Sharples v O'Shea and James

[1998] QCA 315

COURT OF APPEAL	[1998] QCA 315
McPHERSON JA THOMAS JA CULLINANE J
Appeal No 8139 of 1998
TERRY PATRICK SHARPLES	Appellant (Plaintiff)
and
DESMOND J O'SHEA	First Respondent (First Defendant)
and
PETER SAMUEL NOEL JAMES	Second Respondent (Second Defendant)
BRISBANE
..DATE 09/09/98 090998 T16/SJ3 M/T COA225/98

McPHERSON JA: This litigation arises out of events related to the recent State General Election. A number of Parliamentary seats were won at that election by a party calling itself Pauline Hanson's One Nation. In expressing the name in that fashion I am not intending to deprecate either the party or its name, but am simply being cautious about it. Underlying these proceedings there is a dispute about the identity of the party and its name.

Briefly stated that dispute is as follows. Persons wishing to contest an election as a political party are required by the Electoral Act 1992 to apply to the Electoral Commissioner for registration as a party. In doing so certain requirements must be fulfilled. An application of that kind was made in this instance by a person or persons on behalf of what may be neutrally called the Pauline Hanson interest. The Electoral Commissioner, who is the first defendant in the action, accepted the application and registered the party. Shortly afterwards there was an amendment to the name, which was also accepted by the Commissioner but it is not of immediate concern in these proceedings.

Under the Electoral Act 1992 a party or its candidate that or who wins seats in a general election is entitled to receive from the Electoral Commission payment of sums of money related to the number of votes gained in order to defray electoral expenses. The Commissioner was proposing to make payments of that kind to the second defendant on behalf of candidates or the party associated with the Pauline Hanson interest when his intentions were intercepted by a temporary injunction in this action, to which the first defendant, and also the second defendant as representative of members of the party, were joined. The action was brought by the plaintiff, who it appears was an unsuccessful candidate in the election and, as I will call him now, a disaffected former member of the party.

He wishes to prevent those payments being made to the party or its candidates. Essentially, as I understand it, the ground is that there is no party properly registered with the Electoral Commission. The first defendant takes a different view of that matter, but it was on this footing that the plaintiff sought an injunction until trial of the action.

His application came before Mr Justice Ambrose. His Honour dismissed it for reasons which he gave at some length and in writing. We are not here immediately or directly concerned with the correctness or otherwise of that decision or of those reasons although they do come into the matter in an indirect fashion. What is before us now is, in terms, an application to stay that judgment or decision or the proceedings in which it was given pending an appeal which the plaintiff has instituted and proposes to bring on. The application for a stay in my opinion is, as it has been said to be by the parties opposing it, quite misconceived. Order 70 r.28 enables this Court to grant a stay of proceedings pending appeal, but granting a stay here would not assist this plaintiff in any way.

The primary Judge ordered the application, which was by notice of motion, to be dismissed. Staying, meaning stopping that order, would not convert it into an order restraining the first defendant from paying out the money in question. When the Court makes no order at all, as happened in this case, you cannot, by stopping that order, make it into an order not to do something.

The application for a stay in that form is therefore futile. What the plaintiff has now sought to do is to seek informally, as I see it, an injunction to restrain the second defendant from paying the money, which is, if not exactly the same as, very similar to the relief the plaintiff failed to obtain in the Court below.

To entertain such an application here would, I think, come close to hearing an appeal against the
order made below which dismissed the application. We are not of course hearing the appeal now,
090998 T17/BC2 M/T COA225/98
and the defendants are justified in objecting to our doing so.

Courts of Appeal have, however, a jurisdiction to grant injunctions pending appeal, but the power to do so is not frequently exercised, and, when it is, it is done ordinarily only to preserve the subject matter of the action or of the proceedings subject to the appeal.

It would, in my opinion, be wrong to regard the election money, as I will call it, as a subject matter in need of preservation. It does not appear to be a trust fund in the proper or any real sense. If the first defendant pays it out to an incorrect person, he may no doubt be expected to try to recover it and require it to be paid back again by the person who wrongly received it.

