Johnston v The Greens NSW

Court of Appeal (NSW)|2020-12-07|Before: Meagher JA, Brereton JA, Robb J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: This application for leave to appeal arises out of the resignation on 20 December 2018 of Mr Jeremy Buckingham MP as a member of the first respondent, The Greens NSW, a political party registered under Part 6 of the Electoral Act 2017 (NSW). At that time, Mr Buckingham held the third position in The Greens NSW's list of nominees for the New South Wales Legislative Council election to be held on 23 March 2019. The first respondent took the view that there was no provision of its constitution addressing how the casual vacancy was to be filled, and simply moved the fourth candidate on the list into the position formerly occupied by Mr Buckingham. The applicant contended that the constitution of The Greens NSW and the preselection rules made thereunder required that a full recount of the ballot papers from the original preselection process be undertaken, in which the preferences of those who had voted for Mr Buckingham would be distributed.

The substantive application

Grounds 1 to 5 and 8 to 13 of the amended draft notice of appeal filed on 6 November 2020 purport to identify various errors in his Honour's approach to the evidence tendered at the hearing on 1 March 2019 (J [20]), and in his Honour's conclusions that the vacancy had been filled consistently with the constitution of The Greens NSW and, in any event, that there were discretionary reasons to decline to grant relief (J [96]-[101]).
The fourth and fifth respondents submit that an appeal against the orders of 1 March 2019 would be wholly inutile, and that the substantive application should be refused on that basis. The Greens NSW lodged its nomination papers in the approved form with the NSW Electoral Commissioner before 6 March 2019, the date on which nomination papers were required to be submitted. The Legislative Council election has taken place, and the successful candidates have taken office. The applicant does not and could not plausibly contend that success on any of the proposed grounds of appeal would have any consequence for the results of those elections. It is said to follow that even if the reasoning of Robb J involved error, which is denied, nothing could usefully follow from its correction.
In their written submissions, the fourth and fifth respondents submitted that the first respondent's preselection rules have now been amended to provide expressly for the filling of casual vacancies in the circumstances at issue in these proceedings, and that the constructional issues addressed by the primary judge will accordingly have no bearing on the future conduct of the first respondent's nomination processes. The applicant denied that the latter proposition followed from the former, and the fourth and fifth respondents ultimately did not lead evidence of any amendment to the preselection rules. The matter being contested, it may be put to one side.
The applicant makes two arguments as to why there would be utility in an appeal to this Court. The first is that the final relief sought by his further amended summons before Robb J raised other issues as to the powers of various officeholders of The Greens NSW and the democratic control of the Greens organisation by its members. The relevant prayers for relief were: 9. A declaration that the motion PO1 passed by the State Delegates Council on 26 May 2018 [is] void or invalid. 10. A declaration that the decision made by the co-conveners and the secretary of the first defendant [that Mr Buckingham's position be filled by the fourth-listed candidate] at or about 11 AM on 28 February 2019 is void or invalid. ... 12. A declaration that, on their proper construction, the Charter of the Australian Greens, the Constitution of the Greens NSW and the Preselection Rules operate so that, where a preselection ballot has occurred, and a candidate in that preselection is no longer eligible for preselection, a vote indicated on a ballot-paper opposite the name of that candidate shall be counted to the candidate next in order of the voter's preference and the numbers indicating subsequent preferences shall be deemed to be altered accordingly.
Whether or not declarations 9 and 10 raise separate legal issues, and whether or not there would be any utility in their determination, on the applicant's case below they were only ancillary to the principal question of construction raised by declaration 12. Counsel for the applicant, who was represented before Robb J, expressly accepted that declarations 9 and 10 were only relevant if declaration 12 was to be made: HIS HONOUR: But don't you really want to say to me if "I lose 12, forget my 9 and 10"? AULD: Yes. HIS HONOUR: You don't want to make up the entire electoral process of the party in relation to the Legislative Council collateral damage. AULD: No, because we say those decisions are invalid because they are adopting a process, by omission, that isn't permitted, that is we say there should have been a recount of the eligible ballots. HIS HONOUR: Right, but if you lose 12 you abandon 9 and 10. AULD: They have no work to do because they would only be invalid or void because they haven't done what 12 says ought to be done.
In commencing the proceedings below, the applicant may well have been motivated in part by what he regarded as the undemocratic approach to decision-making adopted by the co-conveners and the secretary of The Greens NSW, who took the decision to fill the vacancy by moving up the fourth-listed candidate despite The Greens NSW's Committee of Management having failed to resolve the issue (J [43]-[46]). But the applicant expressly disclaimed any independent objection to the manner in which that decision was taken. He cannot now take such an objection for the first time on appeal.
His second argument is that there is a real possibility of the same dispute arising in the future. It may be accepted that a similar dispute could conceivably recur. The possibility is, however, wholly speculative: there is nothing to suggest that it is likely, or even a realistic possibility, that a similar dispute will arise again before appropriate steps are taken to amend the relevant instruments.
As between the parties, there can be no utility in a grant of leave. There is little apparent utility to the public. As will be seen, the applicant has not identified any sufficiently arguable errors to tell against refusing leave on that basis.

