Federal Court of Australia

Bradlow v Australian Electoral Commissioner [2025] FCA 1172

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 15 July 2025 be dismissed.

2.    The matter be listed for case management hearing at 9:30am on 29 October 2025.

3.    The applicants pay the respondents’ costs of this application as agreed or assessed.

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

REASONS FOR JUDGMENT

RAPER J:

1    The applicants, Ms Lucy Bradlow and Ms Bronwen Bock, jointly sought to nominate as a job-share “candidate” or, alternatively, as job share “candidates” to hold or occupy one office of Senator for Victoria in the 2025 Federal Election. The first respondent, the Australian Electoral Commissioner, has informed the applicants that, in its view, the Commonwealth Electoral Act 1918 (Cth) requires that only one person may nominate as a candidate for the Senate or House of Representatives. Accordingly, any nomination by multiple individuals for one candidacy, if made, would require the AEC to reject that nomination. The applicants dispute this construction and filed an application in this Court on 12 February 2025 seeking declarations that the Constitution does not preclude two persons from occupying the one office of Senator, and that the Electoral Act does not authorise the Commissioner to refuse to accept the applicants’ joint nomination for one office of Senator. Alternatively, the applicants seek a declaration that the Electoral Act is invalid to the extent that it authorises the Commissioner to refuse to accept their joint nomination. The applicants also seek injunctive relief. The application was brought against the AEC and the second respondent, the Commonwealth, was joined as a party to this proceeding on 12 March 2025.

2    By interlocutory application filed on 15 July 2025, the applicants seek an order that the maximum costs between the parties that may be recovered in the proceeding are $11,000, pursuant to r 40.51 of the Federal Court Rules 2011 (Cth), and that there be no order as to costs of this interlocutory application. In support of the interlocutory application, the applicants relied on the affidavits of Ms Bronwen Evelyn Bock dated 11 July 2025, Ms Lucy Caroline Bradlow dated 11 July 2025, and Ms Susan Elizabeth Price dated 14 July 2025.

3    The Commonwealth and the AEC oppose the application on the basis that the proceeding does not warrant a maximum costs order being made. They submitted that the application should be refused or, alternatively, that the maximum costs order should be set at $132,000 (with respect to the Commonwealth’s costs) and $46,000 (with respect to the AEC’s costs). Each representing approximately half of the estimated likely costs to be incurred (not taking into account the substantial costs that have already been incurred in this matter). Each respectively relied upon the affidavits of Ms Danielle Christy Gatehouse affirmed on 11 August 2025 and of Ms Brooke Marie Griffin affirmed on 11 August 2025. The Commonwealth also tendered aspects of the applicants’ filed evidence namely, annexure SEP10 to the affidavit of Ms Price dated 28 February 2025, which comprises a letter dated 31 January 2025; [4]–[5] of the affidavit of Ms Bradlow dated 14 March 2025 and [4]–[7] of the affidavit of Ms Bock dated 14 March 2025.

4    The issues for this Court to determine are whether this Court should exercise its discretion to make a maximum costs order, pursuant to r 40.51 of the Federal Court Rules and if so, in what amount.

5    For the reasons which follow, I am not satisfied that a maximum costs order should be made in this case.

6    This Court may make an order specifying the maximum costs as between the parties that may be recovered for the proceeding under r 40.51 of the Federal Court Rules. The parties agreed, at a high level, as to the relevant principles governing applications of this kind. The discretion is not expressly confined but must be exercised judicially. The relevant starting point is to elucidate the purpose of the power. As observed by Thawley J in Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2021] FCA 435 at [7]:

…the principal purpose of r 40.51(1) (and its predecessor, O 62A r 1…) was not so much a desire to limit the exposure to an adverse costs in complex and lengthy commercial litigation, but rather to address concerns as to access to justice, public interest, and a desire to limit the costs of all parties, particularly in less complex and shorter cases – see: McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 2) (2019) 135 ACSR 278 at [71] (Beach J); Houston v State of New South Wales [2020] FCA 502 at [19] (Griffiths J).

7    With this purpose as the focal point, a number of indicia have been recognised by previous authority as informing the exercise of the discretion. They include the timing of the application, the complexity of the factual or legal issues raised in the proceeding, the nature of relief sought and the quantum of the damages claimed, whether the applicant’s claims are arguable and not frivolous or vexatious, the undesirability of forcing the applicant to abandon the proceedings, whether there is a public interest element to the case, the amount of costs likely to be incurred, the length of the proceedings overall and the trial length, the interests of the parties in the litigation, the basis upon which the legal representatives are acting, whether the applicant has a pecuniary interest in the outcome and the apparent merit of the proceeding: Corcoran v Virgin Blue Airlines [2008] FCA 864 at [6]; AICR at [8]-[9].

