Asmar v Albanese (No 4)

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:	27-28 and 31 May, 1-3, 7, 9 and 17 June 2021
DATE OF JUDGMENT:	19 October 2021
CASE MAY BE CITED AS:	Asmar v Albanese (No 4)
MEDIUM NEUTRAL CITATION:	[2021] VSC 672

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ASSOCIATIONS – Political parties – Australian Labor Party – National Executive – Intervention in Victorian Branch – Resolution taking over conduct of preselections for House of Representative seats – Challenge to National Executive’s resolutions by unions affiliated with the Victorian Branch – Whether National Executive validly exercised power to take over conduct of preselections – Whether power exercised irrationally, illogically, unreasonably or for improper purposes – Structure of ALP – Relationship between National Executive and Branch Rules – Whether issues justiciable.

TRUSTS – Whether beneficiaries can bring claim for unlawful interference with the administration of trusts by third party – Whether special circumstances existed.

PRACTICE AND PROCEDURE - Representative order – Whether need for a common grievance - Supreme Court (General Civil Procedure) Rules 2015 O 18 r2, 4.

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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 1^st-9^th, 11^th, 14^th-21^st and the 23^rd- 24^th Defendants	Mr P G Willis SC with Mr A D Lang, Mr J H Kirkwood and Mr G Jegatheesan	Holding Redlich
For the 10^th and 12^th-13^th Defendants	Mr D J Batt QC with Dr A T Hoel	Patrick & Associates
For the 26^th Defendant	Hope & Co Lawyers

Table of Contents

Summary.............................................................................................................................................. 1

Introduction........................................................................................................................................ 4

Connection between this case and the Kairouz Proceeding................................................... 5

The Issues for Decision..................................................................................................................... 7

Background......................................................................................................................................... 8

Media reports of branch stacking............................................................................................... 8
Events following the media reports......................................................................................... 10
The Administration Resolution................................................................................................. 13
The Rule Amendment Resolution............................................................................................ 14
The National Executive’s Resolutions of 27 November 2020............................................... 15
The Further Amendment Resolution....................................................................................... 15
The Preselection Resolution....................................................................................................... 16

Justiciability...................................................................................................................................... 16

The plaintiffs’ reliance on their proprietary interests in the Victorian Branch’s trusts.... 19
The trusts............................................................................................................................ 19
The trusts created by r 21.1 of the Victorian Branch Rules............................ 19
The Capital Investment Fund............................................................................. 20
The Labor Services & Holdings Trust............................................................... 21

The Administrators’ actions in changing the LSH shareholders and directors....... 25
The plaintiffs’ submissions about their interests in the Victorian Branch trusts..... 26
The defendants’ submissions about the plaintiffs’ interests in the Victorian Branch trusts.................................................................................................................................. 29
Joinder of the trustees....................................................................................................... 31
Can the plaintiffs bring a claim for breach of trust?..................................................... 31
Analysis of the plaintiffs’ right to bring the trust claim.............................................. 33
Analysis of the trusts exception submissions as a ground of justiciability............... 34
Have the plaintiffs’ established their trust claims?...................................................... 35

The plaintiffs’ reliance on a contract claim as an exception to Cameron v Hogan........... 37
Analysis of the plaintiffs’ reliance on the contract exception to Cameron v Hogan 37

Distinguishing Cameron v Hogan: rights as affiliated unions............................................. 38
Submissions about the affiliated unions’ claims as a ground for distinguishing Cameron v Hogan...................................................................................................................... 42
Analysis of the affiliated unions’ claims........................................................................ 43

Distinguishing Cameron v Hogan: the recognition of political parties by the Electoral Acts 45
Commonwealth Electoral Act.......................................................................................... 46
Victorian Electoral Act...................................................................................................... 47
The plaintiffs’ submissions about the significance of the Electoral Acts.................. 49
The Baldwin v Everingham line of authorities................................................ 51

The defendants’ submissions about the significance of the Electoral Acts............... 56
Analysis of the significance of the statutory recognition of political parties............ 58

Distinguishing Cameron v Hogan: declaratory relief........................................................... 61
The plaintiffs’ submissions............................................................................................... 61
The defendants’ submissions........................................................................................... 63
Analysis of declaratory relief........................................................................................... 64

Conclusions on the justiciability of the plaintiffs’ claims...................................................... 64

The Plaintiffs’ Standing.................................................................................................................. 65

The Remaining Issues in Dispute................................................................................................ 65

The Structure of the Australian Labor Party.............................................................................. 66

The National Constitution of the ALP..................................................................................... 67
The Victorian Branch Rules....................................................................................................... 68
The relationship between the National Constitution and the Victorian Branch Rules.... 70
The plaintiffs’ submissions............................................................................................... 70
The defendants’ submissions........................................................................................... 72
Burton v Murphy............................................................................................................... 75
Jackson v Bitar.................................................................................................................... 78
Setka v Carroll.................................................................................................................... 79

Analysis of submissions about the structure of the Australian Labor Party..................... 79

The Validity of the National Executive’s Resolutions............................................................. 82

The Administration Resolution................................................................................................. 83
The plaintiffs’ submissions about the validity of the Administration Resolution... 85
The defendants’ submissions about the validity of the Administration Resolution 87
Analysis of the challenges to the Administration Resolution..................................... 89
Was the Administration Resolution irrational, illogical or unreasonable?............... 95
Analysis of grounds of irrationality, illogicality and unreasonableness..... 96

Challenge to the Administration Resolution alleging improper purpose................ 96
Analysis of improper purpose challenge to the Administration Resolution 97

The Rule Amendment Resolution and the Further Amendment Resolution.................... 97
The Preselection Resolution....................................................................................................... 98
The texts and the letter...................................................................................................... 98
The National Executive meeting of 4 May 2021.......................................................... 105
The Preselection Resolution of 4 May 2021................................................................. 106
The plaintiffs’ submissions about the validity of the Preselection Resolution....... 107
The defendants’ submissions about the Preselection Resolution............................. 110
Analysis of the challenges to the Preselection Resolution......................................... 113

Discretionary Grounds................................................................................................................. 115

Analysis of discretionary considerations.............................................................................. 116

The Plaintiffs’ Application for Representative Orders.......................................................... 116

Overall Conclusion........................................................................................................................ 119

HIS HONOUR:

Summary

The plaintiffs in this proceeding are members of the Australian Labor Party (‘the ALP’) or, in one case, is a trade union. Most of the plaintiffs are also officers of branches of trade unions affiliated with the Victorian Branch of the ALP and sue as representing the members of their branches.

The plaintiffs’ case is that a resolution of the National Executive of the ALP which took control over the preselection of candidates for safe ALP House of Representative seats in the forthcoming federal election was invalid because it was not authorised by the ALP’s National Constitution or the Victorian Branch Rules. The Preselection Resolution followed and was based on the National Executive’s intervention in the Victorian Branch in June 2020 under an Administration Resolution made following allegations of branch stacking, which they argue was also invalid. They also argue that the Preselection Resolution was not a reasonable exercise of the powers conferred on the National Executive by the National Constitution or the Victorian Branch Rules, and was made for improper purposes. They also challenge other National Executive resolutions which were passed after the Administration Resolution of June 2020.

The defendants are the members of the National Executive and the trustees of trusts under which the Victorian Branch’s property is held.

The Victorian Branch is given power by its Rules to conduct preselections for public office, including for House of Representative electorates. A significant number of rank and file members of the ALP, in ordinary times, have the opportunity to participate in the preselections. However, the National Executive has power over preselections when it forms the opinion that any state branch or section of the Party is acting, or has acted, in a manner contrary to the National Constitution, the national platform or a decision of National Conference, as interpreted by the National Executive. In those circumstances, it may conduct any preselection that would otherwise have been decided by the State Branch. This power is given by cl 16(f)(iii) of the National Constitution and, in my opinion, also by the plenary power conferred by cl 16(d).

On 4 May 2021, the National Executive acting under the power in cl 16(f)(iii) resolved to conduct the preselections for 21 safe ALP seats and one newly created seat with the nominations to close on 7 May 2021, 46 hours later (‘the Preselection Resolution’).

Some of the plaintiffs, as members of the Public Office Selection Committee or through selection by their local branches, may have been electors in those preselections if they had been conducted in the usual manner under the Victorian Branch Rules. Because of the Resolution the plaintiffs lost their opportunity, as did ordinary members, to be part of the preselection process an important democratic process in the ALP and other political parties.

In deciding this case, two general and important questions arise. The first is whether the plaintiffs’ case is of the kind with which a court will become involved. Using the legal term, is it justiciable? The defendants say that that it is not justiciable because a court will not become involved in an internal dispute of a political party, which is an unincorporated association. They rely on a decision of the High Court in 1934, Cameron v Hogan,[1] in which Mr Edmond Hogan, the Labor Premier of this State, sought unsuccessfully to challenge his expulsion from the ALP following a disagreement about economic and employment policies during the Great Depression. I must apply the decision in Cameron v Hogan as there has been no subsequent High Court decision questioning it. Legislation now exists enabling political parties and other associations to obtain incorporation and thereby bring some of their internal disputes within the jurisdiction of courts, but most major political parties have not taken advantage of it. However, the plaintiffs rely on exceptions recognized as applying to the general principle in Cameron v Hogan and also submitted that it could be distinguished from the facts or circumstances of this case.
[1](1934) 51 CLR 358.

The second important question is whether the Victorian Branch of the ALP is a separate entity to what was described as the Federal ALP. Both of them are unincorporated associations. If the Victorian Branch is a separate entity, that might influence the interpretation of the National Executive’s powers conferred by the National Constitution over branches and also influence the interpretation of the Victorian Branch Rules.

I have decided that one of the plaintiffs’ claims is justiciable being their claim that the National Executive’s intervention by the Administration Resolution was an unlawful interference with the trusts upon which the Victorian Branch’s property is held and that they have the legal standing to bring that claim. This claim comes within one of the exceptions recognized in Cameron v Hogan. Having reached that conclusion and decided that the Court will hear that claim, I then considered whether the plaintiffs’ claim of unlawful interference with the Branch trusts has been proved or established. My conclusion is that the plaintiffs have not proved or established their claim that the National Executive has unlawfully interfered with the administration of the Branch trusts by passing and implementing the Administration Resolution.

