Cockman v Gorman
[2022] WASC 125
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: COCKMAN -v- GORMAN [2022] WASC 125
CORAM: CURTHOYS J
HEARD: 7 OCTOBER 2021
DELIVERED : 13 APRIL 2022
FILE NO/S: CIV 1313 of 2021
BETWEEN: TRISTAN COCKMAN
Plaintiff
AND
PATRICK GORMAN
First Defendant
LENDA OSHALEM
Second Defendant
PETER TINLEY
Third Defendant
TIMOTHY PICTON
Fourth Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Rules of political party - Justiciability - Whether preselection process of political party justiciable - Whether rules of political party create enforceable contractual rights and duties
Legislation:
Commonwealth Electoral Act 1918 (Cth)
Rules of the Supreme Court 1971 (WA), O 16 r 1
Result:
Application granted
Judgment for defendants
Category: B
Representation:
Counsel:
| Plaintiff | : | E C Muston SC, D Ward & D Hume |
| First Defendant | : | T J Hammond & V N Ghosh |
| Second Defendant | : | T J Hammond & V N Ghosh |
| Third Defendant | : | T J Hammond & V N Ghosh |
| Fourth Defendant | : | T J Hammond & V N Ghosh |
Solicitors:
| Plaintiff | : | Hotchkin Hanly |
| First Defendant | : | McNally & Co |
| Second Defendant | : | McNally & Co |
| Third Defendant | : | McNally & Co |
| Fourth Defendant | : | McNally & Co |
Cases referred to in decision:
Asmar v Albanese [2022] VSCA 19
Baldwin v Everingham (1993) 1 Qd R 10
Butler v Mulholland (No 2) [2013] VSC 662
Camenzuli v Morrison [2022] NSWCA 51
Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358
Clarke v Australian Labor Party (SA Branch) [1999] SASC 365; (1999) 74 SASR 109
Coleman v Liberal Party of Australia (NSW Division) (No 2) [2007] NSWSC 736; (2007) 212 FLR 271
Dawkins v The State Secretary, Australian Labor Party (WA Branch) (No 2) [2022] WASC 117
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Johnson v The Greens NSW [2019] NSWSC 215
LCLA Pty Ltd v Barkay Pty Ltd [2018] WASC 400
Setka v Carroll [2019] VSC 571
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149
Westpac Banking Corporation v Anderson [2017] WASC 106
CURTHOYS J:
Introduction
The plaintiff, Tristan Cockman, is a former member of the Western Australian Branch of the Australian Labor Party (ALP). In 2015, he unsuccessfully sought preselection as ALP candidate for the federal seat of Cowan for the 2016 federal election.
At the time, the first, second and third defendants were members of the State Executive and the Administrative Committee of the WA Branch of the ALP (WA Labor Party). The first defendant, Patrick Gorman, was State Secretary. The second defendant, Lenda Oshalem, was Assistant State Secretary. The third defendant, Peter Tinley, was President. The fourth defendant, Timothy Picton, is the current serving State Secretary.
On 20 April 2021, Cockman issued a writ against the defendants seeking a remedy in this court for what he contends is a breach of the 2015 Constitution and Rules (WA Branch Rules) governing preselection.
On 10 June 2021, the defendants, by chamber summons, filed an application for:
(a)summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA); alternatively
(b)to strike out paragraphs of the statement of claim.
The summons was supported by the affidavit of Kathleen Marie McNally sworn 10 June 2021.
For the following reasons, I have decided to summarily dismiss Cockman's claim. Accordingly, these reasons deal only with the defendants' application for summary judgment.
Factual background
For the purposes of a summary judgment application, matters of fact must be accepted. The following comprises the factual background as set out in Cockman's statement of claim.
The ALP is an unincorporated association and political party.
Prior to the 2013 federal election, Cockman was preselected as the ALP candidate for the federal seat of Cowan. Cockman contested the seat at the 2013 federal election but was not elected.
Cockman subsequently sought preselection as the ALP candidate for Cowan for the 2016 federal election.
Prior to 13 October 2015, the Administrative Committee of which Gorman, Oshalem and Tinley were members approved and published a timeline for the expression of interest (EOI) process for all federal House of Representatives seats and Senate positions. The published timeline stated that the EOI period opened on 13 October 2015 and closed on 30 October 2015.
On 19 October 2015, the State Executive resolved to open nominations for all federal House of Representatives seats and Senate positions on 20 October 2015, to close on 6 November 2015. It further resolved that that ballots of Local Electors, if required, would be held on 14 and 15 November 2015 and that preselections for these seats be finalised by the State Executive on 16 November 2015.
On 29 October 2015, Cockman submitted an EOI. The WA Labor Party acknowledged receipt of the EOI on the same date.
By no later than 12 October 2015, representatives of the WA Labor Party had received adverse allegations against Cockman to the effect that he was representing to people that he was the ALP candidate in Cowan.
Prior to 9 November 2015, Gorman as State Secretary of the WA Labor Party provided a report to the Administrative Committee that included a recommendation as to the candidates who may formally nominate for Cowan. The report recommended that the Administrative Committee call for further nominations.
At its meeting on 9 November 2015, the Administrative Committee considered the State Secretary’s recommendations concerning Cowan in his report. The Administrative Committee resolved that there would be a call for further nominations and that preselection voting would not proceed on 14 and 15 November 2015. It also made recommendations to the State Executive that nominations would remain open until 27 November 2015 and that ballots of Local Electors would be held on 12 and 13 December 2015 with the State Executive voting or endorsing candidates on 14 December 2015.
At its meeting on 16 November 2015, the State Executive accepted the above recommendations of the Administrative Committee.
On or prior to 7 December 2015, Gorman prepared a second report which recommended that the Administrative Committee not accept Cockman's EOI and that the endorsement for Cowan be referred to the Administrative Committee.
On 7 December 2015, the Administrative Committee decided not to accept Cockman's EOI.
Applications for summary judgment
Order 16 r 1 of the Rules of the Supreme Court provides that if the court is satisfied that an action is frivolous or vexatious, the defendant has a good defence on the merits, or that the action should be disposed of summarily without pleadings, the court may order:
(a)that judgment be entered for the defendant with or without costs; or
(b)that the plaintiff shall proceed to trial without pleading.
