Australian Democrats WA Division Inc & Anor v Australian Democrats Vic Inc & Ors

[2002] HCATrans 421

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P50 of 2001

B e t w e e n -

AUSTRALIAN DEMOCRATS WA DIVISION INC

First Applicant

DAVID EDWARD CHURCHES

Second Applicant

and

AUSTRALIAN DEMOCRATS VIC INC

First Respondent

AUSTRALIAN DEMOCRATS (SOUTH AUSTRALIAN DIVISION) INC

Second Respondent

AUSTRALIAN DEMOCRATS (ACT DIVISION) INC

Third Respondent

ROBERTS LEONARD DAWSON and ARTHUR CHESTERFIELD‑EVANS

Fourth Respondents

ANTHONY ARTHUR WALTERS

Fifth Respondent

KEVIN CHARLES ANDERSON

Sixth Respondent

CHERYL KERNOT

Seventh Respondent

MEG HEATHER LEES

Eighth Respondent

ANTHONY CHARLES FOUNTAIN

Ninth Respondent

KEITH DOUGLAS LEES

Tenth Respondent

HEATHER JOYCE SOUTHCOTT

Eleventh Respondent

JOHN GORDON EVANS

Twelfth Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 12.07 PM

Copyright in the High Court of Australia

MR M.J. McCUSKER, QC:   May it please the Court, I appear with my learned friend, MR J.J. EDELMAN, for the applicant.  (instructed by Goldfinch & Co)

MR C.P. SHANAHAN:   May it please the Court, I appear for the respondents.  (instructed by Slater & Gordon)

GLEESON CJ:   Yes, Mr McCusker.

MR McCUSKER:   Your Honours, although a number of matters have been raised as special leave points, the matter on which I wish to concentrate is the question which may be put in terms of whether the principle stated in Metwally’s Case, that a party is bound by his case, means that a plaintiff who is a respondent to a summary judgment application must raise in pleading or argument any arguable case available on the evidence, failing which, even if the evidence discloses a reasonable cause of action to which there is no defence on the merits, summary judgment will be given, or where such evidence is before the Court, summary judgment should not be given but the plaintiff invited to amend the pleading.

Your Honours, in this case a principle issue which was raised by the affidavit of the second applicant but which was not, in the view of both the Master at first instance and the Full Court, adequately raised on the pleadings was whether there had been a wrongful expulsion of the second applicant from the party by reason of his having not been given a proper opportunity to be heard.

It is true that he was present at least for part of the time when the meeting which was convened to consider expulsion was being held but on his affidavit – and could I refer you there to supplementary application book at page 64 – he refers there to the affidavit of Mr Evans which was filed in support of the summary judgment application and the affidavit of Mr McLaren which refers to the substance of the complaint on the basis of which expulsion was being considered.  At page 64 of the supplementary application book, referring to Mr McLaren’s affidavit, he refers:

to reasons for my alleged expulsion from the Australian Democrats.  I have never heard these charges before.  In fact I have never found out why I was expelled and I have never seen any charge of wrongdoing.  Alleged evidence for the hearing consisted of my name on the front cover of a book.  While I was given the opportunity to be heard, what could I say except, “what are the charges and where is the evidence?”

On that basis, your Honours, we say that clearly before the court on the summary judgment application, if not as clearly pleaded, an issue was raised as to whether or not there had been a wrongful expulsion by reason of breach of natural justice.  The facts deposed to in paragraph 29 of Mr Churches’ affidavit were not facts which were controverted by any other material before the Court.

The evidence of Mr McLaren which appears at supplementary application book volume 2, page 282, was that the complaint when the expulsion hearing was convened was threefold and although he deposes to the fact that:

In 1994, if a complaint was received seeking the expulsion of a member . . . One month’s notice of the meeting was given together with full details –

He does not depose to the fact that such notice was ever given to the second applicant or the first applicant.  Mr McLaren annexes the minutes of the expulsion meeting, and that appears at page 321 of that same volume, but those minutes do not disclose that Mr Churches was ever informed of the charges against him.  At page 320 it would appear, from the minute at least, that Mr Churches might not have been present when the case to answer against him was put.  There is a reference to him being present at 12.22 pm but no reference to being present at 10.40 am when the presentation was made and the nature of the complaint explained to those present at the meeting.

McHUGH J:   What is the special leave application here, Mr McCusker?  You really have to deal with what Justice Kennedy says at 78 and 79 of the book, do you not?  They just exercised their discretion not to allow you to raise these matters.

