Federal Court of Australia

Kapterian v Boele (Costs) [2025] FCA 1472

ORDERS

THE COURT ORDERS THAT:

1.    The Petitioner pay the First Respondent’s costs of and incidental to the petition, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

BACKGROUND

1    As part of the federal election held on 3 May 2025, there was an election to the House of Representatives for the electoral Division of Bradfield. There were eight candidates in the Bradfield election, including Ms Kapterian (the candidate endorsed by the Liberal Party of Australia, NSW Division) and Ms Boele (an independent candidate).

2    From 6pm on 3 May 2025 until 23 May 2025, the Australian Electoral Commission (AEC) conducted a first-count of the votes cast in the election. At the conclusion of the full distribution of preferences, Ms Kapterian led Ms Boele by a margin of eight votes (being 56,191 votes or 47.28% for Kapterian, and 56,183 votes or 47.27% for Boele).

3    On 23 May 2025, the Australian Electoral Officer (AEO) directed that there would be a formal re-count in respect of this election. Over the course of the re-count (from 26 May 2025 to 4 June 2025) the Divisional Returning Officer reserved 792 ballot papers at the request of scrutineers, for a decision by the AEO pursuant to s 281 of the Commonwealth Electoral Act 1918 (Cth) (the reserved ballot papers). Over the same period, the AEO made determinations in respect of those reserved ballot papers. The re-count process, as described in the Affidavit of Rebecca Ann Main affirmed on 22 August 2025 (Main Affidavit) at [42], involved:

… a reconsideration of informal ballot papers, a check of all admitted ordinary and declaration vote ballot papers for formality, and a re-count of first preference totals, the TCP, and a full distribution of preferences.

4    At the conclusion of the re-count, Ms Boele was declared the successful candidate by a margin of 26 votes (being 56,114 votes or 47.21% for Boele, and 56,088 votes or 47.19% for Kapterian). In other words, there was a net 34-vote swing between the first-count and re-count results in favour of Ms Boele. On 12 June 2025, the Electoral Commissioner certified Ms Boele as having been elected, and returned the writ to the Governor-General.

5    On 15 July 2025, Ms Kapterian filed a petition in the High Court of Australia sitting as the Court of Disputed Returns, pursuant to s 353(1) of the Electoral Act. As a candidate in the election, she was entitled to file the petition as of right: ss 353(1), 355(c).

6    On 8 August 2025, Gageler CJ made orders referring the petition to the Federal Court for trial. The matter was allocated to my docket shortly thereafter.

7    On 22 August 2025, following the first case management hearing in the matter, I made orders which included permitting the inspection of the 792 reserved ballot papers by Ms Kapterian’s and Ms Boele’s legal representatives. The petition was listed for final hearing on 2 October 2025.

8    The parties conducted inspections of the reserved ballot papers in accordance with those orders, each over a period of four days concluding on 17 September 2025. The legal representatives identified the ballot papers to be challenged, with reasons, and any reasons for opposing a challenge of the other party.

9    With the benefit of the inspections, Ms Boele’s challenges and her responses to Ms Kapterian’s challenges, Ms Kapterian and her legal representatives took the view that the petition would most likely not succeed in changing the overall result of the election (Affidavit of Simone Therese Rees sworn on 7 October 2025 (Rees Affidavit) at [9]). Their view was that the petition would not lead to a declaration that Ms Boele had not been elected, or that the election was void, under s 362(3) of the Electoral Act.

10    On 25 September 2025, Ms Kapterian informed Ms Boele, the AEC and the Court that she no longer sought to press the petition. The parties consented to orders being made, inter alia, that the petition be dismissed and providing for the question of costs to be determined on the papers, which orders I made on 1 October 2025.

11    Ms Kapterian submits that, in view of the special and exceptional circumstances of the petition, it is appropriate that there be no order as to costs. Ms Boele resists that submission and seeks her costs of defending the petition as the successful candidate. The AEC accepts that there ought to be no order as to its costs, consistently with the principles stated by Brennan CJ in Free v Kelly [1996] HCA 42; 185 CLR 296 at 305.

RELEVANT PRINCIPLES

The Court’s power to award costs

12    The Court is sitting as the Court of Disputed Returns pursuant to s 354(1) of the Electoral Act. Section 354(2) provides that, where a petition has been referred by the High Court to the Federal Court for trial, the Court shall “be and have all the powers and functions of the Court of Disputed Returns”.

