Zaiter v Ruddock

Procedural issues

1. These proceedings were commenced in the Duty List by a summons filed on 28 June 2021. They have been heard urgently because the last day for nominations in the Forthcoming Elections is 4 August 2021. On the same days as I heard these proceedings, I also heard two other proceedings which raised similar, but not identical, issues in relation to two other local government areas. The Court's judgment in those two matters was published simultaneously with these reasons: Diaz v Ruddock; Attie v Ruddock [2021] NSWSC 881.
2. When the original summons was filed, the named defendant was "Liberal Party of Australia (NSW Division)". There have been a number of cases over the years in this Court that have been so constituted without objection. However, strictly speaking, because the Party is unincorporated, there is no such entity properly able to be joined in proceedings.
3. This point was taken by Mr Camenzuli, who also sought to be joined as a defendant. While Mr King opposed the reconstitution of the proceedings and the addition of Mr Camenzuli as a separate defendant, the first to seventh defendants did not. The point taken about the legal status of the Party was plainly correct and, on 1 July 2021, the Court made these orders: "1. Order that the "Liberal Party of Australia (NSW Division)" is removed as the Defendant to these proceedings. 2. Order that the following persons are joined as parties to these proceedings: a. Hon. Philip Ruddock AO as the First Defendant; b. Chris Stone as the Second Defendant; c. Penny George as the Third Defendant; d. Christopher Rath as the Fourth Defendant; e. Tobias Lehmann as the Fifth Defendant; f. Aileen MacDonald OAM as the Sixth Defendant; g. Mary-Lou Jarvis as the Seventh Defendant. h. Matthew Louis Camenzuli as the Eighth Defendant; 3. Order, pursuant to r 7.6 of the Uniform Civil Procedure Rules 2005 (NSW) and all other enabling powers, that the First to Seventh Defendants are appointed to represent the members of the unincorporated political party known as The Liberal Party of Australia, New South Wales Division, other than the Plaintiff and the Eighth Defendant."
4. Since those orders were made, the first to seventh defendants have filed a submitting appearance save as to costs.
5. The status quo in relation to the exercise by State Executive of its powers in the present case has been preserved by an interlocutory injunction that was not opposed by the defendants.
6. The proceedings were heard by reference to the amended summons, which sought relief including: "Final Relief 2A Declaration that in the events which have happened for the purposes of the general local government elections to be held on 4 September 2021 in NSW where there is no LGC in a local government area the NSW Division by its State Executive has no authority to endorse and/or select candidates for the said general elections including but not limited to the City of Parramatta Council under clause 26.1.4 of the Constitution of the Liberal Party of Australia New South Wales Division adopted on 9 November 2019 (the Constitution). 3 Declaration that unless and until a Local Government Conference under the Constitution has been formed in respect of a local government area, the State Executive of NSW Division has no authority to modify the procedures of the NSW Division for selection of candidates for the office of councillor or dispense altogether with the procedures and endorse a member of the Organisation NSW Division as the NSW Division's candidate for that office under clause 21.6.4 of the Constitution. 4 Declaration that unless and until the preconditions of sub-clause (1) and/or (2) of clause 21.6.4 are satisfied with respect to vacancies for elected office at a general election or casual vacancies exist the State Executive of NSW Division has no authority to modify the procedures of the NSW Division for selection of candidates for the office of Councillor of the City of Parramatta Council at the next ordinary election on 4 September 2021 or dispense altogether with the procedures and endorse a member of the Organisation as the NSW Division's candidate for that office under clause 21.6.4 of the Constitution in circumstances where there are no Liberal vacancies on the Council and/or by reason of the failure of the State Executive to comply with clause 21.6.4(2). 5 Declaration that, on the proper interpretation of the Constitution of the NSW Division, the only option properly available to the State Executive and the NSW Division, between the date of the filing of the Summons to and including 4 August 2021, to select and endorse candidates of the NSW Division in the City of Parramatta Council ordinary election on 4 September 2021, that does not involve an invasion of the rights of the Plaintiff, is pursuant to the power provided for by clause 13.2.4 of the Constitution. 6 The Defendants by their servants or agents or otherwise be restrained from using the "Urgency Provisions" set out in clause 21.6.4 of the Constitution in respect of the local government of NSW elections in the City of Parramatta Council local government area to be held on 4 September 2021. 6A The Defendants by their servants or agents or otherwise, be restrained from using clause 26.1.4 of the Constitution in respect of the local government of NSW elections in the City of Parramatta Council local government area to be held on 4 September 2021."

