Counsel: MR B HAYES QC, WITH HIM MR R HARMS - Solicitors: MONTGOMERY & CO

First Defendant AUSTRALIAN LABOR PARTY (SA BRANCH):

Counsel: MR R WHITE QC, WITH HIM MR T STANLEY - Solicitors: WARD & PARTNERS

BLACK, BEN BROWNE, SUSAN CLOSE, PATRICK CONLON MP, BERNARD FINNIGAN, JOHN GAZZOLA, ROBYN GERAGHTY MP:

Counsel: MR R WHITE QC, WITH HIM MR T STANLEY - Solicitors: WARD & PARTNERS

Counsel: MR R WHITE QC, WITH HIM MR T STANLEY - Solicitors: WARD & PARTNERS

Counsel: MR R WHITE QC, WITH HIM MR T STANLEY - Solicitors: WARD & PARTNERS

Judgment No. S365

CLARKE v AUSTRALIAN LABOR PARTY (SOUTH AUSTRALIAN BRANCH), HURLEY & ORS & BROWN

[1999] SASC 365

MULLIGHAN J The plaintiff is a member of the first defendant, The Australian Labor Party (South Australian Branch) ("the SA Branch"), and a member of the House of Assembly of the South Australian Parliament. He is also a member of the Enfield Sub-Branch of the SA Branch and has declared his intention to stand for preselection as the candidate of The Australian Labor Party ("the Party") for the House of Assembly electoral district of Enfield whenever that election may occur.

The structure of the Party is comprised of a national conference at the apex of the structure with a National Executive, policy committees and a National Secretariat at the national level and State and Territory Branches at those levels. The SA Branch is the branch of the Party in this State and is an unincorporated voluntary association with its own constitution and rules, membership and executive structure. The structure of the SA Branch is the Annual Convention, a State Council, a State Executive and Sub-Branches. The second defendants are members of the Party and the SA Branch and constitute the State Executive. The third defendant is the returning officer of the SA Branch and is described in Rules of the State Branch as the Party Returning Officer.

Pursuant to R21, the "Supreme Authority" of the SA Branch is the Convention and its decisions are binding on all members of the Party. Only an Annual or Special Convention may amend, alter, repeal or add to the Constitution and Rules of the SA Branch or the Platform of the SA Branch. The Convention is held each year although there may, in addition, be Special Conventions called by resolution of the State Council or, if time does not permit, by the State Executive. The Conventions consist of delegates appointed pursuant to Rules 24 and 25. In brief terms, those Rules provide that representation at the State Conventions is on the basis of fifty per cent Trades Union delegates and fifty per cent delegates from Sub-Branches, Federal Electorate Council, Australian Young Labor and other delegates as provided in the Constitution which include office bearers of the SA Branch.

The State Council is comprised of delegates on the same basis in the same proportions. The State Executive consists of the office bearers of the SA Branch, the leader of the State Parliamentary Labor Party and fifteen other members. These other members are elected at the Annual Convention. The State Council is the governing authority of the SA Branch between conventions. Between meetings of the State Council, the State Executive is the governing authority: R21.

I shall return to relevant Rules in due course, but it may be seen that the selection of delegates and the function they perform is fundamental to the governance of the SA Branch.

In about February 1999, the SA Branch purported to admit about 2,000 persons as new members of the SA Branch from various dates in January 1999. Before that time, the total membership was about 3,500 persons Membership fees for the "new members" were paid by about eight to ten persons by a combination of cheques, cash and credit cards and the total of these fees was $41,937. It is not known at this time whether or not these fees were, in fact, paid by the eight to ten people or whether they collected the fees from the proposed new members or other persons and then forwarded them to the Head Office of the SA Branch.

There is a procedure in Rules for the election of delegates which is discussed shortly. It is convenient at this stage merely to mention some matters. The election of delegates of the Sub-Branches to the Annual Convention must be held on a Sunday in August and the following Monday: see R56(i). The Party Returning Officer may choose any such days provided he or she notifies the State Secretary by 15th June. The procedure commences with the compilation of lists of members of each Sub-Branch entitled to vote in the election of delegates. On the first working day after 8th June each year, the State Secretary of the SA Branch must post such lists to the Secretary of each Sub-Branch, Federal Electorate Council and Australian Young Labor. On 9th June 1999, the third defendant sent such lists to the secretaries of each Sub-Branch. He received objections in respect of the "new members" being included on the lists of some Sub-Branches. The grounds of the objections were that no person could become a member of the SA Branch unless that person had joined a Sub-Branch and had been duly nominated and accepted at a general meeting of that Sub-Branch and that any member who had not jointed the SA Branch on or before 9th December 1998 was not a member eligible to vote at any election of delegates to be held in August 1999, not having had the six month continuous membership by the relevant date, namely the date on which the lists of eligible members were produced.

These objections as to validity of purported membership and entitlement to vote may be seen to be of considerable importance in view of the number of "new members". The Rules upon which the objections are based are mentioned shortly.

Pursuant to R53 there is a Disputes Tribunal of the SA Branch consisting of a Chairperson initially appointed by the National Executive and subsequently by the Annual State Convention and such advisory members, not exceeding four, appointed by the Chairperson. Its functions include the consideration of any dispute or complaint referred to it by the State Executive pursuant to the Rules. Any member may make a complaint in writing to the State Secretary or State President who must report the complaint to the State Executive which may refer the complaint to the Tribunal. The Tribunal must attempt to resolve the dispute by conciliation. If it is not so resolved, the Tribunal must make a recommendation to the State Executive as to how the complaint or dispute must be resolved.

On 27th May 1999 the plaintiff and another member of the SA branch, Ms Breuer, wrote to the State Secretary, Mr Hunter, and made complaints pursuant to R53 which they described as the abuse of the Rules which in turn created disputes between members. They asserted:

"The disputes, centre on our assertions that Sub-Branches of the Party have been stacked with people who have joined the Party, some knowingly, others not knowingly, with their membership fees paid for by others, for the purpose of securing one or more groups of members in the Party a strategic advantage in terms of electing delegates from Sub-Branches to the State Convention and State Council. In the process of stacking the Sub-Branches, those who have engaged in that exercise have breached certain fundamental principles and rules of the Party by acting 'mala fide'."

They went on to give particulars of their complaints which included that the "new members" did not personally pay the membership fees and were not nominated and accepted at a general meeting of the Sub-Branch to which they had been assigned. They alleged that the overwhelming majority of the 2000 "new members" purported to join the party on or about the 26th January 1999 and that they did not pay the membership fees personally. It was alleged that in the plaintiff's own Sub-Branch of Enfield, there were 70 "new members" not one of whom attended the meeting of the Sub-Branch on 11th May 1999 having been invited to do so. Particulars of the sudden increase in "membership" in Federal Electorate Councils were given which asserted that there were 1030 new members in five such areas. Federal Electorate Councils are established by R13 and consist of members of Sub-Branches who are resident within the various Federal Electorate Divisions.

Also, the plaintiff and Ms Breuer alleged that there was evidence collected by them which they wanted to bring before the Disputes Tribunal which established that some "new members" either did not know they were joining the Party, or if they did, were persuaded to do so because their membership fees were to be paid by others. They indicated that in order to persuade the State Executive, they would submit only some of the evidence because, they said, the evidence should be placed before the Tribunal in the first instance. They enclosed two statutory declarations of persons to that effect.

They concluded their letter with the following:

"In his recent address to the May 1999 State Council Meeting, Mike Rann said in part and we quote: '.... if there is any evidence of rorting in membership recruitment then those responsible must be dealt with severely and prosecuted to the full extent of our ALP rules, because that kind of stupid behaviour is unacceptable and should not be tolerated, will not be tolerated. There are mechanisms within the party to deal with these matters and forums where concerns can and should be raised.' We now ask the State Executive to provide us with that forum, ie the Disputes Tribunal to state our case."

It may be seen that the allegations made were of a serious nature.

The State Secretary replied to the plaintiff by letter dated 31st May 1999 informing him that the State Executive had noted the allegations. He had written to the persons who had provided the statutory declarations and informed them of his intention to remove them from the membership list. The State Executive endorsed that action. The plaintiff was informed that the complaints made by him and Ms Breuer had to be resolved before the Sub-Branch elections in August and also informed him that State Executive had resolved to take the following steps, namely to call on the State Secretary to "consider" the following matters:

1 Any further specific allegations of improper branch membership - the plaintiff and Ms Breuer are invited to submit further allegations to the State Secretary within seven days.

2 Steps should be taken to re-design the membership form to include a space for the name of the person nominating a new member to be included.

3 Measures should be taken to re-vitalise branch membership. Certain such measures were mentioned.

The letter concluded with the plaintiff being urged to provide further information he might have regarding specific breaches of the Rules within seven days. It may be seen that the State Executive did not resolve to refer the complaints already made to the Disputes Tribunal.

The plaintiff and Ms Breuer responded to the State Secretary by letter dated 7th June 1999. They declined to submit further examples of breaches of the rules because, they said, they did not believe that the State Executive was capable of independently and impartially dealing with the matters which were the subject of their complaints. They said that the State Secretary had not carried out any investigation about certain matters concerning the persons who had made the statutory declarations. They also said that they would not canvas in their letter all of their reasons why they regarded the Disputes Tribunal as the only appropriate forum to resolve their complaints as those arguments were defeated along factional lines at the meeting of the State Executive. They went on to say that as the State Executive had declined to put their complaints before an "independent internal dispute resolution forum, at 'arm's length'" of the vested interests within the party, they would pursue their complaints in other forums within the party.

Ms Breuer then wrote to the National Secretary of the Party on 11th June 1999 and requested that, as a matter of urgency, he convene a meeting of the Executive Committee of the National Executive to consider a request to instruct the SA Branch to convene the Disputes Tribunal to hear their complaints. She asserted that the State Executive had denied them access to the Disputes Tribunal and natural justice. She sent to the National Secretary copies of correspondence which has been mentioned. She requested that the National Executive "quarantine" the "new members" and asserted that the action of the State Executive in refusing to convene the Disputes Tribunal effectively denied her, the plaintiff and others from pursuing a satisfactory resolution of their complaints through an impartial body, hence her requests for intervention of the National Executive.

On 16th June 1999 the plaintiff wrote to the third defendant challenging the eligibility of the "new members" to vote at the forthcoming elections for Sub-Branches and Federal Electorate Councils purportedly pursuant to R56(g) and (h). Those rules permit, inter alia, a State Member of Parliament to comment on the accuracy of lists which have been mentioned. The State Party Returning Officer must consider the amendments suggested and make an updated list for issue to the Secretary and Returning Officer of each Sub-Branch on the first working day after 8th July. R56(h) provides that when a member challenges the entitlement of another member to be included on the list of eligible voters, the challenger must provide bona fide evidence that the challenged member was not resident at the address on the list. The rule goes on to provide for the type of evidence which may be acceptable.

The plaintiff provided particulars of his complaint to the third defendant He asserted that by reason of the Rules 56(g), (j), (k) and (i) to be eligible to vote, a person must have been a continuous member for six months prior to the 9th June. Also, he submitted that a person could not be a member unless there had been nomination for membership and acceptance at a meeting of a Sub-Branch. He provided particulars of those persons within his own Sub-Branch who had not been admitted to membership in accordance with this submission.

It appears that the third defendant did not reply to this letter and did not act upon the challenge and the submissions unless it can be said that he simply rejected them.

The State Secretary wrote to the National Secretary on 17th June 1999. He enclosed copies of correspondence, presumably that which has been mentioned, and of the resolution of the State Executive to which reference has been made. He went on to say:

"I understand that you have received correspondence on this matter requesting a meeting of the National Executive Committee and I would like to lay out how the South Australian Branch is addressing these matters. Ralph Clarke and Lynn Breuer provided evidence to the Executive about three members who were allegedly joined up to the Party without their knowledge. This evidence was in the form of media reports and statutory declarations. On the basis of the media reports I wrote to the three members concerned and sought their assistance to ascertain who might have signed them up to the ALP. I also advised them that I would be removing their names from the Party's membership on the basis of these reports unless they requested otherwise. I have had no response from any of these persons. The State Executive ratified my actions in the attached resolution. In addition, the Leader of the Opposition, Mike Rann MP moved that the ALP membership application forms be redesigned to identify the person signing up the new member. This amendment was unanimously supported. The State Executive also called on Ralph Clarke and Lynn Breuer to provide any further specific evidence of alleged malfeasance so that it might be acted on before branch ballots in August. They declined to do so in subsequent correspondence (copy attached)."

