James v Wilson

[2019] NSWSC 17

Supreme Court

New South Wales

Medium Neutral Citation:	James v Wilson [2019] NSWSC 17
Hearing dates:	23 and 24 January 2019
Date of orders:	29 January 2019
Decision date:	29 January 2019
Jurisdiction:	Equity
Before:	Lindsay J
Decision:	Order that the summons be dismissed
Catchwords:	Associations and Clubs – Jurisdiction of courts – Political parties – Dispute concerning interpretation of party constitution – whether justiciable – where political party registered, and recognised, by legislation – claim for declaration on construction of constitution justiciable
Legislation Cited:	Electoral Act 2017 (NSW) Electoral Funding Act 2018 (NSW)
Cases Cited:	Cameron v Hogan (1934) 51 CLR 358 Coleman v Liberal Party of Australia, NSW Division (No 2) [2007] NSWSC 739 Baldwin v Everingham [1993] 1 QdR 10
Texts Cited:	-
Category:	Principal judgment
Parties:	Timothy James Wilson (Plaintiff ) Felicity Lesley Wilson, Defendant 1 Christopher Stone, Defendant 2 Lisa Paulsen, Defendant 3 Jessica Ruth Keen Defendant 4 Benjamin Taylor, Defendant 5 Anthony Herron, Defendant 6 Louise Benjamin, Defendant 7 Graeme Starr, Defendant 8 Stuart Clark, Defendant 9
Representation:	Counsel: D Smallbone (Plaintiff) S Duggan and M J Davis (Second Defendant)   Solicitors: Timothy James (Plaintiff) Harpur Phillips Lawyers (Second Defendant)
File Number(s):	2019/00009456

Judgment

INTRODUCTION

1. This is a judgment published, within constraints of time, consequent upon an urgent final hearing of proceedings heard, in the duty list, during the court’s vacation.

2. It concerns a challenge to the validity of a declaration of the outcome of a vote by members of a Selection Committee of the Liberal Party of Australia, New South Wales Division for selection of a candidate to represent the Liberal Party, in the electorate of North Shore, for the election of a member of the Legislative Assembly, in the Parliament of New South Wales, at a general election to be held on 23 March 2019, in less than two months’ time.

THE CONSTITUTION OF THE PROCEEDINGS

3. The plaintiff (Mr Timothy James), the first defendant (Ms Felicity Wilson) and the fourth defendant (Ms Jessica Keen) were participants in a pre-selection contest which reached a climax at a meeting of a Selection Committee on 12 November 2018. At that meeting, the first defendant was declared to be the Selection Committee’s selected candidate, defeating the plaintiff in a final ballot. In an earlier ballot, at the same meeting, the fourth defendant was eliminated from the contest.

4. The second defendant (Mr Christopher Stone) is the State Director of the Liberal Party of Australia, NSW Division. One of the duties of his office, which he performed at the Selection Committee meeting on 12 November 2018 and on incidental occasions, is to serve as Returning Officer at Selection Committee meetings.

5. The third defendant (Ms Lisa Paulsen) is a member of the Liberal Party of Australia, NSW Division who, the plaintiff complains, was wrongly excluded from participation in the Selection Committee meeting of 12 November 2018 notwithstanding that she ostensibly occupied the office of Development Vice President of the Mosman West Branch of the Party and, by virtue of that office, should have been entitled to full participation in the meeting.

6. The fifth defendant (Mr Benjamin Taylor) is the President of the Mosman West Branch. By virtue of that office, he was a member of the Selection Committee which met on 12 November 2018.

7. The sixth, seventh, eighth and ninth defendants are members of the Disputes Panel of the Liberal Party of Australia, NSW Division. Under the Constitution of the Liberal Party of Australia, NSW Division, a function of the Panel, upon an application for review made by an affected Party member, is to determine a challenge to pre-selection processes. The Constitution provides for two stages of review. The first stage (called a “first review”) is conducted by a single member of the Panel. An affected Party member disappointed by the outcome of such a review can apply for a “second review”. In the present case, a first review determination was made by the eighth defendant (Mr Graeme Starr) and a second review determination was made by a panel comprising the ninth defendant (Mr Stuart Clark) as Chairman , the sixth defendant (Mr Anthony Herron) and the seventh (Ms Louise Benjamin).

THE RELIEF SOUGHT BY THE PLAINTIFF, AND HIS OPPOSITION

8. After the final ballot conducted at the Selection Committee meeting on 12 November 2018, the State Director, in his capacity as Returning Officer, declared the first defendant the winner of the ballot. The plaintiff, as her only opponent in that final ballot, seeks, in these proceedings, a declaration that the declared outcome of the ballot is invalid.

