Camenzuli v Morrison & Ors

[2022] HCATrans 60

[2022] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S45 of 2022

B e t w e e n -

MATTHEW CAMENZULI

Applicant

and

THE HON. SCOTT MORRISON MP

First Respondent

CHRISTINE McDIVEN AM

Second Respondent

THE HON. DOMINIC PERROTTET MP

Third Respondent

THE HON. ALEX HAWKE MP

Fourth Respondent

THE HON. SUSSAN LEY MP

Fifth Respondent

TRENT ZIMMERMAN MP

Sixth Respondent

THE HON. PHILIP RUDDOCK AO

Seventh Respondent

THE HON. JOHN OLSEN AO

Eighth Respondent

Application for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 8 APRIL 2022, AT 4.00 PM

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR S. ROBERTSON appears with MR A.R. LANGSHAW for the applicant.  (instructed by Pryor, Tzannes and Wallis Solicitors and Notaries)

MR G.O’L. REYNOLDS, SC appears with MR D.A. WARD for the first, second, third and eighth respondents.  (instructed by Thomson Greer)

MR A.A. TSACALOS appears for the fourth, fifth and sixth respondents.  (instructed by Clayton Utz)

MR S.J.P. DUGGAN appears for the seventh respondent.  (instructed by Harpur Phillips)

KIEFEL CJ:   Yes, Mr Robertson.

MR ROBERTSON:   Your Honours, this application raises an important question, and to the circumstances of which a court may quell controversies arising from the application of the rules of an unincorporated political party.  That, as your Honours know, is a question with which lower courts have struggled over the past 90 years or so, and indeed which has generated two inconsistent intermediate appellate court decisions within six weeks of each other, the first being the judgment below, the earlier one being the decision of the Victorian Court of Appeal in Asmar v Albanese (2022) VSCA 19.

If special leave to appeal is granted, we will submit that the New South Wales Court of Appeal took an unduly narrow approach to the question of justiciability of political party disputes.  We will submit that, properly understood, this Court’s decision in Cameron v Hogan is directed to the proposition that courts are concerned with the ascertainment and enforcement of legal rights and interests and not, for example, obligations binding only in honour and not in law.

We respectfully submit that it is not inconsistent with that proposition for a court to quell a controversy concerning the status of a person for the purposes of a statute, even if the quelling of that controversy would require the court to construe and apply the rules of an unincorporated political party.  At least as we read the written submissions, there is no contest as between the parties that a special leave question is raised by way of the application for special leave that is before your Honours.

The principal defence, or the principal points in response raised by the first, second, third and eight respondents, seem to be focused principally on vehicle and, to some extent, on ultimate prospects of success of an appeal, in the event that special leave is granted.  In our respectful submission, this case provides an appropriate vehicle to determine the important question of the justiciability of political party disputes, and in particular to resolve what is now a clear conflict in the authorities between the New South Wales Court of Appeal and the Victorian Court of Appeal.

KIEFEL CJ:   A difference of opinion between courts does not mean that a grant of special leave follows, of course, Mr Robertson.

MR ROBERTSON:   Of course.  It is at least – it is a factor, and we would respectfully say a very strong factor as to why, so long as your Honours are satisfied that this is an appropriate vehicle and there are no other reasons against a grant of special leave, that your Honours would grant special leave to appeal.  I accept entirely that simply identifying a difference of opinion between the courts of appeal is not enough, and I will seek leave ‑ ‑ ‑

GAGELER J:   May I say, I have lost vision of the Chief Justice.  I do not know if others have as well.  I can hear the Chief Justice, I cannot see her.

KIEFEL CJ:   I see.  Thank you, Justice Gageler.  We will adjourn briefly so we can see if we can re‑establish that link.

AT 4.03 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.05 PM:

KIEFEL CJ:   I think that has resolved the matter now.  Yes, thank you.  Yes, the question of the appropriateness of the matter as a vehicle for reviewing the difference of view, Mr Robertson, has largely – one the larger question is usually prospects of success, particularly on the substantive question.

MR ROBERTSON:   Quite so.  Can I move immediately to that.  In our respectful submission, this application does provide an appropriate vehicle.  I have just lost the Chief Justice’s vision as well.  I am happy to continue if her Honour the Chief Justice can hear me.

KIEFEL CJ:   I am sorry, that was entirely my fault.

MR ROBERTSON:   We accept that it is appropriate to have regard to whether or not this application is an appropriate vehicle in order to deal with that important question of the inconsistency between the intermediate appellate court authority, including appropriately considering the ultimate prospects of success.

