Barker v Australian Labor Party

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

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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

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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.

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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 the plaintiff did not oppose an order that they be removed as parties.[1]
[1]Transcript of the Proceeding (18 October 2018) 181; see also Green v Bradbury & Ors (2011) 191 FCR 417, 430 [61].

By order made 11 October 2018, the Court ordered that the plaintiff serve a copy of all filed documents, together with a copy of that order and the orders made by Judicial Registrar Clayton on 10 October 2018, on Ms Garrett by 11 October 2018. Although the Court was advised that Ms Garrett was so served, she did not seek to participate at the hearing.

Background

Mr Barker is employed as a firefighter and has been a member of the ALP since 2015.

The (current) first defendant and second defendant (Victorian Branch) are unincorporated associations. The ALP has a National Constitution and the Victorian Branch has Rules.

It was common ground that the Victorian Branch was registered as a political party under the Electoral Act 2002 (Vic) (Victorian Act) and the ALP was registered under the Commonwealth Electoral Act 1918 (Cth) (Commonwealth Act).[2]
[2]Transcript of Proceeding (18 October 2018) 32.

The Victorian Branch has an Administrative Committee which relevantly includes the officers of the party and 30 other members elected by the State Conference as voting members (r 8.1.1.1). The functions of the Administrative Committee include arranging for the selection of party candidates for the Legislative Council of the Victorian Parliament (r 18.1).

The third defendant is Mr Samuel Rae, who is the State Secretary of the Victorian Branch, and has held this position since October 2016.

The fourth defendant is Mr Noah Carroll, who is the National Secretary of the ALP.

At the 2014 State election, Mr Daniel Mulino was elected to the Legislative Council, (being the upper house of the Victorian Parliament) in the Eastern Victoria Region in the number one position on the ALP’s ticket.

At some time in 2017, Mr Mulino nominated for, and was again pre-selected by the Victorian Branch to be its Position 1 candidate.

On 13 July 2018, following a redistribution of federal electoral division boundaries by the Australian Electoral Commission, a new federal electorate division ‘Fraser’ was created.

On 20 July 2018, the National Executive of the ALP determined that nominations for candidates to contest certain federal seats at the next House of Representatives election, including the newly created seat of Fraser, would open on 20 July 2018 and close on 23 July 2018.

On 23 July 2018, Mr Mulino nominated for pre-selection for the federal seat of Fraser. In an email addressed to Mr John Halloran, the Chief Returning Officer of the Victorian Branch he stated:

Dear John,
Please find attached a signed Nomination Form for the Federal seat of Fraser.
Also attached is a signed Parliamentary Deduction Authority Form and a copy of my Australian Citizenship Certificate.
Subject to Victorian ALP Rule 18.2.2 I commit to relinquishing my existing Public Office position within twelve months of being elected to the Federal seat of Fraser for which I now seek endorsement from the ALP National Executive.
I will provide the Victorian Labor Head office with my $500 nomination fee later today.
Regards,
Daniel Mulino
#63980

Mr Mulino was the sole nominee and thereby became the ALP’s endorsed candidate for Fraser (Federal Position).

A federal election could be called at any time. Such an election must, in any event, take place not later than May 2019 if the House of Representatives and half-Senate elections are to be held simultaneously.

In these circumstances the endorsement of Mr Mulino for the Federal Position raised issues as to the appropriate candidate for the (State) Position 1.

The next Administrative Committee meeting following close of nomination for the Federal Position was held on 26 July 2018. The agenda had already been determined such that the matter of Mr Mulino’s pre-selection for Fraser was not discussed at that meeting.

The next Administrative Committee meeting after that was held on 30 August 2018.

30 August 2018 meeting

An attendance sheet records that at the Administrative Committee meeting held on 30 August 2018 (Relevant Meeting), all 33 voting members (or their nominated proxies for that meeting) were in attendance. There were also three other non-voting members in attendance: Mr Rae, Mr Kosmos Samaras, and Mr Christopher Jones.

The meeting was chaired by Ms Hatice Hussein, the President of the Victorian Branch.

The minutes of the Relevant Meeting (Minutes) record that it commenced at 8.20 pm and closed at 9.00 pm. It further records:

Motion:
The Administrative Committee notes the correspondence of Mr Daniel Mulino MP dated 23 July 2018 regarding his preselection for the seat of Fraser and acknowledges that under Rule 18.6 [sic] of the Victorian Branch Rules his preselection for the number 1 position in the Eastern Victoria Region is no longer viable.
The Administrative Committee pursuant to rule 18.16 therefore re-opens nominations for the number 1 position of the Eastern Victoria Region immediately upon carriage of this motion, and closes nominations on Monday 3 September 2018 at 12 noon.
The Administrative Committee acknowledges that with the official Election campaign period beginning in less than 2 months, time does not permit the Party to conduct a full postal ballot of members. Should there be more than one nomination received, the Administrative Committee resolves under Rule 18.16 to determine the replacement candidate for the 2018 State Election via a ballot of Administrative members at a special meeting on Wednesday, 5 September 2018 at 6.30pm.

Moved: Michael de Bruyn
Seconded: Raff Ciccone CARRIED UNANIMOUSLY

The precise circumstances in which the voting was taken was the subject of oral evidence which will be described further below.

The Minutes were also subsequently adopted at a further meeting of the Administrative Committee on 27 September 2018. The draft minutes of this meeting record that a motion was carried ‘that the minutes of the meeting on 30 August 2018 be received and adopted.’

Pre-selection of Ms Garrett

On Thursday 30 August 2018 at 9.59 am, the Victorian Branch sent an email to party members stating that nominations had been opened for pre-selection for Position 1 on the ALP’s ticket for the Eastern Victoria Region of the Legislative Council with nominations to close by 3 September 2018 at 12.00 pm. Mr Barker received that email. That email detailed the documentation to be provided which included nomination forms to be signed by the applicant and 30 other financial members of the ALP who lived within the electorate that the applicant was nominating for.

On each of Wednesday 29 August, Thursday 30 August and Saturday 1 September 2018, Mr Barker worked 14-hour shifts as a firefighter. [3] Sunday 2 September 2018 was Father’s Day.
[3]Affidavit of Geoffrey Gordon Barker dated 12 October 2018 [2] and [4].

As at close of nominations on 3 September 2018 at 12.00 noon, Ms Garrett was the only person to have nominated.

On 3 September 2018 at 12.07 pm, Mr Barker submitted a nomination by email addressed to Mr Halloran, the Chief Returning Officer of the Victorian Branch. He also sent further nomination documentation by emails at 12.09 pm and 12.45 pm (this latter documentation included his birth certificate, licence and national police check).

Mr Barker says that he experienced significant difficulties in obtaining the signatures of 30 other members having regard, inter alia, to his work commitments and the short time period (which was a weekend and included Father’s Day). He also claimed to have experienced some technical issues associated with emailing the nomination documents.

On the same day (3 September 2018) at 12.22 pm, Mr Barker received an email response from Mr Jones, Operations Manager for the Victorian Branch stating:

Unfortunately you have missed the deadline which was 12 noon today.

As such I am unable to accept your nomination.

Later the same day at 4.23 pm, Mr Barker sent an email attaching a letter to Mr Halloran requesting that Mr Halloran refrain from making a ruling in relation to the validity of his nomination.

On 4 September 2018, Mr Barker received an email from Mr Jones providing Mr Halloran’s response that he was unable to accede to Mr Barker’s request.

Given only one nomination (Ms Garrett’s) had been received, on 4 September 2018, Mr Rae says that he then caused the Victorian Branch Operations Manager, Mr Jones, to send emails to the Public Office Selection Committee (POSC) Executive Members and Secretaries of Branches with eligible local pre-selection voters, notifying them, inter alia, that any objections to the nomination of Ms Garrett were required to be made within 10 days (pursuant to r 18.11).

No objections were received. It is the defendants’ position that Ms Garrett was thereby endorsed as the candidate for Position 1 pursuant to r 18.11.