9. The only active parties in the proceedings are the plaintiff and the State Director. The State Director has assumed the role of the plaintiff’s contradictor in the proceedings. Each other party to the proceedings has filed, or otherwise communicated to the court, a submitting appearance. In their respective submitting appearances, each of the third and fifth defendants has expressly consented to the relief claimed by the plaintiff. Although, perhaps, procedurally irregular, their “consent” can be taken as expression of support for the plaintiff’s case.

10. The State Director contends that, having regard to the judgment of the High Court of Australia in Cameron v Hogan (1934) 51 CLR 358 at 370–376, the plaintiff’s claim for relief is not justiciable. In advancing that contention, he nevertheless acknowledges that in Coleman v Liberal Party of Australia, NSW Division (No 2) [2007] NSWSC 736; 212 FLR 271 (following Baldwin v Everingham [1993] 1 QdR 10) Palmer J held that, in light of the legislative scheme for regulation of registered political parties and modern jurisprudence governing the grant of declaratory relief, Coleman v Hogan is distinguishable.

11. The plaintiff and the State Director agree that, if the Court (following Palmer J) determines that the plaintiff’s claim for relief is justiciable, and that (upon the proper construction of the Constitution, and subordinate Regulations, of the Liberal Party of Australia, NSW Division) the plaintiff is entitled to relief, that relief should take the form of a declaration, without more, reserving any entitlement to injunctive relief as consequential relief.

THE PLAINTIFF’S GROUNDS FOR THE RELIEF CLAIMED

12. In broad terms, the plaintiff challenges the validity of the declaration of the final ballot on two grounds. The first is that the third defendant is said to have been wrongly excluded from participation in the deliberations, and votes, of the Selection Committee. The second is that the State Director erred in making his declaration of the outcome of the final ballot based upon the fact that the first defendant secured a simple majority of votes; the plaintiff contends that the State Director’s declaration required more than a simple majority, namely, an absolute majority of the members of the Selection Committee present and entitled to vote.

13. The closeness of the contest between the plaintiff and the first defendant provides a link between the two grounds upon which the plaintiff contests the outcome of the pre-selection ballot. At the meeting of the Selection Committee on 12 November 2018, no candidate received an absolute majority on the first ballot, necessitating a series of ballots according to a procedure which required elimination of candidates, if necessary one by one, in a succession of votes. The fourth defendant having been eliminated, in the third ballot (between the plaintiff and the first defendant only) the first defendant secured 101 votes, the plaintiff secured 100 votes, and there were four informal votes. Thus it was that the first defendant obtained a simple majority (101 over 100 votes) but not an absolute majority (that is, 103 votes) of the 205 votes cast. The plaintiff contends that, had the third defendant not been excluded from the ballot she would, by her vote, have denied the first defendant, even a simple majority, and further deliberations of the Selection Committee would have been required before any declaration of a selected candidate could have been made.

14. The first ground relied upon by the plaintiff turns substantially upon the proper construction of provisions of the Constitution of the Liberal Party of Australia, NSW Division relating to the rights of a member of the Party in an Ordinary Branch of the Party in metropolitan electorate. The second ground relied upon by the plaintiff turns substantially upon the proper construction of provisions of the Constitution, and Regulations subordinate to the Constitution, governing the conduct of a pre-selection ballot of Selection Committee members.

15. In the ordinary course, a candidate for pre-selection who is declared to be the selected candidate of a Selection Committee has his or her name submitted to the State Executive of the Liberal Party of Australia, NSW Division for consideration whether or not he or she should be endorsed as the Liberal Party candidate for election to public office. The State Executive is not obliged to resolve in favour of endorsement but, in the ordinary course, might reasonably be expected to do so.

16. In the present case, the State Executive has yet to make a determination, one way or the other, as to whether the first defendant should be endorsed as the Liberal Party’s candidate for election in the North Shore electorate. It has deferred making such a determination pending resolution of these proceedings, which have followed internal challenges to the decision-making processes of the Selection Committee.

THE INSTITUTIONAL CONTEXT OF THE PROCEEDINGS

17. The Liberal Party of Australia, NSW Division is an unincorporated association registered under legislation (including, materially, the Electoral Act 2017 (NSW) and the Electoral Funding Act 2018 (NSW)) governing the Liberal Party’s participation in the electoral processes of Australian government. That legislation, incidentally, regulates the conduct of a candidate endorsed by the Party for election to public office — including, as in this case, the office of a member of the Legislative Assembly of the Parliament of New South Wales. The legislation is directed towards preservation of the integrity of public institutions fundamental to Australia’s democracy.

