Sue v Hill

[2000] HCATrans 35

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Sydney  No S179 of 1998

B e t w e e n -

HENRY (NAI LEUNG) SUE

Petitioner

and

HEATHER HILL

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

Application for costs

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 FEBRUARY 2000, AT 10.16 AM

Copyright in the High Court of Australia

MR A.M. DAUBNEY:   May it please the Court, I appear for the applicant/first respondent.   (instructed by Watkins Stokes Templeton)

MR G.C. McCARTHY:   If the Court pleases, I appear for the second respondent and for the Commonwealth.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   I have a certificate from the Deputy Registrar to the effect that she has been informed by Phillips Fox, the solicitors for the petitioner, that the petitioner does not wish to be heard on the summons filed by the first respondent in this matter and will not be appearing at the hearing of the summons. 

You move, as I understand it, Mr Daubney, on a summons dated 8 November 1999?

MR DAUBNEY:   I do, your Honour.

HIS HONOUR:   And I have an affidavit of Russell Eric Templeton of 8 November 1999.  Do you read that?

MR DAUBNEY:   Yes, I do.

HIS HONOUR:   Is there any objection to that, Mr McCarthy?

MR McCARTHY:   No, your Honour.

HIS HONOUR:   I have read the affidavit.

MR DAUBNEY:   Thank you, your Honour.

HIS HONOUR:   Mr McCarthy, what is the attitude of your clients to the application?

MR McCARTHY:   Your Honour, if I could take you to exhibits RET2 and RET4 in the affidavit of Mr Templeton.  That correspondence continues to state the position of the Commonwealth in respect of the first respondent’s application for costs.

HIS HONOUR:   Which is that you do not oppose and do not consent?

MR McCARTHY:   Well, more particularly, your Honour, the Commonwealth opposes the proposition as put in the summons, namely that the costs be at large.  What was proposed in my letter dated 18 August 1999 was that the Commonwealth should pay the first respondent’s costs but only subsequent to 19 March 1999, which is the date that your Honour published reasons for decision for dismissing the first respondent’s motion that the petition be dismissed due to non‑compliance with section 355(a) and 355(aa) of the Act.  There are two grounds upon which we - - -

HIS HONOUR:   I would like to understand a little better the distinction that you are seeking to draw.  You do not oppose paying some costs - - -

MR McCARTHY:   Not at all, your Honour.  The position of the Commonwealth - and I think that is the proper party that should be ordered to pay the first respondent’s costs in this application – should be limited to the costs subsequent to the 19 March 1999.

HIS HONOUR:   And why is that?

MR McCARTHY:   There are two reasons, your Honour.  The first is that when you consider the litigation in this matter prior to that date, the first respondent already has an order in her favour which would, for all practical purposes, cover her costs up to that date.  You might recall that your Honour ordered the - - -

HIS HONOUR:   If, to make the order now sought, would merely, to an extent, repeat an order earlier made, what is the problem?  The fact that the order is made twice does not mean she is going to get double the amount of costs.

MR McCARTHY:   Well, in my submission, it would be a very much more practical resolution of the matter and certainly would avoid any doubt as to any events occurring prior to 19 March as to whether they should be attributed to the petition as a whole or whether they should be attributed to the first respondent’s motion that the petition be dismissed, because when one examines the litigation it is the submission of the Commonwealth that everything prior to that date related to the order that is already in place that the petitioner pay the first respondent’s costs.  The second grounds upon which we would submit - - -

HIS HONOUR:   I am afraid I will need you to clarify that.  Is the substance of your objection to an order now being made in respect of costs prior to 19 March 1999 that an order has already been made in respect of those costs in favour of the first respondent?

MR McCARTHY:   That is exactly right, your Honour.

HIS HONOUR:   Then what is the problem to the extent to which an order now made merely repeats an order previously made as a waste of breathe but what else?

MR McCARTHY:   Well, what I am anticipating from the first respondent, your Honour, is that some of the matters upon which costs might be claimed prior to that date would be said to be payable pursuant to an order at large.  If your Honour is against me on that point - - -

HIS HONOUR:   No, I just do not understand it, I am afraid.

