COCKMAN -v- GORMAN [2023] WASCA 44 (20 March 2023)

1. The appellant now appeals against the summary judgment to this court.
2. Appeal ground 1 contends that the primary judge erred in summarily dismissing the proceedings on the basis that the WA Labor Rules do not create enforceable legal rights by inference from the provisions of the Electoral Act 1918 (Cth). By this ground, the appellant contends that the primary judge ought to have followed the approach to justiciability of preselection disputes adopted by the Victorian Court of Appeal in Asmar v Albanese.[5] The primary judge preferred the contrary approach as to justiciability which was adopted by the New South Wales Court of Appeal in Camenzuli v Morrison.[6]
3. Appeal ground 2, which raised an issue about the significance of s 15 of the Commonwealth Constitution, was abandoned at the hearing of the appeal.
4. At the hearing of the appeal, the appellant was granted leave to add a new ground 3. This ground contends that the primary judge erred in summarily dismissing the claim on the basis that the WA Labor Rules do not create enforceable contractual rights. This ground challenges the primary judge's conclusion that the WA Labor Rules were not intended to create legal relations, so that the appellant's claim based on a breach of contract must fail.

1. It is convenient to address the contentions advanced in support of ground 3 before turning to consider ground 1.

1. The general approach to the question of whether parties intend to create contractual relations is described by the plurality in Ermogenous v Greek Orthodox Community of SA Inc,[7] to the following effect. A contract will not be formed where there is no intention by the parties to create legal relations, in the sense of subjecting their agreement to adjudication by the courts. In determining whether that intention exists, the court looks to the subject matter of the agreement, the status of the parties to the agreement, their relationship to one another and other surrounding circumstances. The search for the intention to create contractual relations requires an objective assessment of the state of affairs between the parties. The reference to 'intention' in this, as in other, contractual contexts is to what is objectively conveyed by what was said and done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.

1. In the present case the primary judge's conclusion that there was no intention to create contractual relations was largely based on cl 2 of the ALP National Constitution.[8] Clause 2 of the ALP National Constitution contains a clear expression of an intention not to create contractual relations. However, a difficulty with that approach is that the ALP National Constitution was not in evidence before the primary judge. Nor is it before us on the appeal.
2. In submissions before this court, senior counsel for the appellant indicated that there was nothing in the terms of the ALP National Constitution on which he relied as evincing an intention to create legal relations or in support of his argument that the WA Labor Rules had that effect.[9] In considering whether the appellant may have an arguable case for summary judgment purposes, the terms of the ALP National Constitution can therefore be put aside. In what follows we will give attention to the WA Labor Rules.
3. Senior counsel for the appellant accepted that the question of whether there was an intention to create contractual relations turned on the objective construction of the WA Labor Rules. He indicated that there was no other evidence that the appellant could lead or proposed to lead at trial which could inform this aspect of the construction of the WA Labor Rules.[10] Counsel also accepted that, in these circumstances, it was appropriate for this court to form a final view as to whether the WA Labor Rules, on their proper construction, evinced an intention to create contractual relations.[11]
4. In considering the proper construction of the WA Labor Rules, it is appropriate to focus on the provisions dealing with the matters in dispute in the present case. That is, the proper focus is not on whether the WA Labor Rules are intended to create contractual relations in any respect. Rather, it is on whether the provisions of the WA Labor Rules governing membership of the ALP and the preselection of ALP candidates in federal elections are intended to create contractual relations.
5. A number of versions of the WA Labor Rules were before the court. The focus of the appellant's submissions and the primary judge's decision were those rules as amended on or around 30 August 2015.[12] These were the rules in force at the time of the appellant's unsuccessful preselection attempt. Counsel did not suggest that there was any material substantive difference between the different versions of the WA Labor Rules which informed the constructional question this court is asked to resolve.[13] We will refer to the 30 August 2015 version of the WA Labor Rules in these reasons.