13    The powers of the Court of Disputed Returns are enumerated in s 360 of the Electoral Act, which relevantly provides that:

360 Powers of Court

(1)     The Court of Disputed Returns shall sit as an open Court and its powers shall include the following:

…

(viii)     To dismiss or uphold the petition in whole or in part;

(ix)     To award costs;

…

(2)     The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

…

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

14    Relatedly, s 371 provides that the Court may award costs against an unsuccessful party to the petition.

The exercise of the costs discretion

15    The ordinary rule in respect of petitions brought pursuant to the Electoral Act is that costs follow the event: Peebles v Burke (No 2) [2010] FCA 861 at [3] per Moore J. Nevertheless, it must always be borne in mind that the Court’s power to order costs is a discretionary power, which is unfettered, save that it is required to be exercised judicially. The parties’ submissions drew attention to several matters which, it is submitted, ought to guide the Court’s exercise of the discretion.

16    Ms Kapterian relied on two general principles.

17    First, the principle that a costs order against an unsuccessful litigant may be declined where it would inhibit the bringing of proceedings concerning issues affecting the community or a sector of it: Knowles v Commonwealth of Australia (No 2) [2022] FCA 1003 at [39] per Mortimer J. That rationale is particularly important where it can be shown that the proceedings involved sufficient public interest-related reasons connected with or leading up to the case or special circumstances that would warrant a departure from the usual order.

18    Secondly, the principle that, if it appears that both parties have acted reasonably in commencing and defending a proceeding and their conduct continued to be reasonable until the proceeding was settled or further prosecution became futile, a court will usually exercise its discretion not to make any order for the costs of the proceeding: Re Minister of Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 at 625 per McHugh J. Ms Kapterian acknowledged that there is intermediate appellate authority to the effect that this principle may not apply where there has been a complete capitulation: Shellharbour City Council v Minister for Local Government [2017] NSWCA 256 at [6]-[7] (Basten, Macfarlan JJA and Sackville AJA). However, she sought to distinguish situations of complete capitulation from situations where prosecution of a proceeding becomes futile because of a supervening event that modifies the subject of the dispute. This is a point to which I will return.

19    Ms Boele submitted that there are five matters which should guide the Court.

20    First, Ms Boele contends that it is self-evident that a party whose petition has been dismissed has been unsuccessful: Smith v Australian Electoral Commission (No 2) [2008] FCA 1310 at [17].

21    Secondly, while accepting Ms Kapterian’s submission that there is a public interest in ensuring compliance with the Electoral Act, citing Moore J in Peebles, Ms Boele relies on the passage in that case where his Honour explained that (at [3]):

… it does not follow that any applicant seeking relief under or by reference to the Electoral Act can do so on the assumption that the discretionary power to award costs will not be exercised in the usual way. That is, costs will follow the event. … More generally, the mere making of an application under or by reference to the Electoral Act does not clothe the proceedings in the mantle of “public interest litigation” thereby enlivening some special rule in relation to costs.

(Emphasis added.)

22    Thirdly, and in response to the public interest rationale cited by Ms Kapterian, Ms Boele submits that the potential for public interest considerations to arise in matters before the Court of Disputed Returns is “amply accommodated” by the “special provisions” of s 360(4) of the Electoral Act. I have extracted that provision above. It provides the Court with power to order the Commonwealth to pay the costs of a petition where it considers it appropriate. The question of whether that power should be exercised will be informed by “considerations of what is fair and just”: Nile v Wood [1988] HCA 30; 167 CLR 133 at 143 (Deane and Toohey JJ). As Brennan J said in that case (at 142), the discretion to make a costs order against the Commonwealth under the provision:

… 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.

23    Ms Boele contends that the public interest considerations relied on by Ms Kapterian should therefore be balanced against the fact that Ms Kapterian has elected not to apply for an order under s 360(4) to have the Commonwealth pay Ms Boele’s costs, even though it was open for her to do so.

24    Fourthly, Ms Boele submits that it is no barrier to the making of a costs order that a petition did not proceed to a hearing on the merits, citing Green v Bradbury (No 2) [2011] FCA 469. In Green, Emmett J considered what costs order should be made where a petition in relation to a Senate election had been withdrawn, and where two petitions in relation to House of Representatives elections had been summarily dismissed. The petitioners nonetheless contended that their petitions raised matters of public interest such that an order should be made under s 360(4) of the Electoral Act for the Commonwealth to pay their costs, or there should be no order as to costs at all. His Honour rejected those contentions and awarded costs against the respective petitioners.

25    Fifthly, and connected to both the above principle and the second principle relied upon by Ms Kapterian, where there has been no hearing on the merits, the general position at common law is that it will usually be appropriate to make no order as to costs: Lai Qin at 624-625 per McHugh J. However, as his Honour added, a costs order may be appropriate where a party has acted unreasonably or where the Court “feel[s] confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried”.

