Diaz v Ruddock; Attie v Ruddock

[2021] NSWSC 881

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Diaz v Ruddock; Attie v Ruddock [2021] NSWSC 881

Hearing dates:

15 and 16 July 2021

Decision date:

21 July 2021

Jurisdiction:

Equity

Before:

Kunc J

Decision:

See [6]

Catchwords:

ASSOCIATIONS AND CLUBS — Particular bodies — Political organisations — Preselection disputes — Construction of Constitution of Liberal Party of Australia NSW Division — No issue of principle

Legislation Cited:

Commonwealth Constitution

Constitution Act 1902 (NSW)

COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (No 1) (NSW)

Electoral Funding Act 2018 (NSW)

Local Government Act 1993 (NSW)

Local Government (General) Regulation 2005 (NSW)

Cases Cited:

Countouris v Kallos (2008) 67 ACSR 543; [2008] NSWSC 840

Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64

Zaiter v Ruddock [2021] NSWSC 880

Texts Cited:

Macquarie Dictionary, online ed, accessed 20 July 2021

Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2014, Thomson Reuters)

Category:

Principal judgment

Parties:

2021/192982
Jess Diaz (First Plaintiff)
Peter Camilleri (Second Plaintiff)

2021/194083
Ned Attie (Plaintiff)

Defendants in both proceedings
Phillip Ruddock (First Defendant)
Chris Stone (Second Defendant)
Penny George (Third Defendant)
Christopher Rath (Fourth Defendant)
Tobias Lehmann (Fifth Defendant)
Aileen MacDonald (Sixth Defendant)
Mary-Lou Jarvis (Seventh Defendant)
Matthew Camenzuli (Eighth Defendant)

Representation:

Counsel:

P E King and A Power (Plaintiffs)
S Robertson and M Maconachie (Eighth Defendant)

Solicitors:

Diaz and Diaz (Plaintiffs in 2021/192982)
Concordia Legal (Plaintiff in 2021/194083)
Harpur Phillips (First to Seventh Defendants)
Pryor Tzannes and Wallis (Eighth Defendant)

File Number(s):

2021/192982; 2021/194083

Publication restriction:

No

Judgment

Summary

1. On 4 September 2021, there will be local government elections in New South Wales (the Forthcoming Elections). Mr J Diaz and Mr P Camilleri are members of the Liberal Party of Australia New South Wales Division (the Party) and Councillors of the City of Blacktown. Mr N Attie is also a member of the Party and a Councillor of the City of Cumberland. Each of these gentlemen is a plaintiff in these proceedings and wishes to stand again in the Forthcoming Elections as a candidate endorsed by the Party.

2. The issue in these proceedings is what provision or provisions of the Party’s Constitution as adopted by the Party’s State Council (State Council) on 22 July 2000 (and as amended from time to time including on 9 November 2019) (the Constitution) apply to the plaintiffs’ potential selection and endorsement as candidates.

3. The first to seventh defendants are members of the Party’s State Executive (State Executive), which is responsible for the daily management of the affairs of the Party. The history of their participation in the proceedings is set out in [10]–[12] below.

4. The eighth defendant, Mr M Camenzuli, is a member of the Party and State Executive. Mr Camenzuli was the contradictor in these proceedings, which arise in the context of a factional dispute within the Party. The Court rejected any evidence that was directed to explaining that dispute or speculating about what one faction or another might do. While such things may be matters of great and legitimate interest to the participants and those concerned with local government in Blacktown and Cumberland, they are irrelevant to the legal issues which the Court has been called upon to decide.

5. Mr P E King of Counsel appeared with Ms A Power of Counsel for the plaintiffs. Mr S Robertson of Counsel appeared with Mr M Maconachie of Counsel for Mr Camenzuli.

6. For the reasons set out below, the Court has concluded that:

1. The Forthcoming Elections are “with respect to vacancies in elected office for local government at a general election” for the purposes of cl 21.6.4(1)(b) of the Constitution;

2. On its proper construction, in relation to a local government election for an area where there is no Local Government Conference as defined in the Constitution (LGC), cl 21.6.4(2) of the Constitution does not prevent State Executive from exercising its powers under cl 21.6.4(1) (assuming the requirements set out in cl 21.6.4(1) are satisfied). However, those powers cannot be exercised for a local government election where there is a LGC unless cl 21.6.4(2) has been satisfied. What is required to satisfy cl 21.6.4(2) will be fact specific from case to case.

7. This judgment is confined to the issues of construction of the Constitution presented by the parties for determination. The parties agreed that any argument about the form of declarations to be made or other relief to be granted (if any) should be deferred until after they had considered these reasons.

Procedural issues

8. Mr Diaz and Mr Camilleri commenced their proceedings by a summons filed on 6 July 2021. Mr Attie commenced his proceedings by a summons filed on 7 July 2021. The proceedings have been heard urgently because the last day for nominations in the Forthcoming Elections is 4 August 2021. With the consent of the plaintiffs and eighth defendant in each of the two proceedings, the proceedings were heard together with the evidence in one being evidence in the other.

9. On the same days as I heard these proceedings, I also heard proceedings which raised similar, but not identical, issues in relation to the City of Parramatta local government area. The Court’s judgment in that matter was published simultaneously with these reasons: Zaiter v Ruddock [2021] NSWSC 880 (Zaiter).