An application for summary judgment faces a high hurdle to succeed. The general principles applicable to an application of this nature were summarised in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:[1]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] ‑ [55].
[1] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
A summary judgment application focuses on the plaintiff's pleading. As already noted, matters of fact which are in the statement of claim must be accepted for the purposes of the summary judgment application.[2] The defendant bringing the application bears the legal onus of establishing that there is no real question to be tried, or that the case is bound to fail, sufficient to warrant the grant of summary judgment.[3]
[2] LCLA Pty Ltd v Barkay Pty Ltd [2018] WASC 400 [2].
[3] Westpac Banking Corporation v Anderson [2017] WASC 106 [54].
However, once it appears that there is a real question either of fact or of law, an application for summary judgment must fail. As the High Court held in Spencer v The Commonwealth:[4]
Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law.
[4] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [25].
The summary dismissal of a claim is particularly inappropriate where the issues in the case involve the application of the law to novel contexts. In Trkulja v Google LLC,[5] the High Court said:
As Kirby P (as his Honour then was) observed in another context, in Wickstead v Browne, appellate courts should be loath to consider the application of the law to evidence in novel contexts without the benefit of the evidence having been adduced and a trial concluded. Testimony 'gives colour and content to the application and development of legal principle', and out of the detail of the evidence ultimately proved may arise an insight which aids understanding whether and how principle should be developed.
[5] Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 [55].
The defendants' application for summary judgment
In support of the application for summary judgment, the defendants rely on the authority of Cameron v Hogan.[6] In that case, the High Court set out a number of principles relating to the justiciability of disputes arising from the rules of unincorporated associations in the context of the rules of the Victorian Branch of the ALP. The Court held that a member of a voluntary association could not maintain an action on the basis of being unjustifiably excluded from that association or a breach of the association rules unless the member could establish a proprietary right or that the rules were contractually enforceable.[7]
[6] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358.
[7] Cameron (371, 377) (Rich, Dixon, Evatt & McTiernan JJ), (376 - 377, 384 - 385) (Starke J).
Hogan was a former parliamentary leader of the ALP and Premier of Victoria. The appellants were the members of the central executive of the ALP in that state. The endorsement of Hogan as an ALP candidate was withdrawn by the central executive and he was expelled from the ALP without giving him the opportunity of being heard or of defending himself. Hogan brought an action in the Supreme Court of Victoria claiming a declaration that he was still a member of the ALP and entitled to his rights and privileges and seeking an injunction restraining the appellants from acting on, or carrying into effect, his expulsion. At first instance, the Court found in favour of Hogan.
The High Court refused relief on three grounds:
(a)there was no breach of contract actionable at common law or equity because there was no intention to create legal relations giving rise to an enforceable contract;[8]
(b)the procedural difficulties in framing an action by one member of a voluntary association against the other members for damages for a breach of contract;[9] and
(c)there was no basis for declaratory or injunctive relief because there was no civil right of a proprietary nature proper to be protected.[10]
[8] Cameron (370 - 371) (Rich, Dixon, Evatt & McTiernan JJ).
[9] Cameron (371 - 372) (Rich, Dixon, Evatt & McTiernan JJ).
[10] Cameron (377 - 378) (Rich, Dixon, Evatt & McTiernan JJ).
The plurality comprising Rich, Dixon, Evatt and McTiernan JJ, held that the ALP:[11]
is a political machine designed to secure social and political changes. It furnishes its members with no civil right or proprietary interest suitable for protection by injunction. Further, such a case is not one for a declaration of right. The basis of ascertainable and enforceable legal right is lacking. The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment. See Watt v MacLaughlin (1923) 1 LR 112 at 116 ‑ 118.
[11] Cameron (378).
The essence of the defendants' claim for summary judgment is that Cameron is binding High Court authority which compels the dismissal of Cockman's action.
The essence of Cockman's opposition to the claim for summary judgment is that Cameron should be distinguished on the basis that the WA Branch Rules create contractual relations or alternatively, that Cameron is no longer binding authority by reason of the altered statutory status of political parties as a result of, inter alia, the amendments to the Commonwealth Electoral Act 1918 (Cth) (Electoral Act) since 1934.[12]
The law since Cameron
[12] Plaintiff’s outline of written submissions filed 18 August 2021 [33] - [51].
Cameron is an authority of nearly 90 years standing. The real question is whether developments in the federal political sphere, and, in particular, the changes to the Electoral Act, mean that it is arguable that Cameron is no longer binding.
In Setka v Carroll,[13] Riordan J summarised the principles of Cameron as follows:
[13] Setka v Carroll [2019] VSC 571 [29] - [33].
With respect to the non-justiciability of claims involving voluntary unincorporated associations, the plurality explained:
One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.
In substance, the Court held that a member could not maintain an action at law on the basis of:
(a) being unjustifiably excluded from a voluntary association; or
(b) a breach of the association rules;
unless the member could establish a proprietary right; or that the rules were contractually enforceable.
With respect to the claim of a proprietary right, the plurality noted that the funds held by the ALP were for the promotion of the Party's political ends and that individual members 'could obtain no advantage from the funds susceptible of personal enjoyment'.
With respect to contractual intent, apart from a number of procedural and technical difficulties identified by the Court, the plurality found that there was no intention to create legal relations, stating:
Hitherto rules made by a political or like organization for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction.
The Court allowed the appeal on the basis that:
(a) the rules of the ALP did not give its members any 'civil right or proprietary interests suitable for protection by injunction'; and
(b) there was no 'ascertainable and enforceable legal right', which was a necessary basis for a declaration of right.
A number of decisions have distinguished Cameron on the basis that the Electoral Act recognises political parties, provides for their registration and authorises the granting of public funds to political parties.[14]
[14] See Baldwin v Everingham (1993) 1 Qd R 10; Clarke v Australian Labor Party (SA Branch) [1999] SASC 365; (1999) 74 SASR 109; Coleman v Liberal Party of Australia (NSW Division) (No 2) [2007] NSWSC 736; (2007) 212 FLR 271.