SHOULD THE PETITIONER PAY THE FIRST RESPONDENT’S COSTS?

26    As an initial point, Ms Kapterian’s submissions stressed that the circumstances of the present case are exceptional. This is only the third petition dealing with the formality of votes and the outcome of a House of Representatives divisional election in Australian history – the two prior instances being Kean v Kerby [1920] HCA 35; 27 CLR 449 (Isaacs J) and Mitchell v Bailey (No 2) [2008] FCA 692; 169 FCR 529 (Tracey J). The latter of those cases appears to be the only prior occasion on which the candidates have been permitted the opportunity to inspect the reserved ballot papers. While it may be readily accepted that these are unique circumstances, that fact does not of itself suffice to warrant any departure from established principles.

Relevant factors

27    In the application of these principles to the facts of the present case, the parties have otherwise pointed to various features in support of their competing positions on costs. While often at cross-purposes, there are several common themes that emerge from the written submissions to which I have had regard in exercising the costs discretion.

28    The first matter is as to the bringing of the petition. Ms Kapterian submits that, as the unsuccessful candidate, she had a statutory entitlement to seek a review of the AEO’s determinations, such that it was “entirely reasonable” for her to have filed the petition. Ms Boele does not cavil with that submission, but rather highlights that (a) the petition was entirely unsuccessful, having been dismissed by the Court with the consent of the parties; and (b) it was not open to Ms Kapterian to exercise her statutory entitlement on the assumption that costs would not follow the event should she ultimately be unsuccessful. With respect, Ms Boele’s submissions are more to the point. There is no question that Ms Kapterian was entitled to bring the petition; the question is what costs consequences, if any, should flow from the way in which the petition was conducted and finally resolved.

29    The second matter is the public interest in the petition. In this regard, Ms Kapterian submits that the central issues raised by the petition were “of signal interest and importance” both to the Bradfield electorate and to the broader Australian public. Specifically, she identifies the most significant issues of public interest as being:

(a)    whether the AEO had appropriately protected the franchise in making the determinations pursuant to s 281(2) of the Electoral Act as to the formality of ballot papers;

(b)    whether there had been contraventions of the Electoral Act; and

(c)    whether it was Ms Boele or Ms Kapterian that had been duly elected.

30    These issues were plainly of interest to the voters of Bradfield; they had the capacity to affect their federal representation, where each voter had been statutorily compelled (by s 245(1) of the Electoral Act) to cast a vote involving the expression of preferences for Ms Kapterian and Ms Boele. More broadly, Ms Kapterian submits, the petition concerned the efficacy of Australia’s electoral processes, and the composition of Parliament.

31    In Mitchell v Bailey (No 3) [2008] FCA 1029, where the parties had sought orders by consent under s 360(4) of the Electoral Act for the Commonwealth to pay both the petitioner and the first respondent their costs of and incidental to the petition, which had been dismissed following the decision of Tracey J in Mitchell v Bailey (No 2), his Honour said:

[7]     In my view it is appropriate that the orders sought by the parties in relation to costs should be made. The proceeding raised issues which were novel and which it was in the public interest to resolve. The Court found that a significant number of inadvertent errors had been made during the scrutiny of reserved ballot-papers. The petitioner had been prejudiced by an even greater number of errors than had been alleged in the petition. These errors would have affected the outcome of the election had it not been that an even greater number of errors were made which prejudiced the successful candidate. The fact that these errors had occurred and required correction by the Court is probably a sufficient reason, standing alone, to make the orders sought.

[8]     There were, however, a series of novel issues which it was necessary to resolve in the course of the proceeding. Those issues included:

•    Whether the parties, or their legal advisors, could be provided with access to the reserved ballot-papers consistently with the provisions of s 360(1)(iii) of the Act and, if so, on what conditions.

•    Whether the Act imposed any statutory obligations on an Australian Electoral Officer which, if not complied with, could give rise to a contravention of the Act.

•    What processes should be adopted by the Court in order to deal with a petition which alleged that errors had been made by an Australian Electoral Officer in determining the formality of reserved ballot-papers.

•    Whether the Court should engage in merits review or judicial review of decisions made by an Australian Electoral Officer under s 281 of the Act.

It was, in my opinion, necessary and desirable, in the public interest, that these issues should be resolved.

(Emphasis added.)

32    The present case is removed from the circumstances considered in the Mitchell v Bailey cases in several significant respects. The most obvious of those is that in that case, the formality of the reserved ballot papers was finally determined by the Court. That meant that there was a finding of errors on the part of the AEO which “required correction by the Court”. That lies in contradistinction to the present facts, where I have made no determination as to the formality or otherwise of any reserved ballot papers and have instead dismissed the petition by consent of the parties following the petitioner’s concession. In other words, the action of the Court in identifying the occurrence of error and correcting it – one basis for the costs orders in Mitchell v Bailey (No 3) – is absent in the present case.

