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Cockman v Gorman

Cockman v Gorman

Case [2022] WASC 125 13 April 2022

Civil Litigation & Procedure

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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…

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 [2022] WASC 125
Case: [2022] WASC 125
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Tristan Cockman, a former member of the Western Australian Branch of the Australian Labor Party (ALP), has sued the defendants, who were members of the State Executive and Administrative Committee of the WA Labor Party, for what he contends is a breach of the 2015 Constitution and Rules governing preselection. The defendants have applied for summary judgment or, in the alternative, to strike out paragraphs of the statement of claim. In granting the defendants' application, Curthoys J held that the preselection process of the political party is not justiciable, and that the rules of the political party do not create enforceable contractual rights and duties. The court accepted that the rules of the WA Labor Party do not evidence an intention to create legal relations, and that there was no relevant 'legal norm'. The defendants' application for summary judgment was accordingly granted, and judgment was entered for the defendants.

Orders