The State Secretary then related the three reasons why the State Executive had declined to set up a hearing by the Disputes Tribunal. The first reason is that the Tribunal is "designed to hear and arbitrate disputes between individual members". He said that the emphasis on conciliation points to this function and that the Tribunal is not a body set up for special investigation. The second reason is that in the three cases where specific evidence had been produced, he had acted to remove those persons from membership. He said that the desired outcome was achieved and no dispute existed. The third reason is that the other allegations refer to no specific instances and are general in nature. They concern Party processes and Rules and the State Executive had referred these matters to the Rules Committee for a report before the next State Convention so that recommendations to address these concerns can be sent to the Convention as a Rule changes.

The State Secretary asserted that any complaint of a denial of natural justice could not be sustained and the SA Branch had put in place a process to address the general concerns raised by the plaintiff and Ms Breuer. As to the request of Ms Breuer that the "new members" be "quarantined", he said that this request "totally reverses the onus of proof, and concludes that all those members are guilty of rorting until proved otherwise", which he said would be a denial of natural justice. He went on to say that there is no provision in the SA Branch Rules which would allow this course of action. He submitted that the State Executive had dealt with the specific allegations properly.

It is appropriate to make two observations about this letter at this stage as it reflects the approach of the State Executive. There is no Rules Committee established by the Rules. The State Executive at a meeting on 14th July 1999 resolved as follows:

"That John Hill, member for Kaurna and former State Secretary be appointed to Chair the Rules Sub-committee Review of the Rules administration and Membership procedures of the Party and that he be empowered to receive written or oral submissions and to report back to State Executive and make recommendations to the October convention and that the Hill review proceed in camera until it reports to State Executive."

This sub-committee was to have its first meeting on 23rd July 1999. Mr Hill was not empowered to resolve a dispute about the interpretation of the Rules on the issues as to the membership raised by the plaintiff and Ms Breuer. All he could do was to report to the State Executive. Also, it may be seen that Mr Hill was to report prior to the State Convention in October so that any amendments to the Rules or recommendations could be considered at the Convention which, of course, would be comprised of many delegates who had been elected in an election in which the "new members", or some of them, had, or could have, participated.

On 21st June 1999 the State Secretary again wrote to the National Secretary. He said that he wanted to inform him of the "current membership dispute resolution process" that the SA Branch was conducting "as a routine part of the sub-branch election time table". He said that the process is enshrined in the Rules, had worked unremarkably for the last two elections and was working "equally as routinely now". He said that the plaintiff, Ms Breuer and another member were participating in the process. He went on to say:

"What is clear is that we currently have in South Australia a disputes process regarding questions of membership that is enshrined in the Rules, has operated well in the past and is operating well now. What is also clear is that those members who are advising you that they have no access to a disputes process that they have faith in are actually participating in a disputes process now. We in the South Australian branch are so used to this procedure, and so take it for granted that we often overlook it and forget that other state branches may not have a similar process."

It appears that he was referring to the process under R56(h). Of course, that process could not resolve any issues about the interpretation of the Rules as to membership and entitlement to vote.

On 28th June 1999, the State Secretary informed the plaintiff that the National Executive passed a resolution to the following effect:

"That the South Australian State Executive address and resolve the issues as raised by the L Breuer and R Clarke complaint by procedure that is reasonable and fair for the Party's interest generally as a matter of urgency. That the officers of the State Party meet with L Breuer and R Clarke to discuss their complaints."

On the same day, the State Executive passed the following resolution:

"That State Executive notes the advice of the Party Returning Officer and on behalf of all sub-branches, Federal Electorate Council and Australian Young Labor accepts as valid the current membership lists as being duly nominated and accepted. That the State Executive refer to the Party Returning Officer this determination when considering suggested amendments to lists of eligible voters."

This resolution suggests that the third defendant had rejected the plaintiff's challenge under R56(g) and (h) and had accepted that the "new members" were in fact members of the SA Branch and entitled to vote, despite the serious allegations by the plaintiff which, it seems, had not been investigated.

It seems that the President of the Morialta Sub-Branch had written to the State Secretary on 16th June 1999 with amendments to the list of members of his Sub-Branch entitled to vote in accordance with R56(g) and (h). The State Secretary wrote to him on 29th June 1999 informing him that his amendments had not been accepted because the requirement of six months' membership, which I shall mention later, did not relate to the period immediately prior to the preparation of the list, but to the period prior to the election in August. Furthermore he informed the President of that Sub-Branch of the resolutions of the State Executive on 28th June 1999 and said that "in accordance with this determination, your challenges under this rule [R5b(i) to be mentioned later] are also not accepted".

It appears that similar amendments to lists had been made by the Secretary of the Port Adelaide Federal Electorate Council and Colton Sub-Branch and the Local Returning Officer of the Florey Sub-Branch. Letters were written to them by the State Secretary on 29th June 1999 in similar terms. The Local Returning Officer of the Florey Sub-Branch also appears to have made allegations about eligibility of specific persons. The State Secretary drew his attention to R56(h) which requires the challenger to provide bona fide evidence of lack of residence and invited him to comply with the Rule.

On 7th July 1999, Officers of the SA Branch met with, and heard submissions from, the plaintiff and Ms Breuer pursuant to the resolution of the State Executive on 28th June 1999.

According to Mr Hunter, on 8th July 1999, the State Council considered the issue of membership of the SA Branch. It was understood that if the contentions of the plaintiff were correct, many persons who regarded themselves as members of the SA Branch would not be members because they had not been nominated and accepted at a general meeting of a Sub-Branch. He sought legal advice. He referred the matter to the Rules Sub-Committee which in turn referred the matter to the State Executive. On 14th July 1999 the State Executive resolved to call a Special Convention to be held on 22nd July 1999 to consider proposals to amend the Rules. Notice of the Special convention was given to members on 15th July 1999.

On 15th July 1999 the Officers of the SA Branch met and resolved as follows:

"State Executive invited Lyn Breuer and Ralph Clarke to present evidence of any allegedly improper practices to the State Secretary by 7 June, 1999. In addition Lyn Breuer and Ralph Clarke were invited to present such evidence to the Officers. The Officers met with Lyn Breuer and Ralph Clarke on 7 July, 1999. No further evidence other than those allegations already before the State Secretary were presented. The Officers have been advised of the actions taken by the State Secretary in relation to the allegations already presented and consider such actions to be appropriate. The Officers are prepared to receive and consider further evidence. Ralph Clarke and Lyn Breuer are invited to present any further evidence of improper practices to the State Secretary by 26 July, 1999. The process of consideration of these matters is to be concluded before 30 July, 1999 when the Sub-branch election process commences. Further, Ralph Clarke or Lyn Breuer are invited to make submissions to the review of the rules by the Rules Committee to be submitted to the October, 1999 State Convention."

Before setting out the proposed amendments to the Rules, it is appropriate to say a little more about the issue raised by the plaintiff concerning the interpretation of the Rules. The relevant parts of Rule 5 for present purposes are:

"Membership 5(a) Subject to the Rules, the SA Branch is open to all residents of South Australia over the age of fourteen (14) years who are prepared to accept its Constitution, Platform and Rules and who have associations with no other political party or auxiliary thereof or a proscribed organisation. (b) (i) Subject to clauses (h), (i) and (j) hereof a person must join a Sub-Branch within the State District in which the person resides, and must pay the appropriate fee and be duly nominated and accepted at a general meeting of that Sub-Branch. (ii) No person shall be a member of more than one Sub-Branch. (iii) The membership fee for members of Sub-Branches is determined by Convention and is set out in rule 77. (iv) 'A member' is a person who has paid the membership fee for the current financial year. (v) 'An unfinancial member' is a person who has paid the membership fee for the previous financial year but has not yet paid the fee for the current year. 'An unfinancial member' ceases to be a member if he or she does not pay the membership fee for the current financial year by 30th November. (vi) 'An eligible member' for the purpose of nominating for or voting in ballots other than a preselection plebiscite shall be a financial or unfinancial member who has continuous membership of at least six months. (vii) 'An eligible member' for nominating for or voting in a preselection plebiscite shall be financial or unfinancial member who has been a member for at least 13 months continuously. This rule shall be waived by the State Executive when the bondafides of the prospective candidate in other respects are in order." (c) A member shall sign an initial application for membership on a form prescribed by State Executive, but shall not be required to sign the ticket when renewing membership provided membership is continuous in accordance with the rules. (d) (i) Sub-Branch membership tickets shall expire on June 30th of each year. (e) (i) Membership may be renewed by payment of the appropriate fee to the Sub-Branch or to Head Office. (ii) In the latter case the State Secretary shall notify the Sub-Branch accordingly and remit the balance of the membership fee less the sustentation fee to the Sub-Branch. (iii) N/A (iv) The State Secretary shall notify the Sub-Branch of financial and unfinancial members. (v) The Sub-Branch shall be responsible for the renewal of the remaining unfinancial members. (vi) The Sub-Branch secretary shall forward fees and membership tickets to the State Secretary on a monthly basis. ... (h) In State Districts where there is no Sub-Branch or where it may be inconvenient for a person to attend a Sub-Branch in the State District, such person, with the approval of the State Executive, may become a member of the Party by signing an application form and paying membership fees to the Head Office. (i) (i) State Executive shall have power to permit a person, upon application of the person concerned, to become attached to a Sub-Branch outside the boundaries of the State District in which the person resides. (ii) Upon successful application under Rule (i)(i) hereof, the member concerned shall also be allocated to the District Assembly based on the Sub-Branch they have applied to be attached to. Such a member shall not have the right to hold office in a Sub-Branch or District Assembly, vote in Sub-Branch or District Assembly elections or vote in the Sub-Branch component of preselection ballots. (iii) Upon successful application under rule (i)(i) hereof, the member is eligible to join any FEC which wholly or partly covers the area covered by the Sub-Branch the member has elected to be attached to. The member must at the time of application elect which FEC they wish to belong to under this rule. Should the FEC be the one in which the member resides, such member shall have full rights normally accruing to a member at FEC meetings. Should the FEC be other than the one in which the member resides, such member shall not have the right to hold office in or vote in FEC elections, or vote in the FEC component of preselection ballots. (j) Notwithstanding Rule (i)(i) and (i)(ii) a Labor Member of Parliament, an endorsed candidate, and a spouse of a Labor Member of Parliament or candidate, shall have the right to membership of any FEC and any Sub-Branch within the State District or Federal Division the member or endorsed candidate represents and also attend and speak at any Sub-Branch, District Assembly and Federal Electorate Council in the electorate the Member of endorsed candidate represents or, in the case of a House of Assembly Member, any Federal electorate incorporating part of the State electorate represented by that Member. ... (m) (i) The State Executive shall have power to refuse membership to any person if it is satisfied that the best interests of the Party would not be served, notwithstanding the fact that such a person has been duly nominated and/or accepted by an affiliated organisation. (ii) A person who has been refused membership by the State Executive shall have the right to appeal to a State Convention. (iii) No person shall be admitted to membership of the Party if that person, while a Labor Member of Parliament, has voted contrary to a binding decision of a duly constituted meeting of the SPLP.

"77(a) (i) Sub-Branches shall pay Head Office a sustentation fee of: $20 for a member who is either a pensioner, student, unemployed or a person on a low income and $40 for all other members, which shall be paid to the Head Office within one month of its being received. This rule shall apply from 1 July, 1997. (ii) New members' tickets not lodged within one month of issue shall be treated as if issued one month prior to the date of lodgement at Head Office. (b) A Sub-Branch shall charge a membership fee of $40.00 per annum for persons in receipt of a regular income and $20.00 for persons who are pensioners, unemployed, students or not in receipt of a regular income. This rule shall apply from 1 July, 1997. Membership tickets taken in the year beginning 1 July, 1997 shall be valid until 30 June, 1998. (c) (i) At the commencement of each membership year, a District Assembly shall levy each Sub-Branch in its area a sustentation fee of ten (10) dollars. (ii) In addition each District Assembly shall have the power to impose a further levy if required."

