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Sharples v O'Shea[2000] QCA 23

Sharples v O'Shea[2000] QCA 23

SUPREME COURT OF QUEENSLAND

CITATION:

Sharples  v O'Shea and Hanson [2000] QCA 23

PARTIES:

TERRY PATRICK SHARPLES

(plaintiff/first respondent)

v

DESMOND J O'SHEA

(first defendant/second respondent)

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 defendant/appellant)

FILE NO/S:

Appeal No 7592 of 1999 SC No 6318 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 1999, 2 December 1999, 17 February 2000, 18 February 2000, 6 March 2000, 7 March 2000, 10 March 2000

JUDGES:

de Jersey CJ, McMurdo P, Helman J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

  1. Appeal dismissed.
  1. Appellant to pay the first respondent’s costs, including any reserved costs, to be assessed.
  1. No order as to costs between the appellant and the second respondent.

CATCHWORDS:

ADMINISTRATIVE LAW – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – APPEALS FROM PARTICULAR AUTHORITIES – appeal against outcome of application for review of decision of Electoral Commission to register political party – whether Trial Judge erred in finding first respondent had standing to bring application – whether first respondent affected by the decision reviewed – application brought out of time – whether Trial Judge erred in exercising her discretion to extend time limit

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PLEADING – STATEMENT OF CLAIM – where outcome of application for review brought under the Electoral Act 1992 appealed – whether Trial Judge’s decision was based on issues outside those identified by the pleadings – intended reading of statement of claim – whether Trial Judge’s assessment of the pleading realistic in the context of the actual conduct of the trial – whether Trial Judge’s late ruling as to effect of pleadings prejudiced fair conduct of appellant’s defence – whether Trial Judge erred in permitting late amendment of statement of claim

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – IN GENERAL – whether Trial Judge erred in acting on the evidence of witnesses called for the first respondent where contrary objective evidence existed – whether cumulative effect of that material excluded conclusion drawn from witness’ evidence – where no contradictory oral evidence on appellant’s part

Briginshaw v Briginshaw (1938) 60 CLR 336, followed

G v H (1994) 181 CLR 387, referred to

Jones v Dunkel (1959) 101 CLR 298, referred to

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, followed

Onus v Alcoa of Australia Ltd (1982) 149 CLR 27, followed

Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146, referred to

Re McHatten v Collector of Customs (1977) 18 ALR 154, referred to

Electoral Act 1992 (Qld) s 3, s 70, s 72, s 75, s 180

COUNSEL:

Mr P Lyons QC, with him Mr P Roney for the appellant

The first respondent appeared on his own behalf

Mr G Gibson QC, with him Mr P Flanagan for the second respondent

SOLICITORS:

Watkins Stokes Templeton for the appellant

The first respondent appeared on his own behalf Crown Law for the second respondent

