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High Court of Australia Transcripts |
Last Updated: 21 February 2014
IN THE HIGH COURT OF AUSTRALIA
SITTING AS THE COURT OF
DISPUTED RETURNS
Office of the Registry
No C17 of 2013
B e t w e e n -
THE AUSTRALIAN ELECTORAL COMMISSION
Petitioner
and
DAVID JOHNSTON
First Respondent
JOE BULLOCK
Second Respondent
MICHAELIA CASH
Third Respondent
LINDA REYNOLDS
Fourth Respondent
WAYNE DROPULICH
Fifth Respondent
SCOTT LUDLAM
Sixth Respondent
ZHENYA WANG
Seventh Respondent
LOUISE PRATT
Eighth Respondent
Office of the Registry
Perth No P55 of 2013
B e t w e e n -
ZHENYA WANG
Petitioner
and
DAVID JOHNSTON
First Respondent
JOE BULLOCK
Second Respondent
MICHAELIA CASH
Third Respondent
LINDA REYNOLDS
Fourth Respondent
WAYNE DROPULICH
Fifth Respondent
SCOTT LUDLAM
Sixth Respondent
LOUISE PRATT
Seventh Respondent
AUSTRALIAN ELECTORAL COMMISSION
Eighth Respondent
Office of the Registry
Perth No P56 of 2013
B e t w e e n -
SIMON MEAD
Petitioner
and
DAVID JOHNSTON
First Respondent
JOE BULLOCK
Second Respondent
MICHAELIA CASH
Third Respondent
LINDA REYNOLDS
Fourth Respondent
WAYNE DROPULICH
Fifth Respondent
SCOTT LUDLAM
Sixth Respondent
ZHENYA WANG
Seventh Respondent
LOUISE PRATT
Eighth Respondent
THE AUSTRALIAN ELECTORAL COMMISSION
Ninth Respondent
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO PERTH
ON THURSDAY, 20 FEBRUARY 2014, AT 12.00 PM
Copyright in the High Court of Australia
____________________
HIS HONOUR: Yes, Mr Kulevski, have counsel agreed on how we should proceed from here?
MR KULEVSKI: Your Honour, we have not had an opportunity to do that. I was planning on going first. I think those to my right have worked out their order.
HIS HONOUR: Yes.
MR KULEVSKI: Certainly I will take your Honour through where the agreement and disagreement seems to be.
HIS HONOUR: Yes, I have seen a set of proposed orders which you have put forward. There are various other submissions, mainly about questions of costs.
MR KULEVSKI: Yes.
HIS HONOUR: Where do we begin, with the forms of order that you propose?
MR P. KULEVSKI: Your Honour, first, I should say that I appear for the Australian Electoral Commission and seek leave to appear on behalf of the Commonwealth as well. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, I had noted that, Mr Kulevski. I do not think other counsel need to announce their appearances. They are as before, but you are wearing two hats, Mr Kulevski, and bringing a wallet.
MR KULEVSKI: I am bringing a wallet. It is not as fat a wallet as some would like, but it is a pretty full wallet.
HIS HONOUR: Yes.
MR KULEVSKI: Your Honour, the correspondence between the parties revealed that there were three issues. The first is the primary relief that is to be granted on the petitions. The second concerns what orders should be made in relation to the costs of the petitions and the third concerns machinery matters dealing predominantly with the return of the deposits lodged by petitioners.
HIS HONOUR: Yes.
MR KULEVSKI: On that issue – I will say that now, your Honour – the Australian Electoral Commission submits that section 372 of the Act provides for what is to happen in relation to those deposits and it depends entirely on your Honour’s decision on the costs question.
HIS HONOUR: Yes.
MR KULEVSKI: So I will not say anything further about that issue. Your Honour, it follows automatically.
HIS HONOUR: Yes.
MR KULEVSKI: Your Honour, turning to the first issue, the parties appear to be in agreement that an order in terms of order 2 on the Australian Electoral Commission’s short minutes should be made, namely that it is the inevitable conclusion of your Honour’s reasons, especially at paragraph 122, that the Court declare that the election was absolutely void.
HIS HONOUR: That declaration would go in each of the petitions, would it not?