"Constitution 7(a) (i) Subject to Rule 5, the Party shall consist of the members of Party Sub-Branches and affiliated Trade Unions, provided such members are over the age of fourteen (14) years and are not members of any other political party or auxiliary thereof or an organisation proscribed by the National Executive or National Conference. (ii) Members of Party Sub-Branches and affiliated Trade Unions, for whom sustentation fees are paid, shall automatically accept all the responsibilities of membership. (b) A Federal Electorate Council shall consist of Sub-Branch members who are residents within that Federal Division and those covered by Rule 5(h), (i) and (j). ......."

The contention of the plaintiff is that the members of the SA Branch consist of members of Trade Unions which are affiliated with the SA Branch and such persons who have been admitted to membership by a Sub-Branch. They must pledge themselves in accordance with the requirements of R5(a). Sub-Branches are established by the State Council on the recommendation of the State Executive and there must be a minimum of 25 members for a metropolitan State District and 10 members for a country State District.

The amendments to the Rules to be proposed at the Special Convention were:

"a] Rule 5(b)(i) That Rule 5(b)(i) be repealed and replaced by the following: Subject to clauses (h), (i) and (j) hereof a person must join a Sub-branch within the State District in which the person resides. b] That the following additional clauses be added to rule 5(b): Rule 5(b)(viii) Subject to sub-rule (ix) a person is admitted to membership upon completion of the application for membership form provided that the application is lodged at Head Office within one month of the application being completed, failing which the person shall be admitted to membership one month prior to the lodgment of the application at Head Office. Rule 5(b)(ix) No person shall be admitted to membership unless payment of the appropriate fee has been made and lodged at Head Office. Rule 5(b)(x) No person's membership shall be invalid because that person was not duly nominated and accepted at a general meeting of a Sub-branch. Rule 5(b)(xi) The membership of a person to whom Rule 5(b)(x) applies shall be regarded as having commenced on the day on which Head Office recorded that the membership of that person commenced. Rule 5(b)(xii) Without limiting the generality of the foregoing, for the purpose of these rules and for all purposes connected with the Party, the membership, office holdings, officer's decisions and acts of any person to whom rule 5(b)(x) applies shall be, and be deemed to be, valid and effectual. c] Rule 77(a) That Rule 77(a)(ii) be deleted and Rule 77(a)(i) becomes known as Rule 77(a)."

It may be seen that amendments in these terms would have far reaching consequences as to membership. There would be no need for nomination and acceptance at a general meeting of a Sub-Branch for members who did not attain membership through an affiliated Trades Union. Membership would be obtained merely upon completion of a membership form if lodged at Head Office and upon payment of the prescribed fee to Head Office. Membership could not be invalid because the person was not nominated and accepted at a general meeting of a Sub-Branch. Membership would be regarded as having commenced on the day upon which Head Office recorded the membership of the person as having commenced. All membership, including the impugned membership, would be deemed to be valid with the exception of those who had not purported to become members.

On 16th July 1999 the State Secretary wrote to the plaintiff and to Ms Breuer informing them of the resolution of the "Officers of the Party" on the previous day. The plaintiff and Ms Breuer did not take up that invitation at that time. On 20th July 1999 the plaintiff commenced these proceedings. The inter partes summons has since been amended. The relief sought is declarations that:

1 The Constitution and Rules of the SA branch in so far as they relate to membership cannot be amended, altered, repealed or added to with retrospective effect.

2 Any person who was admitted to membership of the SA branch on or after 9th December 1998 and whose membership has not complied with the requirements of R5(b)(i) is not a member of the SA Branch.

3 Any such person is not eligible to vote at any ballot for the election of delegates to the Annual convention or to any preselection plebiscite or Convention of the SA Branch to be held in the calendar year 1999 nor vote at that Convention.

4 Any person who was admitted to membership of the SA Branch on or after 9th December 1998 is not eligible to vote at any ballot for the election of delegates to the Annual Convention of the SA Branch to be held in the calendar year 1999 or to any preselection plebiscite or Convention of the SA Branch nor vote at that Convention.

The plaintiff also sought injunctions to prevent the SA Branch from passing at the State convention convened for 22nd July 1999, or any other Convention, resolutions having the effect of retrospectively amending, altering, repealing or adding to the provisions of the Constitution and Rules relating to membership, to restrain each Local Returning Officer from issuing ballot papers at a ballot for delegates to the Annual Convention to be held in this year or to any preselection plebiscite or convention to any person who was admitted to membership of the SA Branch on or after 9th December 1998.

The plaintiff sought interlocutory injunctions in those terms on 22nd July 1999 which were opposed by all defendants, not only on the merits but also on the ground that the subject matter of these proceedings is not justiciable. Having heard extensive argument on that day, I granted an interim injunction until 27th July 1999 restraining the SA Branch from holding the Special State convention convened for that day or any other Special Convention or any Convention for the purpose of putting the resolutions previously mentioned, or any similar resolutions amending, altering, repealing or adding to the provisions of the Constitution and Rules of the SA Branch relating to membership. I declined to make any of the other injunctions or orders sought. I intimated that the plaintiff should make available to the SA Branch all of the information and documents in his possession as to the subject matter of his complaints so that they could be investigated and, if true, appropriate action taken. He undertook to do so. For present purposes, it has not been necessary to receive evidence as to what action each of the parties has since taken.

On 27th July 1999 I intimated that I regarded aspects of the claim in the proceedings as justiciable and that it was appropriate for the Court to hear those aspects as a matter of urgency. They relate to the interpretation of the Constitution and Rules of the SA Branch and not the factual allegations about the new members. So far it has been necessary to decide whether or not those factual issues are justiciable.

I decided to hear those parts of the claim which raise questions of interpretation of the constitution and Rules of the SA Branch but reserving to the defendants the right to present further argument on the issue of justiciability. When the proceedings came on for hearing on 18th August 1999, the defendants did raise further arguments on that question with a reply from the plaintiff. I am not persuaded to a change of mind and now give my reasons for this conclusion.

Also, when the trial commenced, I received evidence by way of affidavit of Mr Hunter that he called a special meeting of the State Executive on 12th August 1999 which resolved to open nominations for some candidates for the Senate and all lower house seats in the State and Federal Parliaments held by members of the Party and all marginal seats which require a swing of less than five per cent, except for the seat of Newland. Nominations have been called for the plaintiff's seat of Enfield. It is proposed that a Special State Convention will conduct the preselection of candidates by the process of ballot of delegates who were elected in August 1997.

This development has not deterred the plaintiff in these proceedings. He does not acknowledge that such a process accords with the Rules.

Before considering the authorities and the contentions of the parties, I mention two matters. The first is the Constitution of the Australian Labor Party. It states that the Party is a democratic socialist party and, in effect, that its objectives are to be achieved by the democratic process. In 1955 the National Conference resolved:

"This Conference resolves that as a general principle it cannot concede the right of any member of the Party to initiate legal proceedings for the purpose of establishing the constitutional behaviour of the Labor Movement. We emphasise that, with a few isolated exceptions, the history of our Party discloses we have functioned on a basis of complete determination in accordance with our own rules and our own interpretation of them. We insist we must continue to create our own procedures, taking care of our own business without the introduction of lawyers and law courts."

"That Conference believes that the procedures of the Party at State and national level provide adequate opportunity for people who are dissatisfied to seek redress of grievance and calls upon all members of the Party in respect of matters in dispute to refrain from making comment outside the Party."

On 24th August 1995 the plaintiff signed a Parliamentary Candidates' Pledge in which he agreed, inter alia, to be bound by the Objective(s), National and State Platforms and Rules of the Party and by all decisions of the National Conference, Convention and State council that do not conflict with those Objective(s), Platforms and Rules.

The starting point in consideration of justiciability must be the decision of the High Court in Cameron & Ors v Hogan [1934] HCA 24; (1934) 51 CLR 358. Much attention was given in argument to this case and to Edgar & Walker v Meade [1916] HCA 70; (1916) 23 CLR 29 and Baldwin v Everingham [1993] 1 QdR 10. It is necessary to consider each of these cases in some detail. In Cameron v Hogan the respondent was a former parliamentary leader of the Party and Premier in the State of Victoria. The appellants were the members of the central executive of the Party in that State. For reasons which do not matter for present purposes, the endorsement of the respondent as a Labor candidate was withdrawn by the central executive and he was expelled from the party without giving him the opportunity of being heard or of defending himself. The respondent brought an action in the Supreme Court of Victoria claiming a declaration that he was, at all times material, and still was, a member of the Party and entitled to his rights and privileges and seeking an injunction restraining the appellants from acting on, or carrying into effect, his expulsion. At first instance, Gavan Duffy CJ found for the respondent. He concluded that the central executive had not followed the correct procedures, and the power to expel was not vested in it but in other organs of the party. He held that this amounted to an actionable branch of contract, but that the respondent had no such substantial or proprietary interest in the property of the Party as to justify a declaration or injunction and gave judgment for the plaintiff for nominal damages and costs. The High Court held that there was no breach of contract actionable at common law or in equity unless the member of a voluntary association had, under the rules, some civil right of a proprietary nature. In their joint judgment, Rich, Dixon, Evatt and McTiernan JJ expressed the reasons for this conclusion as follows at pp370-371:

"One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract."

The second reason given by them is the difficulty of framing an action by one member of a voluntary association against a large body of persons, namely the members, for damages for breach of contract. Even if the procedural difficulties could be overcome, there remained the difficulty of determining whether a breach of contract had been committed and who was responsible: see p372. The rules of the Party did not confer upon the respondent a contractual right to the performance of any particular duty by the committee. Their Honours said at p373:

"It can seldom be the true meaning of the rules of any large association of such a kind that those undertaking office thereby enter into a contract with each and every member that they will execute the office in strict conformity with the rules. If, however, it were determined that the committee or the officers of a voluntary association in attempting to exclude the member complaining, or in some other respect, had committed a breach of contract, the remaining members of the association would not be responsible."

Having described the nature of the Party, their Honours went on to say that under the Rules, the members of the Party obtain no advantage from the funds susceptible of personal enjoyment. "The funds are devoted to the promotion of the political ends for which the Party exists": p375. It was held that there could be no basis for declaratory or injunctive relief because there was no civil right of a proprietary nature proper to be protected: p377. Their Honours concluded by saying at p378:

"The organization is a political machine designed to secure social and political changes. It furnishes its members with no civil right or proprietary interest suitable for protection by injunction. Further, such a case is not one for a declaration of right. The basis of ascertainable and enforceable legal right is lacking. The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment. See Watt v MacLaughlin (1923) 1 L.R. 112, at pp116-118."

Starke J, who gave separate reasons for judgment, reached the same conclusions. He held that as "a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club": p384. There were no contractual rights to be enforced. He went on to say that "[m]embers of such associations who have grievances must resort to the remedies and the redress afforded to them by the rules of their associations, and not to the Courts of law". His Honour rejected as a basis for justiciability any entitlement of the respondent by virtue of membership of the Party to a proprietary or pecuniary right or interest which would be protected in the exercise of equitable jurisdiction as being "too unsubstantial to warrant interference by any Court by way of injunction, involving in case of disobedience, contempt and punitive orders.

The defendants contend that the present case is indistinguishable from Cameron v Hogan which is binding upon this Court and must be followed with the consequence that the issue of justiciability is foreclosed in their favour.

I mention the second reason accepted in Cameron v Hogan to deny justicability, namely the procedural difficulty in suing all of the members of a voluntary association, including that the person bringing the proceedings is also a member. This problem has been overcome in this State by R36.02(1) of the Supreme Court Rules 1987 which provides:

"(1) Any proceedings may be brought by or against a firm or society, notwithstanding that the other party is or was at any material time, a member of such firm or society."

Difficulties as to service of proceedings when the members of a voluntary association have been overcome by R15.01 which provides, inter alia, that personal service shall be deemed to have been affected upon a society as provided in specific legislation or upon the responsible officer of the society.

Nonetheless, the defendants contend that the other two reasons for denying justiciability in Cameron v Hogan apply in the present case.

The plaintiff contends that whether a member of an unincorporated association can maintain an action concerning the Rules of such an association is a matter to be determined in each particular case having regard to the Constitution and Rules of the association, the status of the association under relevant legislation and the activities and the status of the association in the general community. It is necessary to examine the authorities which are said to support these propositions.

