CITATION: Insley v State Electoral Commissioner & Ors (No. 2) [2001] NSWADT 24 DIVISION: General Division APPLICANT Terry Insley FIRST RESPONDENT State Electoral Commissioner SECOND RESPONDENT Returning Officer for Comenarra Ward, Ku-ring-gai Municipal Council THIRD RESPONDENT PARTIES: Elaine Malicki FIRST RESPONDENT State Electoral Commissioner SECOND RESPONDENT Returning Officer for Comenarra Ward, Ku-ring-gai Municipal Council THIRD RESPONDENT Elaine Malicki FILE NUMBER: 993230 HEARING DATES: SUBMISSIONS CLOSED: 08/22/2000 DATE OF DECISION: 02/16/2001 BEFORE: Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member APPLICATION: Costs MATTER FOR DECISION: Costs Application Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Local Government (Elections) Regulation 1998 Local Government Act 1993 Raethel -v- Director-General, Department of Education and Training [2000] NSWADT 56 CASES CITED: Latoudis v Casey (1990) 170 CLR 534 Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSW ADT 4 APPLICANT In Person FIRST RESPONDENT REPRESENTATION: I V Knight, Crown Solicitor SECOND RESPONDENT I V Knight, Crown Solicitor THIRD RESPONDENT S Klinger, solicitor ORDERS: 1. No orders as to costs 1 This is a decision "on the papers," pursuant to s 76 of the Administrative Decisions Tribunal Act , 1997 (the Tribunal Act) and concerns the issues of costs. Mr Insley, the successful applicant in the matter of Insley -v- State Electoral Commissioner & ors [2000] NSWADT 90, and Ms Elaine Malicki, the third respondent in that matter seek orders for costs in relation to that decision (the original decision). 2 The original decision concerned an application brought under s329 of the Local Government Act (1993) (the LG Act) which relevantly provides that the Administrative Decisions Tribunal may order the dismissal of a person from civic office if there has been any irregularity in the manner in which the person has been elected or appointed to that office. The Tribunal found that there had been an irregularity in the manner in which the third respondent, Elaine Malicki, had been elected to her office as councillor of Ku-ring-gai Council, and ordered her dismissal. 3 Subsequent to the original decision, Mr Insley and subsequently, Ms Malicki, separately, made applications for costs.. Written submissions were made by all parties. All respondents opposed a costs order in favour of the applicant. Legislative provisions 4 Section 329(6) of the LG Act provides that: (6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part. 5 Section 88 of the Tribunal Act provides: (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. Submissions 6 Mr Insley, submits that special circumstances in this case warrant an order for costs. Mr Insley argues he had no option but to make an application under s 329 of the LG Act and incur associated legal fees as the Second Respondent, the Returning Officer, refused to conduct a recount of the ballot as provided for under the Local Government (Elections) Regulation 1998. Mr Insley asserts that the Returning Officer also erred, in the conduct of the election, by accepting what he claims to be the "questionable" nomination of Butland, a candidate in the elections. 7 Mr Klinger, for Ms Malicki, submits that his client was entitled to be represented at the original proceedings as a matter of natural justice. As a result of what Mr Klinger asserts to be a "mistake" on the part of the First and Second Respondents, he argues his client now finds herself dismissed from office and obliged to contest a further election and incur associated costs. The Tribunal should therefore decline to make an order for costs in favour of the applicant, but if it does, it should award costs in favour of the applicant and his client. He argues that, in any event, the quantum of costs claimed by Mr Insley is excessive. 8 Mr Knight for the Electoral Commissioner and the Returning Officer, respectively the First and Second Respondent in the original proceedings, submits that are no special circumstances in the present case that would justify an order for costs pursuant to s88 of the Tribunal Act. 9 The original proceedings, submits Mr Knight, turned on the proper interpretation of markings upon a number of disputed ballot papers. That the Tribunal's conclusions differed to those of the Returning Officer in respect of some challenged ballot papers does not, argues Mr Knight, constitute "special circumstances". The Tribunal's original decision clearly recognised that it is expected that different minds will form different conclusions as to the meaning of markings on a ballot paper. This inevitable outcome was recognised by the Tribunal (at 31 –33): "While it is true that the question whether a vote has been recorded by an elector in the manner directed is an issue of fact, to determine that issue the returning officer will have to apply his or her mind to that issue where the data available may, at times, be ambiguous. It may, for example, be difficult to distinguish between a "5" and an "8" scrawled on a ballot paper. It follows that a returning officer necessarily has to form an opinion as to the state of the facts in such cases to determine whether or not a valid vote has been cast. The proper approach for us to take is to examine the votes and come to our own view without reference to the opinion of the returning officer except insofar as it is necessary to do so to identify the votes in question." 