MR McCARTHY:   Well, in my submission, if one considers the chronology of the litigation, it becomes apparent that the costs of the first respondent up to 19 March are already to be paid by the petitioner, it therefore would appear to duplicate that position if there were an order at large that the Commonwealth should be paying the first respondent’s costs.

HIS HONOUR:   Will you be content if an order were made as asked in the summons subject to the qualification that it did not cover any costs of the first respondent which have already been ordered to be paid by any party other than the Commonwealth?

MR McCARTHY:   Certainly, your Honour.

HIS HONOUR:   Now, what do you say about that, Mr Daubney

MR DAUBNEY:   Yes, your Honour, I would be content with that qualification.

HIS HONOUR:   So that if I took that course, what I would do is make the order sought in the summons but adding to it the words, “save to the extent that such costs have already been ordered to be paid by any party other than the Commonwealth”.  Would that solve your problem, Mr McCarthy?

MR McCARTHY:   It would save for one small matter, your Honour.  The summons continues to seek the costs of this application today.  It is my submission, your Honour, that we are only here today because of the, shall we say, omission of the first respondent to seek her costs when the opportunity was there before you before.  In my submission, her costs of today should not be borne by the Commonwealth and so that part of the order sought by the petitioner should be struck out or whatever.

The second aspect of it is that plainly the Commonwealth is here due to that omission on the part of the first respondent.  I do not understand there to be power to order the first respondent to pay the Commonwealth’s costs of today, albeit small they probably would be, but, nevertheless, in my submission, they should be accommodated, perhaps, by for example that the costs of the Commonwealth of today be offset against the costs which the Commonwealth is ordered to pay in respect of the first matter.

HIS HONOUR:   Now, what do you say about that, Mr Daubney, which I understand is limited only to the costs of today’s application?

MR DAUBNEY:   It is.Your Honour, in my respectful submission, the costs would have been incurred in any event for this reason:  your Honour will recall that you handed down judgment on 23 June.  On 24 June here in Brisbane you sat again in a directions hearing.  At that directions hearing it became apparent that Mrs Hill’s involvement in the matter was effectively finished and your Honour excused her from further attendance in the matter.  At that time your Honour was proposing to, and did in fact, adjourn the matter to the following week in Sydney. 

On 24 June, regrettably, the only order that was made with respect to costs was that the costs be reserved to Sydney – the hearing in Sydney.  When the matter came on in Sydney the following week, Mrs Hill, having been excused, was not present.  My submission, in short, is - - -

HIS HONOUR:   But she was entitled to be present if she had wanted to be.

MR DAUBNEY:   She was entitled to be present if she wanted to be.  Had she appeared on that day solely for the purpose of asking for costs, she would have run up the costs to that day, for that appearance on that day.  She did not run up the costs of the appearance on that day but she has run up the costs of the appearance for today.  So, in my submission, there is really no difference in the outcome.

HIS HONOUR:   Anything else you want to say?

MR DAUBNEY:   No.  Thank you, your Honour.

HIS HONOUR:   In this matter I will make an order as asked in the summons dated 8 November 1999 but deleting from the order as sought the words “and of this Application” and inserting at the conclusion of the order the words “save to the extent to which such costs have previously been ordered to be paid by some party other than the Commonwealth.”  I make no order as to the costs of today’s application.

MR DAUBNEY:   May I ask your Honour, please, to certify for counsel?

HIS HONOUR:   I am happy to do that.  Yes, I will certify for counsel.

MR DAUBNEY:   Thank you, your Honour.

HIS HONOUR:   Is there anything else I need to attend to, Mr Daubney?

MR DAUBNEY:   No.  Thank you very much, your Honour.

HIS HONOUR:   Mr McCarthy?

MR McCARTHY:   No, your Honour.

HIS HONOUR:   Very well, I will adjourn.

AT 10.26 AM THE MATTER WAS CONCLUDED