18. The affairs of the Liberal Party of Australia, NSW Division are governed by a written Constitution, and subordinate Regulations, which are expressed to be binding upon all members of the association. In particular, clause 3.1.2 of the Constitution declares that all members are bound by its provisions.

19. A member of the Liberal Party of Australia, NSW Division has no legal interest in the property of the Association. Clause 27.1.1(3) of the Constitution provides that none of the income or property of the Division may be paid or transferred directly or indirectly to members of the Division by way of profit. Clause 28.7.2 provides that, if the Division is dissolved and all its debts are paid, any property remaining must not be paid or distributed amongst the members but must be given to a body chosen by the Division’s State Council that has objects similar, or partly similar, to the objects of the Division and which prohibits the distribution of property to its members at least to the same extent as the Constitution.

20. The NSW Division of the Liberal Party of Australia is governed by a State Council and, in between meetings of its State Council, by its State Executive.

21. In broad terms, under its Constitution, the NSW Division is made up of various “branches”, which belong to “conferences”. There are three types of “conference”, coinciding with the boundaries of electorates of each level of government in Australia’s federal system of government. There are thus Federal Electoral Conferences (“FECs”), State Electoral Conferences (“SECs”) and Local Government Conferences (“LGCs”).

22. The Constitution of the NSW Division governs, inter alia, the functions and affairs of a Local Branch of the Party. Each Ordinary Branch (as defined by the Constitution and as is the Mosman West Branch) is allocated to an FEC, an SEC and an LGC.

23. Under the Constitution, ordinarily, a Branch is allocated by the State Executive to the FEC, SEC and LGC which relate to the area in which the Branch operates or otherwise to an FEC, SEC or LGC which represents the area of an electorate in which more of the members of the Branch reside than any other electorate.

CONSTITUTIONAL PROVISIONS CENTRAL TO THE PLAINTIFF’S FIRST GROUND

24. A person wishing to join the NSW Division as a member may become either a “general member” or a member of a Branch.

25. A “general member” is defined by the Constitution as a member of the Division who is not a Branch member. Such a member, if financial, may attend a meeting of any Branch; be given notice of, and, subject to paying a prescribed registration fee, attend a state convention of the Liberal Party and vote on motions at such a meeting; and, unless made ineligible under another provision of the Constitution, nominate for endorsement as a Liberal candidate for election to public office: Constitution, clause 3.2.1.

26. Clause 3.2.2 of the Constitution provides, generally, that a financial member of a Local Branch has additional rights (subject to other provisions of the Constitution) which include eligibility to stand for office in the Local Branch and eligibility to be chosen by the Local Branch to participate in a meeting of a Selection Committee.

27. Clause 3.2.4(1) of the Constitution provides as follows (with emphasis added):

“Limits on Rights of Members in Ordinary Branches in Metropolitan Electorates

(1) A Branch Member of an Ordinary Branch in a Metropolitan Electorate does not have any Local Branch Membership Rights with respect to his or her membership of that Local Branch if the Local Branch is not allocated to the FEC in the Federal Electorate where the person’s Principal Place of Residence is located unless:

(a) the Local Branch Member has been a member of that Local Branch for at least two years already;

(b) the Local Branch Member has been a member of that Local Branch since at least 2 August 2008; or

(c) the person’s Principal Place of Residence was previously in such a Federal electorate and not more than three months has expired since the person’s Principal Place of Residence ceased to be in that Federal electorate;”

28. The expression “Principal Place of Residence” is defined by clause 1.2.1(27) of the Constitution to mean “a person’s place of living set out on the electoral roll for New South Wales maintained under the Commonwealth Electoral Act 1918 (Cth)”.

29. Clause 3.2.4 of the Constitution is to be read in the context of clause 2.4.7. So far as is material, that clause provides as follows (with emphasis added):

“(1) An eligible person applying to join an Ordinary Branch, and whose Principal Place of Residence is within an Metropolitan Federal electorate, may only apply to join an Ordinary Branch that has been allocated by State Executive to the Federal electorate where the applicant resides.

(2) …

(3) If the application of clause 2.4.7 causes undue hardship to any person applying for membership of the Ordinary Branch, then the applicant may write to the State Director, who shall then present the applicant’s letter to the State Executive at their next meeting, and the State Executive may, by 75% majority, allocated the applicant to any Ordinary Branch as it sees fit.”