33    A further important distinction is that no novel issues of law were resolved by the delivery of judgment in this case. When the matters of public interest suggested by Ms Kapterian to arise in this case are compared with the novel issues adverted to by Tracey J in Mitchell v Bailey (No 3) at [8], it can readily be seen that they are of a very different character. As his Honour made clear, it was the existence and resolution of broad legal issues of general application that gave rise to a public interest element. By contrast, Ms Kapterian’s petition raised various issues of fact in the AEO determinations which had been made in the Bradfield election and the statutory consequences of those determinations. Moreover, that those issues arose for determination on this petition is not of present moment; the relevant point once again is that the Court has made no resolution of them which would serve the public interest.

34    As such, it is tolerably clear that the two key bases for the costs orders made in the Mitchell v Bailey cases do not arise on these facts. This petition cannot be said to give rise to quite the same public interest element as existed there.

35    Ms Kapterian further submits that the public interest has been served by the commencement and cessation of the petition. Upon her decision to discontinue the petition, she caused the publication of a media release which stated, inter alia, that (Rees Affidavit at [13]; Exhibit STR5 at p 3):

After a final review of the ballot papers following the two different results in Bradfield, I am satisfied that, overall, the correct outcome has been declared. Accordingly, we have taken the decision to no longer press the petition for a final review by the Court of Disputed Returns.

With two different outcomes declaring two different winners, I'm grateful our electoral system anticipates and supports the need for further scrutiny through a statutory right. This is particularly so given the often difficult and subjective nature of ballot interpretation. In other words, after asking the on-field decision to go to the video umpire, we have had the opportunity to review the play and can now be satisfied the right call was made overall. Thank you to all those involved, including at the AEC, in undertaking this review - thereby once again strengthening faith in our democracy.

36    Ms Kapterian’s statement that she has satisfied herself that “the correct outcome has been declared” says nothing about the outcome of the petition, save for endorsing the validity of the re-count result as having declared Ms Boele the victor. Whether public confidence in Australia’s electoral processes and laws has been bolstered by this turn of events is doubtful. Certainly, it may be said that there is very little clarity for the public as to how this dispute came about and why the petitioner ultimately determined not to prosecute it to completion. That fact casts doubt on whether the petition in fact “strengthened faith in our democracy”.

37    There is a more fundamental difficulty in principle for Ms Kapterian’s argument. As Emmett J explained in Green (at [8]):

… the question is not whether there is an issue of general public importance identified by a proceeding, but whether the conduct of the proceeding results in a public benefit associated with the grounds sought to be argued. The way in which the petitions were disposed of indicates that no public benefit arose from the proceedings … Thus, even though it may be that the power in s 360(4) is not restricted by reference to the principles controlling the making of an order for costs inter partes, but may be exercised when it is just and sufficient, it is difficult to contemplate that it is just and sufficient to require the Commonwealth to pay costs of the petitioners in circumstances where one petition was withdrawn, and the others were dismissed summarily on the basis that they could not possibly succeed.

38    As such, while Ms Boele accepts that there was a general public interest in the underlying issues raised by this proceeding, that is not the relevant question. Rather, where a case of this kind in the Court of Disputed Returns is discontinued without the delivery of a judgment of the Court that both resolves questions of electoral law of public importance, and scrutinises the electoral process so as to reinforce public confidence in that process, the Court will be slow to conclude that a public benefit arose from the proceeding. With respect, merely because Ms Kapterian has satisfied herself of the correctness of the re-count outcome, and has made a public statement to that effect, does not mean that the public has enjoyed all the benefits of a final judgment upholding the election result.

39    I am mindful of the caution of Moore J in Peebles that petitions under the Electoral Act are not to be taken as automatically cloaked under the veil of public interest litigation. The way in which this petition was discontinued indicates that little or no public benefit arose from the proceeding. Nothing which Ms Kapterian has pointed to has persuaded me otherwise.

40    The third matter is the circumstances which led to the discontinuation of the petition. As I have already noted, Ms Kapterian says that it was the inspection of the ballot papers which made clear that any further prosecution of the petition would be futile. Although Ms Kapterian had a scrutineer present for the AEO’s determinations during the re-count, and that scrutineer came to hold concerns, she argues that this did not allow her to have a complete and objective understanding of the 792 reserved ballot papers or the reasons for the determinations: Rees Affidavit at [6]. The inspections by her legal representatives afforded her that opportunity.