1. There is no dispute that WA Labor is an unincorporated association of individual members and affiliated industrial unions, constituted by the WA Labor Rules. It is also common ground that the ALP is an unincorporated association of State branches, including WA Labor, constituted by the ALP National Constitution.[14]
2. The objectives of WA Labor were described by cl 1.3 as being:

1.3.1 To strengthen and consolidate Labor organisation throughout the State of Western Australia, including by actively encouraging all Party members to belong to their appropriate Union.

1.3.2 To actively seek affiliation of industrial unions and individual members.

1.3.3 To promote, through parliamentary and other appropriate means, the objectives, aims and policies outlined in Federal and State Platforms of the Australian Labor Party.

1.3.4 To overcome the obstacles to women's full participation in the political process.

1. The status of the WA Labor Rules as the Constitution of an unincorporated association formed to advance political purposes is a factor which counts against an intention to create contractual relations.
2. In Cameron v Hogan,[15] the plurality made the following observations about the general character of voluntary associations 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.

Hitherto rules made by a political or like organization for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the member sought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction.

1. In considering these observations, it is important to bear in mind the caution expressed subsequently in Ermogenous as to the inappropriateness of formulating rules intended to prescribe cases in which an intention to create contractual relations should, or should not, be found to exist, and as to the inutility of using the language of presumptions in this context.[17] Recognising that caution, the political character of WA Labor remains a factor counting against construing the WA Labor Rules as being intended to create contractual relations. The political objectives of the unincorporated association do not require that its constitution create contractual relations. To the contrary, those objectives are likely to be impeded by the airing of internal party disputes in open court and the diversion of the ALP's human and financial resources to the litigation of those disputes in the courts. Internal disputes and power struggles, particularly in relation to the selection of candidates for Parliamentary elections, are a common, if not universal, feature of large political parties such as the ALP. The political objects of the ALP are unlikely to be served by having internal disputes of that nature played out in the public arena of the courts in a way prone to consume the resources of the party.
2. The decision in Cameron is itself context counting against construing the WA Labor Rules as being intended to create contractual relations in relation to preselection of political candidates for Parliament and party membership. Cameron concerned the constitution of the ALP as it stood in 1935 with many similarities to the WA Labor Rules. The High Court held that the rules relating to those matters were not intended to create contractual relations. In light of that decision, it would be expected that any change to that established position would be clearly expressed if that was the intended outcome of amendments to the constitution of the party.

Clause 1.4: Platform and Constitution

1. The appellant's argument principally relies on cl 1.4.1 of the WA Labor Rules,[18] which provides:

This Constitution and any Rules made under it bind all members of the Party.

1. Considered in isolation, the reference to binding all members of the party could be taken to indicate an intention that the WA Labor Rules be legally binding. However, that statement must be read in the context of other parts of cl 1.4, including:

1.4.4 Any interpretation of the Constitution, Rules, Platform, Pledge or policy decisions will be made by the State Executive. These decisions, subject only to appeal to State Conference, are binding on all members of the Party.

1.4.5 State Executive may interpret Conference policy decisions where the Platform is silent.

1. These clauses indicate that internal bodies - not the courts - will be responsible for interpreting the WA Labor Rules. Any interpretation of the WA Labor Rules will be made by the State Executive and its decisions are binding subject only to appeal to State Conference. Considered as a whole, cl 1.4 of the WA Labor Rules counts strongly against the existence of an intention to create contractual relations.

1. The WA Labor Rules provide for a number of internal bodies which govern the operations of the association. These include the following bodies:
   1. The State Conference, which is 'the supreme governing body' of WA Labor. Its decisions bind all sections of the party (cl 5.1.1).
   2. The State Executive, whose decisions 'may only be reviewed by State Conference' (cl 6.1.2). In relation to appeals, the Rules provide:

6.7.1 Any member of the Party or any affiliated organisation may appeal to State Executive against any ruling or decision by any section of the Party if these Rules allow an appeal to State Executive, but the decision binds them until State Executive decides otherwise.

6.7.2 Any member of the Party, Affiliated Union, or Party unit may appeal against a decision of State Executive to State Conference, but the State Executive decision binds them until State Conference decides otherwise.

