MOYNIHAN SJA REASONS FOR JUDGMENT

Transcription

1 SUPREME COURT OF QUEENSLAND File No S6710 of 2003 BETWEEN: AND: RUSSELL JAMES GALT & ANOR BRUCE FLEGG & ANOR MOYNIHAN SJA REASONS FOR JUDGMENT Applicant Respondent CITATION: Galt & Anor v Flegg & Anor [2003] QSC 290 PARTIES: Russell James Galt & Anor (applicant) v Bruce Flegg & Anor (respondent) FILE NO/S: SC No 6710 of 2003 DIVISION: PROCEEDING: ORIGINATING COURT: Trial Division Application Supreme Court, Brisbane DELIVERED ON: 4 September 2003 DELIVERED AT: Brisbane HEARING DATE: 14 august 2003 JUDGE: ORDER: CATCHWORDS: Moynihan SJA Application dismissed ASSOCIATIONS AND CLUBS UNINCORPORATED ASSOCIATIONS REGISTERED POLITICAL PARTY MEMBERSHIP AND VOTING ELIGIBILITY - Where unincorporated association a political party registered under Federal and State electoral legislation Where dispute as to interpretation and meaning of rules with regard to entitlement of eligible preselectors to vote at a preselection plebiscite Whether dispute is justiciable - Whether applicant is a person aggrieved by the challenged decision.

2 2 COUNSEL: SOLICITORS: Legislation Cited Trademark Act 1955 (Cth) Cases Cited Baker v The Liberal Party of Australia (SA Division) (1997) 68 SASR 366 Baldwin v Everingham [1993] 1 Qd R 10 Cameron v Hogan (1934) 51 CLR 358 Clarke v Australian Labour Party (1999) 74 SASR 109 Colonial Gold Reef Ltd v Free State Rand Ltd [1913] 1 Ch 382 Commonwealth of Australia v Verwayen [1990] 170 CLR 394 Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 J N Taylor Holdings Ltd (In Liquidation) v Bond FC (1993) 59 SASR 432 Jones & Others v Assef [1975] 2 NSWLR 13 Re Ferro Constructions Pty Ltd (1976) 2 ACLR 18 Remfrey and Aloha Shangri-La Atlas Cruises Pty Ltd [1968] QWN 44 Robinson v ATSIC (1996) 140 ALR 641 Wall v Exchange Investment Corporation Limited [1926] 1 Ch 143 Wall v London and Northern Assets Corporation [1899] 1Ch 550 Mr W. Sofronoff Q.C. with Mr G.C. Newton for the First Applicant Mr P.D.T. Applegarth S.C. with Mr P.A. Hastie for the First Respondent Mr N.H. Ferrett for the Second Respondent William Hartigan Mr P.J. Dunning for the Second Respondents Quinn, De Wit and Cashman Mr R.T. Gaven (solicitor) for 23 Second Respondents Minter Ellison for the First Applicant Paul Everingham & Co for the First Respondent Keys Lawyers for the Second Respondent Hartigan Prentice & Co for the Second Respondents Quinn, De Wit

3 3 and Cashman Clayton Utz for 23 Second Respondents [1] The Applicants seek declarations that the First Respondent (Flegg) has not been endorsed as the Liberal Party of Australia (Queensland Division) (the party) candidate for the State seat of Moggill and that a preselection plebiscite held on 12 April 2003 (the plebiscite) selecting him as the Liberal Party candidate for the seat is void. [2] The First Applicant (Galt) is a member of the party. He was an unsuccessful candidate for preselection for Moggill in the plebiscite. The Second Applicant (Watson) is a member of the party and chairman of its Fig Tree Pocket/Chapel Hill branch. He was eligible to vote in the plebiscite and did so. [3] The First Respondent (Flegg) was the successful candidate in the plebiscite. The 46 Second Respondents are the members of the State Council of the Liberal Party, constitute its executive and as so are responsible for its overall management. [4] Twenty-three of the Second Respondents appeared by their solicitor to abide the outcome of the application and took no further part in proceedings. Another of them appeared by counsel, as did a further group of three others to make submissions against the granting of the relief sought by the Applicants. The remainder took no part in the proceedings. [5] Put shortly, the Applicants complain that, in contravention of the State Constitution of the Liberal Party (the constitution), eligible preselectors entitled to vote at the plebiscite were precluded from voting and that persons ineligible to vote in fact did so. [6] The latter complaint was made in respect of two individuals. By the time the matter was heard it was common ground that one of the individuals was eligible and the other was not. I did not understand that Galt s standing to bring these proceedings was in issue. It was submitted however that he was precluded from doing so by cl 135(g) of the constitution. Alternatively, it was submitted that the relief ought to be declined on discretionary grounds. [7] Watson s joinder as an Applicant is clearly designed to overcome any difficulty arising because Galt is precluded by cl 135(g) of the constitution from challenging the plebiscite. His standing to bring the application is in issue. [8] The party, as I have defined it, is an unincorporated association. Its affairs are regulated by the constitution. The rules of such an association do not operate to create enforceable contractual rights and duties between members or between officers and members. [9] It was held in Cameron v Hogan (1934) 51 CLR 358 that someone wishing to challenge on the basis of a breach of the rules of an unincorporated association is required to demonstrate a proprietary right or interest in the property of the association to be able to sue.