In our respectful submission, this application does provide an appropriate vehicle in circumstances where, although in order for the appeal…..is successful, your Honours would need to consider a question of contractual construction.  That is a relatively narrow question of contractual construction, or at least constitutional construction – construction of the Federal Constitution ‑ in relation to a single clause in respect of which my client has, we would say, at least reasonable prospects of success.

The judgment below identified the point that my client unsuccessfully put below as being one that was capable of being put and put “with clarity and concinnity” – see paragraph 71 of the judgment below.  We would respectfully say that that point of construction is sufficiently arguable that in the event that your Honours are satisfied that the special leave question arising from the difference in intermediate appellate court authority is one that ought be resolved, your Honours would regard the construction point as having sufficient prospects to warrant the grant of special leave to appeal.

KIEFEL CJ:   But what error do you say that the Court of Appeal made in construction?  As you say, it is not a complex point.

MR ROBERTSON:   We respectfully say that the Court of Appeal failed to give sufficient weight and attention to the words “take over” in the phrase “take over the management of that Division”, in clause 12.3 of the Federal Constitution.  Your Honours will see where we respectfully say was that omission - where that applies, in particular at paragraph 83 of the decision of the court below.  It says on the very last page of the reasons of the court below.  One of the significant factors that seemed to inform the Court of Appeal’s question of construction is to say – this is on page 38 of the reasons below, paragraph 83 – the penultimate sentence of that paragraph says:

If so, it would undermine the purpose of the intervention to allow the Federal Executive to take over the management of the Division without being able to resolve the problem.

In effect, the Court of Appeal is calling in aid that matter as a contextual factor in construing the text of clause 12.3. 

We will submit in the event that special leave to appeal is granted that that approach overlooks a number of critical aspects of clause 12.3, in particular, the concept that the powers that may be exercised by the Federal Executive – or by an administrator or committee appointed from them – must be powers taken over from someone else.  The short point that we seek to raise is to say that the whole structure of clause 12.3 is such that the Federal Executive has the power, in certain circumstances, to take over powers of management from someone – we say, relevantly, here the State Council or the State Executive – and to give them to someone else – here, relevantly, the committee.

There was no relevant management power that could be taken, we say, from the State Council or the State Executive and given to the relevant committee.  The only relevant power that exists was a power – not of management – but one that was conferred on what we have described in submissions as the “rank and file” as distinct from managers such as the State Council and the State Executive.

GAGELER J:   Have you not read words into clause 12.3(a) - a reference to powers of management?  Why is not taking over the management a single concept?

MR ROBERTSON:   Well, it is a single concept, but it is a concept that must be construed having regard to that phrase “take over” – the words “take over” within that concept have to have work to do, we say.  One needs to identify the particular powers that are said to be taken over from someone else, and then given to the Federal Executive or given to a committee appointed by the Federal Executive. 

The real error that we say that arises from the Court of Appeal’s conclusions, and, in particular at paragraph 83 thereof, is that it is clear, we say, from the structure of clause 12.3, which your Honours will find quoted at paragraph 15 of the judgment below, that that is not a power that is capable of being exercised in every circumstance in which one might think that there is a problem that might be appropriate for a solution.  Your Honours will see in particular at the foot of clause 12.3(b) there is an express proviso that:

neither the Federal Executive nor the administrator or committee shall have power to amend the Divisional Constitution -

So, if, for example, there was a problem that could only be fixed by amending the Divisional Constitution of the division concerned, that is not a matter that could be fixed under clause 12.3.  If it is to be fixed it is to be fixed by way of making amendments to the Federal Constitution, which amendments are within the power of the Federal Council, not the Federal Executive who sought to – who purported to exercise power in the present case. 

So, we respectfully say that that argument that I have just sought to summarise is an argument that is at least reasonably arguable.  It is one that we respectfully say the Court of Appeal regarded at least as an available constructional choice and in circumstances where that argument is an arguable position…..circumstances where a grant of special leave would allow this Court to resolve the very important question of the contest between intermediate appellate court authorities, this makes the present application for special leave an appropriate vehicle to resolve those weighty questions of law. 

Our learned friends have also drawn attention in their written submissions to a series of defences and procedural objections which they raise below.  We would respectfully say that none of those matters are matters that would properly ascertain the proper grounds for refusing a grant of special leave to appeal in the event that your Honours are otherwise minded to grant special leave to appeal. 

Those procedural objections and defences, we respectfully say, were so weak that the Court of Appeal did not consider it necessary to deal with them at all.  We respectfully say, for the reasons that we have said in writing, they are not of sufficient strength as might counteract the very strong reasons as to why special leave should be granted to resolve the inconsistency between intermediate appellate court authority on this important question.

