Electoral Commission of Queensland v Awabdy (No 2) [2018] QSC 52

SUPREME COURT OF QUEENSLAND CITATION: Electoral Commission of Queensland v Awabdy (No 2) [2018] QSC 52 PARTIES: ELECTORAL COMMISSION OF QUEENSLAND (applicant) v RYTA ANGELA AWABDY (respondent) and ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (intervenor) FILE NO/S: SC No 7744 of 2017 DIVISION: Trial PROCEEDING: Application for costs DELIVERED ON: 14 March 2018 DELIVERED AT: Brisbane HEARING DATE: Written submissions JUDGE: Jackson J ORDER: The respondent pay the applicant’s costs of the proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – DEPRIVING SUCCESSFUL PARTY OF COSTS – NATURE OF PROCEEDING – PUBLIC INTEREST OR DUTY – where applicant successful in application – where respondent submits hearing of matter was in public interest – whether usual order as to costs should be made Civil Proceedings Act 2011 (Qld), s 15 Uniform Civil Procedure Rules 1999 (Qld), rr 681(1), 702(1) Gladstone Area Water Board & Anor v AJ Lucas Operations Pty Ltd [2015] QSC 52, cited Martin v Electoral Districts Boundaries Commission (No 2) (2017) 224 LGERA 190, cited Oshlack v Richmond River Council (1998) 193 CLR 72, cited University of Wollongong v Metwally [1985] 1 NSWLR 722, cited COUNSEL: TJ Bradley QC with NH Ferrett for the respondent SOLICITORS: Clayton Utz for the applicant ClarkeKann for the respondent -- 1 of 4 -- 2 Jackson J: [1] On 1 March 2018 I made, on the originating application in this matter, a declaration to the effect that ss 290 and 291 of the Electoral Act 1992 (Qld) are not inconsistent with ss 314AB and 314AC of the Commonwealth Electoral Act 1918 (Cth) within the meaning of section 109 of the Constitution.1 [2] The applicant applies for an order that the respondent pay the applicant’s costs of the proceeding to be assessed on the standard basis. [3] The relevant statutory provisions are s 15 of the Civil Proceedings Act 2011 (Qld) and rules 681(1) and 702(1) of the Uniform Civil Procedures Rules 1999 (Qld). Under rule 681(1) the costs are to follow the event unless the court orders otherwise. [4] In Gladstone Area Water Board v AJ Lucas Operations Pty Ltd I said: “Although UCPR, r 681(1) speaks of costs following the ‘event’, that is not a word which is given any particular meaning in either the UCPR or other statutory provisions. However, the use of that word in the context of the court’s power to make an order for costs has a rich history, explained in the context of UCPR, r 681(1) (then numbered r 689(1)) by McPherson JA in Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3). For the purpose of making an order for costs, the court has the power to treat each separately determined issue as an event. The power to separate the events in a proceeding for the purpose of making an order for costs is further informed by UCPR, r 684, under which the court may make an order in relation to a particular question in or particular part of a proceeding.”2 (footnote omitted) [5] The substantial event in the present proceeding was the application for a declaration that ss 290 and 291 of the Electoral Act 1992 (Qld) are not inconsistent with ss 314AB and 314AC of the Commonwealth Electoral Act 1918 (Cth), within the meaning of s 109 of the Constitution. Although the applicant sought a second declaration as to the obligations of the respondent to provide disclosure of gifts which was not made, in my view, there is no question that the applicant was a successful party in terms of costs following the event. [6] The respondent submits that the usual order that costs follow the event should not be made in this proceeding, because there was a public interest in ascertaining whether the relevant sections were inconsistent within the meaning of s 109 of the Constitution. [7] In detail, the respondent submits that: (a) the case was structured, within the proper bounds of resort to the courts, to obtain a decision that would be of benefit not only to the applicant and the respondent, but to all participants in the Queensland political system and to the public more generally. By its nature the litigation was concerned with public rather than private rights. The broader significance of the subject matter was indicated by the intervention of the Attorney-General; 1 Electoral Commission of Queensland v Awabdy [2018] QSC 33. 