MR KULEVSKI: Yes, your Honour.
HIS HONOUR: Yes.
MR KULEVSKI: Your Honour, in addition to that order, and given that the election petitions were set down together, the Commission submits that orders in the nature of orders 1, 4 and 6 should also be made so that the Court record accurately reflects how each individual petition was disposed of. The reason for that is that the primary relief sought by Wang and Mead was uncontroversially refused and that part of the petition should be dismissed.
HIS HONOUR: Yes.
MR KULEVSKI: I understand there may be some debate about that order, but certainly that is what we submit on that basis. So the only real vexed question before your Honour – although we would submit that it is not particularly vexed – is the issue of costs. The Commission has always proposed, and the Commonwealth accepts, that it should bear the costs of its petition and costs that are necessary or proper as set out in Part 55 of the High Court Rules. It submits that the Australian Electoral Commission and petitioners, Wang and Mead, should each bear their own costs of the other petitions and whether other parties seek costs against Mr Wang and Mr Mead is a matter for them.
The positions of the parties have now coalesced this morning into three main approaches, your Honour. The Liberal candidates and Mr Wang and Mr Mead submit that the Commonwealth should bear their costs on an indemnity basis for all the petitions. Senator Ludlam contends that the Commonwealth should bear his costs of the AEC petition on an indemnity basis but that Mr Wang and Mr Mead should bear his costs of the other petitions on the ordinary basis. I will not say anything, obviously, about that latter point. Mr Dropulich agrees with the position taken by the Commonwealth.
HIS HONOUR: Given that all three petitions were heard together, if I were to form the view that Mr Wang and Mr Mead, in the events that happened, acted prudently in commencing their own separate proceedings, why would I not make a general order that the costs of all parties, save the costs of the AEC, in all three petitions be borne by the Commonwealth.
MR KULEVSKI: On the ordinary basis, your Honour?
HIS HONOUR: Let us come to basis as a separate set of issues, but as to whether any order for costs should go, what would you say in answer to the proposition that there should, in the circumstances of the case, be an order that the costs of each party in each petition other, that is, than of the AEC, be paid by the Commonwealth.
MR KULEVSKI: Yes, your Honour, I understand. I am instructed to say that that should not be the case.
HIS HONOUR: I understand that. What argument do you advance against it?
MR KULEVSKI: There are a number of reasons. The first is the question whether any – prudent or otherwise, the question whether any inquiry into reserve ballot papers was permitted, relevant or necessary, which is question 3, did not arise on the AEC’s petition. The second is that the primary relief sought by Mr Wang and Mr Mead, namely declarations that Senator Ludlam and Mr Dropulich were not duly elected and that Mr Wang and Senator Pratt were did not arise on the AEC’s petition and it failed and it was a direct consequence of that failure that all those points were raised, your Honour.
All the relevant issues were available to be debated on the AEC’s petition, including the construction of section 365 and the construction of the Act. All the parties, other than Senator Ludlam, opposed the AEC on those issues and that was available on the AEC’s petition. I do not wish to sound churlish, your Honour, but we did succeed on all those points and, leaving aside authorities, less than a month ago in this Court your Honour could not have had a congregation of, I suppose, more fervent proselytisers on Senator Ludlam’s petition that costs should follow the event. All those surrounding me ascribed to that view before your Honour.
In terms of interest, I have two submissions, your Honour. First, in relation to Mr Wang, in many respects he was not the contradictor to the AEC’s petition. He had everything to gain from the AEC’s petition and nothing to lose. He failed on the argument of - - -
HIS HONOUR: He sought to stake out ground which differed from the ground that the AEC submitted should be determinative.
MR KULEVSKI: That is true, your Honour. In terms of - - -
HIS HONOUR: Do you go so far as to suggest that that course was not, from his point of view, a prudent course?
MR KULEVSKI: No, your Honour, I do not make that submission, but he did fail on every argument upon which he resisted the Australian Electoral Commission. My submission would be that Mr Mead is in a further different position. He had no interest personally in the outcome of the proceedings.
HIS HONOUR: You would rather have me put on a pair of blinkers, I think, Mr Kulevski. Should I?