GAGELER J:   But you do have a problem of parties, do you not?

MR ROBERTSON:   No, we do not accept that.  It would be sufficient vindication for my client to obtain a declaration to the effect that it would be – that these individuals who are said to be endorsed by the Liberal Party were not in fact endorsed in accordance with the relevant rules.  One would expect that the officials of the party would act consistently with that declaration.

Your Honours have seen that some of those questions of procedure were not dealt with by the court below.  Your Honours will recall towards the very start of the judgment below said, particularly paragraph 3 and 4, the court below said well, ordinarily we would deal with procedural questions such as representation orders and matters of that kind, but in light of the urgency of the matter we will, as it were, cut to the chase and deal with the main points of law.

My client’s position would be vindicated, or at least would be vindicated in part by a declaration in the terms that were sought ‑ the terms that were sought below.  Your Honours will note from an affidavit that was filed by Mr Reynolds’ client that, based on my client’s proceedings below, the fact that he commenced proceedings below, he has purportedly been expelled from the party.  At the very least, a declaration that said that his argument was correct, one being binding on the named parties that include the Federal President and the State President, that would vindicate my client’s position, at least to that extent.

So we respectfully do not accept the proposition that there is any difficulty in terms of parties.  It certainly was not suggested below that, although the application for representation orders was opposed, as was the notice of motion that sought relief in aid of declaratory relief if it be granted ‑ although that was opposed too ‑ no one said below that the proceedings below were not properly constituted such that relief should be granted, and we would make the same submission before this Court.

So we respectfully say, nothing in terms of parties, and including in the event that the only relief that is granted is declaratory relief that pertains only to the named defendants and no one else, that would have sufficient utility, my client would have sufficient standing, and there would be no issue as to proper parties or necessary parties at that point not being raised below.

Unless we can assist further, those are our submissions in‑chief.  We otherwise rely upon what we have said in writing.

KIEFEL CJ:   Thank you, Mr Robertson.  Yes, Mr Reynolds.

MR REYNOLDS:   If the Court pleases.  The first difficulty for my learned friend is to establish an argument on these rules.  We submit that his argument does not even reach the point where it is reasonably strongly arguable.  We submit that the construction in the court below – which was unanimous – was correct.  It has not been shown to be wrong by my learned friend, either in written or oral submissions. 

Your Honours would not normally grant leave to construe a private document such as the rules of the political party and, as my learned friend frankly concedes, he has to show a reasonably strong argument on…..to show that the Court of Appeal was wrong in its construction of the rules before any other issues of significance even arise. 

There is also – and we have referred to this in our submissions, by reference to Cameron v Hogan, in paragraph 32, as a matter of public policy, this Court does not like to intervene in the affairs of unincorporated associations.  So that is the first difficulty.  If my learned friend had a strong argument – or a very strong argument on construction, then that might be one situation, but we submit that he does not. 

The next issue I would like to raise is the question of discretionary arguments.  These are matters which the Court could well rely on to refuse a declaration without going into any other issues.  There are two main ones.  One is a problem the applicant has had all the way through this case of a lack of utility given that the only relief sought is a declaration.  But the other matter is that – and we have dealt with this in the submissions – his client has failed to use the intramural party procedures and to avail himself of those in order to resolve this dispute – a matter which your Honours will have seen Justice Starke stressed heavily in Cameron v Hogan.

So, there are two matters – one, construction and, two, discretion – which would need to be, we submit on any appeal, dealt with favourably before your Honours would even get to what I will call the Cameron v Hogan issues and we submit that that makes this case an inappropriate vehicle to consider those issues.

So far as Cameron v Hogan is concerned, the argument that my learned friend has put – although he does flag an attempt to overrule Cameron v Hogan – the argument that he is putting really only amounts a slight qualification on that case in a very narrow situation, namely, in the context of a Federal preselection – sorry, I should say a preselection for the Federal election in relation to the Commonwealth Electoral Act.  That is the extent of – subject to overruling, which I will come back to – of the point which he raises.

KIEFEL CJ:   Mr Reynolds, do you say that the applicant is seeking merely to distinguish it rather than to say that it needs to be reconsidered?

MR REYNOLDS:   Your Honour has put the point much more pithily and clearly that I was attempting to put.  That is exactly what we say and that is the main argument is, as it where, just to clip the edge off Cameron v Hogan, and say, well, whatever it says it will not apply in the context of this section or any sections of the Electoral Act.

Now, to be fair, there is a reference in the submissions to overruling Cameron v Hogan.  In our submissions we try to summarise the sorts of points for which Cameron v Hogan is authority, and that is at paragraph 32 of our submissions, where we have listed seven holdings which, we submit, are at least arguably independent holdings in that case.

