Johnston v The Greens NSW - [2019] NSWSC 215

Supreme Court

New South Wales

Medium Neutral Citation: Johnston v The Greens NSW [2019] NSWSC 215
Hearing dates: 1 March 2019
Date of orders: 01 March 2019
Decision date: 06 March 2019
Jurisdiction: Equity
Before: Robb J
Decision:
(1) Order that the plaintiffs’ summons be dismissed.
(2) I will hear the parties on the issue of costs.
Catchwords:
ASSOCIATIONS AND CLUBS - general matters – interpretation of constitution - whether constitution required a recount of preselection votes in circumstances where a candidate was no longer a party member - impact of delay in bringing claim
ASSOCIATIONS AND CLUBS - jurisdiction of the courts - interference in internal management of political party registered in New South Wales under the Electoral Act 2017 (NSW) - interference in internal management of association incorporated under the Associations Incorporation Act 2009 (NSW)
Legislation Cited: Associations Incorporation Act 2009 (NSW)
Commonwealth Electoral Act 1918 (Cth)
Electoral Act 2017 (NSW)
Cases Cited: Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546
Cameron v Hogan (1934) 51 CLR 358
Coleman v Liberal Party of Australia, NSW Division (No 2) [2007] NSWSC 736; 212 FLR 271
Ehiozee v EDO Nigerian Association of New South Wales Inc [2012] NSWSC 239
Faehrmann v Vucht [2018] NSWSC 397
James v Wilson [2019] NSWSC 17
Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; [2006] FCAFC 144
Luen Fook Tong Inc v Lowe [2011] NSWSC 1004
Category: Principal judgment
Parties: Daryl Lindsay Johnston (First Plaintiff)
Christopher David Harris (Second Plaintiff)
The Greens NSW (First Defendant)
Christopher Maltby (Second Defendant)
Amalina Wallace (Third Defendant)
David Shoebridge (Fourth Defendant)
Abigail Boyd (Fifth Defendant)
Dawn Walker (Sixth Defendant)
Riki Scanlan (Seventh Defendant)
David Mallard (Eighth Defendant)
Representation:
Counsel:
M Auld (Plaintiffs)
J Kirk SC/D Hume (First, Seventh and Eighth Defendants)
R Mansted (Fifth Defendant)
Solicitors:
WM Lawyers Pty Ltd (Plaintiffs)
Marque Lawyers (First, Seventh and Eighth Defendants)
Deutsch Miller (Fifth Defendant)
Chalk & Behrendt (Sixth Defendant)

File Number(s): 2019/67490

Judgment

Introduction

The plaintiffs, Mr Daryl Lindsay Johnston and Mr Christopher David Harris, are members of the first defendant, which is the political party with the formal title of The Greens NSW.
The Greens NSW is an association incorporated under the Associations Incorporation Act 2009 (NSW) (Associations Incorporation Act). It is also a political party registered in New South Wales under Part 6 of the Electoral Act 2017 (NSW) (Electoral Act).
The only other active defendant is the fifth defendant, Ms Abigail Boyd. Ms Boyd is also a member of The Greens NSW, and is interested in these proceedings because she has been preselected to be nominated by The Greens NSW as a candidate in the forthcoming New South Wales Legislative Council elections. If the relief sought by the plaintiffs is granted, that would jeopardise her chances of retaining her pre-selection for nomination in the current order of candidates, which will affect her chances of election.
Various other parties are, as I understand it, office holders in 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.

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Details

Case: [2019] NSWSC 215
Decision Date: 06 March 2019

CaseChat Overview and Summary

In Johnston v The Greens NSW, the court was asked to determine whether the Greens NSW had to recount the votes cast in the preselection process for the 2019 federal election. The dispute arose because the applicant, Johnston, had been denied preselection and alleged that a recount was necessary to ensure the election process was conducted fairly. The matter was heard in the Supreme Court of New South Wales, Equity Division.

The central legal issue was the interpretation of the Greens NSW Constitution. Johnston contended that the constitution mandated a recount of votes in cases where a candidate was no longer a party member, while the Greens NSW argued that the constitution did not require a recount and that the delay in bringing the claim had prejudiced their ability to conduct a recount. The court had to consider the extent to which it could intervene in the internal management of a political party and whether such intervention was warranted by the constitution.

The court found that the Greens NSW Constitution did not contain a provision explicitly requiring a recount of preselection votes if a candidate was no longer a member. Furthermore, the court held that the delay in bringing the claim constituted a significant prejudice to the Greens NSW, rendering a recount impractical. The court concluded that it was not appropriate to interfere in the internal management of the party and dismissed Johnston's claim. The court's reasoning emphasised the importance of respecting the autonomy of political parties in managing their internal affairs, unless there was a clear constitutional mandate to the contrary.

The court ordered that Johnston pay the Greens NSW's costs of the proceedings. The decision underscored the limited role of the courts in intervening in the internal governance of political parties and associations, reinforcing the principle that such matters are generally to be resolved within the frameworks established by the parties' own constitutions and rules.

Orders