The Constitution

1. The specific provisions of the Constitution that are the focus of the present dispute are set out in the course of these reasons. However, it is necessary to construe them in the context of other provisions. For ease of readability of these reasons, all provisions referred to are reproduced in the appendix. Unless otherwise stated, all references to clauses in these reasons are references to provisions of the Constitution.
2. It is convenient to make five preliminary points about the Constitution, including the Court's approach to its construction.
3. First, it was common ground that the Forthcoming Elections were an "imminent election" within the meaning of cl 13.2.4(1) and that the provisions of that clause were available to be used by State Executive in the present circumstances in relation to selecting and endorsing candidates. That clause provides: "Notwithstanding any other clause in this Constitution, if the imperative to campaign effectively for an imminent election is deemed by State Executive (at its discretion) to require suspension of any of the preselection processes of the Division, or in circumstances where the conduct of a member is deemed by State Executive (at its discretion) to be so egregious as to require disciplinary action that is not otherwise permitted by this Constitution, State Executive may by motion of 90% of those present and voting, waive any provision of this Constitution and substitute for that provision any other provision it thinks fit. The State President shall report to the next meeting of State Council the text of the motion carried under this clause."
4. Second, Mr King referred to a provision such as cl 21.6.4 being a "carve out" from cl 13.2.4(1). In the course of argument, I suggested it might be the other way around. However, either way, to speak of a "carve out" is, with respect, a misleading metaphor unsupported by the language of the Constitution. The provisions of the Constitution in relation to the "preselection processes" referred to in cl 13.2.4(1) are to be given effect in accordance with their natural and ordinary meaning in the context in which they appear. The fact that they can be overridden ("notwithstanding any other clause in this Constitution") when the conditions for the exercise by State Executive of its powers under cl 13.2.4 are satisfied does not affect their interpretation.
5. Third, with one exception, the Constitution contains no express guidance as to its interpretation. That exception is what is set out on the inside cover of the Constitution: "The table of contents and index were inserted for convenience only. They are not part of this Constitution and are not to be used in its interpretation or construction."
6. Fourth, there was no dispute that the Constitution was to be interpreted in accordance with the general principles of construction applicable to private law contracts, in this case a multipartite contractual document between the members of the Party, represented by State Council which is the body charged with making amendments to the Constitution. In the absence of express provision to the contrary, those principles include that headings may be taken into account: Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2014, Thomson Reuters) [23.20].
7. Fifth, there were some references during the course of argument to the effect, if any, on the process of construction arising from the nature of the document as a "constitution". Insofar as this referred to taking into account that it was the governing document of a major political party with all that might entail as a practical matter, the proposition is unexceptional. However, if this was an attempt to invite the Court to prefer uncritically an ambulatory approach to construction because, by analogy with national constitutions, it was a document intended to endure for the ages, I do not agree.
8. Most national constitutions are drafted in such a way that they cannot be easily amended. In this case, the inside cover of the Constitution itself records that it has been amended 14 times since its adoption in 2000. Furthermore, cl 28.6 provides for a review of the document every three years. It has been said that a day is a long time in politics. It is unsurprising that a political party provides for regular review of its governing rules. I therefore do not regard the analogy with national constitutions to be apt to provide any guidance as to how the Constitution should be interpreted. Equally, I do not consider the fact that a provision could have been amended but was not as being a matter which casts any light on questions of interpretation.

