Richards v Paddy (No 2)

[2016] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

RICHARDS v PADDY & ORS (No 2)

[2016] SADC 21

Judgment of The Honourable Chief Justice Kourakis

9 March 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

ABORIGINALS - ABORIGINAL REPRESENTATIVE BODIES - GENERALLY

Costs for petition filed in Court of Disputed Returns, challenging an election under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA).

Reasons for judgment previously delivered dismissing the petition as falling outside the jurisdiction of the Court of Disputed Returns.

The petition alleged that a number of persons attended at the polling booth on polling day and were denied access to that booth by an electoral official appointed by the Electoral Commissioner on the grounds that they were not Anangu who were members of the Pipalyatjara/Kalka community.

The second and third respondents applied for costs of the petition. The petitioner submitted that the Court should order that each party bear its own costs as the proceedings were brought in the public interest.

Held per Kourakis CJ:

1.       The Court of Disputed Returns discretion to depart from the general rule, that costs follow the event, is not governed by the same considerations that apply in ordinary civil matters.

2.       There will be no order as to costs.

Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) sch 3; District Court Civil Rules 2006 (SA) r 263, referred to.
Richards v Paddy & Ors [2016] SADC 11, considered.

RICHARDS v PADDY & ORS (No 2)
[2016] SADC 21

Civil

1. KOURAKIS CJ:    This is an application for costs consequent on the dismissal of a petition filed in the Court of Disputed Returns (the CDR) constituted by Clause 20 of Schedule 3 of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Land Rights Act). On 5 February 2016 I dismissed the plaintiff’s petition on the ground that the CDR did not have jurisdiction to determine the petition because:[1]

   … the complaints it makes about the conduct of the election are necessarily premised on a disputed contention that the members of the excluded group were, at the relevant time, Anangu members of the Pipalyatjara/Kalka community, an enquiry which is excluded from the jurisdiction of the Court of Disputed Returns by Clause 20 of Schedule 3.

   [1]    Richards v Paddy & Ors [2016] SADC 11 at [7].

2. The second and third respondents, Milyika Paddy and Anangu Pitjantjatjara Yankunytjatjara (the Council) apply for costs of the petition. Clause 18(5) of Schedule 3 to the APY Lands Rights Act applies the procedures and powers of the District Court to the hearing of petitions by the CDR. That clause therefore picks up the powers of the District Court to order costs.

3. District Court Civil Rules 2000 (SA) rule 263(1) provides that as a general rule, costs follow the event. 

4. Even though the CDR’s power to order costs is sourced in the District Court Rules which are picked up by cl 18(5), it does not follow that the exercise of the CDR’s discretion to depart from the general rule is governed by the same considerations or guiding principles which inform the exercise of the discretion as to costs in ordinary civil matters. The subject matter of petitions brought before the CDR pursuant to Schedule 3 of the Act is fundamentally different in character from civil actions. The subject matter of those petitions is the supervision of the democratic process established by Schedule 3 for the purpose of granting a limited, but nonetheless very important, measure of self-governance to the Anangu Pitjantjatjara Yankunytjatjara community of the APY Lands. The community is a small and impoverished one. Its political processes are not supported by political party machines financed by substantial corporate and other donations.

5. Members of the APY community should not feel constrained in bringing petitions to raise genuine grievances about the conduct of an election by the risk of an adverse costs order.  Indeed, in this very matter on 15 September 2015 the solicitor for the first and second respondents, the successful candidate and the Council respectively, wrote to the solicitor for the plaintiffs reminding them of that very risk:

   We are instructed that our clients wish to put your client, Mr Robbie Richards, on notice that should your client’s petition fail in the Court, our clients, pending board approval in the case of APY, are likely to seek full recovery for their legal costs and disbursements from Mr Richards.

6. A substantial part of the costs in this matter were expended in the preparation of evidentiary material.  The question of jurisdiction arose on the face of the petition in the form in which it was first filed on 25 June 2015.  It was plain on its terms that the plaintiff’s contended that they were eligible voters who were wrongly turned away.  That claim of eligibility necessarily required the CDR, if it were to hear the petition, to ‘call in question the eligibility of a person … to vote in an election … on the basis whether or not they are an Anangu, or a member of a particular community group’.[2]  I held that the petition required precisely such a prohibited enquiry.  If the question of jurisdiction, and the objection, had been earlier identified and raised, those costs may have been avoided.

   [2]    Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) sch 3 cl 20(2).

7. The legal issue raised by the petition has some complexity.  The hearing and determination of the petition has served a useful public purpose in pronouncing on the terms of the limitation on the jurisdiction of the CDR and in bringing the complexity, and underlying policy tensions, of the provision to the attention of the public and the Parliament.

8. For these reasons there will be no order as to costs.