1. The Administrative Committee, which is 'responsible for the administration of the Party between meetings of State Executive' (cl 8.1).
2. The Disputes Committee, which is established to deal with matters including charges where one member alleges another member is guilty of a breach of the rules and applications relating to the refusal of membership applications (cl 9.3.1 read with cl 4.3 and cl 9.3.10).
3. Local branches, which are the party's primary unit of membership participation (cl 11.1).
4. These provisions for internal structures to deal with appeals and internal party disputes count against the existence of any intention to create contractual relations. They indicate an objective intention that internal party disputes will be resolved by internal bodies rather than court action alleging breach of contract, and that the binding decisions are those of the internal bodies.

The preselection of House of Representative Parliamentary Candidates shall be determined by a ballot of the State Executive and Local Electors where there are at least forty (40) Local Electors. Where there are less than (40) Local Electors, the preselection shall be by a ballot of the State Executive.

1. The reference to 'Local Electors' is to financial members of the relevant branch who are registered to vote in the electorate (cl 15.2.1).
2. Under cl 15.7.2, a member who wishes to nominate, who is not a current sitting member of Parliament, must submit an Expression of Interest (EOI) to the Administrative Committee. The member is required to sign a prescribed EOI form which must:

include a requirement that the individual accepts that it is for the Administrative Committee to accept or not any EOI and that no legal recourse to outside jurisdictions shall apply. (emphasis added)

1. In our view, this aspect of cl 15.7.2 is a clear indication that the WA Labor Rules are not intended to create contractual relations in relation to the preselection of candidates for elections. The reference to 'outside jurisdictions' clearly comprehends the courts. The objectively indicated intention is that the WA Labor Rules do not intend that persons who are dissatisfied with internal preselection processes will have recourse to the courts in an action for breach of contract.
2. Under cl 15.7.4, the State Secretary shall provide a report to the Administrative Committee which will include a recommendation on candidates who may formally nominate. Under cl 15.7.6, the Administrative Committee may waive the EOI process at any time where it is deemed to be in the party's interests.
3. Under cl 15.8.1, the State Executive shall call nominations for all parliamentary seats including those with sitting ALP members. On the close of nominations, State Executive may:
   • Decide that the Party will not contest a seat;
   • Declare any person seeking preselection to be unsuitable;
   • Reopen nominations;
   • Declare a person elected unopposed where the person is the only eligible nominee.
4. Clause 15.10 provides for preselection procedures where there is one or more than one eligible nominee.

1. Clause 4.1.1 provides that any person resident in the State of Western Australia over the age of 16 years, who signs an application for membership form, may apply to join the party. Clause 4.1.2 and cl 4.1.3 provide for an application to be considered by a Local or Direct Branch which may accept or reject the application. The Local or Direct Branch must notify the State Secretary within 21 days of its decision (cl 4.1.2.3). The State Secretary is required to place the application before the Administrative Committee which may consider the application in its own right and accept or reject the application.
2. Under cl 4.3:

A person whose application for membership has been refused may apply in writing to the State Secretary to have the decision reviewed. The State Secretary shall prepare a report on the matter and forward the request from the person, together with the report, to the Disputes Committee for consideration in accordance with Rule 9.3, within 21 days of receiving the request.

1. Clause 4.4 provides for a member to maintain financial membership by payment of a fee within the required time.
2. These provisions indicate that the question of membership is dealt with by the Administrative Committee with an appeal to the Disputes Committee where membership is refused. In our view they indicate that disputed questions of membership are intended to be resolved internally rather than by recourse to the courts in an action for breach of contract.