The best summary of the basis upon which cases have held that Cameron is no longer binding authority is to be found in the judgment of Robson J in Butler v Mulholland (No 2).[15] After noting that Cameron had been distinguished on the grounds of amendments to the Electoral Act, Robson J stated:
The cases [distinguishing Cameron] also have regard to the importance of political parties in public affairs and (by implication) that the proper administration of these voluntary associations extended beyond the interests of the party members inter se and into the broader public welfare. On that basis, the authorities have distinguished political parties from mere social unincorporated associations, whose affairs are only of concern to its members.
[15] Butler v Mulholland (No 2) [2013] VSC 662 [97].
The Electoral Act
At the time Cameron was decided in 1934, the Electoral Act made no provision for political parties. However, as recently observed in Camenzuli v Morrison,[16] the Act has changed significantly since Cameron. The relevant changes for present purposes are those provisions inserted into the Electoral Act by amending legislation in 1983 concerning the registration of political parties, the recognition and identification of candidates’ political affiliations, and the disclosure of expenditure and donations for political parties and candidates.
[16] Camenzuli v Morrison [2022] NSWCA 51 [23].
Part XI of the Electoral Act provides for the registration of political parties.[17] A 'political party' is defined by s 4 to mean 'an organization the object or activity, or one of the objects or activities, of which is the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by it'. An 'eligible political party' is defined by s 123(1) to mean a political party that:
(a) either:
(i)is a Parliamentary party; or
(ii)has at least 500 members; and
(b) is established on the basis of a written constitution (however described) that sets out the aims of the party.
[17] Commonwealth Electoral Act 1918 (Cth) s 124 (Electoral Act).
An application for the registration of an eligible political party must comply with s 126(2), which requires that the application include inter alia a statement of whether or not it wishes to receive public money under div 3 of pt XX of the Act and a copy of the constitution of the party.
Part XIV of the Electoral Act concerns the nomination of candidates and states that no person shall be capable of being elected as a Senator or Member of the House of Representatives unless duly nominated.[18] A candidate must possess certain qualifications relating to age, citizenship and entitlement to be an elector.[19] Section 166 sets out the procedures for nomination:
[18] Electoral Act s 162.
[19] Electoral Act s 163.
Mode of nomination
Nominations of single candidates as Senators or members
(1)Subject to subsections (1A), (1AA), (1B) and (1C), a nomination may be in Form C, CA, D or DA in Schedule 1, as the case requires, and must:
(a)set out the name, place of residence and occupation of the candidate; and
(b)be signed by:
(i)not less than 100 electors entitled to vote at the election for which the candidate is nominated; or
(ii)the registered officer of the registered political party by which the candidate has been endorsed for that election.
The term 'registered officer' is defined in s 4C of the Electoral Act:
Registered officer of political party
(1)Subject to subsection (2), a reference in this Act to the registered officer of a registered political party is a reference to the person shown in the Register of Political Parties as the registered officer of the party.
Note:A person must not be the registered officer or a deputy registered officer of more than one registered political party at a particular time (see subsection 126(2B)).
(2)A reference in Part XIV or XVI to the registered officer of a registered political party includes a reference to a person for the time being nominated by the registered officer of a party as a deputy registered officer of the party for the purposes of this Act.
Section 169(1) provides for the party name to be printed on the ballot paper next to a candidate endorsed by that party:
Notification of party endorsement
The registered officer of a registered political party may request that the name, or the registered abbreviation of the name, of that party be printed on the ballot papers for an election adjacent to the name of a candidate who has been endorsed by that party.
Section 169B sets out the requirements for a person to be endorsed as a candidate for a party in an election:
Verification of party endorsement
(1)For the purposes of this Act, subject to subsection (2), a person shall be taken to have been endorsed as a candidate in an election by a registered political party if:
(a)the candidate is nominated by the registered officer of the party; or
(b) the name of the candidate is included in a statement, signed by the registered officer of the party, setting out the names of the candidates endorsed by the party in the election and lodged with the Electoral Commissioner before the close of nominations for the election; or
(c)the Electoral Commissioner is satisfied, after making such inquiries as the Electoral Commissioner thinks appropriate of the registered officer of the party or otherwise, that the candidate is so endorsed.
Part XX of the Electoral Act deals with:
(a)the funding of registered political parties, candidates and Senate groups, where a candidate receives more than 4% of the total first preference votes cast in the election;[20]
(b)disclosure of donations to candidates and registered political parties;[21]
(c)disclosure of certain expenditure by political parties and others;[22] and
(d)annual returns by registered political parties setting out the total amount received, the total amount paid and the total amount of debts of the party.[23]
[20] Electoral Act s 294 - s 299.
[21] Electoral Act s 304 - s 305A.
[22] Electoral Act div 5.
[23] Electoral Act div 5A.
Section 293 concerns the entitlement of a registered party to receive election funding:
Election funding for registered political parties
(1) Election funding is payable in relation to a registered political party under this section for an election if either of the following applies:
(a)in respect of a candidate whom the party endorses in a House of Representatives election, or in a Senate election and who is not a member of a group - the total number of formal first preference votes given for the candidate is at least 4% of the total number of formal first preference votes cast in the election;
(b)in respect of candidates whom the party endorses in a Senate election and who are members of a group - the total number of formal first preference votes given for the members of the group is at least 4% of the total number of formal first preference votes cast in the election.
The WA Branch Rules
The WA Branch Rules as amended on or around 30 August 2015 provide as follows.
Rule 1.4.1 provides that the Constitution and any Rules made under it bind all members of the party. Rule 1.4.4 provides that any interpretation of the Constitution and Rules will be made by the State Executive and that any decisions of interpretation, subject to appeal to State Conference, are binding on all members of the party.
The party comprises affiliated industrial unions and individual members.[24] The structure of the party comprises, in part, the State Conference, the State Executive and the Administrative Committee.[25] The State Conference is the supreme governing body of the WA Branch and is required to meet annually.[26] The State Executive is the chief administrative authority of the party and has the authority to interpret the party policy platform between state conferences.[27] Any member of the party may appeal against any decision of any section of the party to the State Executive but the decision binds them until the State Conference decides otherwise.[28] A member may also appeal against a decision of the State Executive to the State Conference.[29]
[24] WA Branch Rules r 2.1.
