Australian Democrats WA Division Inc v Australian Democrats Vic Inc

[2001] WASCA 267

AUSTRALIAN DEMOCRATS WA DIVISION INC & ANOR -v- AUSTRALIAN DEMOCRATS VIC INC & ORS [2001] WASCA 267

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 267
Court:	THE FULL COURT (WA)
Case No:	FUL:10/1998	Heard:	16 JUNE & 27 JULY 2000
Coram:	KENNEDY J WALLWORK J MURRAY J	Delivered:	30/08/01
No of pages:	31	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	AUSTRALIAN DEMOCRATS WA DIVISION INC DAVID EDWARD CHURCHES AUSTRALIAN DEMOCRATS VIC INC AUSTRALIAN DEMOCRATS (SOUTH AUSTRALIAN DIVISION) INC AUSTRALIAN DEMOCRATS (ACT DIVISION) INC ROBERT LEONARD DAWSON ARTHUR CHESTERFIELD-EVANS ANTHONY ARTHUR WALTERS KEVEN CHARLES ANDERSON CHERYL KERNOT MEG HEATHER LEES ANTHONY CHARLES FOUNTAIN KEITH DOUGLAS LEES HEATHER JOYCE SOUTHCOTT JOHN GORDON EVANS
Catchwords:	Associations and clubs Unincorporated national political party Whether acting in breach of its constitution Whether State incorporated association including in its name the name of the national party had exclusive use of that name in Western Australia Whether duty of care owed by national party to State incorporated association and to a member of that association Role of State incorporated body
Legislation:	Nil
Case References:	Nil Abbott v Sullivan [1952] 1 All ER 266 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Amey v Fifer [1971] 1 NSWLR 685 Anderson v Effex Seven (1998) 10 ANZ Insurance Cases 60-424 Attorney-General v Teece (1904) 4 SR (NSW) 347 Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 Baird v Wells (1890) 44 Ch D 661 Baldwin v Everingham [1993] 1 Qd R 10 Banfield v Wells-Eicke [1970] VR 481 Bond v Larobi Pty Ltd (1992) 6 WAR 489 Bonsor v Musicians' Union [1956] AC 104 Boral Gas (NSW) Pty Ltd v Magill (1995) 32 NSWLR 501 Breen v Amalgamated Engineering Union [1971] 2 QB 175 Bride v Peat Marwick Mitchell [1989] WAR 383 Cameron v Hogan (1934) 51 CLR 358 Campbell v Thompson [1953] 1 QB 445 Carlton Cricket & Football Social Club v Joseph [1970] VR 487 Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 Re Civil Service Association of Alberta & Farran (1976) 68 DLR (3d) 338 Clarke v Australian Labor Party (1999) 74 SASR 109 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Connell v Reynolds (1993) 9 WAR 27 Daly v Gallagher [1925] St R Qd 1 D'Arcy v Adamson (1913) 29 TLR 367 Dawkins v Antrobus (1881) 17 Ch D 615 Edgar v Meade (1916) 23 CLR 29 In the Marriage of Espie (1983) 9 Fam LR 123 Finlayson v Carr [1978] 1 NSWLR 657 Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 Fisher v Keane (1879) 11 Ch D 353 Gibson v Wellington Federated Seamen's Union [1935] NSLR 664 Glorie v WA Chip & Pulp Co Pty Ltd (1981) 55 FLR 310 Greenwich Healthcare National Health Service Trust v London & Quadrant Housing Trust [1998] 1 WLR 1748 Hall v Job (1952) 86 CLR 639 Hawick v Flegg (1958) 75 WN (NSW) 255 Healey v Ballarat East Bowling Club [1961] VR 206 The Hibernian Dance Club v Dyan Murray [1996] EWCA 698 Hill v King (1993) 31 NSWLR 654 Hill v Luton Corporation [1951] 2 KB 387 Hogg v Scott [1947] KB 759 Ideal Films Ltd v Richards [1927] 1 KB 374 Irish Shipping Ltd v Commercial Union Assurance Co PLC [1991] 2 QB 206 In re JL Young Manufacturing Co Ltd [1900] 2 Ch 753 John v Rees [1970] 1 Ch 345 Re Juson Pty Ltd [1992] 8 WAR 13 Kean v McGivan [1982] FSR 119 Kepert v The West Australian Pearlers' Association Inc (1926) 38 CLR 507 Labouchere v Earl of Wharncliffe (1879) 13 Ch D 346 Lawlor v Union of Post Office Workers [1965] Ch 712 Lee v Showmen's Guild of Great Britain [1952] 2 QB 329 Lewis v Heffer [1978] 1 WLR 1061 Makin v Gallagher [1974] 2 NSWLR 559 McKinnon v Grogan (1974) 1 NSWLR 295 Meagher v Stephenson (1993) 30 NSWLR 736 M Michaels (Furriers) Ltd v Askew (1983) 127 Sol Jo 597 Nagle v Feilden [1966] 2 QB 633 Navarro v Spanish-Australian Club of Canberra ACT Inc (1987) 87 FLR 390 Nurses Memorial Centre of South Australia Inc v Beaumont (1987) 44 SASR 454 Perre v Apand Pty Ltd (1999) 198 CLR 180 Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR 121 Polsinelli v Marzilli (1987) 60 OR (2d) 713 Pontin v Wood [1962] 1 QB 594 In re Portuguese Consolidated Copper Mine Ltd (1889) 43 Ch D 160 Renowden v McMullin (1970) 123 CLR 584 Roche v Sherrington [1982] 1 WLR 599 Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV [1984] 1 WLR 271 Sharples v O'Shea [1999] QSC 190 In re Sick & Funeral Society of St John's Sunday School, Golcar [1973] 1 Ch 51 Skerret v Oliver (1896) 23 R 468 Smyth v Darley (1849) 2 HL C 789; 9 ER 1293 In re Thom (1918) 18 SR (NSW) 70 Thornley v Heffernan, unreported; SCt of NSW (Brownie J); 2722 of 1995; 25 July 1995 Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272 University of Wollongong v Metwally (1984) 158 CLR 447 Wenlock v Moloney [1965] 1 WLR 1238 White v Kuzych [1951] AC 585 Wood v Woad (1874) LR 9 Exch 190 Young v Ladies Imperial Club Ltd [1920] 2 KB 523

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : AUSTRALIAN DEMOCRATS WA DIVISION INC & ANOR -v- AUSTRALIAN DEMOCRATS VIC INC & ORS [2001] WASCA 267 CORAM : KENNEDY J

WALLWORK J
MURRAY J

HEARD : 16 JUNE & 27 JULY 2000 DELIVERED : 30 AUGUST 2001 FILE NO/S : FUL 10 of 1998 BETWEEN : AUSTRALIAN DEMOCRATS WA DIVISION INC

First Appellant (First Plaintiff)

DAVID EDWARD CHURCHES
Second Appellant (Second Plaintiff)

AND

AUSTRALIAN DEMOCRATS VIC INC
First Respondent (First Defendant)

