Plaintiffs v Defendants

2 On 21 December 2010 the then sitting member for the seat of Broadmeadows, the Honourable John Brumby, formerly premier for the State of Victoria, resigned as the member for that seat. The rules of the ALP Victorian Branch sets out a mechanism by which to select candidates to contest elections. In this case the plaintiffs contend that the process being followed is not that permitted by the rules and is otherwise unlawful. The first plaintiff is a member of the Victorian Branch of the ALP and is the Executive President of the HSU East Branch of the Health Services Union which is affiliated with the ALP. She is also a member of the Administrative Committee of the Victorian Branch of the ALP which has functions to perform, and have been performed relevantly to this case, under the Victorian rules. The second plaintiff is a member of the Victorian Branch of the ALP and the Victorian State Secretary of the National Union of Workers which is also affiliated with the ALP. The third plaintiff is the State Secretary of the Construction, Forestry and Mining Employees Union which is also affiliated with the ALP. The fourth defendant is a member of the Victorian Branch of the ALP and is the State Secretary of the Victorian Branch of the Shop Distributive and Allied Employees Association which is another union affiliated with the ALP. The fifth plaintiff is a member of the ALP and resides in the electorate district of Broadmeadows.

3 The test to determine whether to grant interlocutory injunctions requires the plaintiffs to establish that there is a serious question to be tried. It is for the plaintiffs also to establish that they are likely to suffer injury for which damages will not be an adequate remedy, and that the balance of convenience favours the granting of an injunction in all the circumstances.[1]

4 The plaintiffs' complaint is that the process required by rule 18 of the Victorian Branch rules must, but has not, and will not, be followed. Instead, a motion was passed at a special Administrative Committee meeting on 25 January 2011 resolving and requesting that the National Executive invoke its plenary powers under National rule 7 in relation to the 2011 ALP pre-selection for the Legislative Assembly seat of Broadmeadows. That motion was carried by the Administrative Committee on a vote of 18 for and 13 against. It followed the defeat of a previous motion for the adoption of a pre-selection timetable which was set to accord with the procedures in rule 9.3.3(d) and rule 18 of the Victorian rules. That motion was defeated on a vote of 13 for and 18 against. The defendants maintain that rule 18 is not mandatory or absolute and, in any event, that it is not an enforceable provision.

5 Rule 18.5 of the Victorian rules identifies the people or bodies within the ALP with the task of selecting candidates for certain public offices. Rule 18.5(c) contemplates a Public Office Selection Committee to elect a ten member municipal pre-selection panel. Rule 18.8 provides:

Where in any election in the opinion of the Administrative Committee the time between the calling of nominations for any by-election and the holding of such by-election makes it impossible to conduct a plebiscite of local members then the members of the POSC and any local pre-selection voters present at the scheduled time for the pre-selection shall proceed to elect a candidate with their ballots weighted in accordance with these Rules.

It is clear that this provision will not be followed in the case of the pre-selection for the ALP candidate which needs to be made before noon next Monday.

6 The critical question in this proceeding is, therefore, whether this provision so governs the position of the parties that it must be followed in this case. In considering that question it is necessary to bear in mind the terms of the rules and the fact that they are rules of a political party. The Victorian rules themselves expressly provide that they are not enforceable at law. Rule 23.1 under the heading "Rules Not Enforceable in Law" provides:

It is intended that these Rules and everything done in connection with them, all arrangements relating to them (whether express or implied) and any agreement or business entered into or payment made by or under them, will not bring about any legal relationship, rights, duties or outcome of any kind, or be enforceable by law, or be the subject of legal proceedings. Instead all arrangements, agreements and business are only binding in honour.

The Victorian rules also provide that any dispute between the parties arising under the rules be resolved pursuant to the terms of the rules, namely, through the dispute resolution provisions found in the rules, rather than by recourse to litigation. In that regard rule 23.2 provides:

Without limiting Rule 23.1, it is further expressly intended that all disputes within the Party or between one member and another that relate to the Party be resolved in accordance with these Rules and the National Constitution and not through legal proceedings.

Rule 23 concludes by providing that by joining the party and remaining members all of the members of the party consent to be bound by Rule 23. The Victorian rules contain extensive provisions for dispute resolution other than by recourse to litigation. Those provisions have not been invoked by the plaintiffs to resolve the present dispute.

7 The process adopted by the resolution of the Administrative Committee on 25 January 2011 is to have the National Executive invoke its powers under the national rules. The precise relationship between the Victorian rules and the National rules is not spelt out in either instrument as clearly as a lawyer might wish. However, the relationship between State and National rules was considered in Burton v Murphy.[2] The issue as raised by the pleading in that case was described by D.N. Campbell J as "simply whether the National Rules were binding on the Queensland Branch."[3] The Full Court of the Supreme Court of Queensland held in the affirmative. Although each of their Honours expressed themselves somewhat differently, their conclusion was to the same effect. That conclusion flowed from a consideration of the instruments in light of their nature as being to govern the members of a national political party with State branches. W.B. Campbell J expressed the matter in these terms. His Honour said:

In my opinion the material has shown that the Queensland body is not an organisation which is wholly autonomous and independent; its own rules illustrate that it has through its management organs, acting on behalf of its members, agreed to become part of a larger organisation, namely, the National body. It has recognised that rules are made from time to time by the National body, it has sent delegates to the National body to take part in the making of such rules, and the rules of the State body show that it has agreed that its members are subject to the rules of the National body. A person who is or becomes a member of the Queensland body also becomes a member of the National body.[4]

The same may be said about the position of the Victorian Branch under the Victorian rules. So much can also be seen from rule 23.2 alone, set out above. Many other provisions in the Victorian rules also contemplate a national structure and an integration of the Victorian Branch within that national structure.