8    I reject the applicants’ submission that the provision’s purpose is to “address a concern that prohibitive litigation costs would deny potential access to justice for persons of ordinary means, where the fear of exposure to legal costs was a deterrent”, purportedly arising from Beazley J’s reasoning in Sacks v Permanent Trustee Australia Ltd  [1993] FCA 502; 45 FCR 509, 511-512, cited by McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd (No 2) [2019] FCA 215; 135 ACSR 278 at [71] per Beach J. Rather, Beazley J sets out, in the cited paragraphs, the concerns of a former Chief Justice of this Court with respect to the costs of litigation. Those concerns were said to be possibly alleviated by such power, where according to the former Chief Justice, a ceiling could be defined by reference to both party/party costs and by reference to solicitor/client costs in certain very small commercial cases. Accordingly, in order to address the potential access to justice issue, a ceiling would be imposed, referable to party/party and solicitor/client costs. To pluck out a portion of the Chief Justice’s view, without the particular qualifier and reference to the type of small commercial case, is apt to mislead.

Why the Court should not exercise its discretion and make a maximum costs order

9    The following matters militate against the Court making a maximum costs order.

The previous costs order does not assist because they were made in different circumstances

10    First, the previous order limiting costs was made in different circumstances. The applicants submitted that a relevant factor in determining whether to make the order was that Katzmann J had dealt with such an application before the last election and made an order limiting costs. It was submitted that this should be taken into account because in effect there “was no relevant change in circumstances which would warrant any departure from, in principle, the order made by Katzmann J”. I am of the view that the applicants have ventilated this issue early and twice, as such an application requires. However, it is my view that the fact that the previous costs order was made does not assist the applicants’ argument for why a maximum costs order ought to be made now.

11    The order was to the effect that, upon the condition of the Commonwealth being joined as a party, neither the Commonwealth nor the applicants would apply for costs subject to the following provisos:

(a) this order does not extend to any appeal or removal proceeding; and

(b) in the event that nominations for the next federal election close before the applicants’ substantive application is heard and determined, the Commonwealth may contend that the application is moot and seek its costs of any dispute about the continued utility of the application.

12    The reason why the AEC’s costs did not form part of this previous application or orders was because an agreement had been reached with them beforehand on the following terms: That the parties should bear their own costs of the proposed nomination application in the Federal Court, but not to any appeal or removed proceeding. Their agreement was conditional upon the application being commenced within 28 days of their letter (dated 16 January 2025), or before the issue of writs for a general election (whichever first occurred). Further, the AEC reserved the right to contend that the application is moot, and to seek costs of any dispute about the continued utility of the application, if nominations closed before any application was heard and determined.

13    Subsequent to Katzmann J making the order on 12 March 2025, two material events occurred. First, it came to light that Ms Bradlow was potentially a dual-citizen and had not disclosed this fact to any of the parties. Ms Bradlow was undertaking enquiries of her own in South Africa but there was no certainty as to when the issue would be resolved. It was this fact that caused the Court, on 25 March 2025, to make orders vacating the preparation for an expedited hearing. It was not possible for the proceeding to proceed until that issue had been resolved. By this time the respondent parties and the Court had expended significant time and resources with respect to the preparation of this matter for an expedited hearing without any knowledge of this material fact. As at 25 March 2025, the Commonwealth had incurred costs of $218,455. The evidence reveals that the AEC has subsequently indicated that if it had been made aware of the issue of Ms Bradlow’s potential South African citizenship prior to the proceedings being commenced, the Commissioner would not have agreed to bear his own costs. Secondly, three days after the order was made, the election was called on 28 March 2025, for a 3 May 2025 election.

14    Therefore, it cannot sensibly be submitted that there was no change of circumstances that ought to persuade the Court that it is now appropriate for the Commonwealth and/or the AEC to seek its costs. Further, it cannot be submitted that the circumstances are in any way like those that were before Katzmann J. Account must also be taken of the fact that Katzmann J and the respondent parties were unaware of the fact that Ms Bradlow was potentially ineligible for nomination. It is not in dispute that the previous costs arrangement (being, the agreement between the applicants and the Commissioner, and as ordered by Katzman J) has ceased to have effect.

There are both public and private interests in the proceedings

15    Secondly, whilst there is a public interest dimension to the proceeding, the applicants have a private interest in it and the factor is tempered by the merit of the claim.