AUSTRALIAN DEMOCRATS (SOUTH AUSTRALIAN DIVISION) INC
Second Respondent (Second Defendant)

AUSTRALIAN DEMOCRATS (ACT DIVISION) INC
Third Respondent (Third Defendant)

ROBERT LEONARD DAWSON
ARTHUR CHESTERFIELD-EVANS
Fourth Respondents (Fourth Defendants)

(Page 2)

ANTHONY ARTHUR WALTERS
Fifth Respondent (Fifth Defendant)

KEVEN CHARLES ANDERSON
Sixth Respondent (Sixth Defendant)

CHERYL KERNOT
Seventh Respondent (Seventh Defendant)

MEG HEATHER LEES
Eighth Respondent (Eighth Defendant)

ANTHONY CHARLES FOUNTAIN
Ninth Respondent (Ninth Defendant)

KEITH DOUGLAS LEES
Tenth Respondent (Tenth Defendant)

HEATHER JOYCE SOUTHCOTT
Eleventh Respondent (Eleventh Defendant)

JOHN GORDON EVANS
Twelfth Respondent (Twelfth Defendant)

Catchwords:

Associations and clubs - Unincorporated national political party - Whether acting in breach of its constitution - Whether State incorporated association including in its name the name of the national party had exclusive use of that name in Western Australia - Whether duty of care owed by national party to State incorporated association and to a member of that association - Role of State incorporated body

Legislation:

Nil

(Page 3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant (First Plaintiff) : Mr A J Goldfinch
Second Appellant (Second Plaintiff) : Mr A J Goldfinch
First Respondent (First Defendant) : Mr C P Shanahan
Second Respondent (Second Defendant) : Mr C P Shanahan
Third Respondent (Third Defendant) : Mr C P Shanahan
Fourth Respondents (Fourth Defendants) : Mr C P Shanahan
Fifth Respondent (Fifth Defendant) : Mr C P Shanahan
Sixth Respondent (Sixth Defendant) : Mr C P Shanahan
Seventh Respondent (Seventh Defendant) : Mr C P Shanahan
Eighth Respondent (Eighth Defendant) : Mr C P Shanahan
Ninth Respondent (Ninth Defendant) : Mr C P Shanahan
Tenth Respondent (Tenth Defendant) : Mr C P Shanahan
Eleventh Respondent (Eleventh Defendant) : Mr C P Shanahan
Twelfth Respondent (Twelfth Defendant) : Mr C P Shanahan

Solicitors:

First Appellant (First Plaintiff) : Goldfinch & Co
Second Appellant (Second Plaintiff) : Goldfinch & Co
First Respondent (First Defendant) : Slater & Gordon
Second Respondent (Second Defendant) : Slater & Gordon
Third Respondent (Third Defendant) : Slater & Gordon
Fourth Respondents (Fourth Defendants) : Slater & Gordon
Fifth Respondent (Fifth Defendant) : Slater & Gordon
Sixth Respondent (Sixth Defendant) : Slater & Gordon
Seventh Respondent (Seventh Defendant) : Slater & Gordon
Eighth Respondent (Eighth Defendant) : Slater & Gordon
Ninth Respondent (Ninth Defendant) : Slater & Gordon
Tenth Respondent (Tenth Defendant) : Slater & Gordon
Eleventh Respondent (Eleventh Defendant) : Slater & Gordon
Twelfth Respondent (Twelfth Defendant) : Slater & Gordon

(Page 4)

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Abbott v Sullivan [1952] 1 All ER 266
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Amey v Fifer [1971] 1 NSWLR 685
Anderson v Effex Seven (1998) 10 ANZ Insurance Cases 60-424
Attorney-General v Teece (1904) 4 SR (NSW) 347
Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493
Baird v Wells (1890) 44 Ch D 661
Baldwin v Everingham [1993] 1 Qd R 10
Banfield v Wells-Eicke [1970] VR 481
Bond v Larobi Pty Ltd (1992) 6 WAR 489
Bonsor v Musicians' Union [1956] AC 104
Boral Gas (NSW) Pty Ltd v Magill (1995) 32 NSWLR 501
Breen v Amalgamated Engineering Union [1971] 2 QB 175
Bride v Peat Marwick Mitchell [1989] WAR 383
Cameron v Hogan (1934) 51 CLR 358
Campbell v Thompson [1953] 1 QB 445
Carlton Cricket & Football Social Club v Joseph [1970] VR 487
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398
Re Civil Service Association of Alberta & Farran (1976) 68 DLR (3d) 338
Clarke v Australian Labor Party (1999) 74 SASR 109
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Connell v Reynolds (1993) 9 WAR 27
Daly v Gallagher [1925] St R Qd 1
D'Arcy v Adamson (1913) 29 TLR 367
Dawkins v Antrobus (1881) 17 Ch D 615
Edgar v Meade (1916) 23 CLR 29
In the Marriage of Espie (1983) 9 Fam LR 123
Finlayson v Carr [1978] 1 NSWLR 657
Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159
Fisher v Keane (1879) 11 Ch D 353
Gibson v Wellington Federated Seamen's Union [1935] NSLR 664
Glorie v WA Chip & Pulp Co Pty Ltd (1981) 55 FLR 310


(Page 5)

Greenwich Healthcare National Health Service Trust v London & Quadrant Housing Trust [1998] 1 WLR 1748
Hall v Job (1952) 86 CLR 639
Hawick v Flegg (1958) 75 WN (NSW) 255
Healey v Ballarat East Bowling Club [1961] VR 206
The Hibernian Dance Club v Dyan Murray [1996] EWCA 698
Hill v King (1993) 31 NSWLR 654
Hill v Luton Corporation [1951] 2 KB 387
Hogg v Scott [1947] KB 759
Ideal Films Ltd v Richards [1927] 1 KB 374
Irish Shipping Ltd v Commercial Union Assurance Co PLC [1991] 2 QB 206
In re JL Young Manufacturing Co Ltd [1900] 2 Ch 753
John v Rees [1970] 1 Ch 345
Re Juson Pty Ltd [1992] 8 WAR 13
Kean v McGivan [1982] FSR 119
Kepert v The West Australian Pearlers' Association Inc (1926) 38 CLR 507
Labouchere v Earl of Wharncliffe (1879) 13 Ch D 346
Lawlor v Union of Post Office Workers [1965] Ch 712
Lee v Showmen's Guild of Great Britain [1952] 2 QB 329
Lewis v Heffer [1978] 1 WLR 1061
Makin v Gallagher [1974] 2 NSWLR 559
McKinnon v Grogan (1974) 1 NSWLR 295
Meagher v Stephenson (1993) 30 NSWLR 736
M Michaels (Furriers) Ltd v Askew (1983) 127 Sol Jo 597
Nagle v Feilden [1966] 2 QB 633
Navarro v Spanish-Australian Club of Canberra ACT Inc (1987) 87 FLR 390
Nurses Memorial Centre of South Australia Inc v Beaumont (1987) 44 SASR 454
Perre v Apand Pty Ltd (1999) 198 CLR 180
Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR 121
Polsinelli v Marzilli (1987) 60 OR (2d) 713
Pontin v Wood [1962] 1 QB 594
In re Portuguese Consolidated Copper Mine Ltd (1889) 43 Ch D 160
Renowden v McMullin (1970) 123 CLR 584
Roche v Sherrington [1982] 1 WLR 599
Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV [1984] 1 WLR 271
Sharples v O'Shea [1999] QSC 190
In re Sick & Funeral Society of St John's Sunday School, Golcar [1973] 1 Ch 51
Skerret v Oliver (1896) 23 R 468
Smyth v Darley (1849) 2 HL C 789; 9 ER 1293
In re Thom (1918) 18 SR (NSW) 70


