Shaw, Edwina & Anor v Wolf, Charles & Ors [1998] FCA 561

FEDERAL COURT OF AUSTRALIA COSTS - Aboriginal and Torres Strait Islander Regional Council elections - costs arising from election petition - power of Court under Aboriginal and Torres Strait Islander Commission Act 1989 to order that the Commonwealth pay costs - circumstances where appropriate to make costs order against the Commonwealth - appropriate allocation of costs between parties. Aboriginal and Torres Strait Islander Commission Act 1989 cl 10(4) Sch 4 Free v Kelly and Anor (1996) 185 CLR 296 applied Nile v Wood (1988) 167 CLR 133 applied Hudson v Lee (No 2) (1993) 116 ALR 616 applied EDWINA SHAW and JOANNE JAMES v CHARLES WOLF and OTHERS TG 33 of 1996 JUDGE: MERKEL J PLACE: MELBOURNE (HEARD IN HOBART) DATE 28 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY TG 33 OF 1996

BETWEEN: EDWINA SHAW and JOANNE JAMES

Petitioners

AND: CHARLES WOLF, BRIAN FISHER, JOHN CLARK, DEBBIE OAKFORD, MICK COURTO, KERRY ARGENT, BEVERLEY WOOD, ROSALIE MEDCRAFT, LANCE LESAGE, JOHN COLEMAN, BADEN BONE, AUSTRALIAN ELECTORAL COMMISSION; FAYE TATNELL, ROCKY SAINTY, ROY MAYNARD, GARRY MAYNARD, RODNEY DILLON, LEONIE DICKSON, JO JAMES and PHILLIP BEETON.

Respondents

JUDGE: JUSTICE MERKEL

DATE OF ORDER: 28 MAY 1998

WHERE MADE: melbourne (heard in hobart)

THE COURT ORDERS THAT: 1. The Regional Returning Officer undertake further counting or re-counting of the ballot papers cast in the Hobart Ward for election to the Tasmanian Regional Council of the Aboriginal and Torres Strait Islander Commission for the purpose of determining the candidate entitled to be elected to the place for which Ms Debbie Oakford was returned. 2. Such further counting or re-counting of the ballot papers be conducted as nearly as practicable in accordance with the Regional Council Election (Casual Vacancy) Rules, with the following modifications: (a) that, in Rule 2, the definition of "returning officer" be replaced by a similar definition for "regional returning officer"; (b) that in Rule 2, the definition of "unsuccessful candidate" include the following sub-paragraph: "(e) who was qualified to stand as a candidate"; (c) that the definition of "former member" be deleted and replaced with the following: "former member" means Ms Debbie Oakford; (d) that Rule 5(1) (d) be disregarded; (e) that Rule 5(3) be disregarded; (f) that Rule 12 be disregarded; (g) that Rule 16(1)(c) be disregarded. 3. Liberty is reserved for each party to apply to the Court on seven days notice in writing to each other party. 4. The Commonwealth pay the taxed costs of and incidental to the proceedings of the respondents Wolf, Fisher, Clark, Oakford, Courto, Argent, Wood, Medcraft, Coleman and Bone. 5. The Commonwealth pay one half of the taxed costs of and incidental to the proceedings of the petitioners.