Clampett v Wensley

Case [2009] QCA 277

SUPREME COURT OF QUEENSLAND

CITATION:

Clampett v Wensley & Ors [2009] QCA 277

PARTIES:

CLAMPETT, Leonard William
(applicant/appellant)
v
WENSLEY, Penelope
(first respondent/first respondent)
BLIGH, Anna
(second respondent/second respondent)
KERSLAKE, David
(third respondent/third respondent)

FILE NO/S:

Appeal No 6608 of 2009
SC No 4123 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Court of Disputed Returns at Brisbane

DELIVERED ON:

15 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2009

JUDGES:

McMurdo P, Holmes JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. The appellant pay the costs of the respondents of and incidental to the appeal to be assessed.

CATCHWORDS:

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTION AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTION COURTS OR TRIBUNALS – APPEALS FROM – where the appellant filed an application seeking an order that the election of all 89 members of the Legislative Assembly returned at the 2009 election be declared null and void – where the appellant failed to file the application within seven days after the writ for the election was returned – where the appellant failed to deposit the required $400 fee with the court when filing the application – where Court of Disputed Returns dismissed application – where appellant raises arguments concerning validity of state legislation and the “currency argument” that had previously been rejected by the Court of Appeal – whether appeal raised a question of law of merit

Commonwealth Constitution (Cth), s 115
Electoral Act 1992 (Qld), s 130(3), s 141, s 148A

Caltabiano v Electoral Commission of Qld & Anor[2009] QCA 182, cited
Clampett v Kerslake (Electoral Commissioner of Queensland) [2009] QCA 104, cited
Clampett v Wensley & Ors [2009] QSC 164, approved
Lohe v Gunter [2003] QSC 150, cited
Muldowney v Australian Electoral Commission (1993) 178 CLR 34; [1993] HCA 32, applied
Re Skyring’s Application (No 2) (1985) 58 ALR 629, cited
Rudolphy v Lightfoot (1999) 197 CLR 500; [1999] HCA 61, cited
Sharples v Arnison [2002] 2 Qd R 444; [2001] QCA 518, cited
Skyring v Electoral Commission of Queensland[2001] QSC 080, cited

COUNSEL:

The appellant appeared on his own behalf
A Horneman-Wren for the first and second respondents
M D Hinson SC for the third respondent

SOLICITORS:

The appellant appeared on his own behalf
Crown Law for the first, second and third respondents

  1. McMURDO P: The appeal should be dismissed with costs for the reasons given by Applegarth J.

  1. HOLMES JA:  I agree with the reasons of Applegarth J and with the orders his Honour proposes.

  1. APPLEGARTH J:  On 20 April 2009 the appellant purported to file an “election petition” in the Supreme Court of Queensland sitting as the Court of Disputed Returns concerning “the election of the entire complement of Members of the Queensland Legislative Assembly,…

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Details
AGLC
Clampett v Wensley [2009] QCA 277
Case
[2009] QCA 277
Decision Date

CaseChat Overview and Summary

In Clampett v Wensley, the appellant sought to challenge the validity of the 2009 election of all 89 members of the Legislative Assembly. The case reached the court following an unsuccessful application to the Court of Disputed Returns, which dismissed the appellant's claim on procedural grounds. The appellant's application was deemed out of time, as it was not filed within the seven-day window after the writ for the election was returned, and the appellant had also failed to pay the required $400 filing fee. The appellant sought to appeal the dismissal on the basis that the Court of Disputed Returns had not correctly applied the law in respect of the time limitation and the fee requirement, and also sought to re-litigate the substantive issues of the validity of the state legislation and the so-called "currency argument".

The court was required to consider whether the appeal raised a question of law of public importance that merited the intervention of the court. The court noted that the appellant had not demonstrated that the appeal raised such a question of law. The court held that the issues raised were matters of statutory interpretation and procedural fairness that did not engage the public interest exception to the time limitation on appeals. The court further held that the appellant's arguments concerning the validity of the state legislation and the currency argument had already been considered and rejected by the Court of Appeal, and that there was no merit in re-litigating these issues.

The court dismissed the appeal and ordered the appellant to pay the costs of the respondents of and incidental to the appeal to be assessed. The court held that the appeal was a frivolous and vexatious use of the court's time and resources, and that the appellant's conduct in pursuing the appeal demonstrated a lack of good faith. The court held that the appellant's appeal was an abuse of process and that the costs order was necessary to deter such conduct in the future.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the costs of the respondents of and incidental to the appeal to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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