Baker v The Liberal Party of Australia (SA Division)

[1997] SASC 6015

IN THE SUPREME COURT OF SOUTH AUSTRALIA

BOLLEN J

Associations and clubs - Interpretation of document - interpretation of provisions about membership in the Constitution of the defendant - legitimate expectation. Plaintiff held to be no more than a disappointed applicant for membership of defendant. Cameron v Hogan 1934 51 CLR 351; Baldwin v Everingham 1993 1 Qd 310; Nurses Centre v Beaumont 44 SASR 454; Bonser v Musicians Union 1956 AC 104, distinguished.

ADELAIDE, 23 January 1997 (hearing), 21 February 1997(decision)<

#DATE 21:2:1997

Counsel for appellant: Mr M Manetta

Solicitors for appellant: Finlaysons

Counsel for respondent: Mr D Wicks QC wnith Mr H Rowell

Solicitors for respondent: Rowell Forrest & Conam

Summons dismissed.

BOLLEN J

1. The plaintiff is one of many who at the same time sought to join the Liberal Party. She filled in the right piece of paper. She wrote out the cheque for the right amount. She sent them to the right place. Her application for membership was rejected.

2. The plaintiff seeks orders from the Court. She has issued a summons under Rule 63.02 of the Supreme Court Rules. She has supported her summons by affidavit with exhibits. The defendant filed an appearance. The defendant contests each claim made by the plaintiff.

3. The matter came on for hearing "on" affidavits, exhibits and other papers. No contest about facts was mounted. No oral evidence was offered.

4. I heard admirable (if I may say so) argument and submissions from Mr Manetta and from Mr Wicks QC.

5. The plaintiff says, amongst other things, in her affidavit:- "3. On about 4 June 1996 I obtained a blank application form for membership of the Liberal Party of Australia (SA Division) (the 'Liberal Party'). Exhibit 'JB1' to my affidavit sworn herein on 8 July 1996 is a true copy of the blank application form.

4. On the same day, I completed the application form for membership of the Liberal Party. Exhibit 'JB2' to my affidavit sworn herein on 8 July 1996 is a true copy of the completed portion of my membership application.

5. I wrote a cheque for $45.00 payable to the Liberal Party being the membership fees specified on the application form for a single membership.

6. I arranged with the South Australian Branch of the Sporting Shooters Association of Australia ('SSAA') for my membership application along with the cheque for $45.00 to be delivered to the State Director of the Liberal Party.

7. My solicitors have obtained a copy of a press release from Martin Cameron, the President of the Liberal Party dated 24 June 1996 which refers to the rejection of membership applications. Exhibit 'JB3' to my affidavit sworn herein on 8 July 1996 is a true copy of the press release.

8. On 23 July 1996 I received a letter dated 15 July 1996 from The Liberal Party of Australia (SA Division) (the 'Liberal Party') notifying me that, on 24 June 1996 and 14 July 1996, the State Executive of the Liberal Party had declined to admit me to membership of the Liberal Party. Enclosed with that letter was my cheque for $45.00 payable to the Liberal Party for membership fees. Exhibit 'JB5' to my affidavit sworn herein on 7 August 1996 is a true copy of that letter."

6. The Press Release mentioned is:- "The Liberal Party of AustraliaS.A. Division State President

MEDIA STATEMENT FROM SA LIBERAL PARTY PRESIDENT MARTIN CAMERON

Membership Applications from Shooters

The South Australian Liberal Party President Martin Cameron tonight said that the State Executive of the Party has expressed the firm and unanimous view that it would not tolerate any single issue group, particularly one directed by an outside organisation, attempting to take over a section of the Party.

The State Executive has unanimously agreed to support rejection of some 500 applications for membership of the SA Division lodged last Friday by the Combined Shooters and Firearms Council of SA.

Under the Party's Constitution the State Executive can decline to admit a person to membership without giving any reason. Any rejection must be effected within one month of a membership application being received.

The non-acceptance of these applications in accordance with this decision will be processed over the next month.

24 June 1996"

7. The letter informing the plaintiff of the failure of her application is:- "15 July 1996

Mrs J Baker PO Box 166 GUMERACHA 5233

Dear Mrs Baker

I refer to your application to become a member of the Liberal Party of Australia (SA Division) delivered to the Party on Friday 21 June 1996.

