Sharples v Arnison[2001] QCA 274

THE CHIEF JUSTICE:  The appellant unsuccessfully applied to Mr Justice Ambrose under the Judicial Review Act for the review of the decision of the first respondent, the Governor of the State of Queensland, to issue a writ for the state election which occurred earlier this year, and the decision of the second respondent, the Premier of the State of Queensland, to advise the Governor to issue that writ, and for "review in the nature of an information of quo warranto" as to the entitlement of the Governor, the Premier and the third respondent, the Electoral Commissioner, to hold their respective offices.

The appellant separately applied, again unsuccessfully, for an order under section 49, subsection 1, paragraph (d), of the Judicial Review Act that the respondents should indemnify him in respect of his costs on a "solicitor/client basis".

Mr Justice Ambrose refused each application with costs to be assessed on a standard basis.  The appellant appealed by notice dated 2 April 2001 against the orders made on each application.  By application filed on 6 June 2001 the appellant sought the stay of the costs order made by Mr Justice Ambrose on 5 March 2001 in dismissing the appellant's application for judicial review, that is, that the appellant pay the respondent's costs including the reserved costs assessed on the standard basis, to include the respondents' costs of setting aside two subpoenas issued at the instance of the appellant.

Additionally, the appellant sought an order that the respondents indemnify him for the costs of the appeal or alternatively that the parties bear their own costs "regardless of the outcome".

A month later on 6 July 2001 the respondents applied for an order that the appellant provide security for their costs of the appeal in the amount of $7,000.  It is those two applications which are listed for hearing today.

The appellant's application is made under section 49, subsection 1 of the Judicial Review Act.  As stated, the appellant made a similar application under that provision before Mr Justice Ambrose.  The appellant relied then on the circumstances that he was not legally represented, that he had no assets of value (he placed an upper limit of $500 on the value of his assets), that his income was approximately $200 per week and that the issue was one "of special importance to the people of Queensland and the rule of law".

While doubting that the proceeding involved an issue which affected or may affect some "personal right or interest" of the appellant (see section 49, subsection 2, paragraph (b)), Mr Justice Ambrose took the view that there was no reasonable basis for the review application in terms of section 49(2)(c) and was unpersuaded that he should make any special order in relation to costs. 

That occurred at an interlocutory stage, his Honour simply reserving costs, ultimately in his substantive judgment ordering them against the appellant.

In supporting his present application, which may be made on appeal (see section 49 subsection 6), the appellant drew attention to the decision of Justice Muir given on 17 May 2001 in A G Skyring and Electoral Commission of Queensland and another, number S2028/2001.  Justice Muir had cause to consider the same constitutional issue as was determined by Mr Justice Ambrose.

In dealing with the costs issue Mr Justice Ambrose, while saying that the review application may have some prospect of success, expressed the view that it was not a reasonable prospect.  Earlier, in his reasons for refusing to grant an interlocutory injunction, Mr Justice Ambrose, dealing with the question whether there was "a serious question to be tried", described the appellant's constitutional arguments as "weak and unlikely to succeed".

The appellant drew our attention to Justice Muir's statement in his reasons for judgment that the constitutional point was "not unarguable", but to my mind that does not avail the appellant now, for his Honour went on to conclude that, for various reasons, the petition based on that constitutional contention had "no prospects of success" and that there was "no prima facie ground" for it.

The appellant contended before Mr Justice Ambrose that because the Constitution (Office of Governor) Act 1987 provided for "alteration in the office of Governor" and was not approved by electors at a referendum prior to its being presented for assent, it was, because of section 53 of the Constitution, of no effect, with the consequence that the subsequent appointments of the State Governor, Premier and Electoral Commissioner were invalid.

Mr Justice Ambrose embarked on a careful comparison of the provisions of the 1987 Act which bore on the office of Governor, with the provisions of the precedent Letters Patent of 8 March 1986 constituting the office of Governor.

The learned Judge characterised variations between the provisions as either stylistic or otherwise without significant consequence, invoking the maxim de minimis non curat lex.  In any event, were the 1987 Act of no effect, then, as he concluded, section 13 of that Act, which prima facie operated to suspend the Letters Patent of 8 March 1986, would not secure that result,  the continued operation of those Letters Patent providing sufficient authority for the appointments and actions the appellant sought to impugn.

This contention or aspects of it have been considered in this Court on three occasions: before Mr Justice Ambrose on an interlocutory basis but following a hearing which lasted just short of three hours, before the same Judge subsequently on a final basis following a day's hearing, and before Justice Muir in separate proceedings.  None of those judgments has given the appellant's contention any substantial support.

Having read the full transcript of proceedings and judgments in the proceedings before Mr Justice Ambrose, and bringing to bear my own consideration of his reasons for judgment, and those of Justice Muir, I see no reason to depart from their Honours' assessment.

