Sharples v Hill

[1999] HCATrans 70

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Brisbane  No B49 of 1998

B e t w e e n -

TERRY PATRICK SHARPLES

Petitioner

and

HEATHER HILL

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

For directions

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 1 APRIL 1999, AT 10.30 AM

Copyright in the High Court of Australia

MR T.P. SHARPLES appeared in person.

MR R.E. TEMPLETON:   Your Honour, I appear for the first respondent, Heather Hill.  (of Watkins Stokes Templeton)

MR M.C. SWAN:   Your Honour, I appear for the Australian Electoral Commission.  (instructed by the Australian Government Solicitor). 

I have a motion to put to your Honour.  There was a notice of motion lodged in the Court Registry yesterday.  We have not received it back because apparently the practice here is they send it down to Canberra overnight.  So, I will move that motion orally after your Honour has taken appearances.

HIS HONOUR:   I have a copy of it here, Mr Swan.  There is a notice of motion from the Australian Electoral Commission that the Commission have leave to enter an appearance and to be represented and heard in accordance with section 359 of the Act.  Mr Sharples, do you have any objection to that?

MR SHARPLES:   No, I do not have any objection, your Honour.

HIS HONOUR:   No.  What about you, Mr Templeton?

MR TEMPLETON:   My client neither consents nor opposes that application, your Honour.

HIS HONOUR:   All right.  Well, Mr Swan, I am prepared to make an order in terms of your notice of motion.

MR SWAN:   Thank you, your Honour.

HIS HONOUR:   Mr Sharples.

MR SHARPLES:   Your Honour, I am not an experienced litigant in proceedings like this.  Essentially, I have put in an election petition to the Court of Appeal.

HIS HONOUR:   Mr Sharples, I wonder if I might – I do not want to interrupt you but you are probably aware that there is another petition, are you, in relation to the election of this candidate?

MR SHARPLES:   I am, yes.

HIS HONOUR:   Are you familiar with what has happened in that matter?

MR SHARPLES:   I have some understanding.  I would not like to say I was totally familiar with it, your Honour.

HIS HONOUR:   The Chief Justice is, in effect, case managing that to bring it to hearing and it is very well advanced.  It has now been listed for hearing on, I think, 11 and 12 May.  Were you aware of that?

MR SHARPLES:   I was aware it was listed in May, yes.

HIS HONOUR:   I have had a look at your material.  It seems to me that you are a little further away from a hearing than that petitioner.  That does not mean to say that it might not be possible for your petition to be prepared and in a form to go forward at that time or perhaps not long after.  But the Chief Justice stated a case so that the matter will come to the Full High Court on agreed facts which is obviously the best way to go because then the Court is not concerned with factual issues.  My inclination – and I will hear all of you on this of course – would be to follow a similar course to the one that the Chief Justice followed and to ask you all to go away and try to get an agreed statement and a draft stated case which I would then settle and sign, and we would see how quickly we could get it on.  Now, do you have a view about that?

MR SHARPLES:   Your Honour, look, I have been writing to the other side for some time and I sort of gave up, to be honest with you.  I had an approach from the Electoral Commission indicating that their intent was to put together a statement of facts and I wrote and said, yes, I agree with that, but I have heard no more from either party.  So, I was quite happy to follow that course.  It is just a matter of instigating some action, I suppose.

HIS HONOUR:   Why do I not inquire and see.  Are you content with that?

MR SHARPLES:   I think it is the best way to travel.

HIS HONOUR:   Perhaps I should ask you, Mr Templeton:  were you aware of any of these communications between the Electoral Office and the petitioner?

MR TEMPLETON:   No, your Honour.

HIS HONOUR:   Mr Swan, there have been some communications between you - - -

MR SWAN:   No, I have not spoken to Mr Sharples except earlier this morning just in the courtroom here.  I understand he has been faxed by someone a copy of the case stated signed by the Chief Justice.  He has shown that to me.  I am unaware of who faxed that to him.  I, yesterday, sent correspondence to both parties, the petitioner, who will now be the first respondent, I gather, that is the representatives for Heather Hill, just advising them of our intention to seek leave to appear here.

