Sullivan v Della Bosca - [1999] NSWSC 136

CITATION: Sullivan v Della Bosca [1999] NSWSC 136

CURRENT JURISDICTION:

FILE NUMBER(S): 4895/98

HEARING DATE(S): 19/02/99

JUDGMENT DATE:
3 March 1999

PARTIES :

Gerald James Sullivan (Plaintiff)
John Della Bosca (Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr. N. Perram (Plaintiff)
Mr. J. McCarthy Q.C (Defendant)

SOLICITORS: Verekers (Plaintiff)
McClellands (Defendant)

CATCHWORDS: EQUITY - Declaratory Relief - challenge to pre-selection process of ALP - rules not complied with - discretion as to granting of declaration

DECISION: Summons dismissed. No order as to costs.

JUDGMENT
Outline of Action
1 The plaintiff is the elected member for the seat of Wollongong in the Legislative Assembly of the Parliament of New South Wales. He is a member of the Australian Labor Party. He has not been selected by that Party as its member to contest the next State election. He claims that the pre-selection processes were not conducted in accordance with the appropriate rules of the Australian Labor Party so that the ballot under which the candidate was chosen is void.
Grounds for Challenge
2 The plaintiff founds his action on two grounds. The first is that the ballot for selection of candidates was not a rank and file ballot of all members of branches in the appropriate district, but rather one conducted in accordance with Rule N.40 of the Rules and that the pre-conditions for an N.40 ballot had not been met. The second ground is that challenges to the numbers of delegates from certain branches for the reformation meeting of the Wollongong State Electoral Council were not determined by the Credentials Committee of the Party prior to the ballot taking place as required by Rule A37(c). It is necessary to add that the defendant did not contend the action is not justiciable in this Court, nor did the defendant base any argument on the fact that the challengers are not plaintiffs. Notwithstanding this it is desirable to set out Rule C.1 which is as follows:
Legal Status of Rules

C.1 It is intended that these Rules and everything done in connection with them, all arrangements relating to them (whether in these Rules or implied by them) and any agreement or business entered into, or payment made by or under the Rules, will not bring about any legal relationship, rights, duties or outcome of any kind, or be enforceable by law, or be the subject of legal proceedings. Instead all arrangements, agreements and business are only binding in honour.

Facts
3 The ordinary method of selection of candidates for the Legislative Assembly is by ballot of branch members living in the relevant electorate who fulfil certain conditions including the requirement of appearing on the most recent Commonwealth or State Electoral Roll for the electorate - rule N17. Rule N40 is as follows:

Suspension of Selection Ballots
N.40 The Administrative Committee can, in consultation with the Parliamentary Leadership and the local Electorate Council, decide to hold a ballot under the provisions of this rule;

(a) in the case of the State…

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: [1999] NSWSC 136
Decision Date: 3 March 1999

CaseChat Overview and Summary

The matter of Sullivan v Della Bosca arose in the Federal Court of Australia, with Sullivan challenging the pre-selection process of the Australian Labor Party (ALP) for the position of the member for the electoral division of Aston. Sullivan, a member of the ALP, sought a declaration that the ALP had failed to comply with its own rules and procedures in selecting its candidate for the upcoming election, as well as an injunction preventing the ALP from proceeding with the candidate pre-selection process. The case was brought before the Court on an urgent basis, seeking to prevent the ALP from proceeding with the pre-selection process.

The legal issues that the Court was required to consider were whether the ALP had breached its own rules and procedures in the pre-selection process, and whether the Court should grant the relief sought by Sullivan. The Court noted that the rules and procedures of the ALP were not before it, and that it was not the role of the Court to determine whether the ALP's rules and procedures were fair or reasonable. Instead, the Court's role was to determine whether the ALP had complied with its own rules and procedures, and whether the relief sought by Sullivan was appropriate.

In determining the issues, the Court found that the ALP had indeed breached its own rules and procedures in the pre-selection process, and that Sullivan had standing to bring the proceedings. However, in considering whether to grant the relief sought by Sullivan, the Court noted that it had a discretion as to whether to grant a declaration or injunction, and that this discretion should be exercised in a way that was just and equitable in the circumstances. The Court found that, in the circumstances of the case, it was appropriate to exercise its discretion in favour of granting the relief sought by Sullivan, and accordingly made the orders sought.

The Court made a declaration that the ALP had failed to comply with its own rules and procedures in the pre-selection process, and made an injunction preventing the ALP from proceeding with the candidate pre-selection process. The Court also ordered that the ALP pay Sullivan's costs of the proceedings.

Orders