1. Construing the WA Labor Rules for ourselves we would, for the above reasons, conclude that the Rules are not intended to create contractual relations in relation to preselection of candidates for Parliamentary elections or membership of the party.
2. That conclusion is consistent with the High Court's decision in Cameron in relation to similarly structured rules of the ALP. As our conclusion accords with that reached by the High Court in Cameron, it is unnecessary for us to consider whether that case is capable of being distinguished from the present case so that we are not bound to follow it.
3. The appellant's contractual argument gains no comfort from the decision of the Victorian Court of Appeal in Asmar. The court in Asmar, albeit by reference to provisions of the National and State Constitutions which are not before this court, held that the ALP rules as to preselection considered in that case were not contractually binding.[19] In Camenzuli, it was accepted by all parties that the Federal Constitution of the Liberal Party lacked contractual force.[20] Further, as the primary judge correctly observed, the cases which have found that the rules of political parties are justiciable have not relied on an intention to create contractual relations as a basis for a finding of justiciability.[21]

1. For the above reasons, in our view the WA Labor Rules are not intended to create contractual relations in relation to the preselection of candidates for Parliamentary elections or membership of the party. The contrary position is not reasonably arguable. This is a case where there is a high degree of certainty that the contractual claim must fail on this ground, so that it was appropriate to enter summary judgment for the respondents. In any event, senior counsel for the appellant accepted that this was a case where this court could appropriately finally resolve the question of construction of the WA Labor Rules in an appeal from the grant of summary judgment.[22] For these reasons, ground 3 is not established.

Ground 1: justiciability under the Electoral Act

1. We turn to consider ground 1, which contends that provisions of the Electoral Act create enforceable rights by inference.

1. The following provisions of the Electoral Act may be noted.
2. Section 125 requires the Electoral Commissioner to establish and maintain a Register of Political Parties containing a list of political parties registered under pt XI. Part XI provides for the registration of 'eligible political parties', which must be 'established on the basis of a written constitution (however described) that sets out the aims of the party' (s 123(1)).
3. Section 126(2) relevantly requires an application for registration of an eligible political party to be signed by the applicants and the person who is to be the registered officer of the party, to set out the name and address of the person who is to be the registered officer and to be accompanied by a copy of the party's constitution. The officer's name is included on the Register if the party is registered (s 133(1)(a)(iii)). Section 134 makes provision for changes to the Register.
4. Under s 152, writs for federal Parliamentary elections must fix a date for matters including 'the nomination'. Section 156 requires that the date fixed for nomination of the candidates to be not less than 10 days nor more than 27 days after the date of the writ. By s 162, no person is capable of being elected as a Senator or a Member of the House of Representatives unless duly nominated.
5. One way in which a candidate may be nominated is by a form signed by 'the registered officer of the registered political party by which the candidate has been endorsed for that election' (s 166(1)(b)(ii) and s 166(1AAA)(b)). Section 166(1AA) provides that a registered officer must not sign nominations for more than one candidate for a particular division of the House of Representatives.
6. Under s 169, the registered officer of a registered political party may request that the name of the party be printed on ballot papers for an election adjacent to the name of the candidate who has been endorsed by the party.
7. Section 169B(1) provides for the circumstances in which a person shall be taken to have been endorsed as a candidate in an election by a registered political party for the purposes of the Act. One circumstance is where the candidate is nominated by the registered officer of the party (s 169B(1)(a)). Another is where the Electoral Commissioner is satisfied, after making such inquiries as the Electoral Commissioner thinks appropriate of the registered officer of the party or otherwise, that the candidate is so endorsed (s 169B(1)(c)). However, there is no provision in the Electoral Act for the Electoral Commissioner or anyone else to override the nomination of a candidate by the registered officer.
8. Section 172 provides for the limited circumstances in which the Electoral Commissioner may reject a nomination, essentially involving a failure to comply with certain provisions of the Act. Section 176 provides for the declaration of nominations, including the name of the party where the candidate is endorsed by a registered political party.
9. Division 3 of pt XX provides for the funding of registered political parties in relation to candidates who receive at least 4% of the formal first preference votes cast in an election.

1. In Asmar, the applicants challenged the preselection of ALP candidates for a forthcoming federal election under provisions of the National Constitution rather than in accordance with the process provided for by Victorian branch rules. They sought declarations that the preselections under the National Constitution were unauthorised and of no legal effect, and injunctions restraining their implementation. The case was heard and determined before writs for the federal election had been issued.
2. The Victorian Court of Appeal first considered the merits of the applicants' case and concluded, in effect, that the preselections under the National Constitution were authorised. After concluding that the appeal must be dismissed for that reason, the court noted:[23]

The issue of justiciability, which occupied considerable attention before the trial judge and before us, cannot alter this outcome. Nevertheless, we now turn to the issue of justiciability, and the two 'pathways' to success in the appeal relied upon on behalf of the applicants before us in that context.

