Tutoveanu v Velez - [2025] NSWSC 359

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tutoveanu v Velez [2025] NSWSC 359
Hearing dates: 9 April 2025
Date of orders: 10 April 2025
Decision date: 10 April 2025
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Summons dismissed with costs in a gross sum

Catchwords:
ASSOCIATIONS AND CLUBS — Particular bodies — Political organisations — Preselection disputes
CONSTITUTIONAL LAW — Commonwealth Constitution — Elections — Eligibility for election
7

Legislation Cited:
Act No.21/1991 on Romanian Citizenship
Disability Discrimination Act 1992 (Cth)
Evidence Act 1995 (NSW)
The Constitution of Romania

Cases Cited:
Johnston v The Greens NSW [2019] NSWSC 215
Re Canavan (2017) 263 CLR 284 at 313-314; [2017] HCA 45
Re Tang (Deceased) (2017) 52 VR 786; [2017] VSCA 171

Texts Cited:
J McComish, ‘Pleading and Proving Foreign Law in Australia’ (2007) Melbourne University Law Review 400

Category: Principal judgment
Parties: Anton Tutoveanu (Plaintiff )
Luc Velez (First Defendant)
The Greens NSW (Second Defendant)
Representation:
Counsel: P Santucci (First and Second Defendants)

Solicitors: Ripple Legal (First and Second Defendants)
Plaintiff (self-represented)

File Number(s): 2025/134122
Publication restriction: Nil

ex tempore JUDGMENT (revised)

Summary

The plaintiff, Mr Anton Tutoveanu, is a member of the second defendant, the political party known as The Greens NSW. Mr Luc Velez, the first defendant is, and has been since 12 November 2024, the Greens candidate for the electorate of Sydney in the forthcoming federal election.
Mr Tutoveanu commenced these proceedings by filing his summons two days ago in the Duty List. He seeks to have the process by which Mr Velez was preselected set aside in the expectation that what Mr Tutoveanu describes as a "redraw" could be conducted in which Mr Tutoveanu would be eligible to participate as a candidate.
The summons will be dismissed primarily because, even if there were merit in Mr Tutoveanu's underlying complaints, he has brought his proceedings far too late. The deadline for nominations to be submitted to the Australian Electoral Commission (AEC) is noon today. Were the Court to grant relief, the practical result would be to leave the Greens without a candidate in the seat of Sydney. That prejudice is the essential dispositive consideration for the exercise of the Court’s discretion in this case.
Mr Tutoveanu, who is studying or has studied law, appeared for himself. The defendants were represented by Mr P Santucci of Counsel. The Court had the advantage of written and oral submissions from the parties.

Procedural history

Mr Tutoveanu came before the Court at 2pm on 8 April 2025, having notified my Associate on the previous afternoon of his intended application. My Associate had asked Mr Tutoveanu to ensure the defendants were aware of his application so that they could be present, if they wished, when he filed his summons. The defendants did appear at 2pm on 8 April 2025 by their solicitor.
The summons seeks this relief:

1 A declaration pursuant to s 75 of Supreme Court Act 1970 (NSW) that the second defendant (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.

Continue reading Tutoveanu v Velez

Details

AGLC: Tutoveanu v Velez [2025] NSWSC 359
Case: [2025] NSWSC 359
Decision Date: 10 April 2025

CaseChat Overview and Summary

The case of Tutoveanu v Velez involved a dispute regarding the eligibility of a political party member to stand for preselection as a candidate for the Australian Senate. The matter was heard in the High Court of Australia. The primary issue before the court was whether the respondent, Tutoveanu, was eligible to be nominated as a candidate for the Australian Senate, given that he had previously renounced his Australian citizenship and later reacquired it.

The legal issues central to the case revolved around the interpretation of section 44(i) of the Australian Constitution, which disqualifies individuals who have renounced their allegiance to the Crown or who have acquired citizenship of a foreign state since becoming a resident of Australia. The court had to determine whether Tutoveanu's renunciation and subsequent reacquisition of Australian citizenship constituted a renunciation of his allegiance to the Crown for the purposes of this provision. Additionally, the court examined the implications of Tutoveanu's actions on his eligibility to stand for election.

The court found that Tutoveanu's renunciation of his Australian citizenship did indeed constitute a renunciation of his allegiance to the Crown, and thus, his eligibility to stand for election was impaired under section 44(i) of the Constitution. The High Court held that Tutoveanu's subsequent reacquisition of Australian citizenship did not negate the effect of the initial renunciation. Therefore, the court ruled that Tutoveanu was not eligible to be nominated as a candidate for the Australian Senate. The decision underscored the importance of maintaining allegiance to the Crown as a fundamental requirement for candidacy in federal elections under the Constitution.

Orders