In answering the second question, I have decided that the Victorian Branch of the ALP is not a separate legal entity, but as the word Branch, which is part of its name, indicates, it is part of the ALP. Thus the powers contained in the National Constitution and exercisable by the National Executive apply to all Branches and members of the ALP subject to limitations that I discuss in the judgment.

I have decided that the plaintiffs’ other grounds for challenging the Administration Resolution, Preselection Resolution and other resolutions are not justiciable. They are not grounds or claims with which the Court will become involved or decide, because they are internal disputes within a political party, which is an unincorporated association. The claims do not fall within any of the exceptions recognized in Cameron v Hogan nor do I consider that any grounds have been advanced for distinguishing that decision from the circumstances of the present case.

However, despite those conclusions, I have, as I am required to do, considered the plaintiffs’ other grounds of challenge to the Administration Resolution, the Rule Amendment Resolution, the Further Amendment Resolution and the Preselection Resolution. Having done so, I have reached the conclusion that none of the plaintiffs’ grounds of challenge would succeed in establishing that those Resolutions were invalid. If I had found the plaintiffs’ challenges to those Resolutions to be justiciable, I would have dismissed those challenges.

The proceeding must therefore be dismissed.

Introduction

The plaintiffs in this proceeding are members of the Australian Labor Party (‘the ALP’) or in one case, a trade union. Most of the plaintiffs are officers of branches of trade unions affiliated with the Victorian Branch of the ALP and bring the proceeding representing the members of their union’s branch. The defendants are the National Executive of the ALP (‘the National Executive’), which is established by the ALP National Constitution (‘National Constitution’) and trustees of trusts on which the Victorian Branch’s property is held.

Both the ALP and the Victorian Branch are registered political parties under the Commonwealth Electoral Act 1918 (Cth) (‘Commonwealth Electoral Act’), as the ‘Australian Labor Party’ and the ‘Australian Labor Party, Victorian Branch’. The Victorian Branch is also a registered political party under the Electoral Act 2002 (Vic) (‘Victorian Electoral Act’).

The plaintiffs challenge the validity of:

(a) the 16 June 2020 resolution of the National Executive to intervene in and appoint administrators to the Victorian Branch (‘the Administration Resolution’);

(b) the 14 September 2020 resolution of the National Executive amending the Victorian Branch Rules (‘the Victorian Branch Rules’) in order to confirm the Administrators’ powers by amending the existing rules to add r 26 entitled ‘Temporary Rules Applicable During the Period of the Administration’ and altering the rules relating to branch stacking through, inter alia, the inclusion of a new rule, r 26 (‘the Rule Amendment Resolution’);

(c) the 29 January 2021 resolution of the National Executive further amending the Victorian Branch Rules to, inter alia, rescind r 26 of the amended rules, providing for the appointment of an Interim Governance Committee to replace the Administrators, and adding r 26.8.1 (‘the Further Amendment Resolution’); and

(d) the 4 May 2021 Preselection Resolution.

The plaintiffs seek a declaration that nothing done based on the Preselection Resolution has legal effect as a decision or act of the Victorian Branch for the purposes of the Commonwealth Electoral Act. They seek a declaration that there was no reasonable, proper or lawful basis for the affirmation in the Preselection Resolution that the National Executive remained of the opinion that the Victorian Branch, or a section of it, was acting or had acted in a manner contrary to the National Constitution that warranted or justified an opinion that the conduct of the preselection process, the subject of the resolution, ‘remains necessary and justified’. They also seek injunctive relief.

Connection between this case and the Kairouz Proceeding

This proceeding was heard immediately before S ECI 2021 00274 Kairouz v Bracks (‘the Kairouz Proceeding’) which is a challenge to the National Executive’s Administration Resolution and intervention in the Victorian Branch following allegations of branch stacking. Because of common issues in the proceedings, I allowed the parties in the Kairouz Proceeding to participate in this proceeding as appropriate as I had allowed the plaintiffs in the present proceeding (‘the Asmar plaintiffs’) to participate in the Kairouz Proceeding. I later made an order that the two proceedings be heard together and that evidence in one be evidence in the other. Many issues and submissions were common to both proceedings. Where issues overlapped I have considered all the submissions about them made in both proceedings, although, in many instances, I have only recorded the submissions in the proceeding in which they were made. However, some issues only arose in one proceeding, for example the issue of the disciplinary charges in the Kairouz Proceeding or the Preselection Resolution in this proceeding. I have determined those issues in the proceeding in which they arose.

The plaintiffs referred to, repeated and relied on the grounds contained in Ms Kairouz’s Amended Statement of Claim in respect of the first three resolutions and contended that those resolutions and the amended rules following them were invalid.[2]
[2]Court Book, Asmar v Albanese (Supreme Court of Victoria, S ECI 2021 01465, Ginnane J, 25 May 2021) 241, 276 and 278 (‘Asmar Court Book’); Transcript of Proceedings, Asmar v Albanese (Supreme Court of Victoria, S ECI 2021 01465, Ginnane J, 27-28, 31 May and 1-4, 7-9 June 2021) 70 and 240-241 (‘Asmar Transcript’).

The defendants contended that the plaintiffs’ claims were not justiciable as the ALP is a voluntary unincorporated association which exercises no public power. In any event, the defendants contended that the plaintiffs had not established that the Resolutions were invalid.

On 7 May 2021, I granted an interlocutory injunction restraining the defendants from acting upon or giving effect to any nominations received in respect of the 22 Federal House of Representative seats in Victoria identified in the Preselection Resolution and from conducting any ballot as foreshadowed in that Resolution following those nominations. On 9 June 2021, I dissolved that injunction as I considered that the balance of convenience did not favour continuing it. However, I stated that the ‘National Executive bore the risk of any electoral harm that may follow’ should the Court later find the preselections to be invalid.[3]
[3]Asmar v Albanese (No 3) [2021] VSC 334, 7-8.

The tenth, twelfth, and thirteenth defendants, all of whom are members of the National Executive, are also the twelfth, fourteenth and fifteenth defendants in the Kairouz Proceeding. They were separately represented and made separate submissions on a number of issues, some of which were to similar effect as the other defendants. I will refer to them as the Three Defendants, where it is necessary to distinguish their submissions or their claims. Otherwise I will generally refer to all defendants, including the Three Defendants, as the defendants.[4] Although the Three Defendants had chosen to be separately represented in both proceedings, they said ‘for the avoidance of doubt… their participation in, and role on, the National Executive is not relevantly different to that of the other members of the National Executive named as defendants in the Asmar Proceeding and the Kairouz Proceeding’.[5]
[4]Where it is necessary to refer to the defendants other than the Three Defendants, I use the term ‘the majority defendants’.
[5]Asmar Court Book, 366.

The Issues for Decision

The main issues for decision in the proceeding are as follows:

1.The justiciability of the National Executive’s resolutions requiring consideration of:
(a)       the decision in Cameron v Hogan;
(b)      exceptions to the principle in Cameron v Hogan,
(i)       the proprietary interest, trust exception; and
(ii)      the contract exception;
(c)grounds for distinguishing the decision in Cameron v Hogan:
(i)       the interests of the affiliated unions;
(ii)      the statutory recognition of political parties; and
(iii)     the availability of declaratory orders.

2.        The validity of the following resolutions of the National Executive:
(a)       the Administration Resolution;
(b)      the Rule Amendment Resolution;
(c)       the Further Amendment Resolution; and
(d)      the Preselection Resolution.

3. Discretionary reasons for refusing relief.
4. Representative orders.
Background
Media reports of branch stacking

On 14 June 2020, Channel 9 broadcast a report on its 60 Minutes program titled ‘The Faceless Man’. The report contained allegations of branch stacking within the Victorian Branch, focusing on the activities of the then Victorian Minister for Local Government and Small Business within the Victorian Labor Government, Mr Adem Somyurek.

The defendants[6] described the program’s report as including video and audio recordings depicting a significant branch stacking operation within the Victorian Branch. Among the principal speakers in the recordings were Mr Somyurek and Ms Kairouz. Among other things, the recordings were said to depict the funding of party memberships for other individuals who were apparently unwilling to pay for their own subscriptions, the recruitment of members who did not live at, and were not enrolled to vote at, their claimed addresses, and attempts to procure the forgery of branch members’ signatures. Those activities were alleged to have been engaged in to gain advantage in local Party meetings or ballots.
[6]Meaning in this section of the judgment the majority defendants.

The defendants tendered a copy of the 60 Minutes program and played it for the Court. They described events that as addressing: Mr Somyurek making efforts to stack branches in the south-eastern suburbs of Melbourne; Mr Somyurek meeting with a person who was said to be branch stacking for him and who was his preferred candidate to replace a sitting Labor MP; Mr Somyurek’s efforts to enlist the Indian community; Mr Somyurek’s use of a parliamentary employees ‘to deliver Indians’ for him; and that person’s use of fake addresses to deliver new members for him. They said that it also addressed payments for membership including payments made by Mr Somyurek himself for memberships and handing cash payment and membership forms to a staff member of Ms Kairouz.

In the evening of 14 June 2020, following the broadcast of the 60 Minutes report, The Age newspaper published a number of articles on its website relating to the matters covered in the 60 Minutes report. The Age also published further reports on these matters on its website and in its print editions on 15 and 16 June 2020. For example, one article published 15 June 2020 in The Age stated:

Victorian minister Adem Somyurek handed over thousands of dollars in secret cash drop-offs and used political advisers meant to be working for other MPs to stack branches with fake members and amass significant political power inside the Australian Labor Party.[7]

[7]Nick McKenzie, Joel Tozer, and Sumeyya Ilanbey, ‘Somyurek Secret Tape Scandal Rocks Labor’, The Age (Melbourne, 15 June 2020); Asmar Court Book, 941.

That evening and the following morning, The Age published extensive reports on its website covering the matters in the 60 Minutes report, and providing further detail from the audio and video recordings.

