Sharples v O'Shea - [2002] QCA 395

[2002] QCA 395

COURT OF APPEAL

DAVIES JA
HELMAN J
JONES J

Appeal No 2308 of 2002

TERRY PATRICK SHARPLES First Respondent

(Plaintiff)

and

DESMOND J O'SHEA Second Respondent

(First Defendant)

and

PAULINE HANSON'S ONE NATION Not a Party
(Second Defendant)

and

DAVID WILLIAM ETTRIDGE Applicant

BRISBANE

..DATE 30/09/2002

JUDGMENT

DAVIES JA: On 11 March 2002 Mr Ettridge filed in this Court a purported application described as an "application to set aside judgment". Although it is not entirely clear it seems as if the judgment which he seeks to set aside is the judgment of this Court cited Sharples v. O'Shea & Hanson [2000] QCA 23 delivered on 10 March 2000.

The orders sought by him are:

"1. That an extension of time be granted.

2. That this appeal be allowed.

3.That the decision in Sharples v O'Shea & Anor [2000] QCA 23 (18 February 200) Be set aside, or alternatively a decision in favour of the Pauline Hanson's One Nation Party.

4.That the decision in Sharples v O'Shea & Anor [1999] QSC 190 (18 August 1999) be dismissed as an Abuse of Process, or alternatively a decision in favour of Paul Hanson's One Nation Party.

5.That costs be awarded against Terry Patrick Sharples, the First Respondent/Plaintiff or his indemnifier for this Appeal the primary case (2) and appeal to the Appeals Court. (3) At actual costs, or on Solicitor and client basis."

The reference to the decision of 18 August 1999 is a decision of the trial judge the appeal against which this Court dismissed in its judgment of 10 March 2000. The decision of the learned trial Judge was one setting aside a decision of the Electoral Commissioner made on 4 December 1997 and deciding instead that Pauline Hanson's One Nation was not entitled to be registered as a political party in Queensland as it did not satisfy the requirements of section 70 of the Electoral Act 1992 (Qld).

Mr Ettridge was not a party to the proceeding before a learned primary judge, or the appeal to this Court. He was, it seems, however, one of only three members of Pauline Hanson's One Nation, an unincorporated entity which was represented at trial and at the appeal by Ms Hanson.

There is apparently another matter which Mr Ettridge sought to bring before the Court and that was a subpoena issued by him, or purportedly issued against Anthony Abbott, a Minister in the Federal Government. I set aside that subpoena last week, but if there had been any basis for the substantive application which he makes and which I have set out, I would have been prepared to set aside my order and re-hear the application for the subpoena today if Mr Ettridge had wished, but the question is whether there is any basis for permitting the principal application by Mr Ettridge to proceed.

As already mentioned, judgment in that was given by this Court on 10 March 2000 and that judgment was perfected. An application for special leave to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharples v O'Shea

Details

AGLC: Sharples v O'Shea [2002] QCA 395
Case: [2002] QCA 395
Decision Date: 30/09/2002

CaseChat Overview and Summary

In the case of Sharples v O'Shea, David William Ettridge filed an application in the Court of Appeal seeking to set aside a previous judgment given by the Court in 2000. The judgment in question, Sharples v O'Shea & Hanson [2000] QCA 23, was a decision on appeal against a trial judge's determination that Pauline Hanson's One Nation was not entitled to be registered as a political party in Queensland as it did not meet the requirements of section 70 of the Electoral Act 1992 (Qld). Ettridge was not a party to the original proceedings but sought to challenge the decision on appeal.

The central legal issue was whether Ettridge's application to set aside the 2000 judgment was permissible. The Court of Appeal noted that once a judgment is perfected, the court loses jurisdiction to recall or set it aside, unless a specific statutory provision allows it. The Court cited Bailey v. Marinoff and DJL v. The Central Authority to support the principle that a perfected order is final and cannot be recalled. The appeal court also considered whether Ettridge's application to set aside the subpoena issued by him could be heard. The Court concluded that since the primary application to set aside the judgment was incompetent, the order setting aside the subpoena should remain in place.

The Court of Appeal held that Ettridge's application to set aside the 2000 judgment was incompetent because a perfected order cannot be recalled. The application was struck out, and the order setting aside the subpoena was upheld. Davies JA, Helman JA, and Jones J unanimously agreed on the outcome. The final order was that the application by Ettridge was struck out with costs.

Orders