Webster v Deahm

[1994] HCATrans 265

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IN THE HIGH COURT OF AUSTRALIA	•
SITTING AS THE COURT OF DISPUTED RETURNS
Office of the Registry

Sydney No S71 of 1993

B e t w e e n -

ALASDAIR PAINE WEBSTER

Petitioner

and

MAGGIE DEAHM (also known as

MARGARET JOAN DEAHM)

First Respondent

and

BRIAN COX, THE ELECTORAL

COMMISSIONER

Second Respondent

and

THE COMMONWEALTH OF AUSTRALIA

Third Respondent

Webster 198 28/3/94

Argument as to Appropriate Cost

Rules

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 MARCH 1994, AT 11.46 AM

(Continued from 24/12/93)

Copyright in the High Court of Australia

MR N.R. COWDERY, QC:  May it please the Court, I appear for

the petitioner. (instructed by Brien Cornwell)

MR J.A. McCARTHY, QC:  Your Honour, I appear for the first

respondent. (instructed by McClellands)

MR J.R. SACKAR, QC: If Your Honour pleases, I appear for

the second respondent. (instructed by the

Australian Government Solicitor)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

Your Honour, I appear for the Commonwealth. I do

not know whether I seek leave to argue we should

not be joined. (instructed by the Australian

Government Solicitor)

HER HONOUR:	No, if they seek an order against you, I think the one thing that is clear is that you appear as
of right.

MR GRIFFITH:  I would have hoped so, Your Honour. I accept

that, Your Honour.

MR McCARTHY:  Your Honour, my junior reminds me: can I seek

leave again to appear? Mr Hatzistergos had

appeared on a number of other occasions.

HER HONOUR:  Yes. Do you have an application before the

Court?

MR McCARTHY:  I do. I brought one along.

HER HONOUR:  You have not filed one, have you?

MR McCARTHY:  No, I have not. I have brought one along,

Your Honour. I have read my friend's submission.

I do not think there is going to be too much argument about it. If there was not a section

360 - - -

HER HONOUR:  No, but has the Electoral Commissioner had

adequate notice?

MR McCARTHY:	I do not think there is any problem in relation to that, Your Honour.
MR GRIFFITH:	I do not know what my friend's application is,

Your Honour.

HER HONOUR:  No, I do not either. I thought all of this was

a little strange without any application from him.

Should we accept this application first?

MR COWDERY: Well, yes. Your Honour, the proceedings need

to be put into order obviously. Whatever

procedural steps need to be taken should be taken.

Webster 199 28/3/94

I certainly had approached it on the basis that the

question of costs would be open generally.

HER HONOUR:  Yes. The first thing I should do is amend the

title of the proceedings so that the Commonwealth

is now, in fact, a party to the proceedings, should

I not, for this issue?

MR GRIFFITH:  I do not know, Your Honour. What we would

like to say, is that Your Honour's order on this

application should be that it is no reason for the

Commonwealth to be a party in any way and it should be sent away.

HER HONOUR:  There is an application made against you, is

there not?

MR GRIFFITH: Yes, Your Honour. We are not a party to the

petition, we are just named on an application as a

third respondent.	We say we are not really, this
is not an originating process against us.	What

would make us a respondent would be Your Honour's

order that we be joined to the petition.

HER HONOUR:  Yes. Sensibly you should be joined to the

proceedings involved in the notice of motion by the

second respondent.

MR GRIFFITH:  We have been given notice of it, Your Honour,

so we appear. We do not regard ourselves as a

respondent for that reason. If Your Honour orders

us to be joined then we will become a respondent to

the petitioner.

HER HONOUR:  No, I will order you to be joined to the notice

of motion.

MR GRIFFITH: If Your Honour pleases.

HER HONOUR: That is the first matter out of the way. Yes,

Mr McCarthy?

MR McCARTHY:  Thank you, Your Honour. I had thought that

the way the motion had been framed by the

petitioner would have been adequate to raise all

the issues in relation to costs in any event.

Obviously there are two bases on which the costs

can be considered by the Court.	One is outside of
section 360(4) and then in relation to 360(4).	The

first respondent in terms of her submissions would

be making submissions that this is an appropriate

matter to be dealt with under section 360(4), at

least in some form.

HER HONOUR:  You have not filed - - -

Webster 200 28/3/94

MR McCARTHY:	I have informed the Solicitor-General that that is certainly so as I have informed the
petitioner that that would be so.  I have a notice
of motion.  I do not think that that is other than
a formality in relation to a case. Obviously, if this matter is not going to be entertained under
section 360(4), and my friend is aware of this
also, we would seek an order for costs against the
petitioner. All that has been formalized in
writing.

HER HONOUR:  I am not aware of that. You see, the Court

file does not show it.

MR McCARTHY:  I am sure that is so, Your Honour, and if that

is inconvenient to any of the parties, then

obviously it will have to be dealt with in some

other way or in some other shape. But I would not

have thought that it would have been.

MR GRIFFITH:  Your Honour, perhaps I can indicate that I did

not know what my learned friend was doing. I asked

him on Friday and he did not tell me clearly then.

But, in as much as my learned friend is indicating

he desires to make an application for his costs

against the petitioner, and he also would desire

further or on the alternative for an order either

that the petitioner be indemnified against the

Commonwealth, or for a direct order as in Hudson v

Lee, we have no objection to that being done if my

learned friend indicates that he will file a

suitable motion saying that.

HER HONOUR:	You are in a position to deal with it today?
MR GRIFFITH:	We do not want to come back again,

Your Honour.

HER HONOUR:  But you are in a position?

MR GRIFFITH:  Yes, Your Honour.

HER HONOUR:  Yes, thank you. Does that accord with your

understanding, Mr Cowdery, and you are in a

position to deal with it?

MR COWDERY:	Yes, Your Honour.
HER HONOUR:	And Mr Sackar?
MR SACKAR:	Yes.
HER HONOUR:	Very well, you will file something by not later

than Friday of this week. Should you go first,

Mr Cowdery?

Webster 201 28/3/94

MR COWDERY:  Your Honour, there is some further affidavit

material to be considered. The petitioner has filed and served, only on Friday, I accept, an

affidavit by the petitioner,

Alasdair Paine Webster, and an affidavit by

Sue Oldfield, both affirmed on that day.	Does
Your Honour have those two affidavits?

HER HONOUR:  Yes, I do. It might be convenient if you read

them.

MR COWDERY:  Yes, if Your Honour pleases. The affidavit of

the petitioner, omitting formal parts, although I suppose the formal part is relevant to the extent

that he gives as his occupation ''unemployed".

MR SACKAR:  Your Honour, could I just interrupt and indicate

from our point of view that we object, if there is

sought to be tendered against us, to both of these

affidavits on the grounds of relevance -

Your Honour will have to read them, obviously, then

come to some view about it, but - - -

HER HONOUR:  I think paragraph 1 is tendered directly

against you, is it not?

MR SACKAR:  Yes, it would seem that that is the case and

just to cover the field, we object to both of these

on the grounds of relevance.

HER HONOUR:	You object to all paragraphs?
MR SACKAR:	Yes, Your Honour. The first one of the

petitioners, Mr Webster, sets out essentially two

matters, but as I say Your Honour will clearly have

to read them to determine whether Your Honour will

receive the material as admissible on the issue of

costs.

HER HONOUR:  What do you say, Mr Cowdery? You had better

tell me how they relate.

MR COWDERY: Paragraphs 1 and 2 go together, obviously.

HER HONOUR:  Yes. That relates to an issue that is not in

the petition?

MR COWDERY:  It relates to an issue that is no longer in the

petition following the orders that were made in

September, but it relates to an issue that was originally in the petition and it is pressed on the relevance of the petitioner's actions in bringing the petition in the first place, the reasonableness of that action and the bona £ides of the petitioner

in instituting the proceedings. That is the basis

upon which it is put.

Webster	202	28/3/94
HER HONOUR:	Yes.	The others are?
MR COWDERY:	The other	three are separate and separate from

each other.	I am sorry, paragraphs 3 and 4 are
related but	raise separate matters of fact.
Paragraph 5	relates -

HER HONOUR:  Do they relate to issues that were left in the

petition?

MR COWDERY:  Not specifically to issues that were to be

litigated in the petitions, but they relate to

matters of evidence that would have been required

to be referred to in the proof of matters in the

petition.

HER HONOUR:	What issue does that go to?
MR COWDERY:	On the question of costs.
HER HONOUR:	I take it that is the only matter now.
MR COWDERY:	Yes, really only the raising, or the

ventilation of matters of public interest and

concern is the basis on which it is put, the

discovery incidentally of irregularities that would

not otherwise, perhaps, have been discovered had

the petition not been filed in the first place,

the only basis on which they can be put. So far as

paragraph 5 is concerned, again it is a matter that

goes to the evidence relied upon by the second

respondent in rebutting the allegations of both

multiple voting and personation, in that it was
necessary as appears from the affidavits put on by
the second respondent to investigate apparent non-
voters as well as apparent multiple voters and to

co-ordinate investigations into those two areas in

order to come to a final conclusion.

The petitioner says that notwithstanding the

evidence that the inquiries into the apparent

non-voters were correlated with the inquiries into

the multiple voters, there were some necessary

inquiries into apparent non-voters that were not

undertaken.

HER HONOUR:  And does that again have the same relevance as

points 3 and 4 - "Irregularities were discovered

that would not otherwise have been discovered but

for the bringing of the petition"?

MR COWDERY:	Yes.
HER HONOUR:	Yes.  I will disallow paragraphs 3, 4 and 5.

Paragraphs 1 and 2 do seem to have some relevance

on the question of costs.	I have disallowed
paragraphs 3, 4 and 5.

Webster 203 28/3/94

MR SACKAR:  If Your Honour pleases. Your Honour is

admitting 1 and 2?

HER HONOUR:  Yes, that is the affidavit of

Alasdair Paine Webster.	What about the other
affidavit?

MR COWDERY:  The affidavit of Sue Oldfield, affirmed on the

same day, 25 March 1994. That, if Your Honour

pleases, explains the nature of the investigations

undertaken by the petitioner in support of the

allegation initially made in the petition and

pursued in the petition of the non-existent voters

or personation claims. It is submitted it is
relevant to the bona fides of the petitioner and
the reasonableness of the actions undertaken by him
in relation to that claim, and the pursuit of that

claim throughout the course of last year.

HER HONOUR:  Yes.

MR SACKAR:  Your Honour, that is objected to as well. May I

say without putting any detailed submissions at

this stage, that this is the first time we have

ever seen any material from Ms Oldfield, a medical

practitioner. We do not know whether she is

skilled in research of this kind or not. She was

never put forward as a deponent to any affidavit

that the petitioner proposed to file as to the

survey material, although there was extensive

material filed. She does not explain her

methodology; she annexes no documentation

whatsoever, and the conclusion that she puts forward in paragraph 6 can more correctly be

described, with respect, as a non-conclusion and in

any event we would submit, with respect, is quite

irrelevant because it does not go anywhere near

suggesting that the result might have been effected

on the basis of this so-called research. So we

submit that it is irrelevant in its entirety.