(Page 6)

Thornley v Heffernan, unreported; SCt of NSW (Brownie J); 2722 of 1995; 25 July 1995
Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272
University of Wollongong v Metwally (1984) 158 CLR 447
Wenlock v Moloney [1965] 1 WLR 1238
White v Kuzych [1951] AC 585
Wood v Woad (1874) LR 9 Exch 190
Young v Ladies Imperial Club Ltd [1920] 2 KB 523

(Page 7)

1 KENNEDY J: The Australian Democrats is a national political party. It was formed in 1977 as an unincorporated association of its members. Shortly afterwards, a State Division of the Australian Democrats was established in Western Australia and subsequently, on 27 July 1978, the first appellant was incorporated under the Associations Incorporation Act 1895 (WA). Divisions were also established in other States and in the Australian Capital Territory. In a number of States and in the Australian Capital Territory, similar incorporated associations were created.

2 In 1994, dissension developed amongst certain members of the Australian Democrats in this State, leading to the expulsion (which the appellants challenge) of a number of members of the first appellant, including the second appellant, from the Australian Democrats. Nearly three years later, the appellants instituted proceedings against the respondents, claiming the following relief -

1. A declaration that decisions by the respondents and their duly nominated delegates, made on July 30/31 1994:

(a) not to allow delegates from the first appellant to sit as members of the National Executive of the Australian Democrats;

(b) to expel members of the first appellant from the Australian Democrats; and

(c) to refuse to nominate and endorse candidates approved by the first appellant as candidates for the 1996 Federal election or any subsequent elections State or Federal and in particular in refusing to nominate and endorse the second appellant as a candidate for such elections

were void as in breach of the constitution.


2. An injunction to restrain the respondents themselves or by their servants or agents from allowing any candidates or members of parliament supported by them to use in Western Australia now or in the future the name in relation to their own position or candidature "Australian Democrat" or to use that name in any other place outside Western Australia with the intent that such persons are referred to "Australian Democrats" from Western Australia (sic).

3. An accounting by the respondents of all moneys received by them or on their behalf either individually or in their capacity as a State or Federal group of all moneys received in or for Western

(Page 8)

Australia from any source under the heading "Australian Democrats" during the relevant time.

4. An order that the respondents pay the first appellant all sums shown by such accounting to have been received.

5. Damages to the first appellant for passing off, breach of contract and false and misleading conduct.

6. Damages to the second appellant for negligence, such damages to include loss of opportunity to earn emoluments as a Federal Senator.

7. Such further or other relief as the Court considers just.

3 The respondents applied for summary judgment against the appellants and for orders striking out the appellants' statement of claim. The orders sought were made by a Master of this Court, who also dismissed the appellants' application for representative orders in relation to the fourth, fifth, sixth, seventh, eighth, ninth, tenth and twelfth respondents. The appellants have appealed against the decisions of the Master.

4 It should be said at the outset that the appellants' claims in these proceedings are based upon serious misconceptions of the terms and effect of the constitution of the Australian Democrats.

5 The Australian Democrats operate under a constitution which is augmented by regulations prescribed under cl 18 of the constitution. The majority of the regulations appear in italic type in the printed constitution as if they formed a part of it. The balance of the regulations are printed in the same document at the end of the constitution. It is convenient immediately to set out the more significant provisions in the constitution and in the regulations.

6 By cl 1.2 of the constitution, it is stated that the constitution identifies the principles governing the conduct of the Party's affairs and the bodies responsible for implementing them. All other Party documents are expressed to be subordinate to the constitution.

7 Clause 2 provides a number of definitions which are important for the present purposes. They are as follows:

"body" means a committee or officer of the Party at national, divisional or branch level;

(Page 9)

"branch" means a group of members within a division who conduct meetings at a local level;

"division" means the organisation of the members of the Party within each state and territory of Australia, unless otherwise provided for in this constitution;

"executive" means the national executive of the Party;

"member" means a person who is enrolled as a member of the Party;

"membership officer" means the national Membership Officer;

"Party" means the national organisation;

"party ballot" means a ballot open to all members of the Party who are qualified under this constitution;

"relevant governing body" in a national context means the National Executive, in a divisional context the governing body of the division, and in a branch context the members of the branch.

8 The detailed objectives of the Party are set out in cl 3.

9 Clause 4.1 of the constitution provides that the membership of the Australian Democrats is open to any person who is not expressly excluded from membership, is not a member of another Australian political party, is prepared to comply with the constitution, and pays the prescribed fee. There follows a proviso that the Party may reject an application on the ground that its acceptance would be against the Party's interests. Under the regulations, the reviewing of membership applications is the responsibility of each Division's executive or of such other body as the Division determines. An application is rejected if it is opposed by either the responsible divisional body or the National Management Committee within six weeks of its receipt by the Party, and that opposition is supported by the National Executive at its next meeting. Otherwise, or if it is approved by both the responsible divisional body and the National Management Committee, the application is accepted.

10 Clauses 4.1.9, 4.1.10 and 4.1.15 are regulations. Clause 4.1.9 provides that a member must have their membership enrolment continued or renewed by the membership officer according to the procedures specified in the regulations of the constitution and resolutions of the

(Page 10)

executive, provided only that the appropriate renewal fee has been paid to the Party in a manner specified by or acceptable to the executive.

11 By cl 4.1.10, a person ceases to be enrolled as a member if the financial status of their membership is more than 12 months in arrears with respect to their renewal fee, or if they have resigned from the Party, where such resignation is in writing and is signed by the member, or if they have been expelled from the Party pursuant to the provisions of the constitution.

12 By cl 4.1.15, in the event that the status of a person's membership enrolment needs to be determined, then the membership roll maintained by the membership officer in accordance with the requirements of the constitution and its regulations and relevant resolutions of the executive is conclusive.

13 By cl 4.2 of the constitution, the National Executive may expel from the Party any person who:

(a) is found by three-quarters of the National Executive to be acting against the interests or objectives of the Party;

(b) while a member of the Party retains or accepts membership in another political party provided that in this case any such person shall first be allowed one month to choose to resign either from the Party or from the other party.

14 By cl 4.2.1 (a regulation), a person who is expelled from the Party, or whose membership is rejected by the National Executive, is excluded from membership until otherwise determined by the National Executive.

