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. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 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: 28 MAY 1998 PLACE: MELBOURNE (Heard in hobart) REASONS FOR JUDGMENT In my reasons for judgment I left open the question of costs and the form of order that is appropriate in the light of my conclusions and the question of costs. The parties are, in general, in agreement with the orders proposed by the Australian Electoral Commission. I am satisfied that those orders are appropriate and accordingly make them. In my judgment I concluded that: · the petitioners had succeeded in their challenge to the eligibility of two candidates who stood for election for the Hobart Ward of the Aboriginal and Torres Strait Islander Commission Regional Council; · consequently, the petitioners were entitled to a further count or a re-count in respect of the election of one of the ineligible candidates; · the petitioners failed in their challenge to the eligibility of nine other individual respondents who stood as candidates in the election. I made no orders as to costs but directed that, within twenty-one days of my judgment, the parties and the Commonwealth file any written submissions that they wish to make as to the costs orders that they contend are appropriate. I indicated that, in my view, the nine successful individual respondents were entitled to recover their costs of the proceedings. I also observed that the Australian Electoral Commission had been heard upon the petition in the proper performance of its function to assist the Court and in such circumstances it was normally appropriate that it bear its own costs: see Free v Kelly and Anor (1996) 185 CLR 296 at 305. I concluded my observations in relation to costs by making the following comments concerning the position of the Commonwealth: "By reason of the way in which the Act and the Rules are structured the contravention that I have found has occurred has arisen from the conduct of the election in contravention of the Act and the Rules. In the circumstances of the present case I am not satisfied that that has occurred as a result of any fault or culpability on the part of any person. However it is that contravention that has attracted the jurisdiction of the Court under cl 12(3) and resulted in partial success on the part of the petitioners in relation to the relief sought by them. Further, the proceeding, as I have indicated, does raise and clarify matters that are important and ought to be resolved in the public interest. In all these circumstances, and in particular, by reason of cl 10(4) this may be a case where it is appropriate to consider that some costs order ought to be made against the Commonwealth." I have now received and considered the submissions of the parties. The relevant Department of the Commonwealth was informed of my orders and my reasons but did not make any submissions. I turn first to consider the position of the Commonwealth. The power conferred on the Court to order that costs be paid by the Commonwealth "where the Court considers it appropriate to do so" (see cl 10(4) of Sch 4 of the Aboriginal and Torres Strait Islander Commission Act 1989) is indistinguishable from the power conferred on the Court of Disputed Returns under s 360 of the Commonwealth Electoral Act 1918 (Cth). That power was considered in the High Court in Nile v Wood (1988) 167 CLR 133 and Hudson v Lee (No 2) (1993) 116 ALR 616. In Hudson, Gaudron J at 616-617 summarized the position as follows: "The discretion conferred by s 360(4) of the Act was considered in Nile v Wood. In that case Brennan J expressed the view, without being exhaustive, that costs might properly be awarded "because an officer of the Commonwealth ha[d] failed properly to perform his function or when the proceedings have resulted in some public benefit". A somewhat wider view was taken by Deane and Toohey JJ, who said that the power conferred by s 360(4) "is not constricted by reference to the principles controlling the making of an order for costs inter partes", and should be exercised "when considerations of what is fair and just support, on balance, an order indemnifying a party against costs which the party may have incurred in connection with an electoral petition". Given the subject matter of the Act and the nature of the jurisdiction exercised by the Court of Disputed Returns, I think that wider view is to be preferred." (Footnotes omitted) In accordance with the view expressed by Gaudron J in Hudson and Deane and Toohey JJ in Nile, in my view the question for consideration in the present case is whether "considerations of what is fair and just support, on balance" justify an order that the costs incurred by any of the parties in relation to the petition be paid by the Commonwealth. Approaching the issue of costs in that way I have arrived at the conclusions set out hereunder. The nine successful individual respondents ought to have their costs paid by the Commonwealth. There are several reasons for that conclusion. If the respondents did not recover their costs it would be unjust as they were made parties to the petition through no fault on their part and were successful in defending the claims made in the petition against them. There may be some doubt as to whether the petitioners would be able, personally, to pay the costs of the nine successful respondents if they were ordered to do so although I have no evidence on that matter. However, independently of that question, I am of the view that it is not fair or just that, on the special facts of the present case, the petitioners should be ordered to pay the costs of the nine successful respondents. The case has raised difficult and important questions as to who is to be treated as an Aboriginal person for the purposes of the Act and those questions required some clarification, which has now occurred, in the public interest. Further, the petitioners raised bona fide claims and