10. When the original summonses were filed, the named first defendant was “Liberal Party of Australia (NSW Division)”. There have been a number of cases over the years in this Court that have been so constituted without objection. However, strictly speaking, because the Party is unincorporated, there is no such entity properly able to be joined in proceedings.

11. Mr Camenzuli also sought to be joined as a separate defendant.

12. Conformably with orders I made in Zaiter (see Zaiter at [9]–[10]), the Court made these orders in both proceedings on 9 July 2021:

“1. Order that the “Liberal Party of Australia, NSW Division” is removed as the first defendant to these proceedings.

2. Order that Matthew Louis Camenzuli is joined as a defendant to these proceedings.

3. Order that the defendants in these proceedings be designated as follows:

a. Hon. Philip Ruddock AO as the first defendant;

b. Chris Stone as the second defendant;

c. Penny George as the third defendant;

d. Christopher Rath as the fourth defendant;

e. Tobias Lehmann as the fifth defendant;

f. Aileen MacDonald OAM as the sixth defendant;

g. Mary-Lou Jarvis as the seventh defendant;

h. Matthew Louis Camenzuli as the eighth defendant.

4. Order, pursuant to r 7.6 of the Uniform Civil Procedure Rules 2005 (NSW) and all other enabling powers, that the first to seventh defendants are appointed to represent the members of the unincorporated party known as The Liberal Party of Australia, New South Wales Division, other than the plaintiff(s) and the eighth defendant.”

13. Since those orders were made, the first to seventh defendants have filed a submitting appearance save as to costs in both proceedings.

14. The status quo in relation to the exercise by State Executive of its powers under cl 21.6.4 has been preserved by an interlocutory injunction that was not opposed by the defendants.

15. The proceedings were heard by reference to the amended summonses, which were in substance identical (save for the differences indicated in square brackets below) and sought relief including:

“Final Relief

2 Declaration that in the events which have happened in respect of vacancies in elected office for the next ordinary election of councillors on the [Blacktown City Council/Cumberland City Council], the State Executive of NSW Division has no authority to modify the procedures of the NSW Division for selection of candidates for those offices or dispense altogether with the procedures and endorse a member of the Organisation as the NSW Division’s candidate for those offices under Clause 21.6.4 of the Constitution of the Liberal Party of Australia New South Wales Division adopted on 9 November 2019 (the Constitution).

4 Declaration that unless and until the preconditions of sub-clause (1) and (2) of clause 21.6.4 are satisfied with respect to vacancies for elected office at a general election or casual vacancies exist the State Executive of NSW Division has no authority to modify the procedures of the NSW Division for selection of candidates for those offices or dispense altogether with the procedures and endorse a member of the Organisation as the NSW Division’s candidate for that office under Clause 21.6.4 of the Constitution.

5 Declaration that the local government general election appointed for 4 September 2021 in NSW including in the [Blacktown City Council/Cumberland City Council] local government area is an imminent election within the meaning of clause 13.2.4 of the Constitution and that the conditions for the exercise of power under that clause by the State Executive have arisen.

6 Declaration that Clause 21.6.4 of the Constitution cannot [Diaz v Ruddock] / neither Clause 21.6.4 nor Clause 26.1.4 of the Constitution can [Attie v Ruddock] be invoked by the Liberal Party for the local government ordinary election appointed for 4 September 2021.

7 The Defendants by their servants or agents or otherwise be restrained from using the “Urgency Provisions” set out in Clause 21.6.4 of the Constitution in respect of the local government of NSW elections in the [Blacktown City Council/Cumberland City Council] local government area to be held on 4 September 2021.

[Attie v Ruddock only:] 8 The Defendants by their servants or agents or otherwise be restrained from using Clause 26.1.4 or Clause 26.1.4 [sic] of the Constitution in respect of the ordinary local government of NSW elections in the Cumberland City Council local government area to be held on 4 September 2021.”

16. There was a dispute referred to in the course of argument concerning the current status under the Constitution of the City of Cumberland LGC. The parties agreed that it was not necessary for the Court to resolve that dispute and no party advanced any arguments about it.

The Constitution

17. The specific provision of the Constitution that is the focus of the present dispute is set out in the course of these reasons. However, it is necessary to construe it in the context of other provisions. For ease of readability of these reasons, all provisions referred to are reproduced in the appendix. Unless otherwise stated, all references to clauses in these reasons are references to provisions of the Constitution.

18. It is convenient to make five preliminary points about the Constitution, including the Court’s approach to its construction.

19. First, it was common ground that the Forthcoming Elections were an “imminent election” within the meaning of cl 13.2.4(1) and that the provisions of that clause were available to be used by State Executive in the present circumstances in relation to selecting and endorsing candidates. That clause provides:

“Notwithstanding any other clause in this Constitution, if the imperative to campaign effectively for an imminent election is deemed by State Executive (at its discretion) to require suspension of any of the preselection processes of the Division, or in circumstances where the conduct of a member is deemed by State Executive (at its discretion) to be so egregious as to require disciplinary action that is not otherwise permitted by this Constitution, State Executive may by motion of 90% of those present and voting, waive any provision of this Constitution and substitute for that provision any other provision it thinks fit. The State President shall report to the next meeting of State Council the text of the motion carried under this clause.”

