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

1. 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.

2. 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.

3. 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.

4. 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

5. 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.

6. The summons seeks this relief:

1 A declaration pursuant to s 75 of Supreme Court Act 1970 (NSW) that the second defendant (The Greens NSW) had not properly selected a candidate consistent with the party's governing instruments for the upcoming 2025 Sydney Federal election due to disability discrimination of a prospective nominee (Anton Tutoveanu) in the pre-selection process conducted between 4th October 2024 and 12th November 2024.

a. That the pre-selection committee for the Sydney electorate and associated local groups had breached the party's Constitution by not providing a reasonable adjustment in the form of an extension of time for a disadvantaged nominee to provide a valid working with children check.

b.   That the Sydney Federal Preselection Rules – 2025 were breached by not re-drawing the internal selection due to lack of diversity within the announced nominee list.

c. That the first defendant (Luc Velez) had engaged in aiding and abetting disability discrimination pursuant to the Disability Discrimination Act 1992 (Cth) by continuing to campaign for his candidacy after becoming aware of the formal complaint that substantiated his invalid selection.

2 An order pursuant to s 65 of Supreme Court Act 1970 (NSW) for the second defendant to fulfil duty its duty in submitting a valid candidate to the Australian Electoral Commission for the Sydney electorate before the close of nominations at midday on Thursday 10th April 2025.

3 An injunction pursuant to s 66 of Supreme Court Act 1970 (NSW) for the first defendant Mr Velez to cease making the representation that he is The Greens candidate for the 2025 Sydney Federal election.

4   No damages are sought.

5   Costs are sought.

7. While no order to this effect is sought, the assumption underlying Mr Tutoveanu's application is that the practical result would be a new nomination process in which Mr Tutoveanu would be a candidate.

8. Given the urgency created by the deadline, the Court made these directions:

The Court

1   Notes that the plaintiff intends to apply for a fee waiver for which reason the Court does not require an undertaking to pay filing fees, grants leave to the plaintiff to file in Court the summons and the affidavit of Anton Tutoveanu.

2   Dispenses with any requirements for further service of the affidavit and summons.

2   Directs the plaintiff to provide an outline of submissions to the defendants and the associate to Kunc J by 5pm today.

3   Direct the plaintiff to provide to the defendants and the associate to Kunc J an outline of updated submissions by 9am, 9 April 2025

4   Direct the defendants to serve and file by email to the associate to Kunc J an outline of submissions and affidavits by 1pm on 9 April 2025

5   Fixes the summons for hearing before the Duty Judge on Wednesday, 9 April 2025 at 2pm

6   Direct that these orders be entered forthwith.

9. Those directions were complied with and I heard the summons between 2pm and 3.35pm yesterday. At 3.55pm I informed the parties that the summons would be dismissed and that I would make orders and deliver reasons this morning. These are the reasons. The facts, which I find to be as set out in [10] to [22] below, were not in dispute.

Facts

10. On 4 October 2024, Mr Seamus Lee, the Sydney preselection returning officer for the Greens, sent this email to members (emphasis added):

“Nominations for preselection to stand as the Greens candidate at the next federal election for the division of Sydney have now opened. Any current Greens NSW member may nominate for preselection. Nominations for Preselection close 5PM 16 October.

Members whom are eligible to vote in the preselection are members whom are within the borders as defined by the recent NSW redistribution conducted by the AEC.

To nominate members must submit the following documents as described in the Preselection Rules

•   Nominee acknowledgement of accountability declaration

•   Nominee preselection questionnaire and statutory declaration

•   Federal Government Nominee Section 44 questionnaire

•   A valid NSW Working With Children Check

•   A valid insolvency check obtained within the last 3 months

Candidates may also supply a 1 A4 Page candidate statement and a photo to be distributed to members.

Following the close of nominations there is a three week cooling off period during which the political risk assessment process as described in the rules will be undertaken.

There will be a candidate forum on the 9th November. Further details will be supplied in a later update.

If any member wishes to vote via post rather than online, members should reply via email by no later than 5pm 16 October indicating they wish to vote via post.

If members have any questions please do not hesitate to ask”.

11. On 16 October 2024, the closing date for nominations, at 3.44pm, Mr Tutoveanu sent this email to Mr Lee attaching some of the documents required under the relevant rules (which are set out in [24] below). However, the email did not include a current Working With Children Check (WWCC). The email said:

“Hello,

I am interesting in nominating as a pre-selection candidate.