15 By cl 4.3, persons excluded from membership of the Party may appeal against such exclusion as if they were members.

16 Clause 4.4 relevantly provides that a member shall be deemed to have immediately resigned membership without entitlement to appeal upon that member using the words "Democrat" or "Australian Democrat" (or any plural form thereof) or so describing himself as part of or in connection with electoral materials relating to the Federal, State or local elections in which he is not a duly endorsed candidate, or has not been given prior authorisation by the Party for that election. It shall not be necessary for such resignation to be formally accepted by the executive before becoming effective.

(Page 11)

17 The constitution established what is termed a Division Organisation as well as a National Organisation. As to the Division Organisation, cl 5 provides that the general membership of the Party in each Division shall -

(a) elect a Division Executive constituted in such a manner as the membership of that State shall determine,

(b) constitute, elect or ratify such regional or local organisations and office bearers as the members of that Division may determine,

(c) draw up and adopt a Division constitution which shall be amendable by the general membership of that division.

18 As to the National Organisation, cl 6.1 established the National Executive of the Party, comprising (a) the National President and two Deputy National Presidents, elected concurrently by ballot of all members, (b) the Leader and Deputy Leader of the Party in the House of Representatives, (c) the Leader and Deputy Leader of the Party in the Senate, (d) two representatives from each Division, elected concurrently by ballot of respective Division members. The National Executive has a quorum if nine voting members or their proxies are present.

19 There are six non-voting members of the National Executive, each of whom is appointed by the National Executive. They comprise the National Administrator, the National Secretary, the National Treasurer, the National Policy Coordinator, the National Journal Editor and the National Campaign Director.

20 Clause 6.4 provides, in respect of State representatives, that the two Division representatives on the National Executive shall be ex officio members of their Division Executive.

21 The notice of appeal in this matter is in a most unusual form. It sets out a number of the Master's "conclusions" and, in an argumentative fashion, follows each conclusion with the appellants' ground of appeal. The appellants' submissions did not accord with the notice of appeal and in some instances went well beyond its scope. In the circumstances, the course which I have adopted is to follow the Master's example and to consider each of the relevant paragraphs in the statement of claim in order. For convenience, a copy of the statement of claim is appended to these reasons.

(Page 12)

22 The appellants' statement of claim, dated 14 May 1997, pleads that the first appellant is an incorporated association pursuant to the Associations Incorporation Act, that the second appellant is a member of the first appellant and that at all material times he was a selected candidate, approved by the first appellant, for the Commonwealth Senate in the 1996 Federal election to run in Western Australia under the party name "Australian Democrats". As will appear, although the second appellant may have been a selected candidate approved by the first appellant for the Commonwealth Senate in the 1996 Federal election, that is not in accord with the requirements of the Australian Democrats constitution.

23 The first to sixth respondents are described in the statement of claim as follows:

The first respondent is a duly incorporated association registered in Victoria.

The second respondent is a duly incorporated association registered in South Australia

The third respondent is a duly incorporated association registered in the Australian Capital Territory.

The two fourth-named respondents are sued in their capacity as President and Vice President at the relevant time of the unincorporated association of members then known as "Australian Democrats NSW Division" and are sued in a representative capacity on behalf of all the members of that organisation at the relevant time.

The fifth respondent is sued in his capacity as President at the relevant time of the unincorporated association of members then known as "Australian Democrats Queensland Division" and is sued in a representative capacity on behalf of all the members of that organisation at the relevant time.

The sixth respondent is sued in his capacity as President at the relevant time of the unincorporated association of members then known as "Australian Democrats Tasmanian Division" and is sued in a representative capacity on behalf of all the members of that organisation at the relevant time.

(Page 13)

Somewhat surprisingly, the "relevant time" was defined as being "from 30 July 1994 to the date of judgment", which, in the circumstances, cannot be correct.

24 As to the remaining respondents, it is pleaded that, again during the relevant time, the seventh respondent was the Parliamentary Leader of the political party known as the Australian Democrats in the Senate, and held office on the National Executive of the Party; the eighth respondent was the Deputy Parliamentary Leader of the Australian Democrats in the Senate and held office on the National Executive of the Party; the ninth respondent was the National President of the Party and held office on the National Executive of the Party; the tenth respondent was the National Senior Vice President of the Party and held office on the National Executive of the Party; the eleventh respondent was the National Junior Vice President of the Party and held office on the National Executive of the Party; and the twelfth respondent was registered at the Western Australian Electoral Commission as the authorised officer of "Australian Democrats WA Division" and is sued in his capacity as the representative of all members of an unincorporated association known as "Australian Democrats WA Division". It is significant that the statement of claim acknowledges that there is an unincorporated association known as "Australian Democrats WA Division" which is an entity separate from the first appellant. The Divisions are the State and Territory bodies under the national constitution.

25 It is then pleaded that the first appellant, and the first to sixth respondents, at all material times, formed an unincorporated association known as "The Australian Democrats", which association carried on, and still carries on, the business of a national political party. There is not be found in the constitution of the Australian Democrats Party any basis for this plea. Indeed, it is quite inconsistent with the constitution, which defines a Division as the organisation of the members of the Party within each State or Territory, the national constitution not having otherwise provided.

26 Having set out various clauses in the constitution of the Australian Democrats Party, par 12 of the statement of claim alleges that the terms of the agreement between the first appellant and the respondents is contained in the national constitution of the Australian Democrats. There is, once again, no basis for this contention. Nowhere in the constitution is there any mention of an incorporated body having any role to play in the Party. Throughout the constitution the emphasis is continually placed upon the "members" of the Party, whether they be members of the Party within a

(Page 14)

State or Territory, or members of the Party as a whole. No incorporated body can be a member of the Party. Its members are "persons" which, in this context, must mean "natural persons".

27 Having set out in pars 13.1 to 13.4 various additional clauses of the constitution, par 13.5 goes on to plead that, by cl 11.2 of the constitution, the first appellant "was entitled (solely for Western Australia) to approve candidates for pre-selection in any Federal Election to stand as 'Australian Democrat' candidates in Western Australia". Clause 11.2, however, provides that no member may stand as a candidate for election to a National Parliament without the approval of the relevant Division Executive or a committee appointed by the relevant Division Executive or elected by the members in that Division. The Division Executive, by cl 5, is elected by the general members of the Party in the Division. No incorporated body is given any role to play in this process, and it is quite clear from the affidavits before us that the members of the incorporated body do not comprise the general membership of the Party in Western Australia. The plea in par 13.5 is without foundation.

28 Paragraph 14 pleads that, during the relevant time, and prior thereto, the first appellant was the registered owner in Western Australia of the name "Australian Democrats (WA Division) Inc", which name gave it the sole entitlement in Western Australia, for commercial and political purposes, to use and authorise the use of the name "Australian Democrats" in Western Australia and, during the relevant time, pursuant to cl 2 of the Constitution, it was, in the context of the Western Australian Division, the governing body of the Party. The significance of "registered owner" in par 14 is not apparent. The name of the first appellant is protected only to the extent that, under s 8 of the Associations Incorporation Act 1987 (WA), the Commissioner for Fair Trading is required not to incorporate an association under the Act by a name that, in the opinion of the Commissioner, is identical with a name by which an association in existence is already incorporated, or which resembles any such name in a manner likely to mislead the public.

