Fennell v. Brough - [2008] QSC 166

[2008] QSC 166

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MARTIN J

No 7111 of 2008

DARYL JAMES FENNELL	Applicant
and
MAL BROUGH & OTHERS	Respondents

BRISBANE

..DATE 25/07/2008

ORDER

HIS HONOUR: I intend to make orders abridging time for the filing and service of the originating application so as to permit it to be heard today.

I intend to make an order nunc pro tunc for substituted service of this proceeding on the respondents and in the manner described in the affidavit filed.

In support of the application concerning service I observe that in order for this matter to be properly before the Court and for there to be a contradiction there really only needed to be 1 member of State Council who opposed the application in order that the application could be heard.

The first question to consider is whether or not this is a justiciable controversy. It has been determined to be so by this Court in Baldwin v. Everingham (1993) 1 Queensland Reports 10. I was informed from the Bar table that the Liberal Party of Queensland is registered under the Electoral Act and that it receives public funding by reference to, as I understand it, the votes cast in favour of its candidates at elections.

Notwithstanding the detail of that, I am satisfied that the question of the construction of the constitution of a registered political party is a justiciable issue and that that issue has been settled through many cases, the latest of which is Coleman v. The Liberal Party of Australia, New South Wales Division (2007) 212 Federal Law Reports 271 at paragraphs 32 to 40.

Mr Ferrett, who appeared for some of the respondents, argued that notwithstanding the justiciability of it, there was a question as to the standing of Mr Fennell and he referred me to the decision of Justice Moynihan in Gault v. Flegg (2003) QSC 290, in which his Honour considered the position of a Mr Watson with respect to declarations that Mr Flegg had not been endorsed as the Liberal Party of Queensland candidate for the State seat of Moggill and that a plebiscite selecting him for that seat was void. The applicant in that case was a member of the party who was an unsuccessful candidate for preselection. Mr Watson was a member of the party and chairman of a particular relevant branch. He was eligible to vote in the plebiscite and did so.

At paragraph 12 his Honour said, "In order to have standing to bring a claim for relief in circumstances such as this a person must be affected by the decision beyond being a concerned member of the public." And his Honour referred to the decision of Justice Drummond in Robinson v. ATSIC reported in Volume 140 of the Australian Law Reports 641, and I refer without further reading to Justice Drummond's discussion of that at pages 651 to 655 and in particular that part of his reasons at 655 where he speaks of "a…

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 Fennell v. Brough

Details

AGLC: Fennell v Brough [2008] QSC 166
Case: [2008] QSC 166
Decision Date: 25 July 2008

CaseChat Overview and Summary

The case of Fennell v. Brough [2008] QSC 166SUPREME COURT OF QUEENSLANDCIVIL JURISDICTIONMARTIN J No 7111 of 2008 involved an application by Daryl James Fennell against Mal Brough and others. The dispute centered around the validity of a convention called by the State Council of the Liberal Party of Queensland, and the applicant sought declarations and injunctions regarding the convention's legality. The case was heard in the Supreme Court of Queensland.

The primary legal issues the court had to address were whether the applicant had standing to bring the application and whether the State Council of the Liberal Party of Queensland had the authority to postpone a constitutional convention. The applicant argued that he had standing because he was a member of the State Council, while the respondents contended that he lacked standing. The respondents further argued that the State Council had the power to postpone the convention. The court had to determine the justiciability of the matter and the proper interpretation of the party's constitution, particularly clause 148(a), which stated that a convention could be convened by the State Council at any time.

The court found that the matter was justiciable, following precedents such as Baldwin v. Everingham. It also determined that the applicant had standing as a member of the State Council with an interest in the convention being held. The court examined the constitution as a whole and concluded that clause 148(a) did not grant a power to postpone a convention. The court relied on the principle that an express power is necessary to postpone, as established in Smith v. Paringa Mines. The court rejected the argument that the declaration would cause uncertainty or difficulties, stating that it was necessary to recognize and address any invalid resolutions by the State Council. The court granted the declarations sought by the applicant and ordered substituted service of the orders.

The final orders included declarations regarding the invalidity of the postponement of the convention and the necessity for the convention to proceed as called. The court also ordered the third respondent to pay the costs of the application. The court's decision underscored the importance of adhering to a political party's constitution and the need to address any deviations from it.

Orders