30. These provisions, together with clause 4.1.4(3) of the Constitution, are critical to a determination of the plaintiff’s first ground of challenge to the State Director’s declaration of the pre-selection ballot. The State Director contends that, despite the fact that the third defendant is indisputably a member of the NSW Division in good standing and ostensibly the Development Vice President of the Mosman West Branch, she was not, for the purpose of the meeting of the Selection Committee on 12 November 2018, entitled to the rights for which clause 3.2.2 provides because she was not resident in the Federal electorate (the electorate of Warringah), to which the Mosman West Branch had been allocated.

31. So far as material, clause 4.1.4(3) provides as follows:

“The purported carriage of business at a meeting of a [Local Branch] is deemed to be the validly conducted business of that [Branch] if… in the case of business which is the election of an officer bearer:

(a) details of that purported election are sent to the State Director and no later to all other persons entitled to notice of the result of that election; and

(b) no objection to the validity of that purported election is made by any Member in writing to the State Director within two months after receipt of those details by the State Director.”

32. The plaintiff meets the State Director’s challenge to the third defendant’s entitlements under clause 3.2.4 of the Constitution by relying upon the fact that, as recently as 8 May 2018, the third defendant was ostensibly elected by her Branch as Development Vice President (for a second time) without any objection within the time limited by clause 4.1.4(3). The plaintiff contends that, by reason of the third defendant’s unchallenged election to that office, and clause 21.5.8(3) of the Constitution, the third defendant was entitled to membership of the Selection Committee which met on 12 November 2018.

33. To understand that point, one must understand that, by reason of clause 22.2.2 of the Constitution, the Selection Committee was to comprise, in addition to representation, of a “Central Component” (State Council and State Executive), a “Local Component” representing “Branch Members allocated to the…[North Shore] SEC chosen in accordance with clause 21.5.8” of the Constitution.

34. Clause 21.5.8(3) provides that “[if, as was Mosman West Branch] a Branch is entitled to choose selectors to be Members of a Selection Committee then (in each case, if wishing to serve) the Branch’s first selector is its President, any second selector is its Development Vice President, any third selector is its Policy Vice President, any fourth selector is its Secretary and any fifth selector is its Treasurer.”

35. The plaintiff contends that, even if the third defendant was not correctly elected to the Branch office of Development Vice President, in the absence of any timely objection to her election she must be taken to have been validly elected to the Office and, by virtue of her occupation of that Office, entitled to membership of the Selection Committee. Against that, the State Director contends that a person such as the third defendant who, he alleges, lacks the rights of a Local Branch Member under clause 3.2.2 of the Constitution cannot be recognised as a member of a Selection Committee notwithstanding that he or she may purportedly occupy a Branch office as Development Vice President.

PROVISIONS CENTRAL TO THE PLAINTIFF’S SECOND GROUND: REGULATIONS (UNDER THE CONSTITUTION) FOR THE CONDUCT OF SELECTIONS

36. Regulation 3.7.2 of the Regulations governing the conduct of Selection Committee meetings for the Legislative Assembly provides a procedure, applicable in the current case, for pre-selection candidates to address a meeting of their Selection Committee and to answer questions. It provides, in clause 3.7.2(2), that, “if the Selection Committee decides to proceed to a selection, the selection ballot must be conducted in accordance with the procedure for exhaustive balloting”.

37. That procedure (elaborated in regulation 3.11.1) involves a mechanism for the reduction of a field of candidates by using a first-past-the-post system in which candidates who receive the lowest vote are progressively eliminated by a succession of ballots.

38. Regulations 3.12.3 and 3.12.4 (under the heading “Exhaustive Balloting Procedure”) are in the following terms (with emphasis added):

“3.12.3 Declaration of Selected Candidate

(1) A candidate who receives an absolute majority of votes shall be declared selected as the candidate for the vacancy being filled. Under these regulations an absolute majority must be calculated as follows:

(a) where the number of the Selection Committee present and entitled to vote is an even number, an absolute majority will be half that number plus one;

(b) where the number of the Selection Committee present and entitled to vote is an odd number, an absolute majority will be half that number plus one half.

(2) If no candidate receives an absolute majority of votes in the first ballot, then candidates will be eliminated according to the procedures in Regulation 3.12.4.

(3) The Returning Officer must resubmit the remaining candidates to the Selection Committee for the members of the Selection Committee to again vote for their preferred candidate.

(4) If no candidate receives an absolute majority of votes in succeeding ballots, then further candidates must be eliminated in accordance with the procedures in Regulation 3.12.4.

3.12.4 Procedures to Eliminate Candidates

The following candidates will be eliminated from subsequent ballots:

(1) the candidates who in the first ballot receive less than 5% of the total number of votes cast in the ballot; and

(2) in the second and subsequent ballots the candidates for whom, ranked in ascending order commencing from the candidate with the lowest number of votes, the total number of votes is less than the number of votes received by the candidate who received the next highest number of votes.”