The binding authority of Cameron v Hogan has been recognised in many cases over the years. I mention only Baldwin v Everingham [1993] 1 QdR 10 and Thornley v Heffernan (Unreported, Brownie J, Supreme Court of New South Wales, 25th July 1995) which relate to a political party and are discussed later and in this Court Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 43 SASR 121, Smith v South Australian Hockey Association Inc (1988) 48 SASR 263 and Baker v The Liberal Party of Australia (SA Division) [1997] SASC 6015; (1997) 68 SASR 366. In Plenty, although the authority of Cameron v Hogan was acknowledged, it was distinguished because, according to Jacobs J, the claimed injury to the reputation of the plaintiffs was a sufficient basis. Also, Jacobs J expressed the view that the members of the Seventh Day Adventist Church, a voluntary religious association, did contemplate the creation of legal rights inter se, or as between a member and the Church. He referred to the following passage in the Church Manual dealing with Church Discipline:

"Settlement of Grievances of Members against the Church The same principles that influence resolution of differences among members apply to the settlement of grievances of members against church organizations and institutions. A church member should not instigate litigation against any entity of the church except under circumstances where the church has not provided adequate process for orderly settlement of the grievance within the church, or where the nature of the case is such that it is clearly not within the authority of the church to settle. Settlement of Grievances of the Church Against Members There may be times when church organisations or institutions will have grievances against church members. At such times, church administrators must, in Christian forbearance, keep in mind the Biblical counsel for settling disputes among Christians and apply that counsel to the settlement of grievances of the church against its members. The church should, in preference to litigating matters in a secular court, make every reasonable effort in co-operation with the member to provide a process by which orderly settlement of the problem can be accomplished."

"While I think the Rules as a whole clearly discourage litigation, they appear to recognise a right of recourse to the Courts, if only as a last resort, and that is in my view a 'clear and positive indication that the members contemplated the creation of legal relations' sufficient to distinguish this case from Cameron v Hogan."

Matheson J distinguished Cameron v Hogan on the grounds that the plaintiff had a sufficient proprietary interest in the Church, as well as for the reasons given by Jacobs J. Olsson J held that s31 of the Supreme Court Act was a ground for distinction. That section provides:

"No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not."

"As the learned Master, in effect, pointed out such a provision is directly aimed at the very circumstance adverted to by the majority in Cameron v Hogan and focuses its attention on facets which are not necessarily dependent upon the existence of a contractual relationship emerging from rules at all. As was pointed out in authorities such as Guaranty Trust Company of New York v Hannay & Co [1915] 2 KB 536 and Loudon v Ryder (No 2) [1953] 1 Ch 423 at p429, the effect of such a provision is that the Court has power to make a declaration at the instance of a plaintiff 'though he has no cause of action against the defendant'."

The issues in Plenty arose on a strike out application and it appears that Olsson J went on to accept that the plaintiffs had an arguable case of justiciability on the basis of s31 and also on the grounds for distinction because of the existence of a proprietary right and injury to reputation.

In Smith v South Australian Hockey Association Inc, the plaintiff was unable to bring himself within any of the circumstances of justicability referred to in Cameron v Hogan. In Baker v The Liberal Party of Australia (SA Division), Bollen J also, although acknowledging the authority of Cameron v Hogan, held that as the plaintiff had not been admitted to membership of the Liberal Party, a voluntary association, no relationship known to the law ever existed between the parties, there was no proprietary interest to protect and declining to admit her to membership was not justiciable by the Courts.

I turn to the decision in Baldwin v Everingham. Dowsett J was concerned with a dispute which had arisen in the Liberal Party of Australia (Queensland Division). That party was an unincorporated association constituting the Queensland Branch of the Liberal Party of Australia regulated by its Constitution. The plaintiff sought endorsement by the Liberal Party as a candidate for election to Federal Parliament which was rejected. He asserted that there were a number of irregularities in the conduct of the endorsement procedure leading up to, and including, the resolution of the Executive of that party to reject his application. He submitted that the irregularities were in breach of the constitution of the party thereby rendering the endorsement procedure void. Dowsett J was asked to determine the question by way of declaration. The defendants opposed the claim and relied upon Cameron v Hogan. He said at p15:

"It is fair to say that in modern times, the expectation that the rules of a voluntary association will be enforced by the courts has become more widely held, at least if one is to judge by the number of occasions on which such relief is sought. Many of the procedural difficulties in so doing, as identified by the members of the High Court in Cameron v Hogan are today of reduced significance because of the expansion of the availability of declaratory relief. Further, no particular point was taken in this case as to the constitution of the action, another area of difficulty underlying the decision in Cameron v Hogan. It may also be that the existence of an appropriate proprietary right to found jurisdiction will now be satisfied if the action involves the due disposal and administration of property. See Rendall-Short v Grier [1980] Qd.R. 100 at 109 and Burton v Murphy [1983] 2 Qd.R. 321 at 325."

He held that the constitution of the Party did not have contractual effect and accepted that there was insufficient proprietary interest in the property of the Party to justify judicial intervention as was held in Cameron v Hogan. He then considered the provisions of the Commonwealth Electoral Act 1918 which he said gave statutory recognition to the existence of political parties. He said at p15:

"For a very long time, the parliamentary system functioned upon the assumption that parties had no official status in the electoral process. The Act indicates that such is no longer the case."

Dowsett J then examined provisions of the Act. He concluded, correctly in my view, that the Liberal Party was a "political party" as defined in the Act, that it was registered pursuant to the Act, that prior to registration it must provide a copy of its constitution to the Electoral Commission, indicate its name and any abbreviations of the name which it will use and state whether or not it wishes to receive public monies under Division 3 of Part XX of the Act. He then considered Part XIV of the Act which deals with the nomination of candidates for election to the Federal Parliament. Pursuant to s166 of the Act, the registered officer of a registered political party may nominate the candidates endorsed by that party for a particular election. The name of the party may be printed on the ballot papers adjacent to the name of the endorsed candidate: see s169 and s169B. Dowsett J then considered Part XX of the Act which deals with election funding and financial disclosure, including s287A which, at that time, provided that "Divisions 4 and 5 apply as if a campaign committee of an endorsed candidate or endorsed group were a division of the relevant State branch of the political party that endorsed the candidate or the members of the group". Division 2 of Part XX provides for the appointment of agents of political parties and candidates. Division 3 relates to election funding. At the time, the Act provided that candidates and registered parties may be refunded up to 60 cents for each vote obtained in the case of a House of Representatives election and 30 cents for each vote in the case of a Senate election. Under the current legislation, the entitlement is $1.50 for each first preference vote in the election for both Houses of Parliament. The maximum amount recoverable is the total of electoral expenses actually incurred. Dowsett J noted that in the case of a registered political party, all expenses incurred with the authority of the candidate are deemed to be incurred by the party and are recoverable by the party. So far as I can see, this provision is not in the current legislation. For present purposes, it is unnecessary to set out in detail the provisions of the Act as to electoral funding. It is sufficient to say that s299 of the Act provides for the payments to be made to the agent of the State branch of the party that is organised on the basis the State or Territory in which the candidate or candidates stood for election or in other circumstances to the principal agent of the party. There are other provisions relating to individual candidates and Senate elections but what has been mentioned indicates the usual basis of payments.

Dowsett J also considered Division 4 of the Act which relates to disclosure of donations and requires disclosure of all gifts received by a party or candidate during the disclosure period for the election. Division 5 requires disclosure of the electoral expenditure by both parties and candidates. His Honour said at pp17-18:

"On general principles, where an albeit voluntary association fulfils a substantial public function in our society, it may appear indefensible that questions of construction concerning its constitution should be beyond judicial resolution. It is one thing to say that a small, voluntary association with limited assets, existing solely to serve the personal needs of members should be treated as beyond such supervision; it is another thing to say that a major national organisation with substantial assets, playing a critical role in the determination of the affairs of the country should be so immune. This is what Wootten J intended in McKinnon v Grogan [1974] 1 NSWLR 295 at 297, where his Honour said of Cameron v Hogan: 'The High Court has not had occasion to re-consider it squarely, and I venture to suggest that when such an occasion does arise there will at least be some qualification of what was there said. With the greatest respect to the eminent and forward-looking judges who gave the decision, it has tended to justify judicial abdication from areas the orderly regulation of which has become of ever-increasing importance. The resultant categorization in legal analysis of a great political party, or the effective regulatory institution of a major sport in the community, with a group of friends agreeing to meet for a game of tennis, is simply inadequate. One can understand that judges, who feel so keenly the importance of standing apart and being seen to stand apart from partisan politics, would be reluctant to see the internal factional struggles of political parties brought into the courts. But the proper desire to avoid identification of the judiciary with partisan politics is not a justification for eschewing responsibility for legal questions which happen to arise in the political arena. Courts have to venture amongst political divisions in many cases, notably in deciding constitutional issues and in enforcing the rules of trade unions, and a proper discharge of the judicial function in such areas will do more for their standing and reputation for impartiality that a failure to assist in settling the legal aspects of disputes which ravage great and small institutions in the community.' Whilst I am in general agreement with these observations as a matter of sentiment, they would not necessarily justify me in refusing to follow Cameron v Hogan simply because of the passage of years since that judgment. Similar observations have been made in other jurisdictions, for example in Finnigan v New Zealand Rugby Football Union Inc [1985] NZHC 102; [1985] 2 NZLR 159, where on appeal, Cooke J said in delivering the judgment of the Court at 179: 'While technically a private and voluntary sporting association, the Rugby Union is in relation to this decision in a position of major national importance, for the reasons already outlined. In this particular case, therefore, we are not willing to apply to the question of standing the narrowest of criteria that might be drawn from private law fields. In truth the case has some analogy with public law issues. This is not to be pressed too far. We are not holding that, nor even discussing whether, the decision is the exercise of a statutory power - although that was argued. We are saying simply that it falls into a special area where, in the New Zealand context, a sharp boundary between public and private law cannot realistically be drawn.'"

Dowsett J noted similar sentiments expressed by Lord Denning MR in Breen v Amalgamated Engineering Union [1971] 2 QB 175 at p190, which need not now be repeated, and then went on to say at pp18-19:

"It is not for me sitting at first instance to determine matters of policy. The difficulties inherent in applying Cameron v Hogan to very many organisations and domestic tribunals have been considered on numerous occasions as is revealed by the cases to which I have been referred. However if Cameron v Hogan applies fairly to the circumstances of the present case, then I must apply it, leaving matters of policy for determination by the High Court itself. The question for my determination is whether or not Cameron v Hogan does apply to the present circumstances. If it were not for the statutory recognition of political parties to which I have referred in some detail, I would be compelled to the conclusion that the case does so apply. I can see no other basis for distinction between the Labor party as it was in the 1930s and the Queensland Branch of the Liberal Party as it now is. However there is a passage in the decision in Cameron v Hogan itself which is of some importance. It is the passage which cites the very principle at the heart of the case. At 372 in the judgment of the majority, their Honours cite with apparent approval an extract from a judgment of Isaacs J (as his Honour then was) in Edgar & Walker v Meade [1916] HCA 70; (1916) 23 CLR 29 at 43 as follows: 'In the case of a purely voluntary association, a Court of equity bases its jurisdiction on property, there being nothing else for it to act on. A Court of common law before the Judicature Act regarded the invalid expulsion as void, and gave no damages. So between the two jurisdictions the plaintiff could rely only on property as the basis of jurisdiction ...' Reference to Edgar & Walker v Meade discloses that Isaacs J was there concerned with the rules of a trade union registered under the provisions of the Conciliation and Arbitration Act 1904 (Cth). At 43-44, following the passage cited above, his Honour continued: 'But here the situation, in my opinion, calls for another view. This organization is the creature of the Federal Parliament for a special reason, and as incidental to a specific power in the Constitution. The incorporation of employees in such an organization is a matter of public policy, and to effectuate the object of the Act. For this purpose rules are required to be registered, and in my opinion a member or a group of members forming a branch recognized by the rules have a locus standi to assert in a competent Court their legal rights to remain members of the organization, notwithstanding an invalid resolution to expel him or them, and so exclude him or them from the status and benefits which the Act intended them to have. As to Edgar he has a proprietary right; but, as to both him and the plaintiffs in the second action, I hold their rights to sue do not in such a case as this depend on the question of property affected. The very object of the legislative provisions in incorporating such associations and facilitating the settlement of industrial disputes might be defeated if members and branches could be excluded by a governing body, contrary to rules, unless property was involved. The organization is therefore not in the same position as a voluntary club.'"