Internal reviews

On 5 September 2018, Mr Barker lodged a complaint to the ALP Victorian Branch Disputes Tribunal (Disputes Tribunal) pursuant to r 20.8 of the Rules, against all members of the Administrative Committee, Mr Halloran and Ms Garrett as respondents. The complaint was made on 3 main bases:

(a) r 18.16 was inapplicable in the circumstances;

(b) the procedure in r 18.16 was not followed given there was ‘reason to believe’ that the resolution did not achieve the required 25 votes (75%); and/or

(c) procedural fairness and hardship issues in relation to the ‘severely truncated’ nomination process.

On 11 September 2018, Mr Barker sent an amended complaint to the Disputes Tribunal (by email addressed to the State Secretary) which contained additional submissions in relation to his complaint that the nominations process was not procedurally fair.

On 13 September 2018, the Disputes Tribunal (constituted by Mr David Cragg) held a hearing in relation to Mr Barker’s complaint. Mr Barker was represented by Counsel while Mr Rae appeared to present the position of the Victorian Branch. Mr Jones also attended.

Mr Barker says that written responses were provided by the Administrative Committee and Ms Garrett to the Disputes Tribunal and he did not receive a copy of them. However, Mr Rae says that he showed Mr Barker’s Counsel a copy of the written response relied upon by the Administrative Committee and that Mr Cragg referred to this response during the hearing.

On 14 September 2018, the Disputes Tribunal dismissed Mr Barker’s complaint and provided written reasons. In particular, the Disputes Tribunal could find no valid reason to rule against the actions of the Administrative Committee.

On 14 September 2018, Mr Barker lodged a notice of appeal with the National Appeals Tribunal (Appeals Tribunal) pursuant to cl 30(d) of the National Constitution (Notice)

On 27 September 2018, the Appeals Tribunal gave its recommendation to the ALP National Executive (National Executive) that leave to appeal not be given. The Appeals Tribunal was constituted by ALP member Mr Barrie Unsworth who stated that the Notice did not disclose an ‘arguable case’ and relevantly held:

The grounds of appeal that Mr Barker relies on for consideration by the National Appeals Tribunal relate to procedural fairness accorded to him by the Victorian Branch.
This overlooks the fact that his nomination was lodged after the closing time.
Clearly if a nomination was submitted to a State or Commonwealth Electoral Officer after the advertised closing time it would be rejected.
Nominations should be submitted well before closing time as a precaution against circumstances that Mr Barker found himself in.
In my view there are no grounds for appeal and I recommend to the National Executive accordingly, and that leave to appeal not be given.

On 2 October 2018, Mr Barker commenced the current proceeding by originating motion. Pursuant to orders made by Judicial Registrar Clayton of 10 October 2018 he provided grounds for his application through an outline of submissions filed on 12 October 2018.

Evidence

The plaintiff relied on affidavit evidence from Mr Barker[4] and also called the following witnesses under subpoena:[5]

(a)        Mr Mathew Hilakari;
(b)        Mr Kosmos Samaras; and
(c)        Ms Katherine Cozens.
[4]Affidavit of Geoffrey Gordon Barker dated 12 October 2018.
[5]By Orders of the Court made on 15 October 2018 the plaintiff was given leave to short serve 6 subpoenas.

The defendants relied on affidavit evidence from Mr Rae and Ms Hussein[6] and also called Mr Jones, all of whom were cross examined.
[6]Affidavit of Samuel Thomas Rae affirmed 16 October 2018; Affidavit of Hatice Hussein affirmed 17 October 2018.
The key focus of the oral evidence was centred on the plaintiff’s contention that the resolution carried at the Relevant Meeting was not in fact carried with the special majority of 75% (or 25 members out of 33) with the result that there was non-compliance with the relevant rule (18.16).
The submission involved a construction point as to whether r 18.16 necessarily required a special resolution for re-opening nominations, which is determined, below.
However, insofar as the evidence was concerned, it is necessary to refer to the standing orders contained in r 22 which applied to all meetings of ‘any… Committee within the Party’(r 22.1.1.).
The relevant parts of r 22 read:
22.3.4.10. All votes of the meeting shall be subject to the following procedure:
22.3.4.10.1.The Chair shall call upon those who support the question to say Aye, and those who are opposed to say No; and
22.3.4.10.2. he/she shall then declare the question carried or lost.
22.3.5. Any member not satisfied with the Chair’s decision may, by standing in his/her place, call for a show of hands. The Chair shall proceed to determine the question by calling upon those who support the motion to raise their right hands, and those opposed to act similarly. The Chair shall appoint two tellers to take the count and they shall be representative of the opposing viewpoints. When the tellers are agreed upon their count the Chair shall declare the result by quoting the figures for and against.
It was not in dispute that when the Chair put the motion in this case she asked those voting in favour to say ‘aye’ whereupon the members responded by saying ‘aye.’ She then asked those against to say ‘no.’ No member said ‘no’.
However, the plaintiff sought to suggest that there were 24 people (or less) who said ‘aye’ which (he submitted) would mean there was not a special resolution.
As will be seen below, the evidence fell into two groups on this issue.
The preponderance of the evidence suggested that people were generally unable to identify the number of ‘ayes’ at the time the vote was taken.
This may be contrasted with certain evidence of Ms Cozens who (over objection) gave an estimate that (only) ‘around 20’ people said ‘aye’. The submission of the plaintiff was that the only reliable evidence was that given by Ms Cozens.
Evidence other than Ms Cozens
Mr Hilakari attended the Relevant Meeting and said that the motion was put and ‘called on the voices.’ His recollection was that there was no call for a formal count or show of hands. He recalled people saying ‘yes’ or ‘aye’ when the motion was put but was unable to say how many. He did not know whether it was more or less than 24.
Mr Samaras attended part of the Relevant Meeting but was not present when the relevant resolution on pre-selection was put to the meeting.
After an objection was taken as to whether the an email dated 4 September 2018 was sent pursuant to r 18.11, Mr Jones, the Operations Manager of the Victorian Branch, was called by the defendants. Mr Jones manages and runs the internal operations of the Victorian Branch and reports to Mr Rae, the State Secretary.
Mr Jones gave evidence that he did send the email (whereupon the objection was withdrawn). He was then cross examined as to the Relevant Meeting.
He agreed that he was taking the Minutes and agreed that when the motion was put a number of people said ‘aye.’ He did not recollect that the number who said ‘aye’ was ‘not more than 24.’ He could not accurately describe the number of people who said ‘aye’. He took it to mean that everyone was in agreement. He could not recollect whether everyone said ‘aye’ or only some people said ‘aye’.
When asked about the numbers constituting factions in the party he also said he could not accurately describe them. Further, when asked if the ‘yes’ came from one side of the meeting and nothing was said on the other side or the room, he did not know.
In his affidavit, Mr Rae stated the following about the Relevant Meeting (which he attended as a non-voting member):
21. To the best of my recollection the Chair put the motion; she asked those voting in favour to say “aye”. At that point members responded by saying “aye.” She then asked those against to say “no”. No member said “no”. Nor did any member seek to record an abstention. The Chair then declared the motion carried. There was no request for a show of hands.
22. The practice of the Administrative Committee, in all of the meetings that I have attended is that, when a motion requires more than a simple majority, and there is no dissent, the minute records that the resolution was “carried unanimously”.

