Sharples v O'Shea
[1998] QSC 171
•31 August 1998
IN THE SUPREME COURT
OF QUEENSLAND
C.A. NO. 6318 of 1998
Before Mr Justice Ambrose
[Sharples v O’Shea & Anor]
BETWEEN:
TERRY PATRICK SHARPLES
Plaintiff
AND:
DESMOND J. O’SHEA
First Defendant
AND:
PETER SAMUEL NOEL JAMES AS REPRESENTATIVE OF HIMSELF
AND ALL MEMBERS OF PAULINE HANSON’S ONE NATION
(AS REGISTERED UNDER THE ELECTORAL ACT 1992 (QLD)
Second Defendant
CATCHWORDS: CIVIL LAW - Interlocutory injunction - balance of convenience - whether triable question - whether registration of a political party achieved by fraud or misrepresentation - role and function of Electoral Commissioner - whether payment of electoral funds allowed - whether necessary membership to form a political party - whether general compliance with Electoral Act 1992 (Qld) - abuse of process - standing.
Electoral Act 1992 (Qld)
Commissioner of Stamp Duties (NSW) v Pearse (1951) 84 C.L.R. 490.
Onus v Alcoa of Australia Ltd (1981) 149 C.L.R. 27
Counsel: Mr Flanagan for the first defendant
Solicitors Reidy & Tonkins for the plaintiff
Crown Law for the first defendant
Watkins Stokes & Templeton for the second defendant
Hearing Date: 21 August 1998
REASONS FOR JUDGMENT - B.W. AMBROSE J.
Delivered the 31st day of August 1998
This is an application by Mr Sharples, the plaintiff, for an interlocutory injunction restraining the first defendant who is the Queensland Electoral Commissioner from making payment of any monies to the second defendant pursuant to the provisions of Part 7 of the Electoral Act 1992 (Qld).
Both the first defendant and the second defendant oppose the application. A previous interlocutory injunction was granted by Chesterman J. on 27 July 1998 on the purported application of the plaintiff and another plaintiff a Mr Summers who has since been removed as a party to this action; the granting of that interlocutory injunction was not opposed by the defendants.
However, one of the persons upon whose application that injunction was granted having been subsequently removed as a plaintiff on the application of Mr Sharples the remaining plaintiff, this application has been brought by him seeking the grant of an interlocutory injunction in terms similar to that which was discharged by Byrne J. on 14 August 1998 when Mr Summers was removed as plaintiff.
The events leading to the removal of one of the two plaintiffs to the Writ of Summons issued on 10 July 1998 and the fact that the usual undertakings as to damage given by each to obtain the injunction were consequently reduced in value when the undertaking of one was discharged on 14 August 1997 has led to a spirited opposition by both defendants upon this application of Mr Sharples for an injunction in terms of that initially obtained without opposition.
The matter is complicated by events which led to the striking out of one of the two initial plaintiffs in the action and also by the fact that additional significant material information has been placed before the Court by the defendant’s on this application to support their opposition to it.
It is convenient to outline briefly what seem to be the facts emerging from material relied upon on this application.
On 15 October 1997 Pauline Lee Hanson personally lodged with the first defendant an application to register a political party “Pauline Hanson’s One Nation” and its proposed abbreviation “One Nation”. Accompanying that application was what purported to be the constitution of that political party together with a list of members and their addresses.
Copies of all information which was lodged with the Electoral Commission Queensland have been placed before me by the affidavit of Mr Wiltshire the Manager, Operations, of the Commission, part of whose tasks it was to process that application.
Registration of the political party was to be effected under s.72 of the Electoral Act 1992. Under s.72(2)(a) it is clear that upon registration all particulars of information so lodged were entered in the Register with the exception of the names and addresses of members provided by Ms Hanson pursuant to s.70(4)(e) of the Act which must not be made public - vide s.72(2)(a) (and s.314AF of The Schedule to the Act).
Mr Wiltshire deposes to the fact that there were minor deficiencies in the documents lodged with the first defendant to effect registration of Pauline Hanson’s One Nation.
By letter of 16 October 1997 to Ms Hanson her attention was drawn to the deficiencies and on 20 October 1997 an amended application for registration signed by Ms Hanson was received. Copies of these documents are exhibited to Mr Wiltshire’s affidavit but it seems to me unhelpful to refer in detail to their content.
After the application in required form providing the required particulars was received, the Commission thereupon embarked upon a consideration of that material to ensure compliance with the requirements of s.70(4) of the Electoral Act.
Because the political party sought to be registered was not “a Queensland Parliamentary Party” as defined in s.3 of the Act, (“a parliamentary party of which at least one member is a Member of the Legislative Assembly”), s.70(4)(e) required that the application be accompanied by “the names and addresses of 500 members of the party who are electors”.
When satisfied that the form of the application complied with the requirements of the Act the Commission then sought to verify that there were 500 members of the Party who were electors.
A search of the Electoral Roll management system showed that at least 530 of the persons whose names and addresses had been provided upon the application were electors in Queensland.
On 6 November 1997, 250 of those members on the list accompanying the application who were electors were randomly chosen and a letter was sent to each requesting confirmation or denial that he or she was a member of Pauline Hanson’s One Nation Party. A pro-forma of the letter was exhibited to Mr Wiltshire’s affidavit and reads as follows:
“Dear -
Re: Pauline Hanson’s One Nation Party
Pauline Hanson, proposed registered officer, and Cheyenne MacLeod, secretary of the Pauline Hanson’s One Nation Party, have applied to this office to have the party registered as a political party under the provisions of the Electoral Act 1992.
To be eligible for registration the party must have at least 500 members who are electors in Queensland and the Electoral Commission must be satisfied that the party meets this criteria. We do this by undertaking a membership check.
With the application for registration the applicant submitted a list of the party’s members which included your name. Your name was selected at random from the membership list. To enable the Commission to assess the party’s eligibility for registration as a political party please complete the certification below and return this letter in the reply paid envelope to reach the Commission by 03 December 1997.
Please note that all matters relating to members names and addresses are treated as confidential by the Commission.