I had a hearing today which I had to attend and so I'm still filling out the forms for nomination.

I am also waiting for a WWCC to validate.

Is there chance for an extension to the submission deadline?

I note the committee is aiming for a diverse selection of candidates particularly in terms of gender.

I identify as intersex/transgender.”

12. At 3.53pm, Mr Lee responded:

“Hi Anton

I am going to consult with my deputies and let you know

Regards

Seamus”.

13. Mr Tutoveanu did not hear anything further from Mr Lee about the request for an extension of the nomination deadline.

14. On 26 October 2024, Mr Tutoveanu received this group email from Mr Lee:

“Dear Anton

Nominations for preselection for the federal seat of Sydney have now closed. The following members have nominated as candidates to be preselected.

Luc Velez

The Political Risk Assessment Process Panel (PRAPP) have provided the following statement in regards to Luc’s candidature

The PRAPP Committee do not consider there to be any political risk with Luc Velez, and confirm his eligibility to stand for preselection in the 2025 Sydney Federal Campaign.

Nick Ward

The Political Risk Assessment Process Panel (PRAPP) have provided the following statement in regards to Nick's candidature

The PRAPP Committee do not consider there to be any political risk with Nicholas Ward, and confirm his eligibility to stand for preselection in the 2025 Sydney Federal Campaign.

Preselection Forum

There will be a preselection forum for members to be able to ask questions of the prospective candidates

The details of the forum are:...

Voting

We will be using the election buddy online voting system as part of this preselection process. Voting will open at 8pm on the 31st October and then close at 5pm on 7th November.

If any members have any questions please get in contact with us.”

15. On 31 October 2024, Mr Tutoveanu received this group email from Mr Lee:

“You are invited to vote in the The Greens NSW - 2024 Sydney Preselection.

The voting deadline is Nov 6 2024 5:00pm GMT +10:00, Sydney.

We are using an online election system to tabulate our votes. You have been assigned a unique access key which can only be used to vote once and your voting choices will remain anonymous. Do not forward this email. Do not reply to this email to vote, as your vote will not be registered.

If you have election questions, feedback or want to be removed from future ballot lists, please email The Greens NSW Returning Officer at [email protected].…”

16. On 12 November 2024, Mr Tutoveanu received this group email from Mr Lee:

“Dear Anton

Following voting and the counting, we can advise that Luc Velez has been preselected as the Greens Candidate for the Sydney electorate at the next federal election.”

17. On 19 November 2024, Mr Tutoveanu received his WWCC.

18. Mr Tutoveanu then pursued his complaint with the Greens, contending that he had been unfairly excluded from the nomination process. A series of meetings between Mr Tutoveanu and representatives of the Greens ensued.

19. On 10 January 2025, Mr Tutoveanu received this email (January email) from the Co-Convenors of the Greens:

“I believe it was clearly stated that the Sydney Preselection will not be rerun, I also understand that you are eligible to nominate for Wentworth, this may be a way for you to get some valuable campaigning experience.

There has been a candidate preselected, your nomination was not considered as it was both late and incomplete. I do not believe that this was discriminatory, and it is entirely accurate to refer to Luc as the successful candidate. Please note that this has been announced, and the campaign has commenced.

I believe that the way forward discussed last night is fair, providing support and improvement to future processes. The next steps are effectively up to you.”

20. Mr Tutoveanu then had some further correspondence with the Greens, including serving a defamation concerns notice, but the exchanges between them appear to have ceased after 24 February 2025.

21. Nothing further happened until Mr Tutoveanu foreshadowed his application by email to my Associate on the afternoon of 7 April 2025.

22. The close of nominations to the AEC is midday today (10 April 2025). Bulk nominations by political parties were required to be lodged by midday on 8 April 2025. The Greens’ bulk nomination, including Mr Velez, was lodged on 5 March 2025.

Relevant statutory and other provisions

23. The relevant provisions of the Greens’ Constitution are (emphasis added):

“1.4.   In all the activities and appointments of The Greens NSW, attempts shall be made to ensure that there is at least 50 percent representation by women and by members from outside metropolitan Sydney and representation by minority and disadvantaged groups.

…

2.1.   The Greens NSW is composed of local groups ('member-groups'), non-group individual members ('members (non-group)') and a Delegates Council. Office-bearers, Delegates Council working groups, the NSW Young Greens and other representatives of The Greens NSW are responsible to the Delegates Council.