29 The first appellant has no entitlement to the use of the name "Australian Democrats" in this State other than as part of its name. "Australian Democrats" was the name adopted by the Australian Democrats Party nationally prior to the incorporation of the first appellant and, subsequently, the Australian Democrats Party has become the owner of the registered trademark, "Australian Democrats", as well as the registered trademarks of three logos bearing that name. The first appellant has no power to prevent the Australian Democrats Party from

(Page 15)

using those trademarks. As to the plea in par 14 that, pursuant to cl 2 of the constitution of the Australian Democrats Party, the first appellant was, or is, in the context of the Western Australian Division, the governing body of the Party, cl 2 is merely a definition clause. It defines, amongst other expressions "relevant governing body". It is abundantly clear that, under the constitution, the relevant governing body in a divisional context is the Division Executive "constituted in such manner as the membership of the State shall determine" (cl 5). Clause 2 of the constitution cannot, as par 15 pleads, confer upon the first appellant the sole entitlement in Western Australia, for commercial and political purposes, to use and authorise the use of the name "Australian Democrats" in Western Australia.

30 The statement of claim goes on to plead in par 16 that, in breach of the terms of the constitution, on 30 and 31 July, a group of people purporting to be the National Executive of the Party, including delegates appointed by the first, second, third, fourth, fifth and sixth respondents, and the seventh, eighth, ninth, tenth and eleventh respondents in person in their capacity as office holders of the National Executive, but not including, as required by cl 6.1(i) (sic) of the constitution, any delegate from the first appellant, purported to expel members of the first appellant, including the second appellant, from the Australian Democrats "both in a National context and a Divisional context" and further refused to accept any representative of the first appellant, including the second appellant, to the National Executive where such issue of expulsion was to be discussed, and refused to allow those proffered delegates from the first appellant to vote on the issue.

31 Clause 6.1 (there is no cl 6.1(i)) does not confer any power on the first appellant to elect representatives to the National Executive. The clear requirement is that the two representatives from each Division are to be elected concurrently by ballot of the respective Division members. The affidavit of Mr J R McLaren, who at the time of swearing his affidavit was the Deputy President and President Elect of the Australian Democrats Party, explained that the first, second and third respondents, being incorporated bodies, are entitites separate from their respective Divisions which are established by, and operated in accordance with, the national constitution and regulations of the Australian Democrats Party. Those incorporated bodies did not, as the appellants alleged, appoint representatives to the National Executive. They were created to protect the name of the Party from its acquisition or use by business interests. Mr J G Evans, the twelfth respondent, deposed that the first appellant was incorporated by him for the same reason.

(Page 16)

32 It is convenient at this stage to refer to the constitution of the Western Australian Division of the Australian Democrats Party, which is confirmatory of the view which I have just expressed, although it is far from being an elegant document.

33 The constitution of the first appellant, in cl 2, defines "Party" as the national organisation of the Australian Democrats. "Division" is defined as the Division of the Party in Western Australia, and Divisional Council is defined as "the State Executive as laid down in the Party's National Constitution". In the event of any conflict between the constitution of the Division and that of the national constitution, cl 2 provides that the latter "shall have overriding authority". There is nothing to be found in the Division's constitution which gives the first appellant any power to override or to vary the rights of members of the Party in this State. Nor is there anything in its constitution which gives it the power to control the Division. Clause 6.2 provides that a general meeting or a special general meeting of the Division "may make recommendations of action to be taken by the Divisional Council on administrative, constitutional, policy or other matters or may initiate postal ballots, but may not decide policy matters or conduct elections".

34 Clause 7 provides as follows:

"7. Organisation

7.1 Subject to this Constitution, the Division shall be responsible for the overall administration of this Division.

7.2 There shall be a Divisional Council consisting of a Divisional President and two Divisional Vice-Presidents together with other voting office bearers and delegates as laid down in the bylaws.

7.3 The Divisional President, Divisional Vice-Presidents, Ombudsman and National Delegates shall be elected annually by members of the Division in a postal ballot.

7.4 The Divisional Council shall have the power to create any office deemed necessary and to approve its duties.

(Page 17)

7.5 The Divisional Council shall have the power to approve the acquisition of any property or estate as is deemed necessary for the efficient running of the Division.

7.6 At each annual general meeting an auditor shall be appointed to audit the books and financial statements of the Division for the ensuing financial year.

7.7 The State Parliamentary Leader and Deputy State Parliamentary Leader shall be elected annually by all members of the Division from elected members of the Party in the State Parliament. (Emphasis supplied)."

35 Clause 11 provides that all matters of policy shall be decided by members of the Division in a postal ballot as laid down in the national constitution. Nowhere does the constitution empower the first appellant to exercise the functions which the appellants claim.

36 The only challenge in par 16 of the statement of claim to the expulsion of the members of the first appellant by the National Executive is based upon the fact that there were no delegates from the first appellant on the National Executive at the time of the expulsions. The fact was that the purported "delegate" had not been appointed, as required, "concurrently by ballot of respective division members" (cl 6.1) but had been "elected" by the first appellant. As to the complaint that the group of people purporting to be the National Executive of the Party refused to accept any representative of the first appellant, including the second appellant, on the National Executive when the issue of expulsion was to be discussed, and refused to allow those proffered delegates from the first appellant to vote on the issue, they were not entitled to take part in the discussion in the National Executive in relation to the expulsions, or to vote on the expulsions because they had not been properly appointed under the constitution. In any event, they would have had to have been excluded for reasons of bias from participating in the decisions to expel members of the first appellant. In his affidavit, which has not been challenged, Mr McLaren has deposed that each of the first, second and third respondents, being incorporated associations, are entities separate from the respective Divisions of the Party, which were established by, and operated in accordance with, the national constitution and regulations of the Australian Democrats Party. There was no challenge to the expulsions

(Page 18)

based upon lack of notice to the persons expelled, nor was there any challenge based upon any failure to allow them to be heard in their defence. No breach of the rules of natural justice was pleaded.

37 Paragraph 17 of the statement of claim pleads that the respondents have, again during the relevant time, failed or refused to recognise the candidates selected and approved by the first appellant as candidates for Western Australia for endorsement in the 1996 Federal and State elections, in breach of cl 11.2 of the constitution, and that they proceeded to endorse candidates for Western Australia who were not approved by, or supported in any way by, the first appellant. The first appellant, under the constitution of the Australian Democrats Party, has no right to approve candidates for election to the national parliament. Those required to give their approval are the Division Executive, which is elected by the general membership of the Party in that Division, or a committee appointed by the Division Executive or elected by the members in the Division. So far as State elections are concerned, the power of endorsement of candidates for those elections is to be found in reg 11.2.1, which provides that, subject to cl 11.2 of the constitution, and if the Division's constitution does not contain appropriate provisions, office-bearers elected by "the members at large of a Division" may endorse candidates for an electorate in the Division in specified circumstances. No "appropriate provisions" in the Division's constitution have been drawn to our attention and it is therefore the members at large of the Division who endorse candidates. The first appellant has no role to play in the endorsement of candidates for the Australian Democrats Party.

