Sharples v Australian Electoral Commission - [2007] FCA 2102

FEDERAL COURT OF AUSTRALIA
Sharples v Australian Electoral Commission [2007] FCA 2102
PRACTICE AND PROCEDURE – commencement of proceedings by corporation – leave refused for corporation to be represented by non-lawyer
TERRY PATRICK SHARPLES AND THE FISHING PARTY v AUSTRALIAN ELECTORAL COMMISSION, AUSTRALIAN FISHING & LIFESTYLE PARTY, KEVIN COLLINS, WAYNE BAYNE, ALEX WHITTEN, MALCOLM BAIRSTOW AND COMMONWEALTH GOVERNMENT OF AUSTRALIA
ACD 53 OF 2007
FLICK J
11 DECEMBER 2007
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 53 OF 2007

BETWEEN:

TERRY PATRICK SHARPLES
First Applicant

THE FISHING PARTY
Second Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSION
First Respondent

AUSTRALIAN FISHING & LIFESTYLE PARTY
Second Respondent

KEVIN COLLINS
Third Respondent

WAYNE BAYNE
Fourth Respondent

ALEX WHITTEN
Fifth Respondent

MALCOLM BAIRSTOW
Sixth Respondent

COMMONWEALTH GOVERNMENT OF AUSTRALIA
Seventh Respondent

JUDGE:

FLICK J

DATE OF ORDER:

11 DECEMBER 2007

WHERE MADE:

CANBERRA

THE COURT ORDERS:
1.That leave as sought in paragraph 1 of the Notice of Motion as filed on 29 November 2007 be dismissed.
2.The Second Applicant to pay the costs of the First and Seventh Respondents of and incidental to the hearing of that part of the Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 53 OF 2007

BETWEEN:

TERRY PATRICK SHARPLES
First Applicant

THE FISHING PARTY
Second Applicant

AND:

AUSTRALIAN ELECTORAL COMMISSION
First Respondent

AUSTRALIAN FISHING & LIFESTYLE PARTY
Second Respondent

KEVIN COLLINS
Third Respondent

WAYNE BAYNE
Fourth Respondent

ALEX WHITTEN
Fifth Respondent

MALCOLM BAIRSTOW
Sixth Respondent

COMMONWEALTH GOVERNMENT OF AUSTRALIA
Seventh Respondent

JUDGE:

FLICK J

DATE:

11 DECEMBER 2007

PLACE:

CANBERRA

REASONS FOR JUDGMENT

Leave has been granted this afternoon to file a Notice of Motion dated 29 November 2007. Argument has proceeded upon Order 1 as sought in that Motion, namely that:
Leave be granted to appear in these proceedings as the second [Applicant] (if at law leave be required pursuant to Order 4 rule 14 of the Federal Court Rules in the alternatively [sic] leave to appeal from Orders 2 and 3 of the judgment and [sic] of Spender J delivered on the 21 November 2007, matter heard same date.
Orders 2 and 3 as made by Spender J were as follows:
1. The Second Applicant is to prosecute the application only in accordance with Order 4 rule 14 of the Federal Court Rules.
2. The Applicants’ claims for interlocutory relief be dismissed.
The hearing this afternoon in respect to the Motion has been confined to O 4 r 14 of the Federal Court Rules 1979 (Cth) and whether a non-lawyer, Mr Smith, should be given leave to appear for the Second Applicant.
Considerable reservation has been expressed as to whether or not it is appropriate to revisit Order 2 as made by Spender J on 21 November, but in the interests of the administration of justice, it has been considered desirable to do so.
On that occasion, his…

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.

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Details

Case: [2007] FCA 2102
Decision Date: 11 DECEMBER 2007

CaseChat Overview and Summary

In Sharples v Australian Electoral Commission, Terry Patrick Sharples and The Fishing Party sought to be represented by a non-lawyer in their legal proceedings against the Australian Electoral Commission, Australian Fishing & Lifestyle Party, and others. The dispute primarily revolved around the refusal of the court to allow a non-lawyer to represent a corporation in the Federal Court of Australia. The legal issue before the court was whether a non-lawyer should be granted leave to represent a corporation in proceedings, as per Order 4 rule 14 of the Federal Court Rules 1979 (Cth).

The court considered the discretion to permit a non-lawyer to appear for a corporation, referencing the high threshold of exceptional or special circumstances required under similar rules in Australia and England. The court noted that the discretion to grant leave is not as restrictive under the Federal Court Rules as it is under other jurisdictions' rules. Factors relevant to the exercise of this discretion included the class of company, its financial structure, and the qualifications of the person seeking to represent it. Despite the additional evidence provided, the court found that the evidence did not sufficiently demonstrate the qualifications, expertise, or experience of the non-lawyer, Mr. Smith, or support the serious allegations made in the application. The court emphasized the importance of legal representation in litigation to ensure the proper conduct of proceedings and the avoidance of potential errors.

The court concluded that leave should not be granted to the non-lawyer to represent the corporation, and the orders made by Justice Spender on 21 November 2007 were upheld. The court also ordered that the Second Applicant pay the costs of the First and Seventh Respondents.

Orders