  1. [1]
    de JERSEY CJ:   On 27 March 1997 the political party named Pauline Hanson’s One Nation was registered under the Commonwealth Electoral Act.  On 15 October 1997 the appellant, Ms Pauline Hanson, lodged with the second respondent, Mr O'Shea, the Electoral Commissioner, an application to register a party bearing that same name under the Electoral Act 1992 (Queensland).  Section 70(4)(f) of the Electoral Act required that the application be accompanied by a copy of the party’s constitution.  The constitution accompanying the application was in fact a copy of the federally registered party’s constitution, which included, as an object, the endorsement of candidates for the Senate or the House of Representatives.  Not surprisingly, for a political party to be registered in Queensland, one of its objects or activities must be the promotion of the election of candidates to the Legislative Assembly (s 3).  Mr O'Shea informed Ms Hanson of a consequent need to amend the constitution which had been submitted, and that was (apparently) attended to. The Electoral Act also required that the application set out the names and addresses of  five hundred members of the party who were Queensland electors (s 70(4)(e)). This application was accompanied by a list of more than one thousand “members”. Mr O'Shea’s officers went through a process to authenticate those claims of membership.  Being satisfied that the requirements of the Act had been met, Mr O'Shea then registered the party, under s 72 of the Act, on 4 December 1997.
  2. [2]
    A Queensland State election took place on 13 June 1998.  The first respondent, Mr Sharples, stood as a candidate for the electoral district of Burleigh.  He represented himself to the Electoral Commissioner as the candidate endorsed for that seat by Pauline Hanson's One Nation.  In May 1998 Mr Sharples had agreed with one Paul Trewartha, who Mr Sharples believed was national vice president and national secretary of Pauline Hanson’s One Nation, to join the party and stand as its endorsed candidate for Burleigh.  (Mr Trewartha in fact held those positions in a related support organisation called Pauline Hanson Support Movement Inc.)  Mr Sharples’ agreement was conditional on his controlling the giving of preferences, and his recovering 75 per cent of his personal campaign expenditure from Electoral Commission refunds passed on to the party after the election.  Disagreement about the allocation of preferences led however to a withdrawal of One Nation’s support for Mr Sharples, just before the election.   He was not elected, although he received more than 4 per cent of the valid first preference votes, which bears upon the entitlement to electoral funding reimbursement.  He had spent more than $11,000 on the campaign, and sought reimbursement from Pauline Hanson’s One Nation.  It was not forthcoming.  His subsequent investigation, to identify the entity he should sue, led to his ultimately applying to the Supreme Court, under s 180(1) of the Electoral Act, for review of Mr O'Shea’s decision to register the party.
  3. [3]
    Section 180 of the Electoral Act provides that “any person affected” by a decision to register a political party may apply to the Supreme Court to review that decision. The learned trial judge held that the entity registered by Mr O'Shea did not have 500 members who were Queensland electors, as required by s 70(4)(e), and that when Ms Hanson applied for registration, she knew that fact.  The contrary representation, gathered from the “membership” data which accompanied the application, was fraudulent.  Her Honour held that Ms Hanson and Mr David Ettridge, the members of the management committee of Pauline Hanson’s One Nation, were responsible for that fraud.  Having found that the registration of the party was induced by fraud, the judge set it aside (cf. s 75(2)(d)).  The basis of Her Honour’s conclusion that Mr Sharples was entitled to apply for the review, as a “person affected” (s 180) by the decision to register the party, appears from this passage in her judgment:
  1. “The real interest of the plaintiff is seen in the fact that he believed he had joined the political party, Pauline Hanson’s One Nation, and he had stood as a candidate for it in the State election held on 13 June 1998.  The name of the party, Pauline Hanson’s One Nation appeared next to his name only because it was a registered party and he was endorsed by that party.  His expectation of a refund of his electoral expenses was based on his expectation that the political party was registered and would receive electoral funding from which his expenses or a part of them would be reimbursed.  Thus his interest comes within the scope and purpose of the statute in issue because he was affected by the rights given to the political party by registration.”
  1. [4]
    Ms Hanson challenges this finding on appeal, and it is logically appropriate on the appeal to consider that matter first.
  2. [5]
    The conclusion is compelling that the validity or otherwise of the registration of the political party under whose banner Mr Sharples contested the State election is a matter which “affects” him.  Mr Sharples believed he had joined Pauline Hanson’s One Nation.  He had paid a $40 membership fee, and $250 candidate party nomination fees.  He had received a membership card dated 4 June 1998 showing him as a member of the Gold Coast branch of Pauline Hanson’s One Nation.
  3. [6]
    Yet those who controlled the party disputed Mr Sharples’ claim.  On 17 February 1999 he received written notice of a forthcoming annual general meeting of the party, to be held in Sydney on 28 February 1999.   He attended the meeting and showed his membership card, but was refused admittance.  Mr Ettridge then told him, as Her Honour found, that it was “just a piece of paper with (his) name on it”, and that he had never been “a member of the party Pauline Hanson’s One Nation”.
  4. [7]
    In summary, Mr Sharples appeared, and believed himself, to be a member of the party, yet one of its “managers” disputed that.  He not only believed he was a member, but had, in addition, publicly presented himself as such.  Whether the registration be valid or not, Mr Sharples was “affected” by that issue.  If it was valid, he was properly presenting himself, if a member, as its endorsed candidate. If it was not valid, he was entitled to know that, as its supposedly endorsed candidate.
  5. [8]
    The appellant’s challenge to the findings on standing rested substantially on Mr Sharples’ evidence, at trial, that he did not, by then, regard himself as a member of Pauline Hanson’s One Nation, and by then believed that he had never been a member of it.  That may be so, but the manner in which Mr Sharples acted in reliance on there being valid registration, especially standing, as he believed, as an endorsed candidate of the party, in circumstances where he reasonably believed he had joined it, meant that he was relevantly affected by the registration, notwithstanding that he subsequently came to believe that the registration was invalid and that he was not a member.  His having stood as its endorsed candidate itself gave him standing to have the registration of the party reviewed.