Yours sincerely
--
for Electoral Commissioner
I am a member of the Pauline Hanson’s One Nation Party
¨ Yes ¨ No
Please Ö the appropriate box
Signature Date ”
To the 250 letters in that form sent out to persons listed as members of the party, replies to the following effect were received by 2 December 1997: -
Yes - 217
No - 3
Incomplete - 4
Return Unclaimed - 2
No Response - 24
It is pointed out that of the total of 224 responses received, 217 confirmed the addressee’s membership of Pauline Hanson’s One Nation Party. Statistically this response rate when applied to the 530 persons (identified as electors ) on the membership list accompanying the application led the Commission to conclude that at least 514 of the persons listed as members of that party, residing at their specified addresses were indeed members of that Party.
Based upon this investigation and calculation the Commission decided that there had been compliance with s.70(4) in that the application had been accompanied by the names and addresses of more than 500 members of Pauline Hanson’s One Nation Party who were electors entitled to vote under the Electoral Act 1992 as amended..
No criticism was made of the statistical method used by the Commission in arriving at this conclusion. As I understood Mr Sharples, who argued his application personally , it is “possible” that some people who had returned the completed forms to the Commission indicating that they were indeed members of Pauline Hanson’s One Nation Party may have been mistaken or perhaps may have been induced by the form of the Commission’s letter sent to them, to wrongly affirm that they were members when had they been properly informed or more careful they would have denied that they were.
Following its usual practice, the Commission on 31 October 1997, published an advertisement in the Government Gazette calling for any objections to the registration of Pauline Hanson’s One Nation Party. Potential objectors were invited to advise the Commission if they believed that the Party should not be registered, setting out the grounds for that belief. This was to be done by 1 December 1997.
On 1 November 1997, a similar advertisement was published in the “Courier Mail” newspaper.
No objections whatever were received to the Commission’s advertised proposal to register the political party; certainly neither of the initial plaintiffs lodged any objection; the Commission concluded therefore that all the matters required to be established pursuant to s.70(4) had been established and the application was approved on 4 December 1997.
On 5 December 1997, an advertisement was published in the Government Gazette stating that Pauline Hanson’s One Nation had been registered as a political party and entered in the Register of Political Parties.
On 29 January 1998, the Commission received an application to change in the Register the “abbreviation” of the party’s name from “One Nation” to “Pauline Hanson’s One Nation”.
On 6 February 1998, public notice was given that objections could be lodged to such change. None was received.
On 13 March 1998, an advertisement was published in the Government Gazette detailing the change in the “abbreviation”.
It emerges from the material that subsequent to the registration of Pauline Hanson’s One Nation, two persons, Terry Patrick Sharples and David Michael Summers the plaintiffs on whose purported behalf the Writ of Summons was issued on 10 July 1998, were each endorsed to stand for the Queensland Election held in June 1998 as members of Pauline Hanson’s One Nation. Nominations for that election closed 26 May 1998.
Before the election, however, disputes arose between Mr Summers and other members of the Party and he was dis-endorsed. He stood for the election as an Independent candidate but was not elected.
Disputes also arose between Mr Sharples and other members of Pauline Hanson’s One Nation; material has been filed relating to the rights and wrongs of that dispute but it seems to me unnecessary and unhelpful to embark upon a consideration of that material upon this application. It suffices to say that antipathy developed between Mr Sharples and other persons connected with Pauline Hanson’s One Nation.
Before continuing with the history of the matter, I mention merely that at some stage of the election campaign preceding the election, each of Mr Sharples and Mr Summers identified himself as a member of Pauline Hanson’s One Nation and copies of their membership cards were produced in evidence. Each pro forma card reads -
“Pauline Hanson’s Members of
One Pauline Hanson’s One Nation
Nation are dedicated to assisting
Candidates endorsed by Pauline
Hanson to win seats in the
next Federal Election
Membership Number
Branch
Issued to
Date Amount ”.
In the State election there were elected eleven persons who had campaigned as members of Pauline Hanson’s One Nation in that election.
An application was made to the Commission by that registered Party for payment of monies to it pursuant to Part 7 of the Electoral Act 1992 to permit reimbursement to some extent at least, of the costs incurred by the Party and its electoral candidates in the conduct of the election campaign which had resulted in the election of eleven of its members to Parliament.
On 7 July 1998, Mr Sharples wrote a letter to the Commissioner, the first defendant, advising of the result of his “searches and enquiries” and as well what he had been informed by a Mr Briggs; he stated that he “believed the following the matters to be true” relating to the application for registration made by Ms Pauline Hanson “in September 1997". According to the Commission officers, the application was in fact made on 15 October 1997.
It is unnecessary to set forth in detail the contents of this letter which on my reading of it is speculative in the extreme and seems to be based only upon hearsay material as to what Mr Briggs believed in September 1997.
Without attempting to analyze in detail the contents of this long letter, essentially it seems to assert that initially Mr Briggs was involved in seeking registration of “an association incorporated under the Associations Incorporation Act (Qld) and now known as the Pauline Hanson One Nation Members Inc.”.
An extract from the Register of Associations with Consumer Affairs Queensland shows that on 3 July 1998, “Pauline Hanson’s One Nation Members Inc.” was registered as an association, the primary activity of which was “Promotion of the Views of Pauline Hanson M.P.”
There is an assertion in Mr Sharples letter that Mr Briggs compiled the names and addresses of 530 members of the Pauline Hanson Support Movement Inc. but that these persons were not members of “a political party” known as “Pauline Hanson’s One Nation”.
There are assertions made by Mr Sharples that the persons whose names and addresses were supplied to the Electoral Commission on 15 October 1997 to procure registration of the political party Pauline Hanson’s One Nation were not in fact members of any political party bearing that name and that “there are reasonable grounds for the Commission to suspect that the registration of Pauline Hanson’s One Nation under the Electoral Act was obtained by misrepresentation or fraud.” He asserts that:
“The person or persons responsible for the substitution of constitutions in the application intentionally deceived the Commission for the purpose of obtaining registration as a political party contrary to the Act for an organization which at the time according to Mr Briggs had only three members and no Queensland Parliamentary representative.”