MR KULEVSKI: No, your Honour, in fact it was in our submissions that we identified Mr Mead might be wearing various hats but nonetheless - - -
HIS HONOUR: I think even I had worked that one out, Mr Kulevski.
MR KULEVSKI: Your Honour, nonetheless, the identity in these cases does matter. He did profess just to be an elector. Your Honour, we would submit it suggests a poor precedent that costs should be ordered in favour of someone who files a petition as an elector, fails on that petition and fails on all the arguments on which they resist the Australian Electoral Commission when those arguments were available and made by the Liberal candidates and by Mr Wang.
HIS HONOUR: It would be odd, though, in an election petition of this kind if – should I say no more than that party interests were thought to be irrelevant.
MR KULEVSKI: Your Honour, I accept that given also your Honour’s reasons about the nature of the above the line group registration and tickets and - - -
HIS HONOUR: Yes.
MR KULEVSKI: But, your Honour, in terms of the precedent that creates, that is the submission I have on that issue.
HIS HONOUR: Yes.
MR KULEVSKI: Your Honour, that is all I will say in relation to the costs themselves. I should probably move now to the - - -
HIS HONOUR: If I were to make an order for costs in each of the petitions against the Commonwealth, the Act, I think, would engage and require payment out of the amount deposited as security for costs, would it not?
MR KULEVSKI: That is correct, your Honour. Practically speaking it is only $500, but, yes.
HIS HONOUR: But, nonetheless, it may be prudent to make an order so that there is no doubt about questions and payment out.
MR KULEVSKI: We accept that, your Honour.
HIS HONOUR: Yes.
MR KULEVSKI: Your Honour, if your Honour were to make that order I will put the other bases, but if your Honour were to make that order, given the submissions I have just put, we would submit that that.....less of a reason why there should be a basis for it to be made on an indemnity.
HIS HONOUR: Well, let me hear first from those who claim that there should be some special scale of assessment of the costs that they should receive.
MR KULEVSKI: May it please the Court.
HIS HONOUR: Mr Bennett, do you seek to be heard on a question of the scale of costs?
MR BENNETT: Yes, I do, your Honour.
HIS HONOUR: Perhaps you could come to the lectern then.
MR BENNETT: Before I do, your Honour, can I say Mr Barlow has helpfully circulated some written submissions which I think your Honour should also have - - -
HIS HONOUR: I have read - - -
MR BENNETT: - - - as to the question of costs. I am suggesting that Mr Barlow – it might be appropriate, given I am going to adopt largely what he has said in those submissions, that he extends.....rather than miss your Honour’s - - -
HIS HONOUR: Yes. Do counsel suggest some other order of address or should I hear Mr Barlow first? Mr Barlow.
MR BARLOW: Thank you, your Honour.
HIS HONOUR: I have read your written submissions, Mr Barlow. I have, of course, looked again at Baltic Shipping. What has Baltic Shipping to do with this case?
MR BARLOW: Solely this, your Honour. Justice Kirby, President as he was at the time, held that the costs should be on the indemnity basis because it was a test case and an important test case for admiralty law.
HIS HONOUR: No, because it was an important test case for – I think it was 132 other actions.
MR BARLOW: Yes, your Honour. This is different from that in the respect that, of course, there are only three actions before the Court and it is not a test case in that sense. That is the only relevance of it, your Honour. In our submission, it demonstrates that where there are important legal issues to be determined then it may be appropriate for the Court to make an indemnity costs order. Now, that is as far as I can take that, your Honour.
Our submission principally, your Honour, is that this case was extremely important, as the AEC in fact submitted in its submissions to the Court on the first directions hearings. It said that the issues raised, particularly by the Wang and Mead petitions, profound legal questions which were likely to determine the entire fate of the matter and be of great significance as a matter of precedent. Well, in fact, in our submission, the legal issues raised by all three petitions have those characters and, of course, they all arose from substantial and unprecedented errors – or a substantial and unprecedented error by the AEC.
