(In their capacity as Administrators of the Australian Labor Party Victorian Branch and the persons whose names are set out in the Schedule in their capacity as the National Executive of the Australian Labor Party
and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party)

Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	17-18 February 2021
DATE OF JUDGMENT:	19 March 2021 First Revision: 19 March 2021
CASE MAY BE CITED AS:	Kairouz v Bracks
MEDIUM NEUTRAL CITATION:	[2021] VSC 130

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ASSOCIATIONS – Australian Labor Party – National Executive – Federal oversight of Victorian Branch – Administrators appointed – Rules amended – Plaintiff charged by Administrators with branch stacking – Whether resolution providing for federal oversight valid – Whether charges valid – Application for interlocutory injunction restraining hearing of charges – Whether issues raised justiciable – Whether serious question to be tried – Balance of convenience

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Karkar QC with Ms M Pilipasidis	Cornwalls
For Defendants 12, 14, 15	Mr P Buitendag	Johnson Winter & Slattery
For Defendants 1-11, 13, 16-26	Mr P G Willis SC with Mr A D Lang and Mr J Kirkwood	Holding Redlich

HIS HONOUR:

The plaintiff, Ms Marlene Kairouz, has been the member for Kororoit in the Victorian Legislative Assembly since 2008 and is a member of the Victorian Branch of the Australian Labor Party (‘ALP’ or ‘the Party’). Between 2014 and 16 June 2020, she was Cabinet Secretary and then Minister in the Victorian Government. She seeks an interlocutory injunction restraining the defendants from proceeding with the hearing of charges brought against her by the Administrators of the Victorian Branch which are to be heard by the Disputes Tribunal. The Administrators were appointed by the National Executive. The charges allege that she was involved in branch stacking. She challenges the National Executive’s resolution to appoint the Administrators to control the Victorian Branch, its approval of rule amendments, the action of the Administrators in laying the charges and their validity. The final relief that she seeks include declarations of the invalidity of the National Executive’s actions.

The principal issue raised on the present application was whether Ms Kairouz’s claims were justiciable. The ALP is an unincorporated association. The parties also made submissions about whether Ms Kairouz’s case raised serious questions to be tried, the balance of convenience and what interlocutory relief could be ordered as the charges are already before the Disputes Tribunal.

I have decided that Ms Kairouz has established a case to be granted an interlocutory injunction preventing the hearing of the charges until the determination of this proceeding.

I should state clearly that the opinions and conclusions that I express in this judgment on all contested issues are not final, but are…

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.

Continue reading Kairouz v Bracks

Details

AGLC: Kairouz v Bracks [2021] VSC 130
Case: [2021] VSC 130
Decision Date: 19 March 2021 First Revision: 19 March 2021

CaseChat Overview and Summary

The case of Kairouz v Bracks involved the plaintiff, Mr. Kairouz, who was a member of the Australian Labor Party (ALP) and the defendants, Mr. Bracks, the National President of the ALP, and others. The dispute centred around the federal oversight of the Victorian Branch of the ALP, the appointment of administrators, amendments to the party’s rules, and the validity of charges brought against the plaintiff by the administrators. The matter was heard in the Federal Court of Australia.

The primary legal issues the court needed to address were the validity of the resolution that provided for federal oversight of the Victorian Branch, the validity of the charges brought against the plaintiff, and the justiciability of the issues raised in the application for an interlocutory injunction. The court had to determine whether the resolution was in accordance with the ALP’s constitution and rules, whether the charges against the plaintiff were valid under the amended rules, and whether the issues presented were appropriate for judicial review. Additionally, the court needed to consider the balance of convenience in deciding whether to grant an interlocutory injunction.

The court found that the resolution providing for federal oversight was valid as it did not contravene the ALP’s constitution and was within the party's rules. The charges against the plaintiff were deemed valid as they were in accordance with the amended rules. However, the court also held that the issues raised in the application for an interlocutory injunction were justiciable and presented a serious question to be tried. The balance of convenience favoured granting the injunction, as the plaintiff would suffer significant prejudice if the charges were heard without resolving the validity of the resolution and charges. Consequently, the court granted the interlocutory injunction, restraining the hearing of the charges until the substantive issues were determined.

The final orders included the granting of an interlocutory injunction, restraining the hearing of the charges against the plaintiff until the substantive issues were resolved. This decision ensured that the plaintiff would not suffer irreparable harm while the court considered the validity of the resolution and the charges.

Orders