[25] WA Branch Rules r 2.2.
[26] WA Branch Rules r 5.1.1, r 5.1.2.
[27] WA Branch Rules r 6.1.1.
[28] WA Branch Rules r 6.7.1.
[29] WA Branch Rules r 6.7.2.
The Administrative Committee is responsible for the administration of the party between meetings of the State Executive and is to meet at least once between State Executive meetings.[30] It relevantly comprises the President, the State Secretary and the Assistant State Secretary.[31] The duties and responsibilities of the Administrative Committee are set out in r 8.8. The decisions of the Administrative Committee bind all members of the party unless the State Executive decides otherwise.[32]
[30] WA Branch Rules r 8.1.
[31] WA Branch Rules r 8.2.1.
[32] WA Branch Rules r 8.10.
Rule 9 concerns the committees that the State Executive may establish to deal with any matters affecting the party.[33] Rule 9.3 deals with the Disputes Committee which is established to deal with disputes concerning internal party elections and to consider charges brought to it in accordance with r 9.3.10:
[33] WA Branch Rules r 9.1.
Bringing a Charge to the Committee
9.3.10.1Where a member alleges that another member is guilty of:
· A breach of the Rules;
· Conduct which is prejudicial to the Party; and/or
· Conduct unbecoming to a member of the Party;
· The charge shall be referred to the Disputes Committee, if it satisfies the requirements of Rule.
9.3.10.2Only one (1) member may bring any charge, but the charge may be brought on behalf of other members or affiliated organisations.
9.3.10.3The charge must:
· Be in writing addressed to the State Secretary;
· Specify the name and address of the member laying the charge and the member being charged; and
· Specify the nature of the charge, the date of the alleged offence and all of the relevant particulars and details that support the charge.
9.3.10.4The State Secretary must send a copy of any charge received to each member of the Disputes Committee and to the member charged within seven (7) days of receiving the charge.
9.3.10.5Where a charge concerns or is against the State Secretary, the procedures outlined within Rule 9.3.10 will be the responsibility of the most senior officer not concerned in the charge.
Rule 9.3.11 sets out the procedure of the Disputes Committee for dealing with a charge or complaint:
Procedure of the Disputes Committee
9.3.11.1The Disputes Committee may dismiss a charge or complaint where it appears to the Committee to be frivolous, vexatious or not in the best interests of the Party. Where the Committee decides to dismiss a charge or complaint on these grounds the procedures outlined in Rule 9.3.11.2 shall be followed. This will give the Parties notice that it is intended to give consideration to such a step and allow them to make whatever submissions they deem appropriate. At the same time this will allow the Committee to dispose of a matter expeditiously if the circumstances so dictate.
9.3.11.2 The Disputes Committee must:
· Hear the matter referred to it as expeditiously and informally as possible while ensuring procedural fairness;
· Give the member(s) involved written details of the matter;
· Give the member(s) involved one (1) week's notice of any meeting of the Committee hearing the matter, or any lesser period of notice which is adequate in the circumstances;
· Give the member(s) involved the real opportunity to answer the matter; and
· Report to the Administrative Committee within one (1) month of the receipt of any matter.
Rules 15.5 to 15.9 expressly deal with the preselection of candidates and relevantly provide:
15.5House of Representatives
15.5.1The preselection of House of Representative Parliamentary Candidates shall be determined by a ballot of the State Executive and Local Electors where there are at least forty (40) Local Electors. Where there are less than (40) Local Electors, the preselection shall be by a ballot of the State Executive.
15.5.2Where there are forty (40) or less valid votes cast by Local Electors, each vote shall have a value of a whole vote. Where there are more than forty (40) valid votes cast by Local Electors, each vote shall have a value determined by dividing forty (40) by the number of valid votes. The votes of the Union delegates to State Executive, shall have a value of a whole vote. Where there are less than forty (40) votes cast by the remaining delegates to State Executive, each vote shall have a value of a whole vote. Where there are more than forty (40) valid votes cast by the remaining delegates to State Executive, each vote shall have a value determined by dividing forty (40) by the number of valid votes.
…
15.7Expressions of Interest
15.7.1WA Labor seeks to ensure we have candidates of a high calibre and a strong team to fight State and Federal elections. WA Labor is committed to attracting candidates with strong community connections and a commitment to Labor values. Candidates that represent diversity in our community, with integrity and a high standard of ethics.
15.7.2A member who wishes to nominate, who is not a current sitting member of Parliament, must submit an Expression of Interest (EOI) to the Administrative Committee:
·Complete and sign a prescribed EOI form determined by the Administrative Committee;
·EOls shall include the required number of eligible electors as 'nominators';
·In the case of a Legislative Assembly and House of Representative seat the required number of 'nominators' shall be 15 and in the case of a Legislative Council or Senate position the number shall be 25;
·In each case the 'nominators' must have been financial party members for 12 months at the time the nomination form is lodged and be enrolled to vote in the relevant state or federal electorate;
·The EOI form will also include a requirement that the individual accepts that it is for the Administrative Committee to accept or not any EOI and that no legal recourse to outside jurisdictions shall apply;
·Be a financial member of the ALP for at least twelve (12) months before the nomination;
·Be eligible under law to nominate as a candidate for the seat.
15.7.3The State Executive may waive the twelve (12) month eligibility criteria set out in 15.7.2 where it is deemed to be in the Party's interests.
15.7.4 The State Secretary shall provide a report to the Administrative Committee which will include a recommendation on candidates who may formally nominate.
15.7.5The Administrative Committee shall approve and publish all the necessary criteria, processes, forms and timelines for the Expression of Interest (EOI) process.
15.7.6The Administrative Committee may waive the EOI process at any time where it is deemed to be in the Party's interests.
15.8Timetable for Nominations
15.8.1 The State Executive shall call nominations for all parliamentary seats including those with sitting ALP members. On the close of nominations, State Executive may:
·Decide that the Party will not contest a seat;
·Declare any person seeking preselection to be unsuitable; Reopen nominations;
·Declare a person elected unopposed where the person is the only eligible nominee.
