Federal Court of Australia

Electoral Commissioner of the Australian Electoral Commission v Laming (No 3) [2023] FCA 1385

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 of the Court’s orders made on 9 August 2023 be stayed pending the determination of the appeal and cross-appeal in QUD384/2023.

2.    The respondent pay 60% of the applicant’s party and party costs of the proceedings, on a lump sum basis.

3.    The quantification of the lump sum payable by the respondent to the applicant be referred to a Registrar of the Court for determination if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)

RANGIAH J:

1    On 9 August 2023, in Electoral Commissioner of the Australian Electoral Commission v Laming (No 2) [2023] FCA 917, I found that the respondent had made three Facebook posts which contravened s 321D(5) of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act). I made a declaratory order and ordered that the respondent pay three pecuniary penalties totalling $20,000.

2    The applicant now seeks an order that the respondent pay the applicant’s costs of the proceeding.

3    The respondent submits that I should not proceed to determine costs at this stage as an appeal and cross-appeal against my orders is pending, and the result may affect the appropriate orders for costs. The respondent argues that it would be inefficient to make orders for costs which might have to be revisited or modified by the Full Court or upon remittal.

4    As the applicant has submitted, there is clear authority disapproving a first instance judge deferring the determination of costs pending the determination of an appeal. In Dunstan v Rickwood (No 2) [2007] NSWCA 266, McColl JA observed at [54] that, “A primary judge should always rule on the costs of the trial…”. I am not satisfied that any good reason has been demonstrated for departing from that principle.

5    The respondent’s next submission is that there should be no order as to the costs of the proceedings. The respondent submits that:

(a)    Although the applicant sought penalties totalling $100,000, the penalties imposed totalled only $20,000;

(b)    the respondent had offered to pay a penalty of $6,000 before the proceeding was commenced and had offered to issue an apology;

(c)    the applicant engaged in disentitling conduct including concealing or withholding information;

(d)    the applicant achieved only partial success, since the applicant had alleged that five Facebook posts contravened s 321D(5) of the Electoral Act but only three were held to have done so.

6    The applicant submits that he achieved substantial success in the proceeding. He denies having engaged in any disentitling conduct. The applicant points out that the respondent engaged in conduct which wasted substantial costs, including terminating the retainer of his lawyers after the trial had commenced, unsuccessfully applying for an adjournment, and unsuccessfully seeking leave to withdraw admissions. The applicant submits that the fact the respondent was self-represented for part of the hearing should not affect the question of costs. The applicant contends that the appropriate order is for the respondent to pay the whole of the applicant’s costs on a party and party basis.

7    The principles concerning the exercise of the discretion to award costs are well established. They include:

(a)    Section 43 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) confers a broad discretion on the Court to award costs in all proceedings: El-Debel v Micheletto (Trustee) (No 2) [2021] FCAFC 146 at [2].

(b)    The discretion is unconfined, but must be exercised judicially, that is according to relevant considerations and taking account of the contextual features and facts of the litigation: El-Debel at [2].

(c)    By far the most important factor is the result of the litigation: a successful litigant is generally entitled to an award of costs: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [66].

(d)    The Court may depart from the usual rule if there is some disentitling conduct by the successful party, such as unreasonable delay, or lack of cooperation: Oshlack at [69]; Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [25].

(e)    Where the result is mixed, in the sense that a party has succeeded on some issues and not others, the Court may adjust the costs award so that the party does not recover its costs on the issues on which it has been unsuccessful, or even order that the party pay the other party’s costs on those issues: Les Laboratoires Servier v Apotext Pty Ltd (2016) 247 FCR 61; [2016] FCAFC 27 at [301]; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2007] FCAFC 119 at [11]; Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) (2005) 225 ALR 569 at 570; [2005] FCA 1400.

(f)    Ordinarily, however, the Court should not attempt to differentiate between issues. Unless a group of issues took up a substantial amount of time, it will usually be appropriate to award the costs of the proceeding to the successful party: Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 at [6] and [7]; see also Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192; [2015] HCA 53 at [6].

(g)    In exercising the discretion to order costs, the Court must take into account any failure to conduct the proceeding in a way that is consistent with the over-arching purpose of facilitating the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: s 37N(4) of the Federal Court Act; LFDB v SM (No 2) [2017] FCAFC 207 at [7].

(h)    A legitimate public interest in the importance of the issues resolved is a factor that may be taken into account when exercising the discretion conferred by s 43 of the Federal Court Act: Fisse v Secretary, Department of the Treasury & Anor (No 2) (2008) 253 ALR 52; [2008] FCAFC 200 at [9].

(i)    The principles above apply to a litigant in person, subject to the following qualifications: a litigant in person is generally not entitled to obtain any recompense for the value of his or her time spent in litigation (Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 at [1]); and Courts are generally more reluctant to make an order for indemnity costs against a litigant in person: Ogawa v University of Melbourne (No 2) [2004] FCA 1275 at [42].

8    As the applicant was successful in obtaining a declaratory order and orders for pecuniary penalties, the appropriate starting point is for the respondent to pay the costs of the proceeding.

9    I reject the respondent’s submission that the applicant concealed or withheld relevant information. I accept that the applicant ought to have placed the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2018 before the Court from the outset of the trial, but I do not consider that the applicant’s failure to do so created additional costs. I do not accept that the applicant engaged in any disentitling conduct.

10    While I accept the applicant’s submission that the respondent’s conduct of the proceeding resulted in additional and unnecessary costs, the conduct will ultimately be reflected and taken into account in the assessment of costs. For example, the respondent will have to pay a part of the costs of his unsuccessful application for an adjournment.

11    The applicant has not been entirely successful. The applicant failed in respect of two of the five Facebook posts it alleged contravened s 321D(5) of the Electoral Act. In addition, there was a substantial contest as to the appropriate quantum of penalties, and the applicant was unsuccessful in obtaining anything like the total penalties he contended for.

12    In Dodds Family Investments (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261, the Full Court observed at 272:

Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory, and the exercise of the discretion will often depend upon matters of impression and evaluation.

13    In the present case, while the applicant achieved substantial success, it is appropriate to apportion costs to reflect the issues the applicant failed upon. In the circumstances, it would not be just for the respondent to pay the whole of the applicant’s costs in view of the respondent’s partial success. The appropriate order is that the respondent pay 60% of the applicant’s costs of the proceeding.

14    The applicant seeks an order that the matter be referred to a registrar to make a lump sum costs order. That order is appropriate.

15    I note the applicant informed the Court that he will not proceed with the assessment of costs pending the outcome of the appeal.

Associate:    

Dated:    10 November 2023