Mr Sharples continues:
“I request that you undertake an investigation into these matters in order to satisfy yourself as to their accuracy. I have spoken with Mr Briggs. He is willing to confirm these matters to you himself.”
He continues:
“If at the conclusion of your investigations you are satisfied that the registration of Pauline Hanson’s One Nation as a political party was obtained by misrepresentation or fraud I request that the Commission act in accordance with the power conferred on it by the Electoral Act, in particular by s.75 and cancel the registration of Pauline Hanson’s One Nation as a political party for the purposes of the Act.”
By letter dated 8 July 1998, Mr Sharples advised the first defendant that he and “other registered One Nation candidates in the recent Queensland Election” wished to inform him that they would be jointly applying for an injunction to restrain the Commission from funding re-imbursements pursuant to ss. 294 and 294A of the Electoral Act 1992 to the registered agent of Pauline Hanson’s One Nation - Ms Pauline Hanson.
By letter of 9 July 1998, the Electoral Commissioner advised Mr Sharples in reply to his letters of 7 and 8 July 1998 inter alia -
“Careful consideration has been given to the issues you have raised. However I am satisfied that the registration was made in accordance with the provisions of the Act.
Furthermore I am not satisfied on reasonable grounds that the Commission should cancel the registration of the party.
Your intention to seek an injunction in the Supreme Court has been noted. In the absence of a direction from the Supreme Court I intend to pay at the close of business on Tuesday, 14 July 1998 the claim for re-imbursement of electoral expenditure made by Pauline Hanson’s One Nation Party.”
On 10 July 1998, the second defendant advised the first defendant by letter that:
“None of the accusations in Terry Sharples’s letter dated 7th July 1998 are valid - they are unfounded and are based on speculation and innuendo.
I regret that the Commission is being used to provide a platform for disaffected members of Pauline Hanson’s One Nation to air their grievances and make unfounded, vindictive accusations. ”
It was on 10 July 1998 that the Writ of Summons commencing this action was issued purportedly on behalf of Terry Patrick Sharples and David Michael Summers as plaintiffs against the first defendant seeking an injunction to restrain payment to Pauline Hanson’s One Nation after close of business on 14 July 1998 of the moneys sought by that party. The application for an interlocutory injunction first came on for hearing on 13 July 1998 before Williams J. in support of which affidavits of Mr Briggs and Mr Sharples were filed. That application was adjourned to 27 July 1998 the Electoral Commissioner undertaking not to make any payment of monies pursuant to Part 7 of the Electoral Act until the hearing of the application.
On 13 July 1998, Williams J. also made an order that the second defendant be added to the proceedings as a defendant to represent himself and all members of Pauline Hanson’s One Nation (as registered under the Electoral Act 1992).
On 20 July 1998, the first defendant entered an appearance. On 27 July 1998, without opposition, an order was made by Chesterman J. granting the plaintiffs the interlocutory injunction sought on their behalf upon their counsel giving the usual undertaking as to payment of damages should they fail at trial. This injunction was an interlocutory one - to have effect up to trial “or further order”. With that order by consent directions were given as to steps to be taken in the action to lead to its trial.
Upon the hearing of that application, counsel who had to that time appeared for both Sharples and Summers stated, presumably upon instructions, that the plaintiffs:-
“...were not challenging the decision of the Electoral Commissioner, Mr Desmond O’Shea to register Pauline Hanson’s One Nation as a political party pursuant to the Electoral Act 1992 (Qld) nor the decision of the Electoral Commissioner not to cancel the registration of Pauline Hanson’s One Nation.”
In argument the plaintiff stated that that concession was made without his knowledge or authority and that challenging the Electoral Commission was “exactly what I was all about”.
On 14 August 1998, Byrne J. made an order upon the application of the plaintiff Sharples striking out the name of David Michael Summers as a plaintiff.
Perhaps it was in the light of the plaintiff’s concession made on 27 July 1998 to which I have referred that the defendants determined to oppose the granting of a new interlocutory injunction in the same terms as that discharged on 14 August 1998 which they had not previously opposed both purported plaintiffs being prepared to give the usual undertaking as to damages.
The whole matter, however, is complicated by the fact that on the day that David Michael Summers was removed as a plaintiff and his undertaking as to damages discharged his affidavit sworn on 14 August 1998 was handed to the solicitors for the second defendant. The content of that affidavit which was put in evidence by the second defendant to my mind casts real doubt upon the weight to be given to evidence upon which Mr Sharples relies to support his present application.
It would be unhelpful to analyze the content of that affidavit in detail. However, in relevant respects, Mr Summers deposes to the fact that he never at any time gave instructions to the solicitors appearing on the record for Mr Sharples and him as plaintiffs to institute proceedings on his behalf. There is a long and detailed consideration of assertions contained in letters from the solicitors on the record for both the original plaintiffs in the action and Mr Summers has exhibited correspondence relating to those assertions. He swears that prior to the grant of the interlocutory injunction on 27 July 1998 when counsel purporting to act upon his instructions gave the usual undertaking as to damages, he had made it clear to Mr Sharples that he had never given instructions to commence the action on his behalf and indeed when he discovered that he had been named as a plaintiff in the action had demanded that he be deleted as a plaintiff in that action commenced in the names of Mr Sharples and his name as plaintiffs.
It is unnecessary for me to consider the content of this affidavit to determine the possible legal consequences should the facts deposed to by Mr Summers be established.
It suffices to say that presumably as a consequence of Mr Summers’ contact with the solicitors on the record for both him and Mr Sharples as plaintiffs, Mr Sharples applied to have Mr Summers dismissed as a plaintiff. No order was made with respect to any obligation on the part of Mr Summers’ to pay the solicitors on the record for Mr Sharples any costs incurred by him to the date of his being dismissed from the action as one of the plaintiffs. Mr Summers has applied for an order that the solicitors who issued the Writ of Summons on his behalf without his instructions to do so pay his costs “on an indemnity basis”. That application has yet to be determined.
