Re Canavan

The High Court of Australia considered whether Senator Pauline Hanson's One Nation party was entitled to recover its legal costs from the Commonwealth of Australia in proceedings brought by Senator Canavan. The dispute arose from an application for a declaration that Senator Canavan was incapable of being chosen as a Senator, pursuant to s 44(v) of the Constitution, due to his dual British citizenship. Senator Canavan successfully defended the application, and the question of costs then arose.

The central legal issue before the High Court was whether the general rule that costs follow the event should apply in this specific constitutional case, or whether there were exceptional circumstances warranting a departure from that rule. Specifically, the court had to determine if the public importance of the constitutional question, the nature of the parties involved, and the conduct of the parties justified an order that the Commonwealth should bear its own costs, or indeed, pay Senator Canavan's costs.

Kiefel CJ, applying the principles governing costs in constitutional litigation, noted that while the public importance of a matter can be a factor in determining costs, it does not automatically displace the general rule. The court considered the fact that Senator Canavan was a respondent who had successfully defended his position, and that the applicant had brought the proceedings. In the absence of any specific conduct by Senator Canavan that would warrant a departure from the usual order, and given the public interest in the constitutional question, the court determined that the general rule should apply.

The High Court ordered that the Commonwealth of Australia pay Senator Canavan's costs of the proceeding.