Nile v Wood [No 2] [1988] HCA 30

Nile v Wood [No 2] [1988] HCA 30

The putative petition was incurably defective because it contained no prayer for relief as required by s. 355(b) of the Commonwealth Electoral Act 1918 Cth and failed to set out facts relied on to invalidate the election as required by s. 355(a); those defects could not be cured by amendment after expiry of the 40 day filing period, so no proceedings could be had on it. On the costs application, a majority held that although the Commonwealth should not pay Mrs. Nile's own costs, it was appropriate under s. 360(4) for the Commonwealth to indemnify her for the costs she was required to pay Mr. Wood because it was now known that Mr. Wood was not qualified to be elected as a senator.

Jurisdiction
Australia
Procedural Posture
Petition to the High Court as the Court of Disputed Returns Disputing a Senate Election or Return, With Subsequent Application for Costs Against the Commonwealth / Motion to Dismiss or Strike Out Petition; Application for Costs Under S. 360(1)(ix) and (4) of the Commonwealth Electoral Act 1918 Cth
Outcome
Petition dismissed with costs; Commonwealth ordered to pay Elaine Nile the amount of costs she is required to pay Robert Wood; no order as to the costs of the costs application.
Legal Topics
['court of Disputed Returns' 'requisites of Electoral Petition' 'amendment After Filing Period' 'senate Disqualification' 'costs Payable by the Commonwealth']
['electoral Law' 'constitutional Law' 'costs'] ['court of Disputed Returns' 'requisites of Electoral Petition' 'amendment After Filing Period' 'senate Disqualification' 'costs Payable by the Commonwealth']

Case Brief

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Procedural Posture

Petition to the High Court as the Court of Disputed Returns Disputing a Senate Election or Return, With Subsequent Application for Costs Against the Commonwealth / Motion to Dismiss or Strike Out Petition; Application for Costs Under S. 360(1)(ix) and (4) of the Commonwealth Electoral Act 1918 Cth

Legal Issues

  1. 1 ['Whether the petition complied with s. 355(a) of the Commonwealth Electoral Act 1918 Cth by setting out the facts relied on to invalidate the election or return.' 'Whether the petition complied with s. 355(b) of the Commonwealth Electoral Act 1918 Cth by containing a prayer asking for the relief claimed.' 'Whether defects in the petition could be cured by amendment after the 40 day filing period had expired.' 'Whether the allegations concerning convictions, insolvency and allegiance to a foreign power pleaded facts capable of engaging s. 44 of the Constitution.' "Whether it was appropriate under s. 360(4) of the Commonwealth Electoral Act 1918 Cth to order the Commonwealth to pay Mrs. Nile's costs or the costs she was ordered to pay Mr. Wood."]

Ratio Decidendi

The putative petition was incurably defective because it contained no prayer for relief as required by s. 355(b) of the Commonwealth Electoral Act 1918 Cth and failed to set out facts relied on to invalidate the election as required by s. 355(a); those defects could not be cured by amendment after expiry of the 40 day filing period, so no proceedings could be had on it. On the costs application, a majority held that although the Commonwealth should not pay Mrs. Nile's own costs, it was appropriate under s. 360(4) for the Commonwealth to indemnify her for the costs she was required to pay Mr. Wood because it was now known that Mr. Wood was not qualified to be elected as a senator.

Court Disposition

Petition dismissed with costs; Commonwealth ordered to pay Elaine Nile the amount of costs she is required to pay Robert Wood; no order as to the costs of the costs application.

Orders

  • ['Petition dismissed with costs.' 'Liberty to petitioner to apply to the Court that the Commonwealth pay the costs of the petitioner and the costs of the first respondent which the petitioner was ordered to pay.' 'Order that the Commonwealth pay to Elaine Nile the amount of costs which she is required to pay to...