The relevant provisions of the Conciliation and Arbitration Act (Cth) 1904-1915 were then considered by Dowsett J. He noted that s55 of the Act provided for the registration of an association and said that upon registration the association became an organisation identified by the legislation acquiring perpetual succession and the power to lease, buy and sell property. Various other provisions dealt with the rules of associations and conferred certain powers on them in relation to industrial disputes. Section 69 of the Act provided for disputes between an organisation and any of its members to be decided in the manner directed by the rules and by the Court of Conciliation and Arbitration as it was known when Edgar & Walker v Meade was decided in 1916.

The Court had power to order the payment by any member of an association of a fine, penalty or subscription payable in pursuance of the rules. His Honour went on to say at p20:

"Disputes between the organisation and its members were to be settled internally pursuant to this section. Only actions to recover moneys were to be brought in the Court, a reference to the Commonwealth Court of Conciliation and Arbitration. It may be conceded that the Act more closely controlled the affairs of registered organisations than does the Commonwealth Electoral Act regulate the affairs of registered parties. The former legislation conferred a status at least akin to incorporation and there was clear recognition that some disputes between the organisation and its members would be justiciable. However it should be noted that Isaacs J did not rely upon s 69 in Edgar and Wallace (sic) v Meade."

and then expressed his conclusions at p20. He concluded that the matter was justiciable.

The plaintiff submits that I ought to follow this decision. It was followed by Brownie J in Thornley v Heffernan. In that case the plaintiff was a member of the Liberal Party of Australia, New South Wales Division. He was endorsed as a candidate of that party for election to the House of Representatives which endorsement was later cancelled. The plaintiff challenged the validity of that decision. Brownie J accepted the reasoning of Dowsett J in Baldwin v Everingham and held that the matter was justiciable.

In addition to the provisions of the Commonwealth Electoral Act which have been considered, the plaintiff relies upon the Electoral Act 1985 of this State which provides for the registration of political parties. Section 37 provides that an eligible political party may be registered under Part 6 of the Act. Section 38 provides that the Electoral Commissioner must establish and maintain a register known as the Register of Political Parties setting out a list of the political parties that are registered under the Act, which register must be open for public inspection. Section 39 provides that the application for registration may be made by the secretary of the party and must be accompanied by a copy of the constitution of the party. There is the facility for objection to registration of a political party: s41. Section 53 provides that the registered officer of a registered political party may nominate on the same nomination paper candidates endorsed by the party for election as members of the House of Assembly or the Legislative Council. If the nomination of a candidate is revoked as provided in s53, the registered officer of the political party may nominate some other person as the candidate endorsed by the party. Section 62 provides that where an application is made by a registered political party, the name of that party may be printed adjacent to the name of the candidate on the ballot paper. The advantage of this provision to a political party is obvious. It facilitates the likelihood of those wanting to vote for the party actually doing so. Pursuant to s63, a voting ticket or voting tickets may be lodged with the Electoral Commissioner in relation to a candidate or a group of candidates to whom it relates or by a registered officer of a registered political party. Division 3A of Part 10 provides for the establishment and use of a computer programme to assist in the scrutiny of votes in an election for the Legislative Council. Section 96B(3) provides that the Electoral Commissioner may only approve of such a computer programme after providing a demonstration of the use of the programme for representatives of registered political parties and if the use of the programme would produce the same result in the scrutiny of votes in an election as would be obtained if the scrutiny were conducted without computer assistance. Sections 100 and 101 provide, inter alia, that a decision by the Electoral Commissioner as to the registration of a political party may be reviewed by the Electoral Commissioner or a local court of full jurisdiction which is now the District Court. The powers of the court are set out in s101. Sections 115 and 116 provide for restrictions upon the size of electoral advertisements exhibited by a political party.

Whilst this Act does not make provision for electoral funding to political parties, it may be seen that the Act recognises political parties and contains various provisions of benefit to them and to the community in the electoral process. Important examples of this recognition are the provisions concerning nomination of candidates, the inclusion of political parties on the ballot papers and the provisions which, as has been mentioned, relate to the computer programme for the scrutiny of Legislative Council elections. To require a demonstration of a facility for use in a scrutiny to registered political parties before the facility may be used is a very significant recognition by the Legislature of political parties.

Although of a different nature than in the statutory recognition considered in Edgar & Walker v Meade, the Electoral Act is none the less statutory recognition by the South Australian Parliament of political parties which are voluntary associations.

The defendants contend that Baldwin v Everingham and Thornley v Heffernan should not be regarded as good law. It is submitted that the decision of Dowsett J in the former case was based upon a misunderstanding of the decision of Isaacs J in Edgar & Walker v Meade and the effect of the Conciliation and Arbitration Act.

Before considering this submission in detail, I mention other submissions of the defendants.

For present purposes, I accept their submission that the history of the Australian Labor Party in government Federally and in the States reveals that the status and role of the Party and its various branches was as important in 1934 when Cameron v Hogan was decided as it is now and that it may be accepted that its status, role and importance would have been known to the members of the High Court when that case was decided. It is submitted that all that has changed is the recognition of political parties in the electoral legislation and the provision of public monies to registered political parties. The defendants contend that this matter does not attract justiciability. If it were to do so, the receipt of public monies would have to change the nature or character of the association as a voluntary association. I reject that contention. It is clear from the South Australian cases which have been mentioned that the existence of a basis of justicability does not alter the character of the association as a voluntary association. It remains such although a particular issue may be justiciable.

Next, the defendants contend that the decision of the National Conference in 1955 to which reference has been made is a clear indication that the members of the Party, including the SA Branch, do not contemplate the establishment of legal relations inter se and consequently the Rules should not be treated as amounting to an enforceable contract: see Cameron v Hogan in the passage already cited at pp370-371. The resolution of the 1979 National Conference supports this view. The pledge signed by the plaintiff establishes his commitment to the Party and the SA Branch on this basis. I think that submission is correct, although I do not accept that the resolutions purport entirely to prohibit legal proceedings for the purpose of establishing the constitutional behaviour of the Party or the SA Branch. In that regard I adopt the approach of Jacobs J in Plenty which has earlier been mentioned. However, even if they do, that is not decisive of the issue of justicability even though it tends to confirm the lack of intention to establish legal relations inter se.

The defendants also contend that R36 of the Supreme Court Rules affords little assistance because it may not be invoked unless the plaintiff has a cause of action. Much depends upon what is meant by cause of action, but the significance of the rule is as has been mentioned. It removes the second basis for denying justicability in Cameron v Hogan. I refer to s31 of the Supreme Court Act mentioned by Olsson J in Plenty. The jurisdiction to make a declaration is a very wide one. The power of the court to make a declaration is only limited by the discretion of the Court. The scope of the power was discussed by the Full Court in JN Taylor Holdings Limited (In Liquidation) & Anor v Bond & Ors (1993) 59 SASR 432. King CJ, with whom Prior and Perry JJ agreed, said at pp435-436:

"Authoritative judicial statements made it clear that the jurisdiction to grant declaratory relief is very wide and that judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction: Ibeneweka v Egbuna [1964] 1 WLR 219 at 225; Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 esp per Gibbs J at 438; Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192, per Mason JA at 201. It is not necessary that the plaintiff have a cause of action against the defendant: Guaranty Trust Co of New York v Hannay and Co [1915] 2 KB 536. A statement by Lord Sterndale MR in Hanson v Radcliffe Urban district Council [1922] 2 Ch 490 at 507, quoted by Gibbs J in Forster v Jododex (supra) at 435, appeared to confine the otherwise unlimited character of the jurisdiction to cases involving 'a question of defining the rights of two parties'. As was pointed out, however, by Street CJ in Johnco Nominees Pty Ltd v Albury -Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51, that statement was made 'at a time when the declaratory jurisdiction had not achieved the full development manifested in the last 20 or 30 years'. By 1970 the Privy Council could say in Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) [1970] UKPC 12; [1970] AC 1136 at 1158 that to exclude the jurisdiction it must appear 'that the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs' [emphasis mine]. In Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (supra), Street CJ (at 53) repudiated the notion of jurisdictional cut-off points in relation to declaratory relief. Moffitt P said (at 57): 'The proper conclusion to be drawn concerning the power to make a declaration is that the jurisdiction (in the strict sense) to grant declaratory relief in a properly constituted action is very wide, so that no particular limitation can be pointed to ...' The other member of the court, Hutley JA, considered that there are limits upon the power to make declarations. The limits which he articulated went no further than that a declaration must 'be confined to those matters which have a real legal context, and to the determination of which the Court's procedure is apt' (at 61) and that it must not be a declaration as to a purely abstract or theoretical question (at 62-63). I can find no warrant for the imposition by the courts of a self-denying restriction on their jurisdiction to grant declaratory relief. In my opinion there is no jurisdictional limit. The court's power to grant such relief is 'only limited by its own discretion' (Hanson v Radcliffe (supra) at 507), and the boundaries of judicial power: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582."

"The proposition that there is no limit to the jurisdiction of the court to grant declaratory relief would be an incomplete and misleading statement of the true position unless there be added the further proposition that there are circumstances which are so contra-indicative to the exercise of the discretion in favour of the grant of declaratory relief that the existence of those circumstances would lead almost inevitably to the exercise of the discretion against the making of a declaration. Examples of such decisively contra-indicative circumstances can be found in the cases. A declaration will not be made except in matters 'which have a real legal context, and to the determination of which the Court's procedure is apt': Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (supra) per Hutley JA at 61. There must be some person who has a true interest in opposing the declaration. The question raised must not be purely theoretical. There must not only be a party with a true interest in opposing the declaration, but the plaintiff must have a real interest in having the question determined: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, per Lord Dunedin at 448. That interest may exist although the apprehended impact on the plaintiff may be no more than a future possibility: Hordern-Richmond Ltd v Duncan [1947] 1 KB 545. If, however, the determination of the question could not affect the plaintiff's legal rights or commercial or personal interests now or in the future, that is to say would 'produce no foreseeable consequences for the parties' (Gardner v Dairy Industry Authority (1977) 52 ALJR 180 at 188, per Mason J), see generally Ainsworth v Criminal Justice Commission (supra) at 581-582, the declaration would almost certainly be refused."

I reject the contention of the defendants about R36 of the Supreme Court Rules. No cause of action is required. Qualifying matters discussed in JN Taylor v Bond exist in the plaintiff.

I now turn to the defendant's contentions about Baldwin v Everingham. I have cited the passage of the judgment of Dowsett J, at pp18 and 19, where he said he was able to distinguish Cameron v Hogan because of the statutory recognition of political parties in the Commonwealth Electoral Act. In doing so he relied upon the observations of Isaacs J in Edgar & Walker v Meade, which he cited at p19.

The first point made by the defendants is that Isaacs J was discussing locus standi of the members of the trade union not justicability. Whilst Isaacs J did decide that the members of the union did have locus standi, he also decided that their complaints were justiciable. These rights to sue did not depend upon a question of property affected. As has been seen, Isaacs J said that the object of the legislative provisions in incorporating associations of the kind in that case and facilitating the settlement of industrial disputes might be defeated if members and branches could be excluded by a governing body contrary to rules unless property was involved. He said that the organisation was therefore not in the same position as a voluntary club.

The defendants contend that Dowsett J overlooked Schedule B of the Conciliation and Arbitration Act which contains the conditions to be complied with by associations applying for registration under the Act. They include that the affairs of the association shall be regulated by rules which must, in effect, contain democratic process of management. The Act provided for the registration of the rules. They have the force of law and compliance with them was mandatory: see The Tramways case (No 2) [1914] HCA 58; (1914) 19 CLR 43 and United Grocers, Tea & Dairy Produce Employees' Union of Victoria v Linaker [1916] HCA 61; (1916) 22 CLR 176. In the latter case Griffith CJ said at pp178-119:

"In my opinion the provisions of Schedule B of the Act are peremptory. Very special and important rights are conferred by the Act on a duly registered organization and its members, rights which are not merely rights inter se but against the public."

See also Federated Ironworkers' Association of Australia v The Commonwealth & Ors [1951] HCA 71; (1951) 84 CLR 265 at pp277-279 and Wiseman v Professional Radio & Electronics Institute of Australasia & Ors [1978] FCA 31; (1978) 20 ALR 545 at pp559-560.

The defendants drew attention to various provisions of the Conciliation and Arbitration Act which establish that rights were given to members of trade unions and to the unions themselves. It is unnecessary to mention those provisions as they did give those rights..