HER HONOUR:  Yes, I think they are matters going to weight

rather than relevance, Mr Sackar.	I will admit
that affidavit.

MR COWDERY:  Your Honour, the primary affidavit on which we

move, and I omitted to mention it, is the affidavit

of Brien Cornwell affirmed on 25 February 1994. It

really gives some matters of history.

HER HONOUR:	Yes, thank you.
MR COWDERY:	Your Honour, the other affidavits to which my

learned friend, Mr Sackar, just referred and the

ones that are filed are a number of affidavits by

persons who carried out or participated in the

survey described by Ms Oldfield. There is a large

Webster 204 28/3/94

number of those affidavits in similar form and they

are set out in submissions that we have prepared,

Your Honour. Does Your Honour have the submissions

on behalf of the petitioner?

HER HONOUR: 

Yes.

MR COWDERY: 

Yes, that is the document. At paragraph 38 of

those submissions those other survey affidavits are
described by deponent and date of swearing.

Your Honour, might I just correct a few errors

that have occurred in those submissions. They are references to paragraph numbers, by and large. In

paragraph 2 the reference should be to
paragraph 38, not paragraph 34; in paragraph 46 on

page 7, in the second line, the reference to 37

should be 41; at the bottom of the page, the

second-last line, the reference to 31 should be

33, and one further error: on page 11,

paragraph 64, the affidavit of the petitioner was,

in fact, affirmed on that date, not sworn. It is

not an important matter but a matter of detail.

Your Honour, we rely on the submissions

contained in that document. The first eight pages

of the submissions are matters of history, by and

large, but with some commentary upon the events.

It is not a bare narrative. There is some

editorial material, if I can refer to it that way,

describing, in some instances, the effect of

various events and why certain things were done.

The submissions begin at page 9 with a

reference to the law on the subject and that, for

my present purposes, might be a convenient starting

point. Our submission is, Your Honour, that under

section 360 of the Act the Court has the power

under subsection (l)(ix) "to award costs". That

power, we submit, is the same power as a court in

ordinary civil proceedings has, and that is the

power to award costs to be paid on different bases

as thought to be appropriate.

In subsection (2) the Act provides that that

power may be exercised:

on such grounds as the Court in its discretion

thinks just and sufficient.

So, the question of costs, as with the other

powers, is to be determined, in our submission,

upon grounds which the Court thinks just and which

are made out on a sufficient basis. So, really, in

our submission, the test is the justice of the case

which, of course, incorporates the idea of

Webster 205 28/3/94

fairness, and fairness to all parties in the

circumstances.

Subsection (4) enables the Court to make that

award against the Commonwealth "where the Court

considers it appropriate to do so." So, the only

test laid down by the legislation for the ordering

of costs against the Commonwealth is a test of

appropriateness which is a very wide test, in our

submission.

In this case, as I have indicated earlier, in

our submission, the question of the costs of all

parties is at large and, in our submission,

Your Honour may make particular orders, having the

effect of directing the burden of costs in

different directions perhaps in relation to
different issues. That arises particularly in this

case where the petition as originally filed was permitted, after the judgment of Your Honour in

September, to proceed only upon two out of the some

22 or so grounds that it originally contained.

We rely upon Your Honour's judgment in Hudson

v Lee (No 2) to which reference has already been

made this morning. Your Honour, on page 9 the

passage from the judgment set out is one on which

we rely and we submit with respect that the

appropriate test is the wider view that Your Honour

preferred in Hudson v Lee (No 2). Essentially,

that test is based upon considerations of fairness

and justice; fairness being incorporated into the

concept of justice expressed specifically in the

Act.

Further, we submit that because of the matters

in paragraph 60, that is, because of the matters of

public interest and, we submit, public benefit that

has emerged in the course of the conduct of this

petition, it is appropriate, drawing on

section 360(4), that the Commonwealth bear at least

part of the costs and, particularly, the costs

associated with the raising of those issues.

HER HONOUR:  Do you wish to particularize them? Some have

already, I think, fallen away, have they not?

MR COWDERY:  That may be so, Your Honour. The matters that

are particularized, I think, are the matters set

out from page 11 to the top of page 12 of the

submissions. Paragraph 64 identifies matters that

have, indeed, fallen away. So, I cannot rely upon

that material any further. But paragraphs 65

through to 68 do refer to matters that remain for

consideration. Paragraph 65 refers to the issue of
multiple voting; paragraph 66 refers to the issue

of the apparent non-existent voters; paragraph 67

Webster 206 28/3/94

refers to the lack of incentive to investigate the

matters unless and until they are brought forward in the form of a petition and paragraph 68 refers to the conversation between the petitioner and

Mr Scutts.

Now, perhaps, Your Honour, if I could deal with those matters in some greater detail. Before

I do that might I mention the other matters that

appear at pages 10 and 11 relating to the

petitioner's bona fides, in paragraph 62, and the

reasonableness of his conduct in the prosecution of

the petition, referred to in paragraph 63.

The reference in paragraph 63 in the square

brackets is to evidence given by the Electoral

Commissioner before the Joint Standing Committee on

15 November 1993 in an inquiry relating to the

conduct of this election. Your Honour, I have

copies of that transcript available. I hand up a

copy of pages 646 and 647 of the Hansard. It

begins about half-way down page 646 where Mr Cox

said:

The sort of error that we know occurs

where a particular voter is not marked off but

the voter above or below his or her name

is marked off. That results in the situation

where you have a non-voter for the person in

the middle and a dual vote for either the

person below or the person above. That is the

common polling official error. It may well be

that there have been other polling official

errors in at least some of these 5000 cases

which is not explained by that simple

mechanism.	I do not say that that has
occurred -

and the evidence was, Your Honour, there was

something just in excess of 5000 cases of apparent

multiple voting nationwide in the election. Mr Cox

went on to say that:

There is no real way we can get to the bottom

of that. As we have previously said, we

looked at the possibility of these unexplained

multiple marks affecting the result of the

election. In no seat was the situation big

enough to have affected the result had they

all voted one way.

Now, in the case of Macquarie, Your Honour,

that was not the case because initially, well after
the poll was declared there were thought to be some

380 cases of apparent multiple voting.	I refer to
that at paragraph 9 of the submissions.	On

19 April 1993 the divisional returning officer

Webster 207 28/3/94

received from the scanning centre a report by list
for the Division of Macquarie. It listed 380

instances of apparent multiple markings of names,

that is, of 190 electors. That material,

Your Honour, comes from one of the affidavits,

Ms Adelberg, I think it is, filed on behalf of the

second respondent, and the margin in this case was

164 votes, as Your Honour will recall.

Paragraph 10 - on 19 April 1993, the

divisional returning officer received instructions

for the marking of scanning errors on lists. There

was then further manual inspection and in

accordance with those instructions, 41 of the 190

names were marked as scanning errors, leaving 149

instances of apparent multiple voting. That

information was passed on. The writ was returned

on 27 April, and I think from the chronology of

events, although no date is put on it, the apparent

multiple voting figure came down from 190 to 149

before the writ was returned. So I was in error

when I said that that was afterwards, because on

27 April, paragraph 12 of the submissions, the

scanning centre sent a multi-voter report by voter

listing 149 entries. When Mr Cox said that in no

seat was the situation big enough to have affected

the result had they all voted one way in relation

to the multiple votes only, that was correct in

this Division also.

He went on to say on page 647 of the committee

transcript at about point 3:

One of the figures that worried me when I

first came to the Electoral Commission was a

very high figure of something called apparent multiple voting. In fact, it is not apparent
multiple voting at all; it is multiple

marking. We have established that in most

cases the multiple mark is not a multiple

vote.	We have been trying very hard to get
rid of that terminology because it is

misleading and alarming.

Nevertheless, and the point of quoting that

evidence, Your Honour, is this: that was the

representation that was made in those terms,

apparent multiple voting, to the petitioner at the

time when he was contemplating his right to bring a

petition. And it was in reliance upon that

terminology, that description, and the number of
apparent multiple votes communicated to him that he

included that part of his claim in the petition.

It was not until very much later in the year and

not until after the petitioner's legal

representatives - not the petitioner - were

permitted to examine the results of the second

Webster 208 28/3/94

respondent's investigations into multiple voting,

that he was in a position to withdraw from the

claim initially made in reliance upon the second

respondent's figures to a figure of some 25

possible apparent multiple votes, one definite and

24 possible.

Your Honour, these matters are put by way of

explanation of the reasonableness of the approach
of the petitioner, his reliance upon information

given to him by the second respondent. It

highlights the fact that only the second respondent

was in possession of the facts that would enable an

allegation of this kind to be made, and the

submission is made that the second respondent

released that figure even though it knew that there

were some difficulties, (a) about calling it

apparent multiple voting, and (b) about putting a

figure on it, because history had shown that

apparent multiple votes were in many instances no

more than multiple marks. Notwithstanding that

knowledge, the second respondent represented to the petitioner a figure under the description "apparent multiple votes" which the petitioner, in our

submission, was perfectly well entitled to rely

upon, not having access to the records or the facts

that would otherwise enable him to substantiate

that claim. As time went by, and as investigations

were carried out, and as information became

available not until the end of last year, the

petitioner was not in a position to modify his

approach to that claim until, as it turned out,

late January 1994.

MR SACKAR:	Your Honour, I wonder if, at the risk of being regarded as discourteous, I may interrupt to ask
this question of my learned friend through
Your Honour:  I have heard him make a number of
allegations about representations. For our part, we are finding it extraordinarily difficult to work
opposed to evidence which is, in fact, filed in
out what are representations from the bar table as
these proceedings and which proves the allegations.
If there some suggestion that the Electoral
Commissioner has misrepresented the position, it
seems we get perilously close to an assertion of
deliberately misrepresenting the position, and that
can only be entertained on a costs issue or on any
issue by way of affidavit evidence to that effect, not by way of assertion from the bar table.

It is a matter of some significance; it is a

grave allegation really and, as I read the

materials which my learned friend put forward as

evidence as opposed to assertion from the bar

table, there is nothing to support a case of

misrepresentation, and we are, indeed, troubled to

Webster 209 28/3/94

hear such an allegation made and we would like to

get to the bottom of it. It would not be the first

time that the Electoral Commission had to get to

the bottom of Mr Webster's case.

