Sharples v O'Shea

Case [1999] QSC 190

IN THE SUPREME COURT

OF QUEENSLAND

No 6318 of 1998

Brisbane

[Sharples v O’Shea & Anor]

BETWEEN:

TERRY PATRICK SHARPLES

Plaintiff
AND:

DESMOND J O’SHEA

First Defendant
AND:

PAULINE LEE HANSON as representative of
herself and all members of PAULINE HANSON’S
ONE NATION (as registered under the Electoral Act
1992 (Qld))

Second Defendant

REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 18 August 1999

CATCHWORDS      ADMINISTRATIVE LAW - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS - APPEALS FROM PARTICULAR AUTHORITIES - application for review of decision of Electoral Commission to register political party - whether applicant had standing to bring application - where application brought out of time - whether discretion to extend time should be exercised.

ADMINISTRATIVE LAW - ADMINISTRATIVE DECISION - procured by misrepresentation of fact or fraud - invalidity - consequences.

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - QUEENSLAND - OTHER MATTERS - invalid administrative decision - whether obtained by fraud or misrepresentation - effect.

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PLEADING - STATEMENT OF CLAIM - where application for review brought under the Electoral Act 1992 - whether questions posed at trial sufficiently raised on the pleadings.

ASSOCIATIONS AND CLUBS - GENERAL MATTERS - CONSTITUTION, POWERS, LIABILITIES AND DISSOLUTION - INTERNAL MANAGEMENT - GENERALLY - political organisations - membership - whether people were members of the political party.

ASSOCIATIONS AND CLUBS - GENERAL MATTERS - CONSTITUTION, POWERS, LIABILITIES AND DISSOLUTION - RULES AND MEETINGS - political organisations - whether political party properly registered by Electoral Commission - change to constitution - whether applicants for membership accepted as members.

Associations Incorporation Act 1981 (Qld) s.48
Associations Incorporation Regulation 1982 (Qld)
Commonwealth Electoral Act 1918 s.141
Corporations Law s.360
Electoral Act 1992 (Qld) ss.3, 7, 69-75, 84, 180, sch.

Allan v Development Allowance Authority (1998) 152 ALR 439 referred to
Alphapharm Pty Ltd v Smithkline Pty Ltd (1994) 121 ALR 373 considered
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 referred to
Attorney-General (NSW) v Quin (1990) 170 CLR 1 referred to
Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 referred to
Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 followed
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73 referred to
A’Hearn v Comcare (1993) 18 AAR 22 referred to
Baldwin v Everingham [1993] 1 Qd R 10 followed
Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 considered
Bateman’s Bay Land Council v Aboriginal Fund (1998) 72 ALJR 1270 considered
Bollag v Attorney-General (Cth) (1997) 149 ALR 355 referred to
Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 followed
Burton v Murphy [1983] 2 Qd R 321 referred to
Cameron v Hogan (1934) 51 CLR 358 at 384 considered
Chalk v Commissioner for Superannuation (1994) 50 FCR 150 referred to
Chapman v Tickner (1995) 55 FCR 316 referred to
Clayton…

Continue reading Sharples v O'Shea

Sign in free to access the full text

Details
AGLC
Sharples v O'Shea [1999] QSC 190
Case
[1999] QSC 190
Decision Date

CaseChat Overview and Summary

Sharples v O'Shea involved a dispute regarding the registration of a political party, Pauline Hanson’s One Nation, under the Electoral Act 1992 (Qld). The plaintiff sought a review of the Electoral Commission of Queensland’s decision to refuse the registration of the party. The defendants, O'Shea and Ms Hanson, contested the application on various grounds, including the adequacy of the party’s constitution and the number of eligible members. The court had to determine whether the party met the statutory requirements for registration, specifically whether the constitution was compliant, the secretary signed the application, and the party had the requisite number of members.

The legal issues before the court were centered on the interpretation and application of the Electoral Act 1992 (Qld) and whether the Electoral Commission’s decision to refuse registration was justified. The court had to examine the constitution of Pauline Hanson’s One Nation to see if it met the statutory criteria, whether the application was duly signed by the party’s secretary, and whether the party had at least 500 eligible members. Additionally, the court needed to consider the objections raised by the defendants regarding the form and relevance of the evidence presented by the plaintiff.