MR TEMPLETON:   Your Honour, could I say at this juncture that I had Mr Rofe, QC, appear in relation to the Sue petition in the various appearances to date.  My understanding of today’s proceedings – and I perhaps would like clarification of that – Mr Rofe has informed me by facsimile transmission last night that the purpose essentially of today’s proceedings was to ascertain whether or not Mr Sharples wished to partake in the Full Court hearing on 11 and 12 May and if he desired to do so, then directions be made accordingly.  If not, that his petition be stood over until the hearing of the Sue petition, for obvious reasons, your Honour.

HIS HONOUR:   Yes.  At the moment, I am just trying to explore the - - -

MR TEMPLETON:   Yes, quite so, your Honour.  I just thought it would be helpful, perhaps, to – that is my understanding of the essence of today’s proceedings, and I should say I have come here on that basis.

HIS HONOUR:   That is, in effect, what we are doing.  I am actually case managing the petition and we at a very early stage of that.

MR TEMPLETON:   Quite so.  My point being, of course, that I have not taken instructions from my client in respect of directions generally, vis‑à‑vis, Mr Sharples’ petition.

HIS HONOUR:   Yes, I understand.  Mr Swan, do you have anybody here from the Electoral Office?

MR SWAN:   Unfortunately, no, your Honour, but I do have instructions as to a position to submit to you on the question of the case stated and that is that your Honour should state a case as the Chief Justice has for hearing, jointly, with the matter of Sue v Hill by the Full Court.

HIS HONOUR:   Yes.  Well, I cannot make up the facts, that is the problem, in order to state the case.  I need the assistance of the parties.

MR SWAN:   That is correct.

HIS HONOUR:   At the moment, I do not know whether we can have this matter ready for hearing concurrently with or consecutively with the other petition.  Obviously, it is desirable to try to do that.

MR SWAN:   It is my submission that that would be possible, your Honour.  As I understand it, the matter of Sue v Hill came on first before the Chief Justice on about 15 March, which is only just over two weeks ago, and on Monday this week before Chief Justice Gleeson, a draft agreed statement of facts was put up to him and he did settle that and signed it on Tuesday.

HIS HONOUR:   That is right.  That is, of course, if all of the parties here, particularly Mr Sharples, is prepared to accept that statement of facts as being a correct statement of facts.  One would think it would be after it has been looked at by the parties.

MR SWAN:   I might point out to your Honour that the facts stated in Mr Sharples’ petition do vary in some particular details from those in the case stated signed by the Chief Justice but I would submit that those particulars are not material in the sense that there are some variations in date but the sequence of events is basically the same in the petition as in the case stated.

HIS HONOUR:   I must say I do not know whether that is altogether correct at this stage.  It might turn out to be correct.  Mr Sharples, are you aware of section 78B of the Judiciary Act?  You probably are not.

MR SHARPLES:   I am afraid not, no.

HIS HONOUR:   It is a provision that requires you, as the person commencing these proceedings, to give notice to all of the Attorneys‑General of Australia, that is to say, of the States and Territories and of the Commonwealth, that a constitutional issue or an issue involving the interpretation of a federal statute is involved in this case.

MR SHARPLES:   I see.

HIS HONOUR:   It is a fairly formal document.  It sounds perhaps a little more formidable than it is, but you do have to do that.  It is unlikely to be a problem here because I would have thought – I am sure they have had notices in respect of the other matter and they are probably aware of this and watching it but, nonetheless, I cannot dispense with that.

MR SHARPLES:   No, okay.  Well, I will repair that oversight, your Honour, as soon as I am able.

HIS HONOUR:   I am not criticising you, it is just something that has to be done and it is another matter that is going to take a little bit of time.  My inclination is to ask all of the parties to go away to see whether they can agree upon a basic statement of facts and of questions and issues in as close a form as they can, as they think they can, to the existing stated case which has been stated by the Chief Justice and then to come back before me in, say, a fortnight’s time or a little more than a fortnight, to see what progress has been made, at which time I could consider whether this matter should be listed concurrently with the other one or consecutively with it, or should otherwise be dealt with.  I will ask the others what they think about that proposal.  Have you a view about that, Mr Templeton?