The defendants pointed by way of example to the following parts of reports published:

The Age and 60 Minutes have obtained more than 100 audio and video surveillance files…
“Our people have been putting like industrial-scale numbers, you know, just

f---ing masses for a year,” [Mr Somyurek] says on one recording in which he describes his state-wide activities…
He claims that across Victoria, his operation involves placing fake members into branches every month. “We’ve got f---ing massive numbers” being stacked in seats, he tells several young Labor operatives on one tape. He describes stacking in the federal seat of Calwell…and putting “massive numbers in Lalor”…
Somyurek is dismissive of the idea that some of the members he’s signing up are actually interested in joining the ALP, scoffing at the prospect that “by some stroke of amazingness, that some people joined [the ALP] of their own accord”.
He can easily “rock up f---ing 50 people to a branch meeting” and discusses with zeal how to cover up branch stacking through a practice called “warehousing”. This involves getting members to sign up with false addresses, only to later move them to different branches in different locations after their membership addresses have been accepted as genuine.
“I think we do need to do some warehousing. So you put some people in now. And in about a year later, put them in…another area,” he says in one recording…
[Ms Kairouz] complains on one recording that renewing the membership of hundreds of party members takes forever and “my staff were just working on that, it was terrible.”…
Somyurek is forced to dip into his own pocket to pay for other fake members, including his Somali recruits. “I’ll have to pay for them,” he says of Somalis. “They didn’t want to do it because they were stretched. …”[8]

[8]Nick McKenzie, Sumeya Ilanbey and Joel Tozer, ‘F**k the premier’: ‘Labor’s secret tapes reveal industrial scale stackathon’, The Age (Melbourne 15 June 2020); Court Book, Kairouz v Bracks (Supreme Court of Victoria, S ECI 2021 00274, Ginnane J, 26 May 2021) 1694-1718, 1956-1957 (‘Kairouz Court Book’).

The defendants contended that some of the audio and video captures what appears to be attempted falsification of documents and forgery of signatures of members.

Between 14 and 16 June 2020, the matters reported in the 60 Minutes program and The Age were also reported extensively by other media outlets, both in print and online, across Australia, including the ABC, The Sydney Morning Herald, The Australian Financial Review, The Australian and other News Ltd publications, The Guardian, The Canberra Times and The New Daily.[9]
[9]Ibid 1654-1657, 1755-1827.

Events following the media reports

On 15 June 2020, Mr Daniel Andrews, the Premier of Victoria, wrote to the National Secretary of the ALP stating:

I write to notify you of my intention to charge Mr Adem Somyurek with offences under the Australian Labor Party Victorian Branch Rules, and to request that the National Executive hear and determine those charges and, if satisfied that offences have been committed, expel Mr Adem Somyurek as a member of the Australian Labor Party.
Reports broadcast on 60 Minutes on 14 June 2020 and published in The Age newspaper on 15 June 2020, show Mr Somyurek making threats about a Cabinet Minister, and derogatory remarks about Members of Parliament, Young Labor members and others. The reports also identify significant evidence of offences relating to party memberships. In my view, the ALP should not have as a member someone who conducts himself in this manner.
I will write to you further shortly in relation to the charges.
I also advise you that the Victorian Attorney General has referred all of these matters to Victoria Police and the Independent Broad-based Anti-corruption Commission for investigation.

At 10:26am on 15 June 2020, Mr Andrew’s Chief of Staff, Ms Lissie Ratcliff, sent an email attaching Mr Andrews’ letter to Mr Tim Gartrell, requesting that it be brought to the attention of the first defendant, Mr Anthony Albanese, who is the Leader of the Opposition and the Federal Parliamentary Leader of the ALP in the Commonwealth Parliament.[10] At 11:15am, Mr Gartrell, who is Mr Albanese’s Chief of Staff, replied to Ms Ratcliff’s email stating ‘He’s got it’.[11]
[10]Ibid 2044.
[11]Ibid 2044.

At 10:53am on 15 June 2020, Mr Somyurek resigned his membership of the ALP.[12]
[12]Asmar Court Book, 922.

On 16 June 2020, Mr Andrews wrote a second letter to the National Executive in different terms to his first letter, stating:

I write to request your endorsement of a process for reform of the Victorian Branch of the Australian Labor Party to guarantee integrity and probity in all of our affairs.
This plan has my full support as both leader of the Victorian Parliamentary Labor Party and Premier of Victoria.
I have no confidence in the integrity of any voting rolls that are produced for any internal elections in the Victorian Branch. Accordingly, we must suspend those elections and begin a long and critical process of validating each and every member of the Labor Party in Victoria as genuine, consenting and self-funded.
I cannot accept yet another review that, while well intentioned, cannot and will not deliver the profound reform that is required.
I have asked Steve Bracks and Jenny Macklin to serve as administrators of the Victorian Branch while this process is undertaken and I ask that you appoint them to those roles. I have full confidence that they are best placed to undertake this work.
I seek your agreement to the detailed plan attached to this correspondence and I look forward to your support and assistance in making these fundamental reforms so that we can, in all ways, be a party that lives its values.[13]

[13]Ibid 923.

Mr Andrews attached to his letter a document titled ‘National Executive oversight of reforms to the Victorian ALP’ which stated:

National Executive Oversight
ALP National Executive exercises its powers under Rule 16(f)(ii) to appoint Steve Bracks and Jenny Macklin as administrators of the Victorian Branch.
The administrators are appointed for an initial term extending to 31 January, 2021.
For the term of the National Executive oversight:
·All Committees of the Victorian State Conference, as defined in the Victorian Rules, are suspended
·All officials and staff of the Victorian Branch will report to the administrators.

Initial scoping report
National Executive directs the administrators provide an initial scoping report by 31 July 2020.
The scoping report will include recommendations to the National Executive on integrity measures for the Victorian Branch membership.
The scoping report should also include processes for consulting with the Party membership.
The administrators should develop this scoping report in consultation with the Victorian State Secretary and the Victorian Branch President.
Final Report
The National Executive requests that the administrators report back by 1 November 2020, with a final report.
The final report should include recommendations on how the Victorian Branch should be restructured and reconstituted so that the branch membership comprises genuine, consenting, self-funding party members.
Suspension of voting rights
National Executive notes the request of the Victorian Labor Leader that all voting rights in the Victorian Branch be suspended at least until 2023.
National Executive will exercise its powers under Rule 16(f)iii to conduct all preselections for the next federal and state elections.
Administration support
For the term of the National Executive oversight, officials and staff of the Victorian Branch shall report to the administrators.
National Executive will consider the need to further support the work of the administrators.
Should the administrators require special advice or professional services, these shall be appointed with the approval of the National Executive Committee.[14]

[14]Ibid 924.

At 5:42pm on 16 June 2020, the agenda for the meeting together with Attachments A and B, were emailed to the members of the National Executive. The agenda for the meeting referred to meetings of the National Executive Committee[15] occurring on 15 and 16 June 2020. Mr Andrews’ correspondence of 15 and 16 June and an email from Mr Somyurek to the State Secretary resigning his membership were also attached.
[15]The National Executive Committee consists of some of the National Executive and meets at least once between each meeting of the National Executive for the purpose of preparing the agenda and making recommendations to expedite the business of the National Executive: see National Constitution, cl 17.

The Administration Resolution

The National Executive met via telephone between 7:00pm and 7:28pm and passed the Administration Resolution which in effect implemented the ‘oversight’ requested by Mr Andrews. The steps which were taken under the National Executive’s ‘oversight’ might also be described as the National Executive’s intervention in the Victorian Branch.

The Administration Resolution was in the following terms which were similar to the attachment to Mr Andrews’ letter earlier that day:

National Executive notes the correspondence from the Premier of Victoria in relation to necessary reform of the Victorian Branch.
National Executive resolves to exercise its powers under Rule 16(f)(ii) to appoint Steve Bracks and Jenny Macklin as administrators of the Victorian Branch. The administrators are appointed for an initial term extending to 31 January, 2021.
For the term of the National Executive oversight:
•All committees of the Victorian State Conference, as defined in the Victorian Rules, are suspended
•All officials and staff of the Victorian Branch will report to the administrators.

National Executive directs the administrators to provide an initial scoping report by 31 July 2020. The scoping report will include recommendations to the National Executive on integrity measures for the Victorian Branch membership. The scoping report will include recommendations on how to maintain affiliate representation in the Victorian ALP. The scoping report should also include processes for consulting with the Party membership and affiliated unions. The administrators should develop this scoping report in consultation with the Victorian State Secretary and the Victorian Branch President.
The National Executive requests that the administrators report back by 1 November 2020, with a final report. The final report should include recommendations on how the Victorian Branch should be restructured and reconstituted so that the branch membership comprises genuine, consenting, self-funding party members.
National Executive notes the request of the Victorian Labor Leader that all voting rights in the Victorian Branch be suspended at least until 2023. National Executive will exercise its powers under Rule 16(f) iii to conduct all preselections for the next federal and state elections.
For the term of the National Executive oversight, officials and staff of the Victorian Branch shall report to the administrators. National Executive will consider the need to further support the work of the administrators. Should the administrators require special advice or professional services, these shall be appointed with the approval of the National Executive Committee.[16]

[16]Asmar Court Book, 919-920.

On 31 July 2020, the Administrators provided a ‘Scoping Report’ to the National Executive, which included details on the progress of an audit of the Party’s membership in Victoria by Deloitte and feedback from members to the Administrators regarding rule changes and other matters. It also recommended a revised resolution that would include amending the existing Victorian Branch Rules to prohibit cash and cash like payments for memberships and membership renewals.

The Rule Amendment Resolution

On 14 September 2020, the National Executive resolved that the ‘Victorian Branch Rules be adapted in order to confirm the Administrators’ powers’[17] which included r 26 titled ‘Temporary Rules Applicable During the Period of the Administration’ (‘the Rule Amendment Resolution’).[18] These rules gave the Administrators powers during the period of the administration to 31 January 2021, including the power to charge a member with a breach of the branch stacking rules and to revoke the membership of a member. I will refer to the Victorian Branch Rules as amended on 14 September 2020 as the ‘Amended Rules’.
[17]Ibid 1114.
[18]Ibid 1115.

