Clarke v ALP (SA Branch), Hurley & Ors & Brown No. Scgrg-99-874 Judgment No. S415

CLARKE V ALP

[1999] SASC 415

Civil

1 LANDER J. The plaintiff is a member of the first defendant ("the Party") and the second defendants are members of the State Executive of the Party. The third defendant is the ALP Party returning officer appointed pursuant to the Constitution and General Rules ("the Rules") of the Party. No orders are sought against him.
The Proceedings

2 The plaintiff brought proceedings against the defendants on 20 July 1999 seeking the following relief:

A Declaration that the Constitution and General Rules of the First Defendant insofar as they relate to membership cannot be amended, altered, repealed or added to with retrospective effect.
A Declaration that any person who was admitted to membership of the First Defendant on or after 9 December 1998 and whose membership has not complied with the requirements of Rule 5(b)(i) of the Constitution and General Rules of the First Defendant is not a member of the First Defendant.
A Declaration that any person who was admitted to membership of the First Defendant on or after 9 December 1998 and whose membership has not complied with the requirements of Rule 5(b)(i) of the Constitution and General Rules of the First Defendant is not eligible to vote at any ballot for the election of delegates to the Annual Convention of the First Defendant to be held in the calendar year 1999, nor vote at that Convention.
An Injunction restraining the First Defendant from passing at the Special State Convention of the First Defendant convened for 22 July 1999, or at any other Special Convention or any Annual Convention, resolution having the effect of retrospectively amending, altering, repealing or adding to the provisions of the Constitution and Rules of the First Defendant relating to membership of the First Defendant.
An Injunction restraining each Local Returning Officer from issuing ballot papers at any ballot for delegates to the Annual Convention of the First Defendant to be held in the calendar year 1999, or to any preselection plebiscite or Convention of the First Defendant, to any person who was admitted or was purported to have been admitted to membership of the First Defendant on or after 9 December 1998.
An Injunction restraining the Third Defendant from issuing by post ballot papers for any ballot for delegates to the Annual Convention of the First Defendant, or to any preselection plebiscite or Convention of the First Defendant, to any person who was admitted or was purported to have been admitted to membership of the First Defendant on or after 9 December 1998.
An Order that the Defendants pay to the Plaintiff his costs of the proceedings."
3 The matter came before Mullighan J on 22 July 1999 and his Honour made an interim order restraining the Party from holding the Special State Convention of the Party convened for 22 July 1999 or any other Special Convention or any Convention for the purpose of putting to the Convention the resolutions set out in the schedule to the injunction or any similar resolutions amending, altering, repealing or adding to provisions of the Rules of the Party relating to membership of the Party. As the order indicates the resolutions referred to in the schedule related to the membership of the Party.
4 On 27 July 1999, Mullighan J made an order that the orders made on 22 July 1999 continue until further order. On that date he adjourned until further order an interlocutory application for orders in terms of paragraphs 5 and 6 of the order sought in the initial application.
5 On 3 August 1999, Mullighan J fixed 18 August 1999 as an early date for trial.
6 The matter came on for hearing on that date and on 2 September 1999, at the time of handing down his reasons, his Honour made the following orders.
7 On 4 August 1999, Mullighan J granted leave to the plaintiff to amend the inter partes summons in the following terms by adding the words "or to any preselection plebiscite or convention of the First Defendant after the word "Convention" first appearing in paragraph 3 of the inter partes summons and by the addition of a new paragraph 4 in the following terms:
"A Declaration that any person who was admitted to membership of the First Defendant on or after 9 December 1998 is not eligible to vote at any ballot for the election of delegates to the Annual Convention of the First Defendant to be held in the calendar year 1999, or to any preselection plebiscite or Convention of the First Defendant, nor vote at that Convention."
8 The remaining paragraphs after the new paragraph 4 were renumbered accordingly.
Judgment

9 On 2 September 1999, his Honour delivered reasons and made declarations in accordance with the declarations sought in paragraphs 1, 2, 3 and 4 of the amended inter partes summons and injunctions in accordance with paragraphs 5, 6 and 7 of that summons.
10 The plaintiff therefore succeeded in relation to all of the relief that was sought on the amended inter partes summons prior to judgment.
Further Amendment

11 After judgment was delivered the plaintiff applied to further amend the inter partes summons and on 4 September 1999 his Honour allowed a further amendment to include paragraphs 8 and 9 in the following terms:

A Declaration that the decision of the Second Defendants on 12 August 1999 to convene a Special Convention to consider preselection candidates for the State and Federal Parliament based upon only the delegates appointed in August 1997 is contrary to Rule 56 of the Constitution and General Rules of the First Defendant was ultra vires the said Constitution and General Rules.
An Injunction restraining the First Defendant from holding the said Special Convention convened on 12 August 1999 by the Second Defendant to consider preselection candidates for the State and Federal Parliament and from proceeding with the process relating to that Special Convention on the basis of limiting the delegates entitled to vote only to those appointed in August 1997 contrary to Rule 56 of the Constitution and General Rules of the First Defendant and until after an election of delegates has been held under the said Rule 56 in 1999."
12 The procedure adopted, in a sense, is rather curious because the plaintiff has been allowed, after a judgment in which he succeeded on all aspects of the relief sought in the original inter partes summons, to amend the summons for the purpose of seeking further relief in relation to matters not addressed at the trial.
13 The relief which is now sought is in relation to matters which have arisen since the commencement of the original proceedings. Of course a party may plead a matter which has arisen since the commencement of the proceedings but it is not so certain that a party is entitled to raise a cause of action which is said to have arisen since the issue of proceedings. [r46.08]
14 In this case, however, the plaintiff seeks declaratory relief and an injunction in support of that declaratory relief and it is convenient for the matter to be heard on the same summons. No objection is taken by the defendants to the procedure adopted.
15 Immediately after being given leave to further amend the inter partes summons to include the further matters to which I have referred the plaintiff sought an early trial of those two further paragraphs. He also sought an interlocutory injunction restraining the Party from holding the Special Convention convened on 12 August 1999 "to consider preselection of candidates for the State and Federal Parliaments, or any other similar Special Convention, and from proceeding with the process of preselection of such candidates until after an election of delegates has been held in 1999 pursuant to r56(b) of the Constitution and General Rules of the Party." No interlocutory injunction has been granted. The necessity for such relief has not yet arisen.
16 The defendant asked Mullighan J to disqualify himself from hearing these further matters upon the basis that his Honour might be perceived as being biased. His Honour rejected that application and refused to disqualify himself. In any event, as it happens, his Honour has been unable to hear this further application because of leave commitments.
17 I have been asked therefore to hear the plaintiff’s further claim for relief in respect of paragraphs 8 and 9. This will be the second trial between the same parties but on different issues.
The Principal Issue Before Mullighan J

18 After Mullighan J made orders allowing the plaintiff to seek the further relief to which I have referred and announced his decision not to disqualify himself the defendants filed and served a Notice of Appeal from his Honour’s decision of 2 September 1999 complaining of all of the orders made by his Honour.
19 The grounds of that appeal are:

That the Learned Trial Judge erred in law and in fact in finding that the issues which were raised by the respondent’s summons concerning the Constitution and General Rules of the first appellant are justiciable.
That the Learned Trial Judge erred in law and in fact in finding that no member of a Sub-Branch may vote for delegates of the Sub-Branch to the State Convention unless that person has been a financial or unfinancial member with continuous membership of at least 6 months calculated from the first working day after 8 June 1999.
The Learned Trial Judge erred in law and in fact in finding that each of the proposed amendments to Rule 5 and Rule 77(a) were retrospective in effect and thereby unconstitutional and should not be submitted to a Special Convention."
20 The purpose of including those grounds of appeal in these reasons is to indicate the matters which were in dispute between the parties in the hearing before Mullighan J.
21 Ground 1 raises the principal argument put by the defendants against the plaintiff’s application. It was submitted by the defendants that the plaintiff was not entitled to any of the declaratory relief or orders in the nature of injunctions because the issues raised by the plaintiff were simply not justiciable.
22 The defendants’ argument before the learned Judge was that no member of an unincorporated association was entitled to call into question in the Courts the Rules of that association unless there were clear, positive indications that the members of the unincorporated association contemplated the creation of legal relations inter se.
23 The defendants relied upon the decision of the High Court in Cameron v Hogan (1934) 51 CLR 358 and argued that if a member of an unincorporated organisation had a grievance of the kind which the plaintiff raised that member was constrained to seeking relief in relation to that grievance within the unincorporated association itself and in accordance with the Rules of that unincorporated association.
24 The defendants argued that the plaintiff could never seek the aid of the Court for the purpose of the interpretation of the Rules of the Party or the purpose of enforcing the Rules, by injunction or otherwise.
25 His Honour decided that question adversely to the defendants. He concluded after an extensive examination of the authorities, and by reference to legislative provisions in the Commonwealth Electoral Act 1918, that the issues raised by the plaintiff in the amended inter partes summons concerning the interpretation of the Rules were justiciable.
26 That argument, advanced by the defendants in relation to paragraphs 1 to 7 of the inter partes summons, would also be available to the defendants in relation to the two discrete paragraphs which I am called upon to consider.
27 When the matter was first mentioned before me I raised with the parties whether the parties wished me to refer the relief sought in paragraphs 8 and 9 to the Full Court for determination by the Full Court when that Court hears the appeal from Mullighan J’s decision in relation to paragraphs 1 to 7.
28 Neither side asked me to refer the matter to the Full Court and, in the absence of at least one of the parties seeking that course of action, it does not seem to me to be appropriate for me to refer the matter of my own motion to the Full Court.
The Course To Be Adopted In Relation To This Further Hearing

29 The first question that obviously arises is whether, as the second Trial Judge in relation to proceedings between the same parties, I am obliged to accept the correctness of Mullighan J’s decision in relation to justiciability or whether it is open for me to reconsider that matter in relation to the further two paragraphs of the amended inter partes summons.
30 This issue only arises because the plaintiff was allowed leave to amend his proceedings after the proceedings had in fact completed before the Trial Judge and because that Trial Judge is unavailable to hear those further matters before the holding of the Special Convention referred to in paragraphs 8 and 9 of the amended inter partes summons.
31 Counsel for the defendants has agreed that I should proceed upon the basis that the issues between the parties which I have to resolve are justiciable. He said that the defendants accept that the issue of justiciability in these proceedings was determined by the decision of Mullighan J on 2 September 1999 and that it would be inappropriate to seek to reargue that matter on the trial of the issues raised by paragraphs 8 and 9 of the amended summons. The concession was made without prejudice to the defendants’ right to argue on appeal from Mullighan J’s decision, or this decision if necessary, that none of the issues raised on the summons are justiciable.
32 I think that is the appropriate and sensible course to be adopted. It seems to be that it would be inappropriate for me to embark upon a further hearing at first instance as to whether or not these matters are justiciable. That could give rise to the unfortunate situation where there were two conflicting decisions within the same action.
33 I proceed therefore on the basis that the issues are justiciable. In doing so it must be understood that I have not considered the question of justiciability at all. I should not be seen as endorsing Mullighan J’s decision, nor indeed by these comments, doubting it.
The Plaintiff and the Party

34 The plaintiff, apart from being a member of the Party, is a member of the House of Assembly of the South Australian Parliament, representing the Electoral District of Ross Smith. The plaintiff is also a member of the Enfield Sub-Branch of the party.
35 He has indicated to the Party that he intends to stand for preselection as a candidate of the Party for the Electoral District of Enfield for the next election for the House of Assembly. A sitting member must indicate his or her intention to stand for preselection when called upon to do so by a request in writing from the State Executive of the Party: r68.
36 The Party is a political party which is registered under the Commonwealth Electoral Act 1918. It is an unincorporated association which is governed internally by its Rules.
Organisational Structure Of The Party

37 The Party is a National political party and has a Federal structure. Its National or Federal structure is unimportant for the purpose of these proceedings.
38 At the State level the Party has a three tier structure. At the highest level is the Convention. That body must meet at least once annually and is responsible for the formation of policy which cannot be altered except by a subsequent decision of a Convention. The Convention also has the responsibility for amendment, alteration, repeal or addition to the Rules of the Party and the Platform of the Party. The Convention has to meet annually as an Annual Convention but it can also be convened as a Special Convention. The Annual Convention has to be held during the Labour Day holiday weekend or at some other time determined by the State Executive; r22(c). A Special Convention can be called by resolution of the State Council or, if time does not permit, by the State Executive: r23(a) The delegates to a Special Convention are those who have been appointed in accordance with r24 and r25 of the Rules as delegates to the State Convention. [r24]
39 Apart from the limitation that a Special Convention can only deal with the business for which it has been called upon to consider, a Special Convention has the same authority as an Annual Convention. In that respect the Special Convention can, for example, alter policy made by an Annual Convention. It can also amend, alter, repeal or add to the Constitution and Rules of the Party [r21(b)] provided that such amendment, alteration, repeal or addition is the business for which the Special Convention has been called: r23(c).
40 There is nothing unusual in that because, as I have said, whether the Convention meets as an Annual Convention or a Special Convention the delegates, in any one year, will be the same.
41 The Convention is composed of delegates of about 250 in number who represent affiliated Trade Unions, Sub-Branches and various organisations within the party. Fifty per cent of delegates are not elected. They represent the Trade Unions. Of the other fifty per cent, most delegates are elected although some are entitled to be delegates by reason of an office held within the Party. Some others by reason of their office are ex officio delegates with no voting rights. [r24(d)] It will be necessary to address the eligibility of delegates in a little more detail.
42 It is the Convention (Annual or Special) which has the responsibility of selecting Parliamentary Candidates: r67. I shall make further reference to that rule shortly.
43 At the next tier is the State Council which acts as the governing body between State Conventions: r21(c). It has no power to alter any Rules but it can be called upon to adjudicate over alleged Rule transgressions. It also has the power to select candidates for election to Parliament: r32(a). Rule 32(a) relevantly provides:

In addition to its ordinary functions the State Council shall have power to:
(a) Select candidates for election to Parliament, in accordance with Rule 66.8."
44 There is no r66.8. Rule 66 deals with Scrutineers and has no sub rules. Rule 68 deals with "Sitting Members - Call for Nominations". I think r32(a) has no effect. It does not empower State Council to select candidates for preselection because of the absence of any r66.8.
45 State Council does have power in certain circumstances to select candidates. Rule 67 provides:
"Parliamentary Candidates shall be selected by Convention except where time does not permit, when the selection shall be made by State Council. Notwithstanding any other rule, the State Executive shall be empowered to endorse Candidates where time does not permit the calling of a State Convention or State Council."
46 As can be seen by that rule both State Council and State Executive can select candidates, but only where time does not permit so to do. That is not the case here.
47 State Council meets monthly and its delegates are chosen from exactly the same electorate as the delegates to State Convention. Delegates are appointed or elected to Council in exactly the same way as delegates are appointed or elected to Convention. The Trade Unions have the same number of delegates. Each Sub-Branch elects the same number of delegates to both Council and Convention.
48 Whilst the eligibility for becoming a delegate to Council or Convention is the same it may be that a Trade Union will appoint, or a Sub-Branch will elect, a different person to each body.
49 The third tier comprises a State Executive which is responsible for the day to day administration of the party. It meets every four weeks. It comprises the Party President, senior and junior Vice Presidents and fifteen other members all of whom are elected by the Convention. The State Secretary, who is also an elected official, the immediate past President of the party and the leader of the State Parliamentary party are ex-officio members.
50 The State Secretary, who is the principal executive officer of the Party holds office for four years and is elected to that position by Annual Convention: r33(a)(iii).
The Issues And Mullighan J’s Order