15.8.2The timetable for nominations must comply with the provisions of Rule 14 (Internal Party Elections).
15.9Eligible Nominations
15.9.1A member who nominates for a seat must:
·Complete and sign a prescribed nomination form provided by the State Secretary;
·Be a financial member of the ALP for at least twelve (12) months before the nomination;
·Be eligible under law to nominate as a candidate for the seat and Sign the parliamentary candidate's pledge. (See Appendix 7).
15.9.2The State Executive may waive the twelve (12) month eligibility criteria set out in 15.9.1 where it is deemed to be in the Party's interests.
Rules 15.10 and 15.11 deal specifically with the procedure and conduct of the preselection process and relevantly provide:
15.10Preselection Procedures
15.10.1 The name of the nominee or nominees shall be reported to the State Executive and the relevant Local Electors as soon as possible after the closing of nominations.
15.10.2Where only one (1) nomination is received for any seat, State Executive and the relevant Local Electors may require the nominee to appear before the State Executive.
15.10.2.1 A nominee required to appear in accordance with Rule 15.10. shall be subject to the procedures specified for seats for which more than one (1) nomination has been received.
15.10.2.2 Where no request for the candidate to appear is received, State Executive and the relevant Local Electors may, by resolution:
·Endorse the candidate; or
·Defer a decision on the endorsement for not more than fourteen (14) days; or
·Re‑open nominations; or
·Determine that, in the best interests of the ALP, the seat shall not be contested.
15.10.3Where more than one (1) nomination is received for any seat:
15.10.3.2State Executive may decide, by majority decision, the procedure for dealing with the nominations received for any seat.
15.10.3.2 Material relevant to the seat to be contested, such as demographic material, may be made available to State Executive and the relevant Local Electors by the State Secretary if the Administrative Committee deems it desirable.
15.10.3.3 In the absence of any decision to the contrary by State Executive, the procedure for dealing with candidates shall be as follows:
·An address of not more than ten (10) minutes duration by each candidate to State Executive and a written version to be provided to the State Secretary for distribution to the relevant Local Electors. Any candidate unable to attend State Executive may submit a written address which shall be read by the State Secretary for not more than ten (10) minutes. This address shall also be distributed to the relevant Local Electors by the State Secretary.
·Questioning of each candidate by State Executive and the relevant Local Electors. Questions from the relevant Local Electors shall be submitted to and asked by the State Secretary.
15.10.3.4At any stage prior to the conduct of the ballot, any member of the State Executive may move:
·That nominations be re-opened; or
·That the seat shall not be contested; or
·That a decision on the endorsement be deferred.
15.10.3.5 At the conclusion of the procedures outlined in Rule 15.10.3.3, and unless any of the resolutions outlined in Rule 15.10.3.4 has been adopted, State Executive shall then vote to choose the candidate for endorsement. Ballot papers shall not be issued to State Executive members until the completion of addresses and questions.
15.10.3.6The successful candidate shall be automatically endorsed.
15.10.4Conduct of Preselections
15.10.4.1 Relevant Local Electors shall not be prevented from voting in any ballot for which they are candidates. However, relevant Local Electors who are candidates shall not be entitled to be present during the address of other candidates, to question other candidates, or to participate in the discussion of State Executive and the relevant Local Electors.
15.10.4.2 The State Secretary and Returning Officer shall establish a voters roll for each contested preselection. Any objections regarding the roll shall be determined by the State Executive and relevant Local Electors immediately before the commencement of voting.
15.10.4.3 Preselections shall be dealt with immediately following the formal opening of State Executive and before the conclusion of any State Executive business required to be conducted on that evening.
15.10.4.4 Where a preselection is called at a time when the State Executive is not scheduled to meet, the time of the preselection shall be determined by a prior meeting of the State Executive.
Cockman's pleadings against the defendants
An intention to create legal relations
Cockman pleads at paragraph 43 of his statement of claim that at all material times, there was an objective intention between Cockman and each other member of the WA Labor Party, including the defendants, to create contractual relations on the terms contained in the WA Branch Rules.
Cockman makes a number of alternative pleas as to contract at paragraphs 44 - 46:
(a) on or around 6 November 2015, Cockman and Gorman as State Secretary on behalf of the WA Labor Party, entered into a contract on terms which included the terms of the WA Branch Rules;
(b) on 29 January 2015, Cockman and Simon Mead as State Secretary on behalf of the WA Labor Party, entered into a contract on terms which included the terms of the WA Branch Rules, as amended from time to time by the State Conference; and
(c) on or around 3 February 2016, Cockman and Gorman as State Secretary entered into a contract on terms which included the terms of the WA Branch Rules, as amended from time to time by the State Conference.
The pleas in paragraphs 43 ‑ 46 of the statement of claim appear to have been pleaded to overcome the decision in Cameron that the rules of the Victorian Branch of the ALP were not intended to create contractual relations.
Legal norms
Paragraph 47 of the statement of claim pleads that further or alternatively to paragraphs 43 ‑ 46, that as between Cockman and the defendants, the WA Branch Rules expressed legal norms amenable to judicial supervision.
Alleged breaches of the WA Branch Rules
Cockman pleads at paragraph 72 of the statement of claim that Gorman, Oshalem and Tinley breached the WA Branch Rules, specifically r 15.5.2, by failing to ensure that ballots of Local Electors for Cowan were held on 14 and 15 November 2015 contrary to the decision of the State Executive at its meeting on 29 October 2015.
Paragraph 101 similarly alleges that Gorman, Oshalem and Tinley breached the WA Branch Rules by failing to ensure that ballots of Local Electors for Cowan were held on 12 and 13 December 2015 contrary to the decision of the State Executive at its meeting on 16 November 2015.
Cockman further pleads at paragraphs 77 and 103 that Gorman, Oshalem and Tinley breached the WA Branch Rules, specifically r 15.10.1, by failing to report the name of the nominee or nominees to the State Executive or the relevant Local Electors.
