Re Carroll v Electoral Commission of Qld & Reeves

[1998] QSC 215

SUPREME COURT OF QUEENSLAND
SITTING AS THE COURT OF DISPUTED RETURNS

Brisbane  No. 5999 of 1998

Before the Hon. Mr Justice Mackenzie

[re Carroll v Electoral Commission of Qld & Reeves]

IN THE MATTER OF THE ELECTORAL ACT 1992

IN THE MATTER OF THE ELECTION OF ONE MEMBER OF THE LEGISLATIVE ASSEMBLY FOR THE ELECTORAL DISTRICT OF MANSFIELD IN THE STATE OF QUEENSLAND

FRANCES EDWARD CARROLL

Petitioner

and

ELECTORAL COMMISSION OF QUEENSLAND

First Respondent

and

PHILIP GERARD REEVES

Second Respondent

CATCHWORDS:           COSTS - discretionary powers of the Court of Disputed Returns to make costs orders - whether conduct at polling booths invited the litigation

Electoral Act 1992 (Qld) ss.140(1), 158, 163(1)

Bostock v Ramsey Urban District Council (1900) 2 QB 616

Donald Campbell & Co Ltd v Pollack (1927) AC 732

Free v Kelly (1996) 185 CLR 296

Jones v McKie & Mersey Docks & Harbour Board (1964) All.  ER 842

Oswack v Richmond River Council (1989) 152 ALR 83

Wyatt v Albert Shire Council (1987) 1 Qd.R 486

Counsel:Mr P Dunning, with him Mr P Hastie for the petitioner

Mr R Hanson Q.C. with him Mr J McKenna for the first respondent
Mr W Sofronoff Q.C. with him Mr G Newton and Ms K Heyworth-Smith for the second respondent

Solicitors:Prentice Lawyers for the petitioner

Crown Law for the first respondent
Carne & Herd for the second respondent

Hearing date:          1-4 September 1998

COSTS ORDERS - MACKENZIE J.

Judgment delivered 2 October, 1998

1. When I dismissed the petition on 28 September 1998, I reserved the question of costs.  The first respondent, the Electoral Commission, has, upon consideration of my reasons for judgment, appropriately taken the view, in light of the decision in Free v Kelly (1996) 185 CLR 296, that it should bear its own costs. There will therefore be no order as to costs as between the petitioner and the first respondent.

2. The second respondent, Mr Reeves, seeks costs. The petitioner submits that it is an appropriate case for an order that there be no order as to costs. Section 140(1) of the Electoral Act 1992 is as follows:-

   “The Court of Disputed Returns may order an unsuccessful party to the petition to pay the reasonable costs of the other parties to the petition.”

3. The court has a discretion to make an order that an unsuccessful party pay costs.  However, that discretion must be exercised judicially (Wyatt v Albert Shire Council (1987) 1 Qd.R 486, 489; Donald Campbell & Co Ltd v Pollak (1927) AC 732, 814). The proposition stated in the last mentioned case by Viscount Cave L.C. is that a successful party has, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs, but has no right to costs unless and until the court awards them. The discretion must be exercised judicially and should not be exercised against the successful party except for some reason connected with the case. As Kirby J. recognises in Oshlack v Richmond River Council (1989) 152 ALR 83, 125 circumstances can arise justifying a departure from the general rule. The passage is as follows:-

   “Once it is appreciated that compensation to the successful party is the reason why that party will ordinarily have a reasonable expectation of recovering its proper costs, the limits of the principle are clear.  It says nothing about exceptional or special circumstances which warrant a departure from the general rule.  Such departures have quite often arisen in the past, as I have demonstrated.  Public interest litigation is just one category into which may be grouped particular kinds of cases that will sometimes warrant departure from the general rule.”

4. The reference to public interest litigation in that passage intrudes into the present argument since it was submitted that the present case was not properly classified as public interest litigation.  The subject is discussed in some detail in Oshlack. I do not need to enlarge upon the matter since I am satisfied that the petitioner was not really submitting that the case was one truly fitting into that category. Rather it was submitted that the case was one which concerned, on a reasonable factual basis, a matter that went to the fair and proper conduct of parliamentary elections in Queensland. It was further submitted that the proper application of ss.158 and 163(1) of the Electoral Act 1992 were untested and that the fact situation was different from any considered by courts in the past and concerned an issue of considerable significance for the conduct of elections. I do not read the petitioner’s submissions as submitting that this is public interest litigation. That concession would be justified. Rather it is submitted that some conduct potentially contravening the Electoral Act was exposed by the evidence, in that there was a deliberate attempt to misrepresent the nature of the card handed out at four polling booths.  Reliance was also placed on the conduct of those who handed out the card, even those who had not positively misrepresented the nature of the card.  The passages in paras.151 and 152 of the principal judgment refer to those matters.