2 [2015] QSC 52, [11]. -- 2 of 4 -- 3 (b) the respondent's position was motivated by a desire to ensure the operation of the Commonwealth laws were not impaired by the Queensland provisions. The outcome of the litigation was likely to affect the position of many individual donors to registered political parties (and associated entities); (c) the basis of the respondent's defence to the relief sought was arguable and raised (and resolved) significant issues as to the interpretation and administration of the statutory provisions relating to the conduct of registered political parties and those who donate to them; (d) in this way it may be said the parties have contributed to the proper understanding of the law. The respondent properly participated in the proceeding to advance a legitimate public interest in the extent of disclosure required by the relevant laws; (e) the respondent was a public officer of a registered political party. Her role and her participation in the litigation involved no issue of private gain; (f) the respondent did not take points which, in ordinary private litigation, might have been expected. For example, the respondent refrained from raising any discretionary defence as to the principal declaration sought. It would have been open to the respondent to contend that the involvement of criminal considerations made this an unsuitable case for declaratory relief, it being accepted that "[t]he court will only grant declaratory relief in respect of the criminality of a proposed course of conduct in exceptional circumstances"; (g) by foregoing such matters and cooperating with the applicant, the respondent minimised the extent of dispute in the proceeding and facilitated an outcome of benefit to the parties and the wider community. [8] Although in some contexts the “public interest” may be a relevant consideration in exercising the discretionary power to order a party to pay another party’s costs of a proceeding,3 there are difficulties associated with the concept of “public interest litigation”.4 However, whatever the scope of the discretionary power to order costs in “public interest litigation”, when a constitutional challenge to the validity of legislation is raised in private litigation, “costs appear invariably to follow the event”.5 [9] It is not necessary to deal with all the respondent’s points. But a few observations should be made. [10] First, the respondent’s hypothetical suggestion that it might have raised other defences to the application but chose not to do so is not a matter that would ordinarily be relevant to the question of costs upon the issues that were decided in this proceeding. [11] Second, the respondent’s submission that the involvement of the Attorney-General supports the suggestion that she should not be ordered to pay costs is contrary to the usual practice previously mentioned that when a constitutional challenge to the validity of legislation is raised in private litigation, costs follow the event. The involvement of the Attorney-General (who is not entitled to obtain an order for costs) is a product of the statutory right to intervene in a constitutional case by virtue of s 78A of the Judiciary Act 1903 (Cth). 3 Oshlack v Richmond River Council (1998) 193 CLR 72, 89 [42]-[44], 124 [136]-[137]. 4 Oshlack v Richmond River Council (1998) 193 CLR 72, 98-100 [71]-[75]. 5 University of Wollongong v Metwally [1985] 1 NSWLR 722, 728. -- 3 of 4 -- 4 [12] Third, in my view, the role of the respondent as an agent of a political party is not a reason not to make an order for costs against her. In a recent South Australian electoral case, Martin v Electoral Districts Boundaries Commission (No 2)6 the Full Court of the Supreme Court of South Australia said: “The general rule to ensure justice as between the parties is that costs will follow the event. Notwithstanding the subject matter of the appeal, there is no reason to depart from that general rule. The Labor Party and the Liberal Party are the major political parties in this State. They engage in election campaigns funded by substantial grants of public money and substantial private donations.”7 [13] Fourth, to the extent that the respondent’s submissions in effect characterise the present case as an electoral “test case” which should on that account be treated differently on the question of costs, it was also said in Martin that: “Ordinarily, when a party intends to submit that a matter comprises a test case or public interest case in which each party should bear its own costs regardless of success, that party should inform the Court and the opponent beforehand. This affords an opportunity for the Court to consider whether an order about costs should be made in advance regardless of the result of the appeal. It also avoids a party awaiting the result of the appeal and then submitting that costs should follow the event if the party is successful and submitting that each party should bear its own costs if the party is unsuccessful.”8 [14] In my view, there is nothing in the present case that would justify departing from the usual order for costs that costs follow the event. Accordingly, the order should be that the respondent pay the applicant’s costs of the proceeding, which by rule 702(1) will be assessed on the standard basis without the need for expressly making an order to that effect. 6 (2017) 224 LGERA 190. 7 (2017) 224 LGERA 190, 193 [10]. 8 (2017) 224 LGERA 190, 193 [12]. -- 4 of 4 --