Cuthbert v Abbott

Case [2023] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

Cuthbert v Abbott & Ors [2023] QCA 139

PARTIES:

SHANE CRAIG CUTHBERT
(appellant)
v
SHARON ABBOTT
(first respondent)
PETER ALLEN
(second respondent)
JAKE ARAULLO
(third respondent)
STEVE BAKER
(fourth respondent)
KATE BANFIELD
(fifth respondent)
JOHN BATTAMS
(sixth respondent)
ZAC BEERS
(seventh respondent)
GARY BULLOCK
(eighth respondent)
JONTY BUSH
(ninth respondent)
JULIE-ANN CAMPBELL
(tenth respondent)
MILTON DICK
(eleventh respondent)
TONI FULTON
(twelfth respondent)
CHRIS GAZENBEEK
(thirteenth respondent)
SALLY GUNNER
(fourteenth respondent)
NEIL HENDERSON
(fifteenth respondent)
MITCH HUGHES
(sixteenth respondent)
MICK McKITRICK
(seventeenth respondent)
JOSHUA MILLROY
(eighteenth respondent)
STEPHANIE NAUNTON
(nineteenth respondent)
THE HONOURABLE ANNASTACIA PALASZCZUK
(twentieth respondent)
INEZ PENROSE
(twenty-first respondent)
LINUS POWER
(twenty-second respondent)
STACY SCHINNERI
(twenty-third respondent)
WENDY STREETS
(twenty-fourth respondent)
ALANA TIBBITTS
(twenty-fifth respondent)
STUART TRAILL
(twenty-sixth respondent)
CHRISTINA WARRY
(twenty-seventh respondent)
ROHAN WEBB
(twenty-eighth respondent)

FILE NO/S:

Appeal No 7401 of 2022
SC No 88 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2022] QSC 113 (Bradley J)

DELIVERED ON:

14 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2022

JUDGES:

Bond JA and Boddice and Freeburn JJ

ORDERS:

1.   Application for leave to adduce new evidence refused.

2.   Appeal dismissed, with costs.

CATCHWORDS:

ASSOCIATIONS AND CLUBS – JURISDICTION OF THE COURTS – INTERFERENCE IN INTERNAL MANAGEMENT – where the appellant’s application for membership of a political party was accepted and then a decision was subsequently made to reconsider and then to reject his membership – where the appellant filed an originating application seeking injunctive relief allowing him to remain in the political party and a declaration that a contract existed between the appellant and the respondents which was breached when his membership was rejected – where the respondents contended that the appellant’s claims were not justiciable in court – where the political party is structured as an unincorporated voluntary association – where membership is governed by a national constitution – where the national constitution explicitly provides that arrangements relating to membership do not result in a legal relationship – where the primary judge accepted the respondents’ argument that the appellant’s claims were not justiciable – whether the primary judge erred in this finding

Camenzuli v Morrison (2022) 107 NSWLR 439; [2022] NSWCA 51, applied
Cameron v Hogan (1934) 51 CLR 358; [1934] HCA 24, applied
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404; [1983] QSCFC 52, applied
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited

COUNSEL:

The appellant appeared on his own behalf
J M Harper for the respondents

SOLICITORS:

The appellant appeared on his own behalf
Holding Redlich for the respondents

  1. BOND JA:  On 16 February 2022 the appellant filed an originating application seeking orders under the Association Incorporations Act 1981 (Qld) concerning the rejection of his application for membership of the Australian Labor Party (Qld Branch).