The facts

1. There was no cross-examination of any deponent of the affidavits that were filed. The parties prepared statements of fact. There was argument about their contents, in some cases over precise expression, in other cases as a matter of substance. Those facts about which there was disagreement were largely directed to explaining the underlying factional dispute or speculating about what one faction or another might do. As I have noted in [4] above, that evidence was rejected as irrelevant to the questions before the Court. However, the basic facts relevant to the task of interpretation were ultimately not matters that could be seriously disputed. What follows are the Court's findings of fact which are primarily matters not capable of sensible controversy.
2. Mr Zaiter is a member of the Party, a member of State Executive and a Councillor of the City of Parramatta.
3. Mr Camenzuli is a member of the Party, a member of State Executive and a resident of the City of Parramatta.
4. The Party is the unincorporated political party referred to in the Constitution of the Liberal Party of Australia New South Wales Division as adopted by State Council on 22 July 2000 and as amended from time to time, including most recently on 9 November 2019.
5. All members of the Party are bound by the Constitution.
6. The Court infers from the nature and public role of the Party, and from the language of the Constitution itself, that the Constitution (including amendments) has been drawn with the benefit of legal assistance.
7. The Constitution contains the Party's detailed rules of conduct, including for the nomination, selection and endorsement of candidates for publicly elected office in New South Wales at the local, State and Federal levels of government.
8. State Executive has the management of the Party under Part 13 of the Constitution between State Council meetings.
9. The Local Government Oversight Committee (LGOC) is a standing committee under the Constitution.
10. Mr Zaiter intends to nominate for election as a Party candidate on or before 4 August 2021 if endorsed to do so.
11. On 28 September 2019, the Winston Hills branch of the Party passed a motion to form a new LGC in accordance with cl 8.3.1. However, the Party Secretariat declined or failed to commence the process to form a new LGC for the City of Parramatta. At the time of the hearing of these proceedings, there was no LGC for the City of Parramatta within the meaning of the Constitution.
12. On 9 November 2019, the Constitution was amended by resolution of State Council at its annual general meeting to insert cl 26.1.4 (emphasis added): "26.1.4 Selecting candidates where there is no Local Government Conference For the purposes only of the local government elections to be held in 2020, if there is no LGC in a local government area which State Executive has resolved the Party will contest, then State Executive may endorse, by a motion of 60% of those present and voting, a Member/s to be the candidate/s to contest the election in that local government area."
13. As at 9 November 2019, the Local Government Act 1993 (NSW) (the LG Act) relevantly included: "Part 4 When are elections held? 287 When is an ordinary election of councillors held? (1) An ordinary election of the councillors for an area is to be held on the second Saturday of September 2008 and on the second Saturday of September in every fourth year after 2008. (2) An election of the councillors for an area is to be held on a Saturday proclaimed for the purpose if - (a) the area is constituted after the commencement of this Part, or (b) the council for the area is dismissed, or (c) the council is declared to be non-functioning under section 257. … Part 6A Postponement of elections 318A Definition In this Part - election requirements of this Act means the requirements of Parts 4 and 5 with respect to the holding of an ordinary election referred to in section 287 or a by-election referred to in section 292. 318B Postponement of elections (1) The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to a specified council if - (a) the council is the subject of - (i) an investigation under section 430 or any other provision of this Act, or (ii) a public inquiry, or (iii) an investigation by an authority (as defined in the Dictionary at the end of this Act) under any Act, or (b) without limiting anything else in this subsection, a matter affecting the boundaries of the council's area is under consideration by the Boundaries Commission (whether or not involving an inquiry by the Commission). (2) The latest date to which the election requirements of this Act may be postponed by an order under this section is - (a) the date occurring 12 months after the order is made, or (b) if the postponement is extended by a further order under this section, 31 December in the calendar year following that in which the first such order was made. (3) An order may be made under this section even though the election requirements of this Act are in operation with respect to an election for the council. (4) On the making