On 13 July 1998 counsel appearing for Mr Sharples and Mr Summers obtained leave to file affidavits sworn by Mr Sharples and Mr Briggs on that day. This material in essence seems to have been the basis upon which the undertaking of the first defendant to have effect until 27 July was given.
Mr Briggs deposed to the fact that he had been treasurer of the Pauline Hanson Queensland Electoral Campaign Committee which was “an unregistered entity” from 29 November 1997 to 28 February 1998. He said that he had been a member of the incorporated “association” The Pauline Hanson One Nation Members Inc. from 26 June 1997 to 26 June 1998. He exhibited what he described as a copy of his “membership card” of that association which purported to have been issued to him on 26 June 1997. It is a pro forma card in terms similar to those to which I have previously referred. He also exhibited the rules of that association setting out its objects. It is unnecessary to detail the objects of that association. It suffices to say that Object 4 is to “remain a non-political support organisation” and 6 “to discuss and put forward any ideas and issues for action and attention by Pauline Hanson and her endorsed candidates”.
It was not contended upon the hearing of the application that that association was a “political party” within the meaning of the Queensland Electoral Act.
Although it is not very clear it would seem that a second lot of objects for this association were inserted in an application for incorporation apparently filed on 6 November 1996.
In paragraph 9 of his affidavit, Mr Briggs swears that “the party” had a separate constitution from “the association”. Indeed, he exhibited to his affidavit “a true copy of the party’s constitution”.
That document bears on it a handwritten notation of the name of Mr Abbott on the front page and a handwritten date 30.6.98.
Interestingly, with reference to the real matter said to be in dispute by the plaintiff, Mr Briggs deposed in paragraph 5 of his affidavit:-
“In or about November 1997 I was directed by Pauline Hanson to gather together the necessary information including the application form and the handbook of directions issued by the Electoral Commission of Queensland so that an application could be prepared and lodged with the Commission to register Pauline Hanson’s One Nation Party (“the party”) as a political party under Part 5 of the Electoral Act.”
He continued in paragraph 6 of the affidavit:-
“In lodging the application I supplied 700 names from the register of the association. These names and addresses accompanied the application for registration of the party.”
He continued in paragraph 7 of the affidavit:-
“The members of the association were not members of the party.”
This assertion seems to involve an admission that indeed at least he acted fraudulently in procuring the registration of the party.
The facts asserted in this affidavit are really quite inconsistent with the evidence called on behalf of the first defendant. The first defendant swears that in fact it was Ms Pauline Hanson herself who lodged the application and list of persons asserted to be members of the party on 15 October and 20 October 1997. While he did not refer to the number of persons on the list, he certainly said that a check of the Electoral Rolls established that there were at least 530 persons whose names and addresses were on the list who were also on the Electoral Roll for Queensland. As I read the affidavit of Mr Briggs, he is asserting that he was the person responsible for applying to have Pauline Hanson’s One Nation Party registered under Part 5 of the Electoral Act in November 1997. That seems to be flatly contradicted by the persons associated with the Commission who received and processed the application which led to the registration of the party. Mr Briggs also exhibited to his affidavit minutes of “the Queensland Election Campaign Committee Pauline Hanson’s One Nation” held at Albany Creek Tavern, on Sunday 11 January 1998. Included in this minute was the following:-
“S. Ferraro put the question to Pauline Hanson regarding money put up by the candidates to fund a portion of their campaign. Would the candidates have some of this money returned after the returns from the Electoral Commission. It was expressed by members and Pauline Hanson that this money was for the good of saving the nation and would remain with the party to contest the following election.”
In paragraph 11 of his affidavit Mr Briggs swears that contrary to the content of the application lodged by Pauline Lee Hanson on an unspecified date, David Ethridge “was then the secretary of ‘the party’”, and therefore presumably Cheyenne McLeod “nominated” in the application as the secretary could not have been. The first time this assertion surfaced was on 13 July 1998. At the hearing on 21 August 1998 the first defendant indicated his willingness to investigate this matter. I observe only that even if for some reason it emerged that the wrong person had been “nominated” as the secretary of the party the legal consequences are to my mind far from clear. Before the assertion was first made in Mr Briggs’ affidavit on 13 July 1998, there was no complaint made to the first defendant and this alleged irregularity or inaccuracy in the application for registration lodged nine months ago has never been considered or investigated.
The first affidavit of Mr Sharples filed by leave on 13 July 1998 outlines the history of the incorporation of the Pauline Hanson One Nation Members Inc. and Mr Sharples also exhibits to that affidavit what he asserts to be a copy of his membership card of that association dated 4 June 1998. The membership number shown on his card is 08227. The membership number on what purports to be Mr Brigg’s membership card is left blank. It is a pro forma card in the same terms as those to which I have already referred and is directed to assisting Pauline Hanson’s One Nation candidates winning seats in the next Federal election.
Mr Sharples also deposes to the fact that -
“Pauline Hanson’s One Nation (“the party”) has a constitution.”
He exhibits a copy of that constitution. He then says that the association (Pauline Hanson One
Nation Members Inc.) “is not part of the party”.
Interestingly, in paragraph 6 of his affidavit he asserts:-
“The names and addresses of the 530 members of the association were annexed to or accompanied the constitution of the party when the application for registration of the party as a political party was submitted to the Electoral Commission.”
He does not assert that he submitted the application and indeed upon the evidence of the first defendant he seems to have had nothing to do with making the application. This evidence in my view is of no weight whatever.
In paragraph 7 he asserts:
“The constitution of the party was not circulated to the 530 members of Pauline Hanson Support Movement Inc.”
He gives no basis for this assertion and I give no weight to it.
In paragraph 8 he asserts:
“I am informed by Mr A. Abott, the Federal Member for Warringah and verily believe that on 3 July 1998 he forwarded a letter dated 3 July 1998 to the Queensland Electoral Commission.”
Mr Sharples exhibits a copy of that letter to his affidavit. He goes on in paragraph 9 to swear:-
“I am informed by Mr A. Abbott, the Federal Member for Warringah and verily believe that on 6 July 1998 Mr A. Abbott the Federal Member for Warringah forwarded a letter dated 6 July 1998 to Queensland Electoral Commission.”
