Sharples v O'Shea

[1999] QCA 409

COURT OF APPEAL	[1999] QCA 409
McPHERSON JA THOMAS JA CULLINANE J
Appeal No 230 of 1999
TERRY PATRICK SHARPLES	Appellant/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 (Queensland))	Second Defendant
and
THOMAS KING	Respondent
BRISBANE
..DATE 23/09/99
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THOMAS JA: This is an appeal against a decision on a matter of practice procedure. The

order in question was one striking out a writ for third party discovery that had been issued on

behalf of the plaintiff, Mr Sharples, in a pending action No 6318 of 1998.

The third party writ was directed to Mr Thomas King who was president of the One Nation

Party. The principal action was brought by Mr Sharples against two parties, one of whom was

Mr Peter James, who was sued, "As representative of himself and all members of Pauline

Hanson's One Nation Party as registered under the Electoral Act 1992."

The third party writ required Mr King to produce a very wide range of documents and

computerised records in his possession of six specified bodies which on the face of the

description would seem to have had some association with Paul Hanson's One Nation Party.

Indeed, the writ included a demand that all such records of that party be produced.

It will be noted that the second defendant is a representative defendant in respect of that party.

The principal action has now been determined, favourably it would seem, to the

appellant/plaintiff. Obviously he elected to proceed to trial without reasserting the need for such

documents by means of the present appeal. It would seem that such documents were not

necessary in the event for a successful outcome on his behalf.

I infer that the only practical purpose of pursuing the present appeal is to reverse the order for

costs that was made below.

The matter would therefore seem to fall under Rule 683 of the Uniform Civil Procedure Rules

1999 which, in substance, is the same as the former order 91 Rule 16 of the Rules of the

Supreme Court. In such a situation the Court does not necessarily make a hypothetical

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determination of the merits of the matter as a condition precedent to the award of costs (R v.

The Gold Coast City Council ex parte Raison Pty Ltd (1971) QWN 13).

Unless the decision of the learned Chamber Judge in setting aside the third party writ was

patently erroneous, or some manifest injustice has been imposed upon the appellant, I would not

be prepared to reverse the order below. The appeal would seem to be a futility except on the

question of costs. It was, as already noted, a discretionary order in relation to practice and

procedure.

So far as the decision is concerned it would seem that in the proceedings below the appellant

suggested that the item that he was mainly looking for consisted of specific minutes which were in

the third party's possession and only those that he had in his capacity as Queensland State

President.

No explanation was forthcoming as to why the considerably broader range of documents was

demanded in the writ, or of any justification for them. In these circumstances it is difficult to

disagree with the learned Judge's description of the exercise as a fishing expedition.

His Honour was entitled to make the order he did. The onus was upon the appellant to show

that the documents probably related to a matter in question in the cause and this does not seem

to have been done.

There are numerous other grounds mentioned in the respondent's outline including the preceding

history of apparent failure on Mr Sharples' part to obtain similar documents upon discovery from

the defendant and the perception of the learned Judge that the application was an attempt to

achieve indirectly what he had failed to achieve directly. It is, however, not necessary to discuss

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that issue further and I do not dismiss the appeal on the footing of that particular ground.

I have examined the material including the outline of argument submitted on the appellant's behalf

by his former barrister. However, in my view, no sufficient basis is shown why this order ought

to be set aside.

So far as the costs of the appeal are concerned Mr Sharples filed the present notice of appeal in

January 1999 and he has persisted in it. He now indicates a desire to cross-examine the

respondent, Mr King, on the affidavit filed below. The occasion for that, if at all, was at the

proceedings below. There is no good reason why we should permit it here. Mr Sharples further

submitted that he brought the present appeal on legal advice and therefore ought not to be

ordered to pay the costs, if it is dismissed. On a contest between the parties such a

consideration is quite irrelevant. In my view the ordinary consequence of an unsuccessful appeal

must follow and the appeal should be dismissed with costs.

McPHERSON JA: I agree. The appeal must fail. It has no prospects of success whatever.

Adjourning it would simply occasion further costs. That being so, the ordinary result must

follow, which is that the appellant must pay the respondent's costs of the failed appeal. It matters

not that he might, as he affirms he has, have a right to recover those costs from somebody else,

whether as costs, damages, or in some other way. That is irrelevant as far as the respondent to

this appeal is concerned. It, she or he is entitled to the costs of this appeal because it has failed.

I would make the orders proposed by Mr Justice Thomas.

CULLINANE J: I also agree that the appeal should be dismissed with costs.

McPHERSON JA: That will be the order of the Court. Appeal dismissed with costs.

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