Sharples v Arnison - [2001] QCA 274

[2001] QCA 274

COURT OF APPEAL

de JERSEY CJ
THOMAS JA
PHILIPPIDES J

Appeal No 2972 of 2001

TERRY PATRICK SHARPLES Appellant (Plaintiff)

and

MAJOR GENERAL PETER ARNISON First Respondent
(First Defendant)

and

PETER DOUGLAS BEATTIE Second Respondent
(Second Defendant)

and

DESMOND JOSEPH O'SHEA Third Respondent
(Third Defendant)

BRISBANE

..DATE 16/07/2001

JUDGMENT

THE CHIEF JUSTICE: The appellant unsuccessfully applied to Mr Justice Ambrose under the Judicial Review Act for the review of the decision of the first respondent, the Governor of the State of Queensland, to issue a writ for the state election which occurred earlier this year, and the decision of the second respondent, the Premier of the State of Queensland, to advise the Governor to issue that writ, and for "review in the nature of an information of quo warranto" as to the entitlement of the Governor, the Premier and the third respondent, the Electoral Commissioner, to hold their respective offices.

The appellant separately applied, again unsuccessfully, for an order under section 49, subsection 1, paragraph (d), of the Judicial Review Act that the respondents should indemnify him in respect of his costs on a "solicitor/client basis".

Mr Justice Ambrose refused each application with costs to be assessed on a standard basis. The appellant appealed by notice dated 2 April 2001 against the orders made on each application. By application filed on 6 June 2001 the appellant sought the stay of the costs order made by
Mr Justice Ambrose on 5 March 2001 in dismissing the appellant's application for judicial review, that is, that the appellant pay the respondent's costs including the reserved costs assessed on the standard basis, to include the respondents' costs of setting aside two subpoenas issued at the instance of the appellant.

Additionally, the appellant sought an order that the respondents indemnify him for the costs of the appeal or alternatively that the parties bear their own costs "regardless of the outcome".

A month later on 6 July 2001 the respondents applied for an order that the appellant provide security for their costs of the appeal in the amount of $7,000. It is those two applications which are listed for hearing today.

The appellant's application is made under section 49, subsection 1 of the Judicial Review Act. As stated, the appellant made a similar application under that provision before Mr Justice Ambrose. The appellant relied then on the circumstances that he was not legally represented, that he had no assets of value (he placed an upper limit of $500 on the value of his assets), that his income was approximately $200 per week and that the issue was one "of special importance to the people of Queensland and the rule of law".

While doubting that the proceeding involved an issue which affected or may affect some "personal right or interest" of the appellant (see section 49, subsection 2, paragraph (b)), Mr Justice Ambrose took the view that there was no reasonable basis for the review application in terms of section 49(2)(c) and was unpersuaded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharples v Arnison

Details

AGLC: Sharples v Arnison [2001] QCA 274
Case: [2001] QCA 274
Decision Date: 16/07/2001

CaseChat Overview and Summary

In the case of Sharples v Arnison, the appellant sought judicial review of decisions made by the Governor of Queensland, the Premier of Queensland, and the Electoral Commissioner of Queensland in relation to a state election. The appellant also sought an order for the respondents to indemnify him for his costs on a solicitor/client basis and an order that the respondents bear their own costs of the appeal. The appellant appealed the orders made by Mr Justice Ambrose which dismissed his applications and assessed his costs on a standard basis. The respondents applied for an order that the appellant provide security for their costs of the appeal in the amount of $7,000. The Court of Appeal refused the appellant's applications and the respondents' application for security for costs.
The central issue before the Court of Appeal was whether the appellant's constitutional argument, which was that the appointments of the Governor, Premier, and Electoral Commissioner were invalid because the Constitution (Office of Governor) Act 1987 was not approved by electors at a referendum, had a reasonable prospect of success. The Court of Appeal found that the argument had no reasonable prospect of success, as it had been considered on three occasions and found to be without merit. The Court of Appeal also found that the appellant's allegations of bias and prejudgment against Mr Justice Ambrose were without substance. The Court of Appeal considered the considerations listed in section 49(2) of the Judicial Review Act and found that the appellant's financial resources were very limited, the issue he pursued may affect the public interest, but it was doubtful it affected any personal right or interest of his own, and the central point for consideration had no reasonable prospect of being resolved in the appellant's favour.
The Court of Appeal refused the appellant's applications and the respondents' application for security for costs. The Court of Appeal found that ordering security at this stage would most likely frustrate the appeal and was therefore inappropriate. The Court of Appeal reserved the question of costs pending any further submission. The Court of Appeal emphasised that the orders involved a refusal of the application for stay which was involved in the section 49 application brought by the appellant. The Court of Appeal ordered that each application was refused and on each application costs were reserved.

Orders