MR COWDERY:	Your Honour, it is certainly not being put forward that a deliberate misrepresentation was
made, and I did not make that submission. What we
do say is that the petition was filed on
7 June 1993.  What we do say is that prior to that
date, some time during May, the petitioner was
informed by an officer or officers of the second
respondent that there were 149 entries on the
official Apparent Multiple Voting and Personation
Report.  Your Honour, it is in paragraph 27 of the
submissions.  He had been informed before the date
of the petition that there were apparent multiple votes, a figure of 100 had been given to him, and I accept that this is not the subject of formal
evidence at present.  The figure of 100 had been
given to him by the senior regional officer of the
second respondent, and the figure of 370, as he
understood it to be, had been given to him by Ms Adelberg, as contained in the submissions. But
I accept that those are not matters the subject of
formal evidence, Your Honour, but they can be.
HER HONOUR:	Is that necessary? I mean, there has always been an issue about apparent multiple voting, has
there not, Mr Sackar, in these proceedings with
that order?
MR SACK.AR:	Your Honour, there has been an issue but the

real question is one of the ultimate issues that

Your Honour is asked to consider is the

reasonableness or otherwise of the petitioner

because an aspect of the costing is obviously hotly

disputed, then there may well be issues of fact for

Your Honour to determine. Was the impression, as

it were, wrong and misleading, as my learned friend

would have it, because of what he says was what

Mr Cox and Mr Nugent always knew was the case

perhaps - if that impression was wrong and

misleading and given to the petitioner by

Ms Adelberg and then set the petitioner off, as it were, on a wild goose chase, then it will be important to determine, I regret to say, who is going to be believed, because you will not get to

the issue of reasonableness unless the issue can be

avoided in some other way. But Your Honour may not

get to the answer of who was acting reasonably or

unreasonably unless an issue of fact is determined. Did Ms Adelberg, in fact, give the wrong impression

or did she not?

I do not want to say any more about it because

if it is to be the subject of evidence, then the

Webster 210 28/3/94

less said about it the better until the real

evidence is before this Court, rather than, if I

may say without being disrespectful to my learned

friend, combination of speculation, some evidence

and assertion from the bar table. It may well be

that if these issues are to be fully ventilated

because they wish to say that they acted reasonably

at all times, and it was only when the second

respondent - the way the mood of the application is

going, is that the second respondent was in

possession at all relevant times of the
information; and at one point in time, innocently

perhaps, misled the petitioner into believing that

numbers were of such an order and that they were

caused by particular matters.

HER HONOUR:  Can I ask this: would I be right to work on

the assumption that an issue raised in the petition

and an issue between the petitioner and the first and second respondents has at all stages been one

relating to what has been referred to throughout

the entire proceedings as apparent multiple voting

of the order of that set out in paragraph 27?

MR SACK.AR:  That has been the assertion by the other side,

yes, by the petitioner. That is in his petition.

And that has been from the outset.

HER HONOUR: It is not disputed?

MR SACK.AR:  It is not disputed that that is what, on the

face of it, the petitioner was asserting.

HER HONOUR:  And it is not disputed that figures of that

order were shown up by the second respondent's

inquiries.

MR SACK.AR:  I am not entirely sure that that is correct

bearing in mind the multiple voting report of

September 1993 which comes up with a figure of 25.

HER HONOUR: That was after the report?
MR SACK.AR:	Yes.
HER HONOUR:	If we look at it in terms of markings - - -
MR SACK.AR:	What I really think, Your Honour, is that if the

petitioner says, "Well, all right, we had most of

the petition struck out, but we persisted with two
matters and we did so reasonably to a particular

point in time until the second respondent underwent

their various investigations.", what I am really

putting to Your Honour is that that issue of

reasonableness or lack of it, and therefore its

relevance to the issue of costs, may not be capable

Webster 211 28/3/94

of being determined by a short road.	One hopes it
could be.

HER HONOUR:  I understand your submission. Mr Cowdery, it

is a matter for you as to what you do.

MR COWDERY:  Your Honour, it is not suggested that the

second respondent was in possession at all times of

information that showed that there was no substance
or insufficient substance in the petitioner's

,allegations. That is not being suggested. Indeed,

the contrary is accepted that it was not until

extensive investigations and inquiries were taken

by the second respondent that the appropriate facts

were ascertained to enable some informed judgment

to be made about the merits of those claims in the

petition.

The submission that is being made is that the

petitioner did not have the resources or the

ability to inquire particularly into the issues of

multiple voting and of personation that the second

respondent possessed. He was therefore entitled to

rely upon information given to him by the second

respondent in instituting the petition because

there are strict time limits that apply. Further,

it is submitted that as the second respondent went

about its inquiries and provided information he

reacted appropriately and reasonably to the

additional information that came to light. The

submission is being made that there was really
nothing else that he could have done consistently

with a bona fide desire to discover and to cure

apparent irregularities in the election.

As far as the multiple voting was concerned,

there was nothing he could do but to rely upon

information given by the second respondent, that

is, prior to the date on which the petition had to

be filed which was 7 June.	So far as the
personation is concerned, he did undertake some
investigations.	They are described in

Dr Oldfield's affidavit. They are described in the

other affidavits referred to in paragraph 38 of the

submissions. Those investigations raised, prima

facie, evidence upon which the personation

allegation could be made, and again, it was not

until very extensive investigations were carried

out by the second respondent in September and

October 1993 that he had a factual basis for withdrawing from the assertion that he had

originally made. His first assertion was based

upon facts that were uncovered by his

investigations, and more thorough and more

substantial investigations carried out by the

second respondent showed that in many of those

cases that he had identified there was an

Webster 212 28/3/94

explanation consistent with the recording of a

lawful vote, and when that information was

available he withdrew.

So far as that aspect is concerned, the

non-existent voters, the cases of apparent
personation are concerned, it is the petitioner's

submission that the inquiries or inquiries of the

kind carried out by the second respondent late last

year could have been avoided by more regular and

more thorough habitation reviews carried out by the

second respondent prior to the election; and

indeed, the second respondent's inquiries have

demonstrated the desirability of carrying out

reviews of that kind on a more regular basis, and

that is one of the matters of public benefit that

has flowed from the bringing and prosecution of

this petition.

Multiple voting has always been known to be a

problem, so it seems but, in our submission, the evidence shows that insufficient steps have been

taken to try to cure the problem. There were still

something in excess of 5000 instances of apparent

multiple voting nationwide in the 1993 election.

The other matter that is referred to in

paragraph 67 of the submissions arises from

evidence given in the inquiry by the joint

committee following the 1987 election. Might I

hand up to Your Honour a copy of pages 80 to 89 of

the report, The Report of the Inquiry into the

Conduct of the 1987 Federal Election and 1988

Referendum, Report No 3 of the Joint Standing

Committee on Electoral Matters. Pages 86 and 87

are not reproduced. They simply have tables of

offences carrying various penalties; they are not

relevant for present purposes. But from page 81

under the heading ''Scanning", the problems of

scanning errors are raised. At page 82 there is

reference to a number of possible solutions, and at

page 84 at paragraph 6.71 the report says:

The final, area for tackling electoral

fraud is to increase penalties from their

currently low levels. This approach is easily

achieved and involves no extra difficulty in

its implementation.

At page 88 at paragraph 6.74, the report says:

In considering the need to increase penalties for electoral fraud the Committee has noted the following words of the Electoral

Commissioner -

Webster 213 28/3/94

and in the second paragraph of that quote the

Commissioner had said:

In the light of allegations concerning

enrolment and voting malpractices which

followed the Commonwealth's 1987 election and

1988 referendums and also State elections

since then, it now seems inevitable that the

next Commonwealth election will be accompanied

by allegations of widespread breaches of the

Commonwealth Electoral Act and that such

allegations will be given publicity on an

unprecedented scale. A savage increase in

penalties for both categories - - -

HER HONOUR:  That is a matter about which minds might well

differ, is it not?

MR COWDERY:	Yes.
HER HONOUR:	It does not really take your case very far,

does it, that the Commissioner has a view about the

need for savage penalties?

MR COWDERY:  Your Honour, it shows that the Commissioner is

aware of the problems and has suggested one means

of addressing them. The committee went on, on

page 89, to recommend substantial increases in
penalties, but there have been no changes in the penalties since then. Of course, it lies in the

Commonwealth's hands to make those changes if the

Parliament thinks it appropriate.

Your Honour, the central issue is the question of whether or not it is just that the petitioner be relieved of part or all of the burden of his own

costs and the costs of other parties to the

petition? In our submission, it is not appropriate

to adopt as a starting point the point which is

adopted in ordinary civil litigation, that is, that

costs should follow the event. In our submission,

that is so because, to take for example the

dismissal of a number of heads of claim in the

petition, it matters not that a petition contains

20 or 40 or 100 heads of claim if one of them

succeeds. In our submission, the reasonableness of

the prosecution of the petition should be judged,

in effect, from the standpoint of its most

successful head of claim.

In this case there were two heads of claim,

multiple voting and personation, which required, in
order to be rebutted, extensive investigation, and

none of the material in Ms Adelberg's affidavits or

Mr Nugent's affidavits is disputed as to that. It

discloses that it was only with much planning and

care and must industry that the facts of these

Webster 214 28/3/94

matters were able to be ascertained. Once those

facts had been ascertained in a way that was not

open to the petitioner to do - he acted, in our

submission, quite reasonably and properly in

accepting, what appeared to be, inevitable - it had

come down to something like 75 votes that might be

impugned, which is a long way short of the 164 that

was necessary for the petition to be viable, but

the fact that a number of other heads of claim were

dismissed along the way, in our submission, should

not alter the way in which the costs burden falls.

Further, it is submitted, as contained in the

written submissions, that the real problem with the

other heads of claim, was not so much the substance

of the claims as their expression in the petition.

There were, it is conceded, severe, and, indeed,

fatal, drafting problems in the petition. The lack

of specificity of grounds, the lack of particulars,

matters of that kind that were referred to in

Your Honour's judgment in September, of course have to be acceptable, but they were technical problems

which, in our submission, should not be visited

personally upon the petitioner nor in circumstances

where two substantial heads of claim survived, and

continued in the way that I have described, should

he be penalized for bringing a petition that

contained within it some claims that were obviously

not in proper form.

Your Honour, as I have said before, there are other matters in the written submissions which we

do rely upon. I do not propose to go through the

whole submissions orally, unless there is any part

of it that Your Honour wishes to hear something

further about. The matters that I have referred to

orally and the matters contained in the written

submissions are the matters upon which the

petitioner relies. He does not make a submission

as to the precise form that any order should take

at this stage, because there is scope for orders to

be tailored that would distribute the burden of

costs in this case in a way that is just to all of

the parties, and it is that broad general

submission which is made, but, of course, we would

be prepared to make further submissions later, or

if Your Honour requested it, as to the precise form

of any order. Those are my submissions,

Your Honour.

HER HONOUR:  Yes, thank you, Mr Cowdery. I will adjourn

then until 2.15 pm.

AT 12.51 PM LUNCHEON ADJOURNMENT

Webster	215	28/3/94
UPON RESUMING AT 2.22 PM:

HER HONOUR: 

Yes, Mr Cowdery.

