Sharples v Australian Electoral Commission (No 3) - [2008] FCA 63

FEDERAL COURT OF AUSTRALIA
Sharples v Australian Electoral Commission (No 3) [2008] FCA 63
PRACTICE AND PROCEDURE – Federal Court Rules 1979 (Cth) O 80 – Request by party for referral to legal practitioner – referral refused – held that Order 80 confined to proceedings before the Court – held that Order 80 does not extend to making a referral prior to commencement of proceedings – proceedings not properly “commenced” or “carried on”
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
12 FEBRUARY 2008
SYDNEY

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:

12 FEBRUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Leave be granted to the First Applicant, Terry Patrick Sharples, to discontinue the proceedings.

2.There be no order as to costs other than the order as to costs made on 11 December 2007.

3.The proceedings be otherwise dismissed.

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:

12 FEBRUARY 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

These proceedings have been commenced by way of an Application filed on 21 November 2007. That Application identifies the Applicants as being Terry Patrick Sharples, First Applicant, and The Fishing Party, as being the Second Applicant. There are a number of Respondents, including the Australian Electoral Commission as the First Respondent and the Australian Fishing & Lifestyle Party as the Second Respondent.
The Application seeks (inter alia) a declaration that the registration of the Australian Fishing & Lifestyle Party pursuant to the Commonwealth Electoral Act1918 (Cth) was “induced or procured by fraud or misleading information.”
Order 4, r 6(1A) of the Federal Court Rules 1979 (Cth) provides that “an applicant seeking to rely on an allegation of fraud, misrepresentation, breach of trust, wilful default or undue influence must file and serve a statement of claim.”
On 12 December 2007 a directions hearing was held in Canberra and a variety of matters were then addressed, including a direction for the filing by the Applicants of a “Statement of Claim, including particulars of any fraud or…

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: [2008] FCA 63
Decision Date: 12 February 2008

CaseChat Overview and Summary

The case of Sharples v Australian Electoral Commission (No 3) involved Terry Patrick Sharples, the first applicant, who sought to discontinue his legal action against the Australian Electoral Commission. The dispute centred on the electoral processes and the applicant's standing to challenge the electoral system. The matter was brought before the Federal Court of Australia, which had jurisdiction over the constitutional and administrative aspects of the electoral law.

The court had to determine whether it was appropriate to grant the applicant's request to discontinue the proceedings. This involved examining the legal principles surrounding the discontinuance of litigation, including whether there were any public interest considerations that might warrant the court's refusal to allow the discontinuation. The court also had to consider the implications of the previous orders made in the case, particularly the costs order dated 11 December 2007, and how these might affect the current application.

The Federal Court found that the application to discontinue the proceedings should be granted. It noted that there were no overriding public interest reasons to prevent the discontinuance. The court also confirmed that the previous costs order would remain in effect unless otherwise specified. Consequently, the court dismissed the proceedings without further costs order, apart from the previously made costs directive.

The final orders included granting leave to the first applicant to discontinue the proceedings, maintaining the previous costs order, and dismissing the case with no further order as to costs. This decision effectively concluded the litigation between the parties, allowing the applicant to withdraw from the legal action without additional financial repercussions.

Orders

Orders of the court

1. Leave be granted to the First Applicant, Terry Patrick Sharples, to discontinue the proceedings.

2. There be no order as to costs other than the order as to costs made on 11 December 2007.

3. The proceedings be otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FLICK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FLICK J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 53 OF 2007

JUDGE:	FLICK J
DATE OF ORDER:	12 FEBRUARY 2008
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 53 OF 2007

JUDGE:	FLICK J
DATE:	12 FEBRUARY 2008
PLACE:	SYDNEY