Tony Wiltshire v Malcolm Turnbull & Ors [1998] FCA 111 (27 February 1998)

Last Updated: 2 March 1998

FEDERAL COURT OF AUSTRALIA

COSTS - Parliamentary elections (Cth) - Constitutional Convention election - where petition seeking orders that the election of certain candidates be declared void dismissed - whether power to order costs to be paid by the Commonwealth should be exercised.

Commonwealth Electoral Act 1918 (Cth) ss 356, 370

Constitutional Convention (Election) Act 1997 (Cth) ss 157(1)(k), 157(4), 166(1)

Hudson v Lee [1993] HCA 58; (1993) 177 CLR 627, appl

Nile v Wood [1988] HCA 30; (1988) 167 CLR 133, appl

TONY WILTSHIRE v

MALCOLM TURNBULL & ORS

NG 5 of 1998

JUDGE: DAVIES J

DATE: 27 FEBRUARY 1998

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 5 of 1998

BETWEEN:	TONY WILTSHIRE PETITIONER
AND:	MALCOLM TURNBULL first Respondent doug sutherland second respondent australian electoral commission third respondent commonwealth of australia fourth respondent

CORAM:	DAVIES J
DATE:	27 februARY 1998
PLACE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The fourth respondent pay the costs of the first and second respondents.

2. The petitioner and the third and fourth respondents abide their own costs.

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	NG 5 of 1998

BETWEEN:	TONY WILTSHIRE PETITIONER
AND:	MALCOLM TURNBULL first Respondent doug sutherland second respondent australian electoral commission third respondent commonwealth of australia fourth respondent

CORAM:	DAVIES J
DATE:	27 februARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

On 16 January 1998, I gave judgment dismissing a petition brought by Tony Wiltshire under the Constitutional Convention (Election) Act 1997 (Cth) ("the Act") which sought orders that the election to the Constitutional Convention of the first and second respondents, Malcolm Turnbull and Doug Sutherland, be declared void. I reserved the question of costs. I have since received written submissions from the parties on this matter.

The first and second respondents have both sought an order with respect to their costs. The unsuccessful petitioner, Tony Wiltshire, has also sought an order as to costs. No order was sought by the third and fourth respondents who were interveners.

Courts have a wide discretion with respect to costs but ordinarily make an order that the unsuccessful party pay the costs of the successful party. Section 157 of the Constitutional Convention (Election) Act 1918 contains three provisions with respect to costs. First, s 157(1)(k) empowers the Court "to award costs". Secondly, s 157(4) provides:

"The power of the Court under paragraph (1)(k) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so."

Thirdly, s 166(1) specifically provides:

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

The issue before me is not whether an order should be made in favour of Messrs Turnbull and Sutherland. Plainly it should. The issue is whether the order should be made against Mr Wiltshire or against the Commonwealth.

I should say at once that I do not think that the Commonwealth of Australia has done any relevant act of such a nature as, under the ordinary discretionary rules of the Court as reflected in s 157(1)(k), would attract an order for costs against it. The question in issue is whether the order should be made having regard to the provisions of s 157(4).

In Nile v Wood [1988] HCA 30; (1988) 167 CLR 133 at 142, Brennan J expressed the following view with respect to equivalent provisions of the Commonwealth Electoral Act (Cth):

"In my opinion the discretion may properly be exercised when the proceedings have arisen because an officer of the Commonwealth has failed properly to perform his function or when the proceedings have resulted in some public benefit. In such cases it may be appropriate that the public purse ought bear the costs or some of them. I do not suggest that these categories are exhaustive, but it would not be appropriate to exercise the discretion whenever a litigant chooses to put the validity of an election to the test. Some warrant for imposing a liability on the funds of the Commonwealth must appear before it is appropriate to make an order."

However, Deane & Toohey JJ took a wider view. At 143, their Honours said:

"It is a general power conferred upon the Court of Disputed Returns, in the exercise of its special jurisdiction, to order that the Commonwealth pay the costs of a party whenever the Court considers it appropriate so to do. We would not attempt to confine it by definition beyond saying that it 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 connexion with an electoral petition."

In the result, the Court, Brennan J dissenting, ordered that the Commonwealth pay the costs which the unsuccessful petitioner had been ordered to pay to the successful party.