39. These Regulations are central to the debate between the plaintiff and the State Director as to the outcome of the final ballot of the Selection Committee on 12 November 2018.

40. The plaintiff also draws support from clause 21.4.1 of the Constitution that, if only one nomination is received for endorsement to be the Liberal candidate for election to a particular Legislative Assembly office, the general Selection Committee rules and procedures apply so far as practicable “except that there shall only be one ballot, namely, whether to select the person nominating as the candidate”. The plaintiff contends that, in such a case, that one ballot requires an absolute majority by reason of regulation 3.12.3(1).

41. Ultimately, the obligation of the State Director, as returning officer at a Selection Committee meeting, is, subject to the Regulations, to give effect to each voter’s intention: regulation 3.16.1. That obligation is expressed in terms directed to an individual vote. However, as a guiding principle, it is equally applicable to Selection Committee voters in the aggregate.

PARAMETERS OF DISPUTE

42. In fairness to all concerned in the current proceedings, and as a factor for consideration upon determination of the justiciability of the plaintiff’s claim for relief, the following features of the case, as presented on both sides of the record, need to be noted:

1. The facts underlying the plaintiff’s claim for relief are not in dispute. The only evidence in the proceedings was adduced by the plaintiff, without objection, albeit after consultation between counsel as to the admissibility of some evidence. No witness was cross-examined.

2. No party to the proceedings impugns the good faith of any other party or, for that matter, any person.

3. The questions for determination by the Court have been presented, and argued, as questions of construction of the Constitution and Regulations of the Liberal Party of Australia, NSW Division — that is to say, purely legal questions — unattended by consideration of the political views of affected persons.

4. Although no representative orders have been sought or made in these proceedings so as to bind members of the Liberal Party of Australia, NSW Division not by name joined in the proceedings, all members of the association most directly affected by the plaintiff’s claim for relief have been joined in the proceedings and allowed an opportunity to be heard.

5. Although time is of the essence in determination of these proceedings because of practical constraints, both within the framework of the Liberal Party of Australia, NSW Division’s organisation and in parliamentary processes, there is no suggestion of laches, acquiescence or delay in the plaintiff’s assertion of such, if any, entitlements he may have to relief.

6. No party suggests, and both parties active in the proceedings disavow any suggestion, that decisions made by the State Director as returning officer or by the Disputes Panel of the Liberal Party of Australia, NSW Division upon a first or second review (and expressed by the Constitution to be “final” or “final and binding” on members of the Division) are such as to oust the jurisdiction of the Court in its construction of the Constitution and subordinate Regulations.

7. The fact that the State Executive of the Liberal Party of Australia, NSW Division has not yet made a determination (under clause 21.6.1 of the Constitution) whether or not to confirm the first defendant as the Liberal candidate for the electorate of North Shore in the forthcoming general election does not decisively militate against the Court making a declaration of the type sought by the plaintiff. He has exhausted all internal remedies save, possibly, formal representations to the State Executive about the outcome of the pre-selection ballot, and clause 21.6.1 is predicated upon the Selection Committee having “selected a person to be the Liberal candidate”.

8. No party submits that a grant of declaratory relief (should the plaintiff otherwise be entitled to it) should be withheld for a want of utility or because the making of a declaration about the proper construction of the Constitution and Regulations of the Liberal Party of Australia, NSW Division would be futile.

FACTUAL CONTEXT

43. The third defendant joined the Liberal Party of Australia, NSW Division as a general member in 2007. She has remained a member of the Party since that time.

44. On 10 April 2014, she applied to join the Mosman West Branch. She was accepted by the Branch as a member, and became a member of the Branch, on 11 June 2014. At that time, she lived within Branch boundaries.

45. In June or July 2014, her electoral roll address changed following a move to Kirribilli (outside the Federal electorate to which the Mosman West Branch is allocated) but, geographically, not too far distant from the Branch’s area.

46. On 12 October 2015, she was elected as Development Vice President at an annual general meeting of the Mosman West Branch.

47. On 15 March 2017, without objection, she participated in a pre-selection contest, entertained by the North Shore Selection Committee, which led to the first defendant (as the Liberal Party’s candidate) being elected to the Legislative Assembly in a by-election.

48. On 8 May 2018, she was elected, for a second time, as Development Vice President of the Mosman West Branch at an AGM which was held at her home (outside the Branch boundaries) and attended by the first defendant.

49. On 15 May 2018, notice of that election was sent to the office of the State Director in accordance with the Constitution of the Liberal Party of Australia, NSW Division.

