Tudehope v Liberal Party of Australia (NSW Division)

[2010] NSWSC 1210

CITATION:	Tudehope v Liberal Party of Australia (NSW Division) [2010] NSWSC 1210
HEARING DATE(S):	16 September 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	16 September 2010
DECISION:	Decline the application for interim injunction restraining holding of preselection meeting
CATCHWORDS:	EQUITY – Equitable remedies – Injunctions – Interlocutory injunctions – Relevant considerations – voluntary associations – political party – where injunction sought to restrain preselection meeting – where matter had been determining adversely to plaintiff by internal dispute resolution mechanism – Balance of convenience generally – whether the defendant would suffer prejudice where opponent is elected and gains incumbency advantage – whether court should intervene before meeting absent manifest error in internal dispute resolution processes
CATEGORY:	Procedural and other rulings
CASES CITED:	Baldwin v Everingham [1993] 1 Qd R 10 Cameron v Hogan (1934) 51 CLR 358 Coleman v Liberal Party of Australia (NSW Division) [2007] NSWSC 655
PARTIES:	Damien Tudehope (plaintiff) Liberal Party of Australia (New South Wales Division) (defendant)
FILE NUMBER(S):	SC 10/312716
COUNSEL:	John Agius SC (plaintiff) Philippe Doyle Gray (defendant)
SOLICITORS:	Low Doherty & Stratford (plaintiff) Garland Hawthorn Brahe (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Thursday, 16 September 2010

2010/312716 Damien Tudehope v Liberal Party of Australia (New South Wales Division)

JUDGMENT (ex tempore)

1 HIS HONOUR: The present application is made before formal institution of proceedings for an interim injunction, restraining the defendant Liberal Party of Australia (New South Wales Division), from holding a meeting of the selection committee for the State Electoral Conference for the electorate of Baulkham Hills, until further order, pending the hearing of the substantive application for declarations that a meeting of the Baulkham Hills Young Liberal branch held on 23 June 2010 was valid and duly elected certain selectors for the State Electoral Conference, and/or a declaration that a purported meeting of that branch conducted on 8 September 2010, which purportedly elected other selectors for the State Electoral Conference, was invalid.

2 The plaintiff Damien Tudehope is a candidate for preselection by the Liberal Party for the state electorate of Baulkham Hills. The present application is brought in circumstances of urgency since, unless restrained, the meeting of the State Electoral Conference for Baulkham Hills will proceed at 7pm this evening. Mr Tudehope approached the Court at about 3pm this afternoon with his application for interim relief, notice of which had been given to the defendant, which is represented. No criticism can be made as to the timing of the present application, since the internal dispute resolution mechanism, which both Mr Tudehope and one of his opponents invoked, concluded only with a determination of a second review panel today, the first review decision having been given on 14 September.

3 Substantively, Mr Tudehope contends, first, that the 23 June meeting was duly convened (which does not appear to be contentious); secondly, that its purported cancellation (on the day on which it was to be held) was invalid; and thirdly, that the subsequent decision of the State Director that it was invalid was itself of no effect. Accordingly, he contends that the selectors purportedly elected at that meeting, who he apprehends are favourable to him, and were duly elected as selectors entitled to vote at the State Electoral Conference.

4 Next, he contends that, at the meeting of 8 September 2010, certain persons, entitled to vote were not given notice of the meeting and, therefore, not able to vote at it and that, as a result, selectors unfavourable to him were then elected – whereas, had some of those in question voted, selectors favourable to him might well have been elected.

5 Mr Tudehope further contends that, had selectors favourable to him been elected, that might well make a decisive difference to the outcome at the State Electoral Conference meeting to be held tonight. In the first review decision, the Disputes Panel, constituted by Mr Henskens of counsel, determined some (though not all) of the issues in favour of Mr Tudehope – including, relevantly, that the election of selectors at the 8 September 2010 meeting of the Branch was not valid, with the result that there would have to be a further branch meeting and, potentially, deferment of the meeting of the Electoral Conference. The second review panel, however, concluded that the meeting of 8 September 2010 validly selected the selectors entitled to vote on behalf of the Branch at the State Electoral Conference. Both the first and second reviews rejected, for differing reasons, Mr Tudehope's contention that the meeting of 23 June 2010 had validly elected the branch's selectors.

