Johnston v The Greens NSW

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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…

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Details
Case
[2020] NSWCA 357
Decision Date

CaseChat Overview and Summary

The applicant, Johnston, sought leave to appeal from a decision of the primary judge concerning the Greens NSW's list of nominees for an election that had already taken place. The dispute centred on whether the list had been determined in accordance with the party's constitution. The respondents included The Greens NSW and various individuals associated with the party.

The legal issues before the Court of Appeal involved whether there was any utility in considering the substantive dispute given the election had concluded, whether the dispute was likely to recur, and whether there were sufficiently arguable errors in the primary judge's decision to justify granting leave to appeal. Additionally, the court considered whether the primary judge had erred in declining to make a "no order as to costs" ruling, particularly in light of the proceedings having a "public interest" element, and whether the primary judge had erred in allowing multiple sets of costs to defendants with similar interests.

Meagher and Brereton JJA determined that there was no utility in granting leave to appeal as the election had already occurred and the substantive dispute was therefore moot. They found that the issues raised were not likely to recur in a way that would warrant appellate intervention. Consequently, the court dismissed the summons seeking leave to appeal and the notice of motion. The applicant was ordered to pay the fourth and fifth respondents' costs of the summons and amended summons, with the proviso that only one set of costs could be recovered.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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