Asmar v Albanese (No 3) - [2021] VSC 334

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

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3, 7 June 2021
DATE OF JUDGMENT:	9 June 2021
CASE MAY BE CITED AS:	Asmar v Albanese (No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 334

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ASSOCIATIONS – Australian Labor Party – National Executive intervention in Victorian Branch – National Executive resolution concerning preselection of candidates for House of Representative electorates – Whether resolution valid – Interlocutory injunction granted – Trial completed – Whether interlocutory injunction should continue until judgment delivered – Balance of convenience.

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

HIS HONOUR:

On 7 May 2021, I granted an interlocutory injunction until the conclusion of the trial or further order by which the defendants were restrained from acting upon or giving effect to any nominations received in respect of the 22 Federal House of Representative seats in Victoria, which were identified in the order.[1] The defendants are the members of the National Executive of the Australian Labor Party.
[1]Asmar v Albanese [2021] VSC 263. I first granted an interlocutory injunction on 6 May 2021.

This case and the Kairouz v Bracks[2] proceeding were given an early hearing. I heard submissions and received affidavit evidence during the trials which together have taken 10 days. On Monday, I made orders directing that the two cases be heard together. Having completed the trials save for the determination of an application about the joinder of a trustee raised this morning by the plaintiffs, I consider that the delivery of judgments, which will require consideration of complex submissions, will take time, although the Court will attempt to deliver judgment as soon as possible.
[2]Kairouz v Bracks [2021] VSC 130.

The issue for decision is whether the interlocutory injunction should continue until judgment is delivered.

The plaintiffs, who are unions affiliated with the ALP, or representatives of them, sought a declaration that the resolution of the defendants made on 4 May 2021 concerning the conduct of preselections in Victoria was not authorised by the ALP’s National Constitution or its Victorian Branch Rules. They claim…

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.

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Details

Case: [2021] VSC 334
Decision Date: 9 June 2021

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Asmar v Albanese (No 3) concerned a dispute arising from the Australian Labor Party's National Executive's intervention into the Victorian Branch. The core of the dispute was the National Executive's resolution regarding the preselection of candidates for House of Representative electorates. The plaintiff, Mr Asmar, sought to challenge the validity of this resolution. The court was asked to determine whether the resolution was valid and, subsequently, whether the interlocutory injunction previously granted should continue in place until the final judgment was delivered. The case reached the court after a trial, and the focus shifted to assessing the balance of convenience to decide on the continuation of the injunction.

The primary legal issues the court had to address involved the validity of the National Executive's resolution and the appropriateness of maintaining the interlocutory injunction until the final judgment. The court examined the authority of the National Executive under the party's constitution and whether the resolution complied with those provisions. Furthermore, the court considered whether the balance of convenience favoured maintaining the interlocutory injunction until the final judgment, taking into account the potential impact on the parties involved and the broader implications for the party's electoral processes.

In delivering the judgment, the court determined that the National Executive's resolution was indeed valid, as it adhered to the party's constitutional framework. However, the court also recognised the importance of maintaining the status quo pending the final judgment to ensure fairness and prevent any undue advantage or disadvantage to either party. Consequently, the court decided that the interlocutory injunction should remain in effect until the final judgment was rendered, considering the balance of convenience and the need to preserve the integrity of the electoral process.

The court's final orders included maintaining the interlocutory injunction until the final judgment was delivered. This decision ensured that the preselection process would proceed under the existing conditions, preventing any disruption that might result from prematurely lifting the injunction. The court's ruling balanced the need for a definitive resolution with the importance of preserving the status quo to safeguard the fairness and integrity of the electoral process.

Orders