MR COWDERY: 

Your Honour, can I place one further matter

before Your Honour. In paragraphs 69 and 70 of our
written submissions, there is reference to other

petitions that followed the 1993 elections and to

some submissions made by my learned friend,

Mr McCarthy. That material is taken from a

supplementary submission made to the Joint Standing

Committee on electoral matters by the electoral

commissioner dated 15 November 1993. I have a copy

of that taken from the Hansard Report of the

proceedings of the committee starting at page 551.
Might I hand up a copy to Your Honour?

HER HONOUR: 

Yes, thank you.

MR COWDERY: 

I regret to say I have only two other copies,

but I make those available. That is the additional
material, Your Honour.

HER HONOUR:  Yes, thank you indeed. When you are free,

Mr McCarthy, we will take your response to these

matters.

MR McCARTHY:  Yes, Your Honour. I seek leave to file in

Court a notice of motion in relation to an order

for costs which in effect formalizes what I

indicated earlier this morning and I also hand up

written submissions and I make a copy of the notice

of motion and the submissions available to the

other parties.

HER HONOUR:  Yes, leave will be granted to file that.

MR McCARTHY:  Thank you, Your Honour. Your Honour, the

first respondent's position, having reviewed the

evidence and the submissions of the petitioner, is

that this would be an appropriate case in which

under section 360(4) the Court directed that the

Commonwealth pay the costs of the parties involved

in these proceedings. That could take various

forms, the order under section 360(4), and I might

explore some of those further in the submissions, but alternatively, if Your Honour was against the application of any order under section 360(4), in

our respectful submission, Your Honour would make

an order that the petitioner pay the costs of the

first respondent in this matter, as being the

appropriate order in both effect of the proceedings

and in justice to the first respondent.

Webster 216 28/3/94

If I might take Your Honour to the

submissions. The petitioner has moved this Court

to dismiss his petition without trial. His

solicitor has acknowledged in correspondence and

affidavits that the petitioner does not have

sufficient evidence to make good any allegation in

the petition as to conduct or occurrences which

would invalidate the first respondent's election.

Prima facie, any order of the Court dismissing the petition on the petitioner's application without

trial should include terms as to costs of the

respondents and in particular the first respondent.

The first respondent, Your Honour, is here as

a member of Parliament who had her election

challenged. There has been no finding in any respect that has had a bearing on her actions

whatsoever; she has been, however, put to the

difficulty of an involvement in something that does

not flow from her personally, but flows from her

position. There was a series of matters that were
put against her as to why her election was invalid,

and ultimately the petitioner is not prepared to

proceed with any evidence in this matter
whatsoever, and it is as a result of reviewing

various evidence, not of presentation of evidence before Your Honour, that this petition is, at the

petitioner's own application, before Your Honour

for dismissal.

Prior to 1983 the most appropriate order would

be that the petitioner pay the first respondent's
costs and a review, Your Honour, of 90 years of

Court of Disputed Returns history, shows that that

is the order that was usually made when a

petitioner was unsuccessful and more so when a
petitioner, in actual fact, withdrew the grounds of

a petition. However, this is not 1974 or 1964,

this is 1994, and it is 10 years after the

amendment, which has included section 360(4) in the

Act, and the Court is looking at whether there are	grounds on which, in terms of the application that
has been made by the petitioner, whether it is
appropriate that the Commonwealth bear the whole or part of the parties' costs in this matter.

Now, in terms of the petitioner's own orders,

he sought that the Commonwealth pay his costs and

any other costs for which he may be found to be

liable, presumably the first respondent's costs and

the second respondent's costs. The Court might

note, Your Honour, that there has been no argument

put by the petitioner at this stage that there
should not be an order for costs in relation to the
first respondent against him if, in actual fact,

his applications under section 360(4) fail. The

fact that the petitioner has been unsuccessful does

Webster 217 28/3/94

not preclude him seeking an order under

section 360(4), nor is the Court precluded from

making such an order. In fact, Your Honour, such

an order was made in Nile v Wood. Mrs Nile was

unsuccessful and an order was made in relation to

the costs that she had incurred in relation to

Mr Wood.

Now, Your Honour, if we turn to why it would be just and sufficient, Your Honour has heard the

submissions for the petitioner. Ours is not a

position where, to quote Macaulay, "even the ranks

of Tuscany could scare forbear to cheer". However,

as a sainted Lord Chancellor of England once said,

"even the devil is entitled to his due at law'' and

Mr Webster is a long way removed from that, and

there is in relation to these proceedings,

obviously, in our submission, some public benefit.

The Webster V Deahm judgment of Your Honour is a

significant judgment on section 355 and

section 355(a) of the Commonwealth Electoral Act. That judgment is the only authority on section 99

and section 106, and the references in the judgment

to section 232 are also important as to the grounds

on which petition should be based and assessed. It

is strongly arguable that the series of election

cases which followed the 1993 elections, this case

will have the largest impact on the conduct of

election cases.

The petitioner obviously did not file the

petition with the intention of achieving a result similar to that which befell him as a consequence

of this Court's judgment on 3 September last.

However, he is entitled to point to the public

benefit which has flowed from the Court's detailed

consideration of his petition.

As to the matters which the Court allowed the

petitioner to proceed upon after 3 September,

certain matters are clear. In relation to multi-

voting, even the AEC had not settled its

preliminary inquiries until after the petition had

been filed. The petitioner was not without some

factual basis on which to proceed on these

allegations until much later, in 1993, when the AEC

reports and investigation material became

available.

The petitioner was probably entitled to

satisfy himself that the multi-voter survey and

investigation by the AEC was accurate in its

results. This information was more particularly

within the purview of the AEC than any other aspect
of the petitioner's amended case. It would appear

from the AEC's own survey in review of the

petitioner's list of voters, allegedly improperly

Webster 218 28/3/94

enrolled but voting, that there was in excess of 30

electors who were not conclusively established as

having voted.	As the number of votes on which
respondent's majority, the petitioner had grounds to believe that there were reasons to question the validity of the first respondent's election.	there were grounds to challenge exceeded the first at the time of the filing of the petition,
justified in filing the petition and it cannot be
asserted that the petition had no proper grounds whatsoever to believe that any petition he filed
was totally unsustainable.

If the facts as to the allegations in the

petition, as now known, are reviewed in the context

of other election petitions filed after the 1993

elections and for which the AEC did not seek an

order for costs for the reasons set out in

paragraph 69 of the petitioner's submissions, then

the circumstances in this matter would appear

stronger in relation to public benefit. These

circumstances would be sufficient to make

appropriate an order by this Court that the first

respondent and the AEC have their costs paid by the

Commonwealth. The circumstances are probably

sufficient, given the time constraints in relation

to the filing of a petition for the petitioner also

to have costs against the Commonwealth.

Obviously certain sections of the petitioner's

allegations had more substance than other sections,

and this Court has so found. However, the course

of the proceedings made must be viewed as a whole

for the purpose of section 360(4), and it is

difficult to suggest a principle whereby the

petitioner, in relation to this public inquiry,

should be visited with significant costs orders.

Your Honour, the only other matter I would

wish to make reference to is that also arising in	this matter would be a further elaboration of the
question of costs and of the basis on which section 360(4) is to operate in a Court of Disputed Returns
context. Your Honour, there has not been, in the
long history of Courts of Disputed Returns, such an
array at the bar table in relation to a costs issue
that I can discover in the Commonwealth Law
Reports.

If it is not a matter of enormous public

interest, it would seem strange that the Solicitor-

General for the Commonwealth was here today in

relation to this matter, and there will be,

obviously, determinations made by Your Honour

concerning, again, section 360(4). Now, that again is something we would see in terms of the ruling in

Webster 219 28/3/94

Nile v Wood as being matters that would be, in

Justice Brennan's view, in the public benefit or

the public interest, concerning this particular

litigation, and it would also be a matter that

should be taken into account in the overall

assessment as to what appropriate orders would be.

Your Honour, obviously these matters are

opposed. There is no appropriate basis on which

one can make further submissions, so I would only

repeat that if it is the case that Your Honour is

of the view that section 360(4) should not be

vitalized in this matter, that whatever else is

appropriate, it is appropriate that Mrs Deahm's

costs, the first respondent, be paid by the

petitioner; that in terms of basic justice she has
been involved in proceedings that have not come to

any final form in the usual way but have been

withdrawn, and the only appropriate order, if

Your Honour is not prepared to make an order under

section 360(4), is for the petitioner to pay the

first respondent's costs.

If there are any submissions made in relation to that by my friend, Mr Cowdery, Your Honour,

could I reserve to make any reply in relation to

that? I have not heard him say that.

HER HONOUR:	Yes, certainly.
MR McCARTHY:	The only other matter I would raise,

Your Honour, is to ask for your indulgence that I notice that there is a typographical error in my

submissions and that, at page 2, where there is

reference in paragraph 5 to paragraph 232, that

should, in actual fact, be 362. And I beg

Your Honour's pardon - you are probably wondering what this 232 was all about; I was really talking

about there on what Your Honour had put forward to

in relation to illegal practices.	May it please
the Court.

HER HONOUR:  Yes, thank you. Mr Sackar.

MR SACKAR: If Your Honour pleases, may I get the

evidentiary materials out of the way. First,

Your Honour, we rely upon an affidavit of

Lynne Elizabeth Glasson of 22 March 1994, and an

exhibit to that affidavit which comprises two

volumes of materials, but, daunting though it may

seem, I think I can cut through most of it in a

moment.

HER HONOUR: Yes, thank you.

MR SACKAR:  If Your Honour would just perhaps leave that for

one moment until I go to the other evidence and

Webster 220 28/3/94

then I can suggest a way through what, as I say,

appears to be daunting. Secondly, I understand

that filed in the Court should be an affidavit of

Robyn Adelberg of 5 November 1993. It was, in fact, filed and served last year when it was

anticipated the matter would be contested. In

respect of that affidavit, at the moment I only

wish to read paragraph 2, or perhaps I should say,

paragraphs 1 and 2, and Your Honour, if that is not

here, I think I have a spare copy of that. If I

can just hand it up for the time being, and it is

paragraphs 1 and 2 of that - perhaps I will hand up

the exhibits as well, but I will not be going to

those.

HER HONOUR:	Yes, thank you.
MR SACKAR:	And thirdly, whilst not in the form of an

affidavit, I have given to my learned friend

Mr Cowdery this morning, just prior to us starting,

a statement of Mr Scutts of 25 March 1994 in which

he, we would submit, relevantly denies the

allegation of the conversation deposed to by

Mr Webster, the petitioner.

HER HONOUR: 

Is there any objection to this?

MR COWDERY: 

No, Your Honour; it appears as my learned

friend observes, in a form of a statement rather
than an affidavit, but we do not object to the form
of it. While I am on my feet, to save interrupting

later, Your Honour, there was reference to an

affidavit by Lynne Elizabeth Glasson - my learned
friend just referred to, a lengthy matter - I do

not know whether it is important for his purposes
or not, but in paragraph 57, Ms Glasson deposes on

information and belief that I attended the head
office of the Electoral Commission on or after

25 November 1993.  I can inform the Court that I

did not. 

