Sharples v O'Shea[2000] QCA 481

COURT OF APPEAL

McMURDO P

BRISBANE

DATE 23/11/2000

ORDER

HER HONOUR:  A notice of appeal was filed in this matter on 8 or 9 December last year against a decision of Justice Atkinson of 12 November 1999.  The notice of appeal is couched in the following terms:

"The appellant appeals from the whole of the orders of the Supreme Court of Atkinson J delivered on 12 November 1999 in respect of:

a)Leave for Hall Payne, Solicitors, to withdraw from the record;

b)Orders as to costs in proceeding 6318 of 1998 between Terry Patrick Sharples as plaintiff and Desmond J O'Shea as first defendant and Pauline Hanson as the second defendant."

The notice of appeal appears, on its face, to be not only an appeal from a costs order but also an appeal from a Supreme Court Judge's order giving leave for solicitors to withdraw from the record.

The matter has had a long history because the appellant has not pursued the matter with any diligence.  The undertaking as to the record book was due on 15 December 1999 but has not been filed.  The appellant's outline of argument was originally due on 29 December 1999 but that date was extended to 14 January 2000 and then 27 January 2000.  On 17 April 2000 the appellant was directed to file the outline by 12 May 2000 but it was not filed until 18 May 2000.  The record book index was due on 16 February 2000 but to date has not been filed.

None of his filed material, including the notice of appeal, has been served on a number of entities who would be affected by the orders he seeks in his notice of appeal. 

The matter was mentioned for directions before me on 9 November.  At that time I made orders that Hall Payne, Solicitors, Mr English of counsel and Paul Everingham & Co, all of whom were mentioned in the orders sought in the notice of appeal, be served with the appellant's material, together with a copy of the order made by me that day, by 16 November 2000.  I understand the appellant did not comply with that order but the Court of Appeal registry informed those entities of my order.  All respondents and those entities against whom orders were sought by the appellant are represented in Court today.

The matter was mentioned at my request today so that any application to strike out the appeal could be heard: see s 43(1)(b) Supreme Court of Queensland Act 1991.  A number of respondents, and a number of those entities affected by the order sought by the appellant applied to the Court to strike out the appeal. 

The appellant concedes today that his appeal is in effect an appeal against a costs order only and that he no longer wants to have Hall Payne, Solicitors returned to the record.  His outline of argument also supports that conclusion.  Once this is clear, it is also plain that the appellant has no right of appeal until he has the leave of the Judge who made the costs order: see s 253 Supreme Court Act 1995.

The appellant was informed of that some months ago by the first respondent.  There is a body of authority that supports the contention of the respondents that the Court of Appeal cannot give leave to appeal as to costs unless leave has been given by the primary Judge.  Justice Atkinson has not given any such leave.  See Re: Golden Casket Art Union Office [1995] 2 QdR 346.

Today, for the first time, Mr Sharples has raised an argument as to the invalidity of the Supreme Court Act 1995.  He claims that because it was assented to by the Governor it is not a lawful enactment.  The Governor of Queensland has not held a position of valid authority  since the passing of the Constitution (Office of Governor) Act 1987 which he claims amended the Governor's powers in this State.  He claims this offends section 53 of the Constitution Act of 1867; the Governor's powers cannot be amended without a referendum.  His argument is that all      Queensland legislation since the assent to the 1987 Act is illegal.  Indeed, for other reasons he also claims that since the passing of the Australia Act Request Act of 1986 all Queensland legislation has been unlawful.

...

HER HONOUR:  Mr Sharples has just interrupted me to inform me that his argument extends to the proposition that I am not lawfully appointed and do not have the power to make the orders made.  I do not intend to grace these submissions with any response for they are plainly wrong. 

The position is as set out in section 253 of the Supreme Court Act 1995 which merely repeats the earlier position under s 19 Judicature Act 1876.  The appellant has no right of appeal against the costs order made by Justice Atkinson and the appeal is struck out with costs to be assessed.

...

HER HONOUR:  The order is that the appellant pay the respondents' costs of and incidental to this appeal and of today's mention to be assessed.  The appellant is also to pay the costs of Paul Everingham & Co of and incidental to today's mention.

...

HER HONOUR:  I strike out the application filed today in this matter by the appellant.