Cockman v Gorman - [2023] WASCA 44

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   COCKMAN -v- GORMAN [2023] WASCA 44
CORAM:   MITCHELL JA
VAUGHAN JA
HALL JA

HEARD:   14 MARCH 2023
DELIVERED          :   14 MARCH 2023
PUBLISHED           :   20 MARCH 2023
FILE NO/S:   CACV 37 of 2022
BETWEEN:   TRISTAN COCKMAN
Appellant
AND
PATRICK GORMAN
First Respondent
LENDA OSHALEM
Second Respondent
PETER TINLEY
Third Respondent
TIMOTHY PICTON
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
Citation: COCKMAN -v- GORMAN [2022] WASC 125
File Number            :   CIV 1313 of 2021

Catchwords:

Unincorporated association - Political party - Preselection disputes - Justiciability - Whether internal disputes by members of unincorporated political party as to compliance with the constitution of the party in relation to preselection of candidates for election to Commonwealth Parliament are justiciable - Where former member of the Australian Labor Party claims damages for breach of the constitution of the WA Branch of the ALP during his unsuccessful attempt at preselection as a candidate for a House of Representatives seat and the failure to renew his membership of the party - Whether constitution of the WA Branch of the ALP is intended to create contractual relations between members - Whether Electoral Act 1918 (Cth) impliedly makes justiciable preselection and membership disputes alleging a failure to comply with the constitution of a registered political party which does not have contractual force

Legislation:

Electoral Act 1918 (Cth), s 123, s 125, s 126, s 133, s 134, s 152, s 156, s 162, s 166, s 169, s 169B, s 172, s 176

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	G M G McIntyre SC and M W E Maconachie
First Respondent	:	V N Ghosh
Second Respondent	:	V N Ghosh
Third Respondent	:	V N Ghosh
Fourth Respondent	:	V N Ghosh

Solicitors:

Appellant	:	Hotchkin Hanly
First Respondent	:	McNally & Co
Second Respondent	:	McNally & Co
Third Respondent	:	McNally & Co
Fourth Respondent	:	McNally & Co

Case(s) referred to in decision(s):

Asmar v Albanese [2022] VSCA 19; (2022) 369 FLR 1
Baldwin v Everingham [1993] 1 Qd R 10
Butler v Mulholland [No 2] [2013] VSC 662
Camenzuli v Morrison [2022] NSWCA 51; (2022) 107 NSWLR 439
Cameron v Hogan (1934) 51 CLR 358
Dawkins v The State Secretary, Australian Labor Party (WA Branch) [No 2] [2022] WASC 117; (2022) 367 FLR 40
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Hill v Zuda [2022] HCA 21; (2022) 96 ALJR 540
Mount Bruce Mining Pty Ltd v Wright Prospecting Ltd [2015] HCA 37; (2015) 256 CLR 104
Setka v Carroll [2019] VSC 571; (2019) 58 VR 657

REASONS OF THE COURT:

At the conclusion of the hearing of this appeal, we ordered that the appeal be dismissed for reasons to be published later. These are our reasons for dismissing…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Cockman v Gorman

Details

AGLC: Cockman v Gorman [2023] WASCA 44
Case: [2023] WASCA 44
Decision Date

CaseChat Overview and Summary

The appeal in Cockman v Gorman was heard by Mitchell, Javauge, and Hall JA of the Court of Appeal of Western Australia. The appellant, Tristan Cockman, was a former member of the Australian Labor Party who unsuccessfully sought preselection as the endorsed candidate for a House of Representatives seat in the 2016 federal election. Cockman brought proceedings against the respondents, officeholders in the Western Australian Branch of the ALP, seeking damages for alleged breaches of the WA Labor Constitution and Rules in relation to his failed preselection attempt and the failure to renew his ALP membership in 2017 and 2021. He also sought an order that the State Secretary of WA Labor amend the party's register of individual members to include Cockman as a member. The respondents sought summary judgment, which was granted by the primary judge. Cockman appealed the decision, contending that the primary judge erred in summarily dismissing the proceedings on the basis that the WA Labor Rules do not create enforceable legal rights by inference from the provisions of the Electoral Act 1918 (Cth). The Court of Appeal dismissed the appeal, finding that the WA Labor Rules were not intended to create contractual relations and that the Electoral Act did not create a cause of action for damages for breach of the constitution of a political party. The appeal was dismissed for the above reasons.

Orders