I am directed by the State Executive to inform you that at its meetings on 24 June 1996 and 14 July 1996 the State Executive acting upon its own motion declined to admit you to membership pursuant to Clause 5.3(a) of the Constitution of the Party.

Your membership subscription is returned herewith.

Yours sincerely

David Pigott

enc."

8. The Constitution of the Liberal Party contains a section headed "Membership". Clauses 5.1 to 5.3 are:- MEMBERSHIP

Eligibility for Membership 5.1 Any person who is over the age of 16 years and who supports the Objectives of the Division and who agrees to be bound by this Constitution may apply to become a member of the Division.Application for Membership 5.2 A person applying to become a member of the Division shall submit an application to the State Director in the form prescribed by the State Executive accompanied by the appropriate membership fee.Commencement of Membership 5.3 Membership shall commence one month after the State Director receives an application unless:-(a) the State Executive in the meantime acting upon the recommendation of a Branch or upon its own motion, declines to admit a person to membership which it may do without giving any reason therefore(b) the State Executive gives special permission for an earlier commencement of membership."

9. The Constitution provides that the State Executive of the defendant may decline to admit a person to membership without giving any reasons for the rejection. That is what the State Executive did. Prior to the expiration of one month from the receipt by the State Director of the application of the plaintiff the Executive declined to admit the plaintiff to membership.

10. I must recite most of the affidavit of David Henry Piggott, State Director, of the defendant:- "1. I am the State Director of the defendant and I am authorised to swear this affidavit on its behalf.

2.1 On 21 June 1996 I was present at the premises of the defendant at 104 Greenhill Road, Unley when a box containing a large number of applications for membership of the defendant was delivered thereto by a person who is now known to me as one Ellis Wayland.

2.2 I saw that the said box was handed by that person to Mr Jaeschke, the Campaign Director of the defendant. After the said person had delivered the box and left the premises Mr Jaeschke took the box to the office of the Membership Officer of the defendant.

2.3 While it was there, I briefly glanced through the contents of the box and saw that it contained a large number of completed forms for application for membership of the defendant. The forms had cheques or money attached although I now know that in one case one cheque was affixed to several forms. I noted when glancing through the forms in the box that many appeared to have a mark where the applicant is to indicate whether the applicant wishes to be a member at large which mark was in a colour of ink different from that in which the particular form was completed. I also noted that all the forms that I saw appeared to apply for membership as a member at large.

3.1 The President of the defendant Mr Martin Cameron was present at the premises of the defendant on that said day.

3.2 Later on that day I informed him of the above.

4.1 The State Executive of the defendant had a scheduled meeting on the evening of Monday 24 June. This matter was placed on the agenda.

4.2 At the meeting, the members of the State Executive did not have before them the individual applications for membership although the box with the membership applications in it was produced. Mr Cameron informed them of the fact of the applications, that they appeared to come from a single issue interest group and that the matter had excited considerable interest in the media.

4.3 Members of the State Executive were also shown a copy of the documents which are now produced and shown to me and marked with the letters 'DHP1'.

4.4 There was a general discussion but I did not record that. Now produced and shown to me and marked with the letters 'DHP2' is a copy of the relevant part of the Minutes of the said meeting.

4.5 The terms of a press release were discussed at the meeting and that was released to the media later that night.

Now produced and shown to me and marked with the letters 'DHP3' is a copy of the said press release.

5.1 After the proceedings herein were served on the defendant I caused a search to be made amongst the applications for membership contained in the said box.

5.2 As a result of that search an application from the plaintiff herein was located and shown to me.

5.3 I then caused the said application to be returned to the said box.

6. The State Executive of the defendant next met on Friday 12 July 1996. The purpose of the meeting was to deal with another issue but this matter was mentioned by way of report.

Now produced and shown to me and marked with the letters 'DHP4' is a copy of the relevant part of the Minutes of that meeting.

7.1 The State Executive met to further consider this matter at a meeting on Sunday 14 July 1996.

Now produced and shown to me and marked with the letters 'DHP5' is a copy of the Minutes of that meeting.