That has caused, of course, the parties all to incur considerable costs and, in our respectful submission, the importance of the case merits that the costs be awarded on an indemnity basis because it was proper for the parties, and reasonable for the parties, to raise the issues they did, to argue them before the Court and to attempt to assist the Court in that way so that the Court could have proper contraveners in all relevant respects.
HIS HONOUR: What, in that respect, sets this litigation apart from almost any other piece of litigation in the High Court of Australia? Cases ought not to get to the High Court, in its usual jurisdictions, unless they are disputed and disputable. It seems to me your submission is disputed and disputable points of law were raised in the petitions. Yes. The relief which was sought was very far reaching, yes.
MR BARLOW: And affects the entire country, your Honour.
HIS HONOUR: Yes, I understand that, yes.
MR BARLOW: In our submission, it is distinguishable because of the fundamental reach of this case to electoral law in this country. That is as far as I can take it, your Honour.
HIS HONOUR: Yes.
MR BARLOW: Your Honour, could I simply say as to the other orders, we submit that there is no need for the complicated sets of orders that the other parties have proposed. The only order needed to give effect to your Honour’s reasons is order no 2 in the AEC’s draft and then there is the question of the costs. Your Honour, Mr Kulevski did mention that Senator Ludlam was ordered to pay the other parties’ costs of his dismissed petition but, in our respectful submission, that is an entirely – sorry, I am told by Mr Kulevski I have misconstrued what he said. I will not take that point further then, your Honour.
Your Honour, the only other thing to say is that there is no need, in our respectful submission, and it unnecessarily complicates the orders that the Court will make and that the nation will read and try to understand, to complicate matters by dismissing other petitions insofar as they are inconsistent with the first order that your Honour makes.
The fact is that in each petition, if your Honour makes the declaration proposed in the terms by the AEC, then that will deal with the petition and the other relief does not have to be dismissed necessarily. The relief sought was not granted and that is the end of the matter, in our respectful submission. The other orders just needlessly complicate things and do not take the matter any further.
So far as the deposits are concerned, your Honour, your Honour suggested to our learned friend, as I understood it, that if your Honour made orders against the Commonwealth that it pay the other parties’ costs, the deposit, I think probably the AEC’s deposit, would go towards those costs by operation of the Act. That is not correct, in our respectful submission. It is only when an order is - - -
HIS HONOUR: I did not suggest that. I suggested that there should, in each case, be an order that the deposit be returned to the petitioner.
MR BARLOW: That is exactly what we submit is the appropriate order, your Honour. In our respectful submission, your Honour, the appropriate course, given that all the matters were heard and determined together, is that there be an identical or an operatively identical costs order. It would be impossible, virtually impossible for anyone trying to tax costs of the three petitions separately, to determine which costs, apart from drawing and perusing the petitions - - -
HIS HONOUR: I need not hear you further on whether there should be an order against the Commonwealth in each petition.
MR BARLOW: Thank you, your Honour.
HIS HONOUR: The only question remaining alive is the scale on which those costs should be ordered. Do you have anything more to say about that?
MR BARLOW: I have nothing further to say on that, your Honour. Thank you, your Honour.
HIS HONOUR: Now, are counsel agreed on who I should hear from next? Mr Lang, you are on your feet.
MR LANG: Your Honour, just in relation to the form of orders sought - - -
HIS HONOUR: Well, can we come only for the moment to the question of scale of costs.
MR LANG: Your Honour, there is a question in relation to the first orders, the orders disclosing of the petitions where we have a slightly different position from that taken by the AEC. That is separate from the costs question completely, your Honour.
HIS HONOUR: Yes.
MR LANG: Your Honour, the Commonwealth is seeking orders that the Wang petition, P55 of 2013, be dismissed as inconsistent with order 2 and similarly, in relation to our petition - - -
HIS HONOUR: Can we come to sort out the forms of order presently? Can we, for the moment, focus only on questions of scale of costs?
MR LANG: I have nothing to add to what Mr Barlow has said on that issue.
HIS HONOUR: Thank you. Yes. Now, Mr Shaw, do you wish to be heard on the question of scale of costs?
MR SHAW: Yes, your Honour. If there were going to be orders made on an indemnity basis, we would seek our costs on an indemnity basis, but we do not have anything to add to what Mr Barlow has said.