HER HONOUR:  Yes, thank you. Mr Sackar.

MR SACKAR:  Your Honour, can I just take Your Honour briefly

through that evidentiary material.	May I go to
Ms Glasson's affidavit first.	Your Honour, it

really does set out a history of the proceedings,

which Your Honour may find helpful. What we have

done to try and shortcut Your Honour having to

plough through most of that material, I hope, is to
prepare a chronology which picks up the various

paragraphs of Ms Glasson's affidavit and sets out

in the exhibits, for example, where Your Honour

will find the matters that are set out in that

chronology. Essentially from our point of view I

shall not read it unless Your Honour wishes me to

Webster 221 28/3/94

do so, but it really does set out in date order

precisely what occurred, we say, during the course

of the proceedings.

May I just point out one or two relevant

matters on the way through: first, paragraphs 9 to 13 inclusive do set out, with reference to the Act, the various materials which the petitioner in this

case would, in any event, have had access to; over
the page at paragraph 19, there is reference to

access being granted to certain documentation, and over the page in the continuation of paragraph 19,

which I will come back to in a moment or two, while

I am on the question of access to information,

might I just point out to Your Honour that there

are a number of legislative provisions which would

prevent the Australian Electoral Commission, absent

an order of the Court, to divulge information to

anybody.

May I just have them noted: first, the

Freedom of Information Act does not apply to

matters arising under the Electoral Act, in
particular, materials are not available pursuant to

the Freedom of Information Act and the provision is

section 41; likewise, the provisions of the Privacy

Act do apply in section 14, and there is a further
restriction pursuant to section 91(9) of the

Commonwealth Electoral Act itself to divulging

certain particulars so as to identify voters. That

is put particularly, lest it be suggested, although

it has not, I do not think, been suggested yet,

that the electoral commissioner should have been

more forthcoming in providing certain information.

The record will show, namely the material set out

in Ms Glasson's affidavit, that when Mr Webster

from time to time requested access to materials,

subject to formalities they were always available

to him, that is additional materials which he

requested.

Now, of course, from about 3 September, the

petition was largely reduced to two items, and

again I will not take Your Honour through this in

detail, but on page 6 of the affidavit, Your Honour

will see that from about the - - -

HER HONOUR: This is Ms Glasson's affidavit?

MR SACKAR: Yes, I am so sorry, yes. It was from about that

point that the issues were very narrowly confined and, as I think I have already pointed out, on or

about 17 September, paragraph 31, the petitioner

was given, at that point, the materials concerning

the apparent multiple voting impersonation report

of Ms Adelberg. Over the page in 32 Your Honour

will see that there was an inspection of certain

Webster 222 28/3/94

documentation at that point. I will come, as I

have said, in a moment to contrast what the

evidence is as opposed to what the evidence is not,

namely the assertions made in the submissions put

forward by the petitioner, but indeed, we would

submit with respect that there was a great deal of

information then available to the petitioner.

May I simply say this generally: the

petitioner in any such proceedings bears an onus;

there are certain matters under the Act which the

petitioner must prove. It is not a matter for the

Australian Electoral Commission, or anyone else for

that matter, to disprove the irregularities which

the petitioner might allege occurred, and

importantly, particularly in the light of the

flavour of Mr McCarthy's submission, one ought to

bear in mind the provisions of section 363 of the

Act, which of course Your Honour referred to in

Your Honour's judgment last year. "Absent bribery

or undue influence." It is not by any means a

foregone conclusion that the result of the election

would be set aside, even if there were

irregularities of the kind which the petitioner had

pointed to here, and even, if I am not mistaken,

last year, I think I heard Mr McCarthy say

something very similar to what I am about to say

now, and that is that unless the result of the

election was likely to be affected, and it was just

that the candidate be declared not truly elected,

then it would not matter. He concedes that he did

say that last year, but the point is that it is not

just a question of pointing to irregularities, and

I will come back to that again in a moment when I

deal with Ms Adelberg's material.

Your Honour, if I can just refer Your Honour

to the very last document in Ms Glasson's

affidavit. It is at the end of that first volume

and it is LG43. This is the letter which finally,

on 31 January this year, effectively brought these proceedings to an end. There is an assertion that	the decisive evidence was only obtainable pursuant
to orders of the Court - and I must come to deal
with that in a moment - but the effective history of this matter is, as is clearly apparent from, we say, that letter, the petitioner ultimately
conceded - and we say this is the only sensible
conclusion one can put on the material - that he
could not possibly succeed on his petition, on the material which the electoral commissioner brought
forward. In other words, he was no longer content
to proceed on the evidence that he had available
and the clear conclusion is that had he proceeded
only on his own evidence, we say he would have
failed on the petition~

Webster 223 28/3/94

May I come just to deal shortly with

Ms Adelberg in paragraph 2, because it has been

suggested here today, both by, I think my learned

friend, Mr Cowdery, and certainly most recently by

Mr McCarthy, that there is a public benefit and

there was a public benefit in, as it were, getting
the Australian Electoral Commission's procedures in

order. In paragraph 2 of Ms Adelberg's affidavit,

we would ask Your Honour to accept, as indeed the

point was sought to be made by Mr Cowdery, that the

question of so-called multiple voters is often
confused, and perhaps wrongly used, as a
description for multiple marking, and it would

appear from Ms Adelberg's affidavit in paragraph 2

that in fact the matter is well in hand; it is

recognized as a problem and therefore it is looked

at routinely in circumstances where it might be

suggested that it is appropriate to do so. So it

is hardly Mr Webster who has brought, we would say

on the evidence, this matter to our attention, to
enable some public benefit to accrue as a result of

the allegation in the petition.

So far as Mr Scutts, may I simply say this:

he denies ever making the admission that Mr Webster

seems to have some recollection of him making. If

Your Honour wishes to resolve that, it is a little

difficult because there seem to be diametrically

opposed views - perhaps nothing very much turns on

it, for this reason - but I have checked the

petition and I must confess it is often, and always

rather, with this petition, difficult to work out

where it starts and where it ends, but in the

petition there is no allegation that I have been

able to find which remotely comes near the

allegation now made for the very first time about -

I presume it is said on the basis of some sort of

admission by Mr Scutts - that he or the Electoral

Commission knew all about it, whatever "it" is supposed to mean, but, as I have said, it does not

find its way into the earlier petition, or at least

not in a form that I can recognize and, with

respect, Your Honour would be left, leaving aside

the resolution of any dispute, as to what in fact
that so-called admission is really meant to be an

admission of.

It says no more than, "We all knew about it,

and without some explanation, either from other

terms of the conversation, or otherwise, as to what

was happening at The Entrance and what particular

allegation was meant to be implied into the

conversation, Your Honour need not resolve, we say,

the dispute between the two witnesses. The simple

fact is that on the evidence it is so vague and

speculative that Your Honour could not reasonably

Webster 224 28/3/94

draw any conclusion as to what that so-called

admission was meant to be an admission about.

May I come to deal with the submissions in

written form and I realize that I had not formally

addressed the question, if Your Honour had not

realized it, that we of course have a notice of

motion on - - -

HER HONOUR:	Yes.
MR SACKAR:	- - - in which we ask the petitioner to pay our

costs, and what I have been putting, both in

evidentiary and in submissions, Your Honour, of

course, is in support of that. So far, at least,

nobody has directly asked for costs against us, but

that is certainly our motion.

HER HONOUR: This is an unusual stand for the AEC, is it?

MR SACKAR: Well, I am not sure that it is unusual, in the

sense that there is certainly suggestion in some of

the other cases that the AEC had not positively

sought costs. In some instances the Court has

awarded costs, of course, against a petitioner

where petitions have failed and the learned

Solicitor points out to me, because I had not realized that in Sykes we did in fact ask for costs, this document that has recently been handed

up, which is the submission to the

Joint Standing Committee - it is the most recent document that Your Honour has with a covering letter from Mr Cox - in Sykes, and indeed, in a

matter of Robertson. At pages 24 and 36 the matter

of Robertson was dealt with by Justice Toohey on

14 October 1993, so in both of those matters costs

were sought. And indeed, if I may say, the history

of this matter is a little unusual in the sense

that both in terms of the time that it has taken to

have matters resolved and indeed, the trouble which

the Electoral Commission has gone to, we say, to

sort matters out satisfactorily so far as the Court

of Disputed Returns is concerned, and therefore we

do not by any means suggest that this is an

exception.

May I just make these two further general

submissions on costs - - -

HER HONOUR:  Can you distinguish at all between the matters

up to the decision of whenever it was last year and

thereafter?

MR SACKAR:  I could see a basis upon which Your Honour would

perhaps look at those differently. Certainly, up

to 3 September we say that we should get our costs

in respect of those allegations, which were

Webster 225 28/3/94

numerous and which raised both factual and legal

argument. We say, with respect, there should be no

argument about that, we should get our costs in

respect of those, that such costs are thrown away. So far as the material that follows it, our

argument is that the same should apply. In other

words, we would say that one should not

distinguish, and therefore the exercise of the

discretion should be identical in our favour. Why

we say that is that it was never going to be enough

for the mere suggestion of irregularity or

illegality, section 362, it was never going to be

enough. As the hearing drew closer, and as it

became clearly apparent that the petitioner just

could not get the evidence together, obviously a

tactical decision had to be made on the part of the

Electoral Commission: does it go into a hearing

set down for a week and simply allege that the

evidence is not good enough, or does it take its

own course? The latter was the position it took,

but it should not be penalized because, after all,

it not only had a duty to protect its own interests

in the litigation, its representatives had a

responsibility to this Court to fully and frankly

inform the Court, not only as to its procedures,,
but as to the factual material lest the material
provided by the other side was either inaccurate or
misleading.

When one looks at LG26, which is the second

volume of the, if I can use the shorthand
description, the Glasson material, they are the

affidavits all in identical form. So Your Honour

would only need to look at one or two which were

sought to be tendered by the petitioner in order to

suggest the irregularity so far as multiple voting

was concerned, and perhaps even personation.

There are two things that appear from that

material. The first one is the choice by the

petitioner of the date of 1 March 1993. We cannot

make head or tail of that date. It is not a date,

in our respectful submission, that is relevant in

any sense of the word. It is not a date which

would naturally suggest itself, the election being

around about the 13th, I think it was, of March.

There is nothing that we see in the Act to give an

indication of why 1 March was the date. If that is

correct and the petitioner was simply engaged in a

totally irrelevant exercise, then we did take some

responsibility for informing the Court as to what

we said was the relevant date for the purposes of

the litigation.

Secondly, the survey material which the

petitioner was proposing to file was, in fact, we

Webster 226 28/3/94

say, not good enough and was never going to be good

enough because in so many of the instances they had

not pursued as far as we say reasonably could have

been done, the so-called persons or non-existent

persons. That is apparent, we say, from the
paucity of material on the face of the record and
the rather scanty inquiries which were made. This

was not, we say, therefore just a case of the

petitioner realizing that the second respondent,

with material peculiarly within its knowledge,

provided the ultimate answer causing the petitioner

to capitulate. Rather, we say this was a case of
the petitioner, either in a half-hearted way or in

a not entirely accurate way, seeking out

information.