7.2 All members of the State Executive were present except for the Honourable Dean Brown, the Premier of South Australia, and Senator Robert Hill, the Senior Federal Minister. Both Messrs Brown and Hill appointed a nominee pursuant to Clause 10.3.5 of the defendant's Constitution. Mr Brown appointed the Honourable R Such and Mr Hill appointed the Honourable A Downer as their respective nominees and both Messrs Such and Downer attended the meeting.

7.3 At the meeting each application for membership was handed to each member of the State Executive in rotation. The membership applications were passed around in bundles of ten from one to the other. I was present at the said meeting and noted that each member of the State Executive appeared to read each application for membership.

7.4 When each member had been given each and every application for membership I read out the name of each applicant and the President Mr Cameron sought the decision of the State Executive as to whether the application of that person for membership was to be accepted or rejected. In each case as the Minutes indicate the application was rejected. I recorded the result of each decision on the basis of the voices and show of hands. There was no dissent indicated to any of the decisions.

7.5 The application of the plaintiff herein was among the applications contained in the said box. The plaintiff's said application was put before the meeting and considered as aforesaid along with the other applications contained in the said box. The plaintiff is referred to in the said Minutes as 'Mrs J Baker'.

8. In the following week I caused letters to be sent to each applicant to inform each applicant of the decision of the State Executive."

11. I can see no "legal fault" in the way in which the defendant went about considering the application of the plaintiff. Indeed, it is hard to see how there could have been any such fault. The defendant was empowered by its Constitution to decline any application for membership with or without giving any reason.

12. Had the State Executive not declined to admit the plaintiff she would have become a member on 21st July 1996. But the State Executive did decline to admit her. It did that on 24th June 1996 and 14th July 1996 or on one of those days. It matters not if there was duplication of effort.

13. In her summons the plaintiff seeks the following:- "1. A declaration that upon a true construction of the Constitution of the defendant, the State Executive of the defendant was not entitled to reject the plaintiff's application for membership of the defendant on the grounds on which it purported to do so on 24 June 1996;

2. In the alternative, a declaration that upon a true construction of the Constitution of the defendant, the State Executive of the defendant was not entitled to reject the plaintiff's application for membership of the defendant on the grounds on which it purported to do so on 24 June 1996 without first according the plaintiff an opportunity to be heard or otherwise to answer the said grounds.

3. A declaration that the rejection of the plaintiff's application for membership of the defendant by the State Executive of the defendant on 24 June 1996 was void;

4. Costs;

5. Such further or other orders as this Honourable Court shall deem fit."

14. In his outline Mr Manetta wrote a section called "Justiciability". It is:- "Justiciability

5. The defendant is a registered political party under the CommonwealthElectoral Act 1918.

6. Statutory recognition of registered political parties and the conferral on them of statutory rights and obligations under the Commonwealth ElectoralAct 1918 imbues them with sufficient legal personality to allow their affairs to be justiciable. The authority of Cameron v Hogan (1934) 51 CLR 358 is now clearly distinguishable in relation to registered political parties: see Baldwin v Everingham [1993] 1 Qd R10.

7. Registered political parties are properly to be characterised as quasi-corporations, like trade unions, which enjoy similar recognition, whose rules constitute an enforceable contract between the entity and each of its members. The construction of their rules is therefore justiciable. Nurses Centre v Beaumont 44 SASR 454, 466; Bonser v Musicians Union [1956] AC 104."

15. He referred to Cameron v Hogan (1934) 51 CLR 358, albeit to distinguish it, to Baldwin v Everingham [1993] 1 Qd 310, to Nurses Centre v Beaumont 44 SASR 454 and to Bonser v Musicians Union [1956] AC 104. In his Outline, and in debate, Mr Wicks QC contended that the plaintiff had no standing to commence the proceedings. Mr Wicks wrote:- "Rights of an applicant for membership

1. At the date of commencement of the action, 8 July 1996, the plaintiff had no contract with the Division and had no proprietary interest in the division. See paragraph 5.3 of the Constitution. The application for membership was lodged on 21 June 1996. Under the Constitution, an applicant for membership does not become a member for one month after his or her application is lodged. The plaintiff brought the proceedings on 8 July 1996 before the month had elapsed.