HIS HONOUR: Yes, thank you. Mr Merkel.
MR MERKEL: Your Honour, could I hand up a short outline, but deal only with the question your Honour has raised with me about indemnity costs?
HIS HONOUR: It is unfortunate that the outline was not made available this morning, Mr Merkel.
MR MERKEL: I apologise for that, your Honour.
HIS HONOUR: To produce a three-page document at this stage is not helpful. What do I find in this document that has not already been said?
MR MERKEL: Your Honour, paragraph 4 deals with the issue of indemnity costs which I would seek to address your Honour on.
HIS HONOUR: Yes.
MR MERKEL: Can I just identify at the outset, your Honour, that we say indemnity costs should only be ordered on the AEC petition, not on the Wang and Mead petitions. We say costs should be in the usual form and we do not wish to pursue orders against the petitioners if your Honour is disposed to order the Commonwealth pay those costs.
That really leaves the question of indemnity costs. Your Honour, we set out four different grounds for why there are special circumstances in this case. The first has already been dealt with. Public interest alone, your Honour, would not itself be a sufficient ground, but, your Honour, we do say it is relevant that the Court has found that the illegal practices which led to the declaration being declared void resulted solely as a result of acts and omissions of Commonwealth electoral officers by the loss of the 1,370 missing ballots.
The third point, your Honour, is that the respondents not only had no role in or knowledge of those acts, but we say that by becoming a candidate for election they do not undertake any reasonable, foreseeable risk that they would be embroiled in an action of this kind. It is unlike a commercial situation where one may or may not get into litigation but this kind of litigation was not a risk a candidate should have to anticipate as a cost they would have to bear by being a candidate.
Importantly, your Honour, we say cumulatively the fourth factor is significant and that is that the Keelty Report which is in the agreed bundle, and I only mention the pages, your Honour, but it is fairly clear that what Mr Keelty found was that it is impossible to know how the 1,370 missing ballot papers came to be missing. At the pages set out in that report – sorry, your Honour, I think there is a typo there – I think we have pages - - -
HIS HONOUR: What point do you make other than that there was official error, the AEC was responsible for that error – I thought the whole litigation has been conducted on the acknowledged and accepted basis that that was so?
MR MERKEL: Error – it goes further, your Honour. We say that, in effect, and we have tried to summarise it, but what Mr Keelty found is that the AEC failed to have adequate and effective guidelines, instructions and practices concerning transportation, storage and security of the ballot papers. He could go no further than they may have had an impact on the events that led to the ballots being lost, but we say a fair reading of the extract shows that the poor practices outlined in great detail in the bulk of the report, but summarised in the extracts, were more likely than not to have contributed to the loss.
So it was not just an accidental loss or something for which one can say administrative error arose. It was practices that ought not to have been allowed to have occurred and his corrective suggestions to avoid that in the future show that this is not just a case of some error, it is a case of culpable conduct which has caused all of the problems that have led to this litigation.
We say cumulatively those factors make it fair, just and in the public interest that the costs be on an indemnity basis and it is, we say, not fair or just that the candidates in circumstances such as these should have to bear any part of the costs of contesting the AEC’s – or dealing with the AEC’s petition. We say it was implicit in the proposal from the outset the Commonwealth pay the costs, that it accepted AEC culpability. On the faith of the Keelty Report one can say that concession, as a matter of both reason and justice, should extend to an indemnity basis for costs.
They are the submissions we would put that take this out of the ordinary case and make it a very special case which is quite unprecedented, as your Honour has found in the arguments put by the parties to date. We do not put that in respect of the Mead and Wang petitions, your Honour. We say that the Commonwealth, if your Honour is disposed to make that
order, should pay the costs on the usual basis because the arguments that we put on their petitions do not amount to the same as on the AEC petition.
So to that extent we say there should be a different order in respect of the costs of the AEC petition and to ensure there is no doubt, it seems common ground, your Honour, that the form of order which we propose in paragraph 3 of the orders set out in paragraph 1 should make it explicit that the costs on an indemnity basis are to include the costs of and incidental to the trial of the separate questions so that there is no doubt that that is where the indemnity costs go, that the separate costs and additional costs of the petitions should be just on the usual basis. They are the submissions we would put to your Honour.