Under cross examination Mr Rae said he did not know if the number of people who said ‘yes’ or ‘aye’ was not more than 24. Further, that he had no recollection of the number of people who said ‘yes’ or ‘aye’. He also did not know if everyone actually said ‘yes’.
He agreed with the suggestion that the Right and Industrial Left factions combined had 21 votes, and thereby accepted that the Left had 11 (by deduction) and there was one independent. However he did not know that the only people who said ‘yes’ or ‘aye’ were members of the Right and Industrial Left faction and did not know whether any member of the left said ‘yes’.
His recollection was that the factions were spread randomly around the table. It was not his recollection that all the people who said ‘yes’ were on one side of the room. Rather, his recollection was that the ‘yes’s’ came randomly spread around the room.
Ms Hussein is the State President of the Victorian Branch and Chair of the Administrative Committee. Ms Hussein chaired the Relevant Meeting.
Ms Hussein’s evidence about the Relevant Meeting as set out in her affidavit was as follows:
3. After the motion was moved and seconded I put the motion by saying words to the effect “All those in favour, say “aye”.” I recall the members voted in favour by saying “aye”. I then said, words to the effect, “all those against say “no””. No one voted “no”. No one asked to record an abstention. No one called for a show of hands. I then declared the motion carried.
Ms Hussein also said that at the later meeting held on 27 September 2018 (of which she was also Chair), a motion adopting the draft minutes of the Relevant Meeting was put to the Administrative Committee and carried in the same manner.
Under cross examination Ms Hussein said that she asked for people to say ‘yes’ and did not count the people that did so. She then asked people to say ‘no’, and if there are no ‘no’s’, then she declares a motion carried.
Ms Hussein did not count the people who said yes and did not recall how many said yes.
She could not answer the question as to whether the number was not more than 24 because she did not count the number of people who said yes. She also rejected the suggestion put to her that ‘somebody’s got at you.’
Ms Hussein said that she did not know the numbers of the factional alignment. When asked if any member of the Left faction said yes she said she did not recall.
She did however recall that Mr Raff Ciccone and Mr Michael De Bruyn said ‘yes’ because she focused on the people moving and seconding the motion. She also recalled that Mr Samaras was outside the room.
Evidence of Ms Cozens
Ms Cozens presented as a somewhat tentative witness. Further to what appeared to be a desire to be helpful, she was prepared to provide positive estimates notwithstanding her obvious difficulties in recalling the exact number of people who voted.
Ms Cozens attended the Relevant Meeting as a proxy for Mr Eric Dearricott . She gave evidence that at the Relevant Meeting the State President (Ms Hussein) called for votes in favour and votes against the motion and that it was declared carried. Further, that there was no show of hands or count taken and agreed that some people said ‘yes’ or ‘aye’ when Ms Hussein asked for votes in favour.
Ms Cozens gave evidence (over objection) as follows:
Are you able to say approximately how many said “Yes” or “Aye”? --- That’s difficult, but I would estimate around 20.
She also gave evidence about what she observed as follows:
What’s your best recollection of your observation of what you saw when the motion was put and people said “Yes”– about the number of people who said it?--- It would have been impossible for me to know how everybody voted, because I couldn’t [look] around the room at 30 or so people when they said one word all at the same time. I know that I abstained and I know that the Socialist Left abstained. (emphasis added)
Counsel for the defendants objected to her statement that she knew that the Socialist Left abstained.
She also stated that she ‘believed’ there were 8 members of the Socialist Left faction aligned at the Relevant Meeting (which was also objected to).
Ms Cozens was then asked what her basis was for the estimate of 20 people that said ‘yes’ and she gave the following response:
There was a section of the room that was silent during the vote, which is where the Socialist Left had been sitting prior to the meeting and during the meeting. And the, you know, the strong chorus of voices voting in favour of the motion, came from the – to the left of me.
And are you able to estimate approximately how many people were sitting to the left of you?---Not clearly, no. (emphasis added)
Under cross examination, she agreed that no member of the Administrative Committee asked to record an abstention, though, in other instances when members had wanted an abstention recorded, they had asked for that to occur.
When it was put to her that the motion was carried unanimously she replied ‘I believe so, but again, I haven’t seen the minutes.’
Objections
There were three objections to Ms Cozens evidence:
(a)        the statement that she would estimate around 20 people said ‘yes’;
(b)        that she knew the Socialist Left abstained; and
(c)        that the number of members of the aligned Socialist Left faction was 8.
First, I am satisfied that the estimate of 20 members was an expression of opinion because it was an inference drawn by Ms Cozens from observed and communicable data.[7] It is therefore, prima facie, inadmissible under s 76 of the Evidence Act2008 (Vic).
[7]Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales & ACT (1998) 154 ALR 527, 532.
However, Counsel sought to admit the opinion on the basis of s 78 of the Evidence Act2008 (Vic) which provides:
78 Exception-lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if-
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
I am not satisfied that the opinion was based on what Ms Cozens saw, heard or otherwise perceived about the number of people who said ‘aye’ or ‘yes.’
Section 78 permits the opinion to be admitted without there being evidence of the primary facts on which the opinion is based, although the absence of such evidence, will make it harder to establish the condition of admissibility.[8]
[8]Lithgow City Council v Jackson (2011) 244 CLR 352, 376-377 [57] (per French CJ, Heydon and Bell JJ).
In this case, Ms Cozens did not give evidence that her estimate was based on observing or hearing how people voted. Indeed, she fairly acknowledged herself that it was impossible to know how everyone voted when they said one word all at the same time. Rather, her direct evidence was that her opinion was based on where people were sitting. However, on her own evidence, she was unable to identify where people were sitting since she could not estimate how many people were sitting to her left.
Her opinion, in fact, appeared to be largely based on who she believed to be in the Socialist Left faction. However, this is not something she saw, heard, or otherwise perceived about the numbers who spoke.
It follows that s 78(a) is not engaged.
In terms of s 78(b) the High Court has said that the function of the law in relation to lay opinion evidence that is admissible under s 78 is to:
…permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated.[9]
[9]Ibid 373 [48].
Ms Cozens’ estimate of the number of people who said ‘yes’ or ‘aye’ (if admissible) would not be necessary to obtain an adequate account or understanding of her perception of the vote. Thus, in the (unlikely) scenario where she was actually able to give evidence of where people were sitting, and whether they were silent, the court, as trier of the facts, would be able to draw an inference itself as to the number who actually voted. It would be unnecessary for Ms Cozens to provide a conclusory estimate so as to obtain an adequate account of what she perceived.
It follows that I do not consider the opinion to be admissible under s 78.
In any event, even if I was wrong about the admissibility of Ms Cozens’ evidence, I consider the estimate given to be unreliable. As highlighted already, Ms Cozens was unable to say how many people were sitting to her left with the result that she was unlikely to be able to estimate how many voices came from that section (or any other). Gaps in observations such as these are matters that I am entitled to take into account on the question of weight.[10]
[10]Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales & ACT (1998) 154 ALR 527, 531.
The form of her estimate was also tentative. Thus her words were: ‘[t]hat’s difficult, but I would estimate around 20.’ (emphasis added)
I would accordingly give the estimate little weight, even if it was admissible.
The evidence that ‘I know the Socialist Left abstained’ (emphasis added) is also inadmissible. Given, again, Ms Cozens was unable to say where people were sitting, her opinion could not be based on what she saw or heard at the meeting for the purposes of s 78. Nor were the conclusory statements necessary to obtain an adequate account of her perceptions. Moreover, if (as appeared to be the case) it was based on what people had said to her, it was hearsay.
Even if it was admissible, I would also give it little weight given the lack of foundation for what was essentially an asserted conclusion.
I consider, however, that Ms Cozens was entitled to give evidence of the number of members in the Socialist Left faction from her own personal knowledge, which she stated was 8.
Assessment of evidence
In oral submissions, Senior Counsel for the plaintiff submitted that the only reliable evidence on the issue as to number of speakers was that of Ms Cozens, whose best estimate was 20 people.
He submitted that the evidence of the other witnesses was unbelievable insofar as they had no recollection of how many people said ‘yes’ and could not even give an approximate recollection. He invited the Court to make ‘serious adverse findings about the credit of those witnesses…’ who ‘plainly came here to deceive the court about what happened…’.[11]
[11]Transcript of Proceeding (18 October 2018) 99.
First, I am unable to be satisfied that I should make adverse findings about the evidence of the witnesses, save for Ms Cozens. Each of those witnesses presented as straightforward, genuine witnesses. Mr Rae, in particular, presented as considered and responsive, evincing a willingness to provide information when he was able to do so. Moreover, in circumstances where an evening meeting is held and carried ‘on the voices’ it is not surprising that people are unable to say with any degree of accuracy (some weeks later) precisely how many voices he or she could separately identify. To some extent, this is in fact corroborated by Ms Cozens herself, given she fairly acknowledged that it was impossible to know how everyone voted because she ‘couldn’t [look] around the room at 30 or so people when they said one word all at the same time.’ She also highlighted that the listener was confronted with a ‘strong chorus of voices’ in this case.
Second, as I have highlighted already, even if the evidence of Ms Cozens was admissible, I have given it little weight. I instead prefer the preponderance of the evidence, which I found to be reliable. In particular, I prefer the evidence given by those witnesses who said people were unable to say how many people said ‘aye’ or ‘yes’.
Third, to the extent that any person was dissatisfied by the way the vote was counted, it was open to them to utilise the procedure contained in r 22.3.5 and call for a formal count. The fact that no-one sought to do so lends support to the fact that there was no contemporaneous dissatisfaction with the way the voting was recorded.
Overall, then, I am unable to be satisfied that only 20 people said ‘aye’ or ‘yes’ as claimed.