51 As the inter partes summons shows, and the orders made by the Trial Judge confirm, the original dispute between the plaintiff and the defendants concerned the eligibility of persons who claimed to be members of the Party and who had joined or purported to join the Party after 9 December 1998.
52 His Honour decided that anyone who had been admitted to membership of the Party after that date and whose membership had not complied with the requirements of r5(b)(i) of the Constitution and General Rules of the Party was not eligible to vote at any ballot for the election of delegates to the Annual Convention or to any preselection plebiscite or Convention of the Party to be held in this year.
53 Only persons eligible to vote at any ballot for delegates for the Annual Convention are those who were members of the Party prior to December 1998. Subject to that decision being reversed the Party must conduct its affairs in accordance with that decision.
54 His Honour’s orders have not interfered with the right of the Party to hold its Annual Convention or to hold any State Convention in this year. The orders simply disentitle persons who have obtained membership of the Party after 9 December 1998 from voting for delegates to Convention. The orders achieve that by restraining the Party from allowing those persons to vote.
55 It seems to me therefore the Party has to proceed in its own internal regulation in accordance with its own Constitution and Rules, subject only to the restrains imposed upon the defendant by Mullighan J’s order.
The Facts

56 On 28 July 1999 State Executive unanimously carried a resolution in the following terms:
"That the timetable for the Branch Elections be altered such that they be deferred to a date to be fixed by a future meeting of the State Executive and that the Annual State Convention be postponed until a date to be fixed by a future meeting of the State Executive."
57 Rule 57(c) empowers a two thirds majority of State Executive to ‘alter’ the timetable for elections.
58 Mr Ian Hunter, the State Secretary of the Party deposed:

The resolution which was passed at the meeting of State Executive on 28 July 1999 was put forward after the Honourable Justice Mullighan had granted an interim injunction on 22 July 1999 in terms of paragraph 4 of the Inter Partes Summons dated 20 July 1999 and had, on 27 July 1999, ordered that the injunction be continued. The defendants decided that it was inappropriate to continue the timetable for branch elections given that further injunctions were sought by the plaintiff, which would, if granted, impact on the timetable for branch elections, and that there would be an early hearing of the action."
59 Mr White QC, who appeared for the defendants, emphasised the fact that the 28 July 1999 resolution was passed in response to remarks made by Mullighan J, and so as to ensure that the plaintiff’s claim for injunctive relief in paras 1-7 of the summons was not defeated by the elections taking place whilst the matter was before the Court. In other words the resolution was an honest and responsible reaction to the plaintiff’s proceedings, the interlocutory injunction and the Judge’s remarks.
60 I accept that submission. I believe that the State Executive passed that resolution for the reasons given by Mr Hunter and the submissions made by Mr White.
61 I believe that the timing of the plaintiff’s proceedings, the relief sought by the plaintiff, and the order made by Mullighan J gave the Party no choice but to postpone the elections for all positions within the Party. The Party was simply not able to conduct its own elections until it was sure of its own membership. It could not be so until Mullighan J decided upon the plaintiff’s claim.
62 It was conceded by Mr Hayes QC, who led for the plaintiff, that whilst his client’s proceedings challenging membership did not necessarily mean that all elections had to be postponed, it was not inappropriate to postpone the elections pending a decision on his client’s claim that a number of persons were not eligible to vote. Such a concession was clearly right and appropriately made.
63 The defendant, and in particular, State Executive could not have known, on 28 July 1999, when it was that the plaintiff’s proceedings would be concluded. In those circumstances it decided to simply postpone the elections.
64 This resolution deferred Branch Elections to a date to be fixed by a future meeting of the State Executive. The plaintiff does complain about the form of the resolution because the effect of the resolution, it was said, was to adjourn indefinitely the election of delegates which should have been held in August 1999. For reasons I will come to I do not believe there is any substance in that argument.
65 The Annual Convention is to be held on the Labor Day Holiday Weekend "or at some other time determined by the State Executive": r22(c). It may be implicit in the resolution that State Executive determined, by that resolution, that the Annual Convention should be held at some other time than the Labor Day Holiday weekend.
66 On 12 August 1999, the Secretary of the Party called a Special State Executive meeting for the purpose of considering a report on a timetable required by the Rules for the preselection process.
67 At that meeting it was resolved that:
         "State Executive recommends to State Council that nominations open forthwith and close with the State Secretary at 5pm on Thursday 9th September, 1999 for the positions of endorsed Labour candidate for:
         State Seats: Ashford, Cheltenham, Croydon, Elder, Elizabeth, Enfield, Florey, Giles, Kaurna, Lee, Mitchell, Napier, Norwood, Playford, Port Adelaide, Ramsay, Reynell, Taylor, Torrens, West Torrens, Wright, Bright, Colton, Frome, Hartley, Light, Mawson, Newland, Stuart.
         Legislative Council: 5 Positions
         A ballot if necessary to be conducted at a Special Convention between 9.30am and 1pm on Saturday 16th October, 1999."
68 At the same meeting it was further resolved:
         "State Executive recommends to State Council that nominations open forthwith and close with the State Secretary at 5pm on Thursday, 9th September, 1999 for the positions of endorsed Labour Candidate for:
         Federal Seats:    Adelaide, Bonython, Hindmarsh, Kingston, Makin, Port Adelaide.
         Senate: 3 Positions
         A ballot if necessary be conducted at a Special Convention between 9.30am and 1pm on Saturday 16th October, 1999."
69 Those resolutions did not open the preselection for all State seats in the Legislative Assembly or for all Federal seats in the House of Representatives.
70 Mr Ian Hunter, the State Secretary of the Party, deposed that nominations were opened for all Labor held seats and all marginal seats which require a swing of less than 5 per cent (except the seat of Newland which requires a swing of 7.2 per cent) with the exception of the seat of Adelaide.
71 It is part of the plaintiff’s complaint in this action that preselection was not opened to all seats at the same time. For reasons which I will come to I believe there is nothing in that point.
72 On the same day, but after those resolutions had been passed by State Executive, State Council met and passed the following resolutions:
"(a)    Branch Elections & State Convention
         "That the timetable for the branch elections be altered such that they be deferred to a date to be fixed by a future meeting of the State Executive and that the Annual State Convention be postponed until a date to be fixed by a future meeting of State Executive."
(b)     Opening of Nominations - State
         "That nominations open forthwith and close with the State Secretary at 5.00 pm on Thursday 9th September, 1999 for the positions of endorsed Labor candidate for:
State Seats         Ashford, Cheltenham, Croydon, Elder, Elizabeth, Enfield, Florey, Giles, Kaurna, Lee, Mitchell, Napier, Norwood, Playford, Port Adelaide, Ramsay, Reynell, Taylor, Torrens, West Torrens, Wright, Bright, Colton, Frome, Hartley, Light, Mawson, Newland, Stuart.
Legislative Council     5 positions
A ballot if necessary be conducted at a Special Convention between 9.30 am and 1.00 pm on Saturday 16th October, 1999."
(c)     Opening of Nominations - Federal
         "That nominations open forthwith and close with the State Secretary at 5.00 pm on Thursday 9th September, 1999 for the positions of endorsed Labor candidate for:
         Federal Seats:    Adelaide, Bonython, Hindmarsh, Kingston, Makin, Port Adelaide
         Senate:     3 positions
         A ballot if necessary be conducted at a Special Convention between 9.30 am and 1.00 pm on Saturday 16 October, 1999."
73 It can be seen that State Council’s resolution mirrored the resolutions made by the State Executive. Resolution (a) of the State Council, which repeated the State Executive’s resolution of 28 July 1999, was not a matter for State Council. As I have pointed out it was State Executive who had power to pass that resolution: r57(c); r22(c). I suppose it can be said that State Council had by that resolution endorsed the reasons for alteration of the time table by State Executive: r57(d).
74 The further resolutions were, however, matters for State Council. Rule 23(a) provides that Special Conventions may be called by resolution of the State Council. I think implicitly these resolutions amounted to a call by State Council for a Special Convention to consider the preselection of candidates for those seats and positions referred to in the resolutions. No one has suggested otherwise.
75 The effect of the two resolutions is to provide for a Special Convention to consider the question of preselection of candidates for the Party for the nominated Lower House seats and for the Legislative Council and Senate at the next State and Federal elections respectively.
The Question