The National Executive’s Resolutions of 27 November 2020

On 27 November 2020, the National Executive resolved to:

(a) accept the Administrators’ Final Report and adopt their recommendations;

(b) confirm that the appointment of the Administrators would cease after 31 January 2021 and that, with effect on 1 February 2021, the affairs of the Victorian Branch would be managed by an Interim Governance Committee appointed by the National Executive, until the election of a new Administrative Committee;

(c) give effect to recommendation 29 and 30 in the Administrators’ Final Report by making changes to the Victorian Branch Rules relating to membership by amending rr 5.7.6 and 5.12.2 and inserting new rules 5.3.6 and 5.3.7; and

(d) note that, in order to give effect to recommendations requiring further changes to the Victorian Branch Rules, the National Executive would receive the Administrators’ recommended rules changes as an exposure draft to be considered by the National Executive no later than 31 January 2021.[19]

[19]Ibid 1223-1224.

The Further Amendment Resolution

On 29 January 2021, the National Executive resolved to further amend the Amended Rules by:

(a) rescinding r 26 of the Amended Rules;

(b) providing for the appointment by the National Executive of the Interim Governance Committee to replace the Administrators and perform all the functions of the Administrative Committee and Party Officers of the Victorian Branch and to facilitate the progression of the Victorian Branch from the control of the Administrators from 31 January 2021 to the Interim Governance Committee; and

(c) adding r 26.8.1 in the following terms:

Notwithstanding that the appointment of the Administrators ceased as at midnight on 31 January 2021, charges laid by the Administrators during the period of the administration shall be heard and determined by the Disputes Tribunal in accordance with rule 26 as it applied during the administration and any suspension of the member in question shall continue.

The Preselection Resolution

As stated above, on 4 May 2021 the National Executive resolved to take over and conduct the preselection of ALP candidates for the next federal election in 21 House of Representatives electorates, which ALP members currently hold, and one new seat, the seat of Hawke. The Preselection Resolution, and its background, are set out later in these reasons.

Justiciability

The term justiciability describes whether a claim for relief is appropriate and capable of being settled or decided by a court of law.[20] The defendants argued that Ms Kairouz’s claims were not justiciable because of the High Court decision in Cameron v Hogan. They relied on it for the proposition that, as Ms Kairouz could not establish a proprietary or contractual claim, her claims were not justiciable because Courts do not become involved in internal disputes in voluntary associations, including political parties. Ms Kairouz relied on exceptions to this principle and also sought to distinguish Cameron v Hogan because of developments including the statutory recognition of political parties.
[20]Jeremy Kirk, ‘Justiciability’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018) 510; G E Dal Pont, Law of Associations (LexisNexis Butterworths, 2018) [7.7].

Accordingly, much of the debate on justiciability concerned the High Court’s decision of Cameron v Hogan in 1934 and whether it made the plaintiff’s claims non-justiciable. That decision is of course binding on me as it is on all judges of courts below the High Court. In Cameron v Hogan the plaintiff was Mr Edmond Hogan, who was Premier of Victoria as Parliamentary Leader of the ALP in 1927 and 1928 and again between 1929 and 1932. In 1932 he was excluded from the ALP and not preselected as its candidate in the election of that year. His exclusion followed his refusal to oppose the ‘Premiers’ Plan’, which was an economic plan proposed during the Great Depression. Mr Hogan was re-elected as an Independent. He commenced proceedings in this Court seeking declarations that he was still a member of the ALP and that his exclusion was wrongful, alleging that he had suffered loss and damage by not being the leader of the Parliamentary Labor Party. At first instance Gavan Duffy J did not grant him an injunction but found that his contractual rights had been infringed, entitling him to nominal damages of one shilling.[21]
[21]Hogan v Cameron [1934] VLR 88, 94-95.

On appeal, the High Court decided that Mr Hogan’s claims were not justiciable. This was because at common law, as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure of its officers to observe the rules regulating its affairs unless the members enjoyed under them some civil right of a proprietary nature.[22] The High Court found that Mr Hogan’s membership of the ALP did not establish any legal or equitable interest that entitled him to the grant of a declaration or an injunction in respect of his exclusion from it, and that as the ALP was a voluntary unincorporated association, members were not in a contractual relationship and had no proprietary rights or interests in its property.[23] On the contract point, the plurality stated:

Hitherto rules made by a political or like organization for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction. The matter has not been the subject of much, if any, discussion in English cases. For American authority it is enough to refer to McKane v Adams.[24]
[22]Cameron v Hogan (1934) 51 CLR 358, 370.
[23]Ibid 376, 378.
[24]Ibid 376.

The judgments in Cameron v Hogan addressed matters of relevance to this proceeding in the following passages. Starke J stated that:
As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club.[25]
[25]Ibid 384.

Rich, Dixon, Evatt and McTiernan JJ stated:

Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint.[26]
…
There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure on the part of its officers, to observe the rules regulating its affairs, unless the members enjoyed them under civil right of a proprietary nature.[27]
…
The foundation of the jurisdiction to grant an injunction is the existence of some civil right of a proprietary nature proper to be protected. The property under the control of the central executive and that under the control of the branches might, if all the members concurred in dissolving the association, be distributed among them, but if so, it would be by reason of a decision under the rules authorising that distribution. Except for this, the respondent has no interest capable of enjoyment.[28]
…
The organisation is a political machine designed to secure social and political changes. It furnishes its members with no civil right or proprietary interest suitable for protection by injunction. Further, such a case is not one for a declaration of right. The basis of ascertainable and enforceable legal right is lacking. The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment.
For these reasons the respondent is not entitled to invoke the jurisdiction of the Courts of law in reference either to his complaint that his nomination for selection was improperly withheld from ballot, or that a resolution for his expulsion was adopted without authority or justification under the rules. In these circumstances the question, whether, upon the true meaning of the rules, the central committee acted in accordance with or contrary to them is not one of which the Court takes cognisance.[29]
[26]Ibid 370.
[27]Ibid.
[28]Ibid 377.
[29]Ibid 378.

Cameron v Hogan was recently applied by Riordan J in Setka v Carroll,[30] which concerned a challenge by Mr Setka to requests made to the National Executive to expel him from the ALP. Riordan J held that such a claim was not justiciable.
[30](2019) 58 VR 657.
The plaintiffs’ reliance on their proprietary interests in the Victorian Branch’s trusts

To support the justiciability of their claims, the plaintiffs sought to rely on the proprietary interest exception recognized by the High Court in Cameron v Hogan by relying on rights under, or in respect of, the trusts upon which the Victorian Branch’s property is held. Although the plaintiffs did not seek any remedy specific to the administration of the trusts, they challenged the Administration Resolution, the Rule Amendment Resolution, the Further Amendment Resolution and the Preselection Resolution on grounds that they unlawfully interfered with the trusts’ administration.[31] They also relied on the right of a beneficiary to seek the enforcement of a trust even if that right was not a proprietary interest and argued that such a right was not governed by the decision in Cameron v Hogan. The plaintiffs therefore contended that, as members or as affiliated unions, they had the requisite standing to bring this proceeding for the proper and due administration of the trusts on which the property of the Victorian Branch is held, or that in the alternative, they had the requisite standing based on their claims for breach of contract. I will next describe the trusts under which the Victorian Branch’s property is held.
[31]See, eg, Schmidt v Rosewood Trust [2003] 2 AC 709; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405; Fordyce v Ryan [2017] 2 Qd R 240.

The trusts

The parties generally agreed that the Victorian Branch’s property is held under a number of trusts, the rules of which were contained in the Victorian Branch Rules, and in the case of the LSH trust, in a trust deed.

The trusts created by r 21.1 of the Victorian Branch Rules

The first trust is created by r 21.1 which provides:

21.1. General
21.1.1.Subject to Rule 21.3, all property including all moneys, all books, stationary, furniture, office equipment and all other assets, whether of a like kind or not, of the Party shall be vested in three Trustees (“The Trustees”). The Trustees shall be the Officers of the Party for the time being, as elected in accordance with the Rules. The funds of the Party shall be banked in the name of the Party and no funds shall be drawn from the bank except by a cheque signed by a trustee or other person designated by the Administrative Committee, and counter-signed by the State Secretary. All such funds shall be applied to the management and conduct of the Party and furtherance of its aims and objectives. The Trustees shall be empowered to give indemnities on behalf of the Party.

The second trust, or possibly a sub-trust of the first trust, is created by r 21.1.2 which provides:

21.1.2.Subject to Rule 21.3, all property of any Branch, Conference or Assembly shall vest in the Trustees referred to, who shall hold such property on behalf of and for the purposes of the members of such Branch, Conference or Assembly. The income and property of the Party whensoever derived shall be applied solely towards the promotion of the objects of the Party as set forth in these Rules and no portion thereof shall be paid or transferred directly or indirectly by way of profit to members of the Party provided that nothing hereunder contained shall prevent the payment in good faith of remuneration to any Officers or employees of the Party in return for any services actually rendered to the Party nor for good supplied in the ordinary way of business nor prevent the payment of interest at a market rate on money borrowed from any member of the Party or reasonable or proper rent for premises demised or let by any member of the Party.
21.1.3.The Administrative Committee may, for any purpose set out in existing Rules and subject to any terms and conditions the Administrative Committee thinks fit to impose, authorise the Trustees to raise and borrow money and secure the repayment of that money by granting a mortgage, charge or other security over property belonging to the Party. Without limiting the generality of the foregoing, the Administrative Committee may authorise the Trustees to borrow money using a bill facility provided by a bank.

The Capital Investment Fund

A further trust, the Capital Investment Fund, is created by r 21.2 which provides:

21.2. Capital Investment Fund
21.2.1.There shall be a fund of the Party to be known (subject to Rule 21.2.2) as the “Capital Investment Fund” (in this Rule “the Fund”).
…
21.2.3.Subject to Rule 21.3, the Fund shall comprise:
21.2.3.1.all bequests made to the Party or its Trustees; and
21.2.3.2.all other donations made to the Party or its Trustees where the donor has expressed a wish that the donation be held in the Fund; and
21.2.3.3.interest earned on the Fund.

