Sharples v O'Shea

[1999] QCA 217

99.217

COURT OF APPEAL

de JERSEY CJ
DAVIES JA

DEMACK J

Appeal No 9834 of 1998

TERRY PATRICK SHARPLES	Appellant
and
DESMOND J O'SHEA	First Respondent
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 Respondent
BRISBANE ..DATE 08/06/99

JUDGMENT
THE CHIEF JUSTICE: I'll ask Justice Davies to
deliver the
first judgment.

DAVIES JA: This is an appeal against an order by Justice Moynihan refusing leave to appeal against a costs order made by him on 4 September last.

On that day His Honour made two costs orders. One
that the present appellant - he was then the
plaintiff - pay the defendant's costs of and
incidental to his summons of
11 August for certification for a speedy trial
which had been reserved by Justice Byrne on 14

August.

The appellant does not seek to appeal in respect
of that costs order. The other costs order was an
order made against him together with the former
plaintiff, Summers, to pay the defendant's costs
including any reserved costs of a notice of motion

of 10 July 1998.

That notice of motion was one in which the
appellant and Summers sought an injunction against
the respondents. On
27 July 1998 by consent Mr Justice Chesterman
granted an interlocutory order until further
order, upon the undertaking as to damages by both

the appellant and Summers.

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Shortly after that Summers sought to withdraw from

the action asserting that he had never given
instructions to commence it and on 14 August 1998
Justice Byrne dismissed him from the action and
discharged the injunction which had been made by
Mr Justice Chesterman.
The present appellant on that occasion indicated
that he intended to apply for an injunction
himself and consequently upon an undertaking which
was given by him as to damages the first
respondent undertook not to disperse the moneys
which he held for another week, that is until 21

August 1998.

The present appellant then commenced proceedings
for an injunction. The material with respect to
those proceedings is not before this Court, but we
were told that those proceedings failed before Mr
Justice Ambrose; that the appellant appealed
against that to this Court and that that appeal
failed; that he made an application in stanta

before this Court and that also failed.

There was no further proceeding then on the notice
of motion of 10 July 1998. The order was then

made in respect of those proceedings.

The appellant's argument, as I understand it in
this Court is that because as between the
solicitor, Mr Everingham and the other former

plaintiff, Mr Summers, Mr Summers contended that

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Everingham had no instructions and that

consequently as between those parties Mr
Everingham should pay the costs of the
proceedings, but Mr Everingham should also pay the
costs of the proceedings so far as he is concerned
and that therefore an order should not have been
made against him.
I have already noted that in fact the costs order
which was made was against both the appellant and

Mr Summers.

In my view there is no substance in that
submission, whatever the position may be between
Mr Everingham and Summers as to who ultimately is
responsible for Mr Summers' liability under the
costs order of Mr Justice Moynihan the subject of
this appeal. That cannot, in my view, affect the
costs order which is made against the present
appellant who accepts that at all times he had
given Mr Everingham instructions and that all of
the proceedings to which I have referred during
the course of these reasons were instituted upon
his instructions or by him.

In those circumstances, in my view, there is no substance in this appeal. The appeal being, as the respondent says, in respect of an order made under section 253 of the Supreme Court Act of 1995.

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In those circumstances, in my view, the appeal

must be dismissed and in my view also with costs.

THE CHIEF JUSTICE: I agree that the appeal should
be dismissed with costs for the reasons just

given.

DEMACK J: I agree.

THE CHIEF JUSTICE: The appeal is therefore

dismissed with costs to be taxed.

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