2. As a mere applicant for membership, the plaintiff has no standing to commence these proceedings.

3. The Division is an unincorporated association - a voluntary association. The Courts have declined to interfere in the internal matters of a voluntary association so far as the rights and liabilities of members are concerned except in special circumstances.

4. According to English authority, one such case of where intervention is allowed is where there is an unreasonable restraint of trade in a case of where the association has a monopoly position in relation to a person's right to work.

5. This arises generally where a person's right to carry out a particular employment is dependant on him or her obtaining a membership or a licence of some sort. In those cases there is a public police issue and the Courts are prepared to intervene to determine whether there has been an unreasonable restraint of trade in the event of a refusal of membership or a licence.

Nagle v Feilden (1966) 2 QB 633 Per Denning MR at 644.5.

McInnes v Onslow Fane (1978) 3 All ER 211 Per Megarry VC at 217.2 and 217.5.

6. McInnes case is one dealing with an application for a licence. The Courts will interfere where the licence is necessary for the plaintiff to conduct his or her work.

7. The general rule with a voluntary association is that an applicant for membership has no standing to object to a refusal to admit him or her to membership.

McInnes v Onslow Fane (supra) per Megarry VC at 218.

McInnes case and Nagle's case are instances of an exception to that rule being cases where the licence or membership concerned is required to enable a person to engage in his or her employment.

8. In the present case, plaintiff has no contractual right to membership and as an applicant for membership has no proprietary interest in the funds of the defendant. No question of a right to employment arises.

Right of Executive to refuse application

9. The Executive was entitled to refuse an application without assigning a reason. It refused the plaintiff's application at its meeting on 14 July 1996 and did not give a reason. Under the Constitution, the Executive not bound to give a reason."I think Mr Wicks QC is probably correct. But I pass the point of "standing" by.

16. Mr Manetta, speaking in support of the summons, contended that the rejection of the applicant was invalid. Therefore at the expiration of one month after receipt of the application for membership the plaintiff, in his contention, became a member. Mr Manetta sought to tie in the reasons in the press release with the actual rejection of membership. The defendant may have had reasons of which it spoke to all persons concerned by way of the press release. But it gave no reason to the plaintiff. Nor was it bound to do so. The constitution provided, as I repeat, for rejection without the giving of any reason. There is no reason why such a body, even a political party, may not provide for rejection of membership without reason. Mr Manetta submitted that the rejection of the application was invalid. In his Outline he wrote:- "8. By clause 5.3 of the defendant's Constitution, an applicant for membership of the party automatically becomes a member upon the expiration of one month after submission of the application unless within that time the application is validly rejected by the State Executive.

9. Since the plaintiff maintains that the purported rejection of her application was invalid, it follows that on 20 July 1996, she became, and remains a member of the defendant. She seeks a declaration to that effect which is a declaration of her existing rights under a contract to which she is a party.

10. By submitting her application on 22 June 1996, the plaintiff entered into a unilateral contract with the defendant, by performing the terms of a standing offer. Clauses 5.1 and 5.3 of the Constitution constitute a standing offer by the defendant to the world that anyone who submits a completed prescribed application form and tenders payment of the prescribed fee will, after one month, be entitled to exercise all the rights conferred on members of the party, unless in the meantime the State Executive has exercised its power to deprive that person of those rights, in accordance with the terms of the Constitution.

11. The plaintiff thus maintains a contractual right to the proper exercise of the power to deprive, and has standing to contest the issue.

12. Alternatively, if there is no unilateral contract and thus no contractual right in the plaintiff to due observance of the terms of the Constitution, there was nevertheless a legitimate expectation in the plaintiff that she would acquire the contractual rights of a member in one month's time, because she had complied with conditions which had been publicly represented by the defendant as the criteria for the acquisition of membership and, in particular, she had paid for her membership.

13. Thus, although she may not personally have had a strict contractual entitlement to compliance with the Constitution by the defendant, the consequence of non-compliance has been the interference with her legitimate expectations and that is a sufficient interest to afford her standing. Kioa v West (1985) 159 CLR 550.