41    Whilst it is true that Ms Kapterian was able to come to a complete and objective understanding of the reserved ballot papers following the inspections by her legal representatives, the inspections are not thereby transformed into a “supervening event that modified the subject of the dispute.” Ms Kapterian sought to rely on the decision in ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; 101 FCR 548, where Burchett J said at [6]:

In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs. …

42    After surveying the leading authorities, including Lai Qin, his Honour continued at [7]:

By contrast with the decisions I have been discussing, the present matter involves a clear winner. The applicants, by their proceeding, sought to challenge the validity of certain notices, and to have them set aside. The respondent, after initially defending those notices, encountered at least an evidentiary difficulty, and acknowledged that they were to be set aside. That means that the applicants have succeeded, just as the respondent succeeded in Ahmetaj v Minister for Immigration and Multicultural Affairs [1999] FCA 332, where a proceeding failed by reason of the occurrence of an event that was always liable to occur and to defeat the proceeding; in those circumstances, Sackville J, when the hearing did not proceed, distinguished Ex parte Lai Qin and made a costs order. As in that case, so here, the result one party sought was achieved without a hearing, but not by a "settlement" in the ordinary sense, or as McHugh J used the word, and certainly not by what his Honour called "extra-curial means".

(Emphasis added.)

43    The same is true in the present case. Ms Kapterian initially challenged the result of the election in which Ms Boele was declared successful. Upon inspection of the reserved ballot papers, she encountered at least an evidentiary difficulty in establishing sufficient errors by the AEO to overturn the re-count outcome, and acknowledged that the petition would not lead to a declaration that Ms Boele had not been elected, or that the election was void. That means that Ms Boele has succeeded. Furthermore, the inspection of the ballot papers was not an event extraneous to the conduct of this litigation. Indeed, the exercise involved the review of the central evidentiary material in this case. Accordingly, the petition failed by reason of a deficiency of evidence favourable to the petitioner, an event that was always liable to occur and to defeat the petition.

44    The fourth matter is the propriety of the proceeding being discontinued. In this regard, Ms Kapterian submits that, once it became apparent that the petition was unlikely to succeed in changing the final result of the election, ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) made it incumbent upon her to seek its dismissal. She says that this was so notwithstanding that the continuation of the proceeding would almost certainly have led to findings of erroneous AEO determinations – noting for example that the parties appear to have agreed that, contrary to the AEO’s determinations, a mere dot marked in the eighth preference box of a ballot paper should not render it informal, particularly given the proviso to s 268(1)(c) of the Electoral Act. Ms Kapterian argues that there was therefore every likelihood of an order being made that the Commonwealth pay the parties’ costs pursuant to ss 360(1)(ix) and 360(4) of the Electoral Act had the matter proceeded to trial, as was the case in Mitchell v Bailey (No 3).

45    As I have already observed, however, there is quite a difference between a petition being discontinued pre-hearing and a petition being determined at final hearing such that the Court corrects errors made in the electoral process. Further, and without wishing to express any view on the appropriate treatment of disputed ballot papers, it can also be readily observed that simply because the parties were in agreement that certain determinations were erroneous does not necessarily mean that I would have been persuaded at trial that was the case, nor that the costs consequences would have been visited upon the Commonwealth.

46    In short, I acknowledge that litigants ought to be encouraged to discontinue proceedings that should properly be discontinued, and that the risk of paying costs ought not to be a disincentive to the proper disposition of cases in an orderly fashion by discontinuance: Russell Associates Ltd v Commissioner of Taxation [2016] FCA 117 at [3] per Pagone J. However, as Ms Kapterian herself identifies, her overarching obligations to the Court were such that she was obliged to discontinue the proceeding once it became apparent to her that this was the proper course. She ought not be given credit for her compliance with those obligations. This factor is of neutral weight in my exercise of discretion.

47    The fifth matter is the timing of the concession. As I have identified, Ms Kapterian did not concede until 25 September 2025, within one week of the hearing scheduled to take place on 2 October 2025. Ms Boele argues that, by that time, her solicitors and Counsel had undertaken a significant volume of work, including their inspections of the reserved ballot papers, preparation of a list of challenges and a list of responses to Ms Kapterian’s challenges, preparation of the joint list of challenges and responses, and preparation of draft written submissions: Affidavit of Kiera Lee Peacock affirmed on 14 October 2025 (Peacock Affidavit) at [6]. She also complains that Ms Kapterian only conceded after receipt of Ms Boele’s responses to the challenges she had advanced, rather than immediately following the inspection of the ballot papers.