If he cannot get it back from the person wrongly paid, he may conceivably be liable for it himself, although I am not concerned to suggest that that would be the case here.

What I am concerned to suggest is that it is not a case in which the plaintiff has any tangible interest in the result, in the sense that it is not his money any more than it is that of any other citizen which is being paid away. He appears to have no personal interest, or at best only a negligible personal interest, in the result that would affect him in his own pocket.

The primary judge held that the balance of convenience was not in favour of restraining the first defendant from carrying out his statutory duty, as that defendant conceives it to be. There are obviously some powerful reasons for that conclusion, and I will confine myself essentially to the ones that I think matter for present purposes.

The essence of the application before us now is that if the injunction pending appeal is not granted so as to restrain the payments made, or to be made, by the first defendant, then the plaintiff's action and his claim will be rendered nugatory. As to that, there seem to me to be two answers that are related to the balance of convenience. The first is that, as I have said, the first defendant has power, and there is a statutory provision that assists him in that respect, to

recover moneys paid away to the wrong person. With respect to that, there is an affidavit of a Mr
Craig Gough to the effect that, on his information and belief, the second defendant, that is Mr James,
the representative of the Hanson interest, and Ms Hanson herself, have undertaken to repay the

money if it is paid to them and they are required to repay it.

Mr Gough also has an assurance from those persons that they have assets sufficient to enable them
to cover that payment, or to make it if it is required. That statement is, of course, hearsay only,
although hearsay is admitted on interlocutory applications of this and other kinds. It is worth noting
that it is not challenged; but it is perhaps more important to point out that, even though hearsay, it is
more than we have from the plaintiff in regard to his own position.
By contrast with what is said about those two persons by Mr Gough, the personal financial position
of the plaintiff is not exposed in any way, and he is specifically not said to be capable of supporting
an undertaking in damages which he would certainly be required to give if the relief by way of
injunction sought here were granted in his favour. This was among the points noticed by Mr Justice
Ambrose in the Court below, and the fact that it has not been, as it were, repaired on appeal, gives
one even more reason to suppose that Mr Sharples, the plaintiff, is not in a position where he can, or
perhaps not in a position where he wishes to, back his undertaking by something more secure than
his own statement.
090998 D.1 T18/MV/20 M/T COA225/98

The case, it must be remembered, is not one in which there is in any sense a competition between two claimants to recover the same money or fund. Hence it is right to say that if the money is paid out wrongly by the first defendant, it will not prevent any other claimant from making a similar claim, if there is any such other claimant. The loser will be the State, it will not be the plaintiff. In these circumstances it seems to me even more remarkable that we should be asked to give an injunction in favour of someone who wishes other people not to receive money but, in essence, claims no right to it himself and is not prepared to demonstrate his own ability to meet any loss or damage which may ensue from his having obtained an injunction that, on what we see of it, is one in which he has no personal interest.

I, in all these circumstances, would not be prepared to make the injunction, either in the negative form that was sought, that is to say to preserve the status quo pending determination of the appeal, or in the more daring and more recent form in which Mr English essayed to ask for it; that is to say, as a mandatory injunction requiring the first defendant Mr O'Shea, the Electoral Commissioner, to take steps to recover back the money that he has already paid out. In either event it does not seem to me to be appropriate to grant an injunction, particularly when it is borne in mind that ultimately the largest success that the plaintiff could have on appeal would be simply an injunction restraining whatever money had not then been paid out from being paid away pending trial.

It seems to me that almost everything that can be claimed or recovered by pursuing this appeal could be disposed of in other forms of proceedings, and indeed in the action itself, in which, if it proceeds, ultimately some of the questions which are raised about the standing of the Pauline Hanson Party may perhaps still need to be determined.

In the result I would dismiss the application which has been made to this Court, whether it be one for a stay or an injunction.

THOMAS JA: I agree and have nothing to add.

CULLINANE J: I agree also.

...

McPHERSON JA: The order is that the notice of motion is dismissed with costs.

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