I am further unable to find (as put in the reply submission) that all 8 people of the Left faction together with Ms Cozens were silent (leaving only 24 actual votes in favour). Again, even if admissible, I would give little weight to the belief of Ms Cozens that the Socialist Left as a ‘block’ were silent. It is against the weight of the evidence that it was impossible to discern how many people spoke. It is also against the direct evidence of Mr Rae (which I prefer) that people were spread randomly around the room. There was also no direct evidence from any member purporting to be from the Socialist Left to this effect.

Grounds of Review

By Further Amended Originating Motion the plaintiff sought orders for:

1.A declaration that the resolution of the Administrative Committee of the Second Defendant made on 30 August 2018 to open nominations for the Legislative Council Eastern Victoria Region Position 1 was not in accordance with rule 18 of the Second Defendant and is void and of no force and effect.
1A. A declaration that the resolution of the Administrative Committee of the Second Defendant made on 30 August 2018 concerning the Legislative Council Eastern Victorian Region Position 1 was not a resolution determining the replacement candidate within rule 18.16.
2.A declaration that the State Secretary of the Second Defendant has not complied with his obligations under rule 18.11 of the Rules of the Second Defendant in relation to the nomination received from Ms Jane Garrett for the Legislative Council Eastern Victoria Region Position 1 on or about 3 September 2018.
3.A declaration that the decision of the Second Defendant to endorse Ms Jane Garrett as candidate for the Legislative Council Eastern Victoria Region Position 1 was not in accordance with rule 18 of the Rules of the Victorian Branch and is void and of no force and effect.
4.A mandatory injunction requiring the First and Second Defendants to set aside the decision endorsing Ms Jane Garrett as the candidate for the Legislative Council Eastern Victoria Region Position 1.
5.A mandatory injunction requiring the First and Second Defendants to re-open nominations for the Victorian Council Eastern Victoria Region Position 1 and to conduct the pre-selection for that position in accordance with the Rules of the Second Defendant.
6.Costs.
7.Such further or other relief as the Court may think fit.[12]
[12]Further Amended Originating Motion Between Parties filed on 18 October 2018 pursuant to the Order of the Honourable Justice Kennedy made 18 October 2018.

As indicated already, due to the urgency of the matter, the grounds were provided by way of the plaintiff’s outline of submissions (dated 12 October 2018).
The grounds will be dealt with, in turn, below.
However, in order to deal with the first two grounds it is necessary to set out the relevant Rules dealing with selections for public office.
Rule 18 provides for eligibility and selection of candidates to, inter alia, Legislative Council with the usual course being appointment by a POSC vote after a plebiscite by postal ballot of local voters (r 18.7).
Rule 18 also makes provision for the cessation of candidacy of existing endorsed candidates. Thus, r 18.14 makes provision for candidates who do not intend to renominate. Rules 18.15 to 18.17 further provide:

18.15. Endorsed candidates shall not withdraw from an election contest without the consent of State Conference or the Administrative Committee. Notice of intention to withdraw from candidacy shall be given no less than one month before the close of nominations for that Public Office.

18.16. The Administrative Committee may, in circumstances where the continued endorsement of a candidate is no longer viable, re-open nominations for any seat and upon nominations closing, if in the opinion of the Committee time does not permit, determine the replacement candidate provided such resolution is supported by 75% of all the Administrative Committee members.

18.17. Endorsed Public Office holders wishing to resign their office shall give adequate notification to the Administrative Committee of their intention to do so and will provide their reasons. Such resignations will only take place with the consent of State Conference or the Administrative Committee and in accordance with a timetable approved by State Conference or the Administrative Committee.

Ground 1 – non-compliance with rules 18.15 and 18.17
Plaintiff’s submissions

Mr Barker submitted that r 18.15 and 18.17 were applicable as Mr Mulino clearly ‘intended to withdraw’ his nomination for Position 1 and was able to seek the Administrative Committee’s consent to withdraw from the contest for that seat. Once the Administrative Committee gave such consent (which it was able to do), the normal pre-selection procedures provided for in r 18 could have been followed.
Mr Barker then submitted that r 18.16 was not applicable. He sought to construe r 18.16 as an emergency power that applies when something emerges about a candidate which shows him or her to be unsuitable and thus renders the continued endorsement ‘unviable’. Thus ‘unviability’ was general and not particular to a seat. That is, to be unviable for the (State) Position 1 he must also be unviable for the Federal Position.
In oral submissions it was emphasized that because Mr Mulino had been endorsed for a federal seat such that his endorsement for a federal seat was viable, then his endorsement for a state seat was also viable.
The essence of the submission was that r 18.16 ought be read down in the context of the surrounding rules with r 18.15 and 18.17 intended to cover the situation where a candidate no longer wished to be the endorsed candidate. This construction was also supported by the requirement of a resolution with a 75% majority (which was the case in only a few instances under the Rules).[13] It was also supported by the fact that the text referred to the ‘continued endorsement of a candidate’ generally, rather than the ‘continued endorsement of a candidate for a particular seat.’
Resolution
[13]Senior Counsel for the plaintiff submitted that only r 21.2.6.3 and r 21.2.8.3 required 75% majority of the Administrative Committee. These rules deal with the trustee who holds investment funds on behalf of the party and the exercise of other powers by the trustee. See Transcript of Proceeding (18 October 2018) 120.
The way the ground was expressed is not helpful since neither party suggested that there had been compliance with r 18.15 or 18.17. Thus, it was not suggested that Mr Mulino had sought to withdraw from candidacy, nor to resign his public office (instead, he simply included a standardised statement to the effect that he would relinquish his existing state position within 12 months of being elected to the federal office pursuant to r 18.2.2).
Simply because there was non-compliance with these Rules therefore did not advance the plaintiff’s case since the critical issue instead was whether there was non-compliance with r 18.16.
Turning to this issue, I do not accept the construction of the plaintiff.
First, as highlighted by the defendants, the word ‘viable’ is a straightforward term. According to the Macquarie Dictionary it is defined as ‘practicable; workable.’[14]
[14]Macquarie Dictionary, (at 23 October 2018) ‘Viable’, McMillan Publishers Australia 2018.
It was plainly open for the Administrative Committee to form the view that it was no longer ‘practical or workable’ for Mr Mulino to be presented on the ALP’s ticket for the State Position 1 in an election to be held in the next month, in circumstances where he had become the endorsed candidate for the Federal Position (where a federal election could be called at any time).

