Sanders v Electoral Commission Queensland [No 2]
[2024] QSC 215
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- Notable Unreported Decision
- Sanders v Electoral Commission Queensland [No 2][2024] QSC 215
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Sanders v Electoral Commission Queensland [No 2][2024] QSC 215
Sanders v Electoral Commission Queensland [No 2][2024] QSC 215
SUPREME COURT OF QUEENSLAND
CITATION: | Sanders v ECQ (No 2) [2024] QSC 215 |
PARTIES: | SHORNE CHRISTOPHER SANDERS (applicant) v ELECTORAL COMMISSION QUEENSLAND (respondent) |
FILE NO/S: | BS4350/24 |
DIVISION: | Trial |
PROCEEDING: | Costs of application |
ORIGINATING COURT: | Supreme Court of Queensland sitting as Court of Disputed Returns |
DELIVERED ON: | 9 September 2024 |
DELIVERED AT: | Bundaberg |
HEARING DATE: | 25 July 2024 |
JUDGE: | Henry J |
ORDER: | No order as to costs. |
CATCHWORDS: | CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – COSTS – where the applicant was unsuccessful in his application to set aside the electoral Bundaberg division 8 election – where the respondent submits costs follow the event – whether there are reasons to depart from the general rule that costs follow the event – where the application was of public importance and in the public’s benefit – where the respondent failed to adequately perform its function by having sufficient staff at the election subject to the unsuccessful application – whether there are reasons to depart from the general rule that costs follow the event Garbett v Liu (No 2) (2020) 376 ALR 504, applied Innes v Electoral commission of Qld and Anor (No 3) [2020] QSC 320, considered Nile v Wood (No 2) (1998) 167 CLR 133, applied Oshlack v Richmond River Council (1998) 193 CLR 72, cited Sanders v Electoral Commission Queensland [2024] QSC 147, cited |
COUNSEL: | D William for the applicant M Hickey for the respondent |
SOLICITORS: | Finemore Walters & Story for applicant Crown Law for respondent |
- [1]Mr Shorne Sanders lost the 2024 election for division 8 of the Bundaberg Regional Council by just one vote. In Sanders v Electoral Commission Queensland,[1] I dismissed his application to set aside the result and order a new election.
- [2]It remains to determine the question of costs. The Commission submits that costs should follow the event. Mr Sanders submits each party should bear their own costs, that is, there should be no order as to costs.
The Court has the discretion to award costs
- [3]Section 148(1) Local Government Electoral Act 2011 (Qld) provides this court “may” order an unsuccessful party to an application to pay the reasonable costs of other parties to the application.
- [4]To remove doubt, the only active party to the application, other than Mr Sanders, was the Commission. Whilst named as a party, the winning candidate, Mr Cooper, took no active role in the matter.
Costs do not have to follow the event
- [5]Section 148(1) does not contemplate the possibility of ordering that the successful party pay the losing party’s costs. The section does however leave to the discretion of the court whether, and if so to what extent, the losing party ought to be ordered to pay the successful party’s costs.
- [6]The effect of ordering that the losing party pay the other’s costs, as permitted by s 148(1), is that costs would “follow the event”. The ordering of such a course, sometimes described as the general rule, typically reflects the weight given in the court’s exercise of discretion to the consideration that, as a matter of principle, the successful party should ordinarily be compensated for its costs of having been put to the expense of the litigation.[2] Countervailing considerations may of course weigh against the court exercising the discretion to order costs.
Public importance and benefit and failure to properly perform function may inform the discretion to order costs
- [7]In the present case countervailing considerations relied upon by Mr Sanders are that the proceeding arose because the Commission failed to adequately perform its function and there was public importance and public benefit in the ventilation and decision of the issues.
- [8]Such considerations were identified as relevant in Nile v Wood (No 2).[3] The power there being considered was the discretion to order the Commonwealth to pay costs, despite being a non-party, per s 360(1)(ix) Commonwealth Electoral Act 1918 (Cth). Brennan J reasoned:
“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 …”[4]
- [9]That reasoning was applied in Garbett v Liu (No 2),[5] where in concluding the Commonwealth should pay the petitioners’ costs, the Full Federal Court found there was public importance and public benefit in the petitioners bringing the issues in that case before the court.
