Sharples v Electoral Commission of Queensland

[2001] QCA 418

[2001] QCA 418

COURT OF APPEAL

McPHERSON JA
THOMAS JA
JONES J

Appeal No 5205 of 2001

GRAHAME ARTHUR MOGG               Not a Party to the Appeal
            (First Applicant)
and

TERRY PATRICK SHARPLES  Appellant
            (Second Applicant)
and

ELECTORAL COMMISSION OF QUEENSLAND               Respondent
            (Respondent)

BRISBANE

..DATE 02/10/2001

JUDGMENT

McPHERSON JA:  This is an appeal against an order dismissing the appellant's application for judicial review of a decision of the Electoral Commission for which he insisted reasons be given by the Commission.

The history of the matter is that the applicant, Mr Sharples, instituted proceedings against Mrs Pauline Hanson to establish that the One Nation Party was improperly registered with the Electoral Commission.  The proceedings to that end were successful and the party's registration was, in the result, nullified.

In the meantime, however, the Commission had paid to the party or to Mrs Hanson a sum of the order of $500,000 in respect of electoral expenses.  Following deregistration of the party, the Commission sued to recover that sum, together with interest under the Supreme Court Act.  The action was compromised on terms of repayment of the principal sum but without interest. 

The appellant, with another applicant named Mr Mogg, then sought an order that the Commission give reasons explaining why it had not pursued the claim for interest.

Mr Justice Muir in the Supreme Court refused the application. He did so essentially on two grounds.  One was that the Judicial Review Act 1991 makes it a prerequisite that the decision sought to be reviewed be one that was made or given under an enactment. The definition in s 4 of the expression "a decision to which this Act applies" incorporates that requirement.

The other point on which his Honour refused the application was that the decision fell within the statutory exemption from review provided in s 31 of the Judicial Review Act.  That section refers to a class of decisions set out in Schedule 2, among which are decisions in relation to the institution or conduct of proceedings in civil Courts.

In my view, the decision of Mr Justice Muir was plainly correct on both points.  The Commission's decision to compromise an action by forgoing interest claimed in an action is clearly a decision in relation to the conduct of proceedings in a civil court.

I also consider that the decision was not one made "under an enactment" within the meaning of the Judicial Review Act. That is so, in my opinion, even if, as is the case here, the cause of action to recover the money paid is given the character of a debt due to the State which is recoverable under the Electoral Act 1992.

It is not the character of the cause of action that determines whether the decision, in this case to forego interest on the principal sum, was taken under an enactment or statute.

The power and decision to compromise the claim in that way is independent of the cause of action.  It is an aspect of the litigation which the Electoral Commission inevitably possesses as an incident of its being a litigant in the proceedings. 

This makes it, in my view, unnecessary to determine whether the original applicants had the necessary standing to make the application in this matter in the first place.  On either view, the appeal, in my opinion, should fail.  I would dismiss it.

THOMAS JA:  I agree.  During today's hearing Mr Sharples attempted to raise some new grounds and to call fresh evidence to support them.  These included allegations of widely-based conspiracies involving public figures.  The foreshadowed grounds could not possibly create a right in
Mr Sharples to be given reasons for the alleged administrative decision when, as here, no such right exists.

Neither could it convert the Commission's decision to forego part of a legal claim into a decision under an enactment.  The claim that was made before Justice Muir was rightly refused.  There is no merit in the appeal and I agree that it must be dismissed.

JONES J:  I agree also that the appeal should be dismissed.

MR PLUNKETT:  I ask that the respondent's costs be paid.

McPHERSON JA:  Well, now, Mr Sharples, the Commission asks for the costs of this appeal against you.  What have you to say against that?

APPELLANT: Your Honour, section 50, if I could draw your attention to the Judicial Review Act, deals with costs in relation to applications for reasons. In particular I refer your Honour to section 50B which allows the Court a discretion as to whether or not the applicant is to pay costs to the respondent should he be wholly unsuccessful in his application.

My first point in respect of this is that we were not - that is Mr Mogg and I - wholly unsuccessful before Justice Muir.  He only decided to use his discretion toward half costs against us.  That certainly doesn't indicate wholly unsuccessful.  Secondly, if one reads the Statute which reads like this, "If the application is wholly unsuccessful in obtaining relief sought and" - and I emphasise "and" - "if the application (a) does not disclose a reasonable basis (b) is frivolous or vexatious or is an abuse of process of the Court."  I have heard no argument here or before Justice Muir that the application that Mr Mogg and I brought was anything other than genuine or that it was an abuse of process.

McPHERSON JA:  I should have explained though, Mr Sharples, we have now reached the point where we're looking not at the first application and the costs of it, but the costs of this appeal.

APPELLANT:  Well, I say again there is no abuse of process.  It is not frivolous.

THOMAS JA:  But section 50 applies to the application and not to the appeal.

APPELLANT:  I see.  Well, what section applies to the appeal?  That is the only section that I can see applies to costs in relation to reasons for decisions.

THOMAS JA:  We have a separate charter, if you like, and power to award costs on appeals.

APPELLANT: What, in relation to the Supreme Court Act?

THOMAS JA:  Yes.