A copy of that letter is also exhibited.
In paragraph 10 he swears:-
“I am informed by Mr A. Abbott the Federal Member for Warringah and verily believe that on 8 July 1998 Mr D. A. O’Shea the Electoral Commissioner forwarded a letter to Mr A. Abbott the Federal Member for Warringah.”
He then exhibits that letter. One might suspect that copies of this correspondence between Mr Abbott and Mr O’Shea were obtained by Mr Sharples from Mr Abbott or some person associated with him.
It is unnecessary to set out in full the rather argumentative letter from Mr Abbott to the first defendant dated July 3, 1998 - four days before Mr Sharples wrote his first letter. I will refer only to the parts that seem to me to be relevant to the issues in this application - the existence of a serious matter in dispute and the balance of convenience.
The letter commences:-
“I am writing to draw your attention to possible invalid registration of One Nation under the Queensland Electoral Act.
As I understand the situation, One Nation was registered as a non-parliamentary party and therefore was required to have 500 members. The constitution of One Nation provides for management committee members, committee members and affiliate members. On my reading of the constitution, affiliate (or ordinary) ‘members’ can only attend meetings by giving notice in writing to the management committee, cannot nominate office bearers and have no power to requisition meetings. The question then arises whether they are ‘members’ in any meaningful sense at all.
---
Therefore it seems to me that One Nation may not have 500 members as required by the Act and that any documentation submitted by One Nation to justify registration may have claimed as members people who had not been admitted to ‘membership’ under the procedures of the party constitution. If so, One Nation cannot have been validly registered under the Act and cannot be entitled to receive nearly $500,000 in public funding.
---
Because of the public interest in this matter I would be most grateful if you could
give it your urgent attention.”
I will refer to part only of the second letter from Mr Abbott to the Queensland Electoral Commission dated 6 July 1998 (the day before Mr Sharples wrote his first letter) which reads inter alia:-
“I am writing again - further to my letter of last Friday, our conversation last night and the comments attributed to you in the media - to reinforce my concerns about the validity of One Nation’s registration as a political party in Queensland.
One Nation was registered as a non-parliamentary party and on that basis would ordinarily be entitled to receive electoral funding for its Queensland result. I fully accept your contention that the party supplied you with the name of the registered officer, a constitution and the names of 500 members (none of whom objected to being so described) and that therefore you were obliged to register the party under the Act. Not for a second am I suggesting that the Commission has failed to do its duty under the Act. However, I very strongly suggest that the registration could have been obtained by misrepresentation under s.75(2)(d) of the Act and wish to bring these matters to your attention for urgent investigation lest $500,000 be paid to a party which was not entitled to the money.
Under the Act a party is required to have 500 members. I accept that One Nation provided the names of 500 electors who thought they were members - but strongly submit that they could not really have been members under the One Nation Constitution. There are two issues to be considered:
.First are One Nation ‘affiliate members’ members in any meaningful sense under the One Nation constitution (given that they cannot attend meetings without giving notice in writing, nominate members of the management committee nor requisition meetings themselves); and
.Second does One Nation actually have 500 members given that under Clause 7(3) of the party constitution members must be proposed and seconded and no known One Nation membership form makes provision for proposers and seconders.
---
I would also submit that s.75(2) of the Act requires you to look into these matters now that they have been brought to your attention to determine whether there are reasonable grounds to conclude that the registration was obtained by fraud or misrepresentation. I put it to you that any claim that One Nation had 500 members could amount to a misrepresentation if those members were not validly admitted in terms of the party’s constitution.
Again please accept that I am not suggesting any lack of diligence at all on the Commission’s part - just that One Nation’s application for registration may not have been quite what it seemed.
I should also point out that I believe that we might be witnessing a new form of rip-off here - a form of political fraud - and that without interfering in internal party matters electoral authorities might henceforth need to inquire of new political parties whether in fact they really do have members to whom their leaders are democratically accountable.
I am attaching some advice I have received on this subject.”
Mr Sharples did not put in evidence the “advice” to which Mr Abbott referred in his letter to the first defendant of 6 July; perhaps he was not in possession of it.
It was on 7 and 8 July 1998 that Mr Sharples wrote his letters to the Commission.
On 8 July 1998 the first defendant as Electoral Commissioner replied to Mr Abbott in the following terms:-
“Reference is made to your letters of 3 and 6 July 1998 and to telephone conversations concerning the registration of Pauline Hanson’s One Nation under the provisions of the Electoral Act 1992.
Careful consideration has been given to the issues you have raised. However I am satisfied that the registration was made in accordance with the provisions of the Act and remains current.
Furthermore, I am not satisfied on reasonable grounds that the Commission should cancel the registration of the party.”
Within two days of sending that reply to Mr Abbott the proceedings in this case were issued in the names of Mr Sharples and Mr Summers on 10 July 1998.
Before leaving consideration of this aspect of the material, it is apposite I think, to refer to paragraph 23 of an affidavit of Mr David Michael Summers sworn on 14 August 1998; he was, one of the plaintiffs to the proceedings instituted by Writ of Summons filed on 10 July 1998. Paragraph 23 of that affidavit reads:
“On Monday, 13 July 1998 in the evening I was telephoned by Mr Sharples and he advised me that to the best of his knowledge I had been removed from the court proceedings.
Paragraph 24 reads:
“Although I am uncertain of the date, I believe it was on or about Monday, 13 July 1998 Mr Sharples advised me that he had drawn up some sort of document which he called an indemnity which was to be signed by a Mr Tony Abbott in respect of Mr Sharples’ costs of taking the proceedings. I have never seen this document. To the best of my recollection at this time, I believe that no issue was raised regarding any indemnity for my own costs. I never turned my mind as to whether I should be granted any indemnity as I did not believe that I had anything to do with the action. Furthermore, I had no legal advice whatever regarding whether such an indemnity ought to be obtained or any legal advice at all pertaining to any matters relating to Mr Sharples’ action.”