MR TEMPLETON:   In brief, your Honour, on its face, I have no difficulty with it.  Concerns generally that I hold in relation to this matter, vis-à-vis the Sue petition, is that my client is concerned to ensure that these proceedings do not delay in any way the Sue petition proceeding on the appointed date.

HIS HONOUR:   Well, that will not happen.  Could I just make this clear:  the Sue petition has been set down for hearing on 11 and 12 May and it will proceed, as I understand it, on that date, no matter what happens in relation to this matter.

MR TEMPLETON:   That gives me some comfort, your Honour.  Secondly – and it is a small point – the likely extension of duration of the hearing; and, thirdly, costs, although there is an obvious cost saving on offer if the matters are heard together.  I suppose they are not identical but the question to be asked and answered is whether or not, if the decision is made, whether the petition of Mr Sue stands or falls, whether that, of necessity, has an effect on Mr Sharples’ petition or not.

HIS HONOUR:   We will not really know that for sure until we see what degree of commonality there is in the - - -

MR TEMPLETON:   I believe that is correct, your Honour, and a decision could be made at that juncture.  So, in summary, the proposed course of action your Honour outlines would appear to be appropriate, for those reasons.

HIS HONOUR:   All right, yes.  Mr Swan?

MR SWAN:   I think that what your Honour has outlined is a sensible course of action with respect. 

HIS HONOUR:   Are you content with that, Mr Sharples?

MR SHARPLES:   It sounds acceptable to me, your Honour.

HIS HONOUR:   All right.  I am minded to adjourn the matter then until 22 April which is the day after the Sue petition comes back before the Court in Canberra or Sydney for further directions.  I think the intention is just at that point to make sure that it is ready for hearing.  So, that will be done the day before the mention date that I would like this matter to come back to.

I think probably all I need do is adjourn the case, the parties understanding that the purpose of the adjournment is to enable them to try to agree upon a draft form of case for me to state.  Everybody seems to want expedition, so it is really in your hands to do that.

MR TEMPLETON:   Yes, your Honour.  If possible, could the directions be slightly more specific in the sense of could we have directions along the lines that if Mr Sharples could have time to look at the existing stated case and then correspond with my client – with myself and my friend as to the areas that he ‑ ‑ ‑

HIS HONOUR:   I do not think I can make directions in that form, but I have made the position clear and I expect the parties to confer and co‑operate.

MR TEMPLETON:   Yes, your Honour.

HIS HONOUR:   If I should form the view that somebody is not co‑operating, then the petition may have to be reconsidered and I might make orders at that point.

MR TEMPLETON:   Thank you.

HIS HONOUR:   But I do not think I should give directions as to the way in which you should confer and consult.  I just expect everybody to do it and to co-operate in doing it.

MR TEMPLETON:   Thank you.

MR SHARPLES:   I do not know if it is an appropriate time to raise this issue, but I will raise it.  There are a number of differences within the statement of facts as I perceive them to be between my election petition and that of Mr Sue’s.

HIS HONOUR:   What do you think the main ones are, Mr Sharples?

MR SHARPLES:   As I understand it, Mr Sue’s petition was restricted by the Chief Justice to some degree.  I have had no restriction indicated to me and I am assuming that is still the case as we stand today.

HIS HONOUR:   What are you concerned about?  Tell me what issues you think are important and which you do not think are sufficiently exposed in the Sue petition, the Sue stated case.

MR SHARPLES:   Probably the most important issue is the issue of relief.  I mean, that is where my concern differs somewhat substantially from that of the Sue petition.

HIS HONOUR:   That is a matter of law, really.  That does not affect the facts, I do not think.

MR SHARPLES:   No, no, I agree.

HIS HONOUR:   And if you want to try to formulate a question which raises directly a different issue of law, then by all means do that.

MR SWAN:   Your Honour, one of the questions in the case stated by the Chief Justice is as follows, it is question (d):  “If no to (c), was the election void absolutely?”, and I think that sort of embraces the relief to which Mr Sharples has referred as being sought by him.

