Electoral Commission of Queensland v Palmer Leisure Australia Pty Ltd [2021] QSC 33

SUPREME COURT OF QUEENSLAND CITATION: Electoral Commission of Queensland v Palmer Leisure Australia Pty Ltd [2021] QSC 33 PARTIES: ELECTORAL COMMISSION OF QUEENSLAND (Applicant) v PALMER LEISURE AUSTRALIA PTY LTD (Respondent) FILE NO/S: BS12968 of 2020 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Brisbane Supreme Court DELIVERED EX TEMPORE ON: 16 February 2021 DELIVERED AT: Brisbane HEARING DATE: 16 February 2021 JUDGE: Justice Callaghan ORDER: 1.Pursuant to r 14 of the Uniform Civil Procedure Rules, the proceeding continue as if started by claim 2.The Electoral Commission of Queensland is to file a statement of claim within 14 days; and 3.Palmer Leisure Australia Pty Ltd is to file a defence to the statement of claim and counterclaim (if any) within 28 days after the day the statement of claim is served. 4. The costs of the application be costs in the proceeding. CATCHWORDS: COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – DECLARATIONS – where the applicant seeks a declaration that the respondent was a “property developer” within the meaning of section 273(2) of the Electoral Act 1992 – where the respondent seeks that the proceeding continue as if started by claim COUNSEL: G de Villar QC, F Nargoka for the applicant P Dunning QC, K Byrne for the respondent SOLICITORS: Crown Law for the applicant Alexander Law for the respondent -- 1 of 6 -- [1] On 2 December 2020 the Electoral Commission of Queensland filed an originating application seeking a declaration that the respondent, Palmer Leisure Australia Pty Ltd (Palmer Leisure) was, during the relevant period, a property developer within the meaning of section 273(2) of the Electoral Act 1992. [2] During that relevant period, Palmer Leisure made six gifts to Clive Palmer’s United Australia Party. If Palmer Leisure Australia was, as averred, a property developer, it was deemed to be a prohibited donor within the meaning of the Act. [3] There were, perhaps, consequences if, during that period, Palmer Leisure truly imparted anything by way of a political donation. About that issue I need make no finding and I do not think the background needs to be canvassed in any more detail. I do, however, note at this point that in order to be a property developer within the meaning of the Act, Palmer Leisure would have to meet the definition of that term provided in s 273(2) – that section reads: “273 Meaning of prohibited donor (1) For this subdivision, prohibited donor— (a) means— (i) a property developer; or (ii) an industry representative organisation, a majority of whose members are property developers; but (b) does not include an entity for whom a determination is in effect under section 277. Note— See section 307C(4) in relation to the non-effect of a determination in particular circumstances. (2) For subsection (1)(a), each of the following persons is a property developer – (a) a corporation engaged in a business that regularly involves the making of relevant planning applications by or on behalf of the corporation – (i) in connection with the residential or commercial development of land; and (ii) with the ultimate purpose of the sale or lease of the land for profit; -- 2 of 6 -- 3 (b) a close associate of a corporation mentioned in paragraph (a).” [4] The evidence on which the application is brought establishes that on 25 May 2015 Palmer Leisure submitted to the Gold Coast City Council a development application in respect of some land. Solely for the purposes of this argument it can be accepted that the proposed development had a commercial connotation. Since then, Palmer Leisure has on two occasions (both in 2018) submitted notices of change to that development application, but the application itself has not been approved, and there is no evidence of any other relevant planning application ever having been made by or on behalf of the corporation. [5] In these circumstances, the Electoral Commission maintains that Palmer Leisure is a corporation, engaged in a business that regularly involves the making of relevant planning applications connected with residential or commercial development of land and that the ultimate purpose of these applications is the sale or lease of the land for profit. [6] It might have been thought that Palmer Leisure Australia was well-placed to resist any proceeding brought against it on the basis that it had done anything “regularly” when the evidence establishes no more than a single planning application. That might have been a straightforward exercise. And indeed, the Electoral Commission maintains that the issues involved in its application are a straightforward matter of statutory construction that fairly can be determined in an application of this nature on the basis of the evidence it has adduced. [7] Palmer Leisure, whilst embracing the proposition that it should and will succeed in defeating the application on the basis that the word “regularly” should not be tortured into having a meaning that is far from obvious, denies that this form of proceedings is suitable for dealing with the issues raised. It points out that the basis on which the Electoral Commission resists an apparently obvious interpretation places particular emphasis upon the concept of a corporation being “engaged in a business”. This was indeed the approach that was developed in argument before me this morning. [8] Whilst the basis for that argument can be understood, when it is brought in that form, the field of enquiry does widen. It brings within contemplation a situation in which the respondent may wish to explain by way of