Second, I do not accept that viability was a general ‘all or nothing’ proposition such that Mr Mulino could be viable for a federal seat and unviable for a state seat. The consequence of ‘unviability’ is that the Administrative Committee may re-open nominations ‘for any seat.’ The question of viability is therefore focused on suitability for a particular seat. This is also consistent with other rules highlighting that candidate selection is directed to a particular electoral area (see for example r 18.7.1 and r 12.5.1).
In such circumstances there is nothing in the rule to suggest that a candidate must be ‘unviable’ for all seats for the clause to operate.
Third, I do not consider that r 18.15 and 18.17 exhaustively cover the field where a candidate no longer wished to be endorsed for a particular seat. There is nothing in the language of these rules to suggest that they are intended to be mutually exclusive. Moreover there is nothing in these surrounding provisions, nor r 18.16 itself, to suggest that the concept of being ‘unviable’ is only intended to operate in the case of emergencies.
In any event, both r 18.15 and 18.17 depend on specific action being taken by the existing candidate (timely notification). The Administrative Committee ought be entitled to act even in circumstances where no such notice is given (as occurred here).
Finally, insofar as the 75% resolution is concerned, as is found below, I do not consider that the issue of viability to be dependent on a resolution of 75% of all Administrative Committee members.
Overall, then I am not satisfied that there is any error shown insofar as r 18.15 and 18.17 were not complied with. More particularly, I am satisfied that it was open for the Administrative Committee to re-open nominations on the basis that the continued endorsement of Mr Mulino was ‘no longer viable’ pursuant to r 18.16.
Ground 1 is therefore not established.
Ground 2 – non-compliance with rule 18.16
There were two parts to this ground (as originally particularised):
(a)a construction issue as to whether 75% was required to re-open nominations; and
(b) a factual allegation that rule 18.16 (as correctly construed) was not complied with as there was in fact no 75% majority (despite the recording of a unanimous resolution).
On the day of the hearing a further (third) ground was raised as to non-compliance with r 18.16. In the result, the plaintiff was granted leave to file a Further Amended Originating Motion which included ground 1A, above. The essence of the complaint in support of this ground was that the form of the resolution on 30 August 2018 did not comply with both parts of r 18.16 (i.e. it was not a resolution determining the replacement candidate) with the result that there needed to be a further resolution in order for Ms Garrett to be endorsed as a candidate.[15]
(a)Construction issue
Plaintiff’s submissions
[15]Transcript of Proceeding (18 October 2018) 119, 187.
In relation to the first point, if r 18.16 was found to apply, Mr Barker submitted that a 75% majority was required, (rather than a simple majority) for the Administrative Committee to re-open nominations. The support for this construction was said to be on the basis that:
(a)if a resolution re-opening nominations could be passed by a simple majority, that could result in a deadlock where there is a simple majority for re-opening but no 75% majority for a replacement candidate; and
(b)it is consistent with the emergency nature of the power in r 18.16 that it would only be acted upon with the support of a special majority. Otherwise minority faction endorsed candidates would be at risk of having their endorsements declared unviable by a vote of a majority faction.
In oral submissions it was suggested that the rule was ambiguous as to whether the 75% requirement applied to the two limbs contained in r 18.16 (which were defined by both parties as the re-opening of nominations and the determination of the replacement candidate). Further, that deadlocks could be avoided by requiring 75% for both limbs.
Resolution
I do not accept the plaintiff’s submissions that r 18.16 imposes a requirement of a 75% majority on any resolution to re-open nominations.
First, I accept the submissions of the defendants that the language and structure of the rule suggests otherwise.
Thus, a natural reading of the words of the Rule suggest that the 75% majority only governs the determination of the replacement candidate. This is particularly supported by the fact that the two relevant decisions (to re-open nominations, as opposed to the decision to determine the replacement candidate) are separated by two intervening matters i.e. nominations closing and the formation of the relevant opinion. The use of the singular word ‘such resolution’ in the context of the determination of the replacement candidate also suggests that there is only one resolution, namely, the determination of the replacement candidate, which is to be governed by the 75% requirement.
The subject matter of the two relevant determinations is also necessarily separate. Thus, the second determination may be unnecessary if only one candidate has nominated. It is also perfectly natural that while the ordinary concept of ‘viability’ might be readily resolved without a special majority, the choice of a replacement candidate ought to involve more stringent requirements.
Second, the plaintiff’s concerns about the operation of the provision did not raise any reason to ignore the ordinary language of r 18.16. Thus, the plaintiff’s construction raises equally problematic outcomes. For example, as highlighted by the defendants, it leaves open the possibility of the ALP being left with an unviable candidate in circumstances where there was only a simple majority for re-opening. There was also no evidence raised to support the suggestion that minority faction endorsed candidates would be at risk of having their endorsements declared unviable by a vote of a majority faction.
In any event, much of the submissions raised went to the merits of the rule rather than its construction and did not warrant an effective rewriting of the provision.
Overall, then, I am not satisfied that r 18.16 imposes a 75% requirement on any resolution to re-open nominations.
(b) There was in fact no 75% majority for the resolution to re-open nominations
Plaintiff’s submissions
Given my findings on the construction point, above, the plaintiff cannot succeed on this ground since it was unnecessary for there to be a 75% resolution in favour of the re-opening of nominations.
Thus, it was not submitted in closing (nor could it be) that the resolution had failed to achieve a simple majority.
Nevertheless, for the sake of completeness, and given the evidence taken, I will consider this ground, if, contrary to the above, a special 75% majority was required to re-open nominations.
As highlighted already, Senior Counsel for the plaintiff highlighted the evidence of Ms Cozens who said she thought there were only about 20 members who voted in favour. Further (and presumably in the alternative), that her evidence supported that there were 24 members which was insufficient for a special resolution.
Counsel also relied on a decision of the Full Federal Court in No 5 Lorac Avenue Pty Ltd v Brooke (Lorac)[16] which stood for the proposition that a unanimous vote was not inconsistent with abstentions.
Resolution
[16](1995) 16 ACSR 247.
The decision in Lorac was concerned with a deed of company arrangement wherein rights of certain creditors would be subordinated to others. Under s 444D of the Corporations Law (Cth) a secured creditor was prevented from dealing with its security only if the deed of company arrangement so provided and only if the creditor ‘voted in favour of the resolution adopting the deed.’
In that case, the Chairman’s declaration recorded that a vote in favour of the company arrangement was ‘carried unanimously’. However, the appellant’s agent deposed that he had actually abstained from voting.
The critical question was whether reg 5.6.19 in the Corporations Regulations which made the Chairman’s declaration conclusive evidence of the result, meant that the appellants were taken to have voted in favour of a resolution (for the purposes of s 444D) even if it was established that the appellant’s agent did not cast a vote at all.
The Full Court of the Supreme Court of Victoria remitted the matter to the lower court on the basis that the issue of whether the appellants actually voted should be decided on the evidence.
The Court considered that the expression ‘carried unanimously’ in the particular context of reg 5.6.19 simply meant that those who did vote voted in favour and there was no vote against. It did not say that every creditor present voted and should not be read so the appellants must be taken to have voted in favour of the resolution - for the purposes of s 444D - if they did not.
I do not consider the decision to be of assistance to the plaintiff in the current case.
First, there is nothing in the decision to suggest that the result of the meeting itself was to be overturned as the plaintiff seeks to do in the current case. To the contrary, as stated by Phillips J, he agreed that the purpose of reg 5.6.19 was to ‘preclude argument about the result of the meeting’ (which was still unanimous).[17] However, the issue in that case turned on what was the meaning of the declaration that the motion was carried ‘unanimously.’ The fact that the result could still be ‘unanimous’ even where not every person present voted does not assist the plaintiff.
[17]Ibid 253.
In any event, the particular context in Lorac was very different, concerning particular Corporations Regulations. It also concerned a situation where the conclusive evidence provision might deprive a secured creditor of the benefit of its security. In such circumstances, as explicitly stated by Ormiston J, conclusive evidence clauses were to be read and applied with caution.[18]