8 The national rules are couched in broad terms. Rule 7 provides the decisions of the National Executive are binding on all sections and members of the ALP subject only to appeals to the national conference. Rule 7(d) provides:

Subject only to the National Conference, the National Executive may exercise all powers of the Party on its behalf without limitation, including in relation to the State branches and other sections of the Party.

Rule 7(e) sets out a number of the powers contemplated to fall within the plenary powers conferred upon the National Executive pursuant to rule 7(d). The structure thus provided for permits the very process contemplated by the resolution of the Administrative Committee passed on 25 January 2011. That resolution may not give effect to the terms of rule 18 of the Victorian rules nor may it give effect to the spirit embodied in that rule and it may not accord with what might be thought to be the purpose of the branches selecting for themselves the candidates to contest elections on behalf of the branches. Indeed, the resolution may not even be thought to have been followed in "honour," as rule 23.1 suggests that it should. Nor might it be thought to be consistent with democracy at grass roots. It is, however, embedded in the process adopted by the ALP and I am not persuaded that the plaintiffs have established a serious question to be tried to the contrary. In my view the terms of rule 18 of the Victorian rules are not legally independent of the operation of the National rules. Rule 18 of the Victorian rules is not intended to be legally binding, as is made clear by Rule 23. Even if Rule 18 were legally binding it is not intended that the dispute about its application be resolved by legal proceedings rather than by the internal dispute resolution process provided by the rules: see Cameron v Hogan.[5]

9 I would not, in any event, be minded to grant interlocutory relief on the balance of convenience. The orders sought by the plaintiffs would effectively, and inevitably, finally resolve the dispute in their favour, leaving the defendants without the ability to maintain the rights they assert. The dispute has arisen in the ordinary affairs of a political party in the context of different groups seeking to achieve different outcomes through different procedures. There is no sense in which the orders sought by the plaintiffs would maintain a status quo enabling the parties to have resolved their legal disputes at a subsequent, and final, hearing of the proceeding. The plaintiffs have proffered an undertaking as to damages but the harm that would be suffered by the defendants if ultimately successful is not something which monetary damages could adequately, realistically or sensibly compensate.

10 Nor am I persuaded that I should make the orders of the kind sought. The evidence relied upon by the plaintiffs does not establish a secure foundation for the court to make orders that would adequately secure compliance with rule 18.8. I am told that an appropriate hall is available to conduct a meeting and that there is a reliable list of potential voters at a local meeting. However, the time now available to give notice and to check eligibility of voters gives me no confidence that a meeting now convened would produce a reliable outcome. The orders which this Court may make should not carry a real risk of causing the outcome to be more doubtful. The Court's intervention should not carry a real risk of making things worse.

11 It follows that it is unnecessary to consider the interesting arguments about the justiciability of the issue raised by the proceedings or to consider the extent to which the decision in Cameron may be distinguished in this proceeding, or whether it was properly distinguished in such cases as Baldwin v Everingham[6] and Clarke v Australian Labor Party (South Australian Branch).[7] In Cameron the High Court held that the rules of an association did not operate to create enforceable contractual rights and duties between members, and that courts will not intervene in the internal affairs of a political party. In Baldwin Dowsett J held that a dispute concerning the rules of the Queensland division of the Liberal Party of Australia registered as a political party under the Commonwealth Electoral Act 1918 (Cth) was, by reason of that legislation, justiciable. Critical to his Honour's decision and distinguishing the earlier High Court decision was the fact of statutory recognition of the party in the Commonwealth Act which, by parity of reasoning, had been critical in the earlier decision in Edgar & Walker v Meade.[8] Edgar & Walker had been decided before Cameron and by a member of the High Court who also decided Cameron.[9] Baldwin has been followed in Clarke and Coleman v Liberal Party of Australia, New South Wales Division (No 2)[10] in 2007.

12 Accordingly, I dismiss the summons and will hear the parties about any consequential orders.

[1] See Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57; Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618.

[2] [1983] 2 Qd R 321.

[5] [1934] HCA 24; (1934) 51 CLR 358, 384 (Starke J).

[6] [1993] 1 Qd R 10.

[7] (1999) 74 SASR 110.

[8] [1916] HCA 70; (1916) 23 CLR 29.

[9] See Baldwin v Everingham [1993] 1 Qd R 10, 20 (Dowsett J)

[10] [2007] NSWSC 736; (2007) 212 FLR 271.