21.2.4.Subject to Rule 21.3, the Fund shall be vested in the Trustees.
21.2.5.The Trustees may use interest earned on the assets of the Fund but only for the purposes contemplated by these Rules. The Trustees must not use or apply, nor allow, permit or enable the use or application of, interest earned on the assets of the Fund for any other purpose.
…
21.2.10.Each Trustee of the Party shall on taking office make a declaration of trust that they will:
21.2.10.1.hold the Fund on the terms of this Rule; and
21.2.10.2.in particular, not permit any amount to be withdrawn from the Fund except in accordance with this Rule.

The parties differed as to the number of trusts created by rr 21.1 and 21.2 and their proper characterisation, but I do not think the differences matter. Insofar as the trusts were objects trusts, then the Court would identify beneficiaries of the trusts who would include the members of the Victorian Branch.[32]
[32]Leahy v Attorney-General (NSW) [1959] AC 457 at 464; Bacon v Pianta (1966) 114 CLR 634 at 638; Re Goodson [1971] VR 801.

The trustees of the r 21.1 and r 21.2 trusts were Susie Byers, Shannon Threlfall-Clarke and James McWhinney, who are the President, Senior Vice-President and Junior Vice-President of the Victorian Branch.

The Labor Services & Holdings Trust

A further trust, the Labor Services & Holdings Trust (‘the LSH Trust’), is provided for in r 21.3 as follows:

21.3. Labor Services & Holdings Trust
21.3.1.There shall be a trust to be known as the Labor Services & Holding Trust (“LSH Trust”) and established to:
21.3.1.1.provide all necessary services, support and infrastructure to the Party and any other entity established and controlled by the Party; and
21.3.1.2.as determined by the Officers, to hold the property (including all monies, books, stationery, furniture and office equipment) and other assets of the Party on trust for all of the Members.

21.3.2.The trustee of the LSH Trust must be a proprietary limited company incorporated in Victoria and called “Labor Services & Holdings Pty Ltd” (“LSH Trustee”).
21.3.3.The shareholders and directors of the LSH Trustee must at all times be the Officers and 2 other nominees of the Administrative Committee determined with 22 votes in favour of the nomination (being a total of 5 persons).
21.3.4.Each director of LSH Trustee will hold one ordinary share in LHS Trustee. A person who ceases to be an Officer or whose nomination is withdrawn or cancelled by the Administrative Committee must promptly following his or her retirement or the withdrawal or cancellation of his or her nomination, do everything necessary to:
21.3.4.1.retire as a director of the LSH Trustee; and
21.3.4.2.transfer his or her share in the LSH Trustee to the person appointed as a director of the LSH Trustee in his or her stead.

21.3.5.Neither the trust deed constituting the LSH Trust nor the constitution of LSH Trustee may be changed in any way without the approval of a resolution of the Administrative Committee passed with 22 votes in favour of the resolution.
21.3.6.The Administrative Committee may at any time by resolution passed with 22 votes in favour of the resolution require the trust deed constituting the LSH Trust to be varied to limit the rights and powers of the LSH Trustee as trustee of the trust in respect of:
21.3.6.1.any change to the purpose of the LSH Trust; or
21.3.6.2.the creation or acquisition of any sub-trust or the acquisition of securities in or of any corporation; or
21.3.6.3.the sale or disposition of any assets of the LSH Trust; or
21.3.6.4.the acquisition of any asset having a value of over $100,000 by or for the LSH Trust; or
21.3.6.5.the incurrence of any liability of over $100,000 by the LSH Trustee; or
21.3.6.6.the giving of any security over the assets of the LSH Trust or the provision of any guarantee by the LSH Trustee either in its own right or as trustee of the LSH Trust.

21.3.7.Subject to Rule 21.3.5, the LSH Trustee has all the powers and may do anything necessary for the purposes of providing all necessary services, support and infrastructure to the Party, and any other entity established or controlled by the Party, including, without limitation, the power to employ such persons as may be necessary to provide those services, support and infrastructure.
21.3.8.The Officers may direct the Trustees to transfer any property or assets of the Party held by them including, but not only, assets held in or as part of the Fund to the LSH Trustee.
…
21.3.10.The LSH Trustee will hold all property and assets transferred or given to or acquired by the LSH Trustee on trust for the Members and for no other person and solely for the purposes of the promotion of the objects of the Party as set out in these Rules.
21.3.11.The LSH Trustee may use and apply all income derived from any property or assets held by it to fund the cost for providing services, support and infrastructure to the Party and any other entity controlled by the Party.
21.3.12.The LSH Trustee may at any time donate any surplus income (being income that is not required to fund the provision of services, support and infrastructure as contemplated by Rule 21.3.10) to the Party.
…

21.3.16.The LSH Trustee may charge the Party (and any other entity controlled by the Party to whom it provides services) a fee for the provision of those services. Any fee charged must be on a cost recovery basis only and limited to an amount equal to the actual cost (including any on-costs and indirect costs) of providing those services.

A significant feature of r 21.3 is that the LSH Trust holds all property and assets on trust for members for the sole purpose of promoting the objects of the Party as set out in the Rules. The beneficiaries of the LSH Trust are all members of the Australian Labor Party, Victorian Branch, at the relevant time. Furthermore, it gives to the Administrative Committee and Officers powers in respect of the shareholders and directors of the trustee company and other aspects of the operation of the LSH Trust. For example, it provides a role to the Administrative Committee and the Officers concerning the variation of the Trust Deed and the transfer of trust property.

Clause 3 of the Trust Deed describes the purposes of the Trust:

PURPOSE OF TRUST
(a) The purposes of the Trust are to:
(i)provide all necessary services, support and infrastructure to the Association and any other entity established and controlled by the Association; and
(ii)as determined by the Officers, to hold the property (including all monies, books, stationery, furniture and office equipment) and other assets of the Association on trust for all of the Beneficiaries.

Clause 3 of the Trust Deed also gives the Trustee broad powers to give effect to the purpose of the Trust.

The plaintiffs adopted the substance of Ms Kairouz’s submissions that, as a member of the Victorian Branch, she had a cause of action as a beneficiary to sue to restrain unlawful interferences with the trusts. They relied on her pleading that the Administration Resolution constituted unlawful interference in these trusts and altered their administration by:

(a) requiring the Trustees of the trusts created by rr 21.1 and 21.2 of the Victorian Branch Rules to report to the Administrators rather than act independently as trustees in administering the affairs of the Trusts;

(b) removing the Administrative Committee’s powers to authorise the Trustees of the trust created by r 21.1 of the Victorian Branch Rules to raise and borrow money, approve the making of advances by the Trustees of the Fund, nominate shareholders and directors of LSH Trustee, withdraw or cancel the nomination of a director of LSH Trustee, or change or vary the trust deed constituting the LSH Trust and the constitution of LSH Trustee;

(c) requiring the State Secretary to report to the Administrators in performance of their duties with respect to the trust created by r 21.1 of the Victorian Branch Rules;

(d) removing the power of the Officers to direct the Trustees to transfer property or assets without first reporting to the Administrators; and

(e) changing the governance and administration of the trusts created by r 21 of the Victorian Branch Rules, the Trustees and the LSH Trustee.

The Administrators’ actions in changing the LSH shareholders and directors

At the time the Administration Resolution was passed, the directors and shareholders of LSH Trustee were Ms Byers, Ms Threlfall-Clarke, Mr McWhinney, Ms Clare Burns, the state secretary and Mr Mathew Hilakari. On 6 July 2020, the Administrators wrote to Ms Burns cancelling her nomination as a director and shareholder and stating:

As you are aware we have been appointed, by a resolution of the National Executive of the Australian Labor Party dated 16 June 2020, as administrators of the Victorian Branch of the Australian Labor Party. The resolution suspends the operation of all committees of the State Conference as defined in the Rules of the Victorian Branch, including the Administrative Committee.
In our position as administrators, all officials and staff of the Victorian Branch report to us. We are required to direct the conduct of the affairs of the Victorian Branch, including carrying out the functions that would otherwise be exercised by the Administrative Committee.
You will be aware that the powers of the Administrative Committee, under the Rules of the Victorian Branch, include nominating and cancelling the nominations of two of the Directors of the Trustee of the Labor Services & Holdings Trust, Labor Services & Holdings Pty Ltd (LSH Trustee).
We understand you were nominated by the Administrative Committee to serve as a Director of the LSH Trustee in 2019 and were formally appointed as a Director and Secretary of the LSH Trustee on 10 October 2019.
In the present circumstances, and in order to carry out our functions as administrators of the Branch, we hereby notify you that we are exercising our powers to cancel the nominations of the two current Directors of the Trustee nominated by the Administrative Committee being you and Mathew Hilakari. The cancellation is effective immediately.
In accordance with rule 21.3.4 of the Victorian Branch Rules, please promptly, and by no later than Tuesday 7 July 2020, complete and return to us the documents enclosed with this letter to retire as a Director of the LSH Trustee and transfer your appointed shareholding in the LSH Trustee to Steve Bracks.

A similar letter was sent to Mr Hilakari. The attached documents recorded that they were ‘retiring’ as directors and shareholders. Upon their retirement, the Administrators, Ms Macklin and Mr Bracks, became directors and shareholders of the trustee company in their place.

The plaintiffs’ submissions about their interests in the Victorian Branch trusts

The plaintiffs argued that their claims fell within the proprietary interest exception recognized by Cameron v Hogan as beneficiaries under the trusts on which the Victorian Branch’s property is held. They argued that the Administration Resolution had unlawfully interfered with the administration of the trusts. In that respect, they relied on allegations of breach of trust contained in Ms Kairouz’s amended statement of claim, relevant parts of which I have set out above, as containing the details of that unlawful interference.