Attached to Mr Abbott’s letter to the first defendant of 3 July 1998 was a Membership Application form for Pauline Hanson’s One Nation. It is unnecessary to analyze in detail the policy statements on the application form. Their flavour is probably encapsulated in this (one of many) observation:
“The future of Australia depends on you caring enough to break traditional voting habits/loyalties. Don’t vote for the parties you have supported all your life. They have failed you and your family. Vote for change. Vote for a party of the people. A party that is not corrupted by power ---”
There are observations that both major political parties - Liberal and Labor had implemented policies amounting to “a charter of failure affecting our future”.
The application form attached to Mr Abbott’s letter has a return address printed on it at Bay Village, N.S.W. 2261. That address is within the Federal electorate of Dobell in New South Wales - some distance removed from the electorate of Warringah also in New South Wales.
An inference which in my view can be drawn from the material to which I have referred is that Mr Abbott, a Member of the Federal Parliament and Parliamentary Secretary to one of the Ministers in that Parliament was closely associated with, if not directly involved in, the institution of the current proceedings.
It is unnecessary for me to determine what part, if any, he played in the decision to institute proceedings against the Queensland Electoral Commissioner or what arrangement was made or discussed concerning his providing any indemnity for the costs of Mr Sharples at least. In cross-examination Mr Sharples said that Mr Abbott made contact with him by telephone at the end of June 1998 seeking information “on what had transpired between myself and David Oldfield and One Nation”. He swore that it was Mr Abbott who actually referred him to Mr Everingham who was the solicitor who in fact issued the Writ of Summons in this action on 10 July 1998 and brought the applications for an injunction on 13 and 27 July 1998. On 6 August 1998 the plaintiff filed a Notice of Change of Address for service advising that from that date he acted on his own behalf.
One might readily infer that Mr Abbott was as much motivated by party political considerations relating to the next Federal election as he was in the Queensland Electoral Commission inquiring into assertions of misrepresentation and fraud “because of the public interest in the matter”.
Mr Sharples, upon the application before me, was cross-examined as to his financial capacity to pay any damages which might be suffered by Pauline Hanson’s One Nation (as registered under the Electoral Act 1992 (Qld) should an interlocutory injunction be granted. I must say while I was unimpressed with some of his responses in cross-examination when he asserted that he was quite unable to say how much money he had in the bank or what the value of his accounting business might be - even though he had been on notice for a week that he was to be questioned along these lines to evaluate the worth of any unsecured undertaking that he might give, he did swear on oath, that no person had agreed to indemnify him. He specifically denied that any indemnity had been provided by Mr Abbott with respect to costs which he might incur. Had he given evidence on oath of course that some person had agreed to indemnify him, then it would at least have been open to consider whether any undertaking that might be required of him ought be secured (perhaps ultimately by that indemnifier) to the extent of say $100,000 which was a figure asserted to be the damage likely to be suffered should the second defendant be held out of funds for a very significant period of time to which prima facie the electoral candidates of Pauline Hanson’s One Nation were entitled.
It is interesting to note that according to Mr Briggs he made the application for registration of the Pauline Hanson One Nation and provided 700 names and addresses of persons who were members of the non-party association. He says he did that when he submitted the application for registration of the Pauline Hanson One Nation Party. On the other hand, Mr Sharples says not that any specific person submitted names and addresses to the Commission but that:
“the names and addresses of the 530 members of the association were annexed to or accompanied the constitution of the party when the application for registration of the party as a political party was submitted to the Electoral Commission.”
I am of the view that this sort of evidence is quite insufficient to support the allegation of fraud to the degree necessary to justify the granting of the interlocutory injunction which Mr Sharples seeks.
First of all the evidence of Mr Briggs was that he submitted the application for registration of the party which was accompanied by the names and addresses of 700 members of the association. Mr Sharples however, while not saying who submitted the constitution of the party when the application for its registration was made says that the names and addresses of “the 530 members of the association” were annexed. Moreover he affirms again on my reading of his affidavit that the Pauline Hanson Support Movement Inc. had only 530 members.
The arguments and contentions advanced in the letters from Mr Abbott to which I have referred seem to be directed more to deficiencies in the constitution of the party submitted for registration and their effect on the assertion that there were 500 members of that party than they are to the inconsistent assertions made by Mr Briggs and Mr Sharples that in fact none of the names and addresses of members of the party submitted by Ms Hanson on 15 October 1998 were in fact those of members of that party at all but were all members of her support association with respect to the next Federal election and were unaware that it was asserted that they were members of Pauline Hanson One Nation political party.
The argument advanced by Mr Sharples that the replies received from 97% of the persons whose names and addresses were on the list and were contacted by the first defendant may have been composed in error or perhaps as the result of being misled by the form of the inquiry which they answered affirming that they were members of that party seems to amount to a minor variation of one of the arguments advanced by Mr Abbott in his letter to the first defendant of 6 July 1998 where as I have indicated he observed:-
“Under the Act a party is required to have 500 members. I accept that One Nation provided the names of 500 electors who thought they were members - but strongly submit that they could not really have been members under the One Nation constitution.”
While undoubtedly the issue raised by the plaintiff may properly be described as “a serious issue”, in my view the evidence called to show the existence of that as a triable issue is unpersuasive. I am unpersuaded by the affidavits of Mr Briggs and Mr Sharples which are mutually inconsistent in significant respects and which are both contradicted by the evidence called on behalf of the first defendant as to who applied for registration and when, and as to the investigations and searches made before registration was effected to ensure that the party sought to be registered had at least 500 members in Queensland who were electors entitled to vote under the Electoral Act that there is established an even arguable, much less prima facie case to support the assertion of misrepresentation and fraud made. The legal arguments advanced by Mr Abbott to the first defendant have not been relied upon by Mr Sharples as a basis for the relief he seeks or indeed as the basis for an interlocutory injunction pending the determination of his application for declarations etc.
Under s.75(2)(d) of the Electoral Act it is clear that at least subsequent to the election in June 1998 the party was a Queensland parliamentary party within the definition of s.3. Whatever may have been the position prior to the election, after eleven members of that party had been elected to Parliament, it seems to me that it would be very difficult to assert that subsequent to the election, the party was not a Queensland parliamentary party - whether or not it then had at least 500 members who were electors.
