John Davey and Australian Electoral Commission John Bell OTHER PARTY
[2013] AATA 794
[2013] AATA 794
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3923
Re
John Davey
APPLICANT
And
Australian Electoral Commission
RESPONDENT
And
John Bell
OTHER PARTY
DECISION
Tribunal Deputy President J W Constance
Date 11 November 2013 Place Melbourne 1.Mr Paul Morgan is made a party to the proceeding.
2.The applications of Mr Stuart Horrex, Mr Hayden Ostram-Brown, Mr Paul Cole, Mr Matthew Burke, Mr David Elwood, Dr James Page, Mr Paul Young, Ms Paulene Hutton and Mr Drew Simmons to be made parties to the proceeding are refused.
..........[sgd J W Constance].................
Deputy President J W Constance
CATCHWORDS
PRACTICE AND PROCEDURE – joinder applications – whether interests of the joinder applicants are affected by the decision – Tribunal’s discretion to make applicants parties to the proceedings
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 30(1A)
Commonwealth Electoral Act 1918 (Cth) ss 134, 162, 166
CASES
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250
Re Price and Official Trustee in Bankruptcy (1998) 49 ALD 785
REASONS FOR DECISION
INTRODUCTION
Since 1984 Australian Democrats has been a registered political party in accordance with the provisions of the Commonwealth Electoral Act 1918 (Cth). A registered political party is required to nominate a Registered Officer whose name is entered on the Register of Political Parties maintained by the Electoral Commissioner.
Section 134 of the Act sets out a procedure by which a registered political party is able to request the Commissioner to change the details of the Registered Officer on the Register.
On 30 October 2009 the name of John Charles Bell (the Other Party in this application) was recorded on the Register as the Registered Officer of Australian Democrats.
On 28 June 2013 an application was made to the Commission to change the Party’s Registered Officer from Mr Bell to Mr Paul Morgan. On 10 August 2013 the Commission refused the application. The reason given was that, in the view of the Commission, the meeting which purported to appoint Mr Morgan was not a valid meeting of the National Executive of the Party.
On 12 August 2013 Mr Davey applied to the Tribunal to review the decision of the Commission. Mr Davey is the Deputy National President of the Party.
An urgent hearing of the application was listed for 14 August 2013. The hearing did not proceed as Mr Bell was joined as a party to the proceeding and was successful in his application to have the hearing adjourned to a date to be fixed.
Since the hearing was adjourned several members of the Party have applied to be joined as a party to the proceedings. These persons are:
·Mr Stuart Horrex
·Mr Paul Morgan
·Mr Hayden Ostram-Brown
·Mr Paul Cole
·Mr Matthew Burke
·Mr David Elwood
·Dr James Page
·Mr Paul Young
·Ms Paulene Hutton
·Mr Drew Simmons.
LEGISLATION
Subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) provides:
Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
CONSIDERATION
In relation to each of the applicants, two issues arise for consideration.
(1)Are the interests of the applicant affected by the decision?
(2)If so, should the Tribunal exercise its discretion to make the applicant a party to the proceedings?
Are the interests of all, or any, of the applicants affected?
The Applicants to be joined fall into three groups:
(a)all of the Applicants for joinder are members of the National Executive of the Party;
(b)Mr Morgan, whose registration as the Party’s Registered Officer has been refused by the Commission;
(c)Mr Horrex and Mr Brown, who were elected as Office Bearers of the Party by the National Executive at the meeting which the Commission decided was invalid.
To determine whether a person’s interests are affected by a decision being reviewed by the Tribunal it is necessary to look at the legislation under which the decision was made. In Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd Gummow J. said:
The day is long gone when there was any general presumption that in such statutes [i.e., those identifying persons having standing to seek administrative or judicial review of government action] the “interests” concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms “affect” and “interest” are to be seen in the light of the scope and purpose of the particular statute in issue.[1]
[1] (1994) 49 FCR 250, 272.
Section 162 of the Commonwealth Electoral Act provides that a person is not capable of being elected as a Senator or a Member of the House of Representatives of the Commonwealth Parliament unless duly nominated. If a candidate is endorsed by a political party for an election the nomination form must be signed by the Registered Officer: section 166.
The National Executive is responsible for the management of the Party’s business. By reason of the importance of the role of the Registered Officer in the nomination of the Party’s candidates for an election, I am satisfied that each of the members of the National Executive has interests which are affected by the decision under review.
Apart from his interests as a member of the National Executive, Mr Morgan’s interests are affected as he is the person nominated to be the Registered Officer and whose name the Commission refused to register. There is no dispute between the parties that this is so.
I do not accept the argument that Applicants’ interests were affected by reason of the Commission deciding that the meeting at which they were elected to their respective positions on the National Executive, was invalid. Although this was a finding of the Commission, it does not bind the Party or the members of the National Executive. Such a question can only be decided in a legally binding manner by a Court.
I find support for this conclusion in the Tribunal’s decision in Re Price and Official Trustee in Bankruptcy[2] in which the Tribunal said:
It is neither proper nor fair that the applicant’s appeal for a merits review of a decision of the trustee in bankruptcy should be used by the ASC to achieve a result which it could achieve by commencing its own action – in either civil or criminal proceedings – and which could be determined in a court where the rules of evidence apply.
Should the Tribunal exercise its discretion to make all, or any, of the Applicants parties to the proceedings?
[2] (1998) 49 ALD 785, 788.
As Mr Morgan is the person whose name will be entered on the register if the decision under review is set aside, it is clear that he should be made a party to the proceedings. The outcome of these proceedings directly affects him personally. All parties agree that it is appropriate that he be made a party.
In the circumstances of this application I have decided that the Tribunal’s discretion should not be exercised in favour of making the remaining members of the National Executive parties to the proceeding.
The Applicant for the review of the Commission’s decision, Mr Davey, is the Deputy National President of Australian Democrats. At the hearing of the various applications to be made a party, all but one of the applicants, Dr Page, indicated that they supported the submissions of Mr Davey that they be joined and that they did not wish to be separately heard. Dr Page appeared at the hearing and supported the submissions of Mr Davey.
Part of Mr Davey’s submission was that it was likely that he and all of the Applicants to be made a party would be represented by the same Solicitors and Counsel at the final hearing. He could not foresee any difference arising between them. In these circumstances I am satisfied that the interests of the Applicants for joinder, other than Mr Morgan, will be adequately represented by Mr Davey. I have taken into account also that to join an additional nine parties would unduly add to the complexity, the length and the costs of the proceeding.
CONCLUSION
Mr Paul Morgan will be made a party to the proceeding.
The applications of the remaining applicants to be made parties to the proceeding will be refused.
I certify that the preceding 22 (twenty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance .
...........[sgd].......................................
Administrative Assistant
Dated 11 November 2013
Date of hearing 1 October 2013 Applicant self represented Counsel for the Respondent Mr L Brown Advocate for the Respondent Mr R McClure Solicitors for the Respondent Australian Government Solicitor Advocate for the Other Party Ms N Papaleo Solicitors for the Other Party Aitkens Partners
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