2.2.   The full title of the Delegates Council is The Greens NSW Delegates Council. The Delegates Council is composed of a delegate representing each member-group.

2.3.   Each member-group is responsible for its own office-bearers, finances, policy platforms and all campaigns or activities which they undertake. Member-groups shall have their own constitutions, or organisational rules, from which they shall function. Except that:

As a condition of membership of The Greens NSW they must conform to the standards required by our principle of "Grassroots Democracy". This would preclude member-groups from imposing discriminatory admission procedures, with the exception of discrimination against members of "proscribed organizations" as provided for in section 2.13.

Discrimination prohibited by the NSW Anti-Discrimination Act 1977, and the Federal Racial Discrimination Act 1975, Sex Discrimination Act 1984, and Disability Discrimination Act 1992 would be precluded and includes discrimination on the basis of race, sex, marital status, physical, intellectual, or psychiatric disability, being disfigured, homosexuality, colour, ethnic origin, immigration, pregnancy, age, HIV/AIDS.

…

11.11   The preselection of an electoral ticket for the political party The Greens NSW for the NSW Legislative Council and Commonwealth Senate, or to fill a casual vacancy being created by the departure from office of a MLC or Senator who is a member of the political party The Greens NSW, will be conducted according to the preselection rules agreed to by the Delegates Council in respect of that preselection (the "Preselection Rules"). The Preselection Rules must include provisions specifying that:..”

24. The relevant provisions of the Greens’ Sydney Federal Preselection Rules 2025 made pursuant to Clause 11.11 of the Greens’ Constitution are (emphases added):

“1.   Background:

1.1.   This process is to determine the Greens candidate for the House of Representatives electorate of Sydney (the Seat of Sydney) at the Federal election due in 2025.

1.2.   The boundaries of the Seat of Sydney shall be determined by the most recent boundaries published by the Australian Electoral Commission. A redistribution is due to be finalised by 1O October, 2024.

1.3.   Local Group in these rules means any Greens local group whose area is partly or wholly contained within the Seat of Sydney.

1.4.   The Local Groups under the current proposed boundaries are South Sydney Greens, Inner Sydney Greens, Port Jackson Greens and Petersham-Newtown Greens.

…

3.   Preselection Commencement

3.1.   Upon their appointment by the Preselection Committee, the Returning Officers shall:

3.2.   Arrange for the announcement of the Preselection to all members of the Local Groups; and

3.3.   Include information about the dates that the Preselection Committee has determined for the following:

Open of nominations

Close of nominations

Close of cooling off period

Nominee Forum(s)

Open of voting

Close of voting

Announcement of the result of the preselection; and

3.4.   Include in the announcement all relevant information on what is required for someone to be a legitimate candidate according to the Greens NSW constitution, this document and federal election law; and

3.5.   Give members the option to opt out of having their contact details being provided to preselection candidates.

…

5.   Nomination Process

5.1.   Returning Officers shall inform all eligible members of the process for nomination and provide all resources necessary to complete the nomination, including but not limited to the following:

5.1.1.   Nominee acknowledgement of accountability declaration

5.1.2.   Nominee preselection questionnaire and statutory declaration

5.1.3. Federal Government Nominee Section 44 questionnaire

5.1.4.   A valid NSW Working With Children Check

5.1.5.   A valid insolvency check obtained within the last 3 months

5.2.   Forms required for the nomination process are linked at the end of this    document.

5.3.   Before the nominations close each Nominee should submit Nominee Information to the Returning Officers.

5.4.   The Returning Officers will declare a Nominee's nomination invalid if they do not provide signed and completed forms listed in 5.1.

5.5.   Each candidate may submit one A4 page and photo as a candidate statement.

5.6.   The Preselection Committee may decide to survey candidates on policy and provide that information to the preselectors.

6.   The Political Risk Assessment Process Panel (PRAPP)

6.1.   The Local Groups will convene a PRAPP, consisting, where possible, of at least one member of each local group, to identify facts, conflicts of interests, behaviours or history that could be seen as inconsistent with Greens values or principles, as well as confirm the eligibility of Nominees as per the Australian Electoral Commission.

6.2.   The purpose of the PRAPP is not to judge the merits of respective candidates.

6.3.   The members of the PRAPP shall not be related to, nor hold any other conflict of interest with, Nominees.

7.   Probity Process

7.1.   The Probity Process begins as soon as nominations are received but no later than the close of nominations and concludes at the end of the cooling off period. Both of these dates are determined by the Preselection Committee.