20. Second, Mr King referred to a provision such as cl 21.6.4 being a “carve out” from cl 13.2.4(1). In the course of argument, I suggested it might be the other way around. However, either way, to speak of a “carve out” is, with respect, a misleading metaphor unsupported by the language of the Constitution. The provisions of the Constitution in relation to the “preselection processes” referred to in cl 13.2.4(1) are to be given effect in accordance with their natural and ordinary meaning in the context in which they appear. The fact that they can be overridden (“notwithstanding any other clause in this Constitution”) when the conditions for the exercise by State Executive of its powers under cl 13.2.4 are satisfied does not affect their interpretation.

21. Third, with one exception, the Constitution contains no express guidance as to its interpretation. That exception is what is set out on the inside cover of the Constitution:

“The table of contents and index were inserted for convenience only. They are not part of this Constitution and are not to be used in its interpretation or construction.”

22. Fourth, there was no dispute that the Constitution was to be interpreted in accordance with the general principles of construction applicable to private law contracts, in this case a multipartite contractual document between the members of the Party, represented by State Council which is the body charged with making amendments to the Constitution. In the absence of express provision to the contrary, those principles include that headings may be taken into account on construction: Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2014, Thomson Reuters) [23.20].

23. Fifth, there were some references during the course of argument to the effect, if any, on the process of construction arising from the nature of the document as a “constitution”. Insofar as this referred to taking into account that it was the governing document of a major political party with all that might entail as a practical matter, the proposition is unexceptional. However, if this was an attempt to invite the Court to prefer uncritically an ambulatory approach to construction because, by analogy with national constitutions, it was a document intended to endure for the ages, I do not agree.

24. Most national constitutions are drafted in such a way that they cannot be easily amended. In this case, the inside cover of the Constitution itself records that it has been amended 14 times since its adoption in 2000. Furthermore, cl 28.6 provides for a review of the document every three years. It has been said that a day is a long time in politics. It is unsurprising that a political party provides for regular review of its governing rules. I therefore do not regard the analogy with national constitutions to be apt to provide any guidance as to how the Constitution should be interpreted. Equally, I do not consider the fact that a provision could have been amended but was not as being a matter which casts any light on questions of interpretation.

The facts

25. There was no cross-examination of any deponent of the affidavits that were filed. The parties prepared statements of fact. There was argument about their contents, in some cases over precise expression, in other cases as a matter of substance. Those facts about which there was disagreement were largely directed to explaining the underlying factional dispute or speculating about what one faction or another might do. As I have noted in [4] above, that evidence was rejected as irrelevant to the questions before the Court. However, the basic facts relevant to the task of interpretation were ultimately not matters that could be seriously disputed. What follows are the Court’s findings of fact which are primarily matters not capable of sensible controversy.

26. Mr Diaz and Mr Camilleri are Councillors of the City of Blacktown. Mr Attie is a Councillor of the City of Cumberland. Each of the plaintiffs is a member of the Party.

27. Mr Camenzuli is also a member of the Party and a member of State Executive.

28. The Party is the unincorporated political party referred to in the Constitution of the Liberal Party of Australia New South Wales Division, as adopted by State Council on 22 July 2000 as amended from time to time, including most recently on 9 November 2019.

29. All members of the Party are bound by the Constitution.

30. The Court infers from the nature and public role of the Party, and from the language of the Constitution itself, that the Constitution (including amendments) has been drawn with the benefit of legal assistance.

31. The Constitution contains the Party’s detailed rules of conduct, including for the nomination, selection and endorsement of candidates for publicly elected office in New South Wales at the local, State and Federal levels of government.

32. State Executive has the management of the Party under Part 13 of the Constitution between State Council meetings.

33. The plaintiffs intend to nominate for election as Party candidates on or before 4 August 2021 if endorsed to do so.

34. The Party has a LGC in the City of Blacktown local government area and, the plaintiffs contend (see [16] above), in the City of Cumberland local government area.

35. As at 9 November 2019, the Local Government Act 1993 (NSW) (the LG Act) relevantly included:

“Part 4 When are elections held?

287 When is an ordinary election of councillors held?

(1) An ordinary election of the councillors for an area is to be held on the second Saturday of September 2008 and on the second Saturday of September in every fourth year after 2008.

(2) An election of the councillors for an area is to be held on a Saturday proclaimed for the purpose if —

(a) the area is constituted after the commencement of this Part, or

(b) the council for the area is dismissed, or

(c) the council is declared to be non-functioning under section 257. …

Part 6A Postponement of elections

318A Definition

In this Part —

election requirements of this Act means the requirements of Parts 4 and 5 with respect to the holding of an ordinary election referred to in section 287 or a by-election referred to in section 292.

318B Postponement of elections

(1) The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to a specified council if —

(a) the council is the subject of —

(i) an investigation under section 430 or any other provision of this Act, or

(ii) a public inquiry, or

(iii) an investigation by an authority (as defined in the Dictionary at the end of this Act) under any Act, or

(b) without limiting anything else in this subsection, a matter affecting the boundaries of the council’s area is under consideration by the Boundaries Commission (whether or not involving an inquiry by the Commission).