76 The question for me is whether it would be ultra vires the Rules of the Party to engage in a preselection process in accordance with the resolutions of State Executive and State Council.
77 That requires a detailed consideration of the Rules of the Party, but before turning to the rules it is as well to identify the particular arguments advanced by the plaintiff.
The Arguments

78 The Party intends, unless restrained, to hold the Special Convention on 16 October and intends, at that stage, to consider the question of preselection for the nominated State and Federal seats and the positions in the Legislative Council and Senate. It claims that the holding of such a preselection Convention is within power and in accordance with the Rules. It claims to be entitled to hold that Special Convention for that purpose, notwithstanding there has been no election of any officers or delegates within the Party this year.
79 The plaintiff, on the other hand, complains that the holding of a Special Convention for the purpose of preselection of candidates for the nominated seats and the positions in the Legislative Council and Senate is beyond power.
80 The plaintiff has put his argument three ways.
81 First, he says, a Special Convention cannot be called by the Party for the purpose of electing candidates for only some Parliamentary seats; the Special Convention called for 16 October 1999 is only for the purpose of selecting candidates for some of the State and Federal Parliamentary seats and is therefore, it is said, ultra vires the Party’s Rules.
82 Secondly the plaintiff says that the Convention cannot be held because the Party had no power to adjourn indefinitely the election of delegates which should have been held in August 1999.
83 Thirdly, it is said, the Party cannot hold any Convention either by way of Annual Convention or any Special Convention prior to the holding of the election of delegates.
84 During the hearing I put to Mr Hayes QC, who led for the plaintiff, that if the plaintiff’s third argument was taken to its logical conclusion then no Special Convention could be held at all because no elections had been held as required by r56.
85 Mr Hayes made it clear that he did not claim that because of the failure to conduct elections, in accordance with r56, no Special Convention could be held. His argument was that no Special Convention could be held for the purpose of considering a preselection.
86 The reason for the distinction is obvious. If in fact the failure to hold elections in accordance with r56 by the end of August meant that no Special Convention could be held at all, it would only be because there were no delegates who could be called to that Convention. If that was right there would also be no delegates presently entitled to be members of State Council. If that was right then the present members of State Executive, who are appointed by the Convention, would also have lost their office. The only person who would presently be in office is perhaps the State Secretary who is appointed for a period of four years.
87 Mr Hayes specifically eschewed any argument that a failure to conduct the elections in accordance with r56 vacated all of the offices of the defendant. He accepted that all persons stayed in office pending the holding of those elections. It must follow from that concession that he would accept that the State Executive is entitled to carry out its function as I have described it. It would also follow that the State Council continues to be able to carry out its function and so also the Convention.
88 Mr Hayes was correct to agree that none of the offices in the party had been vacated by reason of the deferral of the timetable for elections.
89 Rule 59(j) provides:
"(j) Except for endorsed candidates, all elected persons shall continue in office until their successors are declared elected."
90 I think the effect of that Rule is to leave all of the officers of the Party in place pending the appointment of their successors. That includes, in my opinion, the delegates to Convention and State Council.
91 It would follow that a Special Convention can be held notwithstanding the absence of any election of delegates this financial year.
92 He said, however, that the failure to conduct the elections in accordance with r56 did have one limiting feature on Convention and that was to prevent Convention considering any preselection of candidates until such elections were held.
93 It is, of course, implicit in the resolution of 28 July that the deferral of branch elections carries with it the deferral of elections of delegates to Convention. The deferral of branch elections has meant that no elections have been held since 30 June 1999.
94 The answer, of course, to the parties’ contentions must be found within the Constitution and Rules of the Party.
The Rules

95 I have already identified the overall structure of the Party and shown that it operates on three levels.
96 Underneath the organisational structure of the parties is its membership. Membership of the Party is open to all residents of South Australia over the age of fourteen years who are prepared to accept the Constitution, platform and Rules of the Party and who have associations with no other political party or auxiliary thereof or a prescribed organisation: r5(a)
97 Anyone who wishes to become a member of the Party must joint a Sub-Branch within the State district in which the person resides and must pay the appropriate fee and be duly nominated and accepted at a general meeting of that Sub-Branch: r5(b)(i).
98 A person is not entitled to be a member of more than one Sub-Branch and a person must pay a membership fee for each financial year in which that person is a member. A member is defined in r5(b)(iv) as a person who has paid the membership fee for the current financial year. An unfinancial member, on the other hand, is a person who has paid the membership fee for the previous financial year but has not yet paid the fee for the current year: That unfinancial member ceases to be a member if he or she does not pay the membership fee for the current financial year by 30 November: r5(b)(v).
99 Rule 5(b)(vi) provides:
"(vi) ‘An eligible member’ for the purpose of nominating for or voting in ballots other than a pre-selection plebiscite shall be a financial or unfinancial member who has continuous membership of at least six months."
100 Rule 5(b)(vii) provides:
"(vii) ‘An eligible member’ for nominating for or voting in a preselection plebiscite shall be a financial or unfinancial member who has been a member for at least thirteen months continuously. This rule shall be waived by ther (sic) State Executive when the bonafides (sic) of the prospective candidate in other respects are in order."
101 Rule 7 provides, that subject to r5, the Party shall consist of the members of the Party’s Sub-Branches and affiliated Trade Unions provided such members are over the age of fourteen years and are not members of any other political party or auxiliary thereof or any organisation proscribed by the National Executive or National Conference.
102 Rule 7(a)(ii) provides:

Members of Party Sub-Branches and affiliated Trade Unions, for whom sustentation fees are paid, shall automatically accept all the responsibilities of membership."
103 Rule 7(c)(i) provides:
A Party Sub-Branch or a Trade Union wishing to become affiliated with the Party shall make application in writing, and in the case of a Trade Union, the application shall be accompanied by a copy of its Constitution and Rules."
104 The Party therefore consists of persons who are members of a Sub-Branch, pursuant to r5, and affiliated Trade Unions. The Sub-Branch or the Trade Union can become affiliated with the party by making an application in writing. In both cases, if the application is accepted, then it is said that the Sub-Branch or the Trade Union is affiliated with the Party.
105 In those circumstances all of the members of the Sub-Branch become members of the Party. So also does the Trade Union. However the Trade Union members do not become members of the Party unless they separately join a Sub-Branch. Some members of an affiliated Trade Union must become members of the Party. Any Trade Union member who becomes a delegate to Convention or State Council must become a member of a Sub-Branch: r25(a)(ii), r31(a)(ii).
106 The Constitution and Rules provide for Sub-Branches which can be established by the State Council on the recommendation of the State Executive. Twenty-five members are necessary to constitute a metropolitan Sub-Branch and ten members are necessary for a country Sub-Branch. No more than two Sub-Branches shall be constituted in any metropolitan State district: r8(a)(iii).
107 Only members of a Sub-Branch are eligible to vote at their Sub-Branch meetings: r8(d). The members therefore exclusively control the Sub-Branch to which they belong. The Sub-Branch itself is affiliated with the Party.
108 The Party provides for Federal Electorate Councils, which consist of members of Sub-Branches within a Federal division, who are resident within that Federal division. Apart from noticing that there are such things as Federal Electorate Councils, those Councils are otherwise irrelevant for the purpose of these proceedings.
109 The Party also provides for the Australian Young Labour Association (ALY) which has as its object the promotion among young people of the Party, its objectives, histories, policies and candidates. Anyone who is a member of a Sub-Branch, and under the age of twenty-six years of age, becomes a member of AYL. That organisation has a separate role within the Party. That separate role is also unimportant for the purpose of this matter.
110 There is also a South Australian Country Labor Association which also has a separate role but is again unimportant for the consideration of this matter.
111 I turn now to the Party’s Rules for representation at State Convention.
112 Rule 24(a) provides that:
"(a) Representation at State Convention shall be on the basis of 50 % Trade Union delegates and 50% Sub-Branch, Federal Electorate Council delegates, AYL and other delegates as defined in (c)(i) and shall be determined based on sustentation fees received by Head Office by 30 June in each odd numbered year."
113 The matters to note are that representation is distributed evenly between Trade Union delegates and delegates from the Sub-Branches and other organisational groups within the Party. The eligibility for representation of delegates depends upon sustentation fees paid to Head Office as at 30 June in each odd numbered year. In other words the Trade Union’s entitlement to delegates is measured as at 30 June every two years, each odd numbered year. The entitlement of the non-Trade Union delegates is measured at the same time. Both are measured by reference to sustentation fees received by Head Office by that date. Sustentation fees for Sub-Branches and Unions are fixed by r77 and r78 but are unimportant in a consideration of these matters.
114 The Rule further provides that one delegate shall represent 100-1500 members of each Trade Union affiliate. If the Trade Union affiliate has more than 1500 members one delegate will represent each additional 1000 members.
115 The representation therefore of the 50 per cent of Trade Union delegates depends upon the numerical strength of each of the Trade Union affiliates and the sustentation fees paid in accordance with that numerical strength as at 30 June in each odd numbered year.
116 Trade Union delegates to Convention are not necessarily elected. That is a matter for the internal affairs of the Trade Union. So far as the Party is concerned it is for the Trade Union to nominate its delegates in accordance with its entitlement measured at 30 June in each odd numbered year.
117 The other 50 per cent of delegates come from Sub-Branch, Federal Electorate Council delegates AYL and other delegates as defined in r24(c)(i).
118 Rule 24(c)(ii) provides:
"Representation of Sub-Branch affiliates (which have paid the prescribed sustentation fees) and Australian Young Labor Association (South Australian Branch) shall be, subject to paragraphs (a) to (d) hereof on the following basis:
· 25-50 members - one delegate - metropolitan Sub-Branches
· 15-50 members - one delegate - country Sub-Branches"

119 Therefore the Sub-Branches, which are affiliated with the Party, and which have paid their sustentation fees as at 30 June in each odd numbered year, are entitled to return one delegate for every twenty-five to fifty members for a metropolitan Sub-Branch and one delegate for every fifteen to fifty members for a country Sub-Branch.
120 Rule 24(c)(i) also provides that each FEC, the State Parliamentary Party caucus and the Federal Parliamentary Labour Party caucus (SA members) shall be represented by a delegate. The State President, State Secretary, State Parliamentary Party Leader (or nominee) and the Federal Party Labor Party Leader (or nominee) shall be delegates. All of those persons are delegates ex officio.
121 Rule 24(d) provides that the State Executive members, the State Secretary, the Assistant State Secretary, Labor Members of Parliament, former Labor Members of Parliament and endorsed Parliamentary Candidates shall be ex officio delegates with no voting rights.
122 There are therefore three classes of people, apart from Trade Union delegates, who are entitled to be delegates to represent the 50 per cent non Trade Union strength. They are those persons who are entitled to be delegates ex officio in r24(c)(i), delegates from Sub-Branches in r24(c)(ii) and delegates ex officio in r24(d), who have no voting rights. The Rule is not clear but I have supposed that the last mentioned group who are members ex officio, without voting rights are not counted as part of the 50 per cent strength of the non Trade Union delegates. That would have to be so, otherwise the 50 per cent non Trade Union strength would be under strength in terms of voting strength by as many persons who attended as delegates ex officio under r24(d).
123 The Rule assumes, quite correctly of course, that after one has identified the number of delegates who are entitled to attend to represent the unions and the number of delegates who are entitled to attend to represent the non unions that it is unlikely that those numbers will split in the proportion fifty fifty.
124 The Rule therefore provides that if the number of Trade Union delegates falls below 50 per cent then additional delegates are to be added to the Trade Union numbers to restore the 50 per cent level of delegates for Trade Union representatives. If on the other hand the number of delegates falls below 50 per cent for the non Trade Union delegates then those extra delegates are to be allocated to Sub-Branches.
125 In respect of additional delegates from Sub-Branches r24(c)(iii) provides:
"(iii) Additional delegates shall be allocated to Sub-Branches on the following basis (for the purpose of this rule AYL is to be treated as a Sub-Branch):
         Those Sub-Branches with numbers in excess of fifty (50) shall have their numbers in excess of fifty (50) totalled and divided by the number of surplus delegates.
         Surplus delegates are to be calculated by subtracting the number of delegates allocated under Rules (c)(i) and (ii) from the total of available non-trade union delegates.
         The result is then divided into each Sub-Branch’s remaining numbers in excess of fifty (50) to determine the number of extra delegates to be allocated to that Sub-Branch.
         Any remaining delegate positions shall be allocated to those Sub-Branches with the highest remaining fractions."
126 It can be seen therefore that it is the Sub-Branches which are the source of additional delegates in circumstances where the number of non Trade Union delegates falls below an equal amount of Trade Union delegates.
127 Rule 24 allows the organisational structure of the Party to calculate, as at 30 June in any odd year, the number of delegates eligible as Trade Union delegates and non Trade Union delegates. If the non Trade Union delegates exceed the Trade Union delegates the Trade Unions are advised that they may appoint further delegates in accordance with r24(a)(iv). On the other hand if there is a greater number of Trade Union delegates then it is for the Sub-Branches to elect further delegates in accordance with r24(c)(iii). Whichever way, whenever the elections are completed in accordance with the Rules the number of Trade Union delegates and non Trade Union delegates will balance.
128 Rule 25 deals with Convention delegates. Delegates must be members of the organisation which they represent and must be elected in accordance with the Rules of such organisation. That applies to both Trade Union delegates and Sub-Branch delegates. Rule 25(a)(ii) provides that all delegates shall be members of a Sub-Branch as defined by r5. That ensures that all Trade Union delegates become members of the Party. That is sensible enough in view of the fact they are entitled, as members of Convention, to set Party Platform and policy.
129 That sub rule is consistent with a number of other Rules within the Constitution and Rules. It is clear enough that the scheme of the Rules is to ensure that all persons are members of a Sub-Branch and therefore keep their grass root contacts. No person can hold any position in the party unless that person is a member of a Sub-Branch. It means that those who hold the highest positions in the Party are also members of the most basic organisational structure of the Party.
130 The representation at a State Council is determined in exactly the same way as the representation for the Convention: r30. Each Trade Union and each Sub-Branch will have exactly the same number of delegates as each sends to the Convention. The delegates need not be the same persons, so although State Council is a mirror of the Convention in terms of the source of delegates, the delegates themselves may be different. Like Convention delegates State Council delegates also have to be members of a Sub-Branch.
131 Rules 33 to 39 deal with the State Executive. It is not necessary for these reasons to spend too much time on those Rules. Again it might be noted that members of the State Executive have to be members of a Sub-Branch as defined by r5: r33(c).
132 The Rules also provide for a number of committees. Membership of a committee is dependant upon being a member of a Sub-Branch.
133 Rule 56 provides for Party elections.
134 Each Sub-Branch has a number of offices, including a President, Vice President, Secretary, Treasurer and any other officers and delegates as the affiliate shall determine.
135 Those officers are to be elected at the first meeting after 31 August and the persons then elected take office immediately after that meeting. Of course, only eligible members are entitled to be elected. As I have already noted only members of a Sub-Branch are eligible to vote at their Sub-Branch meeting: r8(d). It is not necessary to consider Sub-Branch elections which take place annually. Officers, except Convention and Council delegates, shall be elected at the first meeting of the Sub-Branch after 31 August in each year; r56(a).
136 Sub-Branches, FECs and AYL must also elect delegates to State Convention and State Council. Those elections are to take place in August but only in each odd numbered year, by a ballot which is held in accordance with r56(i) to (s). The number of delegates who are to be appointed to Convention and State Council is determined in accordance with the earlier Rules to which I have referred.
137 The election of delegates to Convention and State Council is to be held on a Sunday and the following Monday in August. It is for the Party Returning Officer to choose which Sunday and Monday in August upon which the election will take place.
138 The machinery for elections commences on 15 June in each year, although it is only in odd numbered years that delegates to Convention and State Council are elected. On that date the Party Returning Officer must identify the Sunday and Monday in August upon which the election is to be held.
139 On 1 July that officer calls for nominations for delegates and all other positions in the Sub-Branch, FEC and AYL. Nominations for delegates close on 15 July and on 22 July the Party Returning Officer sends a written notice to all eligible members informing them of the ballot for delegates.
140 Ordinarily the delegates would be identified by the last Monday in August and those persons would remain delegates to Convention and Council for that year and the following even numbered year and come up for election again in the next odd numbered year.
141 However after election a delegate may die, resign his or her position as a delegate, or in some circumstances may be deemed to resign.
142 Rule 56(t) provides:
         "(t)    A Convention or Council delegate who:

(i) Ceases to be within the criteria set out in Rule 56 (d) and (e).
         (ii) Ceases to be eligible to vote or nominate pursuant to Rule 5 (b) (vi) shall be deemed to have resigned as a delegate."
143 Rule 56 (d) and (e) provide:
"(d)   No member shall be entitled to stand for office or vote unless he or she was an eligible member pursuant to Rule 5(b)(vi) and who is a bona fide resident of the State, State District or Federal division in which he or she seeks to vote and was enrolled on the Commonwealth or State Electoral Roll for the State, State District or Federal Division in which he or she resides by the time the accumulated roll changes for the period ending 30 June is issued. Where there are no other nominations any member of a Sub-Branch, Federal Electorate Council and Australian Young Labor may stand and be elected.
(e)     A member under the age of eighteen (18) or a non-citizen permanent resident of Australia shall be entitled to vote provided he or she is a bona fide resident of the State District or Federal Division in which he or she seeks to vote."
144 Rule 5(b)(vi) provides:
"(vi) "An eligible member" for the purpose of nominating for or voting in ballots other than a preselection plebiscite shall be a financial or unfinancial member who has continuous membership of at least six months."
145 It follows therefore that unless a delegate dies, resigns or is deemed to have resigned, because that delegate is no longer within the criteria set out in r56(d) and 56(e), or ceases to be eligible to vote pursuant to r 5(b)(vi), that delegate will represent that Sub-Branch at Convention or Council or both, if elected to both, for a period of two years.
146 If, however, a position does become vacant because of any of the matters under r56, or because the delegate has died or resigned, then a ballot has to take place in accordance with r57(a) to fill that casual vacancy.
147 Rule 57(a)(i) provides:
"(a) (i) In the event of one or more vacancies for any positions elected under Rule 56, such positions shall be advertised to all members of the relevant affiliate in the normal notice for the next normal meeting of that affiliate subject to the requirement to give seven (7) days notice to all members. The ballot to fill such position(s) shall take place at such meeting."
148 Rule 57(a) only applies to any vacancy for any position elected under r56. It therefore does not apply to Trade Union delegates or any person elected by the Convention to State Executive. Those persons have not been elected to a position under r56.
149 Any person who is standing for a casual vacancy must be able to satisfy the criteria set out in r56(d) and r56(e) and, of course, must be an eligible member in accordance with r5(b)(vi).
150 Rule 57 ensures that offices within Sub-Branches are filled when a vacancy occurs. More importantly for these proceedings, r57 ensures that if a vacancy occurs in the non Trade Union delegates to Convention or State Council that vacancy can be filled by the Sub-Branch. There will, except during the vacancy, always be a Sub-Branch delegate to Convention or State Council.
151 Rule 60 deals with selection of Parliamentary candidates. The selection process is somewhat complicated and I will need to refer to a number of Rules.
152 The Rules require a Returning Officer to be appointed for the purposes of conducting ballots under r60: r60(b). That Returning Officer is elected every two years by State Convention and that person becomes Returning Officer "for all preselection ballots": r61(a).
153 The fact that a person is appointed Returning Officer for all preselection ballots for a period of two years suggests that it is contemplated that not all preselection ballots will occur on one day or at the one time.
154 Not later than five days after the close of nominations the State Secretary must provide the Returning Officer with a list of eligible members and shall certify that the Roll is accurate. Eligible members, it must be recalled, are those persons referred to in r5(b)(vii). They must have been "to vote in a preselection plebiscite" financial or unfinancial members for thirteen months.
155 The Local Component is exercised, in the case of a State seat, by the Sub-Branch or Sub-Branches (not more than two) in that seat: r8(a)(iii). In the case of a preselection for a House of Representatives seat the Local Component is exercised by the Federal Electorate Council for that seat.
156 The Returning Officer has the responsibility of conducting the ballot. That is the process which determines the Local Component of a preselection ballot.
157 There are two components to a preselection ballot for seats in the House of Assembly for the State Parliament and the House of Representatives in the Federal Parliament; a Local Component and a Central Component.
158 For preselection for the Legislative Council in the State Parliament or the Senate in the Federal Parliament there is only one component; a Central Component.
159 The Returning Officer also has the duty of conducting the ballot for the Central Component. It is necessary to refer to the definitions of Local Component and Central Component in r60(a) and (b). Rule 60(a) and (b) provide:
"(a)    Local Component shall mean the pre-selection ballot by members of the party attached to a Sub-Branch or Federal Electorate council for the purpose of preselecting an endorsed candidate for a Parliamentary Seat in either the House of Assembly or the House of Representatives.
(b)     Central Component shall mean the preselection ballot by members of the party elected or appointed as delegates by the affiliates of the Party to the Party’s Annual Convention and/or any Special Convention, held pursuant to these rules for the purpose of preselecting endorsed candidates for all parliamentary positions."
The First Of The Plaintiff’s Arguments