50. On 23 October 2018, a provisional roll of selectors for North Shore, including the name of the third defendant as a selector, was sent to candidates for pre-selection.

51. On 29 October 2018, the Deputy State Director of the Liberal Party of Australia, NSW Division (Mr Simon McInnes) advised the candidates of a ruling made by the State Director of a challenge made by the first defendant to the third defendant’s eligibility as a prospective member of the North Shore selection committee. That ruling was to the effect that, by operation of clause 3.2.4(1)(c) of the Constitution, the third defendant ceased to hold local membership rights within the Mosman West Branch three months after her change of address in 2014 and was, accordingly, ineligible to serve as a member of the Selection Committee. The first defendant’s challenge to the third defendant’s status as a selector was upheld, with a consequence that the provisional roll of selectors was amended so as to remove the third defendant’s name.

52. On 30 October 2018, the plaintiff applied (in the form of a written application, supported by a statutory declaration compliant with formal requirements of chapter 17 of the Constitution of the Liberal Party of Australia, NSW Division) for a review of the State Director’s ruling.

53. The plaintiff’s challenge to that ruling was upheld by a determination of the Disputes Panel (constituted by the eighth defendant) pursuant to the Constitution’s “first review” procedure.

54. Guided by a direction in clause 17.13 of the Constitution of the Liberal Party of Australia, NSW Division that the Disputes Panel “act according to substantial justice and the merits of a case”, on 31 October 2018 the Disputes Panel, in effect, set aside the State Director’s ruling. By that determination, the Panel on a first review gave effect to the plaintiff’s contention that the third defendant gained Local Branch Membership Rights on 14 June 2016, being the second anniversary of her joining the Mosman West Branch. That contention is grounded upon an application of clause 3.2.4(1)(a) of the Constitution — to the exclusion of clause 3.2.4(1)(c) — assessing the third defendant’s entitlements to Local Branch Membership Rights as at the time of the pre-selection contest, and construing the clause with a retrospective perspective upon an assumption that rights once lost can be recovered by effluxion of time.

55. By a letter dated 6 November 2018, the first defendant applied to the Disputes Panel for a second review. Her application for a second review did not conform to a prescribed form and it was not accompanied by a statutory declaration. Relying upon the provisions of clause 17.13 of the Constitution, the Panel accepted, and in due course entertained, the application.

56. Clause 17.13 is in the following terms:

“17.13 DISPUTES PANEL MANNER OF OPERATION

17.13.1Conduct of Meetings and Deliberations

(1) The Disputes Panel must conduct its meetings and deliberations with as little formality as possible, subject to giving all parties procedural fairness.

(2) When determining a dispute the Disputes Panel must act according to substantial justice and the merits of the case.

(3) In carrying out its functions the Disputes Panel must pursue the objective of providing a mechanism for disputes resolution that is fair, just, economical, informal and quick.”

57. On or about 9 November 2018, the Disputes Panel (constituted by the sixth, seventh and ninth defendants) upheld the first defendant’s second review application. The Panel determined that the State Director’s original ruling was correct, and directed that the third defendant’s name be removed from the roll of Selectors.

58. In a denial of procedural fairness to the plaintiff and the third defendant (accepted in these proceedings as the result of administrative oversight), the plaintiff and the third defendant were not informed of the first defendant’s second review application or the Dispute Panel’s determination of it until a short time before the scheduled meeting of the North Shore Selection Committee on 12 November 2018.

59. When the Disputes Panel, and the State Director, became aware of this lapse in procedure, the first and third defendants were invited (albeit without adequate notice) to make submissions relating to the second review.

60. The third defendant was unable to respond in any way beyond a protest at her exclusion from the decision-making process.

61. The first defendant managed to make a short written submission in which he complained of procedural unfairness, objected to the competency of the first defendant’s application for review because of her failure to comply with the Constitution’s prescribed forms and reiterated his reliance upon clause 3.2.4(1)(a) of the Constitution, as well as reliance upon clause 4.1.4 of the Constitution as a means of validation of any defect in the third defendant’s occupation of the office of Development Vice President of the Mosman West Branch.

62. Within 45 minutes or so of receipt of the plaintiff’s written submissions, the Deputy State Director emailed the plaintiff (and others) with news that he had just spoken to the Chair of the Disputes Panel (the ninth defendant) and the Chair had “advised after consulting with other Panel members that the second review decision of the Panel stands”.

63. On that basis, the third defendant was excluded from participation in the meeting of the Selection Committee which commenced about one hour and 45 minutes thereafter.

64. Maintaining her protest at her exclusion, the third defendant attended the meeting as an “observer”, confined by the terms of regulation 3.1.3 of the Regulations governing the conduct of selections. She was, accordingly, precluded from any interaction with members of the Selection Committee.