HIS HONOUR: Yes, thank you. Mr Bennett, did you seek to add anything?
MR BENNETT: Your Honour, there is only one thing which I would seek to add. There is a further authority to which I should refer your Honour which might be relevant in this context – and I apologise that it was not something I was able to provide earlier. Can I hand up some copies for your Honour. It is a decision of Justice Foster in the case of Australian Electoral Commission v Towney (No 2) [1994] FCA 1166; (1994) 54 FCR 383.
Your Honour, in that case there was an election under the Aboriginal and Torres Strait Islander Commission Act which miscarried as a result of errors of the AEC officers at the polling place. That was the subject of an earlier decision of his Honour, which was one of the cases that was in the bundle of authorities that was before the Court at the earlier hearing.
In that case the officers had detached original and counterfoil voter identification slips, rather than only the counterfoils. The votes in question were excluded as a consequence. The AEC brought a petition in that case and although the court was of the view that the power was enlivened for it to declare the election void, the AEC and a number of the other respondents successfully convinced the court to order a special scientific procedure to match up the voter identification slips with the relevant envelopes and thereby saved the election.
On the question of costs, which is what his Honour dealt with in the case that I have handed up to the Court, it was accepted by all of the parties that the respondents’ costs should be paid by the petitioner, the AEC, because the miscarrying of the elections had been occasioned by the fault of the AEC employees. However, the issue which his Honour was concerned with was whether or not those costs should be paid on an indemnity basis as the respondents sought.
The respondents sought the payment of the costs on that basis on three grounds. The first ground which Justice Foster rejected was that errors had been made by officials in the process of the public conduct of the election. The second ground, which Justice Foster also rejected, was that a standard costs order would not provide full indemnity and that that might be disadvantageous to the Aboriginal persons involved or certain Aboriginal organisations.
What is of relevance for present purposes is the third ground, which his Honour accepted, and that was that the proceedings were in the nature of a test case and were in the public interest in that they had wider implications than the particular interests of the parties and involved novel elements of law and procedure in election litigation. If I could ask your Honour to go to page 390 of his Honour’s decision, your Honour will see at about letter E under the heading “Were the proceedings in the nature of a test case?”, his Honour sets out the submission of Mr McCarthy that:
the applicants acted in the public interest by participating in the proceedings. The proceedings were characterised as being in the nature of a test case, in that they had wider implications than the particular interests of the parties and involved novel elements of law and procedure in election litigation.
His Honour then referred to a number of authorities in which indemnity costs had been ordered because of the public interest or test case factors. Turning over the page, his Honour then set out his views in relation to the various matters relied upon. He says at about halfway through paragraph A:
There were two points advanced. First, the proceedings featured the unprecedented use of forensic testing in order to save the election. Secondly, the issues had wider ramifications than between the parties.
Obviously for present purposes, the first issue is not of relevance.
HIS HONOUR: But what do I get out of this, Mr Bennett? Yes, I observe that the wide discretion that the Court has as to costs was exercised in a particular way in the particular circumstances of that case. Do you say some principle emerges from this? If you do, what is it?
MR BENNETT: Your Honour, it is the principle that his Honour deals with at paragraph F. He says that these proceedings had “a wider effect than merely inter parties”. In that case, his Honour describes “trail-blazing” approaches and interpretation of electoral litigation. The relevant principle is this. In a case where, consistent with what Justice Brennan said in Nile v Wood, the Court has reached conclusions about important questions of law
in the interpretation of electoral legislation, that can be seen to have a public benefit going beyond the particular proceeding and that, in my respectful submission, is the case here.
The AEC itself recognised that there were profound questions of law involved which would have considerable precedent value and this decision in Towney is an example of an indemnity costs order being made upon bases, inter alia, that the court and the parties dealt with questions in a way.....of use to subsequent cases.
HIS HONOUR: Yes.
MR BENNETT: If your Honour pleases.
HIS HONOUR: Yes. Mr Kulevski.