The Workplace Relations Act (Cth) 1996 covers much the same field of industrial relations as the Conciliation and Arbitration Act although in a different way and to a different effect. Like its predecessor, it provides for registration of voluntary associations of employers and employees. This Act provides for mandatory provisions in the rules of such associations and that they have the force of law.

The defendants contrast that situation with the nature of the statutory recognition in Baldwin v Everingham. The statutory requirement under the Commonwealth Conciliation and Arbitration Act was not some statutory recognition of voluntary associations, but the provisions for registration which created new rights and new benefits, including the right to obtain an industrial award and to enter into an industrial agreement and to enforce it. It entitled members to a preference in some circumstances and gave them protection of those benefits accrued by virtue of the registration as an organisation. The association could sue and be sued. It is argued that it was not statutory recognition which was important but the consequences of registration and that Dowsett J erred in his interpretation of the basis of the decision of Isaacs J. There is no requirement in the Commonwealth Electoral Act for registration of the rules of a political party. The defendants contend that if the Commonwealth Parliament wanted to give the force of law to the rules of a political party, it would have at least required the rules to be registered and regulate the ways in which the rules could be amended or altered. It is argued that by relying upon the fact of statutory recognition, Dowsett J had no regard to the rules registered under the Conciliation and Arbitration Act having the binding effect of law on the members and on the organisation itself. Furthermore, it is argued, he erred in saying that the rules of a political party must be registered under the Electoral Act.

As has been seen, Dowsett J did not say that under the Commonwealth Electoral Act, rules of a political party had to be registered. What he said was that, in effect, rules of such a party had to be registered [see p20]. Strictly speaking, it is true that the rules do not have to be registered but an application for registration by a political party for registration under the Commonwealth Electoral Act must be accompanied by a copy of the constitution of the party: s126(2)(f). Without compliance with that provision, there would not be registration of the party. That is, no doubt, the sense in which Dowsett J spoke of the rules having, in effect, to be registered and he was correct in that conclusion.

In Edgar & Walker v Meade Isaacs J was concerned with the interpretation and validity of rules of a trade union, a voluntary association registered under the Conciliation and Arbitration Act, and the validity of actions taken in expulsion of a member as well as other matters. Isaacs J accepted that the rules had, in effect, the force of law. He said at p40:

"In view of the strict and rigid adherence to original rules which is now established the law requires, it may be that this and many other organisations that have purported to alter their rules, and have made some slip in doing so, are, notwithstanding the practical adoption of the new rules, in a state of entanglement from which setting out fresh legislation can extricate them."

So, it is argued that the passage of the judgment of Isaacs J relied upon by Dowsett J in Baldwin v Everingham was misunderstood by him because he was referring to statutory recognition of the type which gave the rules of the registered association the force of law and thereby gave the members rights in law inter se and between them and the association.

I do not think any of those criticisms of the reasoning of Dowsett J are justified. The relevant provision of the Commonwealth Electoral Act and the Electoral Act 1985 do not indicate a legislative intention that the rules of a registered political party shall have the same effect as under the Conciliation and Arbitration Act or the Workplace Relations Act. I do not think that Dowsett J misunderstood the position. By referring to the statutory provisions considered by Isaacs J in Edgar & Walker v Meade, he was merely acknowledging statutory recognition of trade unions as voluntary associations in that way. In referring to the provisions of the Commonwealth Electoral Act relating to registered political parties, he was acknowledging statutory recognition of them although in a different way and for different purposes. He justifiably took the view that this legislative recognition of political parties had "taken them beyond the ambit of mere voluntary associations". There are requirements for registration. Large amounts of public money are paid to the major political parties. There is the obligation to account for that money in the sense of having to file with the Electoral Commission a return indicating how the public monies, and other monies are expended.

Division 2 of Part XX of the Commonwealth Electoral Act provides for the appointment of agents of political parties and that a Register of Party Agents be kept. Where a party, such as the Australian Labor Party, carries on activities in two or more States or Territories, it must also have an agent in respect of each of those States and Territories and such an agent must be appointed by the State branch. Payments of election funding are made to the relevant party agent and I accept that, following a Federal election, payments are made to the Principal Agent of the Party, except as is mentioned shortly.

There is a an issue between the plaintiff and the defendants as to what, if any, electoral funding has been received by the Party and the SA Branch. I asked the parties to provide a statement of agreed facts about this matter but they have not done so. The defendants provided a statement of facts by letter dated 30th August 1999 to which the plaintiff has responded by letter dated 1st September 1999.

The defendants assert that the SA Branch has not received any electoral funding under the Commonwealth Electoral Act since 31st March 1994. The last payments were with respect to the 1993 Federal election. Since that time electoral funding has been paid to the National Secretary as agent for the Party pursuant to the provisions of s299(5A) of the Commonwealth Electoral Act which provides a procedure for payments to be made to another party upon notice being given to the Electoral Commission, which means a registered political party or a State Branch of such a party. The SA Branch gave such a notice.

The plaintiff does not contest these assertions and it appears that he is prepared to accept them for present purposes. Consequently, it may be accepted that the SA Branch has, in effect, authorised any electoral funding due to it to be paid to the Party.

The Party may use the funds to defray election expenses in any place, for any electorate or in any manner as it chooses. Even where they are candidates for election to the Federal Parliament in this State, including unsuccessful candidates, it does not follow that election funding paid to the Party, or any of it, will find its way to the SA Branch.

Nevertheless, the members of the SA Branch are members of the Party. They benefit regardless of how and where the funds are disbursed. The reduction of a financial burden of the Party benefits all members, including those in the SA Branch. In my view, it is of no significance whether or not electoral funding was actually paid to the SA Branch or was paid to the Party with the concurrence of the SA Branch. The entitlement to electoral funding remained as provided in the Act.

In my view, the provision of election funding is a significant matter for the reasons given by Dowsett J in Baldwin v Everingham.

Under Division 5A of the Part XX of the Commonwealth Electoral Act, the agent of each registered political party must furnish to the Electoral Commission within a specified time a return setting out a total amount received by, or on behalf of, the party during the financial year, the total amount paid by or on behalf of, the party during the financial year and total amount of all debts as at the end of each financial year. This statutory requirement is another reason, in my view, to accept the conclusion that the Legislature regards registered political parties as not being in the same position as a voluntary club. The defendants seek to make something out of the fact that these returns are not to include lists of party membership (s314AF) as indicating an intention to regard membership as a private matter for the party. In the present context, that is a matter of no significance. It does not detract from the fact of statutory recognition of registered political parties.

I have mentioned provisions of the Electoral Act. The plaintiff relies upon those provisions as statutory recognition of political parties in this State. I need not repeat those provisions. I accept the submission of the plaintiff. It may be seen that the South Australian Legislature has given statutory recognition to political parties in this State with the same consequence as discussed in Edgar & Walker v Meade and Baldwin v Everingham. They are not in the same position as a "voluntary club".

In my view, Dowsett J in Baldwin v Everingham was correct in his reasoning and conclusion and his decision should be followed in the present case.

The defendants contend that the plaintiff has not disclosed any interest which would attract justiciability. He is a member of a particular faction of the SA Branch. He asserts that if the "new members" are permitted to vote, the factional balance of his Sub-Branch and the State Convention at which the preselection for his electoral district will occur and will be varied against his faction to such an extent that he would not have enough delegates to support his preselection as the candidate for the State House of Assembly electoral district of Enfield. He says that at the preselection Convention, as he describes it, 25 per cent of votes comes from delegates of the Sub-Branch, 25 per cent from delegates of other Sub-Branches and the remaining 50 per cent from delegates of affiliated Trade Unions. I accept that this "interest" does not amount to a proprietary interest as discussed in the cases, but it establishes that the plaintiff does have an interest in ensuring the observance of the Constitution and Rules of the SA Branch. Failure to do so may affect him personally, including his livelihood. I accept that it is a sufficient interest to attract declaratory relief: see JN Taylor v Bond.

In my view, it is no answer to say that the preselection will be made by existing delegates at the Special Convention proposed to be called for the sole purpose of preselection of candidates. As has been mentioned, they were elected in August 1997. Selection by them would not accord with the Rules. Those members who have validly joined the SA Branch since that time would be denied the opportunity to stand as delegates and to vote. The procedure in R56 should be followed.

It is also submitted by the defendants that justiciability should be denied because there are procedures within the SA Branch and the Party to resolve the claims of the plaintiff. They submit that the dispute can be resolved by the State Executive. As has been seen, the plaintiff did take his claims to the State Executive and they were not resolved. The State Executive acted in only a limited way and required him to make submissions to the rules committee comprised of Mr Hill. It is submitted that he could take his claims to the National Executive. As has been seen, the National Executive made only a limited response to the plaintiff's claims.

I reject the contention that the rules committee was an appropriate internal dispute mechanism in this instance. The complaints concerned actual breaches of the Rules, not the need for reform. Even if he was able to persuade Mr Hill of the need to observe the Rules or perhaps to clarify their meaning, he was to report to the State Executive who, in turn, could make recommendations for changes in the Rules by the State Convention which would be attended by delegates elected by "new members". The rules committee could not resolve the plaintiff's grievances. For all practical purposes, it would be too late to ensure compliance with the Rules in the preselection process. No satisfactory reason has been advanced for not referring the plaintiff's claims, and those of Ms Breuer, to the Disputes Tribunal. It is not known why the rules committee was the preferred option.

It is true that the plaintiff declined to put information before the State Executive but in view of the initial response of the State Executive to his complaints, and the refusal to refer the matter to the Disputes Tribunal, I do not think it can fairly be said that he has declined to avail himself of the internal dispute resolution mechanisms of the SA Branch.

It was submitted that upon the true construction of the Rules, the Disputes Tribunal is not the appropriate forum to resolve the complaints of the plaintiff. Its jurisdiction is to be found in R53(c) which states it is to hear appeals against decisions of the State Executive and the State Council upon consideration of charges against members under R52, and to consider disputes or complaints referred to it by the State Executive pursuant to R53. R53(d) provides that any member may make a complaint in writing to the State Secretary or State President who shall report the matter to the State Executive which may refer the matter to the Disputes Tribunal.

There is no restriction in the Rule as to the subject matter or nature of the complaint. Also, the State Executive may, of its own motion, refer to the Disputes Tribunal for consideration of any dispute between members. R53(e) provides that the Disputes Tribunal shall, in dealing with any complaint or dispute, attempt to resolve it by conciliation. There is no reason to suppose that the Disputes Tribunal did not have the jurisdiction to hear the matters raised by the plaintiff and Ms Breuer.

It was further submitted that the plaintiff could attend the Special Convention called to consider the proposed changes to the Rules and argue his case against such changes, including his case on retrospectivity and consequently the Court should not intervene. I do not think the Special Convention called for that purpose can be regarded as an internal dispute resolution mechanism. The very subject matter before such a convention is said to be unconstitutional and this forum does not appear suitable to resolve the legal issues raised by the claims of the plaintiff.

In my view, the issues concerning the interpretation of the Constitution and the Rules raised in these proceedings are justiciable.

I have mentioned the issue about membership in the context of the "new members" and R5 and R7. The terms of R7 are clear and unambiguous. As has been seen, it is the Constitution of the SA Branch and provides that the members of the SA Branch consist of the members of the Sub-Branches and affiliated Trade Unions, provided that they are over the age of fourteen years and are not members of any other political party or auxiliary of such a party or any organisation proscribed by the National Executive or National Conference. As has been seen, R5(a) specifies qualification for membership, namely that it is open to all residents of South Australia over the age of 14 years who are prepared to accept the Constitution, Platform and Rules of the SA Branch as in R7, and who have no association with another political party or auxiliary thereof, or proscribed organisation.

R5(b)(i) provides for the manner in which a person becomes a member. The person desiring membership must join a Sub-Branch within the State District in which the person resides and pay the appropriate fee. In my view, the true construction of this Rule is that it also provides for the manner in which to join a Sub-Branch, that is by being duly nominated and accepted at a general meeting of the particular Sub-Branch.

It may be seen from R5(b)(iii) that the membership fee for members of Sub-Branches is determined by the Convention and is set out in R77. As has been seen, the membership fees are set out in that rule. Membership tickets are issued and remain valid to the end of the financial year in which they are issued. The Sub-Branches pay sustentation fees to Head Office for each member. It is clear from these Rules that the membership fees are to be paid to the Sub-Branch. R9 provides for the keeping of accounts and the raising and expenditure of money of Sub-Branches, audits and other matters concerning the financial affairs of Sub-Branches.

