Wiltshire, Tony v Turnball, Malcolm

FEDERAL COURT OF AUSTRALIA

COSTS - Parliamentary elections (Cth) - Constitutional Convention election - where petition seeking orders that the election of certain candidates be declared void dismissed - whether power to order costs to be paid by the Commonwealth should be exercised.

Commonwealth Electoral Act 1918 (Cth) ss 356, 370
Constitutional Convention (Election) Act 1997 (Cth) ss 157(1)(k), 157(4), 166(1)

Hudson v Lee (1993) 177 CLR 627, appl
Nile v Wood (1988) 167 CLR 133, appl

TONY WILTSHIRE v
MALCOLM TURNBULL & ORS
NG 5 of 1998

JUDGE:         DAVIES J
DATE:           27 FEBRUARY 1998
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 5 of 1998

BETWEEN:

TONY WILTSHIRE
PETITIONER

AND:

MALCOLM TURNBULL
FIRST RESPONDENT

DOUG SUTHERLAND
SECOND RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENT

COMMONWEALTH OF AUSTRALIA
FOURTH RESPONDENT

CORAM:	DAVIES J
DATE:	27 FEBRUARY 1998
PLACE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The fourth respondent pay the costs of the first and second respondents.

1. The petitioner and the third and fourth respondents abide their own costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 5 of 1998

BETWEEN:

TONY WILTSHIRE
PETITIONER

AND:

MALCOLM TURNBULL
FIRST RESPONDENT

DOUG SUTHERLAND
SECOND RESPONDENT

AUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENT

COMMONWEALTH OF AUSTRALIA
FOURTH RESPONDENT

CORAM:	DAVIES J
DATE:	27 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

On 16 January 1998, I gave judgment dismissing a petition brought by Tony Wiltshire under the Constitutional Convention (Election) Act 1997 (Cth) ("the Act") which sought orders that the election to the Constitutional Convention of the first and second respondents, Malcolm Turnbull and Doug Sutherland, be declared void. I reserved the question of costs. I have since received written submissions from the parties on this matter.

The first and second respondents have both sought an order with respect to their costs.  The unsuccessful petitioner, Tony Wiltshire, has also sought an order as to costs.  No order was sought by the third and fourth respondents who were interveners. 

Courts have a wide discretion with respect to costs but ordinarily make an order that the unsuccessful party pay the costs of the successful party. Section 157 of the Constitutional Convention (Election) Act contains three provisions with respect to costs. First, s 157(1)(k) empowers the Court "to award costs".  Secondly, s 157(4) provides:

"The power of the Court under paragraph (1)(k) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so."

Thirdly, s 166(1) specifically provides:

"The Court may award costs against an unsuccessful party to the petition."

The issue before me is not whether an order should be made in favour of Messrs Turnbull and Sutherland.  Plainly it should.  The issue is whether the order should be made against Mr Wiltshire or against the Commonwealth. 

I should say at once that I do not…