  6. [9]
    In addition, there is the question, which Mr Sharples was entitled to ventilate, whether, validly registered, Pauline Hanson’s One Nation was itself entitled to the electoral funding prescribed by the Electoral Act, which potentially bore on his recovery of the moneys he asserted had been promised him.  Her Honour justifiably referred to that aspect as well.
  7. [10]
    Her Honour’s conclusion on standing was correct.  It was consistent with the modern approach to the determination of standing evident especially from Onus v Alcoa of Australia Ltd  (1982) 149 CLR 27.
  8. [11]
    The appellant next challenged a procedural order made by Her Honour to facilitate the review.  Section 180(2)(c) of the Electoral Act prescribes a time limit within which an application for review must be brought. That is, “within one month after the decision comes to the notice of the applicant or such further period as the Court allows”.
  9. [12]
    The decision to register the party was made on 4 December 1997.  The State election took placed on 13 June 1998.  Her Honour held that Mr Sharples knew “at least constructively” of the intention to register the party, on 20 May 1998, when he met Mr Trewartha; but went on to say that the Court could only be certain that Mr Sharples actually knew of registration on 3 July 1998 when he obtained from the Electoral Commission a copy of the constitution submitted with the application for registration.  The proceedings were commenced by writ on 10 July 1998, seeking a declaration that Pauline Hanson’s One Nation was not validly registered.  But it was not until subsequently, immediately before trial, that Mr Sharples reconstituted the proceedings as an application for review under the Electoral Act.  (The trial commenced in March, 1999.) There was delay, but as Her Honour found, that occasioned no prejudice to Ms Hanson or Mr O'Shea.  Significantly, Her Honour found that Ms Hanson had notice of the essential ground being asserted against her – lack of 500 members who were Queensland electors – through a similar application commenced by another person in August 1998.
  10. [13]
    Her Honour concluded that Mr Sharples had not “slept on his rights”, that there was an adequate explanation for his delay in commencing proceedings, and that neither Ms Hanson nor Mr O'Shea had been prejudiced by the delay.  She not surprisingly went on to exercise her discretion to extend time as necessary to allow the application to proceed.
  11. [14]
    In her notice of appeal, Ms Hanson contends that the learned judge thereby erred. But there was no particular challenge to any of those factual conclusions drawn by Her Honour.   Indeed, Mr Lyons, QC, who appeared for the appellant at the hearing of the appeal, advanced no argument at all in support of this ground.  There is plainly no basis on which the learned judge’s discretionary judgment in this respect could be upset.  It was amply justified by the conclusions to which she came, and they were open on the evidence.  Especially noting that it was a discretionary judgment, this Court would in any event be properly circumspect about reviewing it.  The whole of Her Honour’s reasons for judgment on this aspect are supportable. In the end, because this ground of appeal was not in fact pursued, there is no need for any more elaborate expression of the reasons why it fails.
  12. [15]
    The major ground of challenge mounted on the appeal, apart from the issue of standing, concerns whether the state of the pleadings, and the manner in which the case was conducted, excluded its being determined in the way Her Honour did determine it.  Ms Hanson contends that the learned judge’s decision was “based on issues which were outside those identified by the pleadings”; that the judge “erred in ruling to be relevant and admissible, evidence which had been the subject of objection”; that the judge erred “in failing to rule on the relevance of (that) evidence … until delivery of the judgment, thereby prejudicing the fair conduct of the appellant’s defence”; and that the judge erred “in permitting the amendment of the statement of claim … the amendment being late, embarrassing and otherwise objectionable”.
  1. [16]
    To comprehend this category of challenge to the judgment, it is important to recapitulate the learned judge’s principal findings.  She expressed them as follows:
  1. “… there is a political party, … it was first registered under the Commonwealth Electoral Act 1918 on 27 March 1997 and later sought and was granted registration under the Electoral Act 1992 in Queensland.  The constitution filed in support of the application for registration of the political party under the Commonwealth Electoral Act 1918 on 12 March 1997 is the same as the constitution originally filed in support of the application for registration under the Electoral Act 1992.  From its constitution, it can be seen that it was completely controlled by Ms Hanson, Mr Ettridge and Mr Oldfield and no other person.  There were no other members.”
  1. [17]
    Finding that the representation of membership which accompanied the application for registration in Queensland was knowingly false, Her Honour set it aside as fraudulent.  Her order was in these terms:
  1. “… set aside the decision of the commissioner made on 4 December 1997 and decide that Pauline Hanson’s One Nation was not entitled to registration as a political party in Queensland as it did not satisfy the requirement of s70 of the Electoral Act 1992.”
  1. [18]
    The appellant contends that these findings and conclusions were not open, for the reason that the statement of claim pinned Mr Sharples’ case intractably to the existence of a Queensland party quite separate and distinct from the federally registered party, a quite separate entity.  The argument runs that since Her Honour found that the Queensland party was the same as, or at least a virtual emanation of, the federally registered party, the pleaded case should have failed, with no relief being granted.  As it was put in Mr Lyons’ written submission, “Her Honour correctly determined that the application for registration was by the “federal party”. That being so, the plaintiff’s claim ought to have been dismissed.”
  2. [19]
    One approaches this matter conscious that the pleaded case is one of alleged fraud. It should therefore be pleaded distinctly and with particularity, and clearly proved. See Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, 573; Briginshaw v Briginshaw (1938) 60 CLR 336, 363.
  3. [20]
    I turn to the statement of claim.  It begins with a glossary which includes these definitions:

“The Queensland Party:

The entity registered with and created by its constitution a copy of which is lodged with the Queensland Electoral Commission.

The Federal Party:

The entity registered with and created by its Model Rules a copy of which is lodged with the Australian Electoral Commission.

…

Pauline Hanson’s One Nation:

The name of the Federal Party, the State Party and the name used under licence by the Association.”

  1. [21]
    This led into the contention before us, and at trial, that the statement of claim drew a clear distinction between the Queensland and Federal parties consistent only with their being regarded as strictly separate, distinct entities.  Looking at the glossary alone, one would not, however, necessarily exclude the possibility of the same entity being registered both federally and in Queensland, as Her Honour essentially found to be the case, and sharing the same name.
  2. [22]
    The allegation of fraud which the learned judge found established, as originally expressed in the statement of claim (para 3D(xviii)), likewise to my mind left open a case that the party already registered federally was, as the evidence established, the entity which was seeking (additional) registration in Queensland.  These subparagraphs support that reading:
  1. “(xviii) The application to register the Queensland Party was made either well knowing that it was false and untrue or recklessly not caring whether it was true or false.
  1. Particulars
  1. (a)
    The constitution lodged with the application for registration of the Queensland Party was the constitution for the Federal Party known as Pauline Hanson’s One Nation which constitution was subsequently amended or subsequently withdrawn or replaced at the request of the First Defendant so that the said constitution complied with the definition of political party as defined in the Electoral Act 1992 (Qld).
  1. (b)
    At the date of the application to register or alternately the date of lodgement [sic] of the application to register the Queensland party there was no constitution for the Queensland Party.
  1. (c)
    The only entities in existence at the date of the application to register or alternately the date of lodgement [sic] of the application to register the Queensland Party were the Federal Party the Association and the Company.”
  1. [23]
    (“The Association” and “The Company” were defined in these terms in the glossary:

“The Company:

Pauline Hanson’s One Nation Ltd ACN 079 986 913 registered under the Corporations Law (Cth) with the Australian Securities and Investment Commission.

The Association:

Pauline Hanson’s One Nation Inc. formerly Pauline Hanson Support Movement Inc. incorporated pursuant to the Associations Incorporation Act 1981 (Qld) with the Department of Equity and Fair trading formerly the Department of Consumer Affairs.”)