(2) The latest date to which the election requirements of this Act may be postponed by an order under this section is —

(a) the date occurring 12 months after the order is made, or

(b) if the postponement is extended by a further order under this section, 31 December in the calendar year following that in which the first such order was made.

(3) An order may be made under this section even though the election requirements of this Act are in operation with respect to an election for the council.

(4) On the making of an order under this section —

(a) the election requirements of this Act are suspended in relation to the council for the period specified in the order, including with respect to an election for which the election requirements of this Act were in operation when the order was made, but not with respect to an election held on or before the day on which the order is published, and

(b) the retiring councillors continue in office (subject to this Act) until an election is held, and

(c) anything already done, under or for the purposes of those requirements in relation to the council for an election that would (but for the making of the order) have been held during the suspension period, has no effect or operation, and

(d) a person who is taken to have been elected under section 311 at an election that would (but for the making of the order) be held during the suspension period is taken not to have been elected.

(5) The suspension ceases to have effect if the order is revoked under section 318C.

(6) If the suspension ceases to have effect through the passage of time and not through revocation of the order, the provisions of section 318C (other than subsections (1)(a) and (3)(a)) apply as if the order had been revoked.

(7) If while an order under this section is in force a casual vacancy occurs in the office of mayor elected by the electors, the casual vacancy is to be filled in accordance with the provisions of section 295 as if it were a casual vacancy in the office of mayor elected by the councillors.”

36. In March 2020, the COVID-19 outbreak was declared a global pandemic.

37. On 25 March 2020, the LG Act was amended by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (No 1) (NSW) to include s 318B(1)(a1):

“(1) The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to a specified council if —

(a1) the Minister believes that, having regard to the COVID-19 pandemic, it is reasonable in the circumstances to order the postponement, or …”

38. An ordinary election of the councillors for local government areas in New South Wales was to be held on 12 September 2020 (being the second Saturday of September in the twelfth year after 2008) (the Scheduled Elections): see s 287(1) of the LG Act.

39. By an order published on 12 June 2020, the Minister for Local Government postponed the election requirements of the LG Act pursuant to s 318B(1)(a1) until 12 months after that order.

40. On 26 June 2020, the Minister for Local Government made an order further postponing the election requirements of the LG Act to 4 September 2021 in these terms:

“I, the Hon. Shelley Hancock MP, Minister for Local Government, in pursuance of sections 318B(1)(a1) and 318(2)(b) [this appears to be an error, presumably intended to refer to s 318A(2)(b)] of the Local Government Act 1993 (Act), do hereby further order that the election requirements of the Act in relation to the ordinary election that was due to be held on 12 September 2020 for all councils in New South Wales and which, by order made under section 318B(1)(a1) of the Act on 12 June 2020 was postponed for twelve months after that order was published, be further postponed to 4 September 2021.

This further order is made by reason of my belief, having regard to the continuance of the COVlD-19 pandemic, that it is reasonable in the circumstances to order the extending of the postponement.

For the avoidance of doubt, the postponement of the ordinary election extends to and suspends an election requirement for a by-election referred to in section 292 of the Act arising between the date of this Order and the date of the ordinary election to be held on 4 September 2021.”

41. On or about 29 June 2021, the New South Wales Electoral Commission made its “Nominations Online Management System” available to prospective candidates.

42. On 1 July 2021, the “capped local government expenditure period” for the local government elections commenced (that is, the period of time in which it is unlawful for a party, group, candidate, third-party campaigner or associated entity to incur electoral expenditure for a local government election campaign that exceeds the applicable cap on electoral expenditure): see Electoral Funding Act 2018 (NSW) ss 28, 33(2).

43. The New South Wales Electoral Commission will open nominations for the Forthcoming Elections on 26 July 2021.

44. The nomination day (the last day on which a candidate may be proposed for nomination) is 4 August 2021 (being the fifth Wednesday before the day of the election): see Local Government (General) Regulation 2005 (NSW) reg 286, 289. The nomination day is also the last day on which the registered officer for a political party may apply for the name of a party to be printed adjacent to the name of a candidate on the ballot paper: see LG Act s 321.

45. There was no evidence that State Executive has made a formal decision under cl 21.6.4 that would enliven its powers under that clause.

Issues for determination

46. The plaintiffs presented four issues for determination concerning the proper construction of cl 21.6.4 of the Constitution. This provides (emphases added):

“21.6.4    Urgent Endorsement Procedures for Senate, Legislative Council and Local Government

(1) If, with respect to:

(a) vacancies in parliamentary office for the Senate or Legislative Council at a general election or casual vacancies; and

(b) vacancies in elected office for local government at a general election or casual vacancies,

State Executive decides there is insufficient time for the selection of candidates as provided otherwise in this Constitution, State Executive may by motion modify the procedures for selection of candidates for those offices or dispense altogether with the procedures and endorse a member of the Organisation as the Division’s candidate for those offices.

(2) In the case of vacancies in office for local government, before exercising the power in this clause State Executive must consult with the relevant LGC.”