48    Ms Kapterian submits that this criticism is misguided. Her solicitors and Counsel had conducted their final inspection of the reserved ballot papers on 17 September 2025. She argues that it was not unreasonable to take from 17 to 25 September 2025 to analyse the results of the inspections, including against Ms Boele’s responses as filed and served on 22 September 2025. It was only at that stage, and with the benefit of both parties’ positions in respect of each of the 792 reserved ballot papers, that Ms Kapterian says it was possible for her and her legal advisers to reach a considered view as to the likely outcome of the petition. Ms Kapterian argues that she thereafter acted both reasonably and promptly in not pressing the petition.

49    I accept Ms Kapterian’s submissions on this issue. Even if it was the case that she ought to have held concerns as to continuing with the petition on the conclusion of the first round of inspections, she was entitled to consider Ms Boele’s list of disputed ballot papers, filed on 8 September 2025, and to reinspect the ballot papers to assess the veracity of the competing challenges before making a decision to discontinue. It should also be noted that, on 15 September 2025, I requested submissions on the formality of a further 18 reserved ballot papers which were not the subject of challenge by either party. Thereafter, the parties conducted their further inspections on 16 and 17 September 2025, filed their respective responses to the other party’s challenges on 22 September 2025, and filed a joint list of the disputed ballot papers on 24 September 2025. All of this was done in accordance with a timetable which, at the first case management hearing, the parties agreed should be put in place so as to bring the matter on for hearing and resolution as expeditiously as possible in accordance with s 363A of the Electoral Act.

50    I am also not convinced that Ms Boele’s argument that her representatives had by 25 September 2025 undertaken extensive preparatory work takes the matter much further – those steps were all required to bring the matter to hearing in any event, and there is no suggestion that Ms Kapterian acted with any unreasonable delay in communicating her decision to discontinue the petition once it was made. In my assessment, the timing of the concession is of neutral weight in exercising the discretion to award costs.

51    The sixth matter is the systemic consequences for the accessibility of the statutory protection, should there be a costs order against Ms Kapterian. She submits that it is important that the statutory entitlements of review under the Electoral Act remain accessible as a means of promoting the integrity of the electoral system, and that adverse costs orders would serve to diminish accessibility. True it is that the procedures under Part XXII of the Electoral Act provide a “final and conclusive” check of votes cast in an election: s 368. That is a crucial function protected by statute.

52    What is tolerably clear on review of the Act, however, is that this is not intended to be a costs-free jurisdiction. Section 360(1)(ix), as I have identified, provides the Court of Disputed Returns with the power to award costs. That power is to be exercised by the Court in its discretion on just grounds: s 360(2). This belies Ms Kapterian’s argument that “the rule of law requires that candidates in future elections are able to approach the Court of Disputed Returns … without fear that a failed petition will be subject to an adverse costs order”. To find that the Court’s discretion is so constrained would sit at odds with the reasoning of Moore J in Peebles to which I referred earlier. It would also be inconsistent with the express terms of the statute. I am therefore not persuaded that the making of an adverse costs order against Ms Kapterian would have the consequence of diminishing the accessibility of these statutory entitlements.

53    The seventh and final matter is the burden of costs faced by each party. Ms Kapterian contends that, because Ms Boele crowdsourced funds to meet her legal expenses (Rees Affidavit at [15]-[24]), she would not personally bear any significant cost burden if there were to be no order as to costs. Ms Boele similarly alleges that Ms Kapterian may have received an indemnity in respect of the costs of this proceeding from the Liberal Party (Peacock Affidavit at [11]-[20]), such that she would not personally bear any significant cost burden if costs were to be awarded in Ms Boele’s favour.

54    As to her funding arrangements, Ms Boele has raised funds from two sources: first, through public donations to a campaign on her website titled “Bradfield Election Defence Fund”; and secondly, through public donations to a campaign on the website of Climate 200 Pty Ltd titled “Help Nicolette fight back” (Rees Affidavit, Exhibit STR5 at pp 13-20). The Climate 200 campaign had raised a total of $74,600 as at 2 October 2025. There was no evidence as to the total amount raised by the campaign on Ms Boele’s website, though I infer the fundraising was similarly substantial. According to a letter dated 14 October 2025 from Ms Boele’s solicitors to Ms Kapterian’s solicitors, Ms Boele’s legal costs (including disbursements) in respect of this proceeding up to and including 25 September 2025 (being the date on which Ms Kapterian indicated that she would not press for the relief sought in the petition) were $128,690.41 (exclusive of GST) (Peacock Affidavit, Annexure KLP-4 at [3]).