evidence the type of business in which -- 3 of 6 -- 4 it is, in fact, engaged. From there, so the argument runs, the whole question as to whether Palmer Leisure is a “property developer” is very much one that involves a mixture of fact and law. This form of proceedings is not, so it is said, suited to that type of enquiry. Palmer Leisure therefore seeks from the Court, pursuant to r 14 of the Uniform Civil Procedure Rules, an order that the proceeding continue as if started by claim, and subsequent orders as to the filing of a statement of claim and defence. [9] The application for those orders is resisted by the Electoral Commission. It proposes that there is no difficulty, within the confines of these existing proceedings, in further evidence being placed before the Court by Palmer Leisure. It is volunteered that the proceeding can sufficiently be brought into focus by the provision of particulars. Those options are no doubt open, but ultimately, the question resolves to one of convenience, as contemplated under r 14. [10] In the course of argument, it was foreshadowed that the Court would be asked by the Electoral Commission to draw inferences from some of the material that has already been provided and, as noted, it was allowed that Palmer Leisure may, for certain purposes, wish to place further evidence before the Court. When looking forward to an argument that involves drawing inferences from different bodies of evidence adduced by opposing parties, it is difficult to say with any confidence that a substantial dispute of fact is unlikely, to use the term contained in r 11(a). The prospect of inconvenience looms. [11] Conversely, the nature of the argument as disclosed in this hearing has invited attention to r 149 and the convenience that the engagement of this provision will afford. Moreover, it can be noted that s 273(2) of the Electoral Act does involve the concept “purpose”. That is something which is in effect a condition of mind. Pursuant to r 150, this is something that must, along with any facts from which an inference about “purpose” may be drawn, specifically be pleaded. Such rules exist for a reason, and the potential benefits of their engagement can be identified. I propose therefore to make the orders sought by Palmer Leisure Australia Pty Ltd. [12] Although this fact has in no way informed my decision, it is the case that the process of drafting a statement of claim will also afford the Electoral Commission the opportunity to reflect upon the statutory construction it proposes. In the course of argument before me, Queen’s Counsel for Palmer Leisure in effect expressed respect -- 4 of 6 -- 5 for the energy that had gone into the articulation of that construction. That is the sort of thing that sometimes happens facetiously as between counsel, but I did not apprehend that to be the case here, and took the acknowledgement to be genuine. And sometimes when an effort to make something happen requires so much hard work, it is always reflecting upon whether it was meant to be. [13] Of course, in a proceeding such as this, which has not involved to the process of dialectic which will now ensue pursuant to the order I am about to make, I am not and must not be taken to be expressing any particular view about anything except the appropriateness of my orders. But these orders will have the natural effect of providing an opportunity for the Electoral Commission to reflect upon its arguments and test them against the responses that have already been elicited. Again, that is not an opinion and is no more than a statement of the obvious. [14] The orders of the Court are that: 1. Pursuant to r 14 of the Uniform Civil Procedure Rules, the proceeding continue as if started by claim; 2. The Electoral Commission of Queensland is to file a statement of claim within 14 days; and 3. Palmer Leisure Australia Pty Ltd is to file a defence to the statement of claim and counterclaim (if any) within 28 days after the day the statement of claim is served. [15] There is dispute about the order that should be made on the question of costs. As the successful party in its application, Palmer Leisure might ordinarily expect to receive its costs and on the basis of some materials to which I have been referred, might even mount an argument as to entitlement for indemnity costs. Realistically however, it has not sought to do so and has asked only that costs of its application be costs in the proceeding. [16] I say realistically because it has, without explanation, failed to comply with a consent order made on 2 February 2021. Pursuant to that order, then at least an outline of submissions had to be filed. An outline of submissions was not received by the Electoral Commission until 10.17 pm last night. In the circumstances, it is said that had the requisite material been filed as required, it may have been possible for the -- 5 of 6 -- 6 Electoral Commission to agree to the matter proceeding by way of claim, and in those circumstances, there should be no order as to costs. [17] I have considerable sympathy for the Electoral Commission’s position, and non- compliance with an order of the kind under consideration is to be deplored. However, I am not convinced on the basis of anything said or written by the Electoral Commission, either in evidence or in submissions, that a consent order was a realistic possibility irrespective of when materials might have been served. In all the circumstances, I accept that the order proposed by Palmer Leisure Australia is, as I have termed it, a realistic one, and so the order will be that the costs of the application are to be costs in the proceeding. -- 6 of 6 --