7.2.   The Nominees and the PRAPP will be informed of relevant Nominee details but this information will remain confidential until the end of the cooling off period.

7.3.    The PRAPP may interview Nominees during the cooling off period.

7.4.   The purpose of an interview is to determine any political risk to a Nominee’s candidacy.

7.5.   Nominees will be provided with a list of topics and questions they will be expected to answer.

…

7.11.   The PRAPP will advise the Preselection Committee of any relevant information for the successful candidate.

7.12.   The Nominees will be announced at the end of the cooling off period. The names of any Nominees that withdrew will not be disclosed.

…

8.   Gender Equity and Diversity

8.1.   The local groups of the Seat of Sydney will strive to achieve gender parity amongst Nominees.

8.2.   In the event that, at the conclusion of the nomination period, the total pool of nominees contains more than 50% of nominees who identify as cis men, or if there is there is an obvious lack of diversity within the nominee pool, an urgent meeting of the preselection committee will be held within 48 hours to determine whether the preselection needs to be suspended and the nomination period reopened to facilitate greater diversity.”

25. The relevant provisions of the Disability Discrimination Act 1992 (Cth) (DDA) are:

4 Interpretation

(1) In this Act, unless the contrary intention appears:…

disability, in relation to a person, means:

(a)    total or partial loss of the person's bodily or mental functions; or

(b)    total or partial loss of a part of the body; or

(c)    the presence in the body of organisms causing disease or illness; or

(d)    the presence in the body of organisms capable of causing disease or illness; or

(e)    the malfunction, malformation or disfigurement of a part of the person's body; or

(f)    a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g)    a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h)    presently exists; or

(i)   previously existed but no longer exists; or

(j)    may exist in the future (including because of a genetic predisposition to that disability); or

(k)    is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability…

reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.

…

6   Indirect disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)   the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

…

27   Clubs and incorporated associations

(1)    It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is not a member of the club or association on the ground of the person’s disability:

(a)    by refusing or failing to accept the person’s application for membership; or

(b)    in the terms or conditions on which the club or association is prepared to admit the person to membership.

(2)    It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is a member of the club or association on the ground of the member’s disability:

(a)   in the terms or conditions of membership that are afforded to the member; or

(b)    by refusing or failing to accept the member’s application for a particular class or type of membership; or

(c)    by denying the member access, or limiting the member’s access to any benefit provided by the club or association; or

(d)    by depriving the member of membership or varying the terms of membership; or

(e)    by subjecting the member to any other detriment.

(4)    Neither subsection (1) nor (2) renders it unlawful to discriminate against a person on the ground of the person’s disability if membership (however described) of the club or incorporated association is restricted only to persons who have a particular disability and the first‑mentioned person does not have that disability.

Determination

26. There are a number of reasons why the Court rejects Mr Tutoveanu's summons. That rejection is based on substantial acceptance of the defendants’ submissions and rejection of Mr Tutoveanu’s submissions.

27. First and foremost is the issue of laches. Even if there were any merit in his complaints, which for the reasons which follow the Court finds there is not, Mr Tutoveanu's delay in bringing these proceedings is a complete answer.

28. Having made a complaint and engaged with representatives of the Greens, he received the January email (see [19] above). If he wished to bring these proceedings he should have done so as quickly as possible after 10 January 2025. That would have enabled both the orderly consideration of his claim and, if he were successful, sufficient time for a fresh nomination process to be conducted in accordance with the Rules.

29. However, Mr Tutoveanu accepts that he did nothing between that date and 7 April 2025. He told me that was because he was working on another case that he has before the Court, and he was weighing up his prospects of success in challenging Mr Velez’s preselection.

30. In considering delay, the Court looks at both the explanation for the delay and its impact upon the other party. Mr Tutoveanu’s explanation set out in the preceding paragraph is not an adequate explanation for the delay.

31. Even where there may be a proper explanation, the essence of laches is prejudice to the other party caused by the delay. In the present case, the Greens would suffer the irremediable prejudice of not being able to go through their constitutional process in time to nominate a new candidate before the deadline for nominations to be submitted to the AEC. They would have no candidate for the seat of Sydney.

32. That would be a result contrary to the public interest, at least because it would disenfranchise those voters in that electorate who would wish to vote for a Greens candidate as their preferred, or only, candidate. Mr Tutoveanu's answer, perhaps a surprising one from a member of a political party who presumably supports its electoral success, was that it was better in his view for there to be no candidate in the seat of Sydney rather than Mr Velez.