[18]Ibid 259.
It is noteworthy, moreover, that there was some direct evidence in that case that the relevant creditor (through his agent) had not actually ‘voted in favour’ of the resolution. In this case, by way of contrast, there was only direct evidence from one member, Ms Cozens, that she had actually ‘abstained.’
Returning to the evidence in this case, the minutes of the Relevant Meeting record a unanimous resolution.
The evidence of Ms Cozens herself was also that there was a ‘strong chorus of voices’ voting in favour of the motion.
The evidence was that there were also no ‘no’s.’
There was further no suggestion that any member was dissatisfied with the resolution as no call for a show of hands and count was made pursuant to r 22.3.5.
The draft minutes of the 30 August 2018 meeting were further adopted as correct by a further meeting of the Administrative Committee on 27 September 2018.
There were also no abstentions recorded even though Ms Cozens accepted that, in other instances when members had wanted an abstention, they had asked for that to occur.
There was hence a strong set of evidence which supported that the resolution was carried unanimously.
Against this evidence, the plaintiff seeks to rely on the evidence of Ms Cozens alone. Thus, save for Ms Cozens, the plaintiff called no direct evidence from anyone that they did not vote for the resolution and/or did not support it.
First, I am of the view that, even if (which is not the case), the evidence established that only 24 people said ‘aye’ or ‘yes’ I do not consider this would weigh against the resolution being unanimous. Thus I consider that the evident purpose of the relevant standing orders is that the Chair’s decision should stand absent objection being taken under r 22.3.5.
Thus, if any member was dissatisfied with the Chair’s decision, he/she was entitled to call for a show of hands and a proper count under r 22.3.5. In the absence of such a course, I consider that members present ought be bound by the result declared at the meeting ie that the resolution was ‘unanimous’ (meaning that the meeting was of ‘one mind’ or ‘of one opinion’ as described by Tadgell J in Lorac).[19]
[19]Ibid 254.
Such a construction is not only consistent with the terms of r 22.3.4 and 22.3.5, but would avoid the somewhat artificial task sought to be undertaken here of revisiting a vote taken several weeks earlier.
Given this construction of the rules in this case, I consider that the unanimous resolution should stand even if it was shown that 24 people, or less, said ‘aye’ or ‘yes’ (as the plaintiff submitted).
However, even if I am wrong about this, for reasons already given, I am unable to be satisfied that only 20 people said ‘aye’ as Ms Cozens claimed. I am further unable to find that 8 (alleged) members of the left faction together with Ms Cozens were silent.
I accept that Ms Cozens was silent as she says. However, even accepting that the vote should be reduced by one (notwithstanding her failure to express satisfaction and/or record her abstention), this does not establish that the recorded resolution was passed with less than 75%.
If, then, contrary to my construction finding, a resolution calling for nominations required a 75% majority under r 18.16, I am not satisfied that there was non-compliance.
(c) Whether a further resolution was required to endorse Ms Garrett
Plaintiff’s submissions
The essence of the complaint in support of this ground was that the form of the resolution did not comply with both limbs of r 18.16 and that there needed to be a further resolution in order for Ms Garrett to be endorsed as a candidate.
In support of this ground the plaintiff also sought to place emphasis on a passage in the defendants’ submissions at paragraph 83:
The practice of the Committee has been to record that a motion is carried unanimously where it requires more than a simple majority and there is no dissent. That was the case here because, in the final paragraph of the motion, the Administrative Committee acknowledged that time did not permit a postal ballot of members and resolved under r 18.16 to determine the replacement candidate if more than one nomination was received. Such a resolution engaged the second part of r 18.16 and required 75% support.
The plaintiff challenged this and said that the resolution of 30 August 2018 was not in fact a resolution within the second limb of r 18.16.
Resolution
Counsel for the defendants submitted that paragraph 83 of their submission extracted above was included by way of explanation only i.e. that the Committee was resolving in advance that it would schedule another meeting to determine the candidate if there was more than one nomination. Given there was not more than one candidate the second part of the motion was ultimately otiose.
The defendants also did not rely on the resolution contained in the last paragraph (or any further resolution) as to the actual endorsement of Ms Garrett. Rather they relied on the terms of r 18.11.
I accept the defendants’ submissions that the second part of the motion was ultimately unnecessary and of no consequence. Thus, it only applied ‘should there be more than one nomination received.’ Given there was only one nomination received it had no operation.
Insofar as r 18.11 is concerned, it provided as follows:
Where only one nomination is received for an electorate, the State Secretary shall forthwith notify in writing the POSC Executive and the Secretaries of all Branches with eligible local pre-selection voters of the nomination, and shall advise that, unless 20% of the Central panel or 20% of the local pre-selection voters object to the acceptance of the nomination within 10 days of such written notification, the nominee shall be endorsed as candidate. If there is an objection, the selection panel shall meet so as to determine whether the nominee shall be endorsed as candidate or nominations shall be re-opened.
As will be seen below, I am satisfied that r 18.11 was complied with.
An ordinary reading of r 18.11 also suggests that, in the absence of objections, the nominee ‘shall be endorsed’ without any further action from anyone. More particularly, the plaintiff did not point to anything in this rule, or any other rule, which suggested that a further resolution of the Administrative Committee was necessary where only one nomination was received. To the contrary, the plaintiff accepts that r 18.11 is applicable (in pursuit of ground 4).
The fact that the resolution of 30 August 2018 was not a resolution which actually determined the replacement candidate is therefore of no consequence since I am not satisfied that any further resolution was necessary by reason of r 18.11.
For all of the above reasons the plaintiff has not established ground 2.
Ground 3 – non-compliance with National Constitution
Plaintiff’s submissions
Mr Barker relied on the National Principles of Organisation contained in Part D of the National Constitution (NPOs). He submitted that the ‘severely truncated’ pre-selection process for Position 1 did not comply with cls 35(b) and 40(a) of the Constitution and deprived him of his entitlement to stand for pre-selection, and additionally, deprived party members of their rights to vote in the pre-selection.
In oral submissions, Senior Counsel submitted that Mr Barker made a complaint directly on his own behalf in respect of cl 35(b) and ‘on behalf of all members’ in the electorate in respect of cl 40(a).
Resolution
Clause 31 provides that the NPOs are those provisions of the National Constitution ‘intended to be binding specifically on state branches and implemented through their rules.’
The NPOs then address a range of matters or principles to be addressed by the rules.
Clauses 36 of the Constitution relates to Members’ rights and provides:
The following are to be established as minimum standards:
(a)The process of joining the Party shall be simplified and all unnecessary impediments to that process shall be removed from state branch rules.
(b) Subject to any attendance requirements in the state or territory, full membership rights in all states and territories shall begin to accrue in accordance with the relevant state requirements and those rights shall accumulate, to a maximum, following two years consecutive membership. These rights include: being eligible for preselection; standing and voting for or standing on, the various Party bodies and executives.
(c) Each state branch must adopt rules that establish an appeals process in relation to compliance with and enforcement of branch rules by members, affiliated unions and constituent units of the branch, such rules to be submitted to the National Executive for approval by 1 November 2003. The appeals process must include compliance with the rules of procedural fairness, expedited hearings and written reasons for decision.
Clause 40 of the National Constitution deals with Pre-selections and provides:
(a) Any member who meets the membership eligibility requirements shall be entitled to participate in voting for a candidate in any preselection covered by the applicable boundaries within which they reside, subject to paragraph (c).
(b)The only residential boundaries that can affect that right are those devised by either federal, state or municipal electoral commissions. That is, the entitlement is guaranteed by the publicly known and independently drawn boundaries of respective electoral commissions. Therefore, if you live within the respective electorate and meet other criteria within the rules you are eligible to vote in the preselection.
(c)To ensure the integrity of preselection ballots, no member shall receive a vote in any preselection unless that member is correctly enrolled with the Australian Electoral Commissioner to vote in a federal election. The member’s address for the purposes of preselection will be their enrolled address.