R10 provides for District Assemblies in the metropolitan area and in the country. R10(a)(i) provides that a District Assembly shall consist of all members of Sub-Branches within the State District. R13 provides for Federal Electorate Councils. R13(a)(i) provides that such a Council shall consist of members of Sub-Branches within the Federal Division who are resident in that Division. R13(d) provides that at Federal Electorate Council meetings members shall, if required, produce evidence of membership of the Sub-Branch to which they belong. R13(a)(ii) provides that no person can take part in a Federal Electorate Council Meeting without first being "attached" to a Sub-Branch in the Division as defined in R5. I do not think the word "attached" is intended to indicate something other than membership. No other form of "attachment" is specified in the Rules.

R16 is the Constitution of Australian Young Labor Association (South Australian Branch). R16(b) provides that all persons who are members of a Sub-Branch in accordance with the Rules and are under the age of twenty six years as of 1st July shall be members of Australian Young Labor.

As has been mentioned, R25 provides for Convention delegates. R25(a) provides that they must be members of the organisation which they represent, be elected in accordance with the Rules of such organisation and be members of a Sub-Branch as defined in R5.

Representation at a State Council and State Convention is by delegates, fifty per cent from affiliated Trade Unions and fifty per cent from Sub-Branches, Federal Electorate Councils, Australian Young Labor and other delegates from members of Parliament. The office bearers of the State Branch also attend the State Council and State Convention: see R24 and R30. I have mentioned the composition of the State Executive. R33(c) provides that members of the State Executive shall be members of a Sub-Branch as defined by R5.

Consideration of all of these Rules leads to the conclusion that membership of a Sub-Branch is essential for membership of the SA Branch.

There has been considerable attention to R5b(iv) which, it will be remembered, provides that "'a member'" is a person who has paid the membership fee for the current financial year". In my view, that Rule does not provide for the path to membership which is to be found in R5(b)(i). It is merely descriptive of a person who has been duly admitted to membership pursuant to R5(b)(i) and has paid the membership fee to the Sub-Branch pursuant to R77. The same must be said of R5(b)(v). It is merely descriptive of a member of a Sub-Branch who was a financial member in the previous financial year but has not yet paid the fee for the current year.

The defendants contend that the requirement that a person be duly nominated and accepted at a general meeting of the Sub-Branch which the person must join is directory only and in the nature of a condition subsequent. They refer to two cases. The first is Re Australian Glass Workers' Union (1973) 22 FLR 17. In that case the Union was registered under the Conciliation and Arbitration Act (Cth). The Rule of the Union under consideration as to membership provided that candidates for admission shall sign a notification form stating various matters including that they are joining and agree to become members of the Union and are willing to adhere to the rules of the Union. The Rule went on to provide that membership shall date from the signing of the notification card subject to endorsement of the branch management committee. The Rule also provided that where a person had paid a quarter's contributions and had been issued with a receipt, the person shall be deemed to be a member of the Union. Smithers J held that the condition of endorsement of the notification form by the committee should not be interpreted as a condition precedent to membership but as a condition subsequent. The person became a member upon signing the application for membership which could subsequently be nullified ab initio by the committee if there existed proper reason for doing so: see pp26-29. I do not think this case is of assistance in the present circumstances. It may be seen that the rule is different from the Rules in the present case. The deeming provision would be sufficient reason to distinguish the decision. However, it is not clear if the act of joining the Union is to be equated with signing the notification form. It appears that a person could join the union by paying the fee and was obliged to sign the notification form. If the person did not do so, he or she did not become a member, but if the person did so, membership was obtained unless there was a decision to the contrary.

No such situation can be implied from the Rules of the SA Branch. The manner of obtaining membership is clear. The fee must be paid to the Sub-Branch which must consider the application for membership at a general meeting. This construction of the Rules also accords with the democratic nature of the party. It accords with the responsibility given to local Sub-Branches regarding membership. It is to be expected that members of a local Sub-Branch would be likely to know if an applicant did not qualify for membership. It provides a safeguard against a group of persons whose interests and motives were contrary to those of the Sub-Branch and the Party suddenly joining by merely paying a fee and filling out a form whose interests and motives were contrary to those of the Sub-Branch and the Party.

The second case referred to is Lane & Ors v Arrowcrest Group Pty Ltd (1990) 99 ALR 45. In that case the Court was concerned with whether two men were members of a trade union. The relevant rule of the union provided that:

(a) any person eligible for membership who claims to become a member shall sign a completed application form in the presence of one of a specified group of persons;

(aa) the relevant branch secretary or sub-branch secretary is required to provide such a person with a written statement setting out certain specified matters being financial obligations and matters as to resignation;

(b) upon receiving the completed application form the secretary or branch secretary must complete a certificate endorsed on the application and the applicant "shall thereupon be deemed to be a member of the Federation and shall be liable to pay all fees ..." and dues.

It was contended before von Doussa J that all of these requirements are mandatory and non compliance has the consequence of that person not being validly admitted to membership. His Honour held, at p59, that the requirements (a) and (b) in part reflect the requirements of the general law for admission of a person to membership of an association. He went on to say:

"There must be an application to become a member from the person seeking the membership, and an acceptance thereof by or on behalf of the association. Ordinarily these fundamental steps would not require any formality. However, the paras (a) and (b) ..... by their terms specify formalities."

His Honour went on to discuss those formalities and reached the conclusion that the requirement in (a) was mandatory and the requirements in (aa) and (b) were not. He said at pp60-61:

"The rule (b) implicitly authorises the branch secretary to act on behalf of the organisation for this purpose by providing that on completion of the certificate the applicant shall be 'deemed' to be a member. This is a practical and administratively convenient procedure, but I do not think the rule should be construed so as to deprive the principal organs of government of the organisation from authority to accept into membership an eligible person who has completed the appropriate application form. However, if a person relies on an act of acceptance into membership by the federal council or the executive of the union, proof of that fact will be more cumbersome that the simple expedient of producing a completed application form with the branch secretary's certificate endorsed thereon as could be done if acceptance occurred under r20(b)."

Whether a requirement is mandatory or directory must be determined upon the consideration of the relevant rules and the purpose of the requirement. As von Doussa J observed, the procedure for application for membership was mandatory. It is expressed in such terms. The procedure in sub-rule (b) was a procedure which, in itself, completed membership because of the deeming provision. In the present case, the true construction of the R5(b)(i), which must be read in conjunction with R7 and the other Rules which show the fundamental importance of Sub-Branches in the SA Branch, all of the requirements must be regarded as mandatory. They are expressed to be such and there is no reason to regard them, or any of them, as directory. Membership of a Sub-Branch is essential and the Rules provide how membership is to be obtained. Unlike the second and third rules considered in Lane v Arrowcrest, these requirements are not merely an administrative procedure.

Membership of the SA Branch may only be obtained by compliance with R5(b)(i), including being nominated and accepted at a general meeting of a Sub-Branch. It was submitted by the defendants that such an interpretation was incorrect because there could be delay between the application for membership and payment of the fee and the holding of a general meeting. It is to be presumed that the office bearers and management of Sub-Branches will act properly. R8(e) provides that Sub-Branches in the metropolitan area will meet at least once a quarter. That does not seem to be too long to wait for membership. However, it is to be expected that meetings will be held as required, including when there are applicants for membership.

In my view, the true construction of the Constitution and Rules lead only to the conclusion that those persons who have not been nominated and accepted at a general meeting of a Sub-Branch are not members of the SA Branch, which includes the "new members" who have not been so admitted to membership.

It is the contention of the plaintiff that no member of a Sub-Branch may vote for delegates of the Sub-Branch to the State Convention unless that person has been a financial or unfinancial member with continuous membership of at least six months as at the first working day after 8th June. He contends that this entitlement relates to both nominating for office and voting in ballots other than a preselection plebiscite which is dealt with separately and is irrelevant for present purposes. The period of six months ends at the time the list of persons entitled to vote is prepared which, it will be seen, is the first working day after 8th June: see R56(f). The defendants contend that the period of continuous membership is to be determined by reference to the occasion of voting, namely the ballot.

The starting point is R5(b)(vi) which has earlier been mentioned. It may be seen that not all members are eligible to vote, only those who are members, financial or unfinancial, and who have continuous membership of six months. As has been seen, the supreme authority of the SA Branch is the State Convention. Pursuant to R21(a)(ii), its decisions are binding on all members. Mention has been made of R24(a) which relates to representation at a Convention. R24(c)(ii) provides for the number of delegates from Sub-Branches. For metropolitan Sub-Branches and Australian Young Labor, there is one delegate for each 25-50 members and one delegate for each 15-50 members of country Sub-Branches. Additional delegates may be allocated to Sub-Branches in rare circumstances. It may be seen that the election of delegates is a matter of importance in the governance of the SA Branch.

Rule 56(b) provides that Sub-Branches, Federal Electorate Councils and Australian Young Labor shall elect delegates to the State Convention and State Council in August in each odd numbered year. R56(i) provides that the election shall be held on a Sunday in August and the Monday immediately after. The Party Returning Officer may choose any Sunday and Monday in August, provided he or she notifies the State Secretary by 15th June.

R56(d) provides for entitlement to stand for office or vote and is as follows:

"56(d) No member shall be entitled to stand for office or vote unless he or she was an eligible member pursuant to Rule 5(b)(vi) and who is a bona fide resident of the State, State District or Federal division in which he or she seeks to vote and was enrolled on the Commonwealth or State Electoral Roll for the State, State District or Federal Division in which he or she resides by the time the accumulated roll changes for the period ending 30 June is issued. Where there are no other nominations any member of a Sub-Branch, Federal Electorate Council and Australian Young Labor may stand and be elected."

The following Rules assumed prominence during argument:

"56(e) A member under the age of eighteen (18) or a non-citizen permanent resident of Australia shall be entitled to vote provided he or she is a bona fide resident of the State District or Federal Division in which he or she seeks to vote. 56(f) On the first working day after 8 June which shall be the relevant date for residence, the State Secretary shall post to the Secretary of each Sub-Branch, Federal Electorate Council and Australian Young Labor, a list of members eligible to vote pursuant to Rule 5(b)(vi) in the election of delegates and at the Annual General Meeting. 56(g) The Local Returning Officer, Local Secretary, Deputy Returning Officer and local State and Federal MPs, may within seven (7) days, comment on the accuracy of the list of members to the Party Returning Officer. The Party Returning Officer shall consider the amendments suggested and make an updated list for issue to the Local Secretary and Local Returning Officer on the first working day after 8 July. 56(h) When a member challenges the entitlement of another member to be included on the list of eligible voters, the challenger must provide bona fide evidence that the challenged member was not resident at the address on the list, such as returned mail or electoral enrolment for a different State District or Federal Division. Any information provided to the Returning Officer must be publicly available. Anecdotal evidence will be accepted only if it is in the form of a statutory declaration. The member whose eligibility is challenged may produce evidence to the Party Returning Officer to substantiate his or her bona fide residency."

Pursuant to R56(j), on 1st July, or the first working day after, the Party Returning Officer must call for nominations for delegates and all other positions in the Sub-Branch, Federal Electorate Council and Australian Young Labor. Nominations close at 5 pm on 15th July or the next working day after and must be in writing: R56(k)(i). Pursuant to R56(l), on 22nd July, or the first working day after, the Party Returning Officer shall send a written notice in a prescribed form to all eligible members informing them of the ballot for delegates, containing the names of each of the candidates and information as to the time and place of the ballot.

In my view, the construction of the Rules leads to the contention advocated by the plaintiff. The contention of the defendants necessarily means that at the time of posting of the list of members eligible to vote pursuant to R56(f), members who still had part of the qualifying period to run, and which might expire on the day before the election, would be eligible. The list would be prepared, checked and finalised before eligibility was attained which may never occur due to death, resignation or dismissal. Such a construction would create considerable difficulty in the conduct of elections. As has been seen, the Rules provide a strict timetable for the election procedures. The list of persons entitled to stand for office or vote is necessarily to be compiled at an early stage of the process. The Rules established the procedure for the compilation of that list.

The posting of the list on the first working day after 8th June is to enable the list to be corrected and completed at the local level, in the present case, the Sub-Branch level. R8(c) provides that each Sub-Branch shall keep a roll of members in its bound minute book and must present the roll for perusal when required by the State Executive and others who are specified.