- [10]Here the Commission is a party and the issue is whether it should have its costs. Nonetheless, the considerations identified in Nile v Wood (No 2) and Garbett v Liu (No 2) are of logical relevance here. The Commission is a statutory body, with important public responsibilities and is funded by the public purse.[6] It has a role of singular public importance at the heart of our democracy – the conduct of elections.
- [11]If this hearing resulted from a failure of the Commission to properly perform its role or if the issues in the hearing were of public importance or their ventilation was to the public benefit, then, those would be material considerations weighing against exercising my discretion to order that Mr Sanders pay the Commission’s costs. They would be material because of the apparent injustice of visiting the costs of the Commission in such circumstances upon the citizen who must already bear his own costs of litigating such a hearing.
The Commission’s poor performance of its function
- [12]In my primary decision in this matter, I found it unnecessary to resolve whether or not the Commission breached the Act by not having sufficient staff to allow voters to vote without having to wait in long queued lines on election day.[7]
- [13]The Commission has a challenging job. It obviously did not intend to err as it did in making the flawed forecast of voting numbers that led to the poor performance of its function on election day because of insufficient staffing. However, the Commission’s decision to now press for costs regrettably makes it necessary to highlight those aspects of my findings which identify that poor performance.
- [14]Those findings were:
- The Commission has a statutory obligation to provide sufficient staff to conduct elections. This flows from the responsibility of the returning officer for the “proper conduct” of the election and the responsibility of the presiding officer for the “proper conduct” of the poll at the polling booth. The conduct of an election and of a polling booth requires staff. The “proper” conduct of each necessarily requires sufficient staff.[8]
- The Commission’s determination of its election day staffing needs was based on forecasts of likely voter attendance which was so flawed that nearly double the forecast number of voters attended.[9]
- There were thus insufficient booth staff to promptly process attending voters, with the consequence there were undesirably long queued voter waiting times.[10] This resulted in a greater than usual degree of inconvenience to voters on election day.[11]
- At division 8’s Avoca booth, voting queue times ranged from 40 minutes to an hour for most of the day until around 5pm.[12] At the other division 8 booth, Branyan, voting queue waiting times were over an hour by 9am,[13] with long queues continuing to at least mid-afternoon.[14]
- Such long queued waiting times resulted in abandonment of voting lines by some voters, some of whom did not vote later or elsewhere.[15]
- This could have affected the result of the election.[16]
- [15]While it was unnecessary for me to resolve whether the Commission breached the Act, it was obviously a serious shortcoming in the proper performance of its function that its failure to provide sufficient staff resulted in such unusually prolonged voter queuing that it caused some attending voters to abandon the process and not vote at all.
- [16]It is entirely possible, in an election won by only a single vote, that this failure did affect the result. The failure was the main causal driver of Mr Sanders’ pursuit of his application to hearing. True it is, as the Commission’s counsel emphasises, there were other complaints pursued at first. However, they were of obviously less substance than the complaint arising from the impact of unusually prolonged voter queuing and, except for the complaint about ballot legibility, they fell away. Further, it is to be borne in mind the Act imposes a short timeframe within which the petitioner must bring the complaint, heightening the prospect of amendment of grounds after filing.
- [17]Even though the complaint about ballot legibility persisted to the hearing, it had the character of a speculative complaint pursued in the hope of bolstering the force of the application. By the time of hearing, it had become a relatively minor feature of the case and did not consume much hearing time.
- [18]In an election won by a single vote, when multiple voters were seen to abandon long voting queues in frustration, it verged on inevitable that the Commission’s poor performance would result in the pursuit of this court’s intervention to hearing.
- [19]My decision not to interfere was no vindication of the Commission’s conduct of the election. It was the result of my determination of a question of degree inherent in the just and equitable test of intervention.[17] It remains that the proceeding is unlikely to have persisted to hearing but for the Commission’s serious shortcoming in the proper performance of its function.
- [20]That consideration tells so strongly against Mr Sanders having to pay the Commission’s costs of the proceeding as to be determinative. It powerfully supports the exercise of my discretion to make no order as to costs.