Significantly, Part D also contains its own provisions for implementation of the NPOs as follows:
Implementation of National Principles of Organisation
45 The National Executive will monitor the implementation of these National Principles of Organisation in consultation with the state branches. These principles will apply equally to all state branches unless otherwise stated.
State branch rule changes
46 All state branch rules must be revised in accordance with these National Principles of Organisation as amended at the National Conference held in December 2011, and be submitted to the National Executive for endorsement no later than 31 December 2013.

This ground is rejected.
First, I accept the submission of the defendants that Part D is not intended to, and does not, create rights that are directly enforceable by members in legal proceedings. Rather, it identifies principles that are required to be implemented through state branch rules and specifies the mechanism by which that implementation is to be secured. Ground 3 must fail for that reason alone.
In any event, I do not accept that the actions of the Administrative Committee infringed the principles identified.
Clause 36(b) is relevantly concerned with a minimum temporal standard to be implemented in state rules (being 2 years) in order for members to have a right to be ‘eligible’ for pre-selection.
There is no complaint that the 2 year requirement was breached in this case since r 18.2 of the Rules relevantly prescribes only a 12 month standard. More significantly, the complaint of the plaintiff is not directed to his eligibility as a candidate (as is set out in the Rules at r 18.2), but rather at his inability to meet a deadline for nominations. This does not give rise to any breach of cl 36(b).
Clause 40 is also concerned with the circumstances in which a member will be ‘entitled’ to participate in voting for any pre-selection, including requirements as to membership eligibility, residential boundaries and enrolment requirements. It does not address the issue of whether there must be a vote of members held for every pre-selection.
It is also the case that pre-selection voters were given the opportunity to participate here given the compliance with r 18.11, discussed below.
Ground 3 is not established.
Ground 4 – non-compliance with rule 18.11
Plaintiff’s submissions
As an alternative to ground 2 above, the plaintiff submitted that there had been no notification to the POSC Executive or branch secretaries as required by r 18.11 as set out above.
However, in oral submissions the ground was contained so that the complaint was that it was Mr Jones, State Operations Manager, who sent the notification rather than Mr Rae, the State Secretary.[20]
[20]Transcript of Proceedings (18 October 2018) 108.
Hence, the ground was reduced to the issue of whether the State Secretary was personally required to send the relevant notifications.
Resolution
The evidence was that Mr Rae ‘caused’ Mr Jones to send the emails (which Mr Jones then sent).
The actions of the State Secretary in arranging for his operations manager to forward the emails was sufficient compliance with the provision that he ‘notify’ the relevant persons. There is nothing in r 18.11 which suggests that a State Secretary may not rely on systems and assistants to undertake day to day administrative tasks like this. There was also no suggestion that the actions of the State Secretary had been ineffective i.e. it was not suggested that the notifications failed to send.

Ground 4 is not established.

Ground 5 – procedural fairness

Plaintiff’s submissions

The plaintiff made reference to r 20.10.1.1 which provides that the Disputes Tribunal must comply with the rules of procedural fairness and submitted that the hearing before the Disputes Tribunal and the Appeals Tribunal produced clear breaches of the rules of procedural fairness, namely that:

a. the Administrative Committee and Ms Garrett produced written responses to the complaint as required by r 20.8.5 which were not provided to the plaintiff;

b. The State Disputes Tribunal concluded that the resolution of 30 August 2018 was passed by the Administrative Committee “unanimously”. Despite three requests for the minutes, list of attendees and proxies held at this meeting, the Disputes Tribunal failed to direct the Administrative Committee to provide such evidence to the plaintiff.

c. Neither the State nor the National Tribunal considered the grounds of the plaintiff’s complaint.

The remedies sought in this case seek to directly impeach the resolution of the Administrative Committee as the effective decision-maker (which decision had not been disturbed by the actions of the appeal bodies) and further to overturn the decision to endorse Ms Garrett. There is no remedy sought for a remittal to an internal appeal body in circumstances where there would be no time for a reconsideration.

In the light of these matters, Senior Counsel for the plaintiff conceded that ground 5 was not an independent ground in that no relief would flow from ground 5 unless the plaintiff was successful on one of the other grounds.[21]

Resolution

[21]Transcript of proceedings (18 October 2018) 114 - 115.

Given my findings above that none of the other grounds are successful, it is unnecessary to consider this ground.

I would however make the following comments for the sake of completeness:

(a) As to Mr Rae’s written response (on behalf of the Administrative Committee), he gave unchallenged evidence that he showed a copy of this response to the plaintiff’s Counsel at the hearing. There is no evidence as to the contents of Ms Garrett’s response[22]. In the current circumstances, I am thereby unable to be satisfied whether procedural fairness was denied in circumstances where I have no details as to the content of that document;
[22]Although notices to produce were served in relation to a variety of documents, no notice was served in relation to this response.

(b) The plaintiff appears to have received copies of the minutes/ the form of the resolution from somewhere given he cites from the resolution in his complaint (in his submission of 5 September 2018);

(c) I am unable to be satisfied that the relevant tribunals failed to consider the grounds of the plaintiff. In any event, in the light of the approach of the Appeals Tribunal (that because the nomination was late it would have to be rejected), it does not appear that any such failure could have made a difference to the ultimate decision.[23]

[23]Stead v State Insurance Commissioner (1936) 161 CLR 141, 145.

Remedy & Discretion

It is unnecessary to consider the question of remedy given I am not satisfied that any relevant ground has been established.

However, given I would have refused relief in any event pursuant to my discretion it is appropriate that I express my views, briefly, on this subject.

Defendants’ submissions

The defendants raised 3 issues in support of the position that no remedy ought be granted: hardship; futility; and the relevant Rules.

In terms of hardship, Mr Rae stated the orders would cause significant hardship to Ms Garrett and other ALP candidates contesting the election in the Eastern Victoria region in planning campaigns and campaigning. He further stated:

During the period between the decision of the Court and the re-determination of the candidate, campaigning by ALP candidates for election to the Legislative Council in the Eastern Victoria Region would be severely constrained by the absence of a candidate in the number one position on the ALP’s ticket, and the capacity of ALP candidates for Legislative Assembly in electorates in the Eastern Victoria Region to campaign with ALP candidates for the Legislative Council in the Eastern Victoria Region candidates would be similarly constrained. For example, joint promotional material could not be prepared and distributed. I also expect that the absence of an endorsed candidate in the number one position on the ALP’s ticket would be highlighted by non-ALP candidates in their own campaigning. I expect that these circumstances could damage the prospects of ALP candidates in the forthcoming State election.
The further pre-selection process would also divert the time and resources of those involved in that process, away from campaigning for the State election.

Mr Rae also said that if the Court were to order that Ms Garrett’s nomination were to be set aside on 18 October, the Administrative Committee would ‘barely have time’ to make necessary arrangements to select a candidate prior to close of nominations on 8 November 2018.

In terms of utility, Mr Rae stated that the National Executive may, either at its own initiative or at the request of the Victorian Branch or another person, intervene and use its plenary powers under cl 16(d) of the National Constitution to determine the endorsed candidate, which provides that:

Subject only to National Conference, the National Executive may exercise all powers of the Party on its behalf without limitation, including in relation to the state branches and other sections of the Party.

Finally, the defendants submitted that the rules were expressed to not create legally enforceable rights or obligations. This provided a further discretionary reason to refuse relief.

Resolution

If there had been a ground established, I would not consider cl 16(d) provided grounds for exercise of discretion against all remedies in circumstances where there is no evidence as to how the National Executive may choose to exercise its power. It may however have prevented a mandatory injunction determining the precise process to be followed in re-opening nominations (the subject of paragraph 5 of the Further Amended Originating Motion).

However, the other two factors raise different considerations.

In terms of the relevant Rules, r 23 provides as follows:

RULES NOT ENFORCEABLE IN LAW

23.1 It is intended that these Rules and everything done in connection with them, all arrangements relating to them (whether express or implied) and any agreement or business entered into or payment made by or under them, will not bring about any legal relationship, rights, duties or outcome of any kind, or be enforceable by law, or be the subject of legal proceedings. Instead all arrangements, agreements and business are only binding in honour.

23.2 Without limiting Rule 23.1, it is further expressly intended that all disputes within the Party, or between one member and another that relate to the Party be resolved in accordance with these Rules and the National Constitution and not through legal proceedings.