The point we would make about my learned friend’s flagging of an overruling is that at a special leave application, if that is going to be put up in lights as a reason for leave, my learned friend really has to confront the correctness of this case and at least to give your Honours an idea of the various arguments which would be deployed, for example, in showing that the decision was clearly wrong and should be overruled on these various issues.

Now, that has not been done.  All your Honours have in the written submissions is a flagging of an application to overrule, but not really any indication as to how that argument would go, and no indication as to how the various tests well‑known to your Honours would be satisfied in relation to the overruling of a decision.  The other thing I would say ‑ ‑ ‑

GAGELER J:   Mr Reynolds, I may be wrong, but my understanding was that the gist of the argument in favour of justiciability is to be found in Part 14 of the Act, so far as the applicant is concerned, in reliance on sections 169 and 169B.  I do not understand the argument against you to rely on the rules having contractual force.

MR REYNOLDS:   Your Honour, I think that is right.  My learned friend, although he did say something to the contrary in oral argument, has never pleaded a case based on contractual force.  The thing about Cameron v Hogan is that it deals with a situation where the rules did not have contractual force and, on that basis, relief was refused.  That is, you cannot get a declaration in relation to non‑contractual rules of a party, which we say is on all‑fours with this case.

The other thing I would say about Cameron v Hogan, and your Honours may or may not have had time in the last 24 hours to look at the case law on this, but although my learned friend said that lower courts have raised views or have struggled, I think he said, with this concept, we submit that is not an accurate summation of the position that has been reached as at today, and the point I would make is simply this, that there were a series of cases where there was no dispute about justiciability, that is, where the parties were happy for courts to rule on the rules of unincorporated associations.  They can be put in one category.

Secondly, almost all of the cases in this area swung from an adoption of a decision, and your Honours will have seen referred to in the Court of Appeal, called Baldwin v Everingham, but it is fairly clear from the approach of both the Victorian Court of Appeal and the New South Wales Court of Appeal that that decision, and the decisions which have followed it, are not correct. 

What your Honours are left with, really, is just this decision in Asmar and the decision in the present case which deal only with this fairly narrow qualification on Cameron v Hogan vis‑à‑vis the Electoral Act.  The other point we would make about Asmar is that because the Victorian Court of Appeal in that case only reached what I will call the “Cameron v Hogan issues” after they had dealt with the issue of construction, we would submit that there is a strong argument that the observations about Cameron v Hogan are strictly obiter.

The only other thing I would say in resisting leave is to underline that my learned friend – in order to get over the issue of utility – is going to have to add new parties, run new arguments, amend his pleadings and, we would submit, either adduce new evidence or, at least, allow the new parties to do so.  I will not belabour the point, but your Honours know that we say that as a matter of significance in terms of whether special leave should be granted.  If the Court pleases, those are my submissions.

KIEFEL CJ:   Yes, thank you, Mr Reynolds.  Mr Tsacalos, do you wish to be heard?

MR TSACALOS:   No, your Honour, nothing in addition to our written submissions.  Thank you.

KIEFEL CJ:   Thank you.  Mr Duggan.

MR DUGGAN:   No, thank you, your Honour.  

KIEFEL CJ:   Mr Robertson, in relation to reply, if Mr Reynolds is correct and you are seeking merely to distinguish Cameron v Hogan, does not that rather detract from the need for this Court to resolve differences of views between intermediate appellate courts?

MR ROBERTSON:   If he was correct, perhaps.  He is not, with respect.  We do not seek to distinguish Cameron v Hogan.  Rather, we seek to apply it as properly understood.  On page 378 of the decision in Cameron v Hogan 51 CLR, are three sentences dealing with the claim of Mr Hogan for a declaratory relief.  It is important to recall that the claim in Cameron v Hogan was a claim in contract. My client framed his claim differently below with a view to identifying, or getting a declaration, as to status for the purposes of, in particular, section 169 of the Commonwealth Electoral Act.   

The question he sought to raise was, were the fourth to sixth defendants, were they endorsed persons within the meaning of that phrase in section 169 of the Commonwealth Electoral Act, which is also referred to in section 166, the same Act.  Mr Hogan lost in Cameron v Hogan because – this is just quoting from page 378:

The basis of ascertainable and enforceable legal right is lacking.

He sought to demonstrate that a contract relevantly existed, and he failed as a result.  This Court allowed the appeal for the grant of damages for breach of contract, and similarly dismissed the cross‑appeal seeking injunctive relief and declaratory relief. 