6 For the defendant, Mr Doyle Gray does not dispute that Mr Tudehope has a seriously arguable case for final relief. In those circumstances, it is unnecessary for me to say much more about it. It is appropriate to note, however, that the internal dispute resolution process has produced differing decisions in respect of some grounds of complaint, the first review having favoured Mr Tudehope and the second having reached an opposite conclusion. Each of the review panels was constituted by counsel, the second panel by three, presided over by Senior Counsel. While I proceed on the basis, therefore, that Mr Tudehope has a seriously arguable case for final relief, I do not think that it has the appearance, at this stage, of a manifestly strong one.

7 In those circumstances, the balance of convenience is the predominant consideration.

8 Ordinarily, when the potential validity of imminent meetings is in doubt, the practice of the Court is not to restrain the convening or conduct of the meeting, but to permit it to proceed and, if appropriate, to declare it invalid after the event. The Court will depart from that course if the damage that will result from allowing the meeting to proceed would not be undone by that course and is sufficiently serious to warrant intervention by way of injunction.

9 For Mr Tudehope, I think the strongest way in which the case can be put is that, if the meeting were to occur this evening and he were unsuccessful, so as to be left in a position of having to pursue an application to have the result retrospectively declared invalid, his opponent would have the advantage of apparent, if illegitimate, incumbency at any subsequent meeting, the result of which might be that some who otherwise would have voted for Mr Tudehope, might be inclined then to vote for the incumbent. The advantage of incumbency is sufficiently well recognised that this is a permissible consideration. On the other hand, that it turned out to be an illegitimate incumbency would surely deprive it of much force.

10 Evidently, in the not dissimilar case of Coleman v Liberal Party of Australia (NSW Division) [2007] NSWSC 655, Palmer J took the view that the potential damage to the plaintiff was such that, in the absence of any significant prejudice to the defendant other than the necessity to reconvene the meeting, an injunction was warranted. In the circumstances of the present case, however, I am afraid that I take a different view. A significant reason for that is that while, for reasons that Palmer J explained, cases such as Baldwin v Everingham [1993] 1 Qd R 10 now permit the decision of the High Court of Australia in Cameron v Hogan (1934) 51 CLR 358 to be distinguished, so that disputes such as the present are regarded as justiciable, nonetheless, as His Honour said at paragraph 41, that does not mean that in such cases the Court will necessarily proceed to grant discretionary remedies of declaratory and injunctive relief. As his Honour explained, including at paragraphs 47 and 48, the internal processes of our major political parties are of public significance, and will often justify the court's attention and intervention; but one starts from a position that disputes within political parties ought to be resolved internally.

11 In this case, a process for internal dispute resolution is provided and has been invoked. It has resulted in a reasoned decision adverse to Mr Tudehope. It may well be that it turns out that that decision is wrong, but prima facie members of political parties should be regarded as bound by the internal decision-making process until, at least, they have demonstrated some sufficient error warranting intervention. Had Mr Tudehope's case been an overwhelmingly strong one, its strength may have affected the balance of convenience; but, in the present circumstances, where I conclude that it is neither plainly strong, nor plainly weak, it seems to me that the better course is that the prima facie position reached as a result of the party's internal processes should prevail, until and unless it be shown that the meeting has been invalidly convened, or that those who voted at it were not entitled to do so.

12 Accordingly, I decline the application for interim relief.

13 Upon the undertaking of Patrick Anthony Doherty to pay the appropriate filing fees, I grant leave to Damien Tudehope to file a summons in the form initialled by me, dated this day and placed with the papers. I direct that the summons be returnable before me in the Expedition List on Friday, 17 September 2010 at 10am. Noting that the defendant is before the Court, I dispense with further service of the summons.

14 The plaintiff's application has failed, but has failed on the balance of convenience, not on the question as to whether there is a serious question to be tried. In those circumstances, the appropriate order is that costs of the application should be the defendant's costs in the proceedings. If the defendant ultimately succeeds, the defendant will get the costs of this application. If the plaintiff ultimately succeeds, no-one will get the costs of this application.

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Friday, 17 September 2010

15 On 17 September, by consent the proceedings were dismissed, with no order as to costs.

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