65. At the outset of the meeting of the Selection Committee, the State Director informed those present that “the winning candidate would require an absolute majority of votes or 50% plus one”. The plaintiff does not, however, contend that such a statement (if intended to apply to ballots after the first) should influence, or prevail over, the proper construction of the Constitution and Regulations.

66. There were, as has earlier been noted, three ballots culminating in a vote in which, allowing for informal votes, the first defendant received a simple (but not an absolute) majority of votes.

67. After the third ballot, the State Director as returning officer declared the first defendant the winner of the pre-selection contest. He did not, before doing so, invite selectors (as the plaintiff contents he should have) to vote affirmatively for the first defendant as their selected candidate.

68. Subsequently, the Disputes Panel (constituted by the sixth, seventh and ninth defendants) published written reasons, ostensibly in response to the plaintiff’s written submissions of 12 November 2018, in which the determination of the second review was “confirmed”. The Panel concluded that it was entitled to deal with the first defendant’s application for a second review despite the fact that it did not comply with prescribed forms; it determined that considerations of “substance” prevailed over “form” in dealing with the application. It also rejected the plaintiff’s complaint of procedural unfairness, relying upon the fact that (albeit belatedly) the plaintiff was given an opportunity to make submissions before the commencement of the Selection Committee meeting. It held, by reference to clause 3.2.4(1)(c) of the Constitution, that the third defendant had lost her Local Branch Membership Rights in 2014 (when she moved beyond Branch boundaries) without subsequently re-acquiring them. It also held that, even if the third defendant did occupy the office of Development Vice President of the Mosman West Branch because of the operation of clause 4.1.4 of the Constitution, that fact did not, via clause 21.5.8(3) of the Constitution, entitle her to represent the Branch as a member of the Selection Committee.

CONSIDERATION

Justiciability

69. The Constitution of the Liberal Party of Australia, NSW Division in its present form is substantially in the same form as that considered by Palmer J in Coleman v Liberal Party of Australia, NSW Division (No 2) [2007] NSWSC 736; 212 FLR 271, albeit incorporating subsequent amendments.

70. For substantially the same reasons given by Palmer J, I determine that the plaintiff’s claim for declaratory relief is justiciable.

71. Nevertheless, an enduring statement of principle to be derived from Cameron v Hogan (1934) 51 CLR 358 is that the court should not enter upon political controversy (if at all) beyond an extent necessary to determine a civil right of an established or analogous kind or derived from legislation. Disputation within a voluntary association – particularly disputation of a political or theological character – is generally best resolved within the membership of the association.

72. The form of the Constitution of the Liberal Party of Australia, NSW Division supports a finding that the orderly procedures set out in the Constitution attending the pre-selection process, and culminating in endorsement of a Liberal Party candidate at an election for the NSW Legislative Assembly, are intended to be legally binding as between members of the Division. Express acknowledgment of the entitlement of participants to procedural fairness in respect of some of those procedures provides an illustration of that.

73. The justiciability of the plaintiff’s claim for relief is aided by confinement of his claim to a claim for a declaration, based upon facts not in controversy, about the proper construction of the Constitution and Regulations of the Liberal Party of Australia, NSW Division.

74. An application for coercive orders or other orders for enforcement of claimed legal rights, if made, would require consideration of factors beyond an application for declaratory relief alone. It would, for example, require close consideration of the powers of the State Executive of the Liberal Party of Australia, NSW Division.

75. In addition to a power (under clause 21.6.1 of the Constitution) to reopen nominations rather than to endorse a Selection Committee’s choice of a candidate, the State Executive has broad powers (to deal with exceptional circumstances) which the parties to these proceedings agree are not engaged in the proceedings. For example, subject to constraints (including procedural fairness constraints) for which the Constitution provides:

1. the State Executive can dispense altogether with standard endorsement procedures, or modify them, in the event that, because of electoral deadlines, an urgent decision is required: Constitution, clause 21.6.3.

2. it can also cancel any selection or endorsement of a party candidate without giving reasons: Constitution, clause 21.6.2(1).

76. Given the present ambit of the plaintiff’s claim for relief, and its character as a claim only for declaratory relief attending construction of documents, it is, in my opinion, justiciable. That is not to say, however, that the Court might not withhold relief on discretionary grounds in an appropriate case. Declaratory and injunctive orders are by nature discretionary.

