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
PETITIONERAND:
MALCOLM TURNBULL
FIRST RESPONDENTDOUG SUTHERLAND
SECOND RESPONDENTAUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENTCOMMONWEALTH OF AUSTRALIA
FOURTH RESPONDENT
CORAM:
DAVIES J
DATE:
27 FEBRUARY 1998
PLACE:
SYDNEY
MINUTES OF ORDER
THE COURT ORDERS THAT:
The fourth respondent pay the costs of the first and second respondents.
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
PETITIONERAND:
MALCOLM TURNBULL
FIRST RESPONDENTDOUG SUTHERLAND
SECOND RESPONDENTAUSTRALIAN ELECTORAL COMMISSION
THIRD RESPONDENTCOMMONWEALTH 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…
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- Case
- [1998] FCA 111
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether it had the authority to direct that costs be borne by the Commonwealth in the context of an election petition under the Constitution. This required consideration of statutory provisions and the principles of costs in constitutional litigation. The Court had to balance the principles of fairness in litigation with the broader implications of directing the Commonwealth to bear costs in such a significant context.
The Court concluded that it had the necessary power to order costs to be paid by the Commonwealth in the event that the petition was dismissed. It reasoned that the statutory framework allowed for such an order and that it was appropriate to do so to ensure that parties did not be unjustly enriched by bringing frivolous petitions. The Court found that the petitioner's case lacked merit and that the decision to dismiss the petition was correct. Consequently, the Court ordered that the costs of the first and second respondents were to be paid by the fourth respondent, while the petitioner and the third and fourth respondents were to bear their own costs.
Orders
Orders of the court
1.
The fourth respondent pay the costs of the first and second respondents.
2.
The petitioner and the third and fourth respondents abide their own costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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