Clarke v ALP (SA Branch), Hurley & Ors (No 2) No. Scgrg-99-874 Judgment No. S433

[1999] SASC 433

CLARKE v AUSTRALIAN LABOR PARTY (SA BRANCH), ANNETTE HURLEY MHA & ORS

[1999] SASC 433

Civil
Ex Tempore

1. LANDER J: In this matter the plaintiff has succeeded in satisfying me that the holding of a special convention in accordance with the resolution of 12 August 1999 would be contrary to the Constitution and General Rules of the first defendant. The plaintiff is therefore entitled to a declaration, the precise terms of which I will shortly identify, and an injunction in support of that declaration.

2. The plaintiff has, as the successful party, applied for the costs of the proceedings since the date of amendment of the inter partes summons, including the costs of that amendment. 

3. The defendant opposes an order for costs in favour of the plaintiff or at the very least opposes an order that the plaintiff have the whole of the plaintiff’s party and party costs. 

4. Two points were put by the defendant in opposition to the plaintiff's claim for costs.  First it was put that the resolution was passed on by State executive to 28 July 1999 and then by Council on 12 August 1999.  If the plaintiff was concerned about the effect of those resolutions and the holding of the Convention, it is submitted that the plaintiff should have amended his proceedings whilst they were still before Mullighan J and asked his Honour to pass an opinion on those matters at the same time as his Honour ruled in relation to paragraphs 1-7 of the inter partes summons. 

5. Secondly, it is put that the plaintiff put three arguments on the appeal, two of which were rejected and the third of which was only accepted in a modified form.  It is said in those circumstances the plaintiff ought not to be entitled to the whole of his costs. 

6. As to the first matter, it seems to me that the timing of the resolutions was such that the plaintiff cannot be criticised for not bringing these further proceedings before Mullighan J.  As Mr Harms has pointed out, at the time that the matter came before the Judge points of contention and points of defence had been filed and any application to amend the inter partes summons may well have meant a delay in the hearing of the whole matter before Mullighan J.   From the plaintiff's point of view there was extreme urgency about the disposal of the matter.  In my opinion  he cannot be criticised for failing to amend his summons until after Mullighan J had ruled.  Moreover, he cannot be criticised because any success in relation to the matters before me depended upon a conclusion by Mullighan J that the affairs of the defendants were justiciable. 

7. As to the second matter, it is right that I rejected two of the arguments advanced by the plaintiff and only accepted the third argument in a modified form. However, this matter is about the construction of the Constitution and General Rules of the defendant. It is usual in cases where construction is the issue that various arguments are put, tested and rejected. The real question in this case is whether or not the defendant was entitled to call the Special Convention in accordance with the resolution of 12 August 1999.

8. In my opinion simply because the plaintiff did not succeed on all three grounds and, in fact, only succeeded on one, does not disentitle the plaintiff to his costs. 

9. I have been asked to make a declaration and an injunction. The parties put separate proposals for the orders which the parties sought. In my opinion the orders proposed by the defendant more accurately record the issues which were before me and which were agitated. The defendants' proposed orders deal with the Constitution and General Rules as they presently stand. I think the orders proposed by the plaintiff, if made, might have the effect of inhibiting the defendant in conducting its internal business in circumstances where the defendant should not be restrained. I therefore make the following orders:

10. That the preselection of candidates for State and Federal Parliamentary Positions at the Special Convention called for 16 October 1999 by the resolution of State Council, the first defendant, on 12 August 1999, would be contrary to the Constitution and General Rules of the first defendant.

11. That the first defendant be restrained and an injunction is hereby granted restraining it from conducting any ballot for the purpose of the preselection of candidates for State or Federal Parliamentary Positions before or at the Special Convention called by the State council of the first defendant for 16 October 1999.  

12. That the defendants pay to the plaintiff his costs of the proceedings to be taxed on a party and party basis.