No sufficiently arguable error

The argument presented by the applicant at the hearing before this Court (at greater length than would usually be permitted on an application of this nature) proceeded as follows. The primary judge was mistaken as to the organisational structure of the Greens. In particular, his Honour erred in finding that The Greens NSW is an association incorporated under the Associations Incorporation Act 2009 (NSW), a matter which appears to have been assumed rather than argued. There is an incorporated association, The Greens NSW Inc, but it "deals [only] with balancing the books and licking the stamps" and exists in parallel to the political party. The political party "comes down" from the Australian Greens, of which The Greens NSW is a member, to the local Greens organisations that are members of The Greens NSW (including the Inner Sydney Greens, an incorporated association of which the applicant is a member). Accordingly, his Honour erred in construing the constitution of The Greens NSW as a contract between its members given force by the Associations Incorporation Act, s 26(1). The constitution of The Greens NSW is instead to be construed having regard to "High Court authorities [concerning] filling casual vacancies" in the Commonwealth Senate consistently with the Constitution of Australia and the Commonwealth Electoral Act 1918 (Cth): see eg Re Day (No 2) (2017) 263 CLR 201; [2017] HCA 14 at [77] (Kiefel CJ, Bell and Edelman JJ), [293] (Nettle and Gordon JJ).
This argument does not demonstrate any error in the primary judge's construction of the constitution of The Greens NSW, much less an error that is more than merely arguable.
The applicant does not contend that the question is not one of the construction of The Greens NSW's constitution. His contention is rather that he was disadvantaged by the primary judge approaching the issue as one of contractual construction. There are several reasons to doubt that contention. First, as the primary judge observed at J [18], if the constitution did not have contractual force there would be a real question whether the dispute was justiciable at all: cf Cameron v Hogan (1934) 51 CLR 358 at 370-367; [1934] HCA 24. Presumably for that reason, all of the parties below "put their submissions on the basis of the wording of the documents as if they had been ordinary contractual instruments" (J [58]). Secondly, in construing the constitution his Honour had regard to the contextually relevant "special characteristics" of the first respondent (J [59]), namely that it was a political party whose "paramount objective" was to contest elections for the Senate and the New South Wales Legislative Council: see J [83]-[87]. To construe the constitution as a contract is not necessarily to neglect that it is the constitution of a political party. Finally, his Honour's conclusion was principally the result of "the natural meaning of the words" of the constitution and the preselection rules (J [81]). That is not a matter liable to be affected by whether the constitution is construed as a contract or as some other form of instrument.
The argument made by the applicant as to why the primary judge's conclusion as to the natural meaning of the language of the constitution should be displaced in favour of the procedure used to fill a casual vacancy in the Commonwealth Senate was as follows: So when the counting is finished what we have on [The Greens NSW's list of nominees] for whatever election... the people on that ticket have been elected in a manner that is similar to what is used for Senate elections. So they have the same status as elected people as what senators do, and it must follow that if they have that status then they also must, if a casual vacancy is created then the whole thing will need to be run again to fill that casual vacancy.
This argument was founded on clause 9.8 of the constitution, which provided as follows: All valid votes are then counted by a proportional representation (PR) method (similar to the method of counting used in Senate elections) to elect the number of members required on the ticket, which will be pre-determined by the SDC.
It does not follow from the fact that The Greens NSW elects its list of nominees for the Legislative Council using the same method of counting votes as is used in federal Senate elections (that is, the proportional representation method), that those nominees have the same "electoral status" (whatever the content of that expression) as a senator, let alone that a 'casual vacancy' is to be filled in the same manner as a casual vacancy in a Senate seat. The "status" of a person on the list of nominees of The Greens NSW is, as the applicant ultimately accepted in argument, the status accorded to them under the constitution of that organisation. If the applicant's argument is not to beg the question, it can only be that because the constitution adopts a method of counting votes which it describes as "similar to the method of counting used in Senate elections", it must also, as a matter of construction, have adopted the approach applied by the High Court by analogy with the Commonwealth Electoral Act to fill a casual vacancy in the Senate. The primary judge rejected an argument along these lines on the basis that it "does not, in reality, involve the construction of the wording of the constitution" but rather the importation of "a wholly new provision" (J [90]). That did not involve any arguable error.