APPELLANT: Well, your Honour knows my view on the Supreme Court Act in that it is not a valid document, but I don't want to bore you with that argument. What I would say though is the purpose of the Judicial Review Act is probably reflected in relation to how a Court exercises its discretion under section 49 and the very worst a litigant should face is having to bear his own costs if he brings a public interest action that he is not being judged to fall within any of the criteria in 50B(ii) and I see no evidence before the Court that I have heard that it falls - any one of those sections applies to my application.

McPHERSON JA:  Let me say two things about that.  One is that on the face of it I think section 50 applies only to the original application.  On the second - the second thing that I wish to say about it is that it seems to me that whereas you might reasonably run one of these applications before the primary Court and not incur costs for it, once you had a decision with reasons and you bring it on appeal and fail to argue it, as you did here, it does not seem to me there is any reason why costs should not be awarded.  Indeed, the application would seem to me at this level not to disclose a reasonable basis.

So I think that on either basis you ought to pay the costs here but I will ask Mr‑‑‑‑‑

APPELLANT:  May I add to my submissions?

McPHERSON JA:  Yes, by all means.

APPELLANT: Thank you. There is further argument, I believe, is strengthened that costs ought not to apply in relation to someone using his right to reasons. It was fundamental to the Judicial Review Act, and in fact the Freedom of Information Act and the other Acts that came out of the EARC and Fitzgerald era, that citizens who are aggrieved can properly approach the Court to judicially review the administrative decisions of executive Governments and of their public servants and, indeed, the committee, and I am sure you're aware of it, unless I need to read it out. The Honourable Attorney-General at the time indicated that it was absolutely the touchstone of judicial review the right to reasons to the extent that‑‑‑‑‑

McPHERSON JA:  Well, you made an application to the Court and Mr Justice Muir held that you were not entitled to reasons because that was the law.  Now, having had that decision, you bring an appeal against it.

APPELLANT:  Well, it is a matter of my right to bring an appeal surely.

McPHERSON JA:  Sure and it is your duty to pay the costs if the appeal is without substance.

APPELLANT:  Well, I argue, of course, that that is not the case, but the point I was trying to make was that the appeal - there were no filing fees required in the original application as per Statute, nor were there any filing fees required in the appeal, and the reason for that is simply that the whole Parliamentary purpose of putting these pieces of legislation into play supports the right by people to seek reasons and there is nothing wrong, if you believe a Justice has made a decision incorrectly, to bring an appeal.  It is just a normal right, a normal appellate process.

McPHERSON JA:  And the normal consequence of that is that if it turns out that your appeal is dismissed you pay the costs.

APPELLANT:  Well, I argue that that shouldn't be the case. 

McPHERSON JA:  Well, it is the normal rule.

APPELLANT:  I argue that is not the intent of the Act.

McPHERSON JA:  It has been the rule since about 1350 and there is no reason why we should suddenly depart from it.  It is the general rule.  Costs, it is said, follow the event, or words to that effect.

APPELLANT:  Well, that may be the case in normal matters, but in judicial review matters my argument and point is that the Act changes the discretion that the Court has.

McPHERSON JA:  Right.

APPELLANT:  And you, yourself, Justice McPherson, from reading these things even made a similar comment.  I am not quite sure what case but‑‑‑‑‑

McPHERSON JA:  Well, it does‑‑‑‑‑

APPELLANT:  And you should uphold that.

McPHERSON JA:  ‑‑‑‑‑to the extent stated in that section to which you referred us.

THOMAS JA:  Yes, there is a public aspect but, in my opinion, it is not enough to overweigh the fact that in a clear case if you want to appeal from the decision that you have been given, you take the risk, if you haven't got a point, of having to pay costs of the wasted appeal.

APPELLANT: Yes, well I didn't read the Act like that and I didn't understand the intent of Parliament and the legislative bodies that put these programs into place to put such a burden on a litigant. My understanding of the Act was that the Judicial Review Act fundamentally changed the normal rules as to costs. I mean, there are sections here in relation to the Electoral Administrative Review Commission where they quite clearly say that the purpose of the Act is to take away the threat of costs which may discourage people from bringing judicial review. That is why we introduced this legislation into the State of Queensland because of the corruption that existed prior to it. Unfortunately it continues but you didn't want to listen to that submission so I can do nothing about that.

McPHERSON JA:  All right.

APPELLANT:  In any case, that is the point I wish to make.

McPHERSON JA:  Yes, thank you.  Mr‑‑‑‑‑

MR PLUNKETT:  Yes, I don't have any further submissions.

McPHERSON JA:  In my view this is a proper case in which to follow the general rule that an appellant who institutes an appeal which has no prospect of success, or to use the phrase in s 50(b)(ii)(A), "does not disclose a reasonable basis", should pay the costs. 

I reach that conclusion quite apart from the general rules that apply to appeals in this matter, but so far as the general discretion is concerned, I would add only that when the matter was called on, instead of arguing the appeal on the law or facts or merits, the appellant declined to do so but instead sought to introduce further grounds of appeal which were of no relevance at all.

In all those circumstances I consider it to be a proper case in which to order that the appellant pay the respondent's costs of this appeal.

THOMAS JA:  I agree that the present case is one in which the unsuccessful appellant should pay the costs of the appeal.

JONES J:  I agree with those orders.

McPHERSON JA:  The order is that the appeal is dismissed and that the appellant pay the respondent's costs of appeal.

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