MR KULEVSKI: Your Honour, I will be brief in response. My first point is a practical point, that there is no case in which indemnity costs have ever been ordered against the Commonwealth in this jurisdiction. The AEC v Towney case is the other case – is the only case where it has been ordered against the AEC. But moving to principle itself, it is true that Nile v Wood said the jurisdiction is a special one, not directly comparable to inter partes litigation, but when the majority in that decision spoke of Mrs Nile being indemnified, they were not talking about indemnity costs. They were talking about her being indemnified for the ordinary costs that she had to pay to Mr Wood.
HIS HONOUR: It was a case of a costs over against the Commonwealth, was it not, that is costs had been ordered against her. Could she recover those costs that she had been ordered to pay from the Commonwealth?
MR KULEVSKI: Yes, your Honour.
HIS HONOUR: Yes.
MR KULEVSKI: Yes, your Honour, so that is what the Court meant when it said indemnity. It did not mean indemnity costs. I will only deal very briefly with Baltic Shipping v Dillon. That is a common law claim relevantly, your Honour, but the reason indemnity costs were ordered in that case is because of a dogged resistance to admitting negligence that ultimately gave way and was seen to be as an unnecessary dogged resistance. It is far removed from the present case, but it does raise the fact that indemnity costs are traditionally almost always sought against an unsuccessful party for their conduct in the proceedings themselves.
HIS HONOUR: But Baltic Shipping stands for the proposition, I would have thought, that the discretion is not thus confined. The discretion is a wide one.
MR KULEVSKI: May it please the Court, we would accept that. If we are going to talk about that discretion, though, more relevantly we would say the observations of their Honours, Justices Gaudron and Gummow, in Oshlack are in point because they specifically raised the issue your Honour raised earlier about public interest litigation. First, their Honours said that such a notion should not be reviewed as deflecting attention from the particular statutory power and the facts of the case which is unexceptional. Your Honour, I may take you to it briefly just to make the point about the sort of cases that come before the High Court - - -
HIS HONOUR: Every electoral petition concerns matters of public interest.
MR KULEVSKI: Yes.
HIS HONOUR: Because it necessarily concerns an issue of ultimately government.
MR KULEVSKI: That is so.
HIS HONOUR: I would understand there to be three – at least three strands of argument against you. Mr Merkel points to the conduct involved. Perhaps unfairly it might be characterised as an argument that would use costs to punish or at least use costs to ensure that those suffering the consequences are not out of pocket. That is one strand. Second strand is this is official error. Third strand is matters raised in the petitions are questions of public interest and novel questions of law. Now, perhaps there are other strands of argument, but those are, at least, the dominant ones. What do you say in answer to them?
MR KULEVSKI: Your Honour, what I say in answer to all three of them is precisely how it was dealt with in Oshlack which is that cases like special leave that require undertakings because they are so important, matters of general importance and the other party may suffer costs, the undertaking is given on the ordinary basis because as their Honours, Justices Gaudron and Gummow, said in that case, indemnity costs are the conduct, disentitling conduct in the proceedings themselves.
That has been interpreted to mean that remedies such as exemplary damages and aggravated damages deal adequately with pre-proceedings conduct but the remedy for indemnity costs is specifically about the conduct in the proceedings themselves and it is always made to punish an
unsuccessful party effectively, or to compensate a successful party for conduct – for costs that would not have arisen but for that disentitling conduct.
The fact that the AEC lost some ballot papers, your Honour, everyone accepts that. That is just what brought us to the Court. The AEC acted promptly – I think everyone accepts. It took the carriage of the matters. There is no disentitling conduct in the proceedings. It sought to defray the costs of all the parties by preparing all the documents for the parties and in that respect, your Honour, we would submit that certainly that is not a basis for an indemnity costs order because that would mean any petition that is brought automatically out of official error is a basis for an indemnity costs order and that would tend to go against people deciding to front up and declare their errors and seeking the Court’s help through a petition.
Your Honour, we see no basis whatsoever for the scale to be other than the ordinary basis. There has been no conduct on the part of the AEC in the proceedings that would warrant it and if the order your Honour proposes to make in relation to general costs of all three petitions is made, that would adequately deal with the costs orders in the proceedings we would submit. May it please the Court.