of an order under this section - (a) the election requirements of this Act are suspended in relation to the council for the period specified in the order, including with respect to an election for which the election requirements of this Act were in operation when the order was made, but not with respect to an election held on or before the day on which the order is published, and (b) the retiring councillors continue in office (subject to this Act) until an election is held, and (c) anything already done, under or for the purposes of those requirements in relation to the council for an election that would (but for the making of the order) have been held during the suspension period, has no effect or operation, and (d) a person who is taken to have been elected under section 311 at an election that would (but for the making of the order) be held during the suspension period is taken not to have been elected. (5) The suspension ceases to have effect if the order is revoked under section 318C. (6) If the suspension ceases to have effect through the passage of time and not through revocation of the order, the provisions of section 318C (other than subsections (1)(a) and (3)(a)) apply as if the order had been revoked. (7) If while an order under this section is in force a casual vacancy occurs in the office of mayor elected by the electors, the casual vacancy is to be filled in accordance with the provisions of section 295 as if it were a casual vacancy in the office of mayor elected by the councillors."
14. In March 2020, the COVID-19 outbreak was declared a global pandemic.
15. On 25 March 2020, the LG Act was amended by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (No 1) (NSW) to include s 318B(1)(a1): "(1) The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to a specified council if - (a1) the Minister believes that, having regard to the COVID-19 pandemic, it is reasonable in the circumstances to order the postponement, or …"
16. An ordinary election of the councillors for the City of Parramatta was to be held on 12 September 2020 (being the second Saturday of September in the twelfth year after 2008) (the Scheduled Elections): see s 287(1) of the LG Act.
17. By an order published on 12 June 2020, the Minister for Local Government postponed the election requirements of the LG Act pursuant to s 318B(1)(a1) until 12 months after that order.
18. On 26 June 2020, the Minister for Local Government made an order further postponing the election requirements of the LG Act to 4 September 2021 in these terms: "I, the Hon. Shelley Hancock MP, Minister for Local Government, in pursuance of sections 318B(1)(a1) and 318(2)(b) [this appears to be an error, presumably intended to refer to s 318A(2)(b)] of the Local Government Act 1993 (Act), do hereby further order that the election requirements of the Act in relation to the ordinary election that was due to be held on 12 September 2020 for all councils in New South Wales and which, by order made under section 318B(1)(a1) of the Act on 12 June 2020 was postponed for twelve months after that order was published, be further postponed to 4 September 2021. This further order is made by reason of my belief, having regard to the continuance of the COVlD-19 pandemic, that it is reasonable in the circumstances to order the extending of the postponement. For the avoidance of doubt, the postponement of the ordinary election extends to and suspends an election requirement for a by-election referred to in section 292 of the Act arising between the date of this Order and the date of the ordinary election to be held on 4 September 2021."
19. On 28 November 2020, State Council met. No resolution was passed to amend cl 26.1.4.
20. A State Council meeting was scheduled for 8 May 2021 but it did not take place.
21. On or about 29 June 2021, the New South Wales Electoral Commission made its "Nominations Online Management System" available to prospective candidates.
22. On 1 July 2021, the "capped local government expenditure period" for the local government elections commenced (that is, the period of time in which it is unlawful for a party, group, candidate, third-party campaigner or associated entity to incur electoral expenditure for a local government election campaign that exceeds the applicable cap on electoral expenditure): see Electoral Funding Act 2018 (NSW) ss 28, 33(2).
23. The New South Wales Electoral Commission will open nominations for the Forthcoming Elections on 26 July 2021.
24. The nomination day (the last day on which a candidate may be proposed for nomination) is 4 August 2021 (being the fifth Wednesday before the day of the election): see Local Government (General) Regulation 2005 (NSW) reg 286, 289. The nomination day is also the last day on which the registered officer for a political party may apply for the name of a party to be printed adjacent to the name of a candidate on the ballot paper: see LG Act s 321.
25. There was no evidence that State Executive has made a formal decision under cl 21.6.4 that would enliven its powers under that clause.