HIS HONOUR:   I do not think Mr Sharples has had as much time as he would have liked to look at the petition.

MR SHARPLES:   I got it at 6 o’clock yesterday, your Honour.

HIS HONOUR:   No, I understand that.  It may be, you see, Mr Sharples, when you have had an opportunity to do that, you may find that the questions are wide enough.  I am not asking you to make a decision about that now, but what Mr Swan says does rather sound as if it is correct, does it not?

MR SHARPLES:   Well, having not been able to read it because of time, I cannot make comment, your Honour.  I wondered whether it was appropriate, however, that I should raise before the Court today whether I should seek leave to amend the relief in my plaint to the form that I believe that it properly should be.

HIS HONOUR:   You might find that the parties do not have any objection to your amending it and I think that is something that should come out of the discussions that I expect everybody to have and that I expect everybody to be very co-operative about.

MR SHARPLES:   Right.

HIS HONOUR:   You want your petition on quickly, as quickly as possible, as I understand it.

MR SHARPLES:   Yes, I have got no reason to see it dally.

HIS HONOUR:   Yes, and Mr Templeton wants the matter to be disposed of as quickly as possible.  It very much lies in the hands of all of the parties to try to achieve that end.  I would be surprised if there would be any objection to an amendment which seeks to raise no different questions from those that have already been foreshadowed, either in your petition or in the Sue petition.  The questions – have you the stated case in Sue in front of you? 

MR SHARPLES:   You refer to the case stated by Justice Gleeson?

HIS HONOUR:   Chief Justice.

MR SHARPLES:   Yes, sorry, Chief Justice Gleeson, sorry, your Honour.  I have, yes.

HIS HONOUR:   If you just have a look at the end of it, after paragraph 35.

MR SHARPLES:   Yes, I can see there is a series ‑ ‑ ‑

HIS HONOUR:   Now, I do not expect you to make any decision about these matters now, but if you just look at the questions there, they do rather appear to be very broad, designed to comprehend any possible legal issue.  So have a close look at those, Mr Sharples, and see whether you think that they sufficiently raise anything you want to raise.

MR SHARPLES:   All right.  Do you wish me to speak about that now?

HIS HONOUR:   No, not at all.

MR SHARPLES:   Fine.

HIS HONOUR:   But you appreciate that you will have to give the section 78B notices, is that correct?

MR SHARPLES:   The matter that you first raised?

HIS HONOUR:   Yes.

MR SHARPLES:   Could I just get that detail from you again, please.

HIS HONOUR:   You will have to look at the Judiciary Act.  It is section 78B and that section requires you to give notices to the Attorneys-General of the issues in this matter.

MR SHARPLES:   I will do that. 

HIS HONOUR:   You will see forms and things of that kind.  But for today, the only order I will make is that the matter be adjourned.

Now, do the parties want me to reserve costs?

MR TEMPLETON:   It is appropriate, your Honour.

MR SWAN:   Yes, your Honour.

HIS HONOUR:   I think I should reserve the costs.  Mr Templeton, are you counsel or solicitor?

MR TEMPLETON:   Solicitor, your Honour.

HIS HONOUR:   All right.  Is there anything further then?  Is there anything further you want me to deal with, Mr Sharples?

MR SHARPLES:   No, your Honour, I think that has covered it for me.

HIS HONOUR:   Mr Swan?

MR SWAN:   Your Honour, I am not sure what the import of your question to Mr Templeton was, but I am counsel.  I suppose that you wanted to know whether to certify for counsel.

HIS HONOUR:   Yes, exactly.  I thought you would know whether you would want me to do that or not, you see.

MR SWAN:   Yes, I do not have any instructions about whether we will be seeking any costs in the matter.  It is sometimes done, sometimes not.  But as a matter of precaution, yes, I ask that you do certify for counsel.

HIS HONOUR:   I will certify for counsel, then it is a matter for your client to decide what it wishes to do.  Is there anything further?

I will adjourn this matter then to 22 April.

AT 10.53 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 22 APRIL 1999