MR McCUSKER:   They did, your Honour, but they did say in the face of authority, or some authority at least by way of observation or dicta in Lindon’s Case, that there are other authorities to the same effect elsewhere to the effect that because summary judgment is such ‑ ‑ ‑

McHUGH J:   I am sorry, I must have missed that.  Where is the reference to Lindon’s Case?

MR McCUSKER:   It is in our volume ‑ ‑ ‑

McHUGH J:   No, I thought you were saying that Justice Kennedy referred to it.

MR McCUSKER:   No, I am sorry, your Honour.  I was saying that the principle stated in Lindon’s Case, which I think are well accepted, is that the approach to a summary judgment application must be taken very cautiously and:

It is a serious matter to deprive a person of access to the courts –

as was put at page 544 of that decision.  That is why relief is sparingly provided.  Then, the second point made was:

To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.

McHUGH J:   Yes, but your claim now is that you were denied justice because you were not allowed to raise this claim of a denial of natural justice.

MR McCUSKER:   That is so, your Honour, yes.

McHUGH J:   The court gave its reasons in paragraph 46 for not allowing you to raise it at this late stage, two and a half years after the Master’s decision and a week before the hearing of the appeal.  What is so special about what the court said that it would warrant the grant of special leave to appeal?

MR McCUSKER:   We say this, your Honour:  it invites the court to state with some greater clarity the circumstances in which summary judgment will be given where on the material before the court there was an arguable cause of action to which there was on the face of the material no defence, the arguable cause of action being that the expulsion was wrongful because of breach of natural justice.

It is true, as your Honour has pointed out, that the court here exercised its discretion but the question is whether this is an appropriate exercise of discretion despite the lapse of time.  If we go back to the hearing before the Master, the matter was truly before the Master, that is, the affidavit material I have referred to of the second applicant, Mr Churches, and in the pleading, although it is not all that elegantly pleaded we must accept – it appears at supplementary application book volume 1, page 7.  At page 7, paragraph 16, there is a pleading that – certainly it is couched in the context of a “breach of the terms of the Constitution” but it is a plea that there was a purported expulsion:

of members of the First Plaintiff including but not limited to, the Second Plaintiff, from the Australian Democrats –

So there is a clear pleading that the purported expulsion was not just of the first plaintiff but of all members of the first plaintiff, including the second plaintiff.

McHUGH J:   Yes, but it is put in terms of “breach of the terms of the Constitution”.

MR McCUSKER:   I appreciate that, your Honour, but at paragraph 19 at page 8 it is then pleaded, again in terms of a “breach of the Constitution” I accept, that – and it turns to over to page 9, paragraph 19(b):

Further, in any event, such decisions were not (in the terms of the Constitution) proper and reasonable in that:

(i) there was no valid or just ground for the decision –

but the important point –

(ii) the First Plaintiff was not given any (or any reasonable) opportunity to be heard in its defence.

So, although it is not well pleaded, there was before Master Ng an assertion that there was an expulsion, as appears from paragraph 16, of the members of the first plaintiff, including the second plaintiff, Mr Churches, and at paragraph 19 the assertion that – it is true it says:

the “First Plaintiff was not given any (or any reasonable) opportunity to be heard in its defence.

But when one reads that together with the affidavit of Mr Churches, it is clear that there is, in effect, an assertion – in substance, an assertion that Mr Churches, who was one of the members expelled, was given no proper opportunity to be heard.

It is our submission, based on the observations made by Justice Kirby in this Court in Lindon, that the case that there should be a departure from the principle stated in Metwally, which was that a party is bound by the case pleaded, in effect.  In the case of a summary judgment application the tribunal at first instance and again on appeal should consider all of the material before the court and rather than grant summary judgment should at least give the opportunity to the plaintiff to plead its case in a way which reflects the cause of action which appears from the material before

the court.  That is the essential point that we say is a point which warrants a grant of special leave in this case.

GLEESON CJ:   Thank you, Mr McCusker.

MR McCUSKER:   May it please, your Honour.

GLEESON CJ:   We do not need to hear you, Mr Shanahan.

The decision of the Full Court of the Supreme Court of Western Australia in this matter turned on the application of well‑established principles to the facts and circumstances of the case and, in addition, there is insufficient reason to doubt the correctness of that decision to warrant a grant of special leave and the application is refused with costs.

AT 12.19 PM THE MATTER WAS CONCLUDED