The issues of construction

1. There were two issues of construction of the Constitution presented for determination: the construction of cll 26.1.4 and 21.6.4. The main debate concerned the application of cl 26.1.4. To the extent it was suggested that cl 21.6.4 was available to State Executive (this being the focus of the other two proceedings heard by the Court), the argument in these proceedings was limited to the effect of cl 21.6.4(2) in circumstances where there was no LGC for the City of Parramatta.
2. As I have noted in [19] above, there was no dispute about the applicable legal principles. I therefore do not propose to burden these reasons with hornbook extracts of authorities. The parties agreed that cl 26.1.4 was to be interpreted as at the time it was introduced into the Constitution (November 2019). I have approached the matter on the basis that the task of the Court is to ascertain State Council's intention as to the meaning of the clause in accordance with the objective theory of contract, by reference to the natural and ordinary meaning of the text, but taking into account matters such as context, circumstances, purposes and consequences.

Clause 26.1.4 - Mr Zaiter's submissions in chief

1. I again reproduce cl 26.1.4 for convenience (emphasis added): "26.1.4 Selecting candidates where there is no Local Government Conference For the purposes only of the local government elections to be held in 2020, if there is no LGC in a local government area which State Executive has resolved the Party will contest, then State Executive may endorse, by a motion of 60% of those present and voting, a Member/s to be the candidate/s to contest the election in that local government area."
2. Mr King's submissions may be summarised as follows: 1. The text is clear: "local government elections to be held in 2020". The Forthcoming Elections are local government elections held in 2021. If Mr Camenzuli's construction was correct, the clause could refer to elections postponed to 2025. 2. The critical words were "only" and "in 2020". 3. The word "only" required a restricted or narrow construction. Reference was made to these observations of Windeyer J in Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 94; [1959] HCA 63 (citations omitted): "The presence of "exclusively", "solely", or "only" always adds emphasis; and is not to be disregarded. When such words are present, it is a question of fact whether the land is being used for any purpose outside the stipulated purpose." 1. The clause could have said "the 2020 Local Government Elections" but it did not. What was critical was the year in which the Scheduled Elections were to be held. 2. In relation to context, the threat of COVID-19 was unknown in November 2019 and says nothing about the purpose or object of introducing cl 26.1.4. Furthermore, it was clear (see [40] and [41] above) that State Council had the opportunity to amend cl 26.1.4 in November 2020 and May 2021 and had not done so. This supported the conclusion that the clause did not refer to elections that had been postponed to 2021. 3. Mr King explained the purpose of the introduction of cl 26.1.4 (Tcpt, 15 July 2021, p 35(34-44)): "The reason is that the November provision was inserted only because of the difficulties that had arisen - and we've put the case on the list - of the forced amalgamation of local authorities between 2016 and 2019, which had led to difficulties in relation to identifying which members were parts of Local Government conferences. But what the State Council did not want to happen was to allow the window, which was to deal only with that emergency position, to be opened permanently so as to avoid firstly the formation of Local Government conferences so that ordinary members of the Party could be represented, and secondly the selection procedures, which are part 21 of the Constitution, to give those ordinary persons the opportunity to vote for their candidates in elections." 1. To construe cl 26.1.4 in the way proposed by Mr Camenzuli would lead to an inconvenient or capricious result in two respects. First, it would not reflect the language of cl 26.1.4. Second, it would allow a 60% majority on State Executive (rather than 90% - effectively unanimity - under cl 13.2.4) to make a decision in 2021 about something that was only meant to be temporary relating to an election to be held in 2020.

Clause 26.1.4 - Mr Camenzuli's submissions

1. Mr Robertson put Mr Camenzuli's case on the construction of cl 26.1.4 in two ways, although each was supported by the same considerations and might ultimately be regarded as two different processes to get to the same result.
2. The first approach was to construe "the local government elections to be held in 2020" as including any postponement of those elections in accordance with the LG Act. It was said that if the Court accepted that approach, Mr Camenzuli had succeeded in demonstrating that cl 26.1.4 remained available to be used by State Executive.
3. The alternative approach required two steps: one of "construction" and the other of "application". The point of this approach was that if the Court construed "local government elections to be held in 2020" as meaning literally exactly that, then there was still a question of "application", being whether the Forthcoming Elections are the very thing referred to in the Constitution as "the local government elections to be held in 2020".
4. Either approach is supported by considerations which may be summarised as: 1. The clause was to be interpreted as at the time it was inserted, being November 2019. 2. The clause was directed to "the local government elections to be held in 2020". These were an objectively identifiable "thing" or "event". To read the clause in this way gave more emphasis to the text than the approach contended for by Mr Zaiter. 3. That "thing" or "event" had to be understood as having its existence by reason of the LG Act. The Scheduled Elections had not been cancelled, extinguished or replaced pursuant to the LG Act. What had occurred (see the provisions set out in [34] above) was that the "election requirements" of the LG Act including the requirement under s 287(1) to hold an ordinary election "on the second Saturday of September in [2020]" - the Scheduled Elections - had been postponed. Postponed had its ordinary meaning of "to put off to a later time; defer" (Macquarie Dictionary). While the date may have changed, that postponement did not change the nature of the thing being postponed, being the Scheduled Elections: "an ordinary election of the councillors" for, in this case, the City of Parramatta, that but for the postponement, was to be held on that Saturday in 2020. 4. It follows that the Forthcoming Elections are "the local government elections to be held in 2020" referred to in cl 26.1.4, albeit taking place in 2021. This was no different to the Tokyo 2020 Olympics which are being held in a few weeks' time or the Euro 2020 Football Championship that has only recently been concluded. 5. Contrary to Mr King's submission, the Scheduled Elections were not something which could be postponed to 2025. As at November 2019, the effect of s 318B(2)(b) was that the latest the Scheduled Elections could be postponed to was 31 December 2021. That was an important circumstance that had to be taken to be known to the members of State Council at the time the Constitution was amended to include cl 26.1.4. 6. The error in Mr Zaiter's case was that it invited the Court to give the relevant words an ambulatory effect by looking backwards from today to reach the conclusion that the election did not take place in 2020. Read in that way, the clause was superfluous because we now know that the election didn't happen in 2020. However, the correct approach must be to consider the position in November 2019 to determine what State Council intended by cl 26.1.4. 7. The fact that no further amendments have been made to cl 26.1.4 since the COVID-19 pandemic struck says nothing about State Council's intention in November 2019. At best, it may say something about what members of State Council later thought the clause meant, but that is irrelevant: see National Grid Company Plc v Mayes; International Power Plc v Healy [2001] 1 WLR 864 at 881; [2001] UKHL 20 per Lord Hoffman.