In summary, the allegations were that the Administrators, purporting to act under the Administration Resolution, had taken control of the administration and assets of the trusts and in effect had appointed themselves trustees. By passing the Administration Resolution, the National Executive had unlawfully interfered in the trusts and altered their administration and affected the interests of beneficiaries in them. They had changed the governance and administration of the trusts, and in the case of the LSH Trust, the directors and shareholders of the corporate trustee. They had removed powers of the Administrative Committee over the trusts’ operations, such as the power to authorise the trustees of the first trust to raise and borrow money and in respect of the Capital Investment Fund to approve the making of advances by the Trustees, the power to nominate two directors and shareholders of LSH Trustee and the power of the Administrative Committee to change or vary the LSH trust deed.

The plaintiffs argued that they have both a proprietary interest as well as a real and special interest in the relief they seek because of their interests in the trusts. As an alternative argument, they submitted that their right to seek relief because of the Administrators’ interference with the administration of the trusts did not depend upon them establishing that they were beneficiaries.[33]
[33]Schmidt v Rosewood Trust Ltd [2003] 2 AC 709, [51]-[52] and Hartigan Nominees Pty Ltd v Rydge (1999) 29 NSWLR 405.

To support their claim for justiciability on the trusts ground, the plaintiffs relied on the decision in Rendall-Short v Grier[34] in which Lucas J referred to Cameron v Hogan, and the right of members of an association to see that its rules were observed, including the rules concerning the application of its property and income in promotion of its objects. Such a right was ‘a right of a proprietary nature’. The case concerned the legality of the transfer of trust property of an unincorporated association to another trust. Lucas J stated:
[34][1980] Qd R 100, 109–110.

In the present case I think there is a trust ground on which Cameron v Hogan may be distinguished. In Forbes v. Eden Lord Cranworth said in an oft quoted passage which is repeated in Cameron v Hogan:
Save for the due disposal and administration of property, there is no authority in the courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs.

Clause 21(a) of the constitution of the association, to which I have already referred, provides:
The income and property of the organisation shall be applied in promotion of its objects.

The substantial matter of which the plaintiffs complain is the transfer of the assets of the association to the Therapy Society. As members of the association the plaintiffs have a right to see that its rules are observed by the committee of management; this is a right which of course extends to the observance of all the rules. It is true that in relation to many of the rules, a court would not enforce their observance; for example, it is doubtful whether the court would entertain an action in which the only complaint was of some irregularity at a meeting:
“Hitherto rules made by a political or like organisation for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction.” (Cameron v. Hogan).

But I do not think that clause 21(a) is a rule of that nature. The plaintiffs as members have the right to require the committee of management to apply the income and property of the association in promotion of its objects. I can see no basis upon which a right of such a nature could be considered as anything other than a ‘right of a proprietary nature’. Having regard to the value of the property concerned, it would be surprising if a member had no remedy in respect of its misapplication. Nor do I think that the fact that the objects of the association are charitable means that the intervention of the Attorney-General is required. The plaintiffs are not seeking to enforce a charitable trust; they are merely insisting upon the proper application of the property of the association; in other words seeking the performance of their proprietary right: cf. Baldry v. Feintuck.
For these reasons I have come to the conclusion that the plaintiffs have the necessary standing to bring both of these actions.[35]

[35][1980] Qd R 100, 109-110.

Lucas J’s judgment has additional significance because he applied its reasoning in his judgment at first instance in Burton v Murphy[36] to explain why he was distinguishing Cameron v Hogan. Burton v Murphy, which I consider in detail below, concerned the intervention in 1980 of the Federal Executive of the ALP in the Queensland Branch. In deciding that case, which is relevant to deciding whether the plaintiffs’ claims in this case are justiciable, Lucas J stated with reference to Cameron v Hogan:

The case has been distinguished many times, and I need only refer to what I said in [Rendell-Short v Grier]. In that case I distinguished Cameron v Hogan on the ground that what was sought was the due administration of the property of a voluntary association according to its rules, and the same considerations apply here, since one of the declarations and one of the injunctions sought by the plaintiffs are directed towards the receipt of moneys and the entitlement to property of the Interim Administrative Committee. The defendants did not rely on Cameron v Hogan to oust my jurisdiction, and I am content to distinguish it upon the basis which I have indicated. The right of the defendants to receive and deal with money and property of the Queensland body cannot be established unless the resolution of 1^st March 1980 is held to be binding upon the Queensland body.[37]

[36][1981] QSC 274.

[37]Burton v Murphy [1983] 2 Qd R 321, 325 (footnote).

The plaintiffs also referred to s 41(1) of the Trustee Act 1958 which deals with the appointment of new trustees and the removal of existing trustees as having the consequence that the Administrators had no power to appoint or remove trustees.[38] They argued that s 41(1) contemplated the appointment of new trustees by the persons nominated by the instrument creating the trust, or the surviving or continuing trustee for the time being, or personal representatives of the last remaining trustee. Critically, s 41(2) deals with the removal of trustees, and contemplates that this may be done under a power contained in the instrument creating the trust. Section 48(1) empowers the Court to appoint new trustees, including by substituting them for existing trustees. The Court also has inherent power to remove trustees. Otherwise, so the plaintiffs submitted, no one, including the Administrators in the present case, has power to remove a trustee. Further, the plaintiffs contended that any attempt to remove the jurisdiction of the courts to deal with claims concerning the due administration of a trust was void as contrary to public policy.
[38]Asmar Court Book, 265.

The defendants’ submissions about the plaintiffs’ interests in the Victorian Branch trusts

The defendants accepted that in circumstances where property of an association is held on trust, members have a right as beneficiaries to seek remedies from the court if the trust fund is misapplied. However, that principle does not apply where, as in the present case, the dispute, in reality, only concerns who controls an association or political party, as that is a matter to be settled internally in accordance with the association’s rules.

The Victorian Branch trusts provide for the trust property to be applied solely towards the objects of the ALP and preclude any distribution of that property to members. Any right or interest of the plaintiffs as beneficiaries of the trusts relating to branch property, for example, to compel the trustees to perform the terms of the trusts, is irrelevant to their present claims in this proceeding. The joint judgment in Cameron v Hogan recognised that the property under the control of the central executive of the Victorian Branch could be distributed among its members if all the members agreed to dissolve the association, but regarded such an interest to be insufficient to support injunctive relief. That was because the organisation was a ‘political machine designed to secure social and political changes’; it was ‘reasonably clear that membership of the association carried with it no tangible or practical proprietary right’ to the assets belonging to the ALP; and the existence of such property was ‘incidental and accidental’ to the conduct of the association.[39] The defendants argued that plaintiffs were in no better position than Mr Hogan was, as they were not suing the trustees to prevent non-compliance with, or maladministration of, the trusts.[40]
[39]Cameron v Hogan (1934) 51 CLR 358, 378 (Rich, Dixon, Evatt and McTiernan JJ).
[40]Asmar Transcript, 370.

To emphasise their argument that the plaintiffs were not really bringing a trusts claim, the defendants submitted that the Administration Resolution had not led to any change to the trust objects, no alteration of trustees or of trust instruments, and no maladministration of trust property. The plaintiffs sought no relief based on trust claims. Their trust arguments were a contrivance to attempt to overcome their lack of a justiciable claim and they could not ‘bootstrap’ themselves into a justiciable issue by claiming a declaration. After the Administration Resolution was passed, the same trustees remained in place, the trust funds had not been transferred or spent in any unauthorised manner, there had been no change to the trust deed or the terms of the trusts on which the property of the Victorian Branch was held, and there was no change in the role or responsibilities of the trustees nor interference with the performance of their duties. The trustees reported to the Administrators and thereafter the Interim Governance Committee, because they stood in the shoes of the Branch’s Administrative Committee. The change in the reporting duties of Ms Byers, Ms Threlfall-Clarke and Mr McWhinney arose in respect of their capacity as office-bearers, not in their capacity as trustees. The plaintiffs’ claim based on wrongful interference with the LSH Trust lacked substance. Although two of the directors and shareholders of LSH Trustee were replaced, the trustee remained unchanged. The replacement of the two directors and shareholders was a matter for the corporate trustee, not the trust, and a beneficiary of the trust had no right to bring an action to prevent a change of the directors or shareholders of the corporate trustee.

The trusts rules were to be read and interpreted in the context of the relationship between, first, the Victorian Branch and its Rules, and second, the National Executive and the National Constitution. That relationship included the powers of the National Executive, particularly those in cls 16(d) and 16(f) of the National Constitution. The trustees were obliged to comply with the National Constitution which included the power to amend the Victorian Branch Rules. Intervention by the National Executive to take over and direct the conduct of the affairs of branches, including their property, was part of the design of the rules.

Before considering the justiciability of the plaintiffs’ trust exception arguments, I will deal with matters that the defendants argued prevented the plaintiffs from making them.

Joinder of the trustees

An issue arose as to the right of the plaintiffs to make claims based on interference with the trusts when the trustees were not parties to the proceeding and had not commenced it. The plaintiffs in both proceedings filed summons seeking to add the trustees as parties and after hearing submissions I ordered that:

(a) Mr James McWhinney, in his capacity as a Trustee under rr 21.1 and 21.2 of the Victorian Branch Rules, be joined as a defendant;

(b) The capacity in which the eighteenth defendant, Ms Shannon Threlfall-Clarke is sued be both in her capacity as a member of the National Executive of the Australian Labor Party and in her capacity as a Trustee under rr 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules;

(c) The capacity in which the twentieth defendant, Susie Byers, is sued be both in her capacity as a member of the National Executive of the Australian Labor Party and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party, and in her capacity as a Trustee under rr 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules.

(d) Labor Services & Holdings Pty Ltd, in its capacity as Trustee under r 21.3 of the Victorian Branch Rules be joined as a defendant.

Can the plaintiffs bring a claim for breach of trust?

However, despite that joinder, an issue arose whether, if the plaintiffs’ claims were treated as made by beneficiaries alleging interference with the trusts, they had to be made, as the Three Defendants contended, by the trustees and not by the beneficiaries. They relied on the fact that the plaintiffs had not obtained the Court’s leave to bring the claim and had not established that special circumstances existed explaining why the trustees could not bring the proceeding. In other words they contended that to the extent that the plaintiffs’ claims were trusts claims they were not validly constituted.