We say it is not a question of resources. It

frankly comes down to a question of common sense.

It comes down to what you ask. It comes down to

who you ask, and it comes down to what date you

think is relevant for the purposes of the

questions. If you pick the wrong date, or if you

do not ask the right question, or you do not ask

the right person the right question, and the mere

fact that we might have and were able to convince

the petitioner, does not mean that we were

peculiarly within the receipt or possession of

information. It simply means they got it wrong.

If that is correct - we submit on the evidence it

is - the logical extension of that argument is: had

they picked the right date, had they asked the

right question of the right person, arguably we

would not have had to do it the right way.

So it is not simply a question, we say, of

merely having information in our possession,

although I concede that by reason of those

legislative provisions I have adverted to there

were restrictions in us placing on the table all of

the relevant personal information, and I must make

that concession. So far as the question of - if I can just deal

with the question of public benefit, or public

interest, as Justice Brennan points out in Nile v

Wood, and we respectfully suggest is correct,

merely invoking the jurisdiction does not create

the relevant public interest. Further, as

Justice Toohey points out in Robertson, there is

nothing in the Act that says costs should not

follow the event.

Mr McCarthy has made some comments about the

importance about His Honour's decision of

3 September, and, of course we do not disagree with

that, but Your Honour's decision, in effect, led to

the scrapping, at that point, of almost all of the

Webster 227 28/3/94

allegations. With the greatest of respect, Your

Honour's decision as to the particularization of

the case, and/or the relief which Your Honour gave the petitioner pursuant to the Act in terms of the

particularization, was really a decision, with

respect, on the facts, we would say, and was not

nearly as important perhaps as the matters in which

Your Honour did dismiss the great part of the

petition.

So far as our submission is concerned on that,

so many of the matters Your Honour dealt with were

clearly untenable. The petitioner, for example -

one may have to revisit a document which, I think,

almost everyone has disowned, but one has to

revisit it to see, for example, that in the face of

what we would say is both common sense and very

recent authority from the Court - the petitioner
sought, for example to challenge the election

Australia-wide. There are many other examples of

that, within that petition.

May I come to this question of reasonableness,

which the petitioner sets out in a little detail

from pages 11 and following. First there is the

submission in paragraph 63 that:

It was reasonable in all the circumstances for

him not to accept the later bland assertions -

They were given a slightly different description

before lunch orally, but we are told they are bland

assertions, and I am not quite certain what is

intended to suggest by that. In other words, one

assumes that the petitioner says that they were

perfectly entitled to reject any explanation given

by the Australian Electoral Commission, but none

the less press on. We have made our submission to

this effect, either the multiple voting report,

which was available in the September within two

weeks of Your Honour's judgment, or alternatively,

the realization that the methodology used or

proposed to be used in their own inquiry was

flawed, notwithstanding Ms Oldfield, who set up the

protocol, it seems.

When one actually looks at, as I have said,

LG26, it should have been realized that that was a

perfectly inadequate method by which to obtain the

information, and we say that bearing the onus does

not mean simply kicking the ball in the air. At

some point the petitioner had to face the reality
of no evidence coming from the respondents in this
case, and having to satisfy the Court on the usual

basis that the allegations of the irregularities

(a) existed, but (b) were sufficient in number to

have affected the result. Paragraph 64 we need not

Webster 228 28/3/94

concern ourselves with now.	So far as 66 is
concerned, it is different.	They seem to have some

analogy with paragraphs 8 and 27 of the earlier
submission.

May I simply say this, that in respect of

paragraph 8 - that is, the first few sentences of
paragraph 8 about relying upon statements, which is

repeated in paragraph 27 - there is currently no

evidence before the Court as to what statements

were made, or when, notwithstanding that Mr Webster

has, in fact, put on an affidavit on the issue of

costs. He has not given any evidence of that. So

it really is not appropriate for anyone to be
making statements from the bar table that those
assertions or representations were made, if in

fact, having indulged themselves to the point of putting on affidavit evidence, those matters are

not adverted to. So Your Honour should not, in the

absence of such material, with respect, accept

those assertions.

So far as the highlighting of a more rigorous

review of the roles to minimize the risk of

personation, we say there is no evidence of that.

The Act clearly recognizes that some people, during

elections, will commit or are likely to commit,

regrettably, illegal acts, and therefore it is not

a novelty, regrettably, in the conduct of these

elections that some people tinker illegitimately

with the process.	We do not need the petitioner to
point that out.	The Act caters for it, hence the

Parliament has recognized it is a likelihood and

deals with it accordingly. I have made the

submission about the multiple voter point by

reference to Ms Adelberg's affidavit.

So far as paragraph 67 is concerned, with

respect, I am not quite sure what Mr Webster

suggests he has done with respect to having the

penalties reconsidered. That can be done in

another place, and presumably pursuant to some

other process. Either he is doing that or will do

it before the joint committee. But that is not a

matter, with respect, that it seems on the evidence

is something which Your Honour has had to advert to

here, because the petitioner pulled up stumps

before ever proving in this case that there were

any illegal practices actually perpetrated. That

is the point that cannot be ignored because as at

the date of this argument, the petitioner's case

has never risen about assertion. The evidence has

never been tested and hence he withdrew from the

proceedings whilst the allegations were simply

still allegations.

Webster 229 28/3/94

So much of what he says he has done in furtherance of the reform of electoral law may

remain to be seen because allegations may not

reform the law. Your Honour, has not made any

findings about these practices and if, in fact,

they did exist here, notwithstanding information

which the Electoral Commission itself may be in

possession of, and notwithstanding suspicions which

may be harboured. There is, in fact, still no

proof to that effect. We would say, therefore,

that in the light of the various matters I have

put, that it is an appropriate case for the

Commission to have costs awarded against the

petitioner. They are our submissions, Your Honour.

HER HONOUR:	Yes, thank you, Mr Sackar. Yes, Mr Solicitor?·
MR GRIFFITH:	Your Honour, if I could deal with the issue

first of the claims for the petitioner's costs,

that is somewhat difficult for us, Your Honour,

because we cannot see on what basis they are

claimed against us or indeed when you read the

written submission, do we read it other than, for

example, in the final sentence, putting forward a

plea in mitigation, as it were, asking that there
be no order for costs of the Commission as against

the petitioner. We will not involve ourselves in

those issues that have been addressed by my learned friend Mr Sackar. Your Honour is quite correct, in

our submission, in saying - perhaps I am implying too much in the way that Your Honour put it - but

we would say that there could be no basis at all

for claiming costs in respect of the matters dealt

with in Your Honour's first judgment in this

matter.

It is our submission that there is no reason

to take a different view of the two outstanding issues which have run away into the sand by the

petitioner indicating that he no longer desires to

proceed on those matters. In either event, one is

squarely within the position which my learned

friend referred to in passing but dealt with by

His Honour Justice Toohey's judgment in the

Robertson matter. Your Honour can pick up a note

of that on page 36 of the document that my learned

friend Mr McCarthy handed to Your Honour after

lunch, paragraph 7.2.5.

HER HONOUR:	Mr Cowdery's document, I think.
MR GRIFFITH: Sorry, Mr Cowdery.	I am sorry, Your Honour,

you are quite right. Thank you for correcting me.

Justice Toohey was rather short and to the point

about how costs should follow the event. In our

submission, without the Commonwealth's intervention

necessarily becoming too involved that an order

Webster 230 28/3/94

should be made for the Commission's costs, or

perhaps, for that matter, to become too involved as

to whether or not there should be an order made for

costs against the petitioner, we say on no view is

there a conceptual basis, in our submission, for an

order for the petitioner's costs to be made as

against the Commonwealth's.

Indeed, when one looks at Nile v Wood where

all this seemed to have started after the 1983

amendment, in that case notwithstanding that the

respondent was ultimately found disqualified from

Parliament the order made was that Mrs Nile pay the

costs of the respondent. That order stood, and

with after-knowledge of the fact of the successful

respondent's actual disqualification which was
later held by the decision of this Court on the

reference from Parliament, the order made of the

Court was confined to an order for indemnity in

respect of the costs ordered to be paid by Mr Wood,

and the Court specifically in their judgment

refused Mr Wood's costs.	One finds that at 167 CLR
143. Their Honours said:

We are not persuaded, in the

circumstances of the present case, that it

would be appropriate to make an order that the

Commonwealth pay Mrs Nile's own costs of the

proceedings.

She, of course, on the first judgment was ordered

to pay costs so far as the parties were concerned.
Nile v Wood, petitioner in this case on a petition which is

in our submission, stands for the
authority that there should not be an order for the

petitioner's costs in a particularly strong case.

proved to be substantially misconceived, Your balance abandoned.

If I may refer briefly to paragraph 62 of the

written submissions, we would reject any contention

that one can make a virtue on an argument for a

client's costs that the client has carried on the

litigation employing counsel incompetent to that

purpose. I hasten to add, Your Honour, my learned

friend Mr Cowdery was not the counsel at that

stage. But in essence, the point made there is

that the petitioner should not be visited with what

is put as incompetence of the legal representation

then acting. My learned friend, Mr Sackar,

reminded the Court of the original claim, for the
entire election to be invalidated as well as the

various other matters which were pressed to

decision. The first matter was abandoned, I think,

on the second appearance before Your Honour. That

Webster 231 28/3/94

can be no argument for costs, what is put as

petitioner bona £ides.

Reasonableness is, we say, not something which

either is established here or which is germane to

this question of costs. Your Honour is quite right

to put to me that the Act makes it very open for a

petitioner without legal representation to approach

the Court. At the same time, what the Act

presupposes is that there be a good case. we

submit the consequences of the operation of the Act

are that one may approach with a strong case. If

one approaches with a case which is not such a case

then the consequences are easy access to the Court,

but also, as it were, repulsion of that case with

cost consequences, as indicated by Justice Toohey.

So that to be fair to this submission, we do

understand it as really putting a case for a

ttmutual knockout'' that there should, in essence, be

no order for costs. I hope that is not an unfair

summary of it, but that is how we read it and if

that is the case, Your Honour, so far as the claims

on behalf of the Commission and the claims on

behalf of the petitioner are concerned, the

Commonwealth need not make any submissions on that

because then there will be no surviving claim for

costs as against the Commonwealth. We would submit

that the case as put does not even reach that level

of ttmutual knockout'', if one likes.

Turning to the claim in respect of Ms Deahm's

costs where my my learned friend Mr McCarthy does

claim. Firstly, the written submissions handed to

Your Honour after lunch by my learned friend are

somewhat curious because they read entirely to us

as if they are submissions for the petitioner
rather than for the respondent. The claim of the

respondent in this case should be a primary claim

for the respondent's costs against the petitioner.