The court found that while the plaintiff's pleadings were inadequate, the parties were able to address the relevant issues. It concluded that the constitution of Pauline Hanson’s One Nation did not fully satisfy the statutory requirements, particularly concerning the promotion of the election of candidates. The court also found that the application for registration was not signed by the party’s secretary. Furthermore, the evidence presented did not establish that the party had the requisite number of eligible members. Therefore, the Electoral Commission’s decision to refuse registration was upheld.

The final orders of the court were that the plaintiff's application for judicial review be dismissed, and the Electoral Commission's decision to refuse the registration of Pauline Hanson’s One Nation was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I am therefore persuaded that I should extend the time to the extent necessary to allow the plaintiff to bring this application.Objections to evidence Careful submissions by the defendants were made about the limitations of the pleadings in this case. The plaintiff has struggled to articulate his case clearly. A party is limited by its pleading in the conduct of its case unless the parties have deliberately chosen some other basis for the determination of their respective rights and liabilities.[50] There was no acquiescence in any departure from the plaintiff’s pleaded case by either the first or the second defendant except to any limited extent that can be deduced from their submissions to the Court.[50]Thorp v Holdsworth (1876) 3 Ch D 637 at 639; Dare v Pulham (1982) 148 CLR 658 at 664; Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287, 288, 302-303; Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 68 ALJR 304 at 310-311. In the end, in spite of the inadequacy of the pleadings, it would appear that the parties were able to put before the court the relevant issues for determination. It is not necessary to consider the objections to the evidence in great detail. Many objections to the form in which evidence was led by the plaintiff were raised during the course of the trial; the plaintiff almost invariably conceded that the evidence was in inadmissible form and the objections were allowed. As to the objections as to relevance, this judgment deals with the matters which I considered relevant on the pleadings. The statement of claim was amended to plead in accordance with the opening by the plaintiff of his case. It is important that arguments about pleadings should illuminate rather than obfuscate the real issues for determination.Questions before the court When the grounds of review, the particulars and the evidence are analysed, the three major questions which initially fall for determination are:1.Did the written constitution lodged by Pauline Hanson’s One Nation satisfy the requirements of the Electoral Act 1992?2.Did the secretary of the party sign the application for registration?3.Did the entity known as “Pauline Hanson’s One Nation” have 500 members eligible to be electors in the State of Queensland when it applied for registration?[51]Did the written constitution lodged by Pauline Hanson’s One Nation satisfy the requirements of the Electoral Act 1992? [51]15 October 1997 A subsidiary question to this is did Pauline Hanson’s One Nation have as an object or activity the election of candidates to the Queensland parliament? A political party is required to include a copy of its constitution with its application for registration.[52] Only a registrable political party is eligible for registration.[53] The definition of “registrable political party”[54] provides that such a party must be an organisation which is established on the basis of a written constitution (however described) that sets out the aims of the party. An object or activity of the political party must be the promotion of the election to the Legislative Assembly of a candidate or candidates endorsed by the organisation or a body or organisation of which it forms a part.[52]Electoral Act 1992 subs. 70(4)(f).[53]Electoral Act s.70(2).[54]Electoral Act 1992 s.3.

