Halaka v Liberal Party of Australia New South Wales Division

[2015] NSWSC 1634

Supreme Court

New South Wales

Medium Neutral Citation:	Halaka v Liberal Party of Australia New South Wales Division [2015] NSWSC 1634
Hearing dates:	20 October 2015
Decision date:	20 October 2015
Jurisdiction:	Equity
Before:	White J
Decision:	Application for summary dismissal refused
Catchwords:	PRACTICE AND PROCEDURE – application for summary dismissal – plaintiff seeks declarations in respect of validity of motions passed by political association – whether declarations could have utility – held, dismissing the application, that it is reasonably arguable that the declarations would have utility
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421
Category:	Procedural and other rulings
Parties:	Ihab Abdel Halaka (Plaintiff) Liberal Party of Australia New South Wales Division (Defendant)
Representation:	Counsel: J Loxton (Plaintiff) S Duggan (Defendant)   Solicitors: Robert Balzola & Associates (Plaintiff) Swaab Attorneys (Defendant)
File Number(s):	2014/44340

Judgment

1. HIS HONOUR: The defendant is the New South Wales Division of the Liberal Party of Australia. It seeks an order that these proceedings be summarily dismissed. The proceedings were commenced on 12 February 2014. The plaintiff is a member of the Wentworthville Young Liberals branch. He became aware of the possibility that the branch would be suspended by a resolution of the State Executive on 7 February 2014.

2. On that day, the State Executive passed resolutions that included a resolution that the branch be suspended until the conclusion of the meeting of State Executive on 28 March 2014, and other resolutions affecting the eligibility of members of the branch to stand for office to be elected by a forthcoming conference of the party.

3. The plaintiff also sought interlocutory relief but it was unnecessary for him to proceed with that application as a result of resolutions passed by the State Executive on 19 February 2015, allowing members of the branch to stand for office and elect office bearers at the then-upcoming annual general meeting of the Granville State Electoral Conference and the Parramatta Federal Electoral Conference.

4. These proceedings were referred to mediation. On 11 April 2014, prior to the mediation, a Ms Smee, a Party Affairs Manager of the defendant, advised the plaintiff that it was imperative that the mediation proceed promptly, and if it did not take place before a certain date, "we will commence dissolution proceedings of the Wentworthville Young Liberal Branch". A mediation was held but was unsuccessful.

5. On 15 October 2014, the plaintiff filed a statement of claim. In it, he challenges resolutions passed by the State Executive on 7 February 2014. He pleads that the purported suspension of the branch and of his rights and privileges was made in breach of cl 20.2.2 and 20.2.3 of the defendant's constitution together with appendix 5 entitled "Procedural Fairness".

6. Clause 20 of the constitution relevantly provides:

“20.2   SUSPENDING A BRANCH OR CONFERENCE

20.2.1	State Executive May Suspend Branch or Conference	State Executive may suspend a Branch or Conference
20.2.2	Procedure for Suspending a Branch or Conference	State Executive may suspend a Branch or Conference under clause 20.2.1 only if each member of State Executive and that Branch or Conference is given at least 28 days’ notice in writing that a motion to suspend the Branch or Conference will be put at a meeting of State Executive and with respect to that motion State Executive follows the procedural fairness provisions in Appendix 5.
20.2.3	Effect of Suspension	During any period of suspension of any Branch or Conference, no member of the Branch or Conference may act as a State Council delegate or participate in the meeting of a Selection Committee.
20.2.4	State Executive May Refer Questions of Fact to the Disputes Panel	State Executive may refer to the Disputes Panel for determination any question of fact with respect to a proposed motion to suspend a Branch or Conference.
20.2.5	Right of Appeal	(1) A Branch or Conference suspended by State Executive has a right of appeal to State Council at its next meeting. (2) State Council may confirm or quash the suspension. (3) Notice of appeal must be in writing and given to the State Director within seven days after the passing of the motion by State Executive. (4) Any motion at State Council to quash the suspension must be carried by 60% majority of its members present and voting.
20.2.6	Effect of Appeal and Expiration of Period of Suspension	On the expiration of a period of suspension or the passing of a motion by State Council to quash the suspension by State Executive of a Branch or Conference, the rights of the Branch are deemed to have continued without interruption from the time it was suspended until the expiration of the suspension or the passing of the motion by State Council (as the case may be), but with respect only to things to be done or to be determined after that later time.”

7. Appendix 5 provides as follows:

“30.2   PROCEDURAL FAIRNESS

30.2.1 Procedural Fairness If this Constitution requires a Body of the Division to follow procedural fairness with respect to a complaint or motion, that Body must: (1) give each of its members notice in writing that the complaint or motion will be put at a general meeting of the Body; (2) give the Member who is the subject of the complaint or motion the particulars of any complaint against that Member. (3) give the Member who is the subject of the complaint or motion an opportunity to address the general meeting of the Body at which the complaint or motion is put; and (4) carry any motion by not less than 60% of the members of the Body present and voting at the general meeting.”

8. It is common ground that the State Executive did not refer any matter relevant to this case to the disputes panel under cl 20.2.4, and that the plaintiff did not seek to exercise a right of appeal pursuant to cl 20.2.5.

9. The defendant's position is that the suspension expired on 28 March 2014. As a result, it contends that there is now no utility in the further conduct of these proceedings.

10. The plaintiff on the other hand contends that the declarations which he seeks could well be useful, and disputes that it is not seriously arguable that his claim for declaratory relief must fail.

11. The relief sought by the plaintiff, save as to costs, is the making of declarations that the decisions of the defendant of 7 February 2014 carried as motions 2.9, 2.10 and 2.11, and as 2.12 and 2.13 and as 2.14 and 2.15 of the State Executive were void.