10 In the alternative, Mr Knight submits, the costs claimed by the applicant are unsubstantiated and appear excessive. Reasons and Decision 11 Sub-section 329(6) of the LG Act states that the Tribunal's power to award costs in respect of proceedings commenced by way of an application made under s329(1) of the LG Act is to be found in s 88 of the Tribunal Act. Section 88(1) of the Tribunal Act confers on the Tribunal discretion to award costs where it is satisfied that there are special circumstances warranting an award of costs . 12 The Tribunal's power to award costs is not, as is ordinarily the case, confined to costs incurred in relation to the proceeding before it. Section 88(4) sets out a broad definition, defining costs for the purpose of s 88(1) to mean: (a) costs of or incidental to proceedings in the Tribunal, and (b) costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 13 The thrust of Mr Insley's submission is that the Returning Officer erred in the exercise of his powers, first, by refusing to order a recount of the ballot and, second, by accepting the nomination of candidate Butland. These errors, argue Mr Insley, constitute "special circumstances" warranting an award of costs. 14 As pointed out by Mr Knight, these allegations were not raised in the original proceedings and are not the subject of any jurisdiction in those proceedings. These allegations have not been tested before this Tribunal; we have made no determination as to their veracity; they are unsubstantiated. They were not taken into account in our deliberations. 15 It appears to us that Mr Insley is asking us, in effect, to revisit our original decision, and determine whether, in addition to the issues raised in the original proceedings, additional grounds exist to support our finding that there has been an "irregularity" (within the meaning of s 329(1) of the LG Act) in the manner in which the third respondent, Elaine Malicki, was elected to office. That approach is untenable; the original proceedings are at an end; the only issue to be determined is whether special circumstances exist to warrant an award of costs. While a party is not barred from raising matters in a costs application simply on the basis that these matters were not raised in the original proceedings, any fresh matter must bear some relationship to the proceedings (or application) for which costs are now sought. We fail to see the nexus between Mr Insley's original application, or the substantive proceedings, and the two unsubstantiated allegations now raised. 16 It is implied in Mr Insley's submission that the Tribunal should exercise its discretion under s88 to punish the first and second respondents. We note that in our original decision the Tribunal made no adverse findings against any respondent. But even had such finding been made, this, of itself would not warrant an exercise of our discretion to award costs. This issue was addressed by the Tribunal in Raethel -v- Director-General, Department of Education and Training [2000] NSWADT 56. There, President O'Connor, DCJ said (at 57): To use the costs power as some kind of sanction to punish agencies for poor administration would, I consider, involve the error condemned frequently by the courts of using the costs sanction for punitive rather than compensatory purposes: Latoudis v Casey (1990) 170 CLR 534 at 542-3 per Mason CJ; and at 567 per McHugh J. The oversight body for bad administration in government is the Ombudsman's office. This Tribunal only becomes involved in the issue of bad administration to the extent that statutory procedures pertinent to an application may not have been observed. 17 While not touched on in Mr Insley's submission, in the interests of completeness we note that it is not enough for the party applying for a costs order to be successful in the original proceedings. We concur with the comments of the Tribunal in Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] NSW ADT 4 (at 5): The legislature has given a clear indication that the Tribunal is not to apply the usual approach to an unfettered discretion to award costs in judicial proceedings, ie that the successful party can expect to enjoy the benefit of a costs order. Something more than success is needed to warrant an order, whether the successful party is a citizen challenging an administrative decision or an administrative agency resisting such a challenge. 18 While it is clear that Mr Insley has been successful in his action, there is nothing to distinguish his case from others in which one party has been successful. There is nothing which indicates something unusual or rare or outstanding and therefore "special" in the circumstances relating to this particular case. Therefore, not being satisfied on the balance of probabilities that Mr Insley has met the statutory test, we decline to make a costs order. Accordingly his application is dismissed. 19 We understand Mr Klinger to argue that his client was in effect, forced, to obtain legal representation in these proceedings, which would not have come about, but for the "mistake" on the part of the First and Second Respondent. This, submits Mr Klinger, constitutes "special circumstances". This proposition reveals a flawed understanding of our original decision. In that decision we held that as a point of law the Tribunal was entitled to review certain disputed papers; we did so, and reached (in some cases) different conclusions to that of the Returning Officer. No finding was made that the First and/or Second Respondent made a "mistake". 20 We have considerable sympathy for Ms Malicki's position: she has incurred legal costs for proceedings, she did not initiate. However we are not satisfied that this fact constitutes "special circumstances." Accordingly we make no costs order in her favour. Orders No order is made as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.