16    Where a proceeding has a public interest dimension, this may be taken into account in the exercise of the Court’s discretion. However, the existence of such a dimension in an arguable case is not necessarily decisive, and is not of itself sufficient to prevent the usual costs order being made: Corcoran at [45]. Further, the assessment of this factor is not without difficulty, as the category of “public interest litigation” is a “nebulous concept”: Houston v State of New South Wales [2020] FCA 502 at [24], citing Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [30]. It could be said that the majority of cases before this Court have a public interest dimension. As the authorities recognise, proceedings are not to be characterised as public interest litigation merely because they involve “elements of public law or the judicial review of the exercise of executive power” or “persons other than the applicant may have an interest” in the legal determination of the underlying issue: Houston at [26] and [27].

17    The applicants articulated the public interest aspect of their case in the following ways. The alleged immediate public interest was that the determination of this issue will inform the scope of the free choice of Victorian electors at the upcoming federal election (though events have overtaken the basis for this submission). However, no doubt it can be pressed on the basis of the prospect of the applicants being candidates at the next election. The wider public interest is said to be that this Court’s decision on this issue will inform other potential nominees (including people with carer’s responsibilities and other people who would not perform the role fulltime) in the future who seek to nominate for public office to serve the public. Lastly, it was submitted that the proceeding is a public interest proceeding because it would resolve issues of law determining the extent to which persons can participate in our constitutional system of government.

18    I accept that there is a public interest dimension in the proceeding but, I also take into account that the applicants have a private interest in its determination. No doubt the applicants seek to advance their political aspirations and for which they will receive, amongst other things, remunerative benefits. Further, as the authorities recognise, the degree of the public interest in any given case depends, at least in part, on the underlying merit of the arguments: AICR at [32]. Here, as articulated in Houston at [29], the question is not whether there is a segment of the community which does not accept the validity of the impugned legislation, but whether there is a public interest in litigating what can reasonably be described as a broad and novel interpretation of both the Electoral Act and the Constitution. As a consequence, this is the only factor which goes in the applicants’ favour in making the order but it is tempered by the fact that the applicants have private interests in the proceedings and whilst the claim is arguable, it is novel and not strong.

19    To return the focus to the purpose of the provision, it concerns ensuring access to justice by avoiding disproportionality of costs and complexity in proceedings. Notably, as adverted to by the Chief Justice in Sacks, the power was, in part, an attempt to encourage efficiency (by creating a ceiling or budget so that the management of the case might be tailored according to its economic limits), consistent (now) with the obligations under s 37M of the Federal Court Act 1976 (Cth). Accordingly, the question of complexity of the litigation looms.

There is complexity to this proceeding which wards against making the order

20    Thirdly, there will be (likely) factual and legal complexity in the resolution of the applicants’ claims.

21    Where a proceeding involves factual and legal complexity, it may count as a factor which goes against the making of a maximum costs order. The applicants submitted that the proceedings involve some complexity but that they are hopeful that there will not be factual complexity (by agreeing the facts) rather that the complexity is of a legal kind. They speculated as to the length of hearing but there was no evidence as to how long it is likely to take.

22    The applicants’ primary grounds are articulated in their Concise Statement in the following way:

6.1 The Constitution does not preclude two persons from holding or occupying the office of ‘Senator’, and does not limit the power of the Commonwealth Parliament to provide for two persons to concurrently and jointly hold or occupy the one office of Senator.

6.2. The legislative power of the Parliament to provide for the qualifications of senators is impliedly limited such that any disqualification must be reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally-prescribed system of representative and responsible government.

6.3. There is also a limit on the legislative power of the Parliament, and a requirement for a minimal provision by the Parliament, such that the laws made under the Constitution to prescribe the method of choosing senators must ensure that senators for each State are ‘directly chosen by the people of the State’ (for the purposes of s 7 of the Constitution).

23    The applicants have filed at least 31 lay affidavits, two expert reports and served on the respondents a tender bundle of 822 pages, in support of the originating application. Whilst it appears likely (and highly desirable) that the parties will precede on the basis of agreed facts, it must be accepted that there is legal complexity in their arguments. There are substantial, complex and novel issues to be resolved. There is also likely to be factual complexity (regardless of agreement) because there will be argument regarding the inferences to be drawn from them for the purpose of resolving the proportionality issue. The purpose of considering the complexity issue arises, in part, as adverted to above, to consider the purpose of r 40.51 - ensuring access to justice by avoiding disproportionality of costs and complexity in proceedings.

