Harris v Liberal Party of Australia (WA Division) Inc - [2003] WASC 243

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HARRIS -v- LIBERAL PARTY OF AUSTRALIA (WA DIVISION) INC [2003] WASC 243

CORAM: SCOTT J

HEARD: 12 NOVEMBER 2003

DELIVERED : 12 NOVEMBER 2003

PUBLISHED : 5 DECEMBER 2003

FILE NO/S: CIV 2374 of 2003

BETWEEN: GRAEME ROBERT HARRIS
Plaintiff
AND
LIBERAL PARTY OF AUSTRALIA (WA DIVISION) INC
Defendant

Catchwords:

Injunctions - Interim injunction sought to restrain meeting - Balance of convenience in favour of defendant - No basis for interim relief

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr A J Camp
Defendant: Mr S Penglis

Solicitors:

Plaintiff: Butcher Paull & Calder
Defendant: Freehills

Case(s) referred to in judgment(s):

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Turner v General Motors (Australia) Pty Ltd (1929) 42 CLR 352

Case(s) also cited:

Nil

SCOTT J: By writ issued on 12 November 2003 the plaintiff seeks four declarations particularised in the indorsement of claim, namely:
"1.A declaration that the decision to create the Maida Vale and Orange Grove Branches of the Defendant and to allow the aforesaid Branches to participate and vote at the Annual General Meeting of the Hasluck Division of the Defendant is ultra vires the Constitution of the Defendant and null and void.
2.A declaration that the refusal of the Defendant to hear the Appeals against the decision to create the said Branches is a wrongful refusal to exercise power within the said Constitution.
3.The Defendant be restrained from allowing the said Branches as presently purported to be constituted to participate in any forum of the Defendant.
4.The Defendant be restrained from holding the Hasluck Division Annual General Meeting until the validity of the creation of the said Branches is determined or otherwise resolved."
By application dated 12 November 2003, the plaintiff sought the following orders:
"1.The Defendant be restrained and an injunction us [sic] hereby granted restraining it whether by itself, its officers, servants, agents or otherwise until 5.00 pm on Wednesday the 26th day of November 2003 from conducting the Annual General Meeting of the Hasluck Division.
2.Not later than 5.00 pm on the 14th day of November 2003, the Plaintiff do serve on the defendant copies of this order and of the affidavit and exhibits filed in support of the application.
3.The plaintiff have liberty to serve with the order and affidavit a summons returnable at on the day of 2003 to continue this injunction.
4.The Defendant has liberty to apply upon forty eight (48) hours notice to dissolve or vary this injunction."
The matter was heard as a matter of urgency in the late afternoon of 12 November 2003 because the application sought to restrain the Annual General Meeting referred to in par 1 of the Chamber Summons by way of an interlocutory injunction. That meeting was scheduled to commence at 6.30 pm that evening.
At the conclusion of the hearing of the application, the application was dismissed. At that stage brief extempore reasons were delivered and I indicated to the parties that if either party required more extensive reasons, they would be published at a later date. The defendant has sought those reasons.
In order to understand the factual basis surrounding the application it is necessary to canvass some of the background to these proceedings, as set out in the affidavit material accompanying the application. That material is contained in the affidavit of the plaintiff sworn the 12th day of November 2003. In considering that material, it is important to note that, as this application was made on an ex parte basis, I will refer only to the plaintiff's version of events.
When the application commenced, counsel for the defendant had not received the papers in support of the application. Those papers were provided to him at the commencement of the hearing, and the application was adjourned to give him the opportunity to consider the material. In view of the urgency of the matter, however, the application concluded on that afternoon. Importantly, it should be pointed out that the defendant had no opportunity to file any answering affidavit and had to deal with the matter at very short notice.
It is then necessary to examine some of the background facts taken from the plaintiff's affidavit.
The plaintiff deposed that he was the President of the Midland branch of the defendant and standing for the position of Divisional President of the Hasluck Division at the Annual General Meeting of that division to be held at 6.30 pm on 12 November 2003.
The plaintiff deposed to the fact that delegates from two new branches of the defendant intended to attend that meeting and vote. The plaintiff contended that the two branches, to which I will later refer, had not been lawfully created so that the delegates were not properly appointed and, as a consequence, did not have the right to vote at the meeting.
The plaintiff deposed to the fact that at a meeting of the State Executive of the defendant held on 20 September 2003 a motion was proposed that two new branches of the defendant should be created, namely, the Maida Vale branch and the Orange Grove branch. The motion was carried.
