Rudolphy v Lightfoot P22/1999 [1999] HCATrans 485 (17 November 1999)

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Perth No P22 of 1999

B e t w e e n -

FREDERICK HENK RUDOLPHY

Petitioner

and

PHILIP ROSS LIGHTFOOT

Respondent

For mention

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 17 NOVEMBER 1999, AT 3.04 PM

Copyright in the High Court of Australia

MR J. COURTIS: May it please your Honour, I appear for the petitioner. (instructed by Wojtowicz Kelly)

MR P.C.S. VAN HATTEM: May it please the Court, I appear for Senator Lightfoot, the respondent to the petition and the applicant in the summons to strike out the petition. (instructed by Freehill Hollingdale & Page)

MR H.C. BURMESTER, QC: Your Honour, I appear for the Australian Electoral Commission as intervener. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, gentlemen, well, what is to happen in light of the orders of the Full Court?

MR COURTIS: If your Honour please, in light of the judgment of the Full Court, I concede that the petition ought to be dismissed.

HIS HONOUR: Yes, and that would leave costs, would it?

MR COURTIS: Yes, your Honour. If I may address your Honour on costs. I respectfully submit that given the way in which the matter was brought to the Full Court by way of case stated, that it is a matter of public importance, a matter of public interest - - -

HIS HONOUR: Just before you develop that, there is a section in the Act dealing with costs, is there not?

MR COURTIS: Yes, I think that is right.

HIS HONOUR: We had better find that.

MR COURTIS: Section 371, I think, your Honour. I am just looking for it. Yes, if your Honour please, the section 371 of the Act says:

The Court may award costs against an unsuccessful party to the petition.

In my respectful submission, that is a discretionary power which perhaps ought to be seen in the same way as the costs power is seen generally. If I am correct in that submission, the costs order under the High Court Rules, which is Order 71 rule 1, has been interpreted by the High Court as giving a discretion in some instances where the public interest has been raised to the extent that perhaps the appropriate order is no order as to costs. If your Honour please, I respectfully submit that given the way in which this matter was brought to the Full Court by way of case stated, it was a matter of public interest, it was an issue of clarifying the law and settling the law in the interest of the public. For those reasons, I submit that the appropriate order could well be no order as to costs, and I make that application. If your Honour please.

HIS HONOUR: Yes, thank you, Mr Courtis. Before I hear from you, Mr van Hattem, I had better see what Mr Burmester's attitude is. You are an intervener?

MR BURMESTER: Yes, your Honour. We say there should be no order as to costs. There is, of course, section 364(4) of the Act, but no party, as far as I am aware, has invoked that section; but our submission is that there should be no order for costs, and the AEC certainly seeks no order for costs.

HIS HONOUR: Yes. Yes, Mr Van Hattem.

MR VAN HATTEM: Your Honour, the petitioner seeks orders as to costs in relation to three matters. There is the petition itself, there is the summons to strike out the petition and there is the case stated as well. Section 371 of the Act provides the power to award costs. In my submission, the normal rule is that costs follow the event, as the decision of the Full Court in Milne v The Attorney-General for Tasmania (1956) 95 CLR - - -

HIS HONOUR: Yes, I am familiar with that.

MR VAN HATTEM: There is also the more recent decision is Latoudis v Casey and most recently, a decision in Oshlack v Richmond River Council in February last year, with which your Honour will be familiar.

HIS HONOUR: Yes.

MR VAN HATTEM: My learned friend has suggested that the matter was one of public interest and in that regard I would refer to the transcript of proceedings before the Full Court in which counsel for the petitioner said:

The fact situation of this case is simply unique. It cannot be repeated. That also, we submit, is a factor your Honours can take into consideration.

Justice McHugh then said:

In what way?

Counsel for the petitioner continued:

Your Honours might have some concern about the floodgates of litigation being opened and it was to allay that fear that I sought to submit that because the fact situation here is unique, I cannot conceive of it ever being repeated.

In my submission, that would diminish any public interest. There is also the consideration that the matter arose following a directed acquittal of the petitioner in the District Court of Western Australia. There was then an application by the Crown for leave to appeal from that directed acquittal. And, in my submission, the motivation behind the petition could be regarded as a form of collateral attack or a pre-emptive strike in relation to the appeal that was to follow. In other words, raising in the High Court the issue, or attempting to raise the issue, of whether or not the President of the Legislative Council was entitled to sit at the time that the respondent was nominated as Senator and what the consequences of that would be, because that issue, of course, was central to the proceedings in which the petitioner was before the District Court.

For those reasons, your Honour, I would submit that this is a case in which the normal practice should be followed. Costs should follow the event. There is certainly no suggestion of any conduct on the part of the respondent which would disentitle him to his costs. May it please the Court.

HIS HONOUR: Thank you. Yes, Mr Courtis.

MR COURTIS: If your Honour please, no suggestion was raised in the hearing of the case stated that there was some collateral purpose in the bringing of the petition. I am, frankly, very surprised to hear that allegation being raised now. Nor was any collateral issue argument raised against us in the Court of Criminal Appeal when that appeal was heard, so, again, I am frankly quite surprised.

I respectfully submit that this particular submission ought to be disregarded and I ask that your Honour do so. In relation to the question of the uniqueness of the facts, of course, I have to agree with that but the issue is not the uniqueness of the particular facts but public interest was to settle the law as to whether the 40 day rule, if I may call it that, is a rule that is absolute or whether it is a rule that could be subject to the doctrine of unconscionable reliance. So, for those reasons, your Honour, I maintain that it is a matter of public interest, if it please you.

HIS HONOUR: Yes. Thank you, gentlemen. Notwithstanding all that Mr Courtis has said and he said all that could be said in favour of the proposition that there should be no order for costs, I think that this is a case in which an order should be made and that there are no circumstances which would sufficiently outweigh the interest of the respondent to the petition who has been successful in having his costs. Accordingly, I will order and I do order:

(1) the petition be dismissed;

(2) the petitioner pay the costs of the respondent, including the costs of the summons dated 28 May 1999 and the costs of the case stated to the Full Court.

The Court will now adjourn until 10.15 am tomorrow.

AT 3.13 PM THE MATTER WAS CONCLUDED