Sharples v Hill & Anor B49/1998 [2000] HCATrans 52 (24 February 2000)

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Brisbane No B49 of 1998

B e t w e e n -

TERRY PATRICK SHARPLES

Petitioner

and

HEATHER HILL

First Respondent

THE AUSTRALIAN ELECTORAL COMMISSION

Second Respondent

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 FEBRUARY 2000, AT 10.38 AM

Copyright in the High Court of Australia

MR R.E. TEMPLETON: Your Honour, I appear on behalf of the applicant, Mrs Hill. (of Watkins Stokes Templeton)

MR M.C. SWAN: Your Honour, I appear for the Australian Electoral Commission and for the Attorney-General for the Commonwealth. (instructed by the Australian Government Solicitor).

MR T.P. SHARPLES appeared in person.

HIS HONOUR: Yes, Mr Templeton.

MR TEMPLETON: Your Honour, I read the application and the supporting affidavit by myself filed on 9 November 1999.

HIS HONOUR: I have read that material. That is the total of your material, is it?

MR TEMPLETON: Yes, your Honour. I can take your Honour through it if necessary.

HIS HONOUR: No.

MR TEMPLETON: I seek an order in mirror terms to those made by the Chief Justice in the Sue petition last week.

HIS HONOUR: Yes. I understand that the position of your clients - - -

MR SWAN: We do not oppose the order, your Honour.

HIS HONOUR: You do not oppose the order.

MR SWAN: That is right.

HIS HONOUR: All right. I will just see what Mr Sharples' interest in the matter is. Yes, Mr Sharples, what is your interest in the matter?

MR SHARPLES: Your Honour, the order seems to be wrong in relation to this and I oppose it.

HIS HONOUR: Well, why do you say it is wrong?

MR SHARPLES: I understand that an order was made in the Canberra hearing, if I could put it like that, that the Commonwealth pay the first respondent's costs in the matter and, in fact, I supported that view, if your Honour can remember. In the matter that we are here before, if I understand correctly, it is about the hearings and the work that was done in relation to when we came before your Honour in April of last year.

HIS HONOUR: Yes. Just before you get to that, what is your interest in the matter, that is all?

MR SHARPLES: Just so that I understand, your Honour.

HIS HONOUR: How can any order to which the respondents do not object have any effect on you or your position?

MR SHARPLES: Financially, it cannot have any effect on me, to my knowledge.

HIS HONOUR: Well, can it have any effect on you in any way at all?

MR SHARPLES: Just as a taxpayer of the country, I suppose.

HIS HONOUR: Well, we are all taxpayers.

MR SHARPLES: Unfortunately so. It is public funds, I guess, and I was invited to attend.

HIS HONOUR: Yes, you were, certainly, and you were a party to the proceedings. Do I understand your submission to be that you want to bring to my attention the fact that there might be some doubling up in costs. Is that a - - -

MR SHARPLES: That is one of the issues, your Honour, and the other issue, to keep it very short, is some of the activities that transpired I do not think assisted the Court in any way whatsoever. Your Honour will remember there was quite a bit of opposition, particularly in the second hearing on 22 April, to material that I wanted to file and I think the lawyers may have won the day, your Honour, but I think it caused some degree of embarrassment later on during the proceedings that perhaps we did not properly air that at the time, and I just wonder whether that sort of activity should be paid for. I mean, I have submitted an affidavit into the case stated. It starts on page 45, which alludes to some of that activity and, your Honour, I did prepare an affidavit. I do not think I got leave to hand it up but I have it here today and I do not wish to go over it unnecessarily but there were certainly orders made by your Honour that the parties sit down and go through this and come to an agreement and we attempted to do that, but less than satisfactory activity took place.

HIS HONOUR: You appreciate, do you not, that any orders that I might make for costs involve a taxation of costs which, in turn, involves a scrutiny of the necessary or desirability of steps which have been taken. Have you seen the order that is proposed, by the way?

MR SHARPLES: Mr Templeton just handed it to me, your Honour. I take it that is a draft copy I have in front of me.

HIS HONOUR: I presume so. It is designed, I think, to ensure that there is no doubling up.

MR TEMPLETON: Your Honour, would you like me to hand up the draft I have?