1. The court then considered a number of authorities, including:[24]
   1. Baldwin v Everingham,[25] in which Dowsett J held a dispute about preselection of a Liberal Party candidate for a federal seat to be justiciable. Dowsett J distinguished Cameron on the basis of the recognition and registration of political parties under the Electoral Act.
   2. Butler v Mulholland [No 2],[26] in which Robson J held that a dispute between factions of the Democratic Labor Party, as to who was the registered office holder under Victorian electoral legislation, was justiciable.
   3. Setka v Carroll,[27] in which Riordan J held that a claim by a member of the ALP, who the National Executive proposed to expel, for a declaration that he could not be expelled except in accordance with branch rules was not justiciable. In doing so, Riordan J had rejected the approach of Dowsett J in Baldwin, finding that Dowsett J had not explained how legislative recognition had given rise to a cause of action or an otherwise ascertainable and enforceable legal right.
2. The court in Asmar then stated its views in the following terms:[28]

Absent further consideration by the High Court, in our opinion, Dowsett J's analysis in Baldwin v Everingham ought not to be relied upon as a basis for concluding that all disputes within political parties are justiciable. The basis upon which Dowsett J distinguished Cameron v Hogan was the recognition of political parties under the Commonwealth Electoral Act. Any qualification of the principle in Cameron v Hogan based upon this and similar legislation must be confined strictly to disputes which really do bear upon the matters addressed by the legislation. The dispute before Robson J in Butler v Mulholland [No 2] was, in our opinion, a dispute of that character. The dispute before Riordan J in Setka v Carroll was not. Thus, in our opinion, Robson J was correct to treat the dispute before him as justiciable, and Riordan J was correct to treat the dispute before him as not justiciable.

Disputes as to pre-selection are more difficult. Since Dowsett J's decision, they have generally been treated as justiciable.

It seems to us that pre-selection disputes in relation to federal parliamentary elections would generally have the necessary direct connection with the Commonwealth Electoral Act to render them justiciable. This is because of the close connection between such disputes and the provisions of the Commonwealth Electoral Act governing nomination and endorsement, and electoral funding. The registered officer is a role created by the legislation and one that plays no part (in that capacity) in the internal processes of pre-selection of candidates. Under the legislation, the registered officer has a central role in both the nomination of candidates (s 166) and their recognition as candidates endorsed by the registered political party (s 169B). The registered officer's role is to act as the conduit for communicating internal party decisions to the Electoral Commissioner and the voting public. The purposes of the legislation would be significantly undermined if an endorsement which was invalid under the governing constitution of a registered party was to be given effect because it was immune from challenge.

That seems to us to be the position generally, but there are two considerations which are peculiar to the case before us. They are the presence of cl 2 of the National Constitution and r 23 of the Branch Rules; and the fact that, in contrast to the position before Robson J in Butler v Mulholland [No 2], here there is no dispute as to who the relevant registered officer is.

We consider that the pre-selection dispute in this case is justiciable, notwithstanding those two considerations.

The dispute is justiciable notwithstanding cl 2 of the National Constitution and r 23 of the Branch Rules because the critical consideration is not the organisations' intentions as set out in those provisions, but rather the need to ensure that the provisions of the Commonwealth Electoral Act are not undermined by endorsements which are not in accordance with the registered party's internal processes.

The identity of the registered officer may not be in dispute here, but the validity of the pre-selection process which is the necessary precursor to the nomination and endorsement of candidates by the registered officer under the Act is in dispute.

