Sanders v Ecq (No 2)

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.