  2. By an amended application filed on 21 March 2022 the appellant changed the juridical basis…

Continue reading Cuthbert v Abbott

Sign in free to access the full text

Details
AGLC
Cuthbert v Abbott [2023] QCA 139
Case
[2023] QCA 139
Decision Date

CaseChat Overview and Summary

The case of Cuthbert v Abbott involved an appeal by the appellant against a decision of the primary judge which dismissed his originating application for injunctive relief and a declaration that a contract existed between the appellant and the respondents. The appellant sought to be allowed to remain a member of the Australian Labor Party (ALP) after his membership application was rejected. The respondents argued that the appellant's claims were not justiciable in court. The ALP is structured as an unincorporated voluntary association, and its membership is governed by a national constitution which explicitly states that arrangements relating to membership do not result in a legal relationship. The primary judge found in favour of the respondents, and the appeal was subsequently dismissed.

The central legal issue in this case was whether the appellant's claims were justiciable in court. The appellant argued that the primary judge erred in finding his claims were not justiciable, while the respondents maintained that the appellant's claims were not justiciable due to the nature of the ALP as an unincorporated voluntary association and the explicit provisions of the national constitution.

The court considered the arguments put forward by the appellant and found that there was no basis for concluding that the High Court decision in Cameron v Hogan should not be followed, as there was no subsequent decision of the High Court that overruled Cameron v Hogan or established a mode of analysis inconsistent with it. Additionally, the appellant's application to rely on new evidence was denied, as there was no relevance to the situation in relation to applying for membership of the ALP by way of its Queensland branch.

In conclusion, the appeal was dismissed, and the court found in favour of the respondents. The primary judge's decision was upheld, and the appellant's claims were determined to be not justiciable in court due to the nature of the ALP and the provisions of the national constitution. The court also refused the appellant's application for leave to adduce new evidence and ordered that the appeal be dismissed, with costs.

Orders

Orders of the court

1. Application for leave to adduce new evidence refused.

2. Appeal dismissed, with costs.

Background

Background to the litigation

For the following reasons the appeal must be dismissed.Factual background The Australian Labor Party (the ALP) is a political party. It is structured as an unincorporated voluntary association made up of individuals associated together for the advancement of the cause of a particular political programme. The ALP’s main constituent document is the ALP National Constitution (the National Constitution). It was common ground before this Court that the National Constitution is a rule made by the National Conference of the ALP. The National Constitution provides that the ALP is organised so as to consist of branches in each state and that each state will have its own “branch rules”.[3] The National Constitution contemplates that the way in which a person may become and remain a financial member of the ALP will be dealt with by the various state rules.[4] In particular, the National Constitution provides:(a)by cl 31, that the “National Principles of Organisation” set out in Part D are intended to be binding on state branches and to be implemented through branch rules;(b)by cl 34 of Part D, that membership of the ALP is “open to all residents of Australia who are prepared to accept its objectives and who have associations with no other political party or proscribed organisation”;(c)by cl 35 of Part D, many specific rules about the process for recruitment of members, applying for membership, payment of membership fees, and the like;(d)by cl 36 of Part D, each state branch of the ALP “must adopt rules that establish an appeals process in relation to compliance with and enforcement of branch rules by members, affiliated unions and constituent units of the branch”, which branch rules must be submitted to the National Executive for approval;(e)by cl 46 of Part D, all state branch rules must be revised in accordance with the National Principles of Organisation and submitted to the National Executive for endorsement;(f)by cl 47 of Part D, the National Executive (which by cl 16(d) is generally empowered to “… exercise all powers of the Party on its behalf without limitation, including in relation to the state branches and other sections of the Party”) is specifically empowered to amend the rules of any state branch to implement the National Principles of Organisation.[3]National Rules cll 13 and 34.[4]National Rules cll 1, 13, 34 and 35. The branch rules which are presently relevant are those expressed in the Queensland Labor Rules 2021 (the Queensland State Rules). The Queensland State Rules is the constituent document for the Queensland branch of the ALP, known as the “Australian Labor Party (State of Queensland)”. As the primary judge found, the Queensland branch of the ALP is not a separate voluntary association.[5] The ALP is a single voluntary association, and the state branches are constituent parts of that single voluntary association. Of course, as previously mentioned, the question of membership is addressed by the branch rules of the particular state through which membership of the ALP is sought.[5]Cuthbert v Abbott & Ors [2022] QSC 113 at [24] – [25], citing Burton v Murphy [1983] 2 Qd R 321 and Asmar v Albanese [2022] VSCA 19 at [156] to [173].