Decision

Reasons for decision

DESMOND J
Immediately before the date on which the trial was to commence, the plaintiff sought and was granted leave on 22 March 1999 to amend his case so that it became an application to review under s.180 of the Electoral Act 1992 (Qld). That section provides as follows:“Review of certain decisions180.(1) The decisions set out in the following table are reviewable under this section if an application for review is made under this section by the person set out in the table. The application for registration falls to be determined by the Electoral Commission of Queensland (“the commission”) under s.72 of the Electoral Act 1992 which provides:“Registration72.(1) If the commission, after considering all statements and replies to the statements under section 71, is satisfied that the application complies with the requirements of section 70, the commission must, subject to subsection (3) and section 73, register the political party.(2) Registration is effected by entering or otherwise including in the register of political parties -(a)the information set out in the application (other than under section 70(4)(e)); and(b)any document accompanying the application as required by section 70(4)(f) and (g).(3) The commission must not take any action in relation to the application during the election period in relation to an election.(4) The commission must not register a political party other than in accordance with this section.(5) On registration of the political party, the person whose name was set out in the application under section 70(4)(c) becomes the party’s registered officer for the purposes of this Act.(6) As soon as possible after it registers the political party, the commission must -(a)give written notice to the registered officer that it has done so; and(b)if any person made a statement to the commission under section 71 in relation to the application - give written notice to the person stating that it has registered the party and setting out why the reasons in the person’s statement were rejected; and(c)notify the party’s registration by gazette notice.”The commission in this Part of the Act is constituted solely by the electoral commissioner (“the commissioner”), Mr O’Shea, the first defendant in this matter.[6][6]Electoral Act 1992 s.7(3). The commissioner must not register a political party otherwise than in accordance with the procedures set out in s.72. If the commissioner, after following those procedures, is satisfied that the applicant complies with s.70, the commissioner, subject to subs.72(3) and s.73, must register the political party. The commissioner, in addition, has a discretion to refuse the registration of a political party given by s.73 of the Electoral Act 1992 which provides:“Refusal of registration73.(1) In this section -“application name” means a name for a political party, or the abbreviation of the name for a political party, set out in the party’s application for registration.“party body name” means the name, or an abbreviation or acronym of the name, of a prominent public body.“party name” means the name, or an abbreviation or acronym of the name, of a parliamentary party or registered political party.(2) The commission may refuse to register a political party if the commission believes on reasonable grounds that information set out in, or documents required to accompany, the application are incorrect.(3) The commission must refuse to register a political party if the party’s application name -(a)has more than 6 words; or(b)is obscene or offensive; or(c)is a party name; or(d)so nearly resembles a party name that it is likely to be confused with or mistaken for the party name; or(e)includes the word ‘independent’; or(f)would otherwise be likely to cause confusion if registered.(4) The commission may refuse to register a political party if the party’s application name -(a)is a public body name; or(b)so nearly resembles a public body name that it is likely to be confused with or mistaken for the public body name.(5) If the commission decides to refuse an application, it must give the person who was to be the registered officer of the political party written notice of -(a)the refusal; and(b)the reasons for the refusal; and(c)the rights of the person to have the refusal decision reviewed.”

Ratio Decidendi

Legal Principle Established

Established by: DESMOND J

Section 70 sets out what is required to be contained in an application for registration as follows:“Applications for registration70.(1) An application for registration of a political party is to be made in accordance with this section.(2) The application must only be made for the registration of a registrable political party.(3) The application must be made by the secretary of the party.(4) The application must be made to the commission in a form approved by the commission for the purposes of this section, and must -(a)state a name for the political party; and(b)if the political party wishes to use an abbreviation of its name on ballot papers for elections - set out the abbreviation; and(c)set out the name and address of the person who is to be the political party’s registered officer for the purposes of this Act; and(d)if the application is for a Queensland parliamentary party - set out the name of 1 member of the party who is a member of the Legislative Assembly; and(e)if the application is for a party that is not a Queensland parliamentary party - set out the names and addresses of 500 members of the party who are electors; and(f)be accompanied by a copy of the party’s constitution; and(g)set out any other prescribed information and be accompanied by a copy of any other prescribed document.”A “registrable political party”[7] is an organisation whose object or activity, or one of whose objects or activities, is the promotion of the election to the Legislative Assembly of a candidate or candidates endorsed by it or by a body or organisation of which it forms a part, that either is a parliamentary party or has at least 500 members who are electors and is established on the basis of a written constitution (however described) that sets out the aims of the party.[7]Electoral Act 1992 s.3. Ms Hanson who was the person named as the party’s registered officer in the application for registration by Pauline Hanson’s One Nation pursuant to subs.70(4)(c) is the second defendant in this matter in her capacity as representative of herself and all members of Pauline Hanson’s One Nation (as registered under the Electoral Act 1992 (Qld)). After an application for registration is made, the commissioner must give members of the public the opportunity to object to the registration of the party. The procedure for doing so is set out in s.71 of the Electoral Act 1992:“Publication of notice of application71.(1) As soon as practicable after an application is made to the commission, the commission must publish a notice in relation to the application in -(a)the gazette; and(b)a newspaper circulating generally in the State.(2) The notice must -(a)set out the information included in the application under section 70(4)(a) to (c); and(b)invite any persons who believe that the application -(i)is not in accordance with section 70; or(ii)should be refused under section 73;to submit to the commission, within 1 month after the day of publication of the gazette notice, a statement under subsection (3).(3) The statement must -(a)set out in detail the grounds for the belief; and(b)set out the address of the person; and(c)be signed by the person.(4) The commission must make the statement available at its office for public inspection, without fee.(5) The commission must give the person who is to be the party’s registered officer -(a)a copy of the statement; and(b)a notice inviting the person to give the commission a reply to the statement within such reasonable period as is specified in the notice.(6) If the person gives the commission a reply within the period, the commission must, as soon as practicable, make the reply available at its office for public inspection, without fee.”