Robinson v Australian Electoral Commission

[1994] FCA 1119

JUDGMENT No, ..&LW7d / fPk

IN THE F E D E W COURT OF AUSTRALIq	1
DUEENSLAND DISTRICT REGISTRX	1 No. QG 192 of 1993
GENENU DIVISION	1

BETWEEN: JOHN RICHARD ROBINSOY

Applicant

AND: USTRALIAN ELECTORAL COWSSION

First Respondent

AND: STEPHEN BROWN

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	Spender J
PATE OF ORDEq:	30 August 1994

l

WERE MADE;:	Brisbane	i
THE COURT ORDERS THAT:

the applicant pay the respondents' costs of proceedings No. QG 192 of 1993, to be taxed if not agreed.

NIX&:  Settaement and entry of orders is dealt with in
Order 36 of the Federal Court Rule$.

submissions on t h e ques t ion of	c o s t s , which were	supplied t o
m e on 15 August.	I n those submissions,	re ference was made t o

S . 43 of t h e Fede a 1976. I t is

c o r r e c t , a s w a s submitted by Mr Robinson, t o note t h a t

although t h e d i s c r e t i o n of t h e c o u r t t o award c o s t s may be

regarded a s u n f e t t e r e d , it is never the less a jud ic ia l

d i s c r e t i o n t o be exerc i sed i n a p r inc ip led way: see Buuhes v.

W e t u s t r a 'a (1986) ATPR 48-134 a t

48-136-7 and A u s t r a l i a n C o c q v. Fores t rv

commission 88 ALR 166 .

Reliance is placed by Mr Robinson on t h e approach of

. .

Burchett J i n Grav v. H l n l s t e r f o r Immiarati'on. Local

m m 38 FCR 351, where Burchett J

exerc i sed a d i s c r e t i o n a s t o c o s t s i n favour of an

unsuccessful a p p l i c a n t , and t h e judgment of S t e i n J i n pshlack

v. Pichmon d River S h i r e C o u n c e v i e l c v !

( 1 9 9 4 ) 82 LGERA 236. I t was submitted by Mr Robinson

t h a t , havini-'regard t o t h e publ ic i n t e r e s t , t h e f a c t t h a t

t h e r e w a s a s e r i o u s i s s u e t o be tried and t h e f a c t t h a t the re

was no ques t ion of personal ga in t o t h e app l i can t i n bringing

h i s a p p l i c a t i o n , t h e circumstances a r e such t h a t t h e cos t s

order should be t h a t each par ty bear i t s own c o s t s .

On 19 August t h e respondents made wri t ten

submissions on t h e quest ion of c o s t s , i n which it was

submitted t h a t t h e y w e r e e n t i t l e d t o an o rde r f o r cos t s i n

accordance wi th t h e general r u l e t h a t c o s t s - fo l low t h e event.

For the respondents it was submitted that the rule is normally followed even in matters of public interest where the result of an election for a constitutional assembly is the subject of deliberation, and reference was made to Cole v. Lacev (1965) 112 CLR 45; Evans v. Crichton-Browne (1981) 147 CLR 169; Nile

v. Wood (1987) 167 CLR 133 and S ~ k e q v. Australian Electoral

Commissioq (1993) 115 ALR 641, in all of which cases an order for costs was made against the unsuccessful petitioner.

~t was further submitted on behalf of the respondents that there were no special circumstances in the present matter which warrant departure from the general rule.

Mr Robinson, on 17 August, had communicated with the Registrar by facsimile, in which he said, in part:

" In r e l a t i o n to m y a t t e n d a n c e on the 15th, the

manner i n which H i s Honour had a l r e a d y ordered

t h a t I p a y the r e s p o n d e n t s costs w i t h o u t

a l l o w i n g me t o announce m y appearance or to

a d d r e s s	h i m	on	the	i s s u e ,	i s	o f	c o n s i d e r a b l e
CO-n.cern.

I am o f the v i e w t h a t this a s p e c t o f the m a t t e r

w i l l not be d e a l t w i t h i m p a r t i a l l y . H i s Honour

h a v i n g	a l r e a d y	ev idenced	a	p r e d i s p o s i t i o n	t o
award	costs	a g a i n s t me,	and	I	would	r e q u e s t
t h a t	the	t r a n s c r i p t	o f	proceed ings	and	m y

s u b m i s s i o n a s t o costs be r e f e r r e d t o a n o t h e r

Judge for d e t e n n i n a t f on. "

On 22 August 1994, Mr Robinson made further submissions in response to the written submissions on behalf of the respondents.

I have considered all of the submissions concerning costs, including the request that the question of costs be referred to another judge for determination. I decline to accede to that request.

While it is true that there is no question of personal gain to Mr Robinson in bringing the application, from the whole of the material, in my opinion, this is a case where the ordinary order for costs should be made. I order that the applicant pay the respondentsf costs of proceedings No. QG 192 of 1993, to be taxed if not agreed. Whether the respondents pursue the order as to costs is a matter for them.

I cer t i fy that t h i s , and the preceding three ( 3 ) pages are a t rue copy o f the reasons f o r judgment h e r e i n o f t h e

Honourable Mr Just ice Spender.

Associate

Date: 30 August 1994