Clause 26.1.4 - Mr Zaiter's submissions in reply

1. Mr King made two points in reply.
2. First, he referred to the LG Act in support of his proposition that the Forthcoming Elections are not at all the same thing as the "local government elections to be held in 2020" referred to in cl 26.1.4. He drew attention to a sample of what he said were many references in the LG Act to the "next ordinary election": for example, s 210(6), s 210B(5), s 224(2), s 224A(5), s 276(2)(a); and references to the "next election" in provisions relating to the rolls, such as s 299(1A) and s 300(1A). He submitted that the Forthcoming Elections are the "next" election (and not the "elections to be held in 2020") because they are happening in a different year with different rolls, electors and perhaps even candidates.
3. Second, Mr King submitted that invoking the examples of the Tokyo 2020 Olympics or Euro 2020 was of no assistance because these were just marketing labels.

Clause 26.1.4 - Consideration and conclusion

1. The Court accepts Mr Robertson's submissions set out in [54] above as making good either of the two approaches which he advanced in [52] and [53] to get to the same result. The result is that, on its proper construction, and while there is no LGC for the City of Parramatta local government area, cl 26.1.4 of the Constitution may be used to endorse candidates for the Forthcoming Elections in the City of Parramatta.
2. The submissions advanced by Mr King had an initial attraction for their literalism, but whether a literal reading yields the correct construction depends on construing the words in their context and what are sometimes called surrounding circumstances. Ambiguity is not required to take surrounding circumstances into account: Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295.
3. In the present case, the context of "the local government elections to be held in 2020" is a provision set among other provisions for the selection of local government candidates. An important surrounding circumstance is that, as a matter of fact at the time the clause was passed, the next such elections under the LG Act were to take place in 2020.
4. However, the decisive surrounding circumstance which overcomes any initial attraction in Mr King's submissions is that cl 26.1.4 was directed to an event that had its existence from, and was governed by, the LG Act. This was the law and, as such, a reasonable person in the position of the members of State Council would be taken to know that the Scheduled Elections were governed by the LG Act, the provisions of which were readily ascertainable. Those provisions are, therefore, surrounding circumstances for the purposes of construing the clause: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [167]-[177] per Campbell JA (Spigelman CJ and Handley AJA agreeing).
5. As at November 2019, and quite apart from later amendments to account for COVID-19, it was always a possibility that, for one of the reasons then specified in the LG Act, the Scheduled Elections could be postponed to no later than 31 December 2021. A reasonable person in the position of State Council and knowing of that possibility would understand the expression "local government elections to be held in 2020" to be intended to include that possibility. The fact that the statutory reason for postponing the Scheduled Elections was different to what was in the LG Act in November 2019 does not diminish the significance of this point. The Scheduled Elections were governed by the LG Act, which made provision for postponement. The reasonable person would also have known of the possibility that the LG Act could be amended to include other grounds of postponement.
6. The Court accepts the submission that "the local government elections to be held in 2020" were to be understood as a specific "event" or "thing". They were part of the the elections required to be held in 2020 pursuant to s 287 of the LG Act that were part of the "election requirements" postponed pursuant to s 318B of that Act. Postponement, in accordance with its ordinary meaning, means that the event or thing is moved to a later date but not that the event or thing is something different.
7. In the course of argument, Mr King said: "Mr Robertson may have a point if [s 318A of the LG Act] was a suspensory provision but it is not, your Honour, it is a postponement of what otherwise would have occurred" (Tcpt, 15 July 2021, p 60(5)). That submission, with respect, correctly put the effect of "postponement" but overlooked s 318B(4)(a) of the LG Act which provides: "(4) On the making of an order under this section - (a) the election requirements of this Act are suspended in relation to the Council for the period specified in the order …"
8. This necessarily includes suspending the "election requirements" including holding the Scheduled Elections. But those elections were not cancelled or voided by the LG Act. They were merely postponed.
9. Turning to Mr King's other arguments, while it may be accepted that all analogies limp and that they are not decisive, I nevertheless reject Mr King's criticisms of Mr Robertson's analogies of the present situation with events such as the Tokyo 2020 Olympics or Euro 2020. The forthcoming Olympic Games will still be the same event - the Games of the XXXII Olympiad - whether held in 2020 or 2021 and notwithstanding the competitors this year may not be exactly the same as those who would have participated in 2020. These analogies helpfully illustrate the commonly understood meaning and effect of a postponement.
10. Over the last 16 months or so, many significant life events have been postponed. These include 21st birthday parties and weddings. Where it has been postponed from its original date, for example, a 21st birthday party is no less such an event for being celebrated on an individual's 22nd birthday.
11. Mr King was undoubtedly correct to submit that "only" and "in 2020" were important words. However, drawing attention to "only" did not answer the question of to what event or thing "only" related. In any event, and assuming in favour of the argument that "only" pointed to a narrower construction that the event or thing had to be held in 2020 and only 2020, I do not consider that textual indication to outweigh the significance of the statutory context or circumstances set out in [61]-[65] above. The emphasis provided by the use of "only" was that the provision could only be used in relation to the elections referred to in that clause.
12. I accept Mr Robertson's submission (recorded in [54(7)] above) as to why the non-amendment of cl 26.1.4 in more recent times (see [50(5)] above) is irrelevant to the Court's task of construction.
13. There is no evidence to support Mr King's explanation of the origins of clause 26.1.4 (see [50(6)] above). However, even if there were, it would be of no assistance. This is because, for example, there is no suggestion of how long the members of State Council thought the alleged uncertainty might last. The position might have been different if there was evidence that cl 26.1.4 had been introduced against the background of a general understanding that the relevant uncertainties were expected to be resolved by 2021.
14. Mr King's general reliance on the references in the LG Act to "next ordinary election" and "next election" (see [56] above - nothing turning on the express definitions of "election" in the dictionary to the LG Act) does not assist his argument but tends against it. The use of the word "next" gives rise to the question "next after what?", to which the answer is logically (and subject to the precise context in which it is used in each section) "next after the last ordinary election (or election)". The Forthcoming Elections are as much the next ordinary elections after the last ordinary elections as the Scheduled Elections would have been if they had occurred in 2020. That is the effect of postponement. This point is unaffected by the fact that the timing difference means that the Forthcoming Elections will involve rolls, electors, and perhaps candidates different from the Scheduled Elections had the latter occurred in 2020.
15. Finally, the Court does not accept that the matters referred to in [50(7)] above are capricious or inconvenient outcomes in the requisite sense to be taken into account in construing the clause. The submission that the result the Court has reached does not reflect the language of cl 26.1.4 does no more than beg the constructional question. The second contention, which appears to contrast the 60% majority under cl 26.1.4 with the 90% majority required under cl 13.2.4 is, with respect, no more than a reflection of the viewpoint of those who perceive they are somehow disadvantaged by the outcome.