4 4 [10] It is, however, now settled that the courts can deal with a dispute concerning the rules of a voluntary, unincorporated association recognised as a political party under the relevant legislation. This is because of the legislative recognition of the role of political parties in the electoral process; e.g. Baldwin v Everingham [1993] 1 Qd R 10, Clarke v Australian Labour Party (1999) 74 SASR 109 and the cases cited at p 127 of that judgment. I did not understand this particular issue to be in issue in the proceedings and it is unnecessary to develop it further. [11] An applicant for a declaration of the kind sought here must however have standing to seek it; a sufficient or real interest is the determination of the case. An applicant must be a person aggrieved by the challenged decision. The requirements satisfying the qualification are variously stated in the cases. The requirements were canvassed comprehensively by Drummond J in Robinson v ATSIC (1996) 140 ALR 641 at [12] In order to have standing to bring a claim for relief in circumstances such as this a person must be affected by the decision beyond being a concerned member of the public. This may be the case if the decision affects the parties legal rights, including against third parties or (perhaps) affect their conduct of business or affairs; e.g. Robinson (supra) at 652. [13] Galt, in addition to being a member of the party and a member of one of the Moggill electorate branches, was an unsuccessful candidate for preselection at the plebiscite. His case is that the plebiscite was not conducted in accordance with the constitution, and this affected the outcome. His standing to bring the application was not seriously in issue and in my view he satisfies the requirements. [14] The position of Watson is different. He was a member of the party who was entitled to and did vote in the plebiscite. His rights were not affected by the matters complained of. He has no more than a general interest to have the rules of the party complied with. That does not give him standing in this application; Robinson (ante) Clarke (ante) at 137 discussing and applying J N Taylor Holdings Ltd (In Liquidation) v Bond FC (1993) 59 SASR 432. Watson s position in this case in my view lacks the qualifying matters discussed in Clarke. Clarke s exclusion from membership had consequences specifically affecting him. See also Baker v The Liberal Party of Australia (SA Division) (1997) 68 SASR 366. In my view Watson does not have standing to bring the application. [15] I turn now to the constitution and conduct of the plebiscite. The constitution provides for preselection plebiscites. Clause 135 provides that a preselection must comply with the general principles of free and democratic elections, being: and goes onto specify requirements of no particular relevance to the issues which arise here. [16] The plebiscite was held at the Brookfield Showground Hall, about 200 people attended. Attendees signed attendance lists in terms of various categories and alphabetical lists of voters were available. [17] A chairman was appointed and a returning officer to ensure the proper conduct of the preselection ballot in accordance with the Electoral Act 1992, as amended. Scrutineers were appointed by candidates, including Galt.

5 5 [18] Those entitled to vote are called eligible preselectors by the Constitution. An eligible preselector must be personally present at the plebiscite; cl 131(2)(c) of the constitution and fall into one of two categories. [19] The first category is all members of the Liberal Party on the current electoral roll for the Electorate who: - (i) Have at least 12 months current continuous party membership as recorded and listed in party head office systems; and (ii) Are recorded as enrolled on the electoral roll of the electorate in accordance with the last official roll published prior to the preselection date. (iii) Have been a member of a local branch of the Party for at least six months prior to the preselection date. It is convenient to refer to eligible preselectors in this category as electorate preselectors. [20] Members of the State Council, who by virtue of their office, are entitled to vote, constitute the second category. These are conveniently referred to as State Council preselectors. [21] Clause 136 provides in respect of State Council preselectors (c) Provided that the number of Members of State Council eligible to be a preselector under paragraphs (a) must not in any case exceed one-fifth of eligible preselectors at the preselection. One hundred and fourteen electorate and 36 State Council preselectors signed the attendance sheets. [22] It is now common ground that both State Council and electorate preselectors must be counted for the purpose of determining the one-fifth limit on State Councillor preselectors. The number of State Council preselectors permitted to vote in that capacity is then not to exceed one-fifth of the total number of eligible preselectors. [23] It is also now common ground that at the plebiscite the relevant party officers counted the number of branch preselectors entitled to vote and calculated one-fifth of that number to arrive at the number of eligible State Council preselectors who could vote. [24] Clause 135 of the Constitution relevantly provides as to the conduct of a plebiscite in these terms: (e) at the commencement of the plebiscite, the Chairman must: (i) (ii) ask all eligible preselectors and each candidate whether they are satisfied with the constitution of the plebiscite; (f) if an objection is made to the constitution of the plebiscite the Chairman must either;