14. In the further alternative, even if the plaintiff has no contractual right or legitimate expectation to vindicate, by reason of the fact that the defendant enjoys, by statute, certain public rights and is in receipt of public funds, there is a public interest in ensuring that the party's constitution which regulates the processes by which those rights and funds are claimable, is complied with. Baldwin v Everingham (supra).

15. By reason of the improper rejection of her membership application, the plaintiff has suffered a 'special damage' over and above the general public because she has been deprived of the ability to participate personally in the processes which condition the proper conferral of public rights and the proper disbursement of public funds. See Australian Conservation Foundation Inc v The State of South Australia (1990) 53 SASR 349."

17. I speak comprehensively of these submissions. I cannot agree with any. All that has happened is that the plaintiff has sought membership of an incorporated body which happens to be a political party and had her application declined. No question of contract, of unilateral contract, or election through invalid rejection arises. The defendant acted according to its constitution. No relationship known to the law was ever established between plaintiff and defendant, of one with the other. The plaintiff had no "special interest" entitling her to any order from the Court. She was merely, along with many others, a disappointed applicant.

18. But, said Mr Manetta, she had a legitimate expectation of becoming a member of the defendant. The plaintiff no doubt had her own expectations. But the question of legitimate expectation has some element of the objective about it. The plaintiff may have had high hopes. But the only expectation which she was entitled to have in law was that the application would be considered. It was.

19. Mr Manetta suggested that the decision of the Executive was void or voidable. It was not. I do not think that any question of natural justice arises. The Executive was not bound to hear the applicant, to invite her to send in more information about herself or, indeed, to do any more than to consider the application.

20. Mr Wicks QC wrote in his Outline (and spoke to the points mentioned) thus:- "Principle in Cameron v Hogan

14. Even if the decision of the Executive was void or voidable so that the plaintiff automatically became a member, there is no basis in law on which she can obtain any of the declarations sought in the summons in this action.

Rigby v Connol (1880) 14 Ch D 482 at 487 Per Jessel M R at 487.2

Cameron v Hogan (1934) 51 CLR 358 Rich J and others at pages 370.5, 373.2, 376.8 and 378.3.

Starke J at 383.9.

15. The Constitution of the defendant does not constitute a contract between members of the defendant. There is no contract between members of the defendant. That much is clear from a perusal of the Constitution. Being a political party, its members are likely to be numerous.

16. The plaintiff has no proprietary interest to protect. The assets of the defendant are not distributable amongst its members. Constitution - paragraph 18.3.

17. If a member of a voluntary association has no right to the Courts, a fortiori a mere applicant for membership.

18. Cameron v Hogan a decision of the full High Court. Judges have suggested that case may need review but it is only the High Court who can review it.

19. Various cases have sought to distinguish Cameron v Hogan.

See eg. Shepherd v South Australian [Amateur] Football League Inc (1986) 44 SASR 579 Per Cox J at page 581.7 and 582.9

Smith v South Australian Hockey Association Inc (1988) 48 SASR 263 Per Cox J at pages 264 - 5 and at 268.

Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 43 SASR 121

Per Jacobs J at pages 123-124. Per Matheson J at page 139

All members of the Full Court in Plenty's case treated the matter as an exception to the rule in Cameron v Hogan.

20. In Shepherds' case, Cox J considered the application to the case of the principle established in Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 K B 223 to the case.

Per Cox J at 584.9 and at 585.2.

The Wednesbury principle which is called into aid in dealing with public authorities and bodies set up by statute has no application to a voluntary association.

In other words, the action of the State Executive in declining to admit the plaintiff to membership is not examinable by the Courts on the basis of the reasonableness or fairness or otherwise of the decision.

21. With a mere applicant for membership, questions of the kind considered in Cameron v Hogan do not arise."

21. I agree.

22. Of course it all would have been different had the plaintiff been admitted to membership and then had her membership purportedly cancelled ie been dismissed or struck off. The question of natural justice would have arisen. So would the principles in Cameron v Hogan (supra) and cases which have discussed Cameron v Hogan. All that has happened here is that a person has sought to join a political party and been denied admission. Mr Manetta has made a splendid attempt to create rights in the plaintiff to establish that she should be declared a member. But that cannot be. Even if the points which she raised are justiciable in the sense that they may be considered by a court, consideration produces only an answer adverse to the plaintiff.

23. I dismiss the summons.