38 It follows clearly from cl 11.2 of the constitution of the Australian Democrats that the selection and approval by the first appellant of the second appellant as a Senate candidate for Western Australia in the 1996 Federal election was not in accordance with the constitution of the Australian Democrats as par 18 of the statement of claim pleads.

39 Paragraph 19 of the statement of claim asserts that the conduct of the respondents, as applicable to them, pleaded in pars 15, 16, 17 and 18, was in breach of the constitution because (a) such decisions have not been made by the body authorised by the constitution to make such decisions, namely, the National Executive of the Party, including delegates from the first appellant; and (b) further, in any event, such decisions were not, in the terms of the constitution, proper and reasonable, in that there was no valid or just ground for the decision, and the first appellant was not given any (or any reasonable) opportunity to be heard in its defence.

(Page 19)

40 As already indicated, the first appellant had no right to appoint delegates to the National Executive. That right resided in the membership of the Party in the various divisions. It did not reside in the members of the incorporated body. The National Executive was correct in the view which it took in relation to the Constitution of the Australian Democrats. The first appellant had no standing in any of the matters of which it complains in par 19(b).

41 Paragraphs 20 and 21 effectively repeat pars 14 and 15 of the statement of claim and, for the reasons previously expressed, the first appellant, and members of the first appellant, did not have the exclusive rights to use in Western Australia the "business name and style 'Australian Democrats' " as the later paragraphs claim. Paragraph 22, depending as it does upon pars 20 and 21, is also without substance. It follows that the appellants' claims made in pars 23, 24 and 25 with respect to the alleged passing off by the "[respondents] (in the case of the first, second, third, fourth, fifth, sixth and twelfth [respondents] by the persons represented by them)" must, in my opinion, also fail. Furthermore, their claims in par 26 of the statement of claim, which pleads that, as a result of the alleged passing off and the alleged breaches of the constitution, the respondents have received membership subscriptions, donations and other moneys, including electoral public funding paid by the Commonwealth Government to the Australian Democrats which, but for the passing off and breach of contract (that breach presumably being attempted to be based on the constitution), would have been received by the first appellant, must also fail, for the reasons already given. There have been no breaches of the constitution and no breaches of contract identified by the appellants. There is nothing before us to justify any claim that the respondents have received moneys to which the Party was not entitled. It is unnecessary therefore to embark upon a discussion of the difficulties associated with establishing breaches of contract as between an unincorporated association and its members, based upon the constitution of the association.

42 The alternative claim in par 27, that the acts of passing off amount to false and misleading conduct in trade or commerce by the respondents (and the organisations they represent), contrary to s 52 of the Trade Practices Act 1975 (Cth) and/or s 10 of the Fair Trading Act 1987 (WA), has now been abandoned.

43 Paragraph 28 of the statement of claim alleges that, in the premises, the respondents threatened to and intend to continue the acts of passing off, breach of contract and misleading conduct referred to in the statement

(Page 20)

of claim and, unless restrained by the court, will do so. For the reasons already expressed, the appellants have failed to show that there is any basis for the granting of an injunction, the facts upon which that relief might have been based not having been established.

44 Paragraphs 29 to 32 claim that the respondents owed a duty of care to the appellants. Any such duty would have to be extracted from the constitution of the Australian Democrats Party. The breach of the alleged duties of care in relation to the first appellant are particularised as being the acts, matters and things referred to in pars 16, 17, 18, 19, 20, 24, 26 and 27, which have already been dealt with. No such breach was established.

45 In relation to the second appellant, par 31 alleges that, in breach of the duty of care owed to him, the respondents, and each of them, were negligent by (a) refusing during the relevant time to accept the second appellant in his own right or as a person approved by the first appellant as a candidate from Western Australia for election to the Senate of the Australian Parliament, and since that time, at any other election, State or Federal, and (b) refusing to honour their agreement with the first appellant to nominate and endorse the second appellant as a candidate for election as an "Australian Democrat" in the 2 March 1996 election for the Senate of the Australian Parliament. As already indicated, the first appellant under the constitution had no entitlement to approve the second appellant as a candidate either for a Senate election or at any other election, State or Federal. No agreement has been identified which the respondents refused to honour with the first appellant to nominate and endorse the second appellant as a candidate for election to the Senate in the 1996 election, which was long after the second appellant had been expelled.

46 A week before the commencement of the hearing of this appeal, the respondents were served with what was described as a minute of amended notice of appeal. For the first time, a claim for denial of natural justice or procedural fairness was sought to be raised in relation to the second appellant's expulsion from the Australian Democrats Party. Not surprisingly, in the absence of any such claim prior to the service of the minute of amended notice of appeal, the respondents' affidavits in support of their application for summary judgment did not deal directly with those issues which had not been raised by the statement of claim and which were not the subject of argument before the learned Master. They were, however, specifically mentioned in what was termed a minute of substituted statement of claim which was produced on the day before the hearing of this appeal, and some 2-1/2 years after the Master's decision

(Page 21)

had been handed down. In my opinion, it is far too late now to contemplate allowing the respondents to substitute a new statement of claim, to amend the grounds of appeal to accommodate the new statement of claim and to bring additional material before this Court. It would involve reopening the application before the Master to enable the respondents to meet claims, which had not been raised before the Master.

47 In my opinion, the respondents had a good defence on the merits and the learned Master was entirely justified of disposing of the action summarily, there being no serious question to be tried.

48 I would dismiss the appeal.

49 WALLWORK J: I agree with the reasons for judgment of Kennedy J and with the order which is proposed by his Honour. There is nothing I wish to add.

50 MURRAY J: I have had the advantage of reading in draft the reasons published by Kennedy J, with which I am entirely in agreement. I have nothing to add.

(Page 22)

APPENDIX

STATEMENT OF CLAIM

1. The First Plaintiff is a duly incorporated association pursuant to the Associations Incorporation Act (WA).

2. The Second Plaintiff is a member of the First Plaintiff and at all material times was a selected candidate approved by the First Plaintiff for the Commonwealth Senate in the 1996 Federal Election to run in Western Australia under the party name "Australian Democrats".

3. The First Defendant is a duly incorporated association registered in Victoria;

4. The Second Defendant is a duly incorporated association registered in South Australia;

5. The Third Defendant is a duly incorporated association registered in the Australian Capital Territory.

6. The two Fourth named Defendants are sued in their capacity as President and Vice President at the relevant time of the unincorporated association of members then known as "Australian Democrats NSW Division" and are sued in a representative capacity on behalf of all the members of that organisation at the relevant time.

7. The Fifth Defendant is sued in his capacity as President at the relevant time of the unincorporated association of members then known as "Australian Democrats Queensland Division" and is sued in a representative capacity on behalf of all the members of that organisation at the relevant time.