An order against the Commonwealth was also made by Gaudron J in Hudson v Lee [1993] HCA 58; (1993) 177 CLR 627. At 634, her Honour concluded:

"When regard is had to ss 356 and 370, it is to be expected that there will be cases where, as here, a person who has been declared duly elected is faced with a petition raising matters which reflect on him or her personally, but which are outside the scope of the Act. The only sanction against a petition of that kind is the power to order costs against the petitioner. However, that course is not likely to assist or to appeal to an elected representative if, as here, the petitioner is a person of limited means who has taken a course which, without the benefit of legal advice, he might reasonably regard as open to him. In these circumstances, it is, in my view, fair and just that the Commonwealth pay the respondent's costs of the petition and of this application."

That case has some similarities with the present one for it is not in dispute that the petitioner, Tony Wiltshire, is a person of limited means who has not been legally represented and that Messrs Turnbull and Sutherland may have difficulty in recovering any moneys under an order for costs made against him. It is for that reason that they seek an order against the Commonwealth.

Mr K M Connor of counsel, who appeared for the Commonwealth of Australia, submitted that the power of the Court under s 157(4) of the Constitutional Convention (Election) Act was a power to be exercised only where special circumstances existed to make it appropriate to do so. Mr Connor submitted that, for an order to be made, something must emerge which took the case out of the ordinary.

In my opinion, that was not the interpretation which the High Court of Australia gave to the meaning of the equivalent provisions in the Commonwealth Electoral Act. It appears to me that the decisions in Nile v Wood and Hudson v Lee proceed upon the assumption that, if there is a dispute about an election, then it is in the public interest and in the interests of democracy that that dispute be promptly resolved by the Court. The Commonwealth Electoral Act and the Constitutional Convention (Election) Act both contain time limits with respect to the filing of petitions and, under the latter Act, the time prescribed by s 150 is particularly short, 14 days. This means that, if a petition is to be lodged, it must be lodged immediately and probably before mature consideration can be given to all the issues which the petition might raise.

In the present case, the principal issue which was debated arose out of a four page document which was called a "liftout" and which was widely distributed to the Australian people by being placed in newspapers and by other means. It was distributed between the time that notice of the election issued and the time of the closing of the polls. The Department of Prime Minister and Cabinet was responsible for its contents and for its issue. On the fourth page, the liftout set out a brief synopsis of the views of the group entitled "Australians for a Constitutional Monarchy", of which Mr Sutherland was the leading candidate, and a synopsis of the views of the group, the "Australian Republican Movement", of which Mr Turnbull was the leading candidate. It appears that some independent candidates including the petitioner, Tony Wiltshire, considered that independent candidates were disadvantaged by the prominence given to these two groups.

In my reasons for judgment, I expressed the view that neither Mr Malcolm Turnbull nor Mr Doug Sutherland was responsible for the liftout and I further expressed the view that the distribution of the liftout was not part of the conduct of the election but was part of a program undertaken by the Government to educate the public as to the nature of the issue on which they were to be ultimately called upon to vote in a referencum. I expressed the view that voters would have been asssisted by the document, not misled by it. I held that the grounds relied upon in the petition, including the ground that Messrs Turnbull and Sutherland had taken part in the conduct of the election, had not been established.

I would not award costs against the Commonwealth under the ordinary rules as to costs, for I would not attach any blame to the Commonwealth with respect to the liftout, it being a helpful, informative document issued in the public interest. Nevertheless, I note that it was the liftout issued by the Department of Prime Minister and Cabinet which gave rise to the complaint that independent candidates had been disadvantaged. It was this complaint which led to the petition. There was an element of public interest in having the matter promptly resolved by the Court. In the circumstances, I think it is appropriate to order that the Commonwealth pay the costs of the first and second respondents. I shall so order.

The third and fourth respondents should abide their own costs. Tony Wiltshire should also meet his own costs. His allegations agains Messrs Turnbull and Sutherland were unjustified.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date: 27 February 1998

	The petitioner appeared in person.
Counsel for the 1st Respondent:	J.A. McCarthy QC
Solicitor for the 1st Respondent: Counsel for the 2nd Respondent: Solicitor for the 2nd Respondent: Counsel for the 3rd Respondent: Solicitor for the 3rd Respondent: Counsel for the 4th Respondent: Solicitor for the 4th Respondent:	Fisher Grogan J.C. Kelly A. Harvey Sutton & Co. R.M. Henderson Australian Government Solicitor K.M. Connor Australian Government Solicitor
Date of Hearing:	15 January 1998
Date of Judgment:	27 February 1998