5. In that connection it was submitted that the bringing of the petition has been the catalyst for careful analysis of the current state of the law in Queensland.   (In fact, the Legal Constitutional and Administrative Review Committee of the Legislative Assembly is to examine the matter and recommend whether any changes to the law are necessary in light of the judgment).  It is true, as the petitioner submits, that this underscores the public interest issue of acceptable standards of conducting elections.  However, in my view the fact that a review of the law has been prompted by the judgment is not of itself relevant to the question of costs.  If anything is relevant, it is the factual situation proved at the hearing. 

6. It was submitted on behalf of the second respondent that there was no finding that he was personally implicated in the offending misrepresentations.  It is true that there is no evidence that Mr Reeves was personally implicated in any of the offending conduct.  With regard to the misrepresentations, the only evidence was that no instructions were given to booth workers as to what they should say when handing out the orange cards (and by implication that they were not told what they should not say).  That is not inconsistent with the findings in paras.151 and 152.  It is noted, without exploring it further, that a concession was made on the second respondent’s behalf by Mr Sofronoff that conduct not implicating the candidate personally may be grounds for avoiding the election if the consequence of it is to deny electors their free and deliberate choice.  Quite apart from that, underlying that proposition is an unreal expectation that the endorsed candidate of a major party  ought to be able to inevitably insulate himself, insofar as a discretionary order is concerned, from the consequences of inappropriate conduct of workers promoting the interests of the party which he represents as candidate by not being personally involved in promoting the conduct.   It is also a fiction that in a case where a person wins a seat at an election as the candidate of a party, the party does not stand behind the candidate in the event that the validity of the election is challenged.  An election petition is, in reality, unlike ordinary civil litigation in those respects.

7. This was a case where the law was uncertain, and in fact the initial position taken by the second respondent was that conduct of the kind ultimately found, if proved, would fall within the prohibition of s.163(1). That was ultimately found not to be the case. Had that concession been correct, the petitioner’s case would have had less onerous criteria to satisfy in order to succeed. That should not be taken to suggest that, in the end, those criteria would have been satisfied. However, the evidence did establish examples of the kind of conduct which offended against the Electoral Act, on the civil standard of proof.  In my view the conduct of those working on the second respondent’s behalf, although he is not personally implicated in their wrongdoing, effectively invited the litigation (Jones v McKie & Mersey Docks & Harbour Board (1964) 2 All.ER 842; Bostock v Ramsey Urban District Council (1900) 2 QB 616). In the circumstances, I am satisfied that there are particular circumstances peculiar to the case which warrant a departure from the general rule. I propose to make an order as between the petitioner and the second respondent that there be no order as to costs. In coming to that conclusion, it is not to be assumed that proof of trivial contravention of the requirements of the Act will necessarily lead to an order denying costs to a successful respondent. In reaching the conclusion in this case, regard has been had to the nature of the conduct overall revealed by the evidence.

.  8                  There was some debate in the submissions as to whether there was a lengthening of the proceedings by reason of the unsuccessful application to strike out the petition on the first day of the hearing.  On the one hand, the petitioner submitted that he was entitled to costs for that day.  On the second respondent’s behalf, it was submitted that, because a number of the matters canvassed on the first day did not have to be repeated subsequently, the hearing was not prolonged beyond the period of time it took in any event.  It is inescapable that some time was thrown away by the unsuccessful application being made since time for consideration had to be built into the timetable.  While I adhere to the view expressed previously that I think that the matter could have been completed a day sooner had the application to set aside not been made, it is of no consequence in resolving the issue of costs having regard to the broader principle upon which I have made my decision.

1. The formal orders are:-

   1.As between the petitioner and the first respondent there be no order as to costs;

   2.As between the petitioner and the second respondent there be no order as to costs.