GAGELER J: As I understand it, Mr Robertson, the Court of Appeal here said that the answer to your reliance on section 169 lies in a proper understanding of the operation of section 169B. Is that not right?

MR ROBERTSON: That is so, if your Honour pleases. Section 169B was treated by the Court of Appeal below as, in effect, a definitional provision to say that, at least for the purposes of the Commonwealth Electoral Act, there is no status of being endorsed until the mechanism in section 169B has been implemented. We respectfully say that is wrong as a matter of statutory construction, and that forms part of our first ground of appeal as set out in the application for leave to appeal.

We respectfully say that when one reviews closely the provisions of the Commonwealth Electoral Act, in particular section 4, section 166 and section 169, it is apparent that there is a status that is recognised by the act of being endorsed before the facultative provisions, in effect, in section 169B come into operation.

GAGELER J: Another view, Mr Robertson, is that sections 169 and 169B are carefully crafted against the background of Cameron v Hogan and are to be construed in that common law setting.

MR ROBERTSON:   There is no doubt they had been carefully constructed, but we respectfully say they have not been carefully constructed in such a way as to, in effect, prevent any question arising under the statute as to whether a person has the status that is there referred to.  We respectfully say that the Court of Appeal’s decision below in a sense conflates two separate questions, first of all whether a person has the status of being endorsed for purposes in particular of section 166 and 169, that is the first potential issue.

The second potential issue is whether section 169B, rather than being definitional in nature, is more in the nature of creating a statutory fiction so that the Electoral Commission does not have to look behind the paperwork coming from the registered officer. Even if one accepts that section 169B has that effect of creating a statutory fiction deeming something to exist which, in point of fact, does not exist, that does not cut away from the argument that we seek to advance in this Court, which involves seeking relief at the anterior stage.

Sitting here now, in circumstances where section 169B has not been engaged, are the fourth to sixth defendant’s endorsed candidates for the purposes of the statute or not. So we would seek to attack, on the appeal, the way in which the Court of Appeal dealt with that question of statutory construction, and if we succeed on that, we respectfully say that, even on the authority of Cameron v Hogan, that it is a point, it is a matter arising under a Commonwealth statute which, even on the reasoning in Cameron v Hogan, is reasoning with which this Court can apply and that justiciability relevantly exists.

So it is not a matter of distinguishing.  In effect, we rely on Cameron v Hogan as properly understood, and we respectfully say that Asmar v Albanese correctly, at least in general terms, understood what Cameron v Hogan was a priority for, and what it was not a priority for.

KIEFEL CJ:   I did not understand you to be applying the approach in Asmar v Albanese in the sense that the Victorian Court of Appeal seemed to

simply say that there is required to be some direct connection with the Commonwealth Act.  That is not the approach that I understand you to be taking.

MR ROBERTSON:   Your Honour the Chief Justice would have read from the decision below that the argument that we advanced below and that we would seek to advance in this Court was described as, in effect, a nuanced argument.  It was, at least as we would see it, a nuanced version of the way in which the Victorian Court of Appeal dealt with the question in Asmar.  We rely on the concept of direct connection not for some general concept of general objects or public purpose, but because of a direct connection between the status that is established by the Commonwealth Act and a question arising under a Commonwealth statute.  So that is the way in which we deploy Asmar, and that is the way in which we say Asmar should be properly understood in the nuanced fashion that we advanced below and that we would seek to advance in this Court.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn to consider the course that it will take.

AT 4.33 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.43 PM:

KIEFEL CJ:   The two questions said to arise on this application for special leave are (1) whether the authority of Cameron v Hogan (1934) 51 CLR 358 should be qualified in light of later amendments to the Commonwealth Electoral Act1918 (Cth) respecting the printing of the name of a candidate endorsed by a registered political party on a ballot paper; and, (2) whether the power given by clause 12 of the Federal Constitution of the Liberal Party of Australia to “take over the management of [a] division” authorises the Federal Executive, or a committee appointed by it, to itself select candidates for the forthcoming federal election.

The Court of Appeal of the Supreme Court of New South Wales held, in effect, that the provisions of the Commonwealth Electoral Act did not affect the decision in Cameron v Hogan and the matter was not justiciable.  On the substantive question, which the Court of Appeal determined in the interest of finality, the court held that the Federal Constitution gives the committee appointed the requisite power.  In our view there are insufficient prospects of success on an appeal from that decision in relation to either proposed ground to warrant the grant of special leave.

We have considered the written submissions concerning costs and see no reason why the applicant should not pay the several costs of the respondents he brought to court.  Special leave is refused with costs.

The Court will adjourn to 9.30 am on Tuesday, 12 April.

AT 4.45 PM THE MATTER WAS CONCLUDED