AEC fails in bid to recover all costs in case against ex-MP over Facebook posts

The Australian election watchdog has failed to recover all of its costs in its case against former federal MP Andrew Laming over five Facebook posts, three of which were found to have breached the Electoral Act.

Former federal MP Andrew Laming was ordered to pay 60 per cent of the Australian Electoral Commission’s costs in a case that found he breached the Electoral Act using Facebook.

The Australian election watchdog has failed to recover nearly half of its costs in its case against former federal MP Andrew Laming over five Facebooks posts.

This month, Dr Laming was ordered to pay 60 per cent of the Australian Electoral Commission’s legal costs in the case in which he was found to have breached the Electoral Act in three out of five Facebook posts.

However, all payments of costs were put on hold while Dr Laming appeals the findings and the AEC’s claims in the Court of Appeal.

Dr Laming was fined $20,000 for the three breaches in August after the Federal Court found he posted electoral matter on the “Redland Hospital: Let’s fight for fair funding” Facebook page without his name or town.

Former Bowman MP Andrew Laming. Picture: NCA NewsWIRE/Tertius Pickard

The court found Dr Laming had not disclosed that he was the administrator of the page.

Dr Laming appealed that finding in August and it is now before the Court of Appeal.

This month, Federal Court judge Justice Darryl Rangiah ruled that Dr Laming pay a portion of the AEC’s party and party costs in a lump sum, with the exact amount to be determined by the court registrar.

The court also suspended the payment of the fines made in August while Dr Laming’s appeals and the AEC’s cross-appeal are before a court.

Dr Laming’s barrister Jules Moxon asked Justice Rangiah not to proceed to determine the legal costs while the appeal and cross-appeal were pending as “the result may affect the appropriate orders for costs”.

Mr Moxon also told the court it would be “inefficient” to make orders for costs which might have to be revisited or modified by the Full Court.

In his ruling, Justice Rangiah started by saying the AEC had been successful in the original case and the payment of costs would be an appropriate starting point.

However, he said the AEC had “not been entirely successful” and had failed in respect of two of five Facebook posts it alleged contravened the Electoral Act.

The AEC v Andrew Laming case was heard in the Federal Court.

“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,” the ruling stated.

Justice Rangiah noted that the AEC said it would postpone the assessment of costs until the appeal process had concluded.

In August, Justice Rangiah fined Dr Laming $10,000 for a “serious” post on the “Redland Hospital: Let’s fight for fair funding” page made in December 2018, and $5000 each for two others made in February and March 2019.

Dr Laming this week said the posts were “factual and completely inadvertent” and were three posts out of more than 220 on the page which were seen by less than 10 people each in the relevant period.

“The entire judgment has been appealed and I am maintaining the breach was technical, minuscule and the AEC concealed documents to prevent me from establishing my innocence,” he said.

In his November 7 order, Justice Rangiah rejected Dr Laming’s lawyers' submission that the AEC concealed or withheld relevant information.

“I accept that the AEC 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 AEC’s failure to do so created additional costs,” the court order said.

“I do not accept that the applicant engaged in any disentitling conduct.”

The AEC and its lawyers from the Australian Government Solicitor said it was limited in what it could say on matters before a court.

In a statement, the AEC said it did not submit the 2018 Determination document as it was not relevant to its claim.

Originally published as AEC fails in bid to recover all costs in case against ex-MP over Facebook posts