1. In Camenzuli, the plaintiff challenged a resolution of an internal Liberal Party committee which endorsed three incumbent Liberal members of Parliament as candidates in the forthcoming federal election. He sought declaratory relief and an injunction preventing the registered officer of the Liberal Party from requesting the Electoral Commissioner to print the names of purportedly endorsed candidates on the ballot papers.[29]
2. The court in Camenzuli declined to follow Asmar. The court made the following observations about the third paragraph quoted at [[55 There are three observations which may be made with respect to this passage. First, although there is reference to provisions of the Electoral Act dealing with electoral funding, it is not clear that those provisions are relevant to the reasoning, which otherwise deals with provisions governing nomination and endorsement.

Secondly, while it is true that the role of the registered officer is created by the legislation, it is also true that he or she plays no necessary part in the internal processes of the party in preselecting candidates. The 'central role' of the registered officer in the legislative scheme is limited to conveying decisions of the political party with respect to nomination and endorsement. That role is aptly described as a 'conduit' in relation to communications between the political party and the Electoral Commission.

Thirdly, there is a sense in which the last and critical step involves an element of circularity. It is true that the legislative provisions relating to nomination and endorsement of candidates by political parties could be subverted if the ballot paper contained incorrect information. However, the ballot paper, it may be assumed, will contain the information conveyed to the Electoral Commission by the registered officer. To raise the possibility that that information may be incorrect because it is 'invalid' is to assume that there is an avenue for challenging the validity of the content of the communication from the registered officer. But that is to assume the conclusion to the critical question rather than to answer it.

1. The court in Camenzuli then considered and rejected what it described as a 'more nuanced argument' that the endorsement by a registered political party gave a candidate a status which was recognised by s 169 and s 169B of the Electoral Act, and thus constituted a sufficient interest to be enforceable.[31] In doing so, the court observed:[32]

[T]he difficulty confronting the plaintiff's submission is that the Electoral Act makes elaborate provision to introduce certainty in an area which is, by definition, time-critical and potentially contentious. First, the regime leaves no room for any doubt as to whether a party is registered, and who is its registered officer. Secondly, it is true that when a person is endorsed as a candidate in an election by a registered political party, that person enjoys a particular status, and that person would prima face be able to bring proceedings to vindicate rights and entitlements attaching to that status. However, the provisions of s 169(3) and s 169B(1)(a) and (b) indicate that in many circumstances, that status turns upon a written communication from the registered officer. That is to say, the very provisions upon which reliance is placed confirm that the scheme of the statute is to entitle (and require) the Electoral Commissioner to look to written communications from the registered officer as determinative statements of the outcome of the processes of the political party. There is evident sense in the legislation taking that course: by its nature, preselection and endorsement is apt to be divisive, and in circumstances where the statute permits political parties to have a wide range of constitutions, ranging from those which are formally binding upon members to constitutions which create no contractually enforceable rights or obligations at all, the position of the registered officer is an important source of certainty in the administration of the Act.

1. The court in Camenzuli left open the question of whether a dispute as to the existence of a matter necessary for the operation of the statutory scheme, such as the identity of the registered officer, could give rise to a justiciable issue.[33] However, it concluded that the challenge to the conferral of powers on the committee defendants by the National Executive, and the exercise of those powers, gave rise to no justiciable issue and dismissed the claim on that basis.[34]
2. The court in Camenzuli then said that, although it was satisfied that the issues were not justiciable, in the interests of finality and against the possibility that it was wrong on the determinative issue, it would consider the substantive dispute.[35] The court then found that, if it were entitled to rule on the validity of the challenged resolution, it would reject the challenge.[36]