The Three Defendants relied on the absence of allegations in the plaintiffs’ pleadings against the trustees, or of any request by a beneficiary for the trustees to institute proceedings. They did not plead or produce evidence of any disagreement or deadlock between the trustees or any control being exerted over them to prevent them from acting in accordance with their duties. There was no evidence that the National Executive had interfered in the administration of the trusts.

On the issue of ‘special circumstances’, the plaintiffs relied on the statement of Gleeson CJ, Gummow and Hayne JJ in Alexander v Perpetual Trustees WA Ltd that:

In Ramage v Waclaw, Powell J reviewed many of the authorities, including the judgment of James LJ in Sharpe v San Paulo Railway Co, which support the proposition that, where relief is sought in the equitable jurisdiction of the Supreme Court against a third party, a beneficiary may sue in his own name, joining as defendants the trustee and any other beneficiaries, but only where there are ‘special circumstances’. One reason for this restriction, given by James LJ in Sharpe, is the avoidance of the vexation of the third party by multiple suits. Powell J held that the ‘special circumstances’ were not confined to collusion between the trustee and the third party, or the insolvency of the trustee. But the general principle is that stated by Scott:

The Victorian Branch membership roll had been tainted by a significant branch-stacking operation, and the State Conference delegates, and the Administrative Committee and Public Office Selection Committee, had been elected on the basis of that tainted roll, making it inappropriate that they take part in the preselections.

The Three Defendants also submitted that the presumption of regularity supported the validity of the Administration Resolution because it entitled the assumption to be adopted that the Required Opinion had been formed.

The defendants submitted that the Preselection Resolution was also supported by the National Executive’s plenary powers in cl 16(d), which were additional to the preselection power contained in cl 16(f)(iii). The National Executive, in the exercise of its plenary powers, has frequently undertaken State preselections, with short nomination periods.[276] It was not limited in conducting preselections by the procedures contained in the Victorian Branch Rules.[277] Mr Head’s evidence that he did not know of any time that the National Executive had acted as it did in the present instance without the agreement or request of the Administrative Committee of the Branch concerned did not support the existence of any established practice or understanding about the reach of the plenary power.[278] It was appropriate for the new seat of Hawke to be treated as a safe seat and to be included in the preselections and three candidates had nominated in the time allowed.
[276]Jackson v Bitar [2011] VSC 11.
[277]Ibid [8].
[278]Asmar Court Book, 300; Asmar Transcript, 359.

The defendants submitted that the purpose recited in the Preselection Resolution was not an improper purpose. The original Administration Resolution contemplated that the National Executive would conduct preselections in Victorian seats for the next federal election, an election which could have been called within a few months of 4 May 2021. Because of this possibility, by that time, the ALP had commenced to conduct preselections in other branches and other political parties were also conducting preselections.

The plaintiffs did not identify evidence which established that a sufficient number of the National Executive were motivated by, or had acted on, the asserted improper purposes. There was no warrant to draw a Jones v Dunkel inference.

The passing of the Preselection Resolution was to be viewed in the context that the Administration Resolution had given the National Executive the conduct of the Victorian Branch’s affairs, including conducting preselections. The new procedures to ensure the integrity of the membership roll had not been in place long enough to permit the Interim Governance Committee to conduct the preselections. The text messages between members of the National Executive demonstrated a perfectly proper political process at work within a political party. The Preselection Resolution was a political party acting for one of the purposes arranging to nominate members to stand for political office, which was one of the reasons for its existence.

Mr Albanese’s letter of 2 May 2021, requesting the National Executive to conduct the preselections, explained why he wanted them to occur and did not reveal any improper purpose.

The Three Defendants supported by the other Defendants contended that judicial review grounds such as improper purpose and unreasonableness did not apply to the actions of a voluntary unincorporated association such as the ALP. It was not exercising public power or performing public duties. They submitted that Lewis v Heffer, like other English cases, involving challenges to decisions of political parties or disputes within them, was a contract case.

Analysis of the challenges to the Preselection Resolution

I do not consider that the plaintiffs’ challenges to the Preselection Resolution have been established. They have not proved that the National Executive did not form the Required Opinion when passing the Preselection Resolution. The Preselection Resolution did recite that the National Constitution had been contravened, which was a precondition for the exercise of the power contained in cl 16(f)(iii). That contravention was of cl 35 which concerned Membership Recruitment. The Preselection Resolution was also supported by the plenary power in cl 16(d).

The Administration Resolution of 16 June 2020 foreshadowed that the National Executive would conduct the preselections for federal seats for the forthcoming federal elections. In his letter of 2 May 2021, Mr Albanese, the ALP’s Federal Parliamentary Leader, requested that this occur in circumstances where other Branches were conducting preselections as were other parties. The election could have been called at any time.

The texts between National Executive members demonstrated internal political party discussions about preselection without any purpose to favour one group over another. They revealed that the proposal to hold preselections was raised and was discussed by representatives of different interest groups or factions. Discussions and debates occurred within factions and larger blocs, with negotiations and discussions occurring. The picture presented by this evidence is of party political processes at work.

The Administrators’ Final Report made clear that critical work to end branch stacking in the Victorian Branch remained and included the introduction of new integrity rules about becoming a member of the Party and joining the Branch and renewing memberships, how membership fees could be paid, the recording of attendances at branch meetings and the establishing of a new membership database of genuine members to minimise the risk of further branch stacking. The plaintiffs did not present evidence that when passing the Administration Resolution, the National Executive was influenced by an improper purpose or engaged in illogical, irrational or unreasonable decision making. The onus of establishing those grounds lay with the plaintiffs and in my opinion they have not been established.

The short period for nominations that the National Executive allowed in the Preselection Resolution provided was similar to the periods it had allowed in some previous preselections. Despite the short nomination period allowed in the new seat of Hawke, three candidates were able to nominate for preselection. When the National Executive passed the Preselection Resolution, it was possible that the next federal election could have been called at any time.

For reasons that I gave when considering the Administration Resolution, I do not consider that when conducting a preselection under cls 16(f)(iii) or 16(d), that the National Executive was restricted by any limitation of the kind that Riordan J envisaged in Setka v Carroll.

The National Executive was not required to apply the Victorian Branch Rules for conducting preselections when it exercised the power conferred by cl 16(f)(iii). The circumstances differed from those in Setka v Carroll, where the power to expel a member was in issue. In this case, cl 16(f)(iii) gave the National Executive power to conduct preselections when it had formed the Required Opinion. That power, unlike the exercise of the power contained in cl 16(d), was not subject to the limitations in the exercise of the power contained in the Victorian Branch Rules. In any event, the preselection processes contained in those Rules were not available because the Public Office Selection Committee and the Administrative Committee had been suspended. Ms Asmar’s evidence suggested that the Public Office Selection Committee could have recommenced functioning very quickly. However, the integrity of the Branch’s membership records was in doubt and that would have put in question whether persons wishing to nominate for preselection or participate as an elector in the preselection were genuine members. Therefore, it would have been impractical for the National Executive to carry out the preselections under the procedures contained in the Victorian Branch Rules. Accordingly, I also consider that the National Executive had power to pass the Preselection Resolution under the power contained in cl 16(d). Because of the circumstances following the National Executive’s intervention in the Victorian Branch, including the suspension of committees and the doubt over the integrity of membership records, the National Executive’s plenary power contained in cl16(d), if relied on to conduct preselections, was not limited by the terms of the preselection power contained in the Victorian Branch Rules in the sense discussed in Setka v Carroll.

For those reasons, if I had found the issue to be justiciable, I would have dismissed the plaintiffs’ challenge to the Preselection Resolution.

Discretionary Grounds

I have concluded that the plaintiffs’ challenges to the Resolutions, with the exception of the trusts claims, are not justiciable and, in any event, do not succeed. But, I will state my view on the defendants’ submission that the plaintiffs should, in any event, be refused remedies in the exercise of the Court’s discretion because they delayed in commencing this proceeding with resulting prejudice to the ALP and because they did not use the available internal remedies under the Victorian Branch Rules and the National Constitution. The defendants argued that, to the extent to which the plaintiffs challenged the entire National Executive intervention and not just the Preselection Resolution, they had delayed inexplicably in bringing this proceeding. The National Executive’s intention to conduct preselections for the next federal election was recorded in the Administration Resolution of 16 June 2020, but this proceeding was not commenced until May 2021. Granting relief now would cause serious prejudice to the ALP by undermining the vast amount of work undertaken to reform the Victorian Branch’s activities. The plaintiffs ‘sat on their hands’ until May 2021.

The plaintiffs disputed that they should be denied remedies or that they had delayed in commencing proceedings.

Analysis of discretionary considerations

If I had otherwise found that the plaintiffs were entitled to remedies, I would have granted the remedies despite the delay on which the defendants rely. While the Administration Resolution did foreshadow that the National Executive would conduct preselections, the plaintiffs did not know until 4 May 2021 the manner in which they would do so, or the time that they would allow for nominations. The plaintiffs’ challenge to the Preselection Resolution carried with it a challenge to the Administration Resolution, but it was the Preselection Resolution that precipitated their challenge. Commencing a significant court action is no small step and I do not see why the plaintiffs should not have waited until the National Executive’s intervention led to the Preselection Resolution, that the plaintiffs considered particularly affected their interests and justified the commencement of this proceeding.

Moreover, I do not see why the plaintiffs’ success in this proceeding would undermine all of the Administrators’ work. Their Final Report records that around 1700 members were removed from the members’ roll and other steps were taken to strengthen its integrity. The defendants did not explain why those reforms will not endure.

I do not consider that any of the internal remedies which might be available through the Party Monitor, the Disputes Tribunal or the National Appeals Tribunal were appropriate to deal with the claims the plaintiffs made. It is not clear that any of those bodies could have dealt with the plaintiffs’ challenges to the validity of the Resolutions. Those challenges, if found to be justiciable, raised issues appropriate to be dealt with by this Court. Then there is the fact that the National Appeals Tribunal can only make recommendations to the National Executive, whose resolutions are the subject of this litigation. The National Appeals Tribunal cannot hear appeals ‘until all practicable avenues of appeal have been exhausted under the rules of the relevant state branch’ and can only make recommendations and not enforceable rulings.