The plaintiff’s first ground: the third defendant’s eligibility for membership of the Selection Committee

77. When the third defendant relocated her principal place of residence to a location outside the Federal electorate of Warringah in mid-2014, she activated clause 3.2.4 of the Constitution. She ceased to have any Local Branch Membership Rights with respect to her membership of the Mosman West Branch, subject to the exceptions set out in the sub-clauses to clause 3.2.4(1) of the Constitution.

78. Clause 3.2.4(1)(a) had no application because the third defendant had not, at that time, been a member of the Mosman West Branch for two years.

79. The only exception within which the third defendant could come, upon her relocation, was clause 3.2.4(1)(c). That sub-clause allowed the third defendant no more than three months’ grace in possession of Local Branch Membership Rights with respect to her membership of the Mosman West Branch.

80. She did not “re-acquire” those Local Branch Membership Rights merely by continuing membership of the Mosman West Branch. Clause 3.2.4(1)(a) does not assist her because the word “already” in that sub-clause is a reference to a member’s length of Branch Membership preceding relocation, not to a period of membership after relocation.

81. Clause 3.2.4 is not to be read simply by reference to a time (in the case of the third defendant, on or about 12 November 2018) when a member asserts an entitlement to Local Branch Membership Rights.

82. In my opinion, upon the proper construction of clause 3.2.4, the third defendant did not, at the time of the Selection Committee meeting of 12 November 2018 or any associated time have, and she does not now have, Local Branch Membership Rights with respect to her membership of the Mosman West Branch.

77. Reinforcement for this conclusion can be found in clause 2.4.7 of the Constitution insofar as it contemplates that an applicant for membership of an ordinary Branch must generally join his or her Local Branch, and that exceptional treatment requires “undue hardship”, a written application by the applicant to the State Director, and a special resolution of the State Executive.

78. In my opinion, the fact that the third defendant was ostensibly elected to the office of Development Vice President of the Mosman West Branch in May 2018 and, by operation of clause 4.1.4 of the Constitution may be taken as occupying that office notwithstanding a want, in fact, of an entitlement to Local Branch Membership Rights, does not carry with it an entitlement to serve as a member of a Selection Committee as a representative of the Branch. Such an entitlement is a Local Branch Membership Right.

79. Clause 21.5.8(3) of the Constitution does not operate, in conjunction with clause 4.1.4(3) or otherwise, to overcome the third defendant’s disentitlement (by reason of clause 3.2.4(1)) to Local Branch Membership Rights. Clause 21.5.8(3) is directed to identification of selectors chosen by a Branch (in this case the Mosman West Branch), not to circumvention of the limitation on the rights of members in an ordinary Branch to members of the Branch resident locally.

80. Accepting that the plaintiff was denied procedural fairness in decision-making by the Disputes Panel (if not also the State Director) about the third defendant’s eligibility for membership of the Selection Committee, and assuming that the first defendant’s application for a second review may otherwise have been deficient in form, the Court’s conclusion that, upon the proper construction of the Constitution of the Liberal Party of Australia, NSW Division, the third defendant had no entitlement to serve as a member of the Selection Committee is fatal to the plaintiff’s first ground of challenge to the State Director’s declaration of the outcome of the selection ballot. Had the State Director and the Disputes Panel acted with stricter formality and accorded procedural fairness to all parties, the result of their deliberations (on a proper construction of the Constitution) would nevertheless have been exclusion of the third defendant from membership of the Selections Committee. Accordingly, the plaintiff’s first ground (even accepting a denial of procedural fairness) provides no foundation for a grant of the declaratory relief he seeks: cf, Stead v State Government Insurance Commission (1986) 161 CLR 141.

81. In any event, the Court would not be justified in granting the plaintiff the declaratory relief he seeks based upon a construction of the constitution which it has held to be erroneous.

The plaintiff’s second ground: the course of the selection ballot

88. Regulation 3.12.3 provides that, if no candidate for pre-selection receives an absolute majority in the first or succeeding ballots, then the procedures for which regulation 3.12.4 provides apply so as to eliminate candidates who attract the least number of votes in a ballot.

89. In my opinion, when all but one candidate is eliminated in accordance with the regulation 3.12.4 procedures, there is no necessity for the single remaining candidate to attract, or be confirmed, by an absolute majority of votes. In that last ballot (in the present case, the third ballot), a simple majority will suffice to confer an entitlement to be selected as the Selection Committee’s candidate.

90. On this construction of the governing Regulations, the plaintiff’s second ground of challenge to the State Director’s declaration of the outcome of the pre-selection ballots conducted on 12 November 2018 must fail.

CONCLUSION

91. Having determined that each of the two grounds relied upon by the plaintiff in support of his claim for declaratory relief must fail, it follows that his summons should be dismissed.

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Decision last updated: 29 January 2019