Johnston v The Greens NSW

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.