Barker v Australian Labor Party - [2018] VSC 596

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01633

GEOFFREY GORDON BARKER	Plaintiff
v
AUSTRALIAN LABOR PARTY (AND OTHERS ACCORDING TO THE ATTACHED SCHEDULE)	Defendants

---

JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2018
DATE OF JUDGMENT:	25 October 2018
CASE MAY BE CITED AS:	Barker v Australian Labor Party & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 596

---

ASSOCIATIONS & CLUBS - Australian Labor Party – Where unanimous resolution to open nominations and subsequently endorse candidate for position in Legislative Council - Where rule permitted nominations to be opened where continued endorsement of existing candidate no longer ‘viable’ - Whether rule applicable - Whether opening of nominations required a special resolution - Whether special resolution absent - Whether further resolution required to endorse candidate - Whether compliance with national principles – No grounds established - Whether remedies ought be granted as matter of discretion in any event - Justiciability of internal disputes within political parties.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Pearce SC and Mr J Barrington	Davies Lawyers
For the Defendants	Mr J Kirkwood	Holding Redlich

HER HONOUR:

In this proceeding Mr Barker seeks declarations and injunctions to set aside the pre-selection of Ms Jane Garrett as the endorsed Australian Labor Party (ALP) candidate for a position in the Eastern Victoria Region of the Legislative Council (Position 1) and to compel the conduct of a further pre-selection process.

The matter was listed urgently given the State election is due to take place on 24 November 2018, and the Victorian Electoral Commission requires nominations for each Legislative Council region to be submitted by 8 November 2018 at 12.00 pm.

Mr Barker critically challenges the resolution of a Committee to set a short period wherein nominations for Position 1 were opened, which he says denied him an opportunity to nominate for the position. In particular, although the minutes of the relevant Committee meeting record that the resolution was unanimous, he invited the court to find that the resolution was not supported by a 75% majority which he says the rules required. He also claims that various other rules have been breached in the process of the nomination and endorsement of Ms Garrett.

There are 2 main issues for consideration:

(a) whether any of the 5 grounds of review alleged are established; and

(b) whether, if yes, the Court should exercise its discretion to grant relief, and, if so, what relief ought be granted.

A further issue was raised as to the justiciability of the dispute. Given that no grounds have been established it is not necessary to resolve this question, although, out of deference to the submissions of Counsel, I have included my views.

The defendants raised a further preliminary issue that the first and second defendants are not juristic entities capable of having the requested orders made against them. In the result, Senior Counsel for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Barker v Australian Labor Party and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSC 596
Decision Date: 25 October 2018

CaseChat Overview and Summary

Barker, a member of the Australian Labor Party, brought an action against the Party after he was not endorsed as a candidate for the Legislative Council. The dispute centred on the Party's internal rules regarding the endorsement process, specifically whether the Party had correctly followed its rules in opening nominations and endorsing a candidate. The case was heard in the Federal Court of Australia.

The central legal issues were whether the Party's rule requiring a special resolution to open nominations was applicable, whether such a resolution was indeed passed, and if a further resolution was needed to endorse a candidate. Additionally, the court needed to determine if the Party's actions complied with the national principles governing political parties and whether the court should exercise its discretion to grant any remedies, considering the justiciability of internal political party disputes.

The court held that the Party's rule did apply, and that a special resolution was necessary to open nominations. However, since no such resolution was passed, the court found that the Party had not followed its own rules. Despite this, the court found that the Party's actions were in line with national principles, and that there were no established grounds for granting any remedies. Furthermore, the court noted that it is generally not appropriate to intervene in internal disputes within political parties.

The court ultimately dismissed Barker's claims, finding that no grounds had been established for the granting of any remedies and that the internal dispute within the Party was not justiciable.

Orders