Clause 25(b) of the defendant's constitution provides:
"No new branches shall be created in any geographic area unless the new branch shall in the case of branches created outside the metropolitan area have from the date of its creation a membership of not less than ten (10) ordinary members and in case of branches created within the metropolitan area a membership of not less than thirty (30) ordinary members."
The plaintiff submitted that at the time the State Executive passed the motion to establish the two new branches it did not have evidence that the two branches had at least 30 applications for membership. It follows, so the plaintiff contended, that the two new branches were not properly constituted.
The plaintiff also contended that the boundaries of the proposed new branches had not been defined when the State Executive passed the resolution. This again, it was submitted, was a breach of cl 25 and cl 26 of the defendant's constitution.
It is not necessary for the purpose of these reasons to make any determination as to the validity of either of those propositions advanced for the plaintiff. For the purpose of these reasons, I assumed that the plaintiff had an arguable case, although that issue was strongly opposed by counsel for the defendant. Having examined the matter in some detail since the hearing, it seems that there is some merit in the defendant's position. As can be seen from cl 25(b) of the defendant's constitution, that provision does not talk about proposed members, but "a membership". In addition, it is important to note that cl 25(f) of the defendant's constitution provides:
"25(f)The new branch shall come into existence upon the completion of the election of office bearers at the first general meeting of the new branch."
As I understand the defendant's constitution, it is arguable that the new branch does not come into existence until the election of office bearers at the first general meeting of the new branch which is to occur after the meeting referred to in cl 25(c) of the constitution. It is arguable that, until the meeting is held, any proposed members are only "provisional members", as referred to in cl 25(c).
As I have already indicated, it is not necessary to resolve that issue in these proceedings. That can be determined in the principal action.
The second aspect of the plaintiff's claim was that the defendant had not defined the boundaries of the proposed new branches at the time the motion to provisionally approve those branches was passed by the State Executive on 20 September 2003.
Again it is not necessary, and it would be inappropriate, to make any final determination of that issue, but cl 25(a)(i) and (ii) of the defendant's constitution provide:
"25(a)Subject to the provisions of Clause 26 the State Executive may a the request of a Branch or of its own motion create a new Branch under such name and in such geographic area and subject to such directions as the State Executive by resolution prescribes PROVIDED THAT:-
(i)any Branch which has within its boundaries an area which is to be included in the proposed new Branch may object to the creation of the new Branch in which case the matter shall be referred to State Council. State Executive's proposal for a new Branch shall stand unless State Council by a resolution, passed with a two‑thirds majority of those entitled to be present, otherwise directs;
(ii)where State Executive has rejected a Branch's request for the creation of a new Branch the matter shall be referred to State Council. The Branch's proposal for a new Branch shall prevail unless State Council by a resolution passed by a two‑thirds majority of those entitled to be present otherwise directs."
Clause 25(a) of the defendant's constitution, read in conjunction with the other subclauses of that clause, can be construed as meaning that it is only after the branch is created that its geographical boundaries need to be defined. Again, in expressing that view, I should make it clear this is not a final determination of the issue which can only be resolved after a full hearing. The conclusion is open that the sequence of events required by the defendant's constitution is that the branch is created as a first step and after creation its geographical boundaries are determined. It is in the latter process, where other branches whose geographic area may be detrimentally affected, have a right to be heard. That is accomplished by cl 26 of the constitution which provides:
"26.Alteration of Boundaries
(a)The State Executive may from time to time by its own motion or at the request of a Branch or Branches change the geographic boundaries of a Branch PROVIDED THAT no such change shall be effected until twenty eight (28) days following notice of such proposed change has been given to the Branch or Branches whose boundaries are to be changed. Within that period of twenty eight (28) days a Branch may notify the State Director that it objects to the change and the matter shall be referred to State Council. State Executive's proposal shall stand unless State Council by a Special Resolution otherwise directs.
(b)The State Council may with the approval of general meetings of the Branches affected, by resolution amalgamate two (2) or more Branches into one (1) Branch upon such terms and conditions as the State Council may direct."