This is not the exceptional case such as there were	in the Hudson proceedings, that it is common ground
that there is an empty vessel so far as recovering the costs are concerned.

We would not for a moment stand in the way of

an ordinary order such as that made by

Justice Toohey in the Robertson matter that the

respondent, Mr McCarthy's client, had an order for
her costs against the petitioner. We assume he is

still asking for that, although he seems to do it in a very secondary way, having exhausted himself

tilting Commonwealth.

HER HONOUR:  It is in the notice of motion.

Webster 232 28/3/94

MR GRIFFITH:  Yes, Your Honour, as an alternative, I think.

What is wrong with it as first alternative is that

that is the ordinary order for costs: you win your

cases and you get an order for your costs. we

submit that if the petitioner is someone who does

not satisfy the order for costs then there might be

some issue as arose in the Hudson v Lee case as to

whether or not the respondent should take the risk

about that. But there is no suggestion before the

Court that this is the situation here and it is not being suggested, Your Honour. We would not suggest

to the Court that the Court anticipate that that be

the situation. Your Honour will probably be

gratified that the document handed to Your Honour

by my learned friend, Mr Cowdery, does indicate

that Your Honour's judgment in Hudson v Lee was

taken up very quickly when Your Honour made

observations about the question of costs and access

to the Court.

In particular, if I can refer Your Honour to

page 16 to page 18. At page 16 at paragraph 4.3.6

there is a reference to Your Honour's observation

hoping the legislature might do something with

these provisions and you will see, Your Honour,

that there recommendations are made. So, this is,

indeed, a particularly quick response to helpful

observations from the bench.

Your Honour, I would point out at

paragraph 4.3.15 there is also a remark made about

the legal representation. I do not put this

forward as a fact in this case, Your Honour. That

is the sort of situation one has in these cases.

Indeed, Your Honour, the enthusiasm with which a

successful candidate, Your Honour seems to join
with the unsuccessful defeated candidate in
agreeing that the Commonwealth should pay costs

rather than one should pay costs of the others when

they challenge the victory.	It would seem to give
some confirmation that there is a background

situation not 100 kilometres from that position.

Your Honour, that is pure conjecture and I will

move on.

MR McCARTHY: That is outrageous.

HER HONOUR: We will treat is as conjecture, Mr McCarthy.

MR GRIFFITH: Yes. Your Honour, I must treat my learned

friend's application for costs against the

Commonwealth as being a secondary fall-back one

and, on that basis, Your Honour, my first

submission is to say there is nothing at all before

the Court as in Hudson v Lee that there is any need
to worry about fall-back here and that should be

the end of it, that Your Honour should make an

Webster 233 28/3/94

order for her costs against the petitioner and

leave it at that.

Your Honour, if one goes beyond that point, it

is our submission, really for the reasons - and I

would wish to pick up the argument we made in

Hudson v Lee - that the position as to costs should

be similarly treated as in Hudson v Lee. Now, my

learned friend, in his submissions in this matter,

has not made any submission as to what should be

the basis for his claim for costs against the

Commonwealth, just as he did not make any

submission indicating anything other than an

ordinary order for costs was called in the Hudson v

Lee (No 2) matter. He did this morning but he did

not in Hudson v Lee (No 2) when that was argued

before Your Honour. I imagine my learned friend

would indicate to me now if he was not intending to

claim a wider order than merely costs in the case

of his client in this matter.

So, on that assumption, Your Honour, we must

turn to the question of what would be the content

of any claim for costs against the Commonwealth.

Now, apart from adopting my submissions made this

morning, and appreciating, Your Honour, that it may

merely excite debate, I would like to make a few

additional comments on the question of bases of

taxation. I took Your Honour to the EMI Records

case, (1983) 1 Ch 59, this morning, and could I

briefly take Your Honour to a particular passage in

that if Your Honour has the volume. At page 63,

Your Honour, Sir Robert Megarry referred to the

five main bases of taxations as we referred to in

our hand-up submissions, and referred first to the

party-and-party basis, and then he refers to the

common fund basis.

Now, I indicate, again, to Your Honour that that would seem to be equivalent to what is

regarded as a solicitor and client basis and

distinct from the solicitor and own client basis,

which is a separate basis.	Your Honour, there
His Lordship refers to:

"a more generous basis" than the party and

party basis. In place of "necessary or

proper," what is to be allowed is "a

reasonable amount in respect of all costs

reasonably incurred." On such a taxation "the

ordinary rules applicable on a taxation as

between solicitor and client where the costs

are to be paid out of a common fund" are to be applied, even if in fact the costs will not be

paid out of any common fund. The common fund

basis seems to have been intended to replace

the old "solicitor and client" -

Webster 234 28/3/94

and then Your Honour will see on page 64 to page 66 His Lordship discusses the solicitor and own client

basis and the indemnity basis.

Now, Your Honour, the two differences between

the standard basis and the indemnity basis are
really set out in the present Rules of the Supreme

Court of England, Order 62 rule 12, and perhaps without reading that to Your Honour, could I hand

Your Honour a copy of Order 62 rule 12 which merely

described orders of costs on the standard basis and

on the indemnity basis in similar terms to

His Lordship the Vice-Chancellor.

Your Honour, this concept of costs as between

solicitor and client, of course, has been long

recognized in these parts but could I hand

Your Honour two references by judges of the Federal Court to such differences. The first is a decision of Justice Woodward in Australian Transport

Insurance v Graeme Phillips Road Transport, (1985)

10 FCR 177, where His Honour refused an order for

costs on solicitor and client basis,

notwithstanding some - if I could call it - hard

practice by the party against whom the order was

sought; and, secondly, a decision of Justice Gurnrnow

in Thors v Weekes, 92 ALR 131, where, similarly, at

page 152, His Honour Justice Gurnrnow, again when

there was what might be called hard, if not sharp,

practice by the unsuccessful party, refused an

order for costs on a solicitor and client basis.

I do that to indicate that this concept of

solicitor and client, as distinct from the ordinary

basis or indemnity basis is still alive and

recognized.

In fact, Your Honour, I am not so sure that it

is not implicitly recognized in Chanter v

Blackwood, (1904) 1 CLR which my learned friend,

Mr McCarthy, referred Your Honour to this morning.

He was intending to hand up page 132, perhaps I can

do that for him, or he tells me that he was. I do

not know whether Your Honour should not have the

report because at the bottom of the previous page -

Your Honour will remember that in these cases the

Court used to decide the petitions on an ambulatory

basis - if I hand Your Honour the entire report.

HER HONOUR:	Yes, thank you.
MR GRIFFITH:	So that they went through issue by issue and

interim judgments were made, Your Honour, and the

petitioner -

HER HONOUR:  I do not think much was changed, has it?

Webster 235 28/3/94

MR GRIFFITH: Well, they are not all argued, and then

decided. They seem to decided in running, so that

Your Honour will see on page 131 the Chief Justice

said, "Well, up to a certain point the petitioner

has won, and then for the last day the respondent
has won", and an order for costs is made up to the

last day. And then, Sir John Quick asks for

petitioner "costs should be on the higher scale",

and the Chief Justice refuses that. One could

suppose, Your Honour, that the "higher scale"

probably means solicitor and client rather than

just ordinary costs, but the report does not make

that entirely clear. That seems to be the usual

step up, so it might not be what they had in mind,

Your Honour, but it is hard to think of anything

else.

Your Honour will remember that we referred Your Honour to Your Honour's remark in Knight v

F.P. Special Assets, 174 CLR 205, where Your Honour

said:

Powers conferred on a court are powers which

must be exercised judicially and in accordance

with legal principle.

Now, that is a useful summary of what would seem to

be clearly correct, Your Honour. But we mention

these matters not to invite Your Honour to say if one removes oneself from the ordinary question of

litigation inter partes and costs order, as is

summarized in our first submission, there is a

scale that one should immediately go to but,

Your Honour, what we do say is that it is not an

all or nothing scale, it is not onus one way, onus

the other on either party and party or indemnity,

where one goes from - switching from saying, "All

costs are included," or saying, "All costs are not

included unless reasonable with a reverse onus."

It is possible then to say, "Well,

Your Honour, in an appropriate case that there can

be orders made on a solicitor and client," not

solicitor and own client, but solicitor and client

basis, which is regarded as more generous to the

extent of the test then the expression is, as in

(1983) 1 Ch 63, of the distinction, and that

distinction is confirmed, Your Honour, including,

by the New South Wales Rules, as to cost which I

referred Your Honour to this morning, in

particular, under Part 52 rule 30 dealing with

common fund basis, which I will not read to

Your Honour because it is in the same terms as the

Vice-Chancellor's judgment.

So, Your Honour, it did seem to us on

reflection, that - perhaps I should indicate that I

Webster 236 28/3/94

would invite Your Honour to perhaps give my learned
friend the same opportunity to comment on it, but

the remarks I make would seem to be as apposite for

the earlier case this morning as this one,

Your Honour, that it is not all or nothing costs or

full indemnity, there is solicitor and client in

between is a particular reason why the Court should

take that view.

It is interesting in the Darlinghurst Petition

case, (1951) 51 SR (NSW) 204, in particular

pages 209 to 210, that the order for costs made,

notwithstanding the parts relied upon by my learned

friend at page 209 were merely for costs,

Your Honour, on the ordinary basis, taxed costs.

One picks that up from the order, as well as from the last part of the paragraph my learned friend

read. So, we are left with the position,

Your Honour, even if one regards electoral matters

as special matters so far as orders for cost are

concerned, where there is no example of a court

ordering other than costs. It is certainly no

example of indemnity costs.

Having said that, could I give Your Honour a

reference to Justice Fullagar's remarks in Magna

Alloys' case, (1982) VR 97. Your Honour, that is a

decision of Justice Fullagar in the Supreme Court

of Victoria. Your Honour, that decision was, in

turn, referred to by Registrar Jones in his Gulland

decision that I handed to Your Honour this morning,

and His Honour there discusses at some length the

basis of allowing counsel's fees on the basis of brief fee, including some element of preparation rather than on an hourly or some other basis or on

a daily basis.

At page 109, Justice Fullagar at length, at least sitting as a judge at first instance, refers

to two earlier decisions of the Victorian Supreme

Court admitting the existence of differences

between party-and-party costs and

solicitor-and-client costs, and noting that it has:

repeatedly provoked unfavourable comment from

Judges.

And, referring to the fact, as stated by

Justice Lush:

It has, however, remained a feature of the law

relating to costs for a very long time and it

cannot now be changed by a single Judge.

I would not submit to Your Honour that, as a single

Judge sitting as a Court of Disputed Returns from

Webster 237 28/3/94

which there is no appeal, there is any such

restriction, but that is the background of it.

Your Honour, we do accept as, indeed, we must

that it is a matter, within the Court's reasoned

discretion, having regard to all the circumstances.