47. The only issue about which the parties were able to agree was that the “and” between cll 21.6.4(1)(a) and (1)(b) was not cumulative. In other words, both of those sub-clauses did not have to be satisfied before State Executive could make the decision referred to in the balance of cl 21.6.4(1).

48. Against the background that State Executive has not yet made a formal decision of the kind referred to in cl 21.6.4(1), the plaintiffs advanced four contentions, all directed to demonstrating that, in the events which have happened, such a decision cannot now be validly made. Those contentions were:

1. That there are no “vacancies” in the Forthcoming Elections for the purposes of cl 21.6.4(1)(b) (the Vacancy Issue);

2. State Executive’s power to modify or dispense with selection procedures could not be exercised unless cl 21.6.4(2) has been complied with (the LGC Consultation Issue);

3. State Executive could not validly make a decision pursuant to cl 21.6.4(1) in the absence of a “jurisdictional fact” more particularly described in [52] below (the Jurisdictional Fact Issue); and

4. In the alternative to (3), any purported decision by State Executive under cl 21.6.4(1) had to be a decision made “in good faith” (the Good Faith Issue).

49. It is convenient first to deal with the issues other than the Vacancy Issue.

The LGC Consultation Issue

50. The Court considered this issue in Zaiter at [82]–[86], which paragraphs are incorporated herein by reference.

The Jurisdictional Fact Issue and the Good Faith Issue

51. In the exercise of the Court’s discretion where equitable relief is sought, neither the Jurisdictional Fact Issue nor the Good Faith Issue will be determined in the circumstances of the case as it was proven and presented.

52. Mr King summarised these two issues in the course of his address, setting out the “jurisdictional fact” for which he contended (Tcpt, 15 July 2021, p 80(17–36)) (emphasis added):

“KING: The third point we raise, your Honour, is this: with respect to the decision that subclause 1 provides for if the usual selection procedures under Parts 8 and 21 of the constitution have not otherwise been adopted or utilised, then the occasion for the exercise of the power does not arise. I am going to call that my "jurisdictional fact point", your Honour.

HIS HONOUR: Yes. You say in those circumstances they can't decide?

KING: Yes. And there is a fall back argument here, your Honour, and that is this. Your Honour identified it the other day. There is an implication of the words "in good faith" in subclause 1 besides the discretionary power. Your Honour will see those discretionary powers are utterly unlimited or unfettered. They don't have the usual words "in the opinion of the State Executive" or "to the satisfaction of the decision maker" and so on. So we say on the proper interpretation of the provision, the words "in good faith" should be read into and implied in the provision.

HIS HONOUR: Where in the provision?

KING: After the word "decides".”

53. Among his submissions in response, three matters put by Mr Robertson are relevant to why the Court has decided not to determine these issues:

1. In the absence of State Executive having actually purported to make a formal decision of the kind referred to in cl 21.6.4(1), the Court should apply the “rule of thumb” often used in relation to applications to restrain meetings, being a rule to the effect that generally quia timet relief would not be granted. Instead, if a particular resolution was in fact passed, the Court would then rule upon its validity.

2. The starting point for the use of the procedures referred to in Mr King’s purported “jurisdictional fact” was a decision by State Executive under cl 21.1.1 as to which offices in a local government election the Party would contest. There was no evidence before the Court that State Executive had decided to contest the Forthcoming Elections in the City of Blacktown or City of Cumberland local government areas, so the argument did not even reach whether or not the purported “jurisdictional fact” had come into existence.

3. The plaintiffs’ underlying complaint was that State Executive had failed to comply with cl 21.1.2(2) of the Constitution, which provides that “[i]n the case of local government office, State Executive must as far as practicable seek nominations six months before the normal time for the next local government election.” In this case that meant March 2021. The plaintiffs should have commenced proceedings for different relief in March or April in relation to compliance with cl 21.1.2(2) rather than seeking relief through a construction suit about cl 21.6.4 shortly before the nominations close.

54. There is much force in Mr Robertson’s submissions. It was clear from the way Mr King argued this part of his case that the plaintiffs’ concern was their perception that State Executive had somehow abrogated the ordinary democratic procedures for the selection of candidates for local government elections and that this meant that, at this late stage, no decision under cl 21.6.4 could now validly be made.

55. The point was made very clear in this exchange which I had with Mr King (Tcpt, 15 July 2021, p 96(42–50)):

“HIS HONOUR: Let's assume I am with you on that, Mr King, there's got to be a decision and it is a decision in good faith. Do you say that no such decision can be made in good faith at this point in time?

KING: Yes, your Honour. For this reason, that the State Executive, with full knowledge of its powers and its responsibilities, from 3 April until now has deliberately allowed the time to pass, which would have otherwise ensured that the electoral processes of endorsement and selection would have occurred. They just can't sit there and do nothing and then pounce at the last minute.”

56. Mr King further submitted (Tcpt, 15 July 2021, p 97(16–27)):

“KING: We would respectfully submit that if the issues of construction are founded favourably to what I have put to your Honour, your Honour is able to make a declaratory judgment to that effect; section 75 of the Supreme Court Act expressly says so. And that it is then up to the parties, having received that guidance from the Court, to act accordingly. Your Honour doesn't need to grant an injunction in respect of this point. What your Honour can and should do is to grant a declaration as to the proper meaning of the constitution. Then if I can say so, and I have no doubt that Mr Ruddock and the senior executives of the party who lodged submitting appearances, will simply follow what your Honour has said; as the Full Court said in Peden v Trethowan there is of course liberty to apply, if that appears not to be the case.”