Evidence

Evidence Before The Court

Before addressing the case advanced on appeal, it is appropriate to consider the appellant’s application to rely on new evidence on appeal.The application to rely on new evidence The appellant sought leave to rely on new evidence, namely the constitutions and rules of the Victorian Branch of the ALP for 1928, 1932, 1933 and 2021. The respondent relied on Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408 to suggest that in order to establish the “special grounds” required by UCPR r 766, these three conditions must be satisfied:(a)the evidence could not have been obtained with reasonable diligence for use at the trial;(b)the evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and(c)the evidence is credible though it need not be incontrovertible. It suffices to dispose of the application to explain that the appellant could not satisfy the second condition. He suggested that the new evidence would allow this Court “to more clearly identify the differences between the Rules relied by the High Court decision in 1932 [namely, Cameron v Hogan] and the current Rules”. The problem with that argument is that there was no basis to conclude that evidence of what might have been the situation in the Victorian branch over time had any relevance to what was the situation in relation to applying for membership of the ALP by way of its Queensland branch at the time the appellant made his application. The application must fail.The appellant’s arguments The appellant’s submissions sought to have this Court conclude that the High Court decision of Cameron v Hogan should not be followed on the basis that it was “bad law”. Of course, absent a subsequent decision of the High Court which overruled Cameron v Hogan or established a mode of analysis which was inconsistent with it, it is no more open to this Court to take that course than it was for the primary judge. The appellant identified no such decision. Next the appellant sought to have this Court conclude that the primary judge erred in following Camenzuli v Morrison. But the primary judge was correct to regard that decision as highly relevant as it was a very recent decision of an intermediate court of appeal examining the very aspects of legal principle on which the appellant sought to rely. In Camenzuli v Morrison the New South Wales Court of Appeal considered Cameron v Hogan and the argument (also advanced here) that it should not be followed because of the importance in public life of the role and manner of operation of political parties. It suffices to quote from the headnote:“Cameron v Hogan is binding authority that disputes arising from the application of the rules of an unincorporated political party are not justiciable. The role and manner of operation of political parties has not changed materially since Cameron was decided. The provisions in the current [Commonwealth Electoral Act1918 (Cth)] providing for party registration, candidate nomination and endorsement, and public funding do not purport to affect the general internal operations of political parties. Accordingly, it is not correct to state at a high level of generality that the statutory changes have now taken political parties “beyond the ambit of mere voluntary associations”. The public interest in the operation of major political parties does not justify judicial intervention in internal party disputes generally. Whether a dispute within a political party is justiciable must be determined in each case with respect to relevant provisions of the [Commonwealth Electoral Act1918 (Cth)].”