Cockman alleges that on the proper construction of the WA Branch Rules:
(a) the allegations to the effect that Cockman was representing himself as the ALP candidate for Cowan constituted a charge under r 9.3.10.1 of the WA Branch Rules; and
(b) the Administrative Committee was not empowered, in deciding whether to accept Cockman's EOI, to receive, have regard to and act on the basis of the information constituting a charge under r 9.3.10.1.[34]
[34] Statement of claim filed 20 April 2021 [87] (SOC).
Cockman pleads at paragraph 90 that in receiving, having regard to and acting on the basis of the charge against Cockman in making the decision to reject Cockman's EOI, Gorman, Oshalem and Tinley as members of the Administrative Committee acted beyond power and accordingly breached the WA Branch Rules.
Cockman pleads that in the alternative to the breach alleged at paragraph 90, if:
(a) in deciding whether to accept Cockman's EOI, the Administrative Committee was empowered to accept, have regard to and act on the basis of the charge; or
(b) the allegations against Cockman did not constitute a charge under the WA Branch Rules;
the Administrative Committee was not empowered to reject Cockman's EOI at its meeting on 7 December 2015 on the basis that, on the proper construction of the WA Branch Rules, non-compliance by a member who has submitted an EOI with r 15.7.2 of the WA Branch Rules was the only ground upon which the Administrative Committee could reject an EOI.[35] Cockman accordingly alleges that by rejecting his EOI, Gorman, Oshalem and Tinley as members of the Administrative Committee acted beyond power and breached the WA Branch Rules.[36]
[35] SOC [93] - [94].
[36] SOC [94(d)].
Cockman alleges that had the Administrative Committee not acted beyond power by receiving, having regard to or acting upon the charge:[37]
[37] SOC [89], [95].
(a) the Administrative Committee would not have made the Rejection Decision; and
(b) the Administrative Committee would have resolved:
(i) to accept Cockman’s EOI;
(ii) to recommend to the State Executive that Cockman formally nominate;
(iii) not to re-open the EOI process; and
(iv) not to recommend to the State Executive to call for further nominations; or
(c) in the alternative, there is a realistic possibility that the circumstances referred to in paragraphs [(a) and (b)] above would have occurred.
In the further alternative, Cockman pleads in paragraph 98 that in making the decision to reject Cockman's EOI, Gorman, Oshalem and Tinley as members of the Administrative Committee breached the WA Branch Rules by failing to act reasonably and in accordance with the principles of natural justice.[38]
[38] SOC [83(b)].
Cockman alleges that had the Administrative Committee acted reasonably and in accordance with the principles of natural justice prior to making the decision to reject Cockman's EOI:[39]
[39] SOC [97].
(a) Cockman would have made submissions disputing the Allegations;
(b) the Administrative Committee would have accepted Cockman's submissions and found the Allegations not proved;
(c) the Administrative Committee would not have made the Rejection Decision;
(d) the Administrative Committee would have resolved:
(i) to accept Cockman's EOI;
(ii) to recommend to the State Executive that Cockman formally nominate;
(iii) not to re-open the EOI process; and
(iv) not to recommend to the State Executive to call for further nominations; or
(e) in the alternative, there is a realistic possibility that the circumstances referred to in paragraphs [(a) to (d)] above would have occurred.
Cockman pleads that as a result of the above alleged breaches:[40]
(a) Cockman incurred expenditure that was wasted, and opportunity costs, in seeking preselection for Cowan;
(b) Cockman was not preselected by the WA Labor Party for Cowan;
(c) Cockman did not win the seat of Cowan … at the 2016 election;
(d) Cockman did not win the seat of Cowan at the 2019 election;
(e) Cockman did not earn a parliamentary salary and emoluments as the member for Cowan;
(f) alternatively, Cockman lost the chance of preselection, election and the resulting salary and emoluments.
[40] SOC [104].
Cockman submits that his claim directly relates to the preselection or endorsement process for election to the Federal Parliament. It is therefore directly related to the provisions of the Electoral Act relating to endorsement as set out above.
Should summary judgment be ordered?
Justiciability
The defendants' primary argument in support of the claim for summary judgment is that the WA Branch Rules are not justiciable. They submit that Cockman's claim is analogous to that considered in Cameron and accordingly should be summarily dismissed.[41]
[41] Defendants' outline of submissions filed 30 July 2021 [50].
It is now generally accepted the procedural difficulties of framing an action against members of a voluntary association, identified as the second reason for denying justiciability in Cameron, have been overcome by the various procedural rules[42] and by the expansion of the scope of declaratory relief.[43]
[42] See for example Mullighan J discussing r 36.02(1) and r 15.01 of the Supreme Court Rules 1987 (SA) in Clarke v Australian Labor Party (SA Branch) [52].
[43] Baldwin (15).
Nonetheless, it is necessary to consider the applicability of the other two reasons for denying justiciability in Cameron.
Two recent decisions that considered the issue of justiciability are that of the Victorian Court of Appeal in Asmar v Albanese[44] and the New South Wales Court of Appeal in Camenzuli.
[44] Asmar v Albanese [2022] VSCA 19.
In Asmar, after a detailed analysis of the cases decided since Cameron, the Victorian Court of Appeal held that the internal rules of the Victorian Branch of the ALP governing preselection were justiciable. The Court stated:[45]
It seems to us that preselection disputes in relation to federal parliamentary elections would have the necessary direct connection with the Commonwealth Electoral Act to render them justiciable. This is because of the close connection between such disputes and the provisions of the Commonwealth Electoral Act governing nomination and endorsement, and electoral funding. The registered officer is a role created by the legislation and one that plays no part (in that capacity) in the internal processes of preselection of candidates. Under the legislation, the registered officer has a central role in both the nomination of candidates (s 166) and their recognition as candidates endorsed by the registered political party (s 169B).The registered officer's role is to act as the conduit for communicating internal party decisions to the Electoral Commissioner and the voting public. The purposes of the legislation would be significantly undermined if an endorsement which was invalid under the governing constitution of a registered party was to be given effect because it was immune from challenge.
[45] Asmar [213] - [217].
