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[2022] WASC 75
General information, not legal advice.
Supreme Court of WA
2022-03-03
Original judgment source is linked above.
1 The plaintiff in this matter put himself forward seeking endorsement by the Australian Labor Party to contest the Federal seat of Forrest in the upcoming election. He was passed over ‑ that is to say he failed to win endorsement. Using the internal processes of the party, he appealed that decision. The appeal was unsuccessful. He now challenges the decision of the party not to endorse him.
2 The plaintiff's action was commenced by originating summons. It is defective in that it does not give any clear idea of the relief the plaintiff is seeking. On 28 February 2022, the plaintiff filed a chamber summons which, while garbled, seems to at least outline the relief the plaintiff is seeking. It contains other irrelevant material but for present purposes I think it sufficiently details the plaintiff's claim to allow the action to proceed.
3 When this matter came on for hearing, the parties adopted diametrically opposed positions as to how the action should progress. The plaintiff's primary aim was to take the action to mediation. This case is not amenable to that the process. Counsel for the defendant indicated as much. Really this is a case where the plaintiff can either succeed in his action or he fails. There is no middle ground. Accordingly, I indicated I would not be prepared to make a mediation order. Of course, if the parties decided between themselves mediation was appropriate, then orders could be made. But there is no chance of that happening and so the question of mediation can be put to one side.
4 It was the defendant's position the matter should proceed as if commenced by writ. With that in mind, the defendant lodged a minute of proposed orders which anticipated the plaintiff filing a statement of claim. There is some merit in that proposal. It would ensure the material facts upon which the plaintiff relies to make good his case are set out. At present, based on the affidavit material filed by the plaintiff, it is difficult to see precisely what circumstances the plaintiffs says could lead to the party's failure to endorse him being overturned. In making that observation, I am in no way disparaging the plaintiff's case. He has not yet had the opportunity to put his position and it may be the relevant facts will emerge during the course of submissions. But as the materials stand at present, it is not difficult to see why the defendant wants the plaintiff to file a statement of claim which, if it followed the rules of procedure, would reveal the material facts relied upon.
5 The difficulty here is the matter is urgent. The Federal election must be held no later than May and could be held earlier. Settling on a candidate as soon as possible is of course essential for any political party. In the circumstances, time does not permit pleadings. It is in everyone's interest if the matter is resolved as soon as possible and the originating process procedure with evidence on affidavit is the appropriate course. The orders I made programming this matter reflect that approach.
6 In his chamber summons, the plaintiff foreshadowed issuing subpoenas against various individuals. This is not an action where the issuing of subpoenas is appropriate. Insofar as the plaintiff has made that application, it will be dismissed. Furthermore, there will be an order the plaintiff not be permitted to issue subpoenas without leave of the court.
7 The orders I made reflect two further matters which, in a case like this, are of importance. First, once affidavit material is filed in compliance with the timetable set in the orders, no further affidavits can be filed without leave of the court. That order is designed to prevent a last‑minute deluge of affidavit material. Each of the parties ought take great care to set out their evidentiary position in affidavits they have leave to file. It would only be in extraordinary circumstances (and with leave of the court) either party would have leave to supplement that evidentiary material.
8 Second, the orders reflect a limitation on the extent of submissions. The parties will of course have the opportunity to make oral submissions. But the point here is crisp. There are a number of relevant authorities to which no doubt the parties will refer. But the authorities are limited and a ratio in each of the cases is quite straightforward. This is not a case where the court would be assisted by voluminous submissions.
9 It is for these reasons I made the programming orders taking the matter through to an early hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.