57. For understandable reasons, and without wishing to be critical of anyone, these proceedings were heard by reference to a very limited set of facts. The “rule of thumb” to which Mr Robertson referred (see, for example, the judgment of Young CJ in Eq (as his Honour then was) in Countouris v Kallos (2008) 67 ACSR 543; [2008] NSWSC 840 at [14]) is a specific example of equity’s reluctance to address hypothetical problems or give advisory opinions when either or both of declarations and injunctions are sought.

58. In the circumstances of the case, I have concluded that what is really being sought in relation to the Jurisdictional Fact Issue and the Good Faith Issue is an advisory opinion or relief for hypothetical matters. The Court should not embark on this, given the dearth of facts that would need to be established to enable any meaningful adjudication of the issues. I have reached this conclusion independently of my concern that to invoke the administrative law concept of “jurisdictional fact” is often an unhelpful distraction from the Court’s task of contractual construction.

59. As I understood his argument on the Jurisdictional Fact Issue, Mr King drew textual support for his “jurisdictional fact” from the reference in cl 21.6.4 to “the selection of candidates as provided otherwise in this Constitution”. His formulation referred to Parts 8 and 21 of the Constitution as the “provided otherwise”. However, when these are examined, and even assuming that a “jurisdictional fact” could be drawn from cl 21.6.4 on its proper construction, I very much doubt that it could be in the form propounded by Mr King for the following reasons.

60. If, as was apparently the case in Zaiter, the argument is driven by the alleged failure of State Executive to establish a LGC, there is no obligation on State Executive to establish a LGC even if the LGOC has consented to the formation of the new LGC (see cl 8.3.1(4): “State Executive may authorise the formation of the new LGC” (emphasis added)). If, as appeared to be the case in these proceedings, the argument is driven by what is said to be the failure of State Executive to have called for nominations, then again it must be noted that the obligation on State Executive under cl 21.1.2(2) is not absolute, but is to “as far as practicable seek nominations six months before…” (emphasis added).

61. Setting aside the language of “jurisdictional fact”, if the provisions to which I have referred in the preceding paragraph were on their face absolute and unqualified obligations, there may have been some basis for arguing a construction of cl 21.6.4 that made compliance with those provisions some kind of condition precedent. (In making this observation I am not expressing any view about the strength of such an argument). However, that was not the case advanced by Mr King and those provisions are not unqualified or absolute. When that is understood, a “jurisdictional fact” of the kind advanced by Mr King raises more questions than it answers including, for example, a fact-intensive examination of why the relevant procedures, to quote Mr King in [52] above, “have not otherwise been adopted or utilised”.

62. The same type of difficulty is even more obvious with Mr King’s case on the Good Faith Issue. Even assuming without deciding that on the proper construction of cl 21.6.4(1) any decision had to be made in good faith, I am unable to see how the limited facts established in these proceedings would enable that question to be investigated adequately, not least when the very decision-makers whose good faith is being sought to be impugned have not been heard. The Good Faith Issue was raised after the first to seventh defendants had entered submitting appearances and they would have to be given an opportunity to be heard if they wished. The problem with the relief sought is even more acute when the decision has not yet been made and it is expressed to be about a state of affairs at the time of the decision (“there is insufficient time” (emphasis added)).

63. It may be accepted, as Mr Robertson quite properly did, that there are likely to be legal limits on what would constitute a valid or effective decision for the purposes of cl 21.6.4. However, to determine whether those limits are to be found in “jurisdictional facts” or in implied obligations of reasonableness, honesty, good faith or similar expressions is something upon which, given what I have set out in the preceding paragraphs, the Court should only embark with all of the relevant facts and with the benefit of hearing from all those who may be affected by the Court’s determination, especially those whose conduct is sought to be impugned. Again without wishing to be critical of anyone, that has not occurred in the short and urgent hearing conducted before me and, for the reasons which I have set out in this section, the Court declines in its discretion to determine the Jurisdictional Fact Issue and the Good Faith Issue.

The Vacancy Issue — The plaintiffs’ submissions

64. Mr King’s submissions on the Vacancy Issue may be summarised as:

1. Words with a technical legal meaning in a private document should be given that meaning.

2. Where those words are repeated in a document, they should be given that meaning throughout.

3. Clause 21.6.4(1)(a) refers to “vacancies … for the Senate or Legislative Council at a general election…”.

4. Clause 21.6.4(1)(b) refers to “vacancies for elected office for local government at a general election…”.

5. There is no such thing as a “general election” for the Senate or Legislative Council. Nor is there a “general election” for local government.

6. Under s 11A of the Constitution Act 1902 (NSW) there is a “general election” for the Legislative Assembly and a “periodic Council election” for the Legislative Council. In the Commonwealth Constitution there is a “general election” for the House of Representatives (s 32), whereas Senators are chosen at elections (s 9). Nor is there a “general election” in local government: the LG Act refers to the “ordinary election of councillors” (see, for example, s 287). This distinction is also observed in the State and Commonwealth electoral legislation and accords with the Macquarie Dictionary definition of a general election as: “a parliamentary election, not a by-election, in which all seats in the house are thrown open, as a Federal or State election for the lower house”.

