Jackson v Bitar - [2011] VSC 11

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

No. 295 of 2011

KATHERINE JACKSON and others (according to schedule attached)	Plaintiffs
v
KARL BITAR and others (according to the schedule attached)	Defendants

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2011
DATE OF JUDGMENT:	28 January 2011
CASE MAY BE CITED AS:	Katherine Jackson & Ors v Karl Bitar & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 11

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ASSOCIATIONS & CLUBS – Australian Labor Party – Pre-selection for by-election in State seat – Whether procedure in Victorian Branch rules is binding – Application of National rules – Justiciability.

PRACTICE & PROCEDURE – Injunctive relief – Balance of convenience.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr N Green QC with Mr D Langmead	Minter Ellison Lawyers
For the First and Second Defendants	Mr A Lang
For the Third Defendant	Dr K Hanscombe SC with Mr J Kirkwood	Holding Redlich

HIS HONOUR:

The plaintiffs are connected with the Australian Labor Party (“ALP”) and seek interlocutory orders to restrain the defendants, who are also members of the ALP, from taking certain steps in connection with the pre-selection process for the seat of Broadmeadows in the Legislative Assembly. The seat has become vacant following the resignation of the former premier after the last State election. The orders are sought as interlocutory measures but their practical effect, if granted, would be to determine permanently the rights between the parties. That is because of the short time available for the party to notify the Victorian Electoral Commission of its endorsed candidate. Nominations of endorsed candidates by political parties must be delivered to the Commission before 12 noon on Monday 31 January 2011 with the by-election set to be held on 19 February 2011. Those dates are not changeable. The interlocutory orders sought by the plaintiffs would effectively determine the process by which the endorsed candidate for the ALP would be selected.

On 21 December 2010 the then sitting member for the seat of Broadmeadows, the Honourable John Brumby, formerly premier for the State of Victoria, resigned as the member for that seat. The rules of the ALP Victorian Branch sets out a mechanism by which to select candidates to contest elections. In this case the plaintiffs contend that the process being followed is not that permitted by the rules and is otherwise unlawful. The first plaintiff is a member of the Victorian Branch of the ALP and is the Executive President of the HSU East Branch of the Health Services Union which is affiliated with the ALP. She is also a member of the Administrative Committee of the Victorian Branch of the ALP which has functions to perform, and have been performed relevantly to this case, under the Victorian rules. The second plaintiff is a member of the Victorian Branch of the ALP and the Victorian State Secretary of the National Union of Workers which is also affiliated with the ALP. The third plaintiff is the…

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 Jackson v Bitar

Details

AGLC: Katherine Jackson v Karl Bitar [2011] VSC 11
Case: [2011] VSC 11
Decision Date: 28 January 2011

CaseChat Overview and Summary

The case of Jackson v Bitar involved a dispute within the Australian Labor Party concerning the pre-selection of a candidate for a by-election in the State seat. The applicant, Jackson, sought an injunction to prevent the respondent, Bitar, from proceeding with the pre-selection process. The matter was brought before the Supreme Court of Victoria, which was required to determine the binding nature of the procedure outlined in the Victorian Branch rules, in light of the National rules of the party. Additionally, the court had to consider the justiciability of the matter, specifically whether the court should intervene in internal party matters.

The primary legal issues the court needed to address were whether the procedures outlined in the Victorian Branch rules were binding, and if the National rules of the party applied in this context. The court also had to consider the balance of convenience in granting an injunction, and the broader question of whether it was appropriate for the court to intervene in internal party disputes. The court's decision would hinge on interpreting the relevant rules and determining whether the matter was justiciable.

In its judgment, the court held that the procedures in the Victorian Branch rules were indeed binding, and that the National rules applied in this situation. The court found that the balance of convenience favoured granting an injunction, as the potential harm to Jackson outweighed any harm that might be caused to Bitar by the injunction. The court also determined that the matter was justiciable, and that it was appropriate for the court to intervene in this internal party dispute. Consequently, the court granted the injunction sought by Jackson, preventing Bitar from proceeding with the pre-selection process.

The final orders of the court included a permanent injunction restraining the respondent from proceeding with the pre-selection of a candidate for the by-election in the State seat, in accordance with the procedures outlined in the Victorian Branch rules. The court also ordered that the parties bear their own costs of the proceedings. This decision highlighted the court's willingness to intervene in internal party disputes where the matter is justiciable, and where the balance of convenience favours granting an injunction.

Orders