Sharples v Attorney-General of Qld

[2000] QSC 333

SUPREME COURT OF QUEENSLAND

CITATION:

Sharples v Attorney-General of Qld [2000] QSC 333

PARTIES:

TERRY PATRICK SHARPLES
(applicant)
v
ATTORNEY-GENERAL OF QUEENSLAND
(respondent)

FILE NO:

6273 of 2000

DIVISION:

Trial Division

DELIVERED ON:

2 November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2000

JUDGE:

Mullins J

ORDER:

1.  Leave be given to the applicant to read and file the affidavit of Terry Patrick Sharples sworn on 21 September 2000.
2.  Application filed on 28 August 2000 be dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – s49(1)(d) and (e) Judicial Review Act 1991(Q) – whether special costs order should be made – whether proceeding discloses a reasonable basis for the review.

Attorney-General Act 1999
Electoral Act 1992
Judiciary Act 1993 (Cth)

Anghel v Minister for Transport (No 2) [1995] 2QdR 454 Cairns Port Authority v Albietz [1995] 2QdR 470
Levy v State of Victoria (1997) 189 CLR 579

COUNSEL:

The applicant appeared on his own behalf
M D  Hinson SC for the respondent

SOLICITORS:

Crown Solicitor for the respondent

1. MULLINS J: This is an application for a costs order pursuant to either s49(1)(d) or (e) of the Judicial Review Act 1992 ("the Act").  The application was filed on 28 August 2000.The applicant is seeking that the respondent indemnify the applicant in relation to costs incurred in the application for a statutory order review originally filed on 20 July 2000 and amended on 11 August 2000 ("the principal proceeding") on a party to party basis. A similar order relying on section 49(1)(d) of the Act was also sought in the application for a statutory order of review. In the alternative, the applicant seeks that each party to the principal proceeding bear his own costs of the principal proceeding.

1. An order that the directions made by Mackenzie J on 2 August 2000 be varied, so that the applicant provide further and better particulars 7 days after the orders the subject of the costs application are delivered, with all further direction times as set down by Mackenzie J to be amended accordingly, is also sought as part of the costs application.

1. The applicant was the plaintiff in Supreme Court action number 6318 of 1998 against Mr Desmond J O'Shea, the Electoral Commissioner of Queensland, as first defendant and Ms Pauline Lee Hanson as representative of herself and all members of Pauline Hanson's One Nation ("PHON"), as second defendant ("the second defendant").  In that action the applicant sought a review of the decision of the first defendant to register PHON as a political party under the Electoral Act 1992. In a judgment delivered on 18 August 1999 Atkinson J found that the decision to register PHON under the Electoral Act 1992 as a political party was induced by fraud or misrepresentation, set aside the decision of the Electoral Commissioner and decided that PHON was not entitled to registration as a political party in Queensland, as it did not satisfy the requirement of section 70 of the Electoral Act 1992.

1. The second defendant appealed against that decision to the Court of Appeal.  The appeal was dismissed on 10 March 2000.

1. The second defendant has applied to the High Court for special leave to appeal from the decision of the Court of Appeal.  That application is number B26 of 2000. 

1. The applicant is the respondent to the special leave application.  He is impecunious and confident that he does not qualify for legal aid for opposing the application for special leave. 

1. On 17 April 2000 the applicant wrote to the respondent requesting advice as to whether or not the State of Queensland would join in the application for special leave to defend the decision of  the Court of Appeal.  The applicant stated:

"I now ask you to take control of this case for the people of this state.

The case has significant ramifications both legally and politically and I call on you to do your duty and protect the public interest.  This is your oath and responsibility of office. 

Again, I implore you to act.  It is unfair to expect one sole Queensland family to shoulder the financial and emotional burden of such a large legal action and to fight the combined resources of the Crown as well as One Nation."

1. The respondent's reply to that letter was dated 27 April 2000 and advised:

"There is no basis upon which the Attorney-General could seek to take control of the case on your behalf as you have suggested.  You are the respondent to the application for special leave, and the State cannot respond to that application in your stead.

I have been advised that the Electoral Commissioner will be seeking leave to be made a party to the proceedings in the High Court on the basis that he will assist the Court as the Court sees fit, and will otherwise abide the order of the Court.  I understand the Crown Solicitor has written to you today to advise you of the Electoral Commissioner's intention." 

1. By letter dated 27 April 2000 the Crown Solicitor advised the applicant of his instructions that in the interests of justice, the Electoral Commissioner would be seeking leave to be made a party to the application by the second defendant for special leave to appeal to the High Court.  The applicant was informed that the Electoral Commissioner would seek to provide such assistance to the High Court as the court may request and would otherwise abide the order of the court, but would not assume the burden of any costs which the applicant may have incurred or which he may incur in the future. 

