Sanders v Ecq (No 2) - [2024] QSC 215

SUPREME COURT OF QUEENSLAND

CITATION:

Sanders v ECQ (No 2) [2024] QSC 215

PARTIES:

SHORNE CHRISTOPHER SANDERS

(applicant)
v

ELECTORAL COMMISSION QUEENSLAND

(respondent)

FILE NO/S:

BS4350/24

DIVISION:

Trial

PROCEEDING:

Costs of application

ORIGINATING COURT:
Supreme Court of Queensland sitting as Court of Disputed Returns

DELIVERED ON:

9 September 2024

DELIVERED AT:

Bundaberg

HEARING DATE:

25 July 2024

JUDGE:

Henry J

ORDER:

No order as to costs.

CATCHWORDS:

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – COSTS – where the applicant was unsuccessful in his application to set aside the electoral Bundaberg division 8 election – where the respondent submits costs follow the event – whether there are reasons to depart from the general rule that costs follow the event – where the application was of public importance and in the public’s benefit – where the respondent failed to adequately perform its function by having sufficient staff at the election subject to the unsuccessful application – whether there are reasons to depart from the general rule that costs follow the event

Garbett v Liu (No 2) (2020) 376 ALR 504, applied

Innes v Electoral commission of Qld and Anor (No 3) [2020] QSC 320, considered

Nile v Wood (No 2) (1998) 167 CLR 133, applied

Oshlack v Richmond River Council (1998) 193 CLR 72, cited

Sanders v Electoral Commission Queensland [2024] QSC 147, cited

COUNSEL:
D William for the applicant

M Hickey for the respondent

SOLICITORS:
Finemore Walters & Story for applicant
Crown Law for respondent

Mr Shorne Sanders lost the 2024 election for division 8 of the Bundaberg Regional Council by just one vote.In Sanders v Electoral Commission Queensland,[1] I dismissed his application to set aside the result and order a new election.
[1][2024] QSC 147.
It remains to determine the question of costs. The Commission submits that costs should follow the event. Mr Sanders submits each party should bear their own costs, that is, there should be no order as to costs.
The Court has the discretion to award costs
Section 148(1) Local Government Electoral Act 2011 (Qld) provides this court “may” order an unsuccessful party to an application to pay the reasonable costs of other parties to the application.
To remove doubt, the only active party to the application, other than Mr Sanders, was the Commission. Whilst named as a party, the winning candidate, Mr Cooper, took no active role in the matter.
Costs do not have to follow the event
Section 148(1) does not contemplate the possibility of ordering that the successful party pay the losing party’s costs. The section does however leave to the discretion of the court whether, and if so to what extent, the losing party ought to be ordered to pay the successful party’s costs.
The effect of ordering that the losing party pay the other’s costs, as permitted by s 148(1), is that costs would “follow…

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.

Continue reading Sanders v Ecq (No 2)

Details

AGLC: Sanders v Ecq (No 2) [2024] QSC 215
Case: [2024] QSC 215
Decision Date: 9 September 2024

CaseChat Overview and Summary

Sanders was the unsuccessful applicant in a case where he sought to set aside the electoral Bundaberg Division 8 election. Ecq, the respondent, was the relevant electoral commission. The applicant argued that there were reasons to depart from the general rule that costs follow the event. The court was required to determine whether there were circumstances that justified an order for the respondent to pay the applicant's costs, despite the applicant's unsuccessful application. The court needed to consider the public importance and benefit of the proceeding, the reasons for the applicant's unsuccessful application, and whether the respondent had failed to adequately perform its function.

The court concluded that the proceeding was of significant public importance and benefit, as it involved a dispute about an election, which is a fundamental aspect of a democratic society. The court also noted that the main driver for the applicant pursuing the proceeding was a serious shortcoming in the respondent's function, which involved insufficient staffing at the election. The court found that the respondent had indeed failed to adequately perform its function in this regard. However, the court also considered that the applicant had abandoned some of the grounds for his application, and that the complaint about ballot legibility, although not without foundation, was a minor shortcoming in the respondent's function. The court concluded that these factors, taken together with the public importance and benefit of the proceeding, justified not making an order for the respondent to pay the applicant's costs.

In light of the above, the court made no order as to costs. The court considered that while some costs would have been incurred by the respondent in preparing to address abandoned grounds and in defending the persisting complaint about ballot legibility, these costs would likely have constituted a minor proportion of the overall costs. The court also considered that the public importance and benefit of the proceeding, and the fact that the main causal driver for the applicant pursuing the proceeding to hearing was a serious shortcoming in the respondent's function, told determinatively against making an order for the respondent to pay the applicant's costs.

The final order of the court was: No order as to costs.

Orders

Orders of the court

No order as to costs.

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

The beneficial public importance of the proceeding fortifies my view that the proper exercise of my discretion is to make no order as to costs.Conclusion and Order I have concluded there should be no order as to costs. In so concluding, I am conscious that some costs would have been incurred by the Commission in connection with preparing to address grounds which were abandoned and in defending the persisting complaint about ballot legibility. While not specifically argued for, that consideration might potentially justify taking a segmented costs approach by ordering Mr Sanders to pay the proportion of the Commission’s costs attributable to defending abandoned grounds and defending the complaint about ballot legibility. However, the complaint about ballot legibility was not without foundation because, in another, albeit much more minor shortcoming in performance by the Commission, the ballot papers were printed on the wrong side, making them harder to read. Further, the cost of defending the abandoned grounds and the complaint about ballot legibility would likely have constituted a minor proportion of the Commission’s overall costs. Those features, considered in combination with the public importance and benefit of the proceeding and the fact the main causal driver of the pursuit of the proceeding to hearing was a serious shortcoming in the proper performance of the Commission’s function, tell determinatively against taking a segmented costs approach in the exercise of my discretion. My order is:No order as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sanders v ECQ (No 2) [2024] QSC 215
PARTIES:	SHORNE CHRISTOPHER SANDERS (applicant) v ELECTORAL COMMISSION QUEENSLAND (respondent)
FILE NO/S:	BS4350/24
DIVISION:	Trial
PROCEEDING:	Costs of application
ORIGINATING COURT:	Supreme Court of Queensland sitting as Court of Disputed Returns
DELIVERED ON:	9 September 2024
DELIVERED AT:	Bundaberg
HEARING DATE:	25 July 2024
JUDGE:	Henry J
ORDER:	No order as to costs.
CATCHWORDS:	CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – COSTS – where the applicant was unsuccessful in his application to set aside the electoral Bundaberg division 8 election – where the respondent submits costs follow the event – whether there are reasons to depart from the general rule that costs follow the event – where the application was of public importance and in the public’s benefit – where the respondent failed to adequately perform its function by having sufficient staff at the election subject to the unsuccessful application – whether there are reasons to depart from the general rule that costs follow the event Garbett v Liu (No 2) (2020) 376 ALR 504, applied Innes v Electoral commission of Qld and Anor (No 3) [2020] QSC 320, considered Nile v Wood (No 2) (1998) 167 CLR 133, applied Oshlack v Richmond River Council (1998) 193 CLR 72, cited Sanders v Electoral Commission Queensland [2024] QSC 147, cited
COUNSEL:	D William for the applicant M Hickey for the respondent
SOLICITORS:	Finemore Walters & Story for applicant Crown Law for respondent