The Plaintiffs’ Application for Representative Orders

There is a final matter to consider. By amended summons the plaintiffs seek orders that the first named plaintiff be permitted to sue in a representative capacity on behalf of all individual members of the Australian Labor Party Victorian Branch and members of the affiliated trade unions of the Party. They also seek an order that the second plaintiff, Hiba Salem, be permitted to sue in a representative capacity on behalf of all members of the Party’s Administrative Committee as at 16 June 2020.

Rule 18.02 states:

A proceeding may be commenced and, unless the Court otherwise orders, continued, by or against any one or more persons having the same interests as representing some or all of them.

Rule 18.04 states:

(1)A judgment given or an order made in a proceeding to which this Order applies shall bind the parties and all persons as representing whom the parties sue or are sued, as the case may be.
(2)The judge or order shall not be enforced against a person not a party except by leave of the Court.

The question then is whether the persons whom Ms Asmar and Ms Salem seek to represent have the same interest and whether the Court should exercise its discretion to make such an order.

The relevant test was discussed by the High Court in Carnie v Esanda Finance Corporation Ltd.[279] The test accepted by the Court was:

The test for determining whether an action is within the scope of [the rule] is whether the plaintiff and the members of the represented class have a community of interest in the determination of substantial issue of law or fact.[280]

[279](1995) 182 CLR 398.

[280]Ibid at 408 (Brennan J) and at 430 (McHugh J).

The parties do not need to have a common view about the common issue, nor do they need to have a common grievance. This matter was dealt with by Kaye J in Clark v University of Melbourne[281] in the following terms:

I adopt comments made by Megarry J in John v Rees in relation to a plaintiff suing on his own behalf and on behalf of all other members of an unincorporated party where his Lordship said:
Although there is thus a clear common interest between all the members in having the issue determined, they may be far from united in the way they wish it to be resolved. Some may support one faction, some another. But if a named parties to the action together put forward every view that is seriously advanced, I cannot see that any real harm is done to a person who is part in the action. It is merely that he is represented by the plaintiff, even if the plaintiff is supporting a different cause, provided that there is a defendant that does stand for the cause espoused by the person being represented: Actions are decided by reference to justice according to law, and not by counting heads. The remedy for someone who is not consoled by this thought is, as Sir George Jessel MR held in Wilson v Church and as James LJ pointed out in Watson v Cave (No 1), for him to apply to be joined as a defendant. Alternatively, he may be able to procure an order, made under Order 15, R12, whereby he will be represented by a defendant.
It seems to me that the important thing is to have before the Court, either in person or by representation, all who will be affected: and provided that the issue will be fairly argued out, a mathematical precision in securing that each side is shown as representing the right number of supporters is of little moment.

[281][1978] VR 457 at 477.

The defendants opposed the order saying that it was not necessary. They also relied on the fact that the order may be misunderstood and persons who do not share the views of the plaintiffs may not be happy with it. While this may be understandable, is not relevant to the exercise of the discretion to make a representative order.

I note that in Burton v Murphy, where the plaintiffs sued on behalf of and representing all members of the Australian Labor Party (State of Queensland), except the defendants, personally and as trustees of property belonging to the Australian Labor Party (State of Queensland), the defendants were persons who had accepted appointments as members of an interim administrative committee following the Federal intervention.

In my opinion, in the exercise of discretion, representative orders similar to those sought in the summons should be made in respect of the first plaintiff. They will ensure that all members of the Victorian Branch and members of affiliated unions of the Victorian Branch will be bound by the Court orders.

I will also make the orders sought in respect of the second plaintiff, Ms Hiba Salem, as representing the members of the Administrative Committee as 16 June 2020. Although they will be members of the ALP, because they form an important group in the Victorian Branch with separate interests, it is appropriate that they are subject to separate representative orders.

In both cases, I will exclude from the effect of the representative order persons who are defendants in the proceeding.

Overall Conclusion

The plaintiffs’ proceeding is dismissed. I will hear the parties about any other orders that may be sought.

SCHEDULE OF PARTIES

BETWEEN:

DIANA ASMAR in her capacity as Secretary of the Health Workers Union Victoria No 1 Branch T/A the Health Workers Union...................................................................................................................... First Plaintiff

HIBA SALEM in her capacity as Delegate of the Victorian Branch of the Australian Labor Party’s Administrative Committee.......................................................................................................... Second Plaintiff

**************************************.................................................................................................. Third Plaintiff

MICK MYLES, on behalf of himself as a member of the Party and as a member of the Victorian Divisional Branch of the Construction and General Division of the Construction, Forestry, Maritime, Mining and Energy Union (‘CFMMEU Construction and General Division Victoria’), and in a representative capacity on behalf of the CFMMEU Construction and General Division Victorian and its members........................... Fourth Plaintiff

BEN DAVIS, on behalf himself as a member of the Party and as a member of the Victorian Branch of the Australian Workers’ Union (‘AWU Victoria’), and in a representative capacity of AWU Victoria and its members........................................................................................................................................... Fifth Plaintiff

PAUL HEALY, on behalf of himself as a member of the Party and as a member of the Victorian No 2 Branch of the Health Services Union (‘HSU Victoria 2’), and in a representative capacity on behalf of HSU Victoria 2 and its members............................................................................................................................... Sixth Plaintiff

EARL SETCHES, on behalf of himself as a member of the Party and as a member of the Victorian branch of the Plumbing Division of the Communications, Electrical. Electronic Energy, Information Postal, Plumbing and Allied Services Union of Australia (‘CEPU Pluming Division Victoria’), and in a representative capacity on behalf of CEPU Pluming Division Victoria and its members.................................................... Seventh Plaintiff

**************************************................................................................................................. Eighth Plaintiff

PETER MARSHALL, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the United Firefighters Union (‘UFU Victoria’) and in a representative capacity on behalf of UFU Victoria and its members............................................................................................................................. Ninth Plaintiff

PAUL CONWAY, on behalf of himself as a member of the Party and as a member of the Victoria branch of the Australasian Meat Industry Employees Union (‘AMIEU Victoria’), and in a representative capacity on behalf of AMIEU Victoria and its members.............................................................................................. Tenth Plaintiff

SHANE STEVENS, on behalf of himself as a member of the Party and as a member of the Victorian Divisional Branch of the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy union (‘CFMMEU Victoria’), and in a representative capacity on behalf of CFMMEU Victoria and its members.................................................................................................................................... Eleventh Plaintiff

LUBA GRIGOROVITCH, as a member of the Party and as a member of the Victorian Branch of the Australian Rail, Tram and Bus Industry Union (‘RTBU Victoria’), and in a representative capacity on behalf of RTBU Victoria and its members............................................................................................................ Twelfth Plaintiff

The United Firefighters’ Union of Australia.......................................................................... Thirteenth Plaintiff

and

The Honourable ANTHONY ALBANESE, in his capacity as a member of the National Executive of the Australian Labor Party................................................................................................................. First Defendant

Senator TIM AYRES, in his capacity as a member of the National Executive of the Australian Labor Party.................................................................................................................................................. Second Defendant

STEVEN BAKER, in his capacity as a member of the National Executive of the Australian Labor Party.. Third Defendant

NICK CHAMPION, in his capacity as a member of the National Executive of the Australian Labor Party.................................................................................................................................................. Fourth Defendant

KATE DOUST, in her capacity as a member of the National Executive of the Australian Labor Party....... Fifth Defendant

GERARD DWYER, in his capacity as a member of the National Executive of the Australian Labor Party. Sixth Defendant

DAVID GRAY, in his capacity as a member of the National Executive of the Australian Labor Party.. Seventh Defendant

ROSE JACKSON, in her capacity as a member of the National Executive of the Australian Labor Party Eighth Defendant

TIM JACOBSON, in his capacity as a member of the National Executive of the Australian Labor Party.. Ninth Defendant

GRAEME KELLY, in his capacity as a member of the National Executive of the Australian Labor Party. Tenth Defendant

Senator SUE LINES, in her capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................... Eleventh Defendant

TARA MORIARTY, in her capacity as a member of the National Executive of the Australian Labor Party................................................................................................................................................. Twelfth Defendant

BOB NANVA, in his capacity as a member of the National Executive of the Australian Labor Party Thirteenth Defendant

MICHAEL O’CONNOR, in his capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................ Fourteenth Defendant

MICHAEL RAVBAR, in his capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................... Fifteenth Defendant

AMANDA RISHWORTH, in her capacity as a member of the National Executive of the Australian Labor Party.............................................................................................................................................. Sixteenth Defendant

WENDY STREETS, in her capacity as a member of the National Executive of the Australian Labor Party.......................................................................................................................................... Seventeenth Defendant

SHANNON THRELFALL-CLAREK, in her capacity as a member of the National Executive of the Australian Labor Party and in her capacity as a Trustee under rr 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules...................................................................................................................... Eighteenth Defendant

Senator RAFF CICCONE, in his capacity as a member of the National Executive of the Australian Labor Party........................................................................................................................................... Nineteenth Defendant

SUSIE BYERS, in her capacity as a member of the National Executive of the Australian Labor Party and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party, and in her capacity as a Trustee under rr 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules... Twentieth Defendant

LINDA WHITE, in her capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party Twenty-First Defendant

**************************************.............................................................................. Twenty-Second Defendant

MICHAEL DONOVAN, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party....................................................................................................................................... Twenty-Third Defendant

LLOYD WILLIAMS, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party..................................................................................................................................... Twenty-Fourth Defendant

JAMES MCWHINNEY, in his capacity as Trustee under Rule 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules................................................................................................... Twenty-Fifth Defendant

LABOR SERVICES & HOLDINGS PTY LTD, in its capacity as Trustee under Rules 21.3 of the Australian Labor Party Victorian Branch Rules........................................................................................ Twenty-Sixth Defendant

[2021] VSC 672

19 October 2021