  1. [24]
    Subpara (c) above especially, suggests that the entity applying for registration in Queensland must have been one of the three then existing entities, the federal party – as Her Honour found to be the fact, or the Association or the Company.
  2. [25]
    At the end of his case, Mr Sharples was given leave, over objection, to amend his statement of claim.  The appellant describes that amendment as “late, embarrassing and otherwise objectionable”.  (The amended pleading commences at page 1500 of volume 12 of the record.)  The amendment was not of great ambit. The appellant nevertheless points out that, as put in the written submissions:
  1. “(a)
    it maintained the distinction between the Federal Party and the Queensland Party;
  1. (b)
    it alleged that the application made to the First Defendant was an application to register the Queensland Party:
  1. (c)
    it made no allegation that an application was made to register the Federal Party.”
  1. [26]
    That did indeed reflect the tenor of the appellant’s objection to much of the evidence, and to the course the trial followed.  In my view it depended on far too narrow a reading of the plaintiff’s pleading.  Certainly it may be noted that the appellant was consistent in raising such objections, and did not acquiesce in any departure by Mr Sharples from the pleading.  But was there departure?  I do not consider there was.
  2. [27]
    Any arguable lack of clarity in the statement of claim readily disappears if one reads the opening words of paragraph 3D(xviii), for example, as follows:  “The application by the entity already registered federally to be registered as the Queensland Party …”.   But that that was the intended reading anyway, is strongly suggested by the following particulars: that it was the federal constitution which initially accompanied the application (subparagraph (a), and that the only (relevant) entity then existing was the federal party (subparagraph (c)).  It may have been better had the point been made crystal clear by some such terms.  But Her Honour was plainly of the view that no party was under any real misapprehension but that that was the case being made, and to be met.
  3. [28]
    I quote the following passage from the judgment, suggesting a proper appreciation of the issue and a realistic assessment of the pleading in the context of the actual conduct of the trial:
  1. “Careful submissions by the defendants were made about the limitations of the pleadings in this case.  The plaintiff has struggled to articulate his case clearly.  A party is limited by its pleading in the conduct of its case unless the parties have deliberately chosen some other basis for the determination of their respective rights and liabilities.  There was no acquiescence in any departure from the plaintiff’s pleaded case by either the first or the second defendant except to any limited extent that can be deduced from their submissions to the Court.
  1. In the end, in spite of the inadequacy of the pleadings, it would appear that the parties were able to put before the court the relevant issues for determination.  It is not necessary to consider the objections to the evidence in great detail.  Many objections to the form in which evidence was led by the plaintiff were raised during the course of the trial; the plaintiff almost invariably conceded that the evidence was in inadmissible form and the objections were allowed.  As to the objections as to relevance, this judgment deals with the matters which I considered relevant on the pleadings.  The statement of claim was amended to plead in accordance with the opening by the plaintiff of his case.  It is important that arguments about pleadings should illuminate rather than obfuscate the real issues for determination.”
  1. [29]
    It is illuminating to refer to the learned judge’s treatment of one particular category of objection to evidence.  At least 500 persons believed themselves to be members of Pauline Hanson’s One Nation, although the judge found their view misconceived: they were in fact admitted to membership of the support organisation, not the political party. For that conclusion, the judge relied on statements attributed to members of the political party’s management team, Ms Hanson, Mr Ettridge and Mr David Oldfield, by various persons called as witnesses at the trial.  There was unsuccessful objection to that evidence. The question ultimately arose what if any significance attached to the failure of Ms Hanson, Mr Ettridge and Mr Oldfield to give evidence about those matters.  The reasons for judgment include this passage:
  1. “The second defendant says that the reason for not calling those witnesses was because certain matters were not open on the pleadings, in particular that the plaintiff did not allege that an application was made to register the Federal party. But whether the application was to register the Federal party or the State party, statements as to whether there were any members of the political party which the second defendant sought to register under the Queensland Electoral Act 1992 are relevant and admissible.  It is my view open on the case pleaded to find that there was an application to register Pauline Hanson’s One Nation, an unincorporated association, which did not have 500 members.”
  1. [30]
    The crux of Her Honour’s approach is expressed in the final sentence.  I believe that was a tenable and reasonable view, open on the pleadings, which the plaintiff ignored at its peril.  This set of grounds of appeal therefore should not prevail.
  2. [31]
    The final ground of appeal is that the learned judge erred in acting on the evidence of a number of witnesses called for Mr Sharples, witnesses by the names of Trewartha, Dennis, Briggs, Graham, Archer, McDermott, Bramwell and Carne, in circumstances where their evidence conflicted with a preponderance of contrary objective evidence.  This especially concerns the judge’s finding that as at registration, Pauline Hanson’s One Nation had no members who were Queensland electors.  There were more than 500 Queensland electors who believed that they were members, but they were in fact members of the support organisation.
  3. [32]
    Clauses 9 and 16 of the constitution of Pauline Hanson’s One Nation operated to vest in the management committee (Ms Hanson, Mr Ettridge and Mr Oldfield) the exclusive power to admit members to the political party.  The judge relied substantially on statements made by those persons to those various witnesses.  For example, and by way of brief extract only, Mr Ettridge told Ms Dennis that subscribers joined the support group not the party – the party had only three members, Ms Hanson, Mr Oldfield and himself.  Ms Hanson, for her part, told Mr Bramwell that the members would be confined to the support group, so that they could not vote her out of the party, which was controlled by the previously mentioned three persons. Mr Ettridge told Mr Graham that there was no party, only the support group.  Mr McDermott gave evidence of a statement by Mr Oldfield that everyone who was a member was only a member of the support group.  Mr Ettridge told Mr Briggs that the previously mentioned three persons were the only members of the party.  There were other similar statements.
