The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors (No 2)

The Australian Institute for Progress Ltd sought a declaration from the Supreme Court of Queensland that certain provisions of the Electoral Act 1992 (Qld) were inconsistent with the Australian Constitution and therefore invalid. The Electoral Commission of Queensland and the Attorney-General for Queensland were the respondents. The Australian Institute for Progress Ltd argued that the sought declarations were necessary to clarify the proper construction of the Electoral Act and that the litigation was in the public interest. The Court dismissed the application for declaratory relief, finding that the declarations sought did not comply with the principles for granting declaratory relief and lacked utility.

The legal issues the Court had to decide were whether the Electoral Commission of Queensland should pay the unsuccessful applicant's costs of the proceedings and whether there were special or exceptional circumstances warranting a departure from the general rule that costs follow the event. The applicant submitted that the litigation was public interest litigation and that there were special or exceptional circumstances warranting a departure from the general rule.

The Court concluded that the incidental public benefit achieved by rejecting most of the AIP’s arguments on issues of statutory interpretation was not, in its view, a sufficient reason to depart from the ordinary rule that costs follow the event. The Court found that the proceedings did not involve complex or novel issues of law or fact, and that the applicant had not demonstrated that the litigation was of significant public importance. The Court therefore held that the Electoral Commission of Queensland was not liable to pay the applicant's costs of the proceedings.

The only order as to costs was that the applicant pay the respondent's costs of and incidental to the proceedings to be assessed on the standard basis. The Attorney-General, who intervened, did not seek her costs and the Queensland Human Rights Commission also did not seek costs.