Smith v Australian Electoral Commission (No 2) [2008] FCA 1310

FEDERAL COURT OF AUSTRALIA

Smith v Australian Electoral Commission (No 2) [2008] FCA 1310 COSTS – petitioner's election petition dismissed as technically deficient – petitioner proposes each party pay its own costs or alternatively that Commonwealth pay respondent's costs under s 360(4) of Commonwealth Electoral Act 1918 (Cth) – section 360(4) gives Court of Disputed Returns power to order costs be paid by Commonwealth when appropriate to do so – underlying claim 'unsolved' – petitioner seeks deferral of costs order until appeals and hearing in Administrative Appeals Tribunal determined – no consideration to date of merits of case – Commonwealth to pay respondent's costs Commonwealth Electoral Act 1918 (Cth) ss 360(4), 371 Hudson v Entsch [2005] FCA 557 considered Hudson v Lee (1993) 177 CLR 627 considered Nile v Wood (1988) 167 CLR 133 considered Smith v Australian Electoral Commission [2008] FCA 953 considered ROBERT ARTHUR SMITH v AUSTRALIAN ELECTORAL COMMISSION NSD 616 OF 2008

BENNETT J

27 AUGUST 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 616 OF 2008

BETWEEN: ROBERT ARTHUR SMITH

Petitioner

AND: AUSTRALIAN ELECTORAL COMMISSION

Respondent

JUDGE: BENNETT J DATE OF ORDER: 27 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Commonwealth pay the respondent's costs of the proceeding.

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 NSD 616 OF 2008

BETWEEN: ROBERT ARTHUR SMITH

Petitioner

AND: AUSTRALIAN ELECTORAL COMMISSION

Respondent

JUDGE: BENNETT J

DATE: 27 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 27 June 2008 I delivered judgment in Smith v Australian Electoral Commission [2008] FCA 953. Mr Smith filed a petition on 25 January 2008 under s 355 of the Commonwealth Electoral Act 1918 (Cth) ('the Act') in respect of the half Senate election held on 24 November 2007 ('the election'). Mr Smith was the No 1 Senate candidate for The Fishing Party, contesting the election in the above the line group ticket G. He alleged in his petition that the Australian Electoral Commission ('the Commission') had registered a political party, the Australian Fishing and Lifestyle Party, that contested the election and obtained its registration by "fraud or misrepresentation". The petition was filed in the High Court as the Court of Disputed Returns (s 354 of the Act) and the matter was referred to this Court on the application of the Commission. 2 The Commission sought an order that the petition be dismissed on the grounds that the petition fails to comply with s 358 of the Act and is doomed to failure. As the first of those grounds could be determinative of the petition, I considered it separately. 3 In Smith I determined that: 1. the statutory threshold had not been established and that the petition did not set out the essential facts relied on to invalidate the election as required by s 355(a) of the Act (at [16]); 2. the 40 day period in s 355(e) of the Act had expired and amendment to the petition was not available (at [19]); and 3. this was not a case of a lack of particularisation in the petition and, accordingly, amendment under s 355(aa) was not available (at [24]–[25]). 4 I told the parties that I would hear them as to costs and the parties have now filed written submissions on this issue.