In my view under s.75(2) it would be at the time of contemplated cancellation of the registration of a political party, that the Commission would be obliged to consider whether or not the party was then a Queensland parliamentary party as defined under s.3.
Perhaps it is for this reason that the plaintiff seeks a declaration that the initial registration was obtained by fraud or misrepresentation under s.75(2)(d).
In my view there is something to be said for the contention of the second defendant that the assertions and allegations concerning registration being procured by fraud and misrepresentation are founded upon what on the face of the material is mere speculation. There is no onus upon the defendants in this case in seeking to resist the grant of an interlocutory injunction to call evidence from 500 persons to show that they were at the material time members of the political party. The onus is on the plaintiff to place evidence before the Court which on its face appears arguably reliable and which if acted upon would demonstrate that not merely at the time of registration did Pauline Hanson’s One Nation have less than 500 members but that she or other persons associated with the registration knew that the party had less than 500 members and intentionally misled the Commission by providing the names and addresses of more than 500 persons as members when they knew that they were not members. Indeed Mr Briggs gave evidence to this effect.
The unlikelihood of such a course being adopted - particularly when it must have been known to the applicant for registration that the Commission required a list of the names and addresses, presumably to enable it to check to ensure that the persons named were members of the party - requires in my view, admissible persuasive evidence of the sort which has just not been produced by the plaintiff to establish that there exists a serious issue of fraud or misrepresentation to be tried. Particularly is this so in the light of the evidence from the Commission that 97% of the 250 persons named in that list affirmed that they were indeed members of the political party in question.
In my view even assuming that there exists a serious issue raised by reason only of the relief claimed on the Writ of Summons (no Statement of Claim has yet been delivered setting forth any facts to support the proposition that there was fraud or misrepresentation involved in achieving registration of the party), the plaintiff must show that the balance of convenience requires the grant of an interlocutory injunction.
The plaintiff submitted that while he might not yet have “hard evidence” to support his allegations of fraud and misrepresentation if he could get access to the list of members attached to the application for registration lodged with the second defendant on 15 October 1997 he could carry out investigations himself and attempt to obtain such evidence. In my view the observation of counsel for the first defendant that the plaintiff is:
“trying to use this Court for the purpose of undertaking a broad range inquiry in relation to whether or not One Nation was fraudulently registered”
is well based.
Indeed counsel for the plaintiff (when he was legally represented) conceded in open Court that it was inappropriate for Mr Sharples to have access to that list of members.
By affidavit filed by leave on 21 August 1998 the second defendant representing all members of Pauline Hanson’s One Nation swears that advances have been made in the sum of $35,000 by three persons to meet debts incurred in the last State electoral campaign conducted on behalf of persons standing as members of Pauline Hanson’s One Nation. As the result of the injunction obtained by the plaintiff, (since discharged) the monies advanced to the party to pay the campaign costs have not been reimbursed. Mr James estimates that 79 candidates, being members of the party, contested the recent election and that each would be owed on average between $3,000 and $5,000 in respect of election expenses incurred. On these figures it seems that a significant number of Pauline Hanson’s One Nation candidates for the election held in June 1998 are being held out of between $237,000 and $395,000 in reimbursement of expenses actually incurred. As I read the material, this sum is in addition to the $35,000 advanced by senior party members to repay some of the debts incurred in the course of the election.
In my judgment on the material placed before me, the prospects for the plaintiff’s success in this action can only be described as slight. That is not to say of course that evidence may not yet be procured and advanced to support the assertions upon which the plaintiff now relies. However, the evidence placed before me in my view, does not take the plaintiff sufficiently far to weigh significantly in the balance of convenience between granting an interlocutory injunction and refusing it to justify granting the injunction sought by the plaintiff.
Perhaps the explanation for the institution of this action is to be found under ss. 293(3), and 295(2)(3) of the Schedule to the Electoral Act. Section 293(3) provides:
“(3)For the purposes of this division electoral expenditure for an election incurred by or for a candidate who is endorsed by a registered political party is taken to be electoral expenditure for the election incurred by the party”.
Section 295 of the Schedule provides:
“(1)A payment under this division must not be made except on the making of
a claim to the Electoral Commission for the payment.
(2)If a candidate for whom eligible votes were given in an election was endorsed in the election by a registered political party the claim for a payment under this Division for the eligible votes given for the candidate may be made only by the agent of the registered political party;
(3)If a candidate for whom eligible votes were given in an election was not endorsed by a registered political party a claim for a payment under this division for the eligible votes given for the candidate may be made only by the agent of the candidate.
Section 299(1) of the Schedule provides:-
“(1)If the Electoral Commission is satisfied for a claim under s.295(2) that an amount is payable under this division for votes given in an election or elections for a candidate or candidates endorsed by a registered political party the Electoral Commission must make the payment to the agent of the party.
(2)If the Electoral Commission is satisfied for a claim under s.295(3) that an amount is payable under this division for votes given in an election for a candidate the Electoral Commission must make the payment to the agent of the candidate.
--
(6)If a payment is made under this division and the recipient is not entitled to receive the whole or a part of the amount paid whether because of a false statement in a claim or otherwise the amount or the part of the amount may be recovered by the State as a debt due to the State by action against the person.”
In my view whether or not Pauline Hanson’s One Nation should have been registered as a political party - and that seems to be the principal issue which the plaintiff seeks to pursue - there is no doubt that that party was in fact registered as a political party long before the election was held in which members purporting to be members of that party and endorsed by it to stand as such were elected.
The effect of the registration - even if it were cancelled by the Commissioner - on the rights and obligations created under those sections of the Schedule to which I have referred has not been debated. Neither has been addressed the question whether the registered officer of Pauline Hanson’s One Nation might irrespective of non-compliance with the requirements of s.70(4)(e) of the Electoral Act still be the “agent of” the various persons who contested the election as members of that party.
If the plaintiff were to succeed in obtaining the declaration and relief he seeks with the consequence that monies paid to Pauline Hanson’s One Nation become refundable or partly refundable those monies would be recoverable under s. 299(1)(6) of the Schedule to the Electoral Act.