8. The Sixth Defendant is sued in his capacity as President at the relevant time of the unincorporated association of members then known as "Australian Democrats Tasmanian Division" and is sued in a representative capacity on behalf of all the members of that organisation at the relevant time.

9. The "relevant time" was from the 30th July 1994 to the date of judgment.

10. During the relevant time;

(Page 23)

(a) the Seventh Defendant was the Parliamentary Leader of the Political Party known as the "Australian Democrats" in the Senate and held office on the National Executive of the Party;

(b) the Eighth Defendant was the Deputy Parliamentary Leader of the "Australian Democrats" in the Senate and held office on the National Executive of the Party;

(c) The Ninth Defendant was the National President of the Party and held office on the National Executive of the Party;

(d) The Tenth Defendant was the National Senior Vice President of the Party and held office in the National Executive of the Party;

(e) The Eleventh Defendant was the National Junior Vice President of the Party and held office on the National Executive of the Party;

(f) The Twelfth Defendant was registered at the Western Australian Electoral Commission as the authorised Officer of "Australian Democrats WA Division" and is sued in his capacity as the representative of all members of an unincorporated association known as "Australian Democrats WA Division".

11. The First Plaintiff and the First to Sixth Defendants at all material times formed an unincorporated association known as "The Australian Democrats" which association carried on and still carries on the business of a National political party.

12. The terms of the agreement between the First Plaintiff and the Defendants are contained in the Australian Democrats National Constitution and Regulations ("the Constitution").

13. There were express (and if not express, implied) terms of the Constitution that:


13.1 By clause 2, that in the National context the relevant governing body of the Party was the National Executive, and in a divisional context the relevant governing body was the governing body of the Division.

13.2 by clause 4.2 that; "The National Executive may expel from the party any person who:

(Page 24)

is found by 3/4 of the National Executive to be acting against the interests or objectives of the party ….;

13.3 by clause 6.1 of the agreement the National Executive (being the only body with power to expel any member) shall be comprised of the following:

(i) National President and two Deputy National Presidents, elected concurrently by ballot of all members;

(ii) Leader and Deputy Leader of the party in the House of Representatives;

(iii) Leader and Deputy Leader of the party in the Senate;

(iv) Two representatives from each division elected concurrently by ballot of respective division members; …."

13.3 by clauses 4.2 and 6.1 the only body which had power to expel any delegate or member would be the National Executive and that no decision made by a body purporting to be the National Executive (but not properly constituted as such) could effectively expel any member;

13.4 by clause 8.6 that any decision to expel a member must be proper and reasonable;

13.5 by clause 11.2 that the First Plaintiff was entitled (solely for Western Australia) to approve candidates for pre-selection in any Federal Election to stand as "Australian Democrat" candidates in Western Australia.

14. During the relevant time, and prior thereto, the First Plaintiff was the registered owner in Western Australia of the name "Australian Democrats (WA Division) Inc" which name gave it the sole entitlement in Western Australia for commercial and political purposes to use and authorise the use of the name "Australian Democrats" in Western Australia and during the relevant time, pursuant to clause 2 of the Constitution was, in the context of the Western Australian division, the governing body of the Party.

15. By the terms of clause 2 of the Constitution in the divisional context the First Plaintiff had the sole rights to use (and authorise the use of) the said name in trade and commerce as well as politics in Western Australia and as a result had a proprietary interest in

(Page 25)

the maintenance of the terms of the Constitution so as to create binding legal relations (in a contractual sense and in the sense of creating a duty of care) between the members of the National Executive responsible for the Constitution in the National context and the individual divisions of the National body, including the First Plaintiff.

16. In breach of the terms of the Constitution on the 30th and 31st July 1994 a group of people purporting to be the National Executive of the Party (including delegates appointed by the First, Second, Third, Fourth, Fifth and Sixth Defendants and the Seventh, Eighth, Ninth, Tenth and Eleventh Defendants in person in their capacity as office holders of the National Executive but not including (as required by clause 6.1 (i) of the Constitution) any delegate from the First Plaintiff;

(a) purported to expel members of the First Plaintiff including but not limited to, the Second Plaintiff, from the Australian Democrats, both in a National context and a Divisional context;

(b) refused to accept any representative of the First Plaintiff, including the Second Plaintiff, to the National Executive where such issue of expulsion was to be discussed and refused to allow those proffered delegates from the First Plaintiff to vote on the issue;


17. The Defendants have during the relevant time failed or refused to recognise the candidates selected and approved by the First Plaintiff as candidates for Western Australia for endorsement in the 1996 Federal Election and State Elections in breach of clause 11.2 of the Constitution, and proceeded to endorse candidates for Western Australia who were not approved by or supported in any way by the First Plaintiff.

18. In further breach of the said Constitution, the Defendants have failed and refused to recognise the Second Plaintiff as the Senate candidate selected and approved by the First Applicant for WA for the 1996 Federal Election, he being a person at all relevant times nominated and approved by the First Plaintiff for such position.

19. The conduct of the Defendants as applicable to them pleaded in paragraphs 15, 16, 17 and 18 hereof are all in breach of the Constitution because;


(a) Such decisions have not been made by the body authorised by the Constitution to make such decisions namely the

(Page 26)

National Executive of the Party including delegates from the First Plaintiff;

(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;

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

20. At all material times the First Plaintiff and members of the First Plaintiff have had the exclusive right in Western Australia to the use of the business name and style "Australian Democrats".

21. The said exclusive rights are conferred not only by usage and reputation in Western Australia but also by virtue of the registration at all material times of the First Plaintiff's name as "Australian Democrats WA Division Inc" and the office of Corporate Affairs in Western Australia.

22. There are circumstances of the business and activities of the First Plaintiff which make it of special importance that the First Plaintiff retain the right to use the name "Australian Democrats" in Western Australia and for members of the First Plaintiff (including the Second Plaintiff) to take advantage of that right and use the name in their candidature for elections and in the ordinary day to day operations of the business of the First Plaintiff as a political party.

PARTICULARS

The name "Australian Democrats" is a well known name importing the reputation of a political party in Western Australia and enhances directly the ability of people who are able to use that name in their candidature for elections.

23. The Defendants (in the case of the First, Second, Third, Fourth, Fifth, Sixth and Twelfth Defendants by the persons represented by them) have since the relevant date and to the date hereof passed off and attempted to pass off and caused, enabled and assisted others to pass off persons who were not members of the First Plaintiff and who had not been approved or selected by the First Plaintiff as Australian Democrats candidates for the 1996 State and Federal elections; as people who were so approved and selected by appropriating from the First Plaintiff the name for

(Page 27)

Western Australia "Australian Democrats" and using in all respects the style of the political party "Australian Democrats" to which name in Western Australia the First Plaintiff and its nominees, including the Second Plaintiff, were exclusively entitled.

PARTICULARS

The names of the candidates so passed off are contained in the documents published by the Australian Electoral Commission and the State Electoral Commission for the Federal Election held on of (sic) 2 March 1996 and the State Election held on 14 December 1996, particulars of which will be provided prior to trial.