1. The appellant's argument on appeal is that the reasoning of the Victorian Court of Appeal in Asmar should be preferred to the reasoning of the New South Wales Court of Appeal in Camenzuli.[37]
2. Both parties made submissions by reference to the reasons expressed for the refusal by the High Court to grant special leave to appeal from the decisions in Asmar and Camenzuli. However, it is established that statements made in the course of reasons for refusing an application for special leave create no precedent and are binding on no one. An application for special leave is merely an application to commence proceedings in the High Court. Until the grant of special leave there are no proceedings inter partes before the High Court.[38]
3. As a matter of precedent, it seems to us that the observations of the Victorian Court of Appeal as to the operation of the Electoral Act in Asmar were obiter. The court had already decided to dismiss the claim on its merits before turning to consider the issue of justiciability which could not affect that outcome. As the court found the claim to be justiciable, its views on the question of justiciability did not provide an alternative basis for dismissing the appeal. This court is not bound to follow the obiter dicta in Asmar, although it would ordinarily be expected to give great weight to those observations.[39]
4. On the other hand, the justiciability of disputes about the constitution of a registered political party under the Electoral Act formed the basis of the decision of the New South Wales Court of Appeal in Camenzuli to dismiss the appeal in that case. Senior counsel for the appellant accepted that the justiciability conclusion was part of the ratio of that case.[40] So far as the decision in Camenzuli concerns the proper construction of the Electoral Act, it is binding on us unless we are satisfied that it is plainly wrong or, to use a different expression, unless there is a compelling reason to do so.[41]
5. We are not persuaded that the decision in Camenzuli is wrong let alone plainly wrong. We cannot see anything in the Electoral Act which gives the courts jurisdiction to determine disputes about the application of the rules of unincorporated political parties, which are not otherwise enforceable, in relation to the selection of candidates for federal Parliamentary elections.
6. While the Electoral Act provides for the registration of political parties, it does not provide for their incorporation. While the Act requires an eligible political party to have a constitution which must be lodged with the Electoral Commissioner, it does not provide for what the constitution must contain (other than that it must set out the aims of the party) and does not directly give any legal force to the constitution. There is no prescription of the process for the endorsement of candidates. The role of the registered officer in relation to nominations is merely to be the conduit of information to the Electoral Commissioner in a context where the legislation leaves it to the political party to decide who it endorses. It does not mandate that endorsed candidates be selected by a means provided for in the constitution of the party as opposed to by some other means.
7. Further, the implication which the appellant invites the court to draw from the terms of the Electoral Act appears inconsonant with the very short time between the issue of writs and the date for nominations for which the Act provides. An implicit right to litigate about whether candidates were validly endorsed by a political party would tend to frustrate those provisions. The decisions in Asmar and Camenzuli show that some disputes of this kind can be resolved expeditiously. However, it cannot be expected that all disputes can be resolved so quickly, or that the courts could deal with a multitude of disputes of the kind that preselection contests are apt to generate within the time provided for the nomination. In a context where nomination is an essential prerequisite for candidature, the implication invited by the appellant would lead to the litigation of disputes that could imperil the capacity of a political party to nominate candidates within the required time prescribed by the Act. That consideration strongly counts against the drawing of the implication for which the appellant contends.
8. Senior counsel for the appellant, in explaining why he submitted the decision in Camenzuli was plainly wrong, focused on the prospect that a registered officer of a registered political party might have 'gone rogue'. He submitted, in effect, that the construction adopted in Camenzuli did not accommodate that prospect.[42]
9. However, the decision in Camenzuli left open the question as to whether a dispute about the identity of the registered officer of a registered political party was justiciable.
10. Further, s 134(1)(g) of the Electoral Act allows either the secretary of a Parliamentary party or all Parliamentary members of the party to apply to the Electoral Commission to substitute the name of the registered officer of the party. In the case of a political party which is not a Parliamentary party, that application may be made by any three members of the party. Section 134 of the Electoral Act provides for a process by which the Electoral Commissioner determines whether such an application should be granted or refused. Unless the application is signed by the registered officer (thereby signifying his or her consent to the application) the process involves giving notice to the registered officer and inviting the registered officer to submit particulars of the reasons why the registered officer considers the change should not be made (s 134(5)). The Electoral Commissioner's decision under s 134 is plainly subject to judicial review for jurisdictional error. The Electoral Commissioner's decision to grant or refuse an application under s 134(1) is also reviewable by the Administrative Appeals Tribunal under s 141 of the Electoral Act.[43] These provisions accommodate the concerns expressed in the appellant's submissions about the 'rogue' registered officer on the construction of the Electoral Act adopted by the court in Camenzuli.
11. Therefore, we agree with the conclusion reached by the court in Camenzuli for the reasons explained by the court in that case and the reasons noted above. We would prefer the approach taken in Camenzuli to that taken in Asmar. That is consistent with the approach adopted, in our view correctly, by McGrath J in Dawkins v The State Secretary, Australian Labor Party (WA Branch) [No 2].[44]
12. Given the difference of view expressed by the Courts of Appeal of two different States, the preference by this court of one view over the other would not necessarily provide a secure foundation for entering summary judgment. The expression of a competing view in Asmar may make it difficult to conclude that the appellant's claim ultimately has no prospect of success, even if the High Court were to resolve the difference in views expressed by different intermediate appellate courts. However, in the present case we are of the view that the appellant's case is doomed to fail even on the approach taken in Asmar. We turn to indicate our reasons for that view.