160 Preselection for the Lower Houses of both State and Federal Parliaments requires two ballots. A ballot must be conducted of the Sub-Branches, in the State District or the Federal Electorate Council, in the Federal Division.
161 There must also be a ballot for the Central Component which it is envisaged by r60(b) will take place at either an Annual or any Special Convention held for the purpose of preselecting candidates. That is confirmed by r67.
162 The plaintiff argued that r60(b) applied only to Trade Union delegates because they were the only persons who were members of affiliates of the party.
163 The plaintiff also relied upon r60(b) in support of his first argument that any Special Convention for the purpose of preselection of candidates had to address all Parliamentary positions at the same time. Mr Hayes said that they were the plain words of r60(b).
164 It would be convenient, at this stage, to address this argument before completing a consideration of the Rules. This first argument may be addressed by a consideration of r60(b) itself and taking into account earlier rules to which I have referred.
165 It is clear from a reading of the Rules that the Rules refer to Trade Unions and Sub-Branches and Federal Electorate Councils as affiliates of the Party. It is not only Trade Unions which are affiliates of the Party but it is clear from any reading of the Rules that affiliates include Sub-Branches. In so far as the plaintiff contended that affiliates in r60(b) only applied to Trade Unions then, in my opinion, the argument must be rejected.
166 It must be rejected for another reason apart from the fact that it is inconsistent with a reading of the whole Rules. It is inconsistent with the reading of r60(b) itself. Rule 60(b) refers to members of the Party "elected or appointed by delegates by the affiliates of the Party". No Trade Union member is elected as a delegate of Convention or Council. A Trade Union member may be elected from within the Trade Union itself but Trade Union delegates are appointed not elected.
167 Persons who are delegates ex officio under either r24(c)(i) or r24(d) are not elected. It may be doubted whether they are appointed, but they are certainly not elected. Therefore r60(b), in referring to elected delegates, must be referring to delegates apart from those appointed by Trade Unions and those who are delegates by virtue of their office. The only delegates who fit the description of elected delegates are Sub-Branch delegates.
168 It is clear that r60(b) therefore applies not only to delegates from Trade Unions but also delegates elected in accordance with the provisions of r56. The definition of Central Component includes all delegates to Convention.
169 In my opinion, contrary to the plaintiff’s second contention in relation to r60, r60(b) does not require the Party to consider, at a preselection Convention, the preselection of all candidates for all Parliamentary positions at the same time.
170 The words "for all parliamentary positions" mean no more than the Central Component should be applied "for all parliamentary positions". The words do not mean that the Annual Convention or the Special Convention must consider all Parliamentary positions at the one time.
171 If the plaintiff’s contention were correct it would mean that the Party would always have to consider preselections for all State and Federal seats for the House of Assembly and the House of Representatives and positions in the Legislative Council and the Senate at the same time.
172 With the greatest respect that simply cannot be so. It cannot be that the Rules contemplate that every time the Party considers preselections for the State seats it must also consider preselections for the Federal seats. More obviously the Rules do not contemplate that the Party must consider preselection for the Senate at the same time the Party has to consider preselection for some seats in the State Lower House.
173 The timing of State elections and Federal elections have no coincidence. There is no reason to read the Rules so as to require the Party to consider all preselections at the same time.
174 That being so, the question remains whether or not when considering only preselections for seats in the House of Assembly whether the Party is obliged to consider preselection for all seats at the same time.
The Plaintiff’s First Argument Is Rejected

175 In my opinion, there is nothing in r60(b) which requires the Party so to conduct itself.
176 In my opinion the proper construction of r60(b) is that the Central Component applies to all Parliamentary positions. That is the plain reading of r60(b). However, and as importantly, that is the fact. The Local Component applies only to seats in the Lower Houses of the two parliaments. The Central Component applies to preselections for all Parliamentary positions. That is the reason for the words at the end of r60(b).
177 It follows, in my opinion, that the plaintiff’s contention that this Special Convention cannot be held because it has not been called for the purpose of considering all Parliamentary positions must be rejected.
178 That leaves me to consider the plaintiff’s other two arguments. It would be convenient to address Mr Hayes’ second argument before returning to the further rules which must be addressed to determine the third argument.
The Plaintiff’s Second Argument

179 In a sense I have already addressed this argument. For reasons I have already given the Party acted properly to postpone all internal elections, which would otherwise have been held in August 1999. So much has been properly conceded. The only question raised by this argument is whether the Party, by the State Executive, acted beyond power to alter the timetable for the Branch Elections by deferring them to a date to be fixed by a future meeting of the State Executive. Put another way was such a deferral to a date to be fixed by State Executive beyond power? Was also the postponement of the Annual Convention until a date to be fixed by a future meeting of State Executive beyond power?

180 There are two sources of power relevant to the resolution. The alteration of the timetable for the elections was empowered by r57(c); the postponement of the Annual Convention by r22(c).
181 The reasons for the resolution have been explored and, in my opinion, justify the passing of the resolution. The resolution can only be ultra vires if the rules did not authorise it. In my opinion the rules should not be construed so narrowly so as to require the State Executive to appoint a certain date for the elections and the Annual Convention, where such a date or dates might have to be vacated by circumstances which the State Executive knows, at the time the resolution is passed, might impact upon that date.
182 In my opinion, the power to alter the timetable, in the present circumstances, enabled the State Executive to defer to a certain date fixed by itself the timetable for the Branch Executives.
183 So also r22(c) empowered the State Executive to postpone the Annual Convention to a date to be fixed by a future meeting of the State Executive.
184 Even if the State Executive was obliged to fix a certain date for the timetable for the elections and the Annual Convention, that would not have prevented, if necessary the State Executive further altering that amended timetable or fixing some other time for the holding of the Annual Convention.
185 Even if the plaintiff’s contention was correct the argument, by itself, goes nowhere. The argument would only impact upon the circumstances being here considered, if the elections were a necessary pre-condition to holding any Annual Convention or Special Convention.
186 If it was argued that the failure to hold the elections has vacated offices or disempowered organs of the party that would be one thing but that has not been put.
The Plaintiff’s Second Argument Is Rejected

187 The plaintiff has already conceded, rightly in my opinion, that the failure to hold the election did not prevent the holding of a Special Convention. In fact it has been conceded, again rightly in my opinion, that the failure to hold the elections does not impact, for the time being, on the Party at all.

188 The second argument must be rejected.
189 The third argument, which I will now address, does not depend upon whether the Party should or should not have done anything. It simply relies upon the fact that no election for delegates has taken place in 1999. Therefore, it is said, the Special Convention as presently constituted cannot consider the preselection of any candidates.
190 It is necessary for a consideration of that third argument to refer to some further Rules.
The Rules Continued