HIS HONOUR: Yes, thank you. I think, in fact, it probably meets some of your concerns. It may not meet them all, but I think it certainly meets some.

MR SHARPLES: Yes. Well, I mean, there has been a lot of public money already paid out, of course, your Honour; I mean, from what I understand, almost $100,000, so I am just concerned that there is no more doubling up and, indeed, that there is no extravagant claims for time that really did not assist the Court.

HIS HONOUR: I will come back to you, Mr Sharples. I will just ask Mr Swan something, please. Mr Swan, is this a form of order to which you would not object?

MR SWAN: We do not oppose that, your Honour, yes.

HIS HONOUR: It is simply an order that "The Commonwealth pay the first respondent's costs of the proceedings save and except for those costs of and incidental to this application."

MR SWAN: That is correct, your Honour. That exception mentioned in there is because there was a previous occasion on which this application could have been made without incurring additional costs.

HIS HONOUR: I remember that. In correspondence that your clients had with Mr Templeton, there was some concern expressed, I think, on the part of your clients about doubling up or ensuring that there was not doubling up.

MR TEMPLETON: Your Honour, I may be able to assist more than Mr Swan on that, if I might. He has come into it rather late. The concern essentially relates to the fact that an order was made by his Honour the Chief Justice in Sydney on an interlocutory application and the matters raised in Mr McCarthy's correspondence is to the effect that he had a concern to ensure that there was not a doubling up of those costs in relation to the costs of the proceedings. Can I say though that no such application was made in respect of Mr Sharples' petition. That is why the order made by the Chief Justice in respect of the Sue petition makes it abundantly clear that not only does it accept the costs of the application of the like brought before your Honour today, but actually specifies that it not include any costs ordered in Sydney on the interlocutory application to strike out Mr Sue's petition. No such interlocutory application was made in respect of Mr Sharples' petition. That is the essence of his concern, your Honour.

HIS HONOUR: All right. That seems to be so, Mr Swan, is that right?

MR SWAN: Yes, that is correct, your Honour.

HIS HONOUR: Well, I think that goes a long way to meeting your concerns on behalf of the taxpayers, Mr Sharples.

MR TEMPLETON: Can I say this? Can I say also, your Honour, your Honour is quite correct, that these matters are the subject of an extensive taxation and matters such as those ventilated by Mr Sharples are regularly raised in taxations.

HIS HONOUR: I am aware of that. Mr Sharples, you have heard what has been said.

MR SHARPLES: Well, my concern is, certainly, that the bill is properly taxed. Obviously there is a lot of public funding involved. But the other concern that I had, and I will state it again, is that I do not think Mr Templeton or even Mr Swan's assistance helped your Honour a great deal in our hearings in relation to properly getting the stated case established and should they really be paid for that.

MR TEMPLETON: Your Honour, I must object to this. It is outrageous. Your Honour, I can take you to your Honour's transcript in relation to the case stated.

HIS HONOUR: Just wait a moment, Mr Templeton.

MR SHARPLES: I mean, there is affidavit material before the Court that clearly the orders of your Honour were not particularly well carried out and I just object to further public funds, basically, going in that sort of direction. I do not say this with malice, your Honour, because you remember when in Canberra I was more than happy to see Mrs Hill saved, if you like, from the burden of costs. I know as well as anyone how that can kill a litigant in person. So, it is just a matter of the proper use of public funds that I appear here today.

HIS HONOUR: Yes. Well, nothing further, Mr Sharples?

MR SHARPLES: No, thank you, your Honour.

HIS HONOUR: There is nothing to which the Court took exception in any way at all in regard to the conduct of the case by any of the other parties and I intend to make an order and I do order in terms of the draft which has been provided to the Court. I think I probably need to make a further order certifying that it was appropriate that counsel appear today. Is that right, Mr Swan?

MR SWAN: Yes, that is correct, your Honour.

MR TEMPLETON: Thank you.

HIS HONOUR: Nothing further, gentlemen?

MR TEMPLETON: No, your Honour.

HIS HONOUR: Mr Swan?

MR SWAN: Nothing further, your Honour.

HIS HONOUR: Mr Sharples, nothing further?

MR SHARPLES: No, your Honour.

HIS HONOUR: All right, thank you. Close the Court of Disputed Returns.

AT 10.48 AM THE MATTER WAS CONCLUDED