arguable cases against the nine respondents and, given the difficult and important questions to which I have referred, would have had some difficulty in determining the strength or weakness of those cases prior to the clarification of the law. Further, the petitioners and the nine respondents were not pursuing any financial or commercial interest in bringing or defending the litigation (as the case may be). In these special circumstances it is appropriate that the Commonwealth, rather than the petitioners, pay the costs of the nine successful respondents. I have reached a similar conclusion in respect of the costs of the one unsuccessful respondent who was represented, Ms Debbie Oakford. In considering Ms Oakford's case I accepted that she may have genuinely identified as an Aboriginal person and has enjoyed some community recognition as an Aboriginal person. However, although her oral history offered some support for her hypothesis as to her Aboriginal descent, I was not satisfied that it was sufficient to overcome the case presented by the petitioners on that issue. Accordingly, when Ms Oakford stood for election she may have honestly believed she was eligible to do so notwithstanding that the petitioners have succeeded in their claim of ineligibility against her. The evidence upon which I relied to find in the petitioners' favour in respect of Ms Oakford was based upon genealogical and historical records obtained by them from a careful examination of public records. Ms Oakford's case was conducted responsibly and the costs incurred as a result of her case will not be substantial. In these special circumstances I am satisfied that it is fair and just that Ms Oakford should also have the legal costs incurred by her in connection with the petition paid by the Commonwealth. Mr Lesage, the other unsuccessful candidate, did not appear at the hearing. I do not propose to make any order in respect of the costs, if any, incurred by him. The Australian Electoral Commission has not sought any order in respect of its costs and has submitted that it is appropriate that it bear its own costs. I accept its submission and therefore make no order concerning the costs of the Commission. Finally, I turn to the position of the petitioners. The petitioners have succeeded in their claim against two of the eleven individual respondents whose eligibility they challenged and have obtained relief on their petition in respect of one of the two ineligible candidates. I have also concluded that the petitioners raised bona fide and arguable claims against the nine successful respondents. However, although I am of the view that the petitioners have conducted their case in the Court in a bona fide and proper manner, in the result they substantially failed to make out their case. I am of the view that it is appropriate to take a "broad brush" approach to the question of the petitioners' costs. Usually, in adversarial proceedings the petitioners would have been required to pay the costs of the nine successful respondents. Indeed, but for the power I propose to exercise to order that those costs be paid by the Commonwealth, I would have ordered that the petitioners pay those costs. However, the special circumstances of the present case have led me to decline to order that the petitioners pay those costs. The additional costs incurred by the petitioners in respect of the unsuccessful respondents were not substantial. If regard is had to the voluminous and extensive evidence adduced by the petitioners in relation to the other individual respondents, I would expect that any costs ordered against those respondents would be likely to result in an order for payment of only a small portion of the petitioners' costs. In these circumstances and, in particular, as a consequence of my view that: · there was public interest and benefit in having the issues raised by the present case resolved; · the problems which have given rise to the present case have not occurred as a result of wrongful or improper conduct on the part of any person. I have concluded that it is appropriate that the Commonwealth pay one half of the petitioners' costs. It is not appropriate that the petitioners, who have substantially failed in the proceeding, be indemnified in respect of the whole of their costs. I would add that the manner in which I have approached costs in the present case has been influenced significantly by the weight I have attached to the public benefit in clarifying the questions that have been raised by the parties in this case. Accordingly, the fact that I have made special costs orders against the Commonwealth in the present case should not be taken as an indication that a similar approach would necessarily be adopted in respect of future challenges under the Act. For the above reasons I order that the Commonwealth: · pay the taxed costs of and incidental to the proceeding of the respondents Wolf, Fisher, Clark, Oakford, Courto, Argent, Wood, Medcraft, Coleman and Bone; · pay one half of the taxed costs of and incidental to the proceedings of the petitioners Shaw and James. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Date: 28 May 1998 Written Submissions by: Counsel for the Petitioners: Mr H Derkley Solicitor for the Petitioners: Beeton & Mansell Counsel for the First Respondent: Mr G Geason Solicitor for the First Respondent: Murdoch Clarke Cosgrove & Drake Counsel for the second, third, fourth, fifth, sixth, seventh, eighth, and eleventh Respondents: Mr R Burton Solicitor for the second, third, fourth, fifth, sixth, seventh, eighth, & eleventh Respondents: G R Howes and Co Counsel for the tenth Respondent: Mr J Coleman Counsel for the eleventh Respondent: Mr M Hodgman QC Solicitor for the eleventh Respondent: Wallace Wilkinson & Webster Counsel for the twelfth Respondent: Ms R Doyle Solicitor for the twelfth Respondent: Australian Government Solicitor Written Submissions dated: 20 April, 5, 7, 8, 11, 12 May 1998 Date of Judgment: 28 May 1998