23.3 By joining the Party and remaining members, all members of the Party consent to be bound by Rule 23.

Clause 2 of the National Constitution similarly provides:

Legal status of National Constitution

(a) It is intended that the National Constitution and everything done in connection with it, all arrangements relating to it (whether express or implied) and any agreement or business entered into or payment made or under the National Constitution, will not bring about any legal relationship, rights, duties or outcome or any kind, or be enforceable by law, or be the subject of legal proceedings. Instead all such arrangements and business are only binding in honour.

(b) Without limiting clause 2(a), it is further expressly intended that all disputes within the Party, or between one member and another that relate to the Party be resolved in accordance with the National Constitution and the rules of the state branches and not through legal proceedings.

(c) By joining the Party and remaining members, all members of the Party consent to be bound by this clause.

Although these provisions may not oust the jurisdiction of the Court, I accept that they are relevant as a matter of discretion. For example, in Sullivan v Della Bosca,[24] rules to similar effect gave ‘added reason’ to refuse to make the relevant declaration.[25]
[24][1999] NSWSC 136.
[25]Ibid [2], [28].

There is a real issue as to whether there is any utility at all in the current application. Mr Rae’s evidence was that there was ‘barely’ enough time to make the necessary arrangements to pre-select a candidate (as at 18 October). Senior Counsel for the plaintiff also proposed a timetable wherein nominations actually close tomorrow, (26 October 2018).

However, presuming that any relief would have utility, if an order was made to re-open nominations, the Victorian Branch would be left in the interim without a known candidate in circumstances where an election is imminent. The evidence of Mr Rae supported that this would be highly disruptive.

It is significant that all members have signed up to resolve disputes outside the Court. In such a situation, the Court ought be careful to intervene for the benefit of one member, where intervention is so disruptive for the organisation as a whole. This is particularly so in this case where, even if rules about the relevant meeting were breached, no contemporaneous point of objection was actually taken.

Overall, then taking into account the relevant rules and the highly disruptive consequences, I would have refused relief as a matter of discretion even if, contrary to the above, any of the grounds had been established.

Justiciability

It is unnecessary to determine justiciability in circumstances where no grounds have been made out. However this issue will be considered, briefly, out of deference to Counsel’s submissions.

The defendants submit that this Court is bound by the High Court in Cameron v Hogan[26] (Cameron) and the dispute is not justiciable.
[26](1934) 51 CLR 358.

The plaintiff says Cameron is distinguishable from the current case, due to amendments to the Commonwealth Act and enactment of the Victorian Act. He also relies on examples of Supreme Court decisions where Cameron has been so distinguished.

Authorities

Cameron concerned a former leader of the Victorian Branch who sought declaratory and injunctive relief as well as damages in relation to his candidacy at a State election. He alleged that the party’s decision to withdraw its endorsement of him and exclude him from the party’s membership was beyond its constitution.

The High Court (Rich, Starke, Dixon, Evatt and McTiernan JJ) in Cameron held that the rules did not operate to create enforceable contractual rights, nor did the plaintiff have a proprietary right as entitled him to a declaration or injunction.

However, since Cameron was decided (in 1934) a number of judges have distinguished the decision by reason of the introduction/changes to electoral legislation by Commonwealth and State Governments which, among other things, require political parties to be registered and provides parties with public funding.[27]
[27]The Commonwealth system of registration commenced in 1984, established by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) s 42, inserting pt XI into the Commonwealth Act. The Victorian system of registration also commenced in 1984, established by the Constitution Act Amendment (Electoral Legislation) Act 1984 s 38, inserting div 1A into pt V of the Constitution Act Amendment Act 1958. In 2002, pt V of the Constitution Act Amendment Act 1958 was repealed and replaced by pt 4 of the Victorian Act.

The most significant case that distinguished Cameron is Baldwin v Everingham,[28] (Baldwin), a decision of Dowsett J of the Queensland Supreme Court.
[28] Baldwin [1993] 1 Qd R 10.

In Baldwin, the plaintiff had been excluded from consideration for the candidacy for a Federal seat of the Liberal Party, allegedly in breach of the party’s constitution.

Dowsett J acknowledged that if Cameron applied then he must apply it. However, he distinguished Cameron on the basis that ‘the Commonwealth Parliament, in conferring legislative recognition upon political parties has taken them beyond the ambit of mere voluntary associations.’[29] His Honour followed earlier High Court authority Edgar and Waler v Meade[30] (Edgar) and concluded that Isaac J’s reasoning and conclusion in Edgar (that a trade union dispute was justiciable) should also lead him to conclude that disputes concerning the rules of political parties registered under the Commonwealth Act were also justiciable.[31]
[29]Baldwin [1993] 1 Qd R 10, 20.
[30](1916) 23 CLR 29.
[31]Baldwin [1993] 1 Qd R 10, 20.

Baldwin has been followed by Supreme Court Justices in a number of cases, for example, in South Australia in Clarke v ALP (SA Branch) (Clarke)[32]; in New South Wales in Coleman v Liberal Party of Australia, New South Wales Division (No 2)[33] (Coleman); and in Victoria in Butler v Mulholland (No 2)[34] (Butler).

Resolution

[32](1999) 74 SASR 109, 139 [91].

[33](2007) 212 FLR 271, 279-280 [40].

[34][2013] VSC 662 [96]-[105].

The Victorian Act includes provisions regarding registration of political parties (pt 4). Part 12 also includes provisions regarding entitlement for funding assistance from public monies (for example, s 211) as well as obligations to account for that money by the filing of returns (for example, s 208).

In the light of these provisions, I consider the analysis of the single Justices in distinguishing Cameron is correct. Insofar as this case is concerned, the identification of the endorsed candidate (pursuant to s 69(2) and s 69A(2)) may be seen as important for the proper working of the Victorian Act and thereby designed to effectuate the conduct of State elections. This is similar to the approach taken by Robson J in Butler, namely, that the identification of the secretary and the secretary’s role in registration was important for the proper working of the Victorian Act.[35]
[35]Ibid [104].

The defendants in the present case submitted that Baldwin was wrongly decided because of differences between the Commonwealth Conciliation and Arbitration Act (Conciliation Act) (considered in Edgar) and the electoral legislation, specifically that the Victorian Electoral Act does not regulate the internal affairs of the political parties (as compared with the Conciliation Act). They also refer to cl 2 and r 23 cited earlier, that suggest that these provisions make clear that no legally enforceable rights were to be created.

It is true that there are differences between the Victorian Act and the Conciliation Act. However, broadly similar arguments were advanced by the defendants in Clarke, and rejected.[36] In any event, the analysis of Isaacs J does not appear to expressly state that the Act has to intend to regulate the internal affairs of an organisation. Rather, as highlighted by Dowsett J in Baldwin, a key factor in the analysis of Isaacs J was that recognition of the organisation in the (relevant) Act effectuated the purpose of that Act. As he stated:

…statutory recognition of political parties is obviously a matter of public policy, designed to effectuate the conduct of federal elections, to adopt and adapt the language of Isaacs J.[37]

[36]Clarke (1999) 74 SASR 109, 135-139 [72]–[91].

[37]Baldwin [1993] 1 Qd R 10, 20.

Insofar as the Rules are concerned, even where such statements of intention are included, courts have not tended to treat them as a factor conclusive of justiciability but rather as a matter relevant to discretion.[38] This is consistent with the approach I have taken above.
[38]See for example, Sullivan v Della Bosca [1999] NSWSC 136 [2], [29]; Coleman (2007) 212 FLR 271, 280-281 [41]-[49]; Clarke (1999) 74 SASR 109, 134 [69].

Overall, then, I consider that the better view is that the current dispute is justiciable.

Conclusion

The proceeding will be dismissed.

I will hear from the parties as to the question of costs.

SCHEDULE OF PARTIES

BETWEEN:
GEOFFREY GORDON BARKER	Plaintiff
- and -
AUSTRALIAN LABOR PARTY	First Defendant
- and -
AUSTRALIAN LABOR PARTY (VICTORIAN BRANCH)	Second Defendant
- and -
SAMUEL RAE	Third Defendant
- and -
NOAH CARROLL	Fourth Defendant

[2018] VSC 596

25 October 2018