Coleman v Liberal Party of Australia (NSW Division)
[2007] NSWSC 655
•22 June 2007
NEW SOUTH WALES SUPREME COURT
CITATION: Coleman v Liberal Party of Australia (NSW Division) [2007] NSWSC 655
JURISDICTION: Equity Division
FILE NUMBER(S): 3314/07
HEARING DATE{S): 22 June 2007
JUDGMENT DATE: 22 June 2007
EX TEMPORE DATE: 22 June 2007
PARTIES:
David Coleman – Plaintiff
Liberal Party of Australia (NSW Division) - Defendant
JUDGMENT OF: Palmer J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
A.W. Street SC, B. Neild – Plaintiff
G. Jaeschke (State Director of Defendant) – Defendant
SOLICITORS:
Addison Lawyers – Plaintiff
CATCHWORDS:
INTERLOCUTORY INJUNCTION – Application to restrain holding of Pre-selection Committee Meeting – issue of construction of State Liberal Party’s Constitution – whether serious question to be tried – balance of convenience.
LEGISLATION CITED:
CASES CITED:
DECISION:
Interlocutory injunction granted in contemplation of expeditious final hearing.
JUDGMENT:
3314/07Coleman v Liberal Party of Australia (NSW Division)
JUDGMENT – Ex tempore
22 June, 2007
The Plaintiff seeks an urgent ex parte order restraining the Defendant from giving effect to a decision of the Disputes Panel of the Defendant made on 22 June 2007. The decision permits a preselection meeting to be held tomorrow at which the Liberal Party candidate for the Federal seat of Cook will be selected. The Plaintiff says that the decision of the Disputes Panel is contrary to the terms of the Defendant's Constitution and has the effect of excluding from participation in the Preselection Committee meeting fifteen persons who would otherwise be entitled to be present and to vote. The Plaintiff says that the wrongful exclusion of those fifteen persons will result inevitably in his not being selected as the Party’s candidate for Cook. The Plaintiff seeks to restrain the holding of the meeting until the true construction of the Defendant's Constitution is determined and the validity or otherwise of the Disputes Panel's decision is determined.
When I was first notified that the Plaintiff wished to make this application ex parte, I required that notice be given to the Defendant so that it could be present at the hearing, if it wished. It seemed to me that the issue directly affected the public interest, and if there were any matters weighing in the balance of convenience which the Defendant wished to agitate, then I should be aware of them at the earliest possible stage.
In the result, the State Director of the Defendant, Mr Jaeschke, has appeared. He is not a lawyer and he tells me that he has not had the opportunity of obtaining legal advice, so that he is really not able to assist the Court one way or the other in the application. The consequence is that the hearing has been conducted essentially in the manner in which an ex parte application would be conducted.
For that reason, Mr Street SC, who appears with Mr Neild of Counsel for the Plaintiff, very properly placed before me all of the material of which he is presently apprised, both in support of, and contrary to, the propositions he advances.
The sole question for final determination in the proceedings will be the construction of Clauses 4.15 and 4.16 of the Constitution of the Defendant. There are no matters of fact likely to be in dispute. Mr M. Neil QC, who chaired the Disputes Panel, has expressed in writing his opinion as to the true construction of Clauses 4.15 and 4.16 of the Constitution. That Opinion has been provided to the Court. Mr Street has also provided a written opinion in which he propounds the contrary view. I have briefly looked at the relevant clauses of the Constitution to which Mr Street has drawn my attention, including Clauses 4.15 and 4.16. I hold that there is a substantial or serious question to be tried as to the true construction of those clauses, sufficient to satisfy the first of the two requirements for the grant of interlocutory relief.
The question that has troubled me is whether the balance of convenience requires that an injunction go now to restrain the holding of the Preselection Committee meeting. Mr Jaeschke tells me that, unless restrained, the meeting will proceed with its members, as presently constituted, at about 9.30 tomorrow morning.
Mr Street submits that unless the meeting is restrained, the practical consequence will be that the Plaintiff will not be preselected as candidate. He says that if tomorrow’s decision of the Preselection Committee is ultimately found to be invalid, and the Plaintiff is selected as the Party’s candidate at a later time as a result of a valid meeting, nevertheless, the Plaintiff’s reputation and standing as a candidate in the electorate will be severely damaged.
The Preselection Committee meeting as presently constituted will comprise 145 members. If the persons said by the Plaintiff to be entitled to attend also attend the meeting, the number will be swelled to 160. It is no mean feat of organisation to reconvene a meeting of either 145 or 160 persons at short notice.
There is no evidence in affidavit form as to any prejudice that the Plaintiff will suffer if the Preselection Committee meeting were to go ahead tomorrow as intended. However, that is perfectly understandable in view of the urgency with which this application has been brought. The relevant decision to proceed with the meeting was confirmed only late this afternoon.
I think that, in all of the circumstances, I ought to restrain the holding of the meeting tomorrow. The repercussions of it being held, and the consequences politically to the Plaintiff can, I think, be inferred as a matter of fairly obvious common sense.
In making that decision on the balance of convenience, I bear in mind that the issue between the parties can be fairly quickly determined on a final basis. I have in mind that the parties ought to be ready to argue the question of construction some time next week. If the Plaintiff is ultimately successful, it will be a matter of convening a meeting of 160 persons shortly thereafter; if the Defendant is ultimately successful, it will be a matter of convening a meeting of 145 people thereafter. I do not think anything turns upon the exact numbers required to convene the meeting.
It seems to me that because the dispute ought to be finally determined some time next week, it is better, on the balance of convenience, to ensure that a decision is made which will not be the subject of further litigation and uncertainty rather than let a decision be made which remains subject to attack.
For those reasons, an injunction will go as sought, but I will limit its duration to ensure that the issue between the parties is brought to a final hearing next week, if possible.
– oOo –
LAST UPDATED: 25 June 2007
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