33. While each case turns on its own facts, as it happens the outcome in this case is similar to the decision of Robb J in Johnson v The Greens NSW [2019] NSWSC 215 at [99] - [101], insofar as the question of laches and irremediable prejudice was also sufficient in that case otherwise to disqualify the plaintiff from the relief he sought.

34. Turning to the merits, Mr Tutoveanu made it clear that his case was in contract, the relevant contract being evidenced by the Greens’ Constitution. He was not seeking to enforce the DDA. He accepted that the proper way to do that would be by initiating a complaint with the Australian Human Rights Commission and not by proceedings in this Court.

35. Mr Tutoveanu relied on what he submitted was the incorporation of the provisions of the DDA by reason of clause 2.3 of the Greens Constitution (see [23] above). I have considerable difficulty with the submission that clause 2.3 in its terms effects the wholesale incorporation of the DDA (and other legislation recited in that clause). Rather it appears that what clause 2.3 provides is that compliance with the DDA and other legislation is a consequence of conforming to the standards required by the Greens’ principle of “Grassroots Democracy”. The Court was not taken to where a statement of that principle could be found.

36. The time available has not permitted me to come to a concluded view on Mr Tutoveanu’s submission about the incorporation of the DDA. However, I will assume, without deciding, that his submission is correct. Even on that basis, Mr Tutoveanu's case has a number of difficulties.

37. First, the incorporation of the various nominated legislation is confined to precluding “member-groups” (there was no dispute Mr Tutoveanu was a member of the relevant “member-group”) “from imposing discriminatory admission procedures”. That appears, for example, to conform to the relevant prohibition in s 27 of the DDA (see [25] above) against incorporated associations (such as the Greens) engaging in discrimination in relation to admission to membership of the association.

38. So understood, Mr Tutuveanu’s case must fail because this is not a dispute about admission to membership of the Greens. I reject Mr Tutoveanu’s submission that somehow the concept of “admission to membership” could be extended to include admission to the preselection process.

39. It makes a great deal of sense that different considerations might apply when considering a candidate for nomination to public office from a pool of members which is the product of non-discriminatory admission procedures. A person may well be entitled to be admitted to membership who, for any number of reasons, might not be suitable to be elected to be a party’s candidate. That is the reality recognised by the risk assessment and probity process undertaken during the cooling off period under clauses 6 and 7 of the Rules (see [24] above).

40. Second, Mr Tutoveanu says, and the Court does not doubt, that he suffers from a "medical condition". However, the Court has no evidence as to what that medical condition is. While it will be apparent from the correspondence that I have set out above (see [11] above) that Mr Tutoveanu identifies as transgender/intersex, I did not understand him to be putting that such identification was the “medical condition” to which he was referring. Whatever maybe the case, the evidence does not permit the Court to conclude that Mr Tutoveanu suffers from a “disability” as defined in s 4(1) of the DDA (see [25] above) if it otherwise applied by incorporation into the Greens’ Constitution.

41. Third, there is a real question as to what was the discriminatory conduct to which Mr Tutoveanu was subjected. He relied on s 6 of the DDA (see [25] above) and the Greens adhering to the requirement to submit the completed nomination by 16 October 2024. He accepted, correctly in my respectful view, that the mere requirement for potential candidates to provide a WWCC could not be in and of itself discriminatory. He rightly identified that there was obviously an interest in a political party, particularly one that included a probity process for its candidates, to be assured that a candidate was eligible for a WWCC. Or, perhaps more pertinently, it would be relevant to a political party to know if there was something about a candidate that rendered them ineligible for a WWCC.

42. As I ultimately understood Mr Tutoveanu's case on discrimination, it was as follows. Mr Tutoveanu told the Court, and I accept, that he no longer had a driver’s licence because he had surrendered it due to his medical condition. He was unable to obtain a WWCC promptly because he did not have a form of officially recognised identification that would enable him to make the application for a WWCC. In the ordinary course, a driver’s licence would have been sufficient. This meant that Mr Tutoveanu had to take steps to obtain an alternative form of government issued identity document which he could then submit as part of his application for a WWCC. He also told me that he had in fact previously held a WWCC. Nevertheless, obtaining the identity document took time, and it was because of that delay that he was unable to comply with the nomination timetable that had been announced by the Greens.