12. The plaintiff says that if he is successful and obtains the declarations sought, the declarations could be useful in two ways. First and most directly, it could be expected that a declaration that the suspension of the branch was void or invalid is something that the defendant, in the ordinary course, would take into account in deciding whether to proceed with the threatened dissolution of the branch. There was no evidence on this application as to the current intention, if any, of the defendant or the State Executive to proceed with a dissolution of the branch.

13. It does appear from the parts of the constitution that were tendered on this application that a decision on the validity or invalidity of the suspension would not be determinative of any issue that would arise in relation to a purported dissolution of the branch. But I accept that it is a reasonable inference that if the plaintiff succeeds in these proceedings, that success could well be expected to have some influence on a decision that the defendant might then have to make as to whether to proceed with the threatened dissolution.

14. The other utility that the plaintiff suggested the declarations sought could have concerned the scope and operation of cl 13.2.4 of the constitution. That clause provides:

“If State Executive decides that past, present or future compliance with, or rectification of a past, present or future failure to comply with, any decision making mechanism or formal or procedural requirement specified in this Constitution:

(1)   will:

(a)   result in damage to the reputation of the Division or Organisation;

(b)   cause embarrassment to the Division or Organisation, the Party or a Parliamentary Leader;

(c)   reduce the Division’s or Organisation’s prospects of success in any election; or

(d)   amount to a waste of resources; or

(2)   is merely technical in nature,

State Executive may by motion of 75% of those present and voting, waive the requirement and substitute any other mechanism or formal or procedural requirement it thinks fit. The State President shall report to the next meeting of State Council the text of the motion carried under this clause.”

15. It was under that rule that the State Executive purported to waive the requirements of cl 20.2.2, and to substantiate for the requirements of that rule a rule to empower itself by ordinary motion to suspend the branch until 28 March 2014.

16. Curiously, neither the statement of claim nor the defence refers to the defendant’s having acted under that clause. But it is clear from the submissions of counsel that it is the operation of that clause that is likely to be the principal issue in the proceedings.

17. Counsel for the plaintiff said he would not be submitting that the State Executive was required to give notice to the plaintiff or to members of the branch prior to the exercise of power under cl 13.2.4. But he submitted that he would contend that the State Executive was required to exercise powers under that clause in good faith and on reasonable grounds that justified overriding the protections found elsewhere in the rules. The plaintiff will contend at the hearing that either of those requirements were not satisfied.

18. It was not suggested that there was no triable issue in relation to those matters. The plaintiff submitted that a determination of the scope and operation of cl 13.2.4, which would inform a decision whether to make the declaration sought, would have ongoing significance to the relations between the State Executive and the branch. I accept that that could be so.

19. In moving for the summary dismissal of the proceedings, the defendant submitted that the Court was bound not to make any of the declarations sought because the making of the declarations would produce no foreseeable consequences for the parties (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582). Mr Duggan, who appeared for the defendant, referred also to Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421 at 424-425, where Young J (as his Honour then was) said:

“A person who seeks a declaration needs to show that the declaration is of utility at the time when the Court makes its order. There are some cases where the Court has granted a declaration after a suspension has been served if it can see that a real question is involved and the Court's decision will give some practical guidance. Thus in Merricks v Nott-Bower [1965] 1 QB 57 the police had been transferred in 1957 and in 1963 those police successfully sought declarations that their transfer was contrary to natural justice. That, however, is an exceptional situation and ordinarily the Court will hesitate to find that there is any utility in making a declaration particularly well after a period of suspension has been served.

Again, the Court does not make a declaration where there are other avenues of dealing with the matter nor where a party has let time go by before making his or her application. Again, these are discretionary matters but the Court only makes a declaration where it can see that there is some practical utility at the time when a declaration is made in intervening.

The Court is also particularly concerned that members of non-proprietary clubs and churches and associations should not resort to the Court for declarations on minor aspects of the relationship between members.”

20. The defendant relied also on the fact that the appeal mechanism provided by cl 20.2.5 was not engaged as an additional reason as to why the Court would not grant the declaration sought.

21. Mr Loxton, for the plaintiff, submitted that the appeal mechanism was effectively suspended or withdrawn by reason of the State Executive's exercise of its power under cl 13.2.4. I am not sure that that is right. But I accept that that is a matter that is open for argument at the hearing. In any event, there may be good reasons as to why the rights of appeal were not exercised. And even if there are no such good arguments, the availability of a right of appeal would only be one factor to be weighed in the balance on the exercise of a discretion as to whether to grant declarations if the ground for doing so were otherwise established.

22. This being an application for summary dismissal, it is not to be approached in the same way as if the Court were now asked to exercise its discretion whether or not to make the declarations sought on the assumption that the plaintiff had otherwise succeeded in his claims. Whether the question is approached as by asking whether it is seriously arguable that such a discretion, if it arises, might be exercised in the way the plaintiff contends or whether the question is framed as asking whether there might be a reasonable prospect of the discretion being so exercised, does not matter.

23. I think that the case is not so clear that the defendant must or will succeed on this question that the proceedings should now be summarily dismissed. That is to say, I accept that it is reasonably arguable that the declarations sought could have utility for the parties in either of the ways indicated above.

24. The inutility of granting declaratory relief was the sole basis upon which summary dismissal was sought.

25. For these reasons, I do not consider the proceedings should be summarily dismissed. However, the debate with counsel during the hearing of this application has demonstrated that the pleadings, and I think the plaintiff's evidence, will need to be attended to in order for the matter to be made ready for hearing. I will hear counsel on what further orders should be made in that regard. I will hear the parties also on costs.

**********

Decision last updated: 04 November 2015