  4. [33]
    The learned judge drew these conclusions:
  1. “I accept after considering all the evidence that at the time of registration of Pauline Hanson’s One Nation as a political party in Queensland those who controlled Pauline Hanson’s One Nation Ltd intended to restrict membership of the organisations under their control as follows:
  • only the original five subscribers were members of Pauline Hanson’s One Nation Limited.
  • only Pauline Hanson, David Ettridge, David Oldfield and perhaps other elected members of Parliament (when that occurred) were or would be members of the political party known as Pauline Hanson’s One Nation.
  • all other members of the public who sought to join, no matter what level of fee they paid, would become members of the incorporated support group, at that time called Pauline Hanson Support Movement Inc and after 3 February 1998, Pauline Hanson’s One Nation Members Inc.
  1. At the time of seeking and being granted registration, therefore, the political party known as Pauline Hanson’s One Nation did not have 500 members although the evidence shows that it had more than 500 people who believed themselves to be members.
  1. Ms Hanson, Mr Ettridge and Mr Oldfield knew that the political party did not have 500 members and knew therefore that it was not entitled to registration.”
  1. [34]
    The appellant contends that there was a preponderance of contrary objective evidence.  Reliance was placed, in particular, on “branch starter kits”, which drew a distinction between membership of the party and membership of the support group; the published procedure for seeking party membership; the acknowledgement of the different memberships available, included in a Gold Coast newsletter of June 1997; similar acknowledgements in a pre-registration strategy document for Hunter River branches, which also covered the different fees payable; and other letters, minutes and other documents, including membership forms which issued.  In my view the cumulative effect of that material was not such as necessarily or reasonably to exclude the conclusion strongly to be drawn from the uncontradicted evidence of the statements made by the members of the management committee.
  2. [35]
    Her Honour referred carefully to most of this documentary material in her reasons for judgment.  Her view in the end was that whatever the documentary claims, membership of the party was ultimately controlled, both by internal regulation and in fact, by the three member management committee, and that it had not in fact admitted other members.  The judge rightly saw as potentially significant the failure of Ms Hanson, Mr Ettridge or Mr Oldfield to give evidence on this subject, and she made reference to the principle of Jones v Dunkel (1959) 101 CLR 298 as discussed in G v H (1994) 181 CLR 387, 402.  As put in the judgment, in brief:
  1. “Neither Ms Hanson, Mr Ettridge nor Mr Oldfield gave evidence in this matter in spite of evidence being led by the plaintiff of statements made by them about membership of the organisations, whether the political party or the support movement.  Where there is no reason to disbelieve the evidence given by those witnesses, uncontradicted as it is by any oral evidence on the part of the second defendant, I would of course be inclined to accept the evidence of those witnesses that those statements were made to them.”
  1. And later, with relation to the payment of membership fees:
  1. “… no member with authority to speak on behalf of the party came forward to give evidence that the payment of such a fee resulted in actual membership of the political party, when it was clearly within their power to do so.”
  1. [36]
    This approach was open and reasonable.  The learned judge’s conclusions were reasonably drawn.  This final ground of appeal also therefore fails.
  2. [37]
    In the result, I would dismiss the appeal, and order the appellant to pay the first respondent’s costs, including any reserved costs, to be assessed.  There should be no order as to costs as between the appellant and the second respondent.
  3. [38]
    McMURDO P:   I have read the reasons for judgment of the Chief Justice and agree with him that this appeal should be dismissed for the reasons he has given.  I wish to add the following comments.
  4. [39]
    As to the first respondent's standing to challenge the registration of the political party Pauline Hanson's One Nation under the Electoral Act 1992 ("the Act"), it was not necessary in this case to show that the first respondent was a person affected by the registration at the time the decision was made to register the party on 4 December 1997.  Section 180(2) of the Act allows for an application for a review to "be made within one month after the decision comes to the notice of the applicant or such further period as the court allows". All that is required is that the applicant was affected by the decision[1] to be reviewed, not merely by the outcome of the review: see Re McHattan v Collector of Customs.[2] At the time of his application for review, the first respondent clearly had standing under the Act as a "person affected by the decision" for the reasons given by the Chief Justice.
  1. [40]
    The appellant complains that the findings of the primary judge were not within the pleadings, as the pleadings alleged that there was one entity called the Queensland Party[3] and a separate entity called the Federal Party,[4] whereas the findings by the learned primary judge were that there was only one political party, "Pauline Hanson's One Nation",[5] first registered under the Electoral Act 1918 (Cth) on 27 March 1997, which later sought and was granted registration under the Act in Queensland;[6] that its only members were Pauline Hanson, David Ettridge, David Oldfield and perhaps other elected members of Parliament (when that occurred); that all other members of the public who believed that they were members of the political party were in fact only members of the support group;[7] that at the time of seeking and obtaining registration under the Act, Ms Hanson and Mr Ettridge knew the political party did not have 500 members[8] and the appellant made the application to register the political party either knowing it was false or recklessly not caring whether it was true or false.[9]
  2. [41]
    The first respondent was at times self-represented and at trial was represented by counsel without instructing solicitor. Nevertheless, the claim found by the primary judge to be successful was one of fraud; such a claim must be pleaded specifically and with particularity: Krakowski v Eurolynx Properties Ltd.[10] At trial, the appellant on many occasions resisted conducting the case upon any basis other than that pleaded.  Despite these considerations, in my view, the pleadings satisfactorily made the claim which the primary judge found established and in order to illustrate this, it assists to set out portions of the twenty page amended statement of claim.
  3. [42]
    The pleadings claimed that one ground for the application for review was:
  1. "D.
    The decision was induced or effected by fraud or misrepresentation.
  1. Particulars
  1. …
  1. (xii)