Conclusion on the substantive application

Leave to appeal against the orders made by Robb J on 1 March 2019 should be refused.

The costs application

The first and fifth respondents were represented by separate counsel at the 1 March 2019 hearing. With the exception of the fourth respondent, all of the other defendants either appeared or filed a submitting appearance. The seventh and eight defendants were formally represented by the representatives of the first, but only because they did not have the opportunity to file a submitting appearance before final orders were made (J2 [63]).
The applicant contends that the primary judge erred in the exercise of his Honour's costs discretion on three bases. First, no costs order should have been made in favour of the fourth respondent. He did not appear in the proceedings until after they had been finally determined (his notice of appearance was ultimately filed on 26 March 2019), by which time the only outstanding issue was whether, as the plaintiffs submitted, the first defendant should bear the costs of all other parties (J2 [18]). Secondly, the interests of the fourth and fifth respondents were identical with those of the first respondent, with the result that the primary judge should not have allowed more than one set of costs for those respondents. Thirdly, the primary judge erred either in failing to find that there was a public interest in the proceedings or, if his Honour did make such a finding, in not giving proper weight to that public interest in determining the appropriate costs orders.
It is convenient to address the third argument before turning to the particular positions of the fourth and fifth respondents.
The characterisation of proceedings as in the "public interest" is a question of substance, not form, and depends on a number of factors, "including the nature of the proceedings, the relief sought and the motivations of the party bringing the proceedings": Racing NSW v Fletcher (No 2) [2020] NSWCA 67 at [12] (Bell P, Meagher and Payne JJA).
Although the primary judge was "prepared to infer" that one or both of the plaintiffs was motivated in part by personal political considerations (J2 [46]), his Honour found, having regard to the various relevant factors, that there "was some (albeit limited) 'public interest' element to the proceedings" (J2 [47]). But that did not, without more, warrant departure from the ordinary rule that costs follow the event: People for the Plains Incorporated v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157 at [40]. His Honour ultimately could not identify anything "more" that would justify making no order as to costs.
No error is apparent in that reasoning. While it is true that many members of the public have an interest in The Greens NSW submitting candidates for the state election (an interest possibly inconsistent with the bringing of the proceedings) (J [101]), those members of the public do not necessarily have an interest in the precise manner in which those candidates are chosen. That is, at least directly and primarily, a matter of interest to the persons nominated, and to the members of the Greens who voted for them according to the party's internal processes (J2 [49]-[50]). The proceedings had a public interest "element", but that element was not exclusive of the plaintiffs' private concern, as members of a political party (or of an incorporated association which in turn is a member of a political party), for the enforcement of that organisation's rules. It was for the primary judge, in the exercise of his Honour's discretion and having regard to the fact that "something more" was required than there being some public interest in the proceedings, to determine whether it was appropriate that there be no order as to costs. His Honour's conclusion is not so unreasonable as to suggest some latent error of principle.
Turning then to the position of the fifth respondent, Ms Boyd was not, as the primary judge stated at J2 [13], the candidate "who had been bumped up from fourth place". She was the second placed candidate on the list of nominees (J [33]). Nevertheless, the primary judge was correct to find that she had "a particular interest in the proceedings" (J2 [13]), there being evidence that in the event of a full recount she would lose her second place on the list of nominees. Her interest was not, therefore, necessarily identical with that of The Greens NSW. The latter might, for instance, have elected to compromise the proceedings and commence a recount so as to minimise the risk that the party would be unable to submit any list of nominees. In any event, the expedition with which the proceedings were commenced and resolved did not readily facilitate the defendants exploring their respective positions and considering the prospect of common representation.
The position of the fourth respondent is less straightforward. The primary judge accepted his explanation for his failure to appear on 1 March 2019, which was that he and his representatives assumed the application would be heard and determined on Monday 4 March 2019 (J2 [20], [21]). That assumption was consistent with the plaintiffs' position as stated on 28 February, and with para 8 of their summons as filed on 1 March. It was not consistent with the position of Ms Boyd, who, as was made clear in an email sent to Mr Shoebridge that evening, insisted that the matter be determined on 1 March. It was also inconsistent with the email sent to all of the parties, including Mr Shoebridge, by Robb J's associate on the morning of 1 March, which stated that his Honour "expects all the parties to appear this morning at 10:00am before him". However, even having regard to those communications, the position remains that the likelihood is Mr Shoebridge was "induced to incur legal costs on the basis of an understanding that he would have to deal with [the plaintiffs'] claim on 4 March 2019" (J2 [21], [53]). The mere possibility of error in that finding cannot justify a grant of leave.
Mr Shoebridge was the first placed candidate on the list of nominees. There is no evidence to suggest the primary judge erred in finding there was no "real risk" of him losing his position on a recount (J2 [14]). Accordingly, his interest was in ensuring that the list of nominees, however derived, was submitted to the Electoral Commissioner before the close of nominations: that is, essentially the same interest as The Greens NSW. Again, however, the likelihood is that the expedition with which the proceedings were commenced and resolved - the first defendant's written submissions were only provided to the other parties on the morning of 1 March - did not give Mr Shoebridge sufficient time to consider his position and to realise that fact. Theoretically, at least, it was possible that he could be displaced by a recount. In the circumstances it can be no more than merely arguable that his Honour erred in ordering that the plaintiffs pay Mr Shoebridge's costs: cf The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13] (Bathurst CJ, Beazley and McColl JJA agreeing).

