Johnston v The Greens NSW

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Johnston v The Greens NSW [2020] NSWCA 357

Hearing dates:

7 December 2020

Decision date:

24 December 2020

Before:

Meagher JA; Brereton JA

Decision:

(1)      Extend the time for the applicant to file his summons seeking leave to appeal to 9 June 2020.

(2)      Dismiss the summons and amended summons.

(3)      Dismiss the notice of motion filed 1 December 2020.

(4)      Applicant to pay the fourth and fifth respondents’ costs of the summons and amended summons, assessed on the basis that only one set of costs may be recovered.

Catchwords:

APPEALS – leave to appeal – utility – where substantive dispute concerns Greens list of nominees for election already held – whether any utility in considering whether list of nominees determined consistently with party constitution – whether dispute likely to recur – whether any errors sufficiently arguable to justify leave

COSTS – party/party – exceptions to general rule that costs follow the event – public interest – where proceedings had a “public interest” element – whether arguable error in primary judge declining to make no order as to costs

COSTS – party/party – multiple parties – whether arguable error in allowing multiple sets of costs to defendants with similar interests

Legislation Cited:

Associations Incorporation Act, s 26(1)

Cases Cited:

Cameron v Hogan (1934) 51 CLR 358; [1934] HCA 24

People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157

Racing NSW v Fletcher (No 2) [2020] NSWCA 67

Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category:

Principal judgment

Parties:

Daryl Lindsay Johnston (Applicant)
The Greens NSW Incorporated (First Respondent)
Christopher Maltby (Second Respondent)
Amalina Wallace (Third Respondent)
David Shoebridge (Fourth Respondent)
Abigail Boyd (Fifth Respondent)
Dawn Walker (Sixth Respondent)
Riki Scanlan (Seventh Respondent)
David Mallard (Eighth Respondent)
Christopher David Harris (Ninth Respondent)

Representation:

Counsel:
Applicant self-represented
A Mitchelmore SC (Fourth and Fifth Respondents)

Solicitors:
Applicant self-represented
Deutsch Miller (Fourth and Fifth Respondents)

File Number(s):

2020/52723

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2019] NSWSC 215; [2020] NSWSC 10

Date of Decision:

6 March 2019; 16 January 2020

Before:

Robb J

File Number(s):

2019/67490

Judgment

1. THE COURT: This application for leave to appeal arises out of the resignation on 20 December 2018 of Mr Jeremy Buckingham MP as a member of the first respondent, The Greens NSW, a political party registered under Part 6 of the Electoral Act 2017 (NSW). At that time, Mr Buckingham held the third position in The Greens NSW’s list of nominees for the New South Wales Legislative Council election to be held on 23 March 2019. The first respondent took the view that there was no provision of its constitution addressing how the casual vacancy was to be filled, and simply moved the fourth candidate…