R8(d) provides that only members of a Sub-Branch are eligible to vote at their Sub-Branch meetings. It is to be expected that there may be reasons to add to, or subtract from, the list in accordance with information as to the membership provided by the Sub-Branch. Death, resignation and change of address are examples. Once the list is updated, it is issued to the Local Secretary and Local Returning Officer on the first working day after 8th July. As will be seen, nominations for delegates close on 15th July, or the next working day. The updated list would be required to determine eligibility of candidates. On 22nd July, or the next working day, a notice is sent to all eligible members informing them of the election. The updated list would be needed for that purpose. The election could be as early as 1st August.

In my view, the true meaning of these Rules accords with their purpose, namely the establishment of an efficient, effective and fair election process. Local officials, including the Local Returning Officer, should be aware of which members are so entitled at each stage of the election process.

Also, it will be seen that R56(d) provides not only for entitlement to vote but also entitlement to stand for office. So, when a member stands for office, he must already be an eligible member as defined. The Rule does not permit him to become an eligible member at a later time. Standing for office means nominating for a particular position. As has been seen, nominations close on 15th July at the latest: R56(k)(i). If the interpretation of the Rules is as contended by the defendants, the times at which a person is entitled to stand for office and to vote could be different. On the argument of the defendants, a person could attain entitlement to vote at any time before the election in August although entitlement to stand for office would have to be attained by 15th June. There is no reason to construe the Rules in that way.

Whilst it may be corrected and updated, the list is compiled on the first working day after 8th June. Entitlement to vote requires the continuous period of membership for six months prior to that time which, for present purposes, means that they must have become members no later than 9th December 1998. Another possible construction, which I do not favour, is that the period of eligibility precedes the time at which the list is updated and sent out to the Sub-Branch, the first working day after 8th July which, in this year, was 9th July. I do not favour that construction because, in my view, the purpose of R56(g) is merely to permit corrections and updating of the list or roll, not to provide a subsequent time for entitlement to vote. However, if I am wrong in my conclusion and the other construction is correct, the members eligible to vote would have to have been members before 9th January 1998.

R56(e) does not provide a separate entitlement to only bona fide residence. It is limited in its operation and refers only to the criterion of residence. It does not qualify R56(d).

I now turn to the proposed Special Convention to amend R5 and R77a as previously mentioned. A Special Convention called for that purpose may amend, alter, repeal or add to the Constitution or Rules: R21(b)(i). The plaintiff contends that the proposed amendments have retrospective operation and consequently could not be valid amendments of the Rules. First, it is appropriate to consider if the proposed amendment has retrospective effect. For this purpose, the proposed amendments should be considered together.

The proposed amendment to R5(b)(i) removes the obligation to pay the appropriate membership fee pursuant to that Rule and for the member to be duly nominated and accepted at a general meeting of the Sub-Branch with the consequence that a person does not join the SA Branch by joining a Sub-Branch. The proposed amendment to R5(b)(viii) provides for a new method of joining the SA Branch. Membership is obtained by the act of lodging the membership application form at Head Office and is effective as at the time specified in the proposed amendment. Membership through the Sub-Branch is no longer required. The proposed amendment to R5(b)(ix) is a new rule and also makes it clear that membership is not to be obtained through the Sub-Branch as there is no membership unless payment of the appropriate fee has been made and lodged at Head Office. The proposed R5(b)(x) is also new and confirms that membership through Sub-Branches is not required for membership of the SA Branch.

Pausing at this stage, it may be seen that these new Rules are designed to remove the role of the Sub-Branch with respect to membership of the SA Branch, which is a fundamental departure from the present situation. Under these proposed rules, a person obtains membership through Head Office. Although the new member must join a Sub-Branch, there is no requirement as to when that must occur and membership continues regardless of whether or not it is does occur.

The proposed R5(b)(x) purports to validate that which is invalid. Clearly, it is to relate to persons who in the past have not applied for and obtained membership of a Sub-Branch. It relates to the "new members" and anyone else who claims membership but is not a member of the SA Branch because of not having been nominated and accepted at a general meeting of a Sub-Branch as a member of that Sub-Branch. It will apply to persons who have not been admitted to membership through the Sub-Branch even at the time of the preparation and updating of lists of persons entitled to vote. The proposed R5(b)(xii) also purports to validate and make effectual that which is not valid under the existing Rules. The proposed amendment to R77(a) is merely consequential to the other proposed amendments.

It is submitted by the defendants that these proposed amendments are not retrospective. They are only prospective. There is no provision that the changes are to operate as from some past date. It is submitted that they are only to operate as from the time when they are passed by the Special Convention.

I do not accept that submission. When the proposed rules are considered together, they clearly have retrospective effect. A person who was not a member under the present Rules, on 26th January 1999 when a fee was paid to Head Office, is to be regarded as a member as from that time. The requirement of membership through the Sub-Branches is to be removed and is effective for all practical purposes as from that time. The proposed amendment to make acts valid and effectual clearly has retrospective effect. This retrospective effect of the proposed amendments may be illustrated by considering the entitlement to vote pursuant to R5(b)(vii) and R56. Without the amendments, as has been seen, a person would not be entitled to vote unless the person had been a member of the SA Branch for six months at the time the list was prepared. The effect of the amendments is that after the lists have been prepared, such a person becomes entitled to vote because new criteria for membership are to apply and are to relate to past events, the lodging of the membership form and the payment of the fee at Head Office. In my view, that circumstance demonstrates retrospectivity.

The question arises as to whether the Rules may be amended retrospectively. The defendants submit that even if the amendments are retrospective in their operation, they are not precluded by the Rules and there is no relevant interest of the plaintiff which would be affected by such amendments. All members of the SA Branch have an interest in ensuring that important aspects of the Constitution or Rules are only amended validly. Provisions which relate to membership and eligibility to vote affect the supreme governing authority of the SA Branch, the Conventions. No other provisions could have greater importance. As has been seen, the Conventions decide all sorts of matters essential to the SA Branch and particular members, including policy, platforms and the election of delegates. The plaintiff, and others in a similar position, have the added personal interest of their preselection as candidates for election to Parliament. In my view, he, and others, are entitled to have preselection determined in accordance with the Rules.

No authority has been cited in support of the contention that amendments with retrospective effect are precluded, although it seems clear that a voluntary association may only amend its constitution and rules with the concurrence of all of its members in the absence of any provision for amendment in the constitution or rules: Harington v Sendall [1903] 1 Ch 921. Whilst the Rules of the SA Branch do provide for amendment, there is no provision in the Constitution and rules permitting amendments with retrospective effect. Attention was drawn to the well known work of NE Renton: Guide for Meetings & Organisations at p82:

"4.18 Constitutional amendments, unless they provide otherwise, come into operation as soon as passed. They can never have a prejudicial retrospective application. For example, moneys already validly paid or committed would not be affected by a constitutional amendment prohibiting similar expenditure in the future. However, a constitutional amendment could retrospectively validate some irregular conduct where this does not prejudice any individual person's interest: see also below, 11.98."

"11.98 [An alternative remedy which will sometimes be suitable is to convene an extraordinary general meeting, which can then pass, in the manner required for amendments to the Constitution, a motion ratifying the result of the election notwithstanding the irregularity (or, alternatively, substituting some other specified result). This remedy should be used only if the defect is technical and there is no controversy as to what the feelings of the membership are. (Consideration of amendments to such a motion is not normally a satisfactory alternative to holding a fresh election.) It should be noted that this procedure can be inequitable to candidates who might get chosen in a new poll if one were to be held.]

In the absence of clear authority to the contrary, these observations should be accepted as they accord with the nature of voluntary associations and common sense. Members of voluntary associations are entitled to expect that the affairs of the association will be conducted in accordance with the constitution and rules. They are entitled to conduct themselves and make decisions in the context of the association accordingly. For instance, they are entitled to decide whether or not to stand for office, to continue as members or to promote the objects of the association on the basis of the constitution and rules and assume that they will be observed. Retrospective amendments which prejudice the interests of a member should be regarded as unconstitutional. I think a relevant interest includes the livelihood of a member. Validation of purported membership of a very large number of persons who are not members and who could influence or dictate policy, executive decisions or selections by constitutional change of prejudice to valid members.

The defendants drew attention to statements of principle regarding retrospectivity relating to legislation. A distinction is to be drawn between legislation having a prior effect on past events and legislation basing future actions on past events: see Pearce & Geddes: Statutory Interpretation in Australia 4th Ed pp244ff. In Coleman v The Shell Company of Australia Ltd [1943] NSWStRp 41; (1943) 45 SR(NSW) 27, Jordon CJ said at p31:

"... as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities."

Even if the analogy with legislation is appropriate, I do not think those observations assist the defendants. The proposed amendments are not merely to create particular rights and obligations in the future. They fall into the first mentioned category in that they would be giving retrospective operation to the entitlement to vote. In La Macchia v Minister for Primary Industry [1986] FCA 452; (1986) 72 ALR 23, the Court was concerned with an amendment to the Fisheries Act 1952 which empowered the Minister to cancel a licence in certain circumstances including where the holder of the licence had been convicted of an offence against the Act. The appellant had been convicted of such an offence before the amendment was made. It was accepted that there was not retrospective effect because the order of the Minister relied upon conduct that occurred before the power existed: see Toohey J at p26 and French J at pp33-34. French J acknowledged, at p33, that there is retrospectivity "only where an amending Act affects rights by changing them with effect prior to commencement". In my view, that is the effect of the proposed amendments.

In my view, the proposed amendments are unconstitutional because of their retrospective effect and should not be submitted to a Special Convention.

I have not overlooked the argument of the defendants that a voluntary association may amend its constitution and rules for its own purposes. Here, it is said, there are persons other than the "new members" who regard themselves as members of the SA Branch, without even having joined a Sub-Branch. It is submitted that the SA Branch at a Special Convention is entitled to amend the Constitution and Rules so as to clarify the status of those persons.

I accept that submission provided that the amendments have prospective and not retrospective effect.

1 The claims made by the plaintiff in these proceedings are justiciable and there is no reason to alter my decision to the same effect made on 27th July 1999.

2 To be a member of the SA Branch, a person must be a member of a Sub-Branch. Such membership may only be obtained by compliance with R5(b)(i).

3 Entitlement to vote at an election for delegates at a Sub-Branch requires financial or unfinancial membership for a continuous period of six months calculated as ending on the date of posting the list of members eligible to vote on the first working day after 8th June.

4 The proposed amendments to R5 and R77a are unconstitutional as they have retrospective effect upon the rights of members.

145. It remains to consider whether the discretion to make declarations should be exercised in favour of the plaintiff. I have referred to the decision in JN Taylor v Bond. I do not think the criticisms of that decision made by the Court of Appeal of the Supreme Court of Victoria in CE Heath Casualty & General Insurance Ltd v Pyramid Building Society (In Liq) [1997] 2 VR 256 and by Lander J in Beneficial Finance Corporation Limited & Ors v Price Waterhouse (1996) 68 SASR 19 at pp54-50 touch upon the exercise of the discretion in a case such as the present. If they do, I must follow the decision in JN Taylor v Bond with which I respectfully agree.

146. I am unable to see any circumstances so contra-indicative to the exercise of the discretion in favour of the grant of declaratory relief as sought by the plaintiff. These issues raised in those proceedings are of considerable importance, namely the interpretation of the Constitution and Rules of a major and influential political party of great standing in the community. The issues concern the governance of the SA Branch, the membership and entitlement to vote in the context of serious allegations of allowing large numbers of persons not entitled to vote, to do so in important elections. I have not heard any evidence about the reason for the sudden increase in the purported membership and I make no observations about matters of propriety. I merely observe that the matter is of considerable importance to the Party, the SA Branch including the Sub-Branches, the existing membership, including the plaintiff and, in my view, the community, given the status and role of the Party and the SA Branch in the political life of this country.

147. I make the declarations as sought by the plaintiff. In precise terms they are as sought in the summons.

148. Having decided to make the declarations, it is appropriate that the injunctions as sought also be granted. There is no need to set them out in these reasons for judgment. They will be in the terms sought in the summons.

149. None of the proposed declarations or injunctions cover the proposed meeting of the Special Convention which, on 12th August 1999, the State Executive resolved to commence to consider preselection candidates for the State and Federal Parliament. The summons has not yet been amended to embrace that matter. In my view, such a process does not accord with the Rules, and in particular R56. I shall hear the parties as to what, if any, orders may be sought and should be made.