55    Ms Boele’s crowd-funding webpage is accessible through a link from her homepage titled “Donate”. That webpage stated at the header (Rees Affidavit, Exhibit STR5 at pp 13-16):

BRADFIELD ELECTION DEFENCE FUND

The Liberal Party announced they will challenge the election result for Bradfield in the High Court.

They have a legal team. I have you.

The court may order the Liberal Party pay our legal costs. If so, I will offer every donor a refund. But first, we have to show up and fight. Again.

(Emphasis added.)

56    The webpage also stated, under the heading “Things you should know about your donation”:

If we recover all our legal costs and expenses from the Liberal Party then we will offer to refund your donation.

If we otherwise raise more than required for legal costs and expenses (including if we recover some or all of those amounts from another party who is ordered to pay our costs) then we will offer you a pro rata refund of your donation (depending on the amount we hold) and remaining surplus funds will be donated to a cause seeking to improve democracy.

(Emphasis added.)

57    The Climate 200 crowd-funding webpage similarly stated (Rees Affidavit, Exhibit STR5 at p 17):

If Nicolette is successful in court and the Liberal Party is made to pay costs OR if funds are raised surplus to the final legal cost of the case, she will offer a refund to donors.

58    Ms Boele understands herself to be “bound” to repay any surplus to her contributors following a costs award in her favour and intends to do so: Peacock Affidavit at [10]. Ms Kapterian submits that this arrangement falls short of an obligation to repay, particularly where Ms Boele sought crowd-funding on the basis that she would offer to refund the contributors, if she was able to recover all of her legal expenses or achieved a surplus. In those circumstances, Ms Kapterian submits that the crowdsourced funds are available to meet or defray Ms Boele’s costs, which ought to at least diminish any concern about the costs burden falling upon her. That submission placed reliance upon the decision of the Supreme Court of New South Wales in Kassam v Hazzard; Henry v Hazzard (No 2) [2021] NSWSC 1599.

59    In Kassam, Beech-Jones CJ at CL had dismissed both sets of proceedings in the principal judgment. The plaintiffs contended that the appropriate order was that each party pay their own costs of the proceedings. They had crowdsourced funds via GoFundMe to meet the legal expenses of challenging the validity of public health orders made in the midst of the COVID-19 pandemic. It appeared that the funds raised were sufficient to meet the total costs incurred by the plaintiffs in the proceedings by the time the appeal from the principal judgment was heard. In considering what costs findings should be made as a consequence of those arrangements, his Honour remarked that (at [39]-[42]):

[39]    As best I can ascertain, the material tendered by the State about crowdfunding in the Henry proceedings suggests that the one GoFundMe page was used to raise funds for a range of actual and potential legal challenges to COVID-19 measures. Beyond that, a number of matters are left unclear about the purpose of the fundraising and terms on which funds were raised which are, or at least could be, relevant to an assessment of the Henry plaintiffs’ submission that “it would be unfair and unjust for the plaintiffs personally bear the burden from the Court’s adjudication” in the Principal Judgment. One matter that is unclear, is whether the funds were raised to meet any adverse costs order. The posting on 7 May 2020 suggests that funds were raised for that purpose. However, the posting seeking plaintiffs on 25 August 2020 warns of a risk of an adverse costs order. It does not state whether the funds raised would be available to meet such an order if it was made. A related question is whether the funds were simply a donation which was never to be returned to the donors under any circumstances or held under some form of Quistclose trust (Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567). If it was the former and the funds were to be applied to meet the plaintiffs’ costs and disbursements, then had they been successful then it is doubtful that costs could have been recovered against the defendants (see Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145). A further issue that arises is, in the event that the funds were not raised to meet or defray the Henry plaintiffs’ costs exposure, how is that outcome consistent with the Henry plaintiffs’ solicitor’s fiduciary duty to their clients?

[40]    In the absence of evidence from those who know the answer to these questions, the Court must approach the matter on the basis that either the funds raised are available to meet or defray the Henry plaintiffs’ costs exposure or they are not. If they are available to meet or defray the Henry plaintiffs’ costs exposure then their submission about how unfair and unjust it would be for them to bear the burden of any costs order falls away or is at least diminished. If they are not available then that situation could, or at least should, only have come about after they received proper (and independent) advice about the financial risk of becoming a plaintiff and how their solicitors were preferring their own interests to their clients in apparently applying the funds to meet their own costs and disbursements and leaving them exposed to a costs order (see Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 435; Council of the Queensland Law Society Inc v Roche [2004] 2 Qd R 574; [2003] QCA 469 at [57] per McMurdo P and at [62] per Williams J). If the Henry plaintiffs received that advice and decided to be plaintiffs regardless, then it is difficult to see how it is unfair and unjust for them to wear at least some form of costs order. If they did not receive that advice then the plaintiffs’ solicitors (and potentially their insurer) may have to ultimately carry their cost exposure. In any event, when no evidence is provided on these topics, I would not assume the Henry plaintiffs’ solicitors breached their obligations to their clients. The end result is the same, namely that the contention that unfairness and unjustness will be occasioned to the Henry plaintiffs if they incur at least some form of costs order has not been made out.