    At all material times when any person sought to join or become a member of Pauline Hanson's One Nation he or she was not enrolled in the Queensland Party[11] but was enrolled as a member of the Association[12] or alternately was enrolled as a member of the Federal Party[13] and issued with a membership card in the name of Pauline Hanson's One Nation.
  1. Particulars
  1. …
  1. (b)
    The constitution of the Queensland Party lodged with its application for registration was the constitution for the Federal Party known as Pauline Hanson's One Nation. …
  1. …
  1. (xiv)
    As the Queensland Party was not at the date of lodgment for registration a Queensland parliamentary party it was then required to support its application with the names and address (sic) of five hundred (500) members of the party who were also then electors of the state of Queensland as required by section 70(4)(e) of the Electoral Act 1992 (Qld).
  1. …
  1. (xviii)
    The application to register the Queensland Party was made either well knowing that it was false and untrue or recklessly not caring whether it was true or false.
  1. Particulars
  1. (a)
    The constitution lodged with the application for registration of the Queensland Party was the constitution for the Federal Party known as Pauline Hanson's One Nation which constitution was subsequently amended or subsequently withdrawn or replaced at the request of the First Defendant so that the said constitution complied with the definition of political party as defined in the Electoral Act 1992 (Qld).
  1. (b)
    At the date of the application to register or alternately the date of lodgement of the application to register the Queensland party there was no constitution for the Queensland Party.[14]
  1. (c)
    The only entities in existence at the date of the application to register or alternately the date of lodgement of the application to register the Queensland Party were the Federal Party the Association and the Company.
  1. (d)
    At all material times since the 24 May 1997 the Association had two levels of membership namely:-
  1. (1)
    One Nation members who have full voting rights and
  1. (2)
    Pauline Hanson One Nation Supporters having all rights of membership other than voting rights.
  1. …
  1. (f)
    The Queensland Party was not then a parliamentary party in the state of Queensland or alternately it did not then have at least five hundred (500) members as required by the Electoral Act 1992 (Qld).
  1. Particulars
  1. (1)
    The membership application form was not signed as required by clause 7(3) of the Constitution of the Queensland Party.
  1. (2)
    The membership application form did not contain any provisions for a proposer and seconder as required by clause 7(2) of the Constitution of the Queensland Party.
  1. (3)
    The membership application form was neither proposed nor seconded in accordance with clause 7(3) of the Constitution of the Queensland Party.
  1. (4)
    The membership application form was not dealt with by the management committee in accordance               with               clause               9(1)               of               the Constitution of the Queensland Party.
  1. …
  1. (h)
    The identity of each and every individual alleged to have had the knowing intent referred to Pauline Lee Hanson, David William Ettridge, …
  1. (i)
    The identity of each and every individual who cared not whether the application was true or false were Pauline Lee Hanson, David William Ettridge, …
  1. (j)
    The means by which and the time when each  of the persons with the alleged knowledge came to have knowledge of the falsity and untruth:-
  1. (i)
    Mr David William Ettridge at the time when the list was down loaded and printed by his direction in his office at Sydney for the purpose of forwarding same to the office of Ms Hanson, Mr Ettridge knew that the list was a list of names of members of either the Federal Party or the Association.
  1. (ii)
    Messrs. (sic) Hanson and MacLeod at the time when the said list was received from Mr Ettridge and when the list was vetted by Mr Briggs and returned, Ms Hanson and Miss MacLeod each knew that the list was a list of names of members of either the Federal Party or the Association
  1. …
  1. (iv)
    All the said persons knew or ought to have known that the list contained names of members of the Association and/or the Federal Party."
  1. [43]
    It is understandable that, in an attempt to articulate his claim, the first respondent chose to differentiate between the entity applying for registration in Queensland under the Act and the political party earlier registered federally by referring to them by different names, although it is clear enough that the Queensland Party was in effect merely an attempted extension of the Federal Party, both forming part of the one political entity referred to by her Honour.  Although there are some inconsistencies in the pleadings, it was alleged that the Queensland Party did not have 500 Queensland members and that these people were instead members of the Association;[15] the Queensland Party's constitution was the same as that of the Federal Party;[16] the Queensland Party did not have 500 members as the provisions of its constitution as to membership (which was the same as the constitution for the Federal Party) had not been complied with;[17] and that, at the time the application for registration of the Queensland Party was lodged, Ms Hanson and Mr Ettridge knew the application was false in this way or did not care whether or not it was true.[18] The findings of fact made by the primary judge were issues which were sufficiently pleaded and were live issues in the trial.
  2. [44]
    The appellant claims prejudice because of the primary judge's late ruling as to the effect of the pleadings.  The learned judge reserved the ruling on this, and indeed on other matters, in an effort to ensure the case finished within the allocated court time. Although the primary judge was cognisant of the shortcomings of the pleadings, she did not indicate that she intended to rule in the appellant's favour on that point. Knowing that the ruling was reserved, the appellant made a tactical decision not to call evidence and cannot now properly complain that that decision was disadvantageous.
  3. [45]
    Complaint is also made of the learned primary judge's decision to allow amendments to the first respondent's pleading after the close of the second respondent's case. The evidence supporting the amendments had been led in the first respondent's case and the amendments had been foreshadowed.  The judge, relying on Queensland v J L Holdings Pty Ltd,[19] allowed the amendments but made it clear she was prepared to entertain any application by the appellant for an adjournment.[20] No adjournment was requested and the appellant had indicated earlier that, whether or not the amendments were allowed, the appellant would not call evidence.  The primary judge was entitled to allow the amendments, even at that late stage.
  4. [46]
    On the remaining issues, there is nothing I wish to add to what has been stated by the Chief Justice in his reasons, with which I agree.  I also agree with the orders he proposes.
  5. [47]
    HELMAN J:   I agree with the orders proposed by de Jersey CJ and with his reasons.