Again, as I have already said, it is not necessary to make any final determination of that matter. It is sufficient that the plaintiff, for the purposes of the interim application, has an arguable case.
The matters to be determined on an application for an interlocutory injunction were set out by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153:
"The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction."
As I have already said, for the purposes of this application, and solely for that purpose, I accepted that the plaintiff had made out an arguable case. I was also prepared to accept that damages would not provide adequate compensation to the plaintiff. The important aspect of the matter, in my view, however, was the balance of convenience.
The balance of convenience issue turned upon the question of whether the meeting which the defendant proposed to hold should be injuncted to prevent that meeting from occurring. As I understand the evidence, delegates had been given notice of the Annual General Meeting of the division. The plaintiff's concern, as expressed in his affidavit of 12 November 2003, was that the delegates from the two proposed new branches may have voted at that meeting and, if they did so, he may not have been elected Divisional President.
As I said to counsel in the course of the submissions, there are a number of underlying assumptions in the plaintiff's propositions which may or may not be correct. Firstly, the plaintiff assumed that the delegates from the proposed new divisions would vote at the Annual General Meeting and, of course, that might not necessarily be so. If, as is suggested, there was an issue as to the validity of the appointment of those delegates, then one possibility was that they may abstain from voting. The second underlying assumption was that the delegates from the two new branches would vote in a way that would "adversely affect" the plaintiff's candidacy. Again, there was no evidentiary basis for that hypothesis suggested in the plaintiff's affidavit.
If indeed the delegates from the proposed two new branches did vote and if those votes were adverse to the plaintiff and if, in the end result, the plaintiff's candidacy failed, then, no doubt, those matters would be the subject of contention at the hearing of this action. One remedy open to the Court trying the action is to set aside the election result if the plaintiff establishes that the voting was detrimentally affected by delegates who were not constitutionally elected. All of that remains to be seen and will be tried out when the principal action is heard.
Upon analysis, the plaintiff's contention was that the Court should injunct the proposed meeting to prevent the hypothetical considerations to which I have referred from occurring. In my view, that contention was not sustainable. As I said to counsel in the course of the argument, if a number of electors at a federal election were not qualified to vote, that would be no basis for injuncting the election. There are provisions to enable a challenge to an election unlawfully held. The defendant's constitution provides internal mechanisms for dealing with appeals, including the creation of an Appeals and Disciplinary Committee which may serve that purpose.
In relation to the issue presently under consideration, the plaintiff deposes to the fact that appeals were lodged in relation to the issue of the boundaries of the proposed new branches. Those appeals were heard at a meeting of the defendant's State Council on 25 October 2003. The evidence indicates that there was no quorum at that meeting to determine the issue.
The other aspect of the matter raised in the plaintiff's affidavit is that the original motion to create the two new branches was passed by the State Executive of the defendant on 20 September 2003. The plaintiff challenges that decision on the basis that at that time the State Executive did not have evidence that each of the proposed new branches had at least 30 applications for membership.
As I have already indicated, this writ was issued on 12 November 2003 and this interlocutory application heard on the same day. In other words, the plaintiff left the matter until the very last moment to bring the application for an urgent interlocutory injunction. That, in turn, meant that the defendant had little or no notice of the application and no opportunity to deal with the matters raised in the plaintiff's affidavit. That is also a factor which tells against the plaintiff's application: see Turner v General Motors (Australia) Pty Ltd (1929) 42 CLR 352 at 365 ‑ 367.
As I have already indicated, if, as the plaintiff contends, his candidacy fails and if that failure results either wholly or in part from the votes of unconstitutionally elected delegates, then those issues can be resolved in the action. In my view, interlocutory relief was not appropriate for the purpose of restraining the meeting on the hypothetical basis sought by the plaintiff. The balance of convenience, in all of the circumstances, did not favour the plaintiff and the application was dismissed.
I granted the defendant liberty to apply with respect to any consequential orders.