Decision

Reasons for decision

Fourth, the primary judge found that a 1979 National Conference decision about grievances expressed the belief “that the procedures of the Party at state and national level provide adequate opportunity for people who are dissatisfied to seek redress of Grievance.” And it “calls upon all members of the Party in respect of matters in dispute to refrain from making comment outside the Party.”[11][11]Cuthbert v Abbott & Ors [2022] QSC 113 at [21].The decision of the primary judge The primary judge dealt sequentially with the six major arguments which the appellant had advanced in support of his contention that his claims for relief against the respondents were justiciable and concluded with addressing a miscellany of other contentions. It is convenient to summarise his Honour’s decision in the same way.Whether Mr Cuthbert is party to a contract with other members The primary judge concluded that the approach which should be taken to the issue of intention to create legal relations was that set out in the majority judgment in the High Court decision of Ermogenous v Greek Orthodox Church Community of SA Inc.[12] Relevantly, that meant that his Honour accepted that the legal principles by which the question posed in the subheading should be answered, were the following:(a)It was of the essence of contract that the parties voluntarily assume legally enforceable duty.[13](b)Circumstances might reveal a contrary intention by demonstrating that the parties could not be regarded as having intended to subject their agreement to the adjudication of the Courts.[14](c)An inquiry into that question 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”.[15](d)Save to say that the inquiry requires an objective assessment of the state of affairs between the parties and is not a search for the uncommunicated subjective motives or intentions of the parties, 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.[12]Cuthbert v Abbott & Ors [2022] QSC 113 at [32], citing Ermogenous v Greek Orthodox Church Community of SA Inc (2002) 209 CLR 95 at [24]-[25].[13]Ermogenous v Greek Orthodox Church Community of SA Inc (2002) 209 CLR 95 at [24].[14]Ermogenous v Greek Orthodox Church Community of SA Inc (2002) 209 CLR 95 at [24].[15]Ermogenous v Greek Orthodox Church Community of SA Inc (2002) 209 CLR 95 at [25]. The primary judge thought that the question whether a member of the ALP had entered a contractual relationship with other members and the members of the Administrative Committee depended on what was objectively conveyed by the provisions of the party’s constituent documents, having regard to the circumstances in which those statements were made.[16] His Honour found that the only means by which intention could be assessed in the case before him was by reference to the National Constitution and the Queensland State Rules.[17][16]Cuthbert v Abbott & Ors [2022] QSC 113 at [33].[17]Cuthbert v Abbott & Ors [2022] QSC 113 at [34].

Ratio Decidendi

Legal Principle Established

The primary judge was unimpressed, observing:[38]“These submissions are framed in very general terms. It is not possible to identify with precision their legal or logical basis. Mr Cuthbert has not identified any legal right. His submissions employ good faith and honesty as mere rhetorical flourishes. Again, absent a legal right, it does not appear that the ALP could enforce its internal rules against a member by a court proceeding.”[38]Cuthbert v Abbott & Ors [2022] QSC 113 at [73].Consideration of the appellant’s argument on appeal The appellant was self-represented. The only ground expressed in his notice of appeal was the inadequate statement that his Honour erred in deciding that the appellant’s claim was not justiciable. The appellant’s written submissions did assert error by the primary judge in various ways, essentially by asserting the primary judge erred by rejecting the arguments previously advanced. The appellant did not develop his argument orally before this Court, but relied solely on his written submissions. Before addressing the case advanced on appeal, it is appropriate to consider the appellant’s application to rely on new evidence on appeal.The application to rely on new evidence The appellant sought leave to rely on new evidence, namely the constitutions and rules of the Victorian Branch of the ALP for 1928, 1932, 1933 and 2021. The respondent relied on Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408 to suggest that in order to establish the “special grounds” required by UCPR r 766, these three conditions must be satisfied:(a)the evidence could not have been obtained with reasonable diligence for use at the trial;(b)the evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and(c)the evidence is credible though it need not be incontrovertible. It suffices to dispose of the application to explain that the appellant could not satisfy the second condition. He suggested that the new evidence would allow this Court “to more clearly identify the differences between the Rules relied by the High Court decision in 1932 [namely, Cameron v Hogan] and the current Rules”. The problem with that argument is that there was no basis to conclude that evidence of what might have been the situation in the Victorian branch over time had any relevance to what was the situation in relation to applying for membership of the ALP by way of its Queensland branch at the time the appellant made his application. The application must fail.The appellant’s arguments The appellant’s submissions sought to have this Court conclude that the High Court decision of Cameron v Hogan should not be followed on the basis that it was “bad law”. Of course, absent a subsequent decision of the High Court which overruled Cameron v Hogan or established a mode of analysis which was inconsistent with it, it is no more open to this Court to take that course than it was for the primary judge. The appellant identified no such decision.