the question of costs.
The respondents seek an order that the applicant pay their costs. The applicant submits that each party should pay their own costs. I have vacillated about what order should be made. At one stage I thought the observations of Dowsett J in Hudson…

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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Details

Case: [2010] FCA 861
Decision Date: 13 August 2010

CaseChat Overview and Summary

Peebles v Honourable Tony Burke (No 2) involved an electoral dispute between the applicant, Peebles, and the respondent, Tony Burke, who was a member of the Australian House of Representatives. The applicant sought a declaration that certain statements made by the respondent during a federal parliamentary election campaign constituted prohibited electoral advertising under the Commonwealth Electoral Act 1918 (Cth). The respondent denied the allegations and contended that the statements did not constitute prohibited advertising. The case was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the statements made by the respondent during the election campaign were prohibited under the Commonwealth Electoral Act 1918 (Cth). Additionally, the Court needed to determine whether the characterisation of the proceedings as public interest litigation, even if genuinely held, could immunise the applicant from a costs order. The Court had to interpret the provisions of the Commonwealth Electoral Act 1918 (Cth) and consider the public interest considerations relevant to the award of costs in such cases.

The Court found that the statements made by the respondent did not constitute prohibited advertising under the Commonwealth Electoral Act 1918 (Cth). The Court concluded that the statements were not made for the purpose of influencing voters and did not constitute an improper form of electoral advertising. Furthermore, the Court held that characterising the proceedings as public interest litigation, even if genuinely held, did not immunise the applicant from a costs order. The Court found that the applicant's proceedings were not in the public interest and, therefore, the applicant was liable to pay the respondent's costs.

The Court ordered that the applicant pay the respondent's costs. The Court found that the applicant's proceedings were not in the public interest and, therefore, the applicant was liable to pay the respondent's costs. The Court did not make any orders regarding the declaration sought by the applicant or any other relief.

Orders

Orders of the court

1. The applicant pay the respondents' costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Peebles v Honourable Tony Burke (No 2) [2010] FCA 861
Parties:		MS ROBYN PEEBLES v THE HONOURABLE TONY BURKE MP, AUSTRALIAN LABOR PARTY (NSW BRANCH) and AUSTRALIAN ELECTORAL COMMISSION
File number:		NSD 963 of 2010
Judge:		MOORE J
Date of judgment:		13 August 2010
Catchwords:		COSTS – federal parliamentary elections – electoral advertising – prohibited acts – conduct not prohibited under Commonwealth Electoral Act 1918 (Cth) – submission that proceedings were in public interest – characterisation of proceedings as public interest litigation, even if a genuinely held view, does not immunise party against costs order
Legislation:		Commonwealth Electoral Act 1918 (Cth) Federal Court of Australia Act 1976 (Cth)
Cases cited:		Horn v Australian Electoral Commission [2008] FCA 43 cited Hudson v Entsch [2005] FCA 557 applied Hudson v Entsch (2005) 216 ALR 188 cited Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 cited Peebles v Honourable Tony Burke [2010] FCA 838 cited Sue v Hill (1999) 199 CLR 462 cited
Date of hearing:	4 August 2010
Date of last submissions:	10 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	P E King
Solicitor for the Applicant:	Robert Balzola and Associates
Counsel for the First and Second Respondents:	R Darke SC & J Spinak
Solicitor for the First and Second Respondents:	Watson Mangioni
Counsel for the Third Respondent:	K Stern
Solicitor for the Third Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 963 of 2010

JUDGE:	MOORE J
DATE OF ORDER:	13 AUGUST 2010
WHERE MADE:	SYDNEY

JUDGE:	MOORE J
DATE:	13 AUGUST 2010
PLACE:	SYDNEY