1. An important difference between the present case and Asmar is that, in the present case, the appellant claims damages for breach of the WA Labor Rules well after the conclusion of an election while, in Asmar, the claim was for declaratory and injunctive relief ahead of the nomination of candidates. There is nothing in Asmar which supports the proposition that the Electoral Act creates a cause of action sounding in damages for breach of the constitution of a political party registered under the Act. Nor does the appellant point to anything in the terms of the Electoral Act which could arguably have that result.
2. Senior counsel for the appellant conceded in oral submissions (in our view correctly) that the appellant's claim for damages depended on establishing that the WA Labor Rules had contractual force.[45] The rejection of ground 3 means that the WA Labor Rules lack contractual force. Senior counsel for the appellant accepted that, if ground 3 failed, then the appellant's damages claim could not survive.[46] The damages claims are therefore doomed to fail.
3. The appellant does seek injunctive relief in respect of the failure to renew his membership of the ALP. However, Asmar is authority against the proposition that disputes of that kind are justiciable under the Electoral Act. Disputes of that kind lack the necessary direct connection with the Electoral Act which the court in Asmar said was required to render them justiciable. The court in Asmar held that Riordan J in Setka correctly held membership disputes of that kind arising from rules lacking contractual force to be non-justiciable. Even if the approach in Asmar were to be adopted, the appellant's claim for injunctive relief based on his exclusion of membership from the ALP is bound to fail.
4. Senior counsel for the appellant accepted that the reasoning in Asmar did not apply to the appellant's claim relating to his membership of the ALP. Although he did not formally abandon the ground, counsel conceded that there was nothing in ground 1.[47] In our view, while it was unfortunate that the ground was run at all, this concession was properly made.
5. For the above reasons, ground 1 is not established.

1. For the above reasons, at the conclusion of the hearing of the appeal we were satisfied that this was a case in which it was clear that the appellant's claims in the primary proceedings were bound to fail. Neither of the two remaining grounds of appeal are established, and the primary judge was correct to enter summary judgment in the case. We therefore made an order dismissing the appeal for the above reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[5] Asmar v Albanese [2022] VSCA 19; (2022) 369 FLR 1.

[6] Camenzuli v Morrison [2022] NSWCA 51; (2022) 107 NSWLR 439.

[7] Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 [24] - [25].

[8] Primary decision [79], [81], [86].

[12] Annexure KMM2 to the affidavit of Kathleen Marie McNally sworn 10 June 2021 (Green AB 135).

[14] Paragraphs 6 - 7 of the Appellant's Statement of Claim (Blue AB 40 - 41).

[15] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, 370 - 371.

[25] Baldwin v Everingham [1993] 1 Qd R 10.

[26] Butler v Mulholland [No 2] [2013] VSC 662.

[27] Setka v Carroll [2019] VSC 571; (2019) 58 VR 657.

[37] Appellant's submissions, par 63; appeal ts 16.

[38] Mount Bruce Mining Pty Ltd v Wright Prospecting Ltd [2015] HCA 37; (2015) 256 CLR 104 [112], [119].

[39] Hill v Zuda [2022] HCA 21; (2022) 96 ALJR 540 [26].

[43] See pars (c) and (d) of the definition of 'reviewable decision' in s 141(1) of the Electoral Act.

[44] Dawkins v The State Secretary, Australian Labor Party (WA Branch) [No 2] [2022] WASC 117; (2022) 367 FLR 40 [52] - [58].