The public importance and benefit of the application
- [21]The Commission effectively submits the application held no public importance and resulted in no public benefit. In my view it was of public importance and benefit.
- [22]The Commission cited the reasoning of Ryan J in Innes v Electoral commission of Qld and Anor (No 3),[18] where Mr Innes was ordered to pay the Commission’s costs. Mr Innes argued against such an outcome on the basis he pursued the litigation in the public interest in that it was conducted unfairly. Her Honour considered Mr Innes was only focused on the unfairness of the conduct of the election, insofar as it concerned him and his idiosyncratic responses to the challenges presented by COVID 19.[19] Her Honour concluded any public interest element was incidental to the primary purpose of unseating the second respondent Mayor and was overwhelmed by the many allegations of no substance by Mr Innes against the second respondent.[20]
- [23]This is a very different type of case. As already discussed, the central driver of this application to hearing was proved. There was a serious shortcoming in the proper performance of the Commission’s function in that its failure to provide sufficient staff resulted in such unusually prolonged voter queuing that it caused some attending voters to abandon the process and not vote at all. That failure may have affected the result of the election.
- [24]It is correct, as the Commission submitted, that Mr Sanders had an obvious interest in the application as a losing candidate and potential candidate afresh in the event the application succeeded. But that interest is not mutually exclusive of the importance to the public of this proceeding. Mr Sanders’ application served the broader public, even though it failed, because it exposed through the public forum of a court case the serious shortcoming in the Commission’s proper performance on election day.
- [25]I accept that a court case is not the only way to expose bureaucratic shortcomings to the light of day. I also accept the Commission is likely motivated to avoid a recurrence. As much is demonstrated by its response to an independent review by the Nous Group of the 2024 local government election, which found the flawed voter turnout forecast resulted in excessive queuing and shortage of ballot papers in some locations. However, it remains that in open court proceedings resulting from a bureaucracy’s shortcoming in its service of the public interest, the public exposure of those shortcomings, tends to serve the public interest, because it makes it more likely the relevant entity will be conscientious in trying to avoid letting the public down in that way again.
- [26]The beneficial public importance of the proceeding fortifies my view that the proper exercise of my discretion is to make no order as to costs.
Conclusion and Order
- [27]I have concluded there should be no order as to costs.
- [28]In so concluding, I am conscious that some costs would have been incurred by the Commission in connection with preparing to address grounds which were abandoned and in defending the persisting complaint about ballot legibility. While not specifically argued for, that consideration might potentially justify taking a segmented costs approach by ordering Mr Sanders to pay the proportion of the Commission’s costs attributable to defending abandoned grounds and defending the complaint about ballot legibility.
- [29]However, the complaint about ballot legibility was not without foundation because, in another, albeit much more minor shortcoming in performance by the Commission, the ballot papers were printed on the wrong side, making them harder to read. Further, the cost of defending the abandoned grounds and the complaint about ballot legibility would likely have constituted a minor proportion of the Commission’s overall costs.
- [30]Those features, considered in combination with the public importance and benefit of the proceeding and the fact the main causal driver of the pursuit of the proceeding to hearing was a serious shortcoming in the proper performance of the Commission’s function, tell determinatively against taking a segmented costs approach in the exercise of my discretion.
- [31]My order is:
No order as to costs.
Footnotes
[1][2024] QSC 147.
[2]Oshlack v Richmond River Council (1998) 193 CLR 72, 121.
[3](1998) 167 CLR 133.
[4](1998) 167 CLR 133, 142.
[5](2020) 376 ALR 504, 507-508.
[6]It appears on the evidence that its funding derives not only from the State Government but also, in the conduct of local government elections, from local governments.
[7]Reasons [38].
[8]Reasons [38].
[9]Reasons [44], [45].
[10]Reasons [55].
[11]Reason [73].
[12]Reasons [47].
[13]Reasons [51].
[14]Reasons [59].
[15]Reasons [62].
[16]Reasons [14].
[17]Reasons [41].
[18][2020] QSC 320.
[19][2020] QSC 320, [28].
[20][2020] QSC 320, [27]-[28].