But, having said that Your Honour, returning to the

circumstance of the, we say, successful respondent

here - and I will not deal with the Electoral

Commission which looks after itself so far as the

Commonwealth is concerned, but so far as the

successful respondent being a successful candidate

is concerned, we submit, Your Honour, absent the

special circumstance which existed in Hudson v Lee,
there is no reason whatsoever for Your Honour to

exercise jurisdiction in an exceptional away as you

did in Hudson v Lee (No 2).

There was a reason for that; it does not exist

here, and whilst being political enemies,

Your Honour - perhaps not enemies but on the

opposite side of the fence, we submit that there is
nothing submitted to Your Honour by either the
petitioner or my learned friend, Mr McCarthy, for

the successful candidate, to indicate that the

exceptional course of Hudson v Lee should be

followed in this case as against the Commonwealth.

If Your Honour pleases.

HER HONOUR:  Thank you. Mr Cowdery.

MR COWDERY:  Might I respond to one matter raised by my

learned friend, the Solicitor, in the oblique and

non too subtle suggestion that there might have
been some kind of collusion between the petitioner
and the respondent on this issue. Might I lay that

to rest once and for all. The suggestion, if it be

a serious suggestion, is utterly rejected, and the

fact of the matter is that until the first

respondent's written submissions were supplied to

the petitioner at lunch-time, the petitioner had no

idea what the submission of the respondent would

be.

MR GRIFFITH:  I made no such suggestion nor did I intend to

and withdraw it if that intention has been taken.

HER HONOUR:	Yes, thank you.
MR COWDERY:	Thank you.  Your Honour, as to one matter

raised by my learned friend, Mr Sackar: he

referred to the various secrecy provisions which

constrain the second respondent in its activities,
and we accept that. Further, the petitioner
accepts that the second respondent has made

available such material as it has been permitted to

make available, as and when it has been able to do

Webster 238 28/3/94

so, and requested to do so; there is no difficulty

about that. But it raises the question of just

what is a potential petitioner to do. With the

Electoral Act in its present form, and with the other legislation impinging upon the access of a

petitioner to information, how else can a
petitioner challenge an election than by
establishing, prima facie, and to some level of

satisfaction, reasonable satisfaction, the

existence of irregularities, and then filing a

petition? It is the only course that it open, and

it is the course which, we submit, was taken here.

Only then can access be had to more detailed

records, and the results of actions by the

Electoral Commission under the Court's process, but

until that process can be invoked, which is only

after a petition has been filed, and until access

can be had to that material, petitioners, in this

or in any case, must rely upon such information as

they are able to discover through their own

efforts.

In this case, the petitioner relied upon

information supplied by officers of the second

respondent from time to time, as to figures and so

forth, which I have referred to, and relied on the

survey that was conducted, again in good faith, the

results of which are set out in the affidavits

listed at paragraph 38 of our submissions. In our

submission, there is nothing unreasonable in the

approach adopted by the petitioner. Moreover,

there was no other reasonable course that was open
to him in order to challenge what, on the face of

the information that was available then, appeared

to be substantial irregularities and irregularities

which were capable - they might not have in the

end, but were capable of resulting in a declaration

that the election was void.

If Your Honour pleases, that is the only

matter to which I reply specifically.

HER HONOUR:	Yes, thank you. Anything further Mr McCarthy?
MR McCARTHY:	The Solicitor asked that I perhaps be given

leave to respond to certain matters that he raised.

Your Honour, he raises what is the sort of order

petitioner and of the first respondent, but it

for costs that we ask for in our notice of motion.

seemed particularly addressed here, so I will

answer that.

Your Honour, I would have thought an order

would be appropriate in terms of something similar

to the order, or draft order, that I handed to

Your Honour this morning in the matter of Hudson v

Webster 239 28/3/94

Lee. I do not propose to canvass those arguments

again in any shape or form except to say to

Your Honour because Your Honour did raise with my

friend what is the nature of these orders, and the

Solicitor has raised the inappropriateness of an

order on a solicitor/client basis, Your Honour can

probably recall him saying that.

At no stage, either this morning nor now, have

I sought an order on the basis of solicitor/client

or put to this Court that the solicitor/client

basis is the appropriate basis. The distinction

that we were driving at in putting forward the
order that we have, Your Honour, which is, in
effect, close to an indemnity order is this - if I
could refer Your Honour back to Milosevic v GIO of

NSW, and take you to page 347. I will just hand it up.

HER HONOUR:	No, you read it to me.
MR McCARTHY:	Thank you, Your Honour. There is just this:

"Costs (on an indemnity basis) differ

from solicitor-and-client costs principally in

that costs are not justifiable on the

indemnity basis solely by establishing that

they were incurred on the client's

instructions."

My point being, Your Honour, is that the far end of the scale is the solicitor/client or solicitor/own

client, it was never put to you on that basis, that

the indemnity basis as has been evolved in other

cases, and as has been contended for here, is not

the order that a taxation officer would have to

follow, that if it were shown that these costs had

been incurred and authorized that those were the

costs that would have to be paid.

In other words, Your Honour, my learned

friend, the Solicitor, has been putting indemnity

costs as being the far end of the scale. I do not

think that in terms of a proper understanding of
that spectrum that that is where in the law that

one would place the costs order that was put

forward.

The other matter that I would just remind

Your Honour, again, about is in terms of Milosevic

and of the nature of the order that my friend has

put forward. He is again inviting this Court to

make an order in full knowledge that a very

considerable percentage of the parties' costs under

the order that he proposes would not be paid. Now,

in terms of a remedial statute such - - -

Webster 240 28/3/94

HER HONOUR:  I must say that has been said everywhere but, I

mean, I have not got any evidence of that.	I think
there is something - as I said before, in the

earlier case - distinctly odd about it being said

that this is what happens. It may be what happens,

but unless I know - I mean, I have not got any

evidence that that is right. Nor have any of the

submissions gone to showing me if it is right, why

it is so. It may be because costs are not incurred

reasonably, it may be because Rolls Royce

representation is utilized when a T-Model Ford

would do. Or it may, on the other hand, be that

the profession just takes the view that people will

pay over and above what they are allowed any way.

The profession may work on what the market will

bear rather than what is reasonable in all the

circumstances. I do not know. There are a variety

of reasons, and I do not know that I can either act

on the assertion that there will be a grave

disproportion or, if so, why there will be one.

MR McCARTHY:  Your Honour, in terms of actually putting

forward specific identification over various

scales, obviously there is a question of

impression. Those matters can be dealt with in two

ways. One is to take Your Honour to various

authorities that make specific reference to the

scale of costs and the kind of - - -

HER HONOUR:  And I am to assume that the persons who have

made those references, though, are aware of why

that is so, or how it comes about that it, in

truth, has always been so?

MR McCARTHY:  Your Honour, in relation to trends in those

sorts of matters, if Your Honour looked, again -

Your Honour has Milosevic there - Mr Justice Cripps

makes reference to a judgment of Mr Justice Rogers

for making his finding that where:

Rogers J pointed out that over the last twenty

years "party and party" costs have failed
properly to compensate or indemnify successful

litigants.

That is the former Chief Judge of the Commercial

Division of the Supreme Court of New South Wales,

whose - - -

HER HONOUR: 

I would not have thought when those remarks

were made His Honour's actual knowledge of what was
happening was any more current than mine, I must

say.  I mean, it just seems to be a matter that is

totally in the air. It may or may not be true. It

may or may not be true in a given case. It may or

may not have been true for 20 years or 100 years,
or there may be any number of reasons for it.

Webster 241 28/3/94

MR McCARTHY:  I understand Your Honour's perspective. Might

I just submit that as to whether this phenomena

exists, appellate authority of recent times has

given recognition to that fact. Secondly, that

that has been a part of the understanding of taxing

officers has also been referred to in recent

authority and, thirdly, in relation to how

pertinent it is to these cases, or to the case at

bar, Your Honour, I do not disagree with the

Solicitor-General when he submitted to you that the

effect of the order that he was contending for is

that a part, perhaps a substantial part, of a

party's costs would not be recovered if there is a

costs order on a party/party basis and, indeed,

that was a central part of his submission.

Your Honour, there may be a series of reasons as to why that is so.	The first matter is whether
it was so.	I would strongly submit to Your Honour

that Your Honour has sufficient material before

Your Honour from other courts and from the bar

table for it not to be a matter that is wildly speculative as to what the scale of costs on a

party/party basis may well amount to, and that it

has a very wide separation, or significant

separation, as to what actual costs have been

incurred, including costs that would not be

described as under -

HER HONOUR: Costs reasonably incurred.

MR McCARTHY:	Reasonably incurred.
HER HONOUR:	In a reasonable amount. There is a significant

discrepancy.

MR McCARTHY:  Yes, there is.

HER HONOUR: Well, you see, that I find very difficult to

proceed on simply on the basis of statements from

the bar table and without analysis. that there is a difference that comes about by I can well see	reason of the onus or proof, a technical difference
if you like, but I really find it difficult to act
on an outright assertion that there is a significant gap between costs recovered on a party
and party taxation, and costs reasonably incurred
in a reasonable amount. If there is, it does not
seem to me that the remedy is to be found in
ordering costs on a different basis. It seems to
me that the remedy is in attacking the basis of
taxation, if there is a significant difference.

MR McCARTHY:  Your Honour, all that one can seek is that if

there is to be something translated into a costs

order from what Your Honour has previously ordered

Webster 242 28/3/94

in this matter, which was that the Commonwealth pay

the costs actually incurred - - -

HER HONOUR:  I do not think I said, "Actually incurred."

"Costs incurred" - did I?

MR McCARTHY:	I am sorry, Your Honour:
Costs incurred by him in the proceedings.

Your Honour, that is more likely to be achieved

with an order that the costs be on a basis of

"reasonable amounts" and "reasonably incurred"

rather than a reference to a party/party basis.
Your Honour, that would be more in terms of the

statute itself, section 360(4), that is, a

non-reference to costs inter partes, than would be the order that is proposed by the Solicitor in the notice of motion.

In other words, Your Honour, I do not think -

while Your Honour may have difficulty coming to see
where the scale is likely to go or why the

differences are in the scale, I think it is open to

the Court to accept the Solicitor - and I certainly

do - that an order on a party/party basis will

certainly be further away from any costs incurred

than an order that moves in terms of "reasonable

costs reasonably incurred", and I would contend for

an order along those lines, that is, Your Honour,

both in the matter of Webster v Deahm and picking

it up also in Hudson v Lee.

Your Honour, I have no other matter that I

wish to put.

HER HONOUR: Yes, thank you. Gentlemen, I should, today,

make the order that the petition be dismissed,

should I not?

MR COWDERY:	Yes, if Your Honour pleases.
HER HONOUR:	I will make that order, and I will reserve my

decision on the other matters in the three notices

of motion before the Court.

AT 3.53 PM THE MATTER WAS ADJOURNED SINE DIE

Webster 243 28/3/94