[41]    Two further matters should be noted. First, this judgment does not address all the circumstances in which litigation may be crowdfunded. The right, duties and consequences that might flow from such funding for litigation will differ depending on, inter alia, who undertakes the fundraising (ie, the solicitor, the client or someone else), whether it is undertaken for a plaintiff, defendant or another party and the terms on which the funds are raised. In this case, the use of crowdfunding only become [sic] relevant once the Henry plaintiffs contended that they should not have to bear a costs order because of the public interest nature of the litigation and that it was “unfair and unjust” for them “personally to bear the burden of the costs associated with this litigation”.

[42]    Second, in similar circumstances it is to be expected that if a submission to the effect that it is “unfair and unjust” for a party to personally bear the burden of a costs order is made to the Court and crowdfunding has been undertaken, then that party will provide evidence to the Court explaining the extent and terms of the fundraising, especially when they are given the express opportunity to do so. Had that been undertaken in this case and had the explanation revealed that, for example, a reasonable portion of the funds set raised was set aside to meet or defray the Henry plaintiffs’ costs exposure then the Court could have considered whether to make an order limiting the costs recoverable from the plaintiffs to that amount or something similar (UCPR, 42.4(1)). However, in view of the way in which the costs application was conducted such an approach could not be considered.

60    I approach the present case on the basis that the crowdsourced funds raised are available to meet or defray Ms Boele’s costs exposure. Neither party has suggested that those funds are held by Ms Boele under some form of Quistclose trust. As best can be ascertained from the evidence, including the extracts of the webpages to which I have referred, these were unconditional donations made by members of the public on the understanding that Ms Boele would, in the event of success, offer to repay her benefactors what surplus she could.

61    There is certainly a conceptual distinction to be drawn with Kassam insofar as the crowd-funded litigant is a respondent party in this case, and one who has been successful in the proceeding. That contrasts with the crowd-funded plaintiffs in Kassam, who were unsuccessful and so faced the potential of bearing the costs consequences of that defeat.

62    In any event, the critical point is that the parties are liable as principal for their own legal costs. The crowd-funding arrangements between Ms Boele and her contributors, on the one hand, and the indemnity arrangements between Ms Kapterian and her endorsing party, on the other, cannot alter that position and are not inconsistent with the operation of the indemnity rule: see eg, GE Dal Pont, Law of Costs (5th ed, LexisNexis Australia, 2021) at [7.16].

63    In North Australian Aboriginal Legal Aid Service Inc v Bradley (No 2) [2002] FCA 564, when faced with a submission that the successful first respondent ought not be entitled to recover costs because he had been indemnified by the second respondent, Weinberg J summarised that (at [104]):

Whatever arrangements there may in any given case be for the payment of fees, whether by government or by some benevolent third party, that is a matter between the parties to those arrangements. It is of no relevance when determining whether or not, as successful litigants, they are entitled to costs.

64    I similarly am not convinced that the funding arrangements of either party are matters which speak to whether I ought to award costs in this case.

Conclusion on the exercise of the discretion

65    Much has been made of the public interest aspects of this petition and of the right to scrutiny over the electoral process which is enshrined in the Electoral Act, the manner in which the petition was determined, and the costs exposure of the parties. Perhaps most simply, however, as Dowsett J put it in Hudson v Entsch [2005] FCA 557 at [6]:

… The question is whether the first respondent or the applicant should bear the first respondent’s costs of these proceedings. The applicant started the proceedings; the first respondent had no choice in the matter and resisted them. I consider that the better outcome is that the applicant pay those costs. …

66    The same observation is apt here. Because no order was sought for the Commonwealth to pay the parties’ costs under s 360(4) of the Electoral Act, either Ms Boele (and her supporters) or Ms Kapterian (and the Liberal Party) must bear the costs. There is no special circumstance in this case that warrants a departure from the ordinary rule that costs follow the event. The petition having been dismissed, I am satisfied in the exercise of my discretion that the appropriate outcome is that Ms Kapterian pay Ms Boele’s costs of the petition.

DISPOSITION

67    For these reasons, I will order that Ms Kapterian pay Ms Boele’s costs as agreed or assessed.

Associate:

Dated:    27 November 2025