191 The definition, in r60(b), of Central Component makes it clear that this aspect of the preselection process must take place at a Convention. That is so because the ballot is to be of "the members of the party elected or appointed as delegates... to the Party’s Annual Convention and/or any Special Convention ...". That is also reinforced by r67.
192 The Local Component for the preselection of candidates for Lower House seats in both Parliaments is of course conducted outside the Convention but the Central Component will be determined at a Convention.
193 Rule 62(a) provides:
"(a) The voting strength of the Central Component in any preselection ballot for a seat in the House of Assembly or House of Representatives shall be 75%. This is comprised of a 50% voting strength to be exercised by eligible members elected or appointed by affiliated Trade Unions with the remaining 25% being allocated to Sub-Branches, Federal Electorate Councils, AYL and other persons who, under the Rules, are granted eligibility to vote."
194 Rule 62 provides that the voting strength of the Central Component in any preselection ballot for a seat in the House of Assembly or House of Representatives shall be 75 per cent. The remaining 25 per cent is the Local Component. The Central Component 75 per cent voting strength is to be exercised as to 50 per cent by eligible members elected or appointed by affiliated Trade Unions and the remaining 25 per cent by Sub-Branches, Federal Electorate Councils, AYL and other persons, who, under the Rules are granted eligibility to vote. The rule contemplates, as do r60(b) and r67, that the voting of that 75 per cent Central Component will take place at a Convention.
195 The Central Component vote is to be exercised in accordance with the directions given by the Party Returning Officer. The Party Returning Officer has to be provided with a list of the names and addresses of each of the eligible delegates not less than four weeks before the date of the ballot of the Central Component: r62(e).
196 The Party Returning Officer must then advise all eligible delegates in writing of the names of the candidates for all ballots and state the venue of the polling booth and the opening and closing times of the ballot by not later than fourteen days prior to the opening of the ballots.
197 Each eligible delegate is to be issued by a ballot paper by the Party Returning Officer and each eligible delegate is entitled to one vote: r62(f) and r62(c).
198 The Central Component ballot is then conducted in a practical way in accordance with r62(g) of the Constitution and Rules. That Rule provides that the Trade Union delegates shall be given a ballot paper which has a voting strength of fifty of a vote. All other delegates entitled to vote are given a coloured ballot paper which carries a strength of twenty-five of a vote.
199 That effectively means, because there are equal numbers of Trade Union and non Trade Union delegates, that the Central Component will be exercised by 50 per cent Trade Union strength and 25 per cent non Trade Union strength.
200 There is a critical point of distinction between those eligible to be delegates for the exercise of the Central Component voting strength and those ordinarily eligible to be delegates for Convention or State Council.
201 Rule 62(b) provides:
"(b) For the purpose of determining the number of eligible delegates each affiliate is entitled to, there shall be a cut off date at 30 June of each year preceding the date of the preselection ballot, which shall be used for the purposes of the allocation of the number of eligible delegates to affiliates."
202 The defendants submitted that the term affiliate used throughout the Rules not only refers to Trade Unions but also included Sub-Branches, FECs and AYL. For reasons I have already given I have accepted that submission. It is clear, as I have previously said, that the term affiliate used in the Rules refers to not only the Trade Unions but to the other bodies to which I have referred.
203 That being the case it means that the eligible delegates for any preselection to be held this year must be determined by reference to the cut off date as at 30 June 1999. They are the plain words in r62(b).
204 Rule 62(b) is consistent in a way with r5(b)(vii). The Rules treat preselections as more important than ballots for other positions within the Party. By reason of r5(b)(vii) only persons who have been financial or unfinancial members (as that term is understood in r5(b)(v)) for thirteen months can vote in a "preselection plebiscite". That means that eligible members (who have had continuous membership for six months but not thirteen months), who would otherwise be entitled to vote in any other ballot, cannot vote in a ballot for a Local Component. Only persons, who have been members for the longer period, can vote in a preselection plebiscite.
205 I think the words of r5(b)(vii) are wide enough to mean that any person who has been elected as a delegate to a Convention can also only vote in the Central Component at Convention if that person is an eligible member within the meaning of r5(b)(viii); i.e. a "member for at least thirteen months continuously."
206 To vote in any plebiscite by way of Local Component or Central Component requires membership for thirteen months continuously.
207 There may be delegates to the present Convention who have only been members for six months not thirteen months. They would not be entitled, in my opinion, to vote at any preselection Convention.
208 It is not only non Trade Union delegates who must be eligible members within the meaning of r5(b)(vii). Because Trade Union delegates must also be members (r25(a)(ii)), they also cannot vote at a preselection plebiscite unless they have been members of the party for thirteen months continuously.
209 In summary, therefore, only eligible members within the meaning of r5(b)(vii) can vote at any Local Component. Only those delegates who are also eligible members within the meaning of r5(b)(vii) can vote at the Central Component at the Convention.
210 Because of r62(b) the representation at any Convention held this year, for the purpose of preselection, which includes the Convention to be held on 16 October 1999, must be determined by reference to the membership as at 30 June 1999.
211 It is at that date that there must be a determination of the number of eligible delegates to which each affiliate is entitled: r62(b). Any earlier cut off date, e.g. 30 June 1997, would not satisfy r62(b). There must be a determination in accordance with r24 of the number of delegates to which any affiliate is entitled upon the basis of sustentation fees paid to 30 June 1999.
212 It means that for the purpose of the determination of the Central Component vote, the Party will have to determine who are the eligible delegates as at 30 June 1999. That would mean those who might have been eligible in 1997 may not be eligible in 1999. The present members of Convention and Council may be eligible delegates as at 30 June 1999 but are not necessarily so.
The Plaintiff’s Third Argument

213 The delegates to this Convention were appointed or elected in 1997.
214 The representation of all delegates, Trade Union or non Trade Union, was fixed by reference to the entitlement of each affiliate of the Party as at 30 June 1997.
215 The delegates appointed or elected were eligible members as at that date. It may be supposed that the delegates are still eligible members because otherwise they would have been deemed to have resigned pursuant to r56(t). If that had occurred they would have been replaced by a ballot conducted under r57(a).
216 It may be that some of the delegates to this Convention are not eligible members within the meaning of r5(b)(vii), but they would only be delegates who have been appointed to fill a casual vacancy for an affiliate Trade Union, or a delegate who has been elected to fill a casual vacancy under r57(a). Those who were appointed or elected in 1997 would have to be eligible members within that rule because of the time that is passed since their appointment or election. The delegates to this Convention would appear to be able to vote in a preselection plebiscite.
217 The difficulty from the Party’s point of view is not in the qualification of the delegates but in the determination of the number of delegates to which each affiliate is entitled.
218 Rule 62(b) requires that the number of eligible delegates be determined as at 30 June 1999 by determining as at that date the number of delegates to which each affiliate is entitled. That has not been done. This Convention is represented by the eligible delegates to which each affiliate was entitled as at 30 June 1997. The Convention therefore does not reflect the entitlement of all of the Party’s affiliates at the appropriate date for a preselection Convention at which the Central Component will be exercised, viz 30 June 1999.
219 Mr White argued that the current delegates are entitled to continue in office until their successors are named after the deferred elections are held. In that regard he relied on r59(j). I agree that r59(j) allows the delegates who were appointed to Convention to remain in office, subject to r56(t), until the elections which have been deferred have been held. I also believe that a Special Convention can be convened for the purpose of considering any business which constitutionally a Special Convention can entertain. However when a Special Convention is called upon to consider the preselection of Parliamentary candidates, it must be composed of delegates, who are entitled ex officio pursuant to r24(c)(i) and r24(d) and who have been appointed or elected in accordance with the entitlement of each affiliate to the Party determined as at 30 June preceding the date of the Special Convention. Any Special Convention for preselection of Parliamentary candidates held between now and 30 June 2000 must be composed of delegates reflecting the Party’s affiliates entitlement as at 30 June 1999. Rule 59(j) cannot be construed so as to render r62(b) nugatory.
220 There are good reasons why the rules insist upon the electorate for the preselection Convention being determined at the end of the financial year in which the preselection Convention takes place. It ensures that preselection Conventions will, as near as possible, reflect the current membership of the Party including Trade Union affiliate membership and Sub-Branch membership. Because the Central Component is such a large part of the vote for preselection of a candidate to a Lower House seat, and the whole part of the vote for candidates to Upper House seats and, because the Trade Union component of that vote is either two thirds or half that vote, it would be important that the delegates reflect the current strength of the Trade Unions at the time of the Central Component ballot.
221 I believe that r62(b) is intentionally in its form so that preselection Conventions are held in odd years so as to reflect the currency of membership. If the Party has to hold a preselection Convention at some other time, i.e. in an even year, r62(b) ensures that the delegates voting upon the candidates reflect as near as possible the current affiliates and membership of the party.
The Plaintiff’s Third Argument Succeeds

222 The Convention, which has been called for 16 October 1999, will consist of delegates who were appointed or elected by reference to the sustentation fees paid by affiliates as at 30 June 1997. Those delegates have not been appointed or elected in accordance with the requirements for a preselection Convention in that they do not reflect the eligible delegates as at 30 June 1999: r62(b). It follows that the Convention cannot, because of the provisions of r62(b), act as a preselection Convention.
Conclusion

223 No Convention can be called for the purpose of considering preselection of Parliamentary candidates unless delegates to the Convention are appointed or elected by reference to the entitlement of the affiliates as at 30 June 1999.
224 In that respect the plaintiff must succeed. The third argument must succeed in so far as it complains that the Convention cannot proceed without elections first being held. My decision must be understood as referring only to Conventions called for the purpose of considering the preselection of Parliamentary candidates. Rule 62(b) has no application to Conventions called to consider any other business apart from preselections.
225 The plaintiff sought declaratory and injunctive relief. It was agreed by the parties that I should publish my reasons and allow the parties to be heard on the precise orders.
226 In accordance with the parties’ agreement I publish my reasons for deciding that the Convention called for 16 October 1999 cannot consider the business contained in the resolutions of State Council of 12 August.

[1999] SASC 415

24 September 1999