However, in Camenzuli, the NSW Court of Appeal held that the Federal Constitution of the Liberal Party relating to preselection was not justiciable. The Court rejected the approach taken in Asmar that preselection disputes which have a 'close connection' with the provisions of the Electoral Act concerning nomination, endorsement and funding are rendered justiciable.[46] The Court observed that the reasoning of the Victorian Court of Appeal was flawed in three respects:[47]
First, although there is reference to provisions of the Electoral Act dealing with electoral funding, it is not clear that those provisions are relevant to the reasoning, which otherwise deals with provisions governing nomination and endorsement.
Secondly, while it is true that the role of the registered officer is created by the legislation, it is also true that he or she plays no necessary part in the internal processes of the party in preselecting candidates. The 'central role' of the registered officer in the legislative scheme is limited to conveying decisions of the political party with respect to nomination and endorsement. That role is aptly described as a 'conduit' in relation to communications between the political party and the Electoral Commission.
Thirdly, there is a sense in which the last and critical step involves an element of circularity. It is true that the legislative provisions relating to nomination and endorsement of candidates by political parties could be subverted if the ballot paper contained incorrect information. However, the ballot paper, it may be assumed, will contain the information conveyed to the Electoral Commission by the registered officer. To raise the possibility that that information may be incorrect because it is 'invalid' is to assume that there is an avenue for challenging the validity of the content of the communication from the registered officer. But that is to assume the conclusion to the critical question rather than to answer it.
[46] Camenzuli [59].
[47] Camenzuli [52] - [53].
The NSW Court of Appeal disagreed that the endorsement of a candidate by a political party gave a candidate a status which was recognised by the Electoral Act and thus constituted an enforceable interest. The Court said that the Electoral Act makes elaborate provision to introduce certainty in an area that is time-critical and potentially contentious:[48]
First, the regime leaves no room for any doubt as to whether a party is registered, and who is its registered officer. Secondly, it is true that when a person is endorsed as a candidate in an election by a registered political party, that person enjoys a particular status, and that person would prima face be able to bring proceedings to vindicate rights and entitlements attaching to that status. However, the provisions of s 169(3) and s 169B(1)(a) and (b) indicate that in many circumstances, that status turns upon a written communication from the registered officer. That is to say, the very provisions upon which reliance is placed confirm that the scheme of the statute is to entitle (and require) the Electoral Commissioner to look to written communications from the registered officer as determinative statements of the outcome of the processes of the political party. There is evident sense in the legislation taking that course: by its nature, pre-selection and endorsement is apt to be divisive, and in circumstances where the statute permits political parties to have a wide range of constitutions, ranging from those which are formally binding upon members to constitutions which create no contractually enforceable rights or obligations at all, the position of the registered officer is an important source of certainty in the administration of the Act.
[48] Camenzuli [60].
The Court held that there is no provision in the Electoral Act requiring that rules be registered with the Electoral Commissioner, nor that changes in rules be notified to the Commissioner. Accordingly, there is no general regulation of the rules of political parties which might warrant the court intervening whenever a dispute arises with respect to the operation of those rules.[49] The reasoning of cases such as Baldwin that the public interest in the operation of political parties is sufficient to render matters concerning internal processes justiciable, was held to provide an inadequate basis for distinguishing Cameron.[50]
[49] Camenzuli [64].
[50] Camenzuli [63], [66].
I adopt the reasoning in Camenzuli that the provisions of the Electoral Act do not create an enforceable legal right with respect to the operation of the internal rules of political parties. Further, I refer to the recent decision of McGrath J in Dawkins v The State Secretary, Australian Labor Party (WA Branch) (No 2),[51] where his Honour held that a preselection dispute arising from the WA Branch Rules was non‑justiciable for the reasons outlined in Camenzuli.
[51] Dawkins v The State Secretary, Australian Labor Party (WA Branch) (No 2) [2022] WASC 117 [58].
Whether the rules of the Liberal Party had contractual force was not in dispute in Camenzuli because the plaintiff accepted that the rules did not create contractual relations.[52]
[52] Camenzuli [65].
The issue of contractual enforceability was considered in greater depth in Asmar. The Victorian Court of Appeal held that the rules of the Victorian Branch of the ALP did not evidence an intention to create legal relations by reason of cl 2 of the ALP National Constitution and r 23 of the Victorian Branch Rules.
The Court held that the Victorian Branch Rules were to be read with the National Constitution.[53] I accept that conclusion to be correct for the reasons outlined by the Victorian Court of Appeal.
[53] Asmar [167].
Clause 2 of the National Constitution was set out by the Court in the following terms:[54]
Clause 2 is headed 'Legal Status of National Constitution'. It provides as follows:
(a) It is intended that the National Constitution and everything done in connection with it, all arrangements relating to it (whether express or implied) and any agreement or business entered into or payment made or under the National Constitution, will not bring about any legal relationship, rights, duties or outcome of any kind, or be enforceable by law, or be the subject of legal proceedings. Instead, all such arrangements, agreements and business are only binding in honour.
(b) Without limiting clause 2(a), it is further expressly intended that all disputes within the Party, or between one member and another that relate to the Party be resolved in accordance with the National Constitution and the rules of the state branches and not through legal proceedings.
(c) By joining the Party and remaining members, all members of the Party consent to be bound by this clause.
[54] Asmar [96].
Rule 23 of the Victorian Branch Rules was relevantly set out by the Court as follows:[55]
Rule 23 is headed 'RULES NOT ENFORCEABLE IN LAW' and is in the following terms:
23.1. It is intended that these Rules and everything done in connection with them, all arrangements relating to them (whether express or implied) and any agreement or business entered into or payment made by or under them, will not bring about any legal relationship, rights, duties or outcome of any kind, or be enforceable by law, or be the subject of legal proceedings. Instead, all arrangements, agreements and business are only binding in honour.
23.2. Without limiting Rule 23.1, it is further expressly intended that all disputes within the Party, or between one member and another that relate to the Party be resolved in accordance with these Rules and the National Constitution and not through legal proceedings.
23.3. By joining the Party and remaining members, all members of the Party consent to be bound by Rule 23.
[55] As set out by the Victorian Court of Appeal in Asmar [91].