43. In giving his explanation, the course of argument clarified that the precise act of discrimination upon which Mr Tutoveanu relied was that the Greens had adhered to the advertised closing date for nominations and had failed to give him more time in which to provide the necessary documentation, being the WWCC. The Greens had failed therefore to make a “reasonable adjustment” for the purposes of the DDA. If that is the act of discrimination, then in my respectful view, having regard to the language of s 6, the connection with any alleged disability and the alleged indirect discrimination is too remote: a medical condition (assumed to be a disability) which had caused him to surrender his driver’s licence, so that he had to obtain alternative identification in order to lodge a complete nomination, which resulted in a delay which the Greens had failed to accommodate.

44. However, if the analysis in the preceding paragraph is wrong, there are still two other difficulties.

45. First, Mr Tutoveanu was unable to point to any power in the Rules (or any other constitutional Greens document) that would have enabled the relevant officers to extend the time for the nomination process to accommodate Mr Tutoveanu’s request.

46. Second, assuming the incorporation of s 6 of the DDA into the Constitution and the Rules, I accept Mr Santucci's submission that the Greens had discharged their onus under s 6 to demonstrate that the adherence to the requirement (being the closing date for nominations) was reasonable “in the circumstances of the case” for at least two reasons. First, there was no power under the Rules to extend the time at the request of a potential candidate. Second, and perhaps even more importantly in practice, there are the facts that the timetable for the nomination had been announced publicly, had been complied with by others and was within hours of concluding when Mr Tutoveanu had made his request for an extension. There can be no doubt that Mr Tutoveanu did not help his cause by waiting until the last afternoon of the nomination period to make his request, a delay he did not seek to explain or justify.

47. Mr Tutoveanu also relied on what he alleged to be non-compliance with clause 8.2 of the Rules, which I set out again here for convenience:

“8.   Gender Equity and Diversity

8.1.   The local groups of the Seat of Sydney will strive to achieve gender parity amongst Nominees.

8.2.   In the event that, at the conclusion of the nomination period, the total pool of nominees contains more than 50% of nominees who identify as cis men, or if there is there is an obvious lack of diversity within the nominee pool, an urgent meeting of the preselection committee will be held within 48 hours to determine whether the preselection needs to be suspended and the nomination period reopened to facilitate greater diversity.”

48. The difficulty in the present case is a dearth of evidence concerning the application of that rule in this case. Mr Tutoveanu told me that the pool of nominees ultimately consisted of two persons who identified as "cis men". That was not contested by the defendants. However, the Court was not taken to any evidence of whether any “urgent meeting of the preselection committee” took place under clause 8.2. However, even assuming that no such meeting took place, it is clear from the terms of clause 8.2 that it would still have been open to the preselection committee to proceed with those candidates who had nominated for preselection. So much is apparent from the discretion reposed in the committee "to determine whether the preselection needs to be suspended and the nomination period reopened to facilitate greater diversity".

49. It may be, and could have been in this case, that notwithstanding the identification of the two nominees as "cis men" that they had other qualities which might have satisfied the preselection committee of adequate diversity. The point for present purposes is that given the discretionary nature of the outcome under clause 8.2 even if it applied, in the absence of detailed evidence about the two nominees and what in fact happened, the Court is not prepared to find that non-compliance with clause 8.2 (if it had been such) would be a sufficient basis to vitiate the nomination process. This might not have been the Court’s conclusion if clause 8.2 was expressed in mandatory terms so that if it was engaged, then the preselection committee would have been required to reopen the nomination period.

50. Finally, there are two additional discretionary reasons why the Court refuses relief.

51. First, the evidence discloses that, unsurprisingly, since January 2025 the Greens have spent considerable time, effort and (I therefore infer) money in promoting Mr Velez’s candidature. This includes the printing and erection of posters and flyers, the undertaking of mail outs and door knocking activities, and other activities typical in the lead up to an election. All of that expenditure and effort would amount to nothing and go to waste were Mr Tutoveanu to obtain the relief that he seeks.

52. Second, the Court would not make orders which have as their implicit purpose to allow Mr Tutoveanu to participate in the nomination process in circumstances where there is a real doubt over Mr Tutoveanu's eligibility to be nominated for election to the Commonwealth Parliament by reason of s 44 of the Commonwealth Constitution. That section includes:

44. Disqualification

Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or …

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

53. The disqualification operates at the point of nomination: Re Canavan (2017) 263 CLR 284 at 313-314; [2017] HCA 45 at [72].