7. It follows that “general election” is being used in cl 21.6.4 in its technical sense of an election for either the Legislative Assembly or the House or Representatives. The Constitution is a document drawn with legal assistance, in a context where both those who drew it and those who voted on it must be taken to have been alert to the technical meaning of “general election”.

8. The Forthcoming Elections do not coincide with a general election for either the Legislative Assembly or the House of Representatives, such that there are no “vacancies in elected office for local government at a general election” for the purposes of cl 21.6.4(1)(b). Therefore, State Executive could not invoke that clause in relation to the Forthcoming Elections.

The Vacancy Issue — Mr Camenzuli’s submissions

65. Mr Robertson’s submissions for Mr Camenzuli on the Vacancy Issue may be summarised as:

1. “General election” in cl 21.6.4 is being used in contradistinction to an election or by-election to fill a casual vacancy.

2. Clauses 21.6.3 and 21.6.4 are on their face intended to cover the field in relation to all types of Federal, State and local elections, whether they are strictly “general elections” in the sense contended for by Mr King or for casual vacancies.

3. The plaintiffs’ construction would create the inexplicable lacuna of the State Executive not being able to deal with the urgent selection and endorsement of candidates for a local government election if that election did not coincide with either an election for the House of Representatives or the Legislative Assembly.

4. Even assuming an “ordinary election of councillors” under the LG Act coincided with a “general election” strictly understood, that still did not mean an elector would be voting “at a general election” for the purposes of cl 21.6.4(1)(b). The elector would be voting at a coincidental ordinary election of councillors. The same point applies to cl 21.6.4(1)(a) because an elector voting for the Senate or Legislative Council is not doing so “at a general election” for the purposes of that sub-clause. It follows that the plaintiffs’ construction leads to the absurd result that cll 21.6.4(1)(a) and (b) only apply to casual vacancies.

The Vacancy Issue — The plaintiffs’ submissions in reply

66. Mr King took issue with Mr Robertson’s submissions, explaining again that the use of “general election” as strictly understood showed that the “carve out” from the general nomination, selection and endorsement procedures under Part 21 of the Constitution was necessarily a limited one. I reject this submission for the reasons set out in [20] above.

The Vacancy Issue — Consideration and conclusion

67. It may be accepted that the Constitution is a document in which terms in relation to elections to public office will be presumed to bear their technical meaning. However, the presumption is rebuttable. As Campbell JA (with whom Spigelman CJ and Handley AJA agreed) said in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [174] (emphasis added):

“If the document in question is drawn by a lawyer, is manifestly intended to effect a legal transaction, and uses an expression that is not an expression in common use but that has a meaning in an area of legal discourse that is relevant to the document in question, that in itself provides a basis for the reasonable reader concluding that that expression is used in its special legal sense, unless there are other factors present that show it is not used in that special legal sense. So understood, the presumption is consistent with the current approach to construction.”

68. In this case, there are such factors which support the result that the reference to “general election” in cl 21.6.4(1)(b), objectively construed, is not intended in its technical sense. Those factors are, first, that it is part of a series of clauses which on their face are intended to be a compendious code in relation to urgent selection and endorsement procedures and, second, to avoid an absurd or illogical result. It is convenient to deal with the latter point first.

69. Mr King was unable to point to any practical or logical justification for why State Executive’s powers in relation to urgent selections and endorsements for local government elections (other than to fill casual vacancies) should be limited to those occasions when an ordinary election of councillors under the LG Act coincided with an election for either the Legislative Assembly or the House of Representatives. At the time the Constitution was adopted on 22 July 2000, an important surrounding circumstance is that elections for the Legislative Assembly and Legislative Council were fixed to occur in March every four years (see Constitution Act 1902 (NSW) ss 22A(3), 24A(a)), save in limited, exceptional circumstances (see Constitution Act 1902 (NSW) ss 24A(b), 24B)). Local government elections were fixed to occur in September every four years (see LG Act s 287).

70. Therefore, viewed objectively, it would have been known to State Council as a surrounding circumstance that it was extremely unlikely that local government elections would coincide with Legislative Assembly elections. On Mr King’s argument, cl 21.6.4 would then only be available by the complete happenstance of an election for the House of Representatives coinciding with the fixed date for ordinary elections of councillors under the LG Act. No reason was advanced in argument to make this outcome a sensible one. To this may be added what I would regard as another surrounding circumstance that would have been known to members of State Council as an objectively ascertainable legal fact that there was no requirement for House of Representatives elections to be held to coincide with local government elections in New South Wales.

71. The result of the analysis in the two preceding paragraphs is that, on Mr King’s construction, there would hardly ever, if ever, be an occasion when cl 21.6.4(1)(b) would ever have any work to do other than for casual vacancies. That is an absurd result. The Court will strive to avoid an absurd result where a contract can be sensibly read to avoid that outcome. That can be done in this case by reason of the argument considered next.

72. The Court accepts Mr Robertson’s submission that cl 21.6.4 is, on its face, intended to be a code for urgent selections and endorsements at all levels of government. This appears from the following analysis.