Footnotes

[1]  S 180(1)4

[2]  (1977) 18 ALR 154 , 157.

[3]  Defined in the Glossary at the commencement of the pleadings as "The entity registered with and created by its Constitution, a copy of which is lodged with the Queensland Electoral Commission".

[4]  Defined in the Glossary at the commencement of the pleadings as "The entity registered with and created by its Model Rules a copy of which is lodged with the Australian Electoral Commission."

[5]  Reasons [102].

[6]  Reasons [127].

[7]  Reasons [129].

[8]  Reasons [131].

[9]  Reasons [132].

[10]  (1995) 183 CLR 563, 573.

[11]  Defined in the Glossary at the commencement of the pleadings as "The entity registered with and created by its constitution a copy of which is lodged with the Queensland Electoral Commission."

[12]  Defined in the Glossary at the commencement of the pleadings as "Pauline Hanson's One Nation Inc formerly Pauline Hanson Support Movement Inc incorporated pursuant to the Associations Incorporation Act 1981 (Qld) with the Department of Equity and Fair trading formerly the Department of Consumer Affairs."

[13]  Defined in the Glossary at the commencement of the pleadings as "The entity registered with and created by its Model Rules a copy of which is lodged with the Australian Electoral Commission."

[14]  Whilst this at first appears inconsistent with D(xii)(b) and D(xviii)(a), in context the word "separate" is plainly intended to precede "constitution".

[15]  D(xii).

[16]  D(xii)(b); D(xviii)(a).

[17]  D(xviii)(f).

[18]  D(xviii) and (xviii)(h)(i)(j).

[19]  (1996-1997) 189 CLR 146, 152.

[20]  Transcript 453.

Close

Editorial Notes

  • Published Case Name:

    Sharples v O'Shea and Hanson

  • Shortened Case Name:

    Sharples v O'Shea

  • MNC:

    [2000] QCA 23

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, McMurdo P, Helman J

  • Date:

    10 Mar 2000

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
G v H (1994) 181 CLR 387
2 citations
Jump To
Cite 1 - (1994) 181 CLR 387
Cite 2 - (1994) 181 CLR 387
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
3 citations
Jump To
Cite 1 - (1995) 183 CLR 563
Cite 2 - (1995) 183 CLR 563
Cite 3 - (1995) 183 CLR 563
Onus and Another v Alcoa of Australia Limited (1982) 149 CLR 27
2 citations
Jump To
Cite 1 - (1982) 149 CLR 27
Cite 2 - (1982) 149 CLR 27
Queensland v JL Holdings (1996-1997) 189 CLR 146
1 citation
Jump To
Cite 1 - (1996-1997) 189 CLR 146
Re McHattan and Collector of Customs (1977) 18 ALR 154
2 citations
Jump To
Cite 1 - (1977) 18 ALR 154
Cite 2 - (1977) 18 ALR 154

Cases Citing

Case NameFull CitationFrequency
Ettridge v Sharples [2002] QCA 3952 citations
Hanson v Director of Public Prosecutions [2003] QCA 409 1 citation
Idea Technology Services Pty Ltd v Nguyen [2002] QSC 4322 citations
Lucy v OCC Holdings Pty Ltd [2008] QDC 41 citation
R v Hanson [2003] QCA 488 3 citations
1

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