Clause 21.6.4 - Mr Zaiter's submissions

1. Clause 21.6.4 provides (emphasis added): "21.6.4 Urgent Endorsement Procedures for Senate, Legislative Council and Local Government (1) If, with respect to: (a) vacancies in parliamentary office for the Senate or Legislative Council at a general election or casual vacancies; and (b) vacancies in elected office for local government at a general election or casual vacancies, State Executive decides there is insufficient time for the selection of candidates as provided otherwise in this Constitution, State Executive may by motion modify the procedures for selection of candidates for those offices or dispense altogether with the procedures and endorse a member of the Organisation as the Division's candidate for those offices. (2) In the case of vacancies in office for local government, before exercising the power in this clause State Executive must consult with the relevant LGC."
2. As I have noted in [47] above, because it is a fact in these proceedings that there is no LGC for the City of Parramatta, the argument was directed to the effect of cl 21.6.4(2).
3. The submission for Mr Zaiter was straightforward. Compliance with cl 21.6.4(2) is a condition precedent or mandatory prerequisite to State Executive being able to exercise its powers in cl 21.6.4(1). In this case there was no LGC so the power in cl 21.6.4(1) could never be exercised. Clause 21.6.4(2) was, Mr King submitted, a manner and form provision of the kind considered in Trethowan v Peden (1930) 31 SR (NSW) 183.