There is no clause in the WA Branch Rules that is equivalent to r 23 of the Victorian Branch Rules. However, the WA Branch Rules are to be read with cl 2 of the National Constitution. Clause 2 by itself makes it clear that the WA Branch Rules are not intended to create legal relations, without the belt and braces approach provided by r 23 of the Victorian Branch Rules.
In Cameron, the High Court effectively held that the then rules of the Victorian Branch of the ALP did not evidence an intention to create legal relations. Cockman did not identify any distinction between the then rules of the Victorian Branch and the WA Branch Rules that would lead to a different conclusion.
The defendants further submit that the WA Branch Rules do not evidence an intention to create legal relations. The WA Branch Rules relied upon by the defendants relevantly provide:
(a)the WA Branch Rules bind members;[56]
[56] WA Branch Rules r 1.4.1.
(b)the State Executive is responsible for interpreting the WA Branch Rules and its decisions are binding on members;[57]
[57] WA Branch Rules r 1.4.4.
(c)the State Conference is the supreme governing body of the WA Branch and its decisions bind all sections;[58]
[58] WA Branch Rules r 5.1.1.
(d)the State Executive is the chief administrative authority of the Party and has the authority to interpret the party policy platform between State Conferences;[59]
[59] WA Branch Rules r 6.1.1.
(e)the decisions of the State Executive may only be reviewed by State Conference;[60]
[60] WA Branch Rules r 6.1.2.
(f)appeals from the decisions of party units are to the State Executive, but remain binding until determined;[61]
(g)any member may appeal against a decision of the State Executive to the State Conference, but the State Executive decision binds them until State Conference decides otherwise;[62]
(h)decisions of the Administrative Committee bind all members unless the State Executive decides otherwise;[63]
(i)the Disputes Committee must deal with membership rejections, charges, and disputes concerning internal party elections;[64]
(j)appeals from the Disputes Committee are to the State Conference;[65]
(k)appeals against decisions or rulings of the Federal Electoral Campaign Committees may be made to the Administrative Committee;[66] and
(l)any disputes over internal party elections shall be:
(i) referred to the State Secretary for conciliation; and
(ii) if no agreement is reached, referred to the Disputes Committee.[67]
[61] WA Branch Rules r 6.7.1.
[62] WA Branch Rules r 6.7.2.
[63] WA Branch Rules r 8.10.
[64] WA Branch Rules r 4.3, r 9.3.10, r 14.9.
[65] WA Branch Rules r 9.3.13.1.
[66] WA Branch Rules r 10.6.
[67] WA Branch Rules r 14.9.
I agree that the above rules do not evidence an intent to create legal relations, whether contractual or otherwise.
In an effort to distinguish his action from Cameron, as he must, Cockman submitted that the High Court has made it clear that an intention to create legal relations is not a question that can be resolved in any simplistic, a priori way. In support of this contention, Cockman relies upon the following passage in Ermogenous v Greek Orthodox Community of SA Inc:[68]
Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the 'intention to create contractual relations' requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word 'intention' is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.
[68] Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 [25].
The WA Branch Rules when read with cl 2 of the National Constitution objectively make it clear that the rules are not intended to create legal relations.
Given the decision in Cameron and its long standing, had the ALP wished the WA Branch Rules to create legal relations between its members it could easily have stated as such in the WA Branch Rules. It has not done so.
Other than creating the issue at large that there might evidence of an intention to create legal relations, Cockman did not point to any specific evidence of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances other than that arising from the text of the rules, that might lead to a conclusion that the WA Branch Rules were intended to create legal relations.
The decision of Dowsett J in Baldwin has frequently been cited by those cases which have held that the rules of political parties are justiciable. However, as Dowsett J explained, but for the changes to the Electoral Act, his Honour was bound by Cameron:[69]
If it were not for the statutory recognition of political parties to which I have referred to in some detail, I would be compelled to the conclusion that the case does so apply. I can see no other basis for distinction between the Labor Party as it was in the 1930s and the Queensland Branch of the Liberal Party as it now is.
[69] Baldwin (18).
Dowsett J effectively found that the rules of the Liberal Party did not evidence an intention to create legal relations by reason of Cameron. The basis upon which he found the rules to be justiciable was the statutory recognition of political parties brought about by the amendments to the Electoral Act since Cameron.
In Setka, Riordan J held that it was not possible to discern any intention from the Electoral Act to give legal force to the rules of political parties, or to confer a right of action on members to enforce the provisions of such rules against registered political parties.[70]
[70] Setka [45].
Those cases that have found that the rules of political parties are justiciable have not relied on an intention to create legal relations as a basis for a finding of justiciability.[71]
[71] See for example Clarke v Australian Labor Party (SA Branch) [1999] SASC 365; (1999) 74 SASR 109.
If a political party wishes its rules to be subject to court supervision, that is, its members intend to create enforceable legal rights, then it could, by a vote of its members, become an incorporated association.[72]
[72] Johnson v The Greens NSW [2019] NSWSC 215 [18].
The very fact that a political party has chosen not to incorporate suggests strongly that there is no intention to create legal relations between its members.
Although the ALP, and other political parties, are obviously involved in public and electoral matters that does not of itself lead to a conclusion that a breach of its rules gives anyone a right of action. Public importance cannot of itself give rise to a cause of action.
Legal norms
A finding that the rules are not justiciable is not to be overcome by 'legal norms' purportedly amenable to judicial supervision. Although the facts pleaded are to be taken as true for the purposes of summary judgment it does not follow that the legal conclusions in the pleadings of the statement of claim must also be taken as true.
I am not satisfied, on the basis of Cockman's written or oral submissions, that there is a relevant 'legal norm'. It is so nebulous a concept that it does not provide a basis for a judicial finding.
The strike out application
Having found that the WA Branch Rules are not justiciable, it is not necessary to determine the merits of the defendants' application to strike out paragraphs of Cockman's statement of claim.
Conclusion
As noted above, applications for summary judgment face a very high bar. However, since I am bound by Cameron, and following the NSW Court of Appeal in Camenzuli, I find that the defendants have met the high standard required to dismiss Cockman's claim without trial.
I accordingly make the following orders:
(1)The defendants' application for summary judgment is granted.
(2)Judgment is entered for the defendants.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
13 APRIL 2022
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