54. It is not appropriate that I make any final determination on the question of Mr Tutoveanu’s eligibility for nomination and election to the Commonwealth Parliament. I am not to be taken as doing so. It is sufficient for me to conclude, as I do, that there is real doubt over his current eligibility which would require close examination.

55. There is no dispute that Mr Tutoveanu was born in Romania. The evidence includes a statutory declaration that he made on 8 April 2025 (being after the nomination period closed) which includes “I denounce my Romanian citizenship which is given as a birth right according to Romanian laws and cannot be recognised as retracted by the Romanian Government”. Mr Tutoveanu accepted that he had done no more than make that statement because, as I understood him, he thought that was all that he could do and that it reflected his understanding of Romanian law.

56. The Court was provided with English translations of two documents:

1. The Constitution of Romania downloaded from the website of the Presidency of Romania; and

2. Act No. 21/1991 on Romanian Citizenship (Citizenship Act) downloaded from a website which described itself as “A Global Law and Policy Database operated by the UN High Commissioner for Refugees (UNHCR)”.

57. The Court finds that each of those websites is a publication that appears to be a reliable source of information such that those documents are admissible as evidence of foreign law, being statutes of Romania, in accordance with s 174(1)(b) of the Evidence Act 1995 (NSW). As such, the Court is entitled to find, and does find, as a matter of fact that the relevant law of Romania is as set out in the Constitution of Romania and the Citizenship Act. The Court does not require other expert evidence to prove that law: Re Tang (Deceased) (2017) 52 VR 786; [2017] VSCA 171 at [64]. See also J McComish, ‘Pleading and Proving Foreign Law in Australia’ (2007) Melbourne University Law Review 400 at 424-424.

58. The Constitution of Romania includes:

ARTICLE 5

Citizenship

(1)   Romanian citizenship can be acquired, retained or lost as provided by the organic law.

(2)   Romanian citizenship cannot be withdrawn if acquired by birth.

59. The Citizenship Act includes:

CHAPTER V

Loss of Romanian citizenship

Art. 24. – Romanian citizenship shall be lost in the following cases:

a)   withdrawal of Romanian citizenship;

b)   approval of renunciation of Romanian citizenship;

c)   other cases provided in the law.

…

B.   Approval of renunciation of Romanian citizenship

Art. 27. – For justified reasons, renunciation of Romanian citizenship may be approved for persons aged 18 or older who:

a)   do not have the capacity of accused or defendants in criminal proceedings and are not under an obligation to serve any criminal sentence;

b)   are not being prosecuted for debt towards the State, towards natural or legal persons in Romania or, while having such debt, pays it or provides appropriate guarantees that it will be paid;

c)   has acquired a different citizenship or has applied to obtain it and has the assurance that he or she will obtain it.

…

CHAPTER VI

The procedure for withdrawal of Romanian citizenship and for approval of renunciation of Romanian citizenship

Art. 31. – (1) The application for renunciation of Romanian citizenship, together with the supporting documents in Art. 27, shall be submitted to the technical secretariat of the Board or to Romania's diplomatic missions or consular offices in the country where the applicant domiciles or resides.

(2)   Where documents are lacking that are needed to process the application, the chair of the Board shall issue a resolution requesting that the case record be supplemented. If the necessary documents are not transmitted within 6 months from service, the application must be dismissed as unsupported.

(3)   Where the case record includes all the documents required to process the application for renunciation of Romanian citizenship, the chair of the Board shall issue a resolution ordering that information be requested from any authorities regarding the fulfilment of the requirement in Art. 27 a) or, where appropriate, b).

(4)   The chairperson of the National Citizenship Authority shall issue an order to approve or, where appropriate, dismiss the application for renunciation of Romanian citizenship, based on a report by the Board finding the fulfilment or failure to fulfil the conditions in Art. 27.

(5)   The order by the chairperson of the National Citizenship Authority approving or, where appropriate, dismissing the application for renunciation of Romanian citizenship shall be served to the applicant by registered letter with acknowledgement of receipt.

(6)   The order dismissing the application for renunciation of Romanian citizenship may be appealed, within 15 days from service, with the Court of Appeal of Bucharest. The decision by the Court of Appeal shall be final and subject to appeal on points of law with the Administrative Disputed Claims Section of the High Court of Cassation and Justice.

(7)   Loss of Romanian citizenship by renunciation shall take place at the date when the certificate of renunciation of Romanian citizenship is issued.