73. Part 21 of the Constitution deals with the “selection and endorsement of Liberal candidates generally”. The clauses of that Part follow a logical pattern through the process of deciding which offices the Party is to contest, calling for nominations, the process of nomination as a candidate, the endorsement of candidates, the disendorsement of candidates and urgent selection and endorsement procedures. It was accepted by the parties to these proceedings that one scenario which it would be expected the Constitution had been drawn to address was disendorsement of candidates by State Executive when something became known, even quite close to final nomination days or elections themselves, which made an endorsed candidate’s position untenable.

74. Under cl 21.1.1 it is State Executive which decides which offices the Party will contest and it is State Executive which must call for nominations. As I have already noted, under cl 21.1.2(2) “[i]n the case of local government office, State Executive must as far as practicable seek nominations six months before the normal time for the next local government election.”

75. Clause 21.2 deals with how someone nominates to be a Party candidate and cl 21.3 sets out how nomination review committees are to operate to review the nominations. Clauses 21.4 and 21.5 then deal with the creation and operation of selection committees, including for local government elections.

76. Clause 21.6 deals with endorsement of candidates. After a person has been selected by a selection committee to be the Party candidate in any election, including for local government, it is State Executive which resolves whether to endorse that person as the Party candidate. State Executive may resolve not to endorse a selected candidate and reopen nominations. Furthermore, State Executive may cancel any selection or endorsement of the Party candidate without giving reasons and call for nominations either on its own motion or in certain other circumstances (all set out in cl 21.6.2).

77. Clause 21.6.3 has the heading “Urgent Endorsement Procedures for Legislative Assembly and House of Representatives”. Clause 21.6.3(1) distinguishes in cl 21.6.3(1)(a) between vacancies in the House of Representatives or Legislative Assembly at a general election and, in cl 21.6.3(1)(b), casual vacancies in one of those lower houses. There is a distinction in procedures to be followed when there are 7 days or fewer from the date of the creation of the relevant vacancy (which includes a vacancy created by disendorsement: see cl 21.6.3(4)(b)) and where there are between 7 and 28 days from the creation of the relevant vacancy until the close of nominations, the latter involving more consultation (including “as far as practicable to seek agreement” to whatever course State Executive proposes from the relevant State or Federal electorate conference).

78. Clause 21.6.4 has the heading “Urgent Endorsement Procedures for Senate, Legislative Council and Local Government” but deals with Senate or Legislative Council vacancies at both a general election or casual vacancy in cl 21.6.4(1)(a) and local government vacancies at both a general election or casual vacancy in cl 21.6.4(1)(b).

79. In contrast with the procedure for consultation under cl 21.6.3, there are no consultation requirements imposed on State Executive in relation to upper house vacancies, presumably because the electorates for both upper houses are the State, so there is no basis for recourse to subsidiary branches or conferences linked to smaller geographic areas. However, as has been the subject of argument, cl 21.6.4(2) does require State Executive to consult with the relevant LGC, if there is one, when State Executive proposes to use its urgent endorsement power in relation to a particular local government election: Zaiter at [82].

80. The logical organisation of the various provisions of Part 21 of the Constitution concluding, relevantly for present purposes, with the urgent selection and endorsement provisions, lead the Court to the conclusion that those provisions are intended to operate as a code applicable to all elections at all levels of government, not least because they fall within a Part that, in the terms of its heading, deals with the entire process of “selection and endorsement of Liberal candidates generally” (emphasis added), and which goes on to refer expressly in its provisions to every level of government.

81. These considerations lead me to two alternative conclusions.

82. First, the Court accepts Mr Robertson’s submission that “general election” where it appears in cll 21.6.3 and 21.6.4 on its proper construction means an election which has not been specifically called to fill a casual vacancy. This gives content to the word “general” and maintains the distinction with casual vacancies which the text draws in each clause.

83. If the conclusion I have expressed in the previous paragraph is wrong insofar as it extends to the entirety of cll 21.6.3 and 21.6.4, I am satisfied that the reference to “general election” in a clause such as cl 21.6.4(1)(b) devoted solely to local government elections could not have been intended to have its technical meaning because of the absurd and unjustifiable result it produces that I have identified at [70]–[71]. For these reasons, in the alternative, the Court concludes that, at the very least, in cl 21.6.4(1)(b) the reference to “general election” on its proper construction means an election that has not been specifically called to fill a casual vacancy.

84. On either conclusion, the result is that the Forthcoming Elections are “with respect to vacancies in elected office for local government at a general election” for the purposes of cl 21.6.4(1)(b) of the Constitution.

Form of relief and costs

85. The Court will hear the parties on what relief (if any) should flow from these reasons and as to costs at a time to be notified with the publication of these reasons.

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JUDGMENT VERIFICATION

I certify that this and the 26 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Francois Kunc

21 July 2021

         Mary Boneham

DATED

         Associate

Amendments

26 July 2021 - Para 15 - words in brackets after identical and before and sought. Also changes to quote in para 15 in paras 6 and 8 of the quote.

Para 20 - Words commencing "Mr King in first line to words "carve out"" is, with respect in third line.

Decision last updated: 26 July 2021