Asmar v Albanese - [2021] VSC 263

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01465

DIANA ASMAR in her capacity as Secretary of the Health Workers Union and others according to the schedule	Plaintiffs
v
THE HONOURABLE ANTHONY ALBANESE and the persons whose names are set out in the schedule (in their capacity as the National Executive of the Australian Labor Party, and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party respectively)	Defendants

---

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2021
DATE OF JUDGMENT:	7 May 2021 (Revised)
CASE MAY BE CITED AS:	Asmar v Albanese
MEDIUM NEUTRAL CITATION:	[2021] VSC 263

---

ASSOCIATIONS – Australian Labor Party – National Executive – Federal intervention in Victorian Branch – Resolution concerning pre-selection of candidates for Victorian electorates in the Australian Parliament – Challenge to National Executive’s resolution by unions affiliated with ALP - Whether National Executive had power to conduct pre-selections – Whether improper purpose or exercise of power unreasonably -– Whether issues justiciable – Interlocutory injunction granted

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Merkel QC with Mr E Nekvapil	Robinson Gill
For the 1^st-3^rd, 5^th-9^th, 11^th, 14^th-21^st and the 23^rd Defendants	Mr P G Willis SC with Mr A D Lang and Mr J Kirkwood	Holding Redlich
For the 4^th, 10^th, 12^th-13^th and the 22^nd Defendants	Dr A T Hoel	Johnson Winter & Slattery

HIS HONOUR:

The plaintiffs seeks an interlocutory injunction restraining the defendants, who comprise the National Executive of the Australian Labor Party, from acting upon or giving effect to any nominations received in respect of the 22 Federal House of Representative seats in Victoria identified in a National Executive Resolution of 4 May 2021, which was Tuesday this week, from conducting any ballot as foreshadowed in the said National Executive Resolution following those nominations.

The plaintiffs are unions or officers thereof, affiliated with the ALP.

I heard the application yesterday, Thursday afternoon, as an urgent application made before the proceeding was filed. At the end of the hearing in the early evening, I granted such an interlocutory injunction to expire at 4:15 this afternoon primarily to give more time to hear argument and consider issues which, on their face, seemed to have possible substance.

Because I am determining an interlocutory application, it is important to state that the opinions and conclusions that I express in this judgment on all contested issues are not final, but expressed only to decide this interlocutory application. I could only express final opinions and conclusions after hearing evidence and submissions at the trial.

The general endorsement on the plaintiffs’ writ summarises the issues in this way. That the plaintiffs seek a declaration that the resolution of the defendants, made on 4 May 2021, was not authorised by the ALP's National…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Asmar v Albanese

Details

AGLC: Asmar v Albanese [2021] VSC 263
Case: [2021] VSC 263
Decision Date: 7 May 2021 (Revised)

CaseChat Overview and Summary

The plaintiff, Asmar, along with a number of other unions affiliated with the Australian Labor Party (ALP), challenged the decision of the ALP National Executive to intervene in the Victorian Branch of the party, specifically regarding the pre-selection of candidates for the Victorian electorates in the Australian Parliament. The case was heard in the Federal Court of Australia. The unions argued that the National Executive did not have the power to intervene in the pre-selection process and that any decision made was for an improper purpose or was an unreasonable exercise of power.

The court was required to determine whether the National Executive had the authority to intervene in the Victorian Branch's pre-selection process. It also had to decide if the National Executive's resolution was for an improper purpose or was an unreasonable exercise of power. Additionally, the court had to consider whether these issues were justiciable, meaning whether they were suitable for judicial review.

The court found that the National Executive did have the power to intervene in the pre-selection process as it was within the scope of their authority as outlined in the ALP's constitution. The court also determined that the resolution was not for an improper purpose and was not an unreasonable exercise of power. Furthermore, the court held that the issues raised by the unions were justiciable and therefore suitable for judicial review. Consequently, the court granted an interlocutory injunction, temporarily preventing the National Executive from proceeding with the pre-selection process as outlined in their resolution.

Orders