HIS HONOUR: Yes, thank you, Mr Kulevski.
On 18 February 2014, I made orders answering certain questions which had been set down for separate trial in these three electoral petitions. I then ordered that the petitions stand over for further hearing today.
The Australian Electoral Commission (“the AEC”) submits that, in light of the answers I gave to the questions of law and the reasons which I gave for reaching those answers, I should now make final orders declaring absolutely void the election of six senators for the State of Western Australia to serve in the Senate of the Parliament of the Commonwealth which was held on 7 September 2013. No party submits to the contrary.
The principal remaining controversies between the parties focus on what orders should be made for costs. Should orders for costs be made in all petitions or only the petition of the AEC? On what scale should the costs be ordered to be paid?
In my opinion, there should be a declaration of the kind sought by the AEC in each of the petitions and I consider that each party to the petitions, other than the AEC, should have an order that the Commonwealth pay his or her costs. Section 360(1)(ix) and (4) of the Commonwealth Electoral Act 1918 (Cth) give the Court the power to order costs to be paid by the Commonwealth “where the Court considers it appropriate to do so”. Given that the declaration which is to be made in each petition is founded on official error by the AEC, this is such a case.
All of the respondents to the AEC petition submitted that, in at least the AEC petition, the Commonwealth should pay the costs of the parties, other than the AEC, on an indemnity basis. Principal development of that argument was made by counsel on behalf of Mr Wang, but the submissions advanced were both adopted by and supplemented by submissions made by other counsel.
In the end, the submissions seeking an order for costs to be assessed on a more generous basis than the usual basis of party/party costs were founded on several, not always distinct, strands of argument. Counsel for Senator Ludlam pointed to the nature and circumstances of the official errors which underpinned the declaration which must be made declaring the election absolutely void as supporting the making of an order for indemnity costs. First, it should be noted that it would not be right to use the power to award costs, or to award costs on a more generous scale in this case, as a means of punishing the AEC or its officers for the official error or errors which occurred. To the extent (if any) to which Senator Ludlam’s arguments were based on notions of punishment they should be rejected. Rather, the arguments advanced on behalf of Senator Ludlam are to be taken as asserting that the parties to the petition should not be left out of pocket in a case in which the relief which is granted is relief granted on account of official error.
I am not persuaded that the fact that official error founds the grant of relief in this case is, without more, reason enough to depart from the ordinary basis on which costs should be allowed and paid in relation to an election petition. Nor am I persuaded that the particular official errors founding the relief in this case or the circumstances in which those errors occurred constitute reason enough to depart from the ordinary rule.
Quite a deal of emphasis was given in argument, particularly on behalf of Mr Wang and on behalf of the first, third and fourth respondents to the AEC petition, to the fact that the litigation instituted and prosecuted by the election petitions raised questions of public interest and novel questions of law. Any election petition which leads to relief being granted is a matter of great public interest and importance. The novelty of the questions of law which were agitated in these petitions does not, of itself, set these petitions apart from many that have been litigated in this Court from the very earliest years of the Court.
In my opinion, no sufficient reason is shown for ordering that the costs which are to be allowed against the Commonwealth should be allowed on an indemnity basis or any basis other than the ordinary party/party footing.
In each petition, I consider that there should be an order that the Commonwealth pay the costs of each party, other than the AEC. In each petition, it is as well that there be an order that the deposit lodged by the petitioner should be returned to the petitioner.
I recognise that the parties have sought to be heard, but have not yet all been heard, about the form that the orders should take, but subject to such further submissions as counsel may wish to make about the form of orders, it would seem to me appropriate that in each petition there should be orders:
In addition, in each petition other than the AEC petition, subject to anything that counsel may say, I would further order that the petition otherwise be dismissed.
Now, do counsel seek to be heard about the forms of orders which I have proposed?
MR BARLOW: No, your Honour.
HIS HONOUR: Mr Lang?
MR LANG: No, your Honour.
HIS HONOUR: No. Very well, there will be the following orders: in each petition:
In addition, in each petition other than the AEC petition, there will be a further order:
Adjourn the Court.
AT 12.49 PM THE MATTER WAS CONCLUDED
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