It should be noted that the appellant alleges "actual bias and prejudgment" against Mr Justice Ambrose and complains separately of the Judge's refusal to stand down, as requested, for "pecuniary interest".  The allegation of bias apparently rests in (a) his Honour making orders as to costs when giving judgment on 5 March 2001 rather than first inviting submissions;  (b) his dismissing the application for interlocutory relief on the basis that the appellant's point was "so weak as to (be) only slightly arguable";  (c) his dismissing the appellant's separate costs application on the ground there was no reasonable basis for review;  (d) his setting aside subpoenas issued at the instance of the appellant, as being vexatious;  and (e) his "repeatedly talking over and down to (the appellant)" and ultimately "by placing a time restriction on him".

As to (a), the costs orders made could not have been resisted in my view and there is no suggestion his Honour was asked to defer a decision on costs or reopen that issue once judgment was given.  As to (b) and (c), that reflected his Honour's assessment of the strength of the argument, and his expressing that assessment, having heard substantial argument, was obviously not an indication of prejudgment or bias.

As to (d), the subpoenas sought to introduce documentary material which was irrelevant or unnecessary and his Honour's orders were appropriate. 

As to (e), it could hardly be said the appellant was denied a reasonable opportunity to develop his argument.  Having read the transcript, I formed the view that the learned Judge certainly endeavoured to point the appellant in the direction which, if followed, could have facilitated the orderly presentation of the argument.  If a degree of frustration is from time to time apparent from the transcript, it was plainly the consequence of the appellant's failure to answer questions reasonably put to him, and his apparent determination to pursue irrelevant matters.

The appellant's separate challenge to his Honour's sitting, on the basis of "pecuniary interest", concerned amendments made since 1987 to the legislation which provides for the salaries, allowances and pensions for Judges.  The appellant contended that because, if his principal argument succeeded, such legislation would fall, the learned Judge had an interest in rejecting his primary contention.  Apart from the circumstance pointed out by his Honour, that all Judges of the Court would be subject to this "objection", if properly so styled, is was plainly without substance.  None of the additional grounds of appeal relevant to the manner of hearing before Mr Justice Ambrose, in my view, has any reasonable prospect of success - and of course they are subsidiary anyway, because of the likelihood that the substantive point would again fail.

Addressing now the considerations listed in section 49(2), it is the position that the appellant's financial resources are very limited and the issue he pursues may affect the public interest.  On the other hand, it is doubtful it affects any personal right or interest of his own, and the central point for consideration has no reasonable prospect of being resolved in the appellant's favour.

Taking account in addition of the circumstance that the appellant has the benefit of comprehensive judgments now from Mr Justice Ambrose, and the support given that judgment separately by Justice Muir, it would be difficult to regard this as an appropriate case in which to commit public moneys in support of the appellant's continued litigation, under section 49 of the Judicial Review Act.

The appellant seeks additionally, as I have said, a stay of the operation of a costs order made by Mr Justice Ambrose.  There is no reason why such a stay should be imposed.

I would order, on the appellant's application under section 49 of the Judicial Review Act:

 (1)  That the application be refused.

 (2)  That pending any further submission, the question of costs be reserved.

I turn now to the respondent's application for security for costs.  The Court is arguably more willing to order the provision of security of costs at the level of appeal.  See Stock v. Wood 1957 State Reports Queensland 62. 

It is true that the appellant is apparently impecunious yet has conducted a substantial number of proceedings involving public bodies which have been maintained, it seems, effectively from the public purse.  He is also subject to many unsatisfied costs orders.  He has presented him as a custodian of the public interest, his object being, as he put it during evidence before Mr Justice Ambrose, "to have this place run in a proper lawful manner."  Those are strong considerations in favour now of ordering security for costs.

There are, on the other hand, two countervailing  considerations.  The first is the stage at which the application is brought, which is very late, that being significant especially with the appeal books having been prepared.

The second is that ordering security at this stage, even in the limited amount of $7,000 which the respondents seek, would most likely frustrate the appeal.  Notwithstanding my view as to the prospects of success of the appeal, I consider that ordering security for costs at this stage upon the respondents' application would in these circumstances be inappropriate.

I would order, on the respondents' application for security for costs:

 (1)  That the application be refused.

 (2)  Pending any further submission, that costs be reserved.

THOMAS JA:  I agree broadly with what the Chief Justice has said.  On the principal constitutional point that has been raised I would not wish to pre-empt what might be decided in due course.  However, as some premature assessment is required for the purposes of disposing of the present matters, I would on my own limited appraisal of the point characterise it as faintly arguable.  I agree with the orders that the Chief Justice has proposed.

PHILIPPIDES J:  I agree with the reasons given by the Chief Justice and with the orders proposed.

THE CHIEF JUSTICE:  Those are the orders. You will see, gentlemen, from the form of the orders I indicated, for my part, in relation to costs, that I was leaving open the possibility of a submission, but I gather none is to be made.

MR HINSON:  I'd defer to Mr Sharples in this respect.  If he doesn't wish to make a submission now I won't either.

THE CHIEF JUSTICE:  No submission, Mr Sharples?

APPELLANT:  I have no submission, your Honours.

THE CHIEF JUSTICE:  Each application is refused and on each application costs are reserved.  That involves, I should make clear, a refusal of the application for stay which was involved in the section 49 application brought by the appellant.

THOMAS JA:  I agree.

PHILIPPIDES J:  Yes.