Conclusion on the costs application

Leave to appeal against the costs orders of 16 January 2020 should be refused. It is, however, appropriate to say something about the bills of costs of the fourth and fifth respondents, both of which are in evidence.
The fourth respondent's costs of the proceedings below were said to be $5,005 as at 10 February 2020. (In argument before this Court, the applicant suggested that $9,000 was now claimed.) The majority of those costs were incurred after final orders were made on 1 March, and for legal work performed in the pursuit of Mr Shoebridge's limited costs of preparation for a hearing which never took place. The fifth respondent claimed costs and disbursements of $79,563 for a matter heard and determined over a single day, involving limited evidence and in which her submissions were substantially the same as those of the first respondent. Neither bill of costs has been assessed. Particularly in the fifth respondent's case, it would be surprising if, as assessed, her fair and reasonable costs were not substantially less than those presently claimed.

Conclusion

The applicant tendered affidavit evidence explaining, at least in part, his delay in filing the summons seeking leave to appeal. It appears that no objection is pressed on the basis of that delay. His application for an extension of time in which to file his summons seeking leave to appeal should be granted, but his summons dismissed. His notice of motion filed 1 December 2020, which sought orders preventing the fourth and fifth respondents from enforcing the costs orders pending the determination of any appeal, should also be dismissed.
The substantive application was of no practical utility, and the costs application relevant only to the applicant and the ninth respondent. The applicant must pay the costs of the summons and amended summons seeking leave to appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2020

Electoral Act 1918(Cth)

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