24. As a result of such passing off certain candidates who used the name and style "Australian Democrats" in Western Australia without the selection and approval of the owners of that name namely the First Plaintiff have been elected to Australian Parliaments.


PARTICULARS OF CANDIDATES ELECTED

(a) Andrew Murray elected to Senate 2 March 1996.

(b) Helen Hodgson elected to Legislative Council 14 December 1996.

(c) Norman Kelly elected to Legislative Council 14 December 1996.

25. The acts of the Defendants aforesaid were in all the circumstances calculated to lead and have led to the Defendants candidates being confused with those of the First Plaintiff and to members of the public choosing in Western Australia as Australian Democrats at the 1996 elections, candidates as Australian Democrats in Western Australia persons who were not entitled to use that name in Western Australia.

PARTICULARS OF PASSING OFF

In manifestation of the passing off referred to in paragraph 19 hereof the Defendants have confused the public and potential donors and members of the First Plaintiff by appropriating the name "Australian Democrats" in Western Australia doing this by:


(a) Advertising in newspapers

(b) Advertising in Telstra Telephone Books and Directories

(c) Making representations to the media for dissemination to the public

(Page 28)

(d) Making representations to State and Commonwealth Electoral Commissioners

(e) Publishing and distributing how to vote cards

that persons authorised by them (and not the First Plaintiff) were the persons entitled in Western Australia to use the name "Australian Democrats".

26. As a further result of the passing off and breach of Constitution pleaded herein, the Defendants have received membership subscriptions, donations and other monies, including electoral public funding paid by the Commonwealth Government to the Political Party which, but for the passing off and breach of contract, would have been received by the First Plaintiff.

27. Alternatively the said acts of passing off amount to false and misleading conduct in trade or commerce by the Defendants (and the organisations they represent) contrary to section 52 of the Trade Practices Act 1975, and/or section 10 of the Fair Trading Act WA.

28. In the premises the Defendants threaten to and intend to continue the acts of passing off, breach of contract and misleading contract referred to herein and unless restrained by the Court, will do so.

29. Further, or in the alternative, the Defendants owed a duty of care to both the First Plaintiff and the Second Plaintiff as follows:

PARTICULARS OF DUTY OF CARE OWED TO THE FIRST PLAINTIFF

To protect in its decision making processes the proprietary interests (in both a commercial and political context) of the First Plaintiff including the right to use and authorise the use of the name "Australian Democrats" in Western Australia' and to ensure that in all respects including the nomination of candidates for elections, the terms of the Constitution of the National body were followed.

PARTICULARS OF DUTY OF CARE OWED TO THE SECOND PLAINTIFF

The Defendants owed a duty of care to the Second Plaintiff to be in their decision making processes to nominate an endorsed candidate for election in Western Australia that the Constitution would be followed, including the duty to only endorse candidates approved by the First Plaintiff as candidates for election in Western Australia, pursuant to clause 11.2 of the Constitution.

(Page 29)

Such duty of care arose cases because:

(a) The rights to use the name "Australian Democrats" in Western Australia belonged exclusively to the First Plaintiff before it was associated with the National body.

(b) The terms of the Constitution of the National body reserved, in a Divisional context, power over such matters of nominating and endorsing candidates, to the First Plaintiff, by clause 2 and 11.2 of the Constitution.

(c) The rights to nominate an endorsed candidate and to use the name "Australian Democrats" with reference to particular candidates is essential to the maintenance of the business and political interests of the First Plaintiff in Western Australia.

(d) The ability to maintain the use of and control the use of the name "Australian Democrats" in Western Australia has a direct bearing on the ability, in a commercial sense, of the First Plaintiff to gain members, to receive subscriptions and other donations and become eligible for Parliamentary grants available to political parties.

(e) The maintenance of such rights by the First Plaintiff have a direct bearing on the interests of the members of the First Plaintiff both in a commercial context and a political sense in relation to the furtherance (in the case of members such as the Second Plaintiff) of their political careers.


30. In breach of the duty of care owed to the First Plaintiff the Defendants during the relevant time did the acts, matters and things referred to herein in paragraphs 16, 17, 18, 19, 20, 24, 26 and 27.

31. In breach of the said duty of care to the Second Plaintiff the Defendants and each of them were negligent by;


(a) refusing during the relevant time to accept the Second Plaintiff in his own right or as a person approved by the First Plaintiff as a Candidate from Western Australia for election to the Senate of the Australian Parliament, and since that time, at any other election, State or Federal.

(b) refusing to honour their agreement with the First Plaintiff to nominate and endorse the Second Plaintiff as a Candidate for election as an "Australian Democrat" in the

(Page 30)

2 March 1996 Election for the Senate of the Australian Parliament.

32. As a result of the breach of duty of care owed by the Defendants to the First and Second Plaintiffs, and by reason of the breach of contract and passing off, and/or misleading or deceptive conduct, the First Plaintiff has suffered damage herein and the Second Plaintiff has suffered damage:

PARTICULARS OF DAMAGE


(a) In the case of the First Plaintiff by the general intrusion into its business and reputation as the party of "Australian Democrats" in Western Australia, and the loss of all donations, party funds, parliamentary grants which would otherwise have been payable to the First Plaintiff;

(b) In the case of the Second Plaintiff by depriving him of the opportunity to be elected which would otherwise have existed as a Senator in the 1996 Federal Election as an Australian Democrat Senator, with the deprivation of all the emoluments to which the Second Applicant would have been entitled to earn as a Senator, and the opportunity to each such emoluments


THE PLAINTIFFS CLAIM:

1. A declaration that the decisions by the Defendants and their duly nominated delegates, made on July 30/31 1994:


(a) Not to allow Delegates from the First Plaintiff to sit as members of the National Executive;

(b) To expel members of the First Plaintiff from the Australian Democrats party; and

(c) To refuse to nominate and endorse Candidates approved by the First Plaintiff as Candidates for the 1996 Federal Election or any subsequent election State or Federal and in particular in refusing to nominate and endorse the Second Plaintiff as a Candidate for such elections;

were void as in breach of the Constitution.


2. An injunction to restrain the Defendants themselves or by their servants or agents from allowing any candidates or members of Parliament supported by them to use in Western Australia now or in the future and name in relation to their own position or candidature "Australian Democrat" or to use that name in any

(Page 31)

other place outside Western Australia with the intent that such persons are referred to "Australian Democrats" from Western Australia;

3. An accounting by the Defendants of all monies received by them or on their behalf either individually or in their capacity as A State or Federal group of all monies received in or for Western Australia from any source under the heading "Australian Democrats" during the relevant time.

4. An Order the Defendants pay the First Plaintiff all sums shown by such accounting to have been received;

5. Damages to the First Plaintiff for passing off, breach of contract and false and misleading conduct;

6. Damages to the Second Plaintiff for negligence such damages to include loss of opportunity to earn emoluments as a Federal Senator; and

7. Such further or other relief as the Court considers just.