(8)   Renunciation of Romanian citizenship may be proven by means of certificate issued by the secretariat of the Board, for persons who domicile in Romania, or by Romania's diplomatic missions or consular offices, for persons who domicile or reside abroad, based on the order by the chairperson of the National Citizenship Authority.

60. In short, it appears that (contrary to his understanding) Mr Tutoveanu can renounce his Romanian citizenship but that any such renunciation must be in accordance with the procedure in the Citizenship Act, and does not take effect under Romanian law until the steps set out in Article 31 are taken by the Romanian authorities. None of that has occurred in relation to Mr Tutoveanu. In those circumstances it appears that he retains his Romanian citizenship and there is at the very least a real doubt as to whether at this time or at any time in the near future Mr Tutoveanu would be eligible for nomination to election to the Commonwealth Parliament by reason of s 44 of the Commonwealth Constitution.

61. For these reasons the summons will be dismissed.

Costs

62. I have now heard the parties as to costs. The usual order is that costs follow the event and therefore the defendants are entitled to their costs. Mr Tutoveanu resisted that outcome, not least on the basis that he said costs should abide the outcome of the motion he had ready to file to seek to set aside my foreshadowed dismissal of the summons under UCPR Pt 36 r 36.15 (notwithstanding that he had not yet heard these reasons). I do not accept that submission.

63. The defendants have filed an affidavit from their solicitor setting out the costs that have been incurred and move the Court for a gross sum costs order.

64. The preconditions that would support the making of a gross sum costs order are satisfied in this case, which may be described, if I may say so without any disrespect, as a short and sharp encounter that lasted for only two days.

65. The factors supporting the making of a gross sum costs order are:

1. The order will avoid any protracted costs dispute in a matter that should not be further protracted and where the amount involved is not large;

2. It will bring finality to the proceedings, not least in circumstances where the defendants are engaged in an election campaign;

3. The Court is satisfied that it has the evidence it needs to assess the appropriate amount of costs in a way that is fair to all of the protagonists;

4. The Court is satisfied that the fees charged by the defendants’ solicitors and counsel are reasonable and have been appropriately confined, and are proportionate to, the nature and importance of the matter and the urgency with which it proceeded; and

5. The material before the Court enables it to apply what is referred to as the usual “broad brush” approach.

66. I did consider allowing Mr Tutoveanu an opportunity, even as brief as a further half hour, to go away and compose his thoughts on the question of costs, or to deal with costs on the papers. Mr Tutoveanu did not take up the offer of a short adjournment. As to proceeding on the papers, I accept Mr Santucci’s submission, not least in the face of Mr Tutoveanu having suggested that his costs submissions would include allegations against counsel for misleading conduct (of which I saw none and which Mr Tutoveanu did not specify), that it would be contrary to the overriding purpose to prolong matters by allowing the discrete question of costs to be dealt with on the papers. I am therefore satisfied it is appropriate that I should deal with costs now.

67. The total costs incurred for the defendants’ solicitors and counsel was $14,000 ex GST. However, the amount sought represents a discount of nearly 30% to $10,000 ex GST or $11,000 inclusive of GST.

68. In the ordinary course a gross sum party-party costs order will involve two discounts. The Court will first consider in a “broad brush” way the likely outcome that would have been achieved on assessment. In the Court's experience this is generally a discount of somewhere between a quarter and a third. Approximately 30%, in my respectful view, is an appropriate discount to represent what would be the likely party-party costs assessment outcome in this case.

69. In making gross sum costs orders the Court often makes a second discount to reflect the “broad brush” approach which has meant the costs debtor has not been given the opportunity of an assessment, but also to reflect that the costs creditor is achieving an earlier result than it might have otherwise. I do not propose to make such a discount in this case. That is because the case has been conducted over two days and I am satisfied that the attendances which are now the subject of the invoices attached to the defendants’ solicitor's affidavit were appropriate in all the circumstances, and not by any means excessive given the urgency with which the matter was brought on.

70. For these reasons, the Court accepts Mr Santucci’s submission that there should be a gross sum costs order in favour of the defendants in the sum of $11,000 inclusive of GST.

Conclusion

71. The orders of the Court are:

1. Summons dismissed.

2. The plaintiff pay the defendants’ costs assessed in the gross sum of $11,000 inclusive of GST.

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Amendments

15 April 2025 - Corrected 4 October 2025 to 5 October 2024 in paragraph 10

Decision last updated: 15 April 2025