Clause 21.6.4 - Mr Camenzuli's submissions

1. Two equally straightforward responses were made on behalf of Mr Camenzuli.
2. First, it was submitted that proper weight had to be given to the word "relevant". The question that had to be asked was "which is the relevant LGC?" In this case there was no relevant LGC because there was no LGC in existence for the City of Parramatta. In that case, the duty to consult under cl 21.6.4(2) did not arise. However, that did not mean that the power in cl 21.6.4(1) could not be exercised. This was because the power in cl 21.6.4(1) was plainly an important power which it would make no sense to construe as being dependent upon the existence of a LGC in a given case.
3. Alternatively, it was submitted that cl 21.6.4(2) should not be construed as a condition precedent to the valid exercise of the power in cl 21.6.4(1). This was because it was a provision plainly to be used in urgent circumstances and there was merely a duty to consult rather than, for example, a duty to obtain the consent or approval of the relevant LGC. Clause 21.6.4(1) was not expressed to be subject to cl 21.6.4(2) and, while there might be a complaint if cl 21.6.4(2) was not followed and in an appropriate case compliance might be able to be compelled, it was nevertheless only a duty to consult.

Clause 21.6.4 - Consideration and conclusion

1. The Court accepts the first argument put on behalf of Mr Camenzuli. "Relevant" means "bearing upon or connected with the matter in hand" (Macquarie Dictionary). The "matter in hand" is vacancies in office for local government in a particular local government area. There will be no "relevant LGC" for vacancies in office for local government in a particular local government area if a LGC does not exist for that local government area.
2. In the absence of a relevant LGC, cl 21.6.4(2) has no operation. Consultation cannot be required when there is no one with whom to consult. However, there is then nothing in the language of cl 21.6.4(1) (for example, expressing it to be subject to cl 21.6.4(2)) which warrants the conclusion that cl 21.6.4(1) cannot operate when in a given case cl 21.6.4(2) has no work to do for want of a "relevant LGC".
3. This conclusion is fortified by the consideration of other provisions of the Constitution which make it clear that it is not mandatory for there to be a LGC. Under cl 8.1.1 there will always be a State Electorate Conference where there is more than one branch in the relevant State electorate. Similarly, there will always be a Federal Electorate Conference where there is more than one branch in the relevant Federal electorate. However, there are only permissive rather than mandatory requirements at two stages of the procedure to form a LGC. Under cl 8.3.1(3), the LGOC may, but need not, consent to the formation of a new LGC. Furthermore, under cl 8.3.1(4), State Executive "may [not must] authorise the formation of the new LGC whether or not the Local Government Oversight Committee consented to the formation of the new LGC". It follows from this that the Constitution itself bespeaks the possibility that there will not be a LGC even if, as has occurred in the present case, the first step in the formation of a new LGC under the Constitution has occurred (see [32] above). This supports the conclusion that "relevant LGC" in cl 21.6.4(2) was drafted in contemplation of the possibility that there would not be a LGC.
4. However, if I am wrong in the constructional conclusion which I have just set out, I should record that I do not accept the second argument put on behalf of Mr Camenzuli. The term "must consult" in cl 21.6.4(2) is mandatory. The Constitution has obviously been drawn with legal assistance (see [27] above), including an understanding of the difference between "may" as permissive and "must" as mandatory, although in relation to any given clause that conclusion might also turn on matters of context and purpose. However, in cl 21.6.4(2) I can see no proper basis to conclude other than that "must consult" is a mandatory requirement.
5. It may be accepted that a mandatory requirement to "consult" is a less clear or, perhaps, less significant obligation than a duty to obtain consent or approval (see, for example, the obligation in cl 21.6.3(1) to "consult and, as far as practicable, seek agreement"). However, I do not agree that any such lack of clarity about what "consult" might mean in a given case means the requirement can be read down or out so that, even where there is a "relevant LGC" with which to consult, failure to consult will not prevent the exercise by State Executive of its powers under cl 21.6.4(1).
6. In reaching this conclusion, I make two additional observations.
7. First, it is clear in cl 21.6.4(1) that State Executive can decide that "there is insufficient time…" before it has consulted with the "relevant LGC". Deciding is not the "power" referred to in cl 21.6.4(2). The "power" is what State Executive is authorised to do "by motion" in cl 21.6.4(1). No party suggested a contrary interpretation.
8. Second, if the specified decision is taken by State Executive, the content of the obligation to "consult with the relevant LGC" will be a fact-sensitive exercise in any given case. For example, the nature of the consultation and specifically with which person or persons may turn, at least in part, on how short the time is which has caused the State Executive to decide that "there is insufficient time for the selection of candidates as provided otherwise in this Constitution" (emphasis added).

Form of relief and costs

1. The Court will hear the parties on what relief (if any) should flow from these reasons and as to costs at a time to