6 6 (i) (ii) determine the objection; or allow the plebiscite to consider the objection and to determine it; or (g) (iii) adjourn the plebiscite and refer the objection to the Constitution and Rules Committee for advice and then Management Committee for decision; if a candidate does not make an objection to the constitution of the plebiscite, that candidate shall be deemed to have waived any right they might otherwise have had to object to the constitution of the plebiscite at a later time; [25] At the commencement of the plebiscite the Chairman reported to the effect that there were 137 eligible preselectors, 114 electorate and 23 State Councillors. The number of State Councillors was calculated in terms of the mistaken view of clause 136 (c) referred to earlier. The State Council preselectors who voted were apparently chosen by lot from the total number of State Council members present. [26] After the Chairman reported he called for objections to the constitution of the plebiscite. There was an objection made and ruled on as to the eligibility of certain young liberals. Neither Galt nor Watson raised any objection; no one objected in respect of the matters now in issue. [27] Galt and Watson depose to the effect that they were not aware of any ground for objection. Had they been aware of the inclusion of an ineligible preselector and of the position with respect to the State Council preselectors they would have objected. [28] It is probable that information, which would have revealed those matters, was at least available to them at the plebiscite. Whether either were aware or ought to have been aware of the relevant facts are contentious issues, which in my view are unnecessary to resolve. [29] I turn to consider the operation of cl 135 (g) of the constitution. It may be accepted as desirable that the rules of a political party concerned with preselection of candidates for an election are designed to effect the prompt and final resolution of disputes about preselection to minimise disruption to the campaign process. In the end however, it s a matter of the construction of the terms of the particular clause. [30] The operation of subclause 135(g), in my view, turns on the effect given to its use of the word deemed. It is trite to say that the meaning of the word is dependent on the context in which it is used. Its use has been considered and applied in a number of decisions. Although the context of its use in those cases differs it is useful to consider a number of them. [31] In Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 the High Court (Kitto J at first instance and then on appeal from his decision) considered s 53(2) of the Trademark Act 1955 (Cth). This deemed for the purposes of the Act that the date of lodgement of an application for registration of a trademark was the date of its registration; the trademark was not in fact registered until some time after the date of lodgement. It was argued that this was admissible to refute the effect of the deeming provision. The argument was rejected. In the course of an extensive

7 7 discussion (see page 65) Windeyer J referred to the use of deemed in the Act as simply the statement of an undisputable conclusion although in other contexts it may have had the affect of extending the meaning of a word or phrase. [32] In Jones & Others v Assef [1975] 2 NSWLR 13 (Needham J and then in the Court of Appeal at [1976] NSWLR 467) the clause in issue was in a contract for the sale of land. It provided that the property shall be deemed to be affected by a (defined proposal) if the purchaser produces a document the substance of which is other than that the property is not affected. The purchasers rescinded the contract in reliance on such a document. [33] The Court of Appeal upheld the decision of Needham J not to allow evidence that the property was not, in fact, affected. It concluded that on its true interpretation the production of documents satisfying the clause provided conclusive evidence of affectation. [34] My attention has been directed to a history of provisions in the articles of companies regulating voting rights at meetings to the effect votes not the subject of objection and disallowed by the Chairman were deemed valid and not reviewable; Wall v Exchange Investment Corporation Limited [1926] 1 Ch 143, Wall v London and Northern Assets Corporation [1899] 1Ch 550, Colonial Gold Reef Ltd v Free State Rand Ltd [1913] 1 Ch 382, Remfrey and Aloha Shangri-La Atlas Cruises Pty Ltd [1968] QWN 44 and Re Ferro Constructions Pty Ltd (1976) 2 ACLR 18. It has been consistently held that such a provision is conclusive if the power was exercised bona fide even if mistakenly. [35] In my view cl 135(g) is conclusive of a right to object by a candidate who fails to do so pursuant to subcl (e). In my view, the effect of cl 135(e)(f) and (g) is: An eligible preselector or a candidate may object to the constitution of a plebiscite. The chairman must then comply with subclause (f), following one of the options it offers. That is conclusive of the right of an eligible preselector to object to the constitution of the plebiscite. A candidate who does not object, as a conclusive result or an indisputable conclusion, cannot object to the composition of the plebiscite. [36] That being so, in my view the learning in respect of the concept of waiver canvassed in such cases as the Commonwealth of Australia v Verwayen [1990] 170 CLR 394 is irrelevant in this case. So too are issues such as the state of the Applicants knowledge of the matters complained of. For the same reason, it is unnecessary to canvass the events subsequent to the declaration of the plebiscite or consider whether or not there are discretionary considerations relevant to granting the declaration sought. [37] I therefore dismiss the application.