In my view it is strongly arguable that the plaintiff’s action is ill-conceived in any event. It seems to be an effort to have this Court itself conduct an investigation into the assertions made by Mr Sharples and Mr Briggs and raised inferentially at least by Mr Abbott and to make declarations etc. with a view to avoiding the decision already made by the Commission under s.74(2)(d). Although the Commissioner has not been satisfied on reasonable grounds that the registration was obtained by fraud, it is the contention of the plaintiff that he may come to this Court and persuade it that the registration was obtained by fraud, and by so declaring thereby in effect substitute its decision for that which the Act empowers the Commission to make under s.75(2).
Undoubtedly under s.75 of the Act the Commission may, at any time, cancel registration for fraud or misrepresentation if so satisfied by evidence upon inquiry it makes.
The first defendant relies on what was said in Commissioner of Stamp Duties (NSW) v. Pearse (1951) 84 CLR 490 at 517 -
“There can be no question that if the statute intends that a discretion shall be exercised by a particular person and not by the Court the jurisdiction of the Court is confined to supervising its exercise so as to ensure that it is exercised according to law. The statute in such a case makes a particular person the sole judge of the existence or non-existence of the fact or other matter upon which the right or liability of the subject depends and the Court is not at liberty to substitute its own opinion for his. If s.127(1)(c) of the Stamp Duties Act means that the Commissioner is to be the sole judge of the appropriate method to adopt in valuing shares in a company not listed on a stock exchange then the Court in exercising its power under s.124 cannot interfere unless it can be shown that the Commissioner has acted in contravention of some principle of law. For to be effective the discretion must be exercised in the words of Lord Macmillian delivering the judgment of the Privy Council in D.R. Fraser & Co v. Minister of National Revenue (1940) A.C. 24 at 36:
‘Bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally.’”
Under s.43 of the Judicial Review Act 1991 an application may be made for a declaration on the basis that a review of the original decision is required - not on the merits but because of. the way in which discretion was exercised which led to that decision.
There is no suggestion in any of the material relied upon by the plaintiff, that much of the material upon which the plaintiff now relies in this Court (apart from the letters from Mr Abbott) was ever placed before the Commission at any time prior to Mr Abbott becoming involved in the matter with Mr Sharples in July 1998 - 8 or 9 months after the impugned registration of the party had been effected. On the material it is clear that the Commissioner has had regard to the matters contained in the letter written to him by Mr Sharples and the letters written to him by Mr Abbott on 3 and 6 July 1998. He has simply not been satisfied on reasonable grounds that registration of the party ought be cancelled. If upon that material it is sought to have his decision reviewed under the Judicial Review Act it is difficult at this stage in the absence of any pleadings to know upon what basis the declaration would be sought. I think it quite unlikely on the only material so far advanced that a determination in this action of the very issues already determined by the Commissioner albeit upon further evidence which might be adduced upon those issues which has never been considered by the Commissioner, could be used to bypass or render ineffective that decision entrusted to him under the express legislative provisions of the Electoral Act.
At the end of the day it is my view that on the only material advanced in support of the application for an interlocutory injunction, even assuming on the material that there has been made out a serious issue to be tried - of which I am unpersuaded - nevertheless on the balance of convenience it is my view that the interlocutory injunction ought be refused.
In his submissions the plaintiff asserted that he was motivated to pursue his action only because as a member of the community he felt obliged to prevent the unlawful receipt of money by Pauline Hanson's One Nation. He observed that indeed because he was a person who had stood for Parliament as a member of that party he might really be sacrificing an entitlement to reimbursement from the party should he succeed in this action.
I raised the question of the locus standi of the plaintiff in this case. Perhaps he might have a special interest of the sort canvassed in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27. I mention the matter only in passing. It was not really debated and it would be unprofitable in my view having regard to the conclusion to which I have come on the merits of this application to give further consideration to that matter. It may be a matter to be considered should this action ever come to trial.
It was suggested in the course of the second defendant’s argument that the plaintiff’s action might be struck out as an abuse of process. It seems inappropriate for me to give consideration to such a matter on an application of this kind. If an application to strike out were made then undoubtedly much of the material to which I have referred would be considered. However that may be, it would seem to me to be inappropriate to deal further with that matter. If an application be made to strike out the action as an abuse of the process of this Court it ought be made upon proper material and upon proper notice to the plaintiff so that it can be determined in accordance with proper legal principle. Certainly the affidavit of the second defendant suggests that the cause of action pleaded against the defendants and the assertions of fraud and misrepresentation have had an adverse political impact upon the party. At this stage, however, in the absence of any pleaded facts to support the cause of action upon which the plaintiff relies in the proceedings he has instituted, it would be impossible to do more than speculate as to what apart from pursuit of a matter of public interest has motivated the institution of these proceedings lest perhaps part of the motivation is based upon party political considerations of parties competing in the next election.
Although the then solicitors on the record for the plaintiffs indicated that they had no basis upon which to seek a speedy trial of the action, nevertheless Mr Sharples has recently contended that he is desirous of having a speedy trial. In my view it would be desirable if this action were determined as promptly as possible. To achieve that result it would seem desirable to have directions given to expedite the progress of the action. The second defendant has indicated that he would like a determination of the matter promptly because of the adverse political consequences he perceives in having allegations of the sort made by the plaintiff hanging over the head of Pauline Hanson's One Nation Party - particularly on the approach to an election. That is a matter, however, to which the parties might give consideration and make an appropriate application should one or more so desire.
I dismiss the application for an interlocutory injunction. I give each party liberty to apply upon two days notice to the other parties for the purpose of obtaining directions formulated to achieve a prompt delivery of pleadings in the action and thereafter its prompt determination.
I order that the confidential list of members of Pauline Hanson’s One Nation provided by Ms Hanson to the first defendant on 15 October 1997 as an attachment to the application for registration of that political party which is Exhibit G.J.W. 2 to the affidavit of Mr Wiltshire sworn on 20 August 1998 be kept sealed in an envelope and not be opened for inspection or be inspected by any person without the prior order of a judge of this Court giving permission for such inspection.
I will hear argument on the question of costs.
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