24    I accept that whilst, ordinarily, complexity wards against making a maximum costs order, there has been recognition that “it may be appropriate” to make such an order even though the case involves complex issues and more than moderate amounts of money: Hanisch v Strive Pty Ltd [1997] FCA 303; 74 FCR 384, 387 per Drummond J, citing Woodlands v Permanent Trustee Co Ltd [1995] FCA 548; 58 FCR 139 and Sacks at 512; see also Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165; 170 LGERA 22, [16], [21], [25] per Preston CJ. However, the authorities emphasise that the principal object of the provision is directed towards capping costs in matters at the lower end of the legal and factual complexity spectrum: Sacks at 512-513 per Beazley J. It is my view that the complexity of this matter weighs against making the order.

There is an arguable, though not strong, case

25    Fourthly, for the purposes of this application, however, I am prepared to accept that the applicants’ claims are at least arguable. The applicants submit that the Concise Statement articulates an arguable case, sufficient to warrant the making of the order. For the reasons already stated, the applicants’ claims have been articulated broadly in a concise statement. However, the claims are imprecise and novel and, on their face do not appear to be very strong. This matter goes some way in support of the applicants’ contention, but it is limited.

The applicants will not be forced to discontinue but rather will choose not to take the financial risk if the orders are not made

26    Fifthly, this matter has factual novelty. Here, the two individual applicants do not claim they will be “forced” to discontinue the proceedings because of financial incapacity to meet any adverse costs order or the proposed alternative maximum cost amounts proved by the Commonwealth and the AEC. Rather they depose that they will choose to discontinue the proceedings if the orders are not made so as to not place themselves at financial risk. Both the applicants are highly educated and have had distinguished careers to date: Ms Bradlow has practised as a lawyer, in Strategic Communications and as a Press Secretary in Parliament. Ms Bock has worked in investment banking and held, amongst other positions, directorships. The applicants put on no evidence as to their respective financial positions.

27    As to their reasoning, Ms Bradlow deposed (as did Ms Bock in almost identical terms) that she was not prepared to take the risk in the following terms:

11. I am not prepared, and I know Bronwen is not prepared, to take the risk that we lose the legal case and get a costs order against us of that magnitude. We think this is a matter of public interest, but we cannot go ahead with the ligation (sic) if we have to face the risk of being ordered to pay the respondents’ legal costs.

12. As we set out in the Bradlow 28 February 2025 affidavit at paragraph 58, we had $11,000 in pledges previously made to assist with any litigation costs. We still have those pledges. If the Court will order that we do not have to pay any more than that we will be able to proceed with the court proceedings.

13. If we are at risk of paying more than that, Bronwen and I will give instructions to discontinue the proceedings with no orders as to costs so we do not have that costs risk. The issues in this case remain important to us, and we think they are important to many Australians, but with a costs risk in excess of what we have pledged, it would not be possible to continue the proceedings.

28    Furthermore, the Commonwealth, through its solicitors, drew to the applicants’ attention the existence of various assistance schemes and there is no evidence as to whether the applicants sought to avail themselves of those schemes but rather chose to, in effect, insulate themselves from a costs order by making this application. These matters go against the making of the order.

29    Therefore, this is not a case where it can be established that the applicants’ access to justice is impeded by way of the absence (or limits) of financial means but rather, like many potential litigants, they do not want to expose themselves to the risk. It is not a case where it has been established that the applicants would be “forced” to abandon the proceedings: Houston at [17] and [37]. It is my view that, in the circumstances of this case, the fact that the applicants would rather not risk their assets is insufficient to support a finding that a maximum costs order is required to facilitate access to justice: King v Virgin Australia Airlines Pty Ltd [2014] FCA 36 at [52], cf [94]-[95]; Houston at [37]. The circumstances might lead to a different result, for example, where a person with disabilities had some assets but no means of recouping them if they were lost.

Pro-bono representation exists

30    Sixthly, the fact that the applicants have obtained pro-bono representation, in my view, does not weigh greatly in their favour.

The fact of the AEC and the Commonwealth being separately represented is justified and does not weigh in favour of a costs order being made

31    Lastly, the applicants submitted that, given the public interest reasons which underpin the applicants commencing these proceedings, it is not justified that the applicants risk costs exposure for costs incurred by two separate parties who purportedly represent the same interests. The maximum costs order sought effectively and fairly deals with this issue and the discretion should be exercised. I reject this submission. It is apparent that the Commonwealth is taking the role of primary contradictor in the proceedings. Both the AEC and the Commonwealth are necessary parties: Particular relief is sought as with respect to the Constitution and the Electoral Act. The AEC will necessarily have a different role in the proceedings.

32    Therefore, for the above reasons, I am not persuaded that a maximum costs order should be ordered in this case. No submission was made as to why the costs of this application should not follow the event.

Associate:

Dated:    23 September 2025