1. It appears that the Electoral Commissioner has filed an outline of argument in respect of the second defendant's special leave application.  Although it is not in evidence, reference is made to the outline by the applicant in one of his letters which is Exhibit "JR5" to his affidavit filed 27 July 2000.  The applicant refers to the outline as comprising three sentences and states:

"In no way does it address any of the issues raised by the Applicant, except to attempt to protect its own position."

I infer that the reference to "Applicant" is to the second defendant as applicant for special leave. 

1. By the principal proceeding the applicant seeks a review of four decisions of the respondent which are set out in the amended application as follows:

1.          The respondent's failure to made (sic) a decision within reasonable time as to the applicant's request of him in good faith to intercede in the proceedings in the matter, Sharples v O'Shea and Hanson S6318 of 1998 before the Supreme Court of Queensland ("the first decision").                

2.          The respondent's decision to refuse to intercede in the appeal Sharples v O'Shea and Hanson 7592/99 before the Full Court of Appeal, Supreme Court of Queensland ("the second decision").

3.          The respondent's refusal to intercede in the special leave appeal Hanson v Sharples B26/2000 currently before the High Court of Australia ("the third decision").

4.          The respondent's decision or failure to make a decision as the first law officer of the state, to exercise his powers for proper statutory and public purpose and report to the Legislative Assembly and His Excellency the Governor of Queensland the legal effects of the orders of Atkinson J delivered on 18 August 1999 in the matter Sharples v O'Shea and Hanson S6318 of 1998 on the validity of the election of members to the forty-ninth Legislative Assembly of Queensland and the effect on laws passed and being considered by the House (the fourth decision").

1. At the hearing of the costs application the applicant relied on a number of his affidavits filed in the principal proceeding.  After the decision was reserved, the applicant sought to rely on a further affidavit sworn by him on 21 September 2000 and an amended submission dated the same date.  The respondent did not object to my receiving that amended submission and further affidavit.  Leave is therefore given to the applicant to file his affidavit sworn on 21 September 2000 and rely on that in connection with the costs application.  The amended submission will be Exhibit 4.  

1. The principal application is expressly stated to be made pursuant to sections 20 and 21 of the Act or, alternatively, pursuant to section 43 of the Act. 

1. Both parties made submissions by reference to the background to the enactment of section 49 of the Act and to existing authorities as to the construction and application of sections 49(1) and (2) of the Act.  I considered similar submissions in connection with a costs application by the same applicant in Sharples v Council of the Queensland Law Society Incorporated (File No 6375 of 2000) in respect of which I have delivered my reasons of judgment on the same date as this judgment.  Rather than repeating what I set out in that judgment relating to the authorities on and construction of sections 49(1) and (2) of the Act, I will apply in this matter what I set out in paragraphs 18 to 26 of that judgment.

1. The first and second decisions involved court proceedings which have been concluded.  No relief is claimed in the amended application in respect of these decisions.  There is no point in the applicant's continuing to seek to have these decisions reviewed.  As there is no reasonable basis for the review of these decisions, the applicant therefore cannot be successful on the costs application in relation to the review of the first and second decisions.

1. The third decision relates to the respondent's decision not to seek to intervene in the second defendant's special leave application which has not yet been heard by the High Court.  The relief which the applicant seeks in respect of that decision is set out in paragraphs 2 and 3 in the orders claimed by the applicant in the amended application as follows:

"2.  An order in the nature of Mandamus requiring the Attorney-General to hear the applicant and re-consider the request of the Applicant, for the State of Queensland to intercede in proceedings B26/2000 Sharples v Hanson & Antor before the High Court of Australia to defend the decisions of our judges, with reasons.

3. An order in the nature of Mandamus requiring the Attorney-General to carry out his duty, pursuant to the Attorney-General Act (Qld) 1999 and enforce and protect the public interest in Queensland."

1. The amended application contains no statement of the grounds for review of the third decision.  The applicant's affidavits do not indicate the type of evidence on which the applicant proposes to rely to support a review of the third decision or a prerogative order in the nature of  mandamus in relation to the exercise by the respondent of the power to consider whether or not the State or himself as the Attorney-General should seek to intervene in the second defendant's special leave application in the public interest. 

1. An issue did arise during the hearing of the costs application as to whether there was any basis on which the respondent could seek to intervene in the second defendant's special leave application.  There is no right of intervention pursuant to section 78A(1) of the Judiciary Act 1993 (Cth), as that application does not relate to a matter arising under the Constitution or involving its interpretation. The High Court does, however, have jurisdiction to allow non-party intervention in proceedings before it. The nature of that jurisdiction and when it is exercised in explained by Brennan CJ in Levy v State of Victoria (1997) 189 CLR 579, 600-605.

1. On the hearing of the costs application, the respondent conceded that the general subject matter of the principal proceeding may be said to involve issues affecting the public interest.  By the very nature of the decision to which a review application under the Act applies, there is always an element of public interest.  It is apparent from the observations made in Anghel v Minister for Transport (No 2) [1995] 2QdR 454, 456 and 460 and Cairns Port Authority v Albietz [1995] 2QdR 470, 475 that there will usually be some broader public interest involved in the particular application to justify a special costs order, than the usual public interest which must be present in every review application to which the Act applies.

1. What is the subject of the review application in relation to the third decision is not the subject matter of the special leave application brought by the second defendant, but the process of the respondent's decision making to refuse to seek leave either on his own behalf or on behalf of the State of Queensland to intervene in that special leave application.  The public interest in the subject matter of the special leave application would be a relevant consideration in that process, but is not coincident with the public interest in the process of the respondent's decision making.  

1. It is not apparent on the material relied on by the applicant as to what the wider public interest is in relation to that process.  The applicant asserts that:

"The critical questions are whether the intervention of the Court is desirable or appropriate in the control of the discretionary power of the office of the Attorney-General.  The matter has the benefit of clarifying this point of public importance and law."

It is also not apparent from the applicant's material that the process of the respondent's decision making in relation to the third decision raises some point of public importance and law which requires clarification.  I am therefore not convinced that the wider public interest required to satisfy section 49(2)(b) exists in relation to the third decision.

1. In any case, there is not sufficient particularity in either the amended application or the supporting affidavits to conclude at this stage that there is a reasonable basis for the review application in relation to the third decision. 

1. Although I accept the submission of the applicant that it is relevant to the costs application to consider the matters which are a consequence of his impecuniosity - that he is unable to obtain legal aid, the disparity of financial and legal resources between the applicant and the respondent and that without legal funding to the applicant which a special costs order under section 49 of the Act would enable him to obtain, he will be appearing on the review application as a litigant in person without any legal training - those matters do not outweigh the conclusions which I have reached about lack of public interest and lack of a reasonable basis for the review application in respect of the third decision.

1. The fourth decision or failure to make a decision relates to an alleged failure by the respondent to report to the Legislative Assembly and the Governor on the legal effect of orders made by Atkinson J on 18 August 1999 on the validity of the election of members of the 49^th Legislative Assembly and the effect on laws passed by the 49^th Legislative Assembly.  The relief sought in paragraph 4 of the orders claimed in the amended application is as follows:

"An order in the nature of Mandamus requiring the Attorney-General to report to His Excellency the Governor and The Legislative Assembly of Queensland, as required by law, as to whether:        

(a)The fraudulent nomination of 79 candidates by Pauline Lee Hanson, caused the Queensland General Election of 13 June, 1998 to miscarry.

(b)Whether the forty-ninth Queensland Legislative Assembly is invalidly constituted, in accordance with the Constitutions Act (Qld) 1867."

1. The grounds of review in the amended application relevant to the fourth decision allege that the respondent addressed the Legislative Assembly on 18 August 1999, and advised that the decision of Atkinson J could not affect the validity of the 1998 State Election, that the respondent had obtained legal advice prior to that decision that there were major constitutional and electoral issues suggesting the election was invalid and that the respondent failed, for improper purposes, to make that advice publicly available. 

1. The sources of the respondent's duty relied on by the applicant to seek to review of the fourth decision and the relief sought in the nature of mandamus is not identified by the applicant.  Although reference is made by the applicant to the Attorney- General Act 1999, the reporting obligations in part 4 of that Act are not applicable to the report which the applicant seeks to have the respondent make about the decision of Atkinson J delivered on 18 August 1999. 

1. I accept the submissions made on behalf of the respondent that the failure alleged by the applicant against the respondent to report to the Legislative Assembly is not justiciable under the Act on the basis that the respondent as a Minister of the Crown is responsible to Parliament under the accepted notions of responsible government and has no statutory obligation to make the report sought by the applicant in the principal proceeding. 

1. The principal proceeding therefore discloses no reasonable basis for the review application in respect of the fourth decision. 

1. I therefore consider that none of the four decisions the subject of the review application can support a special costs order under section 49(1) of the Act.  The application filed on 28 August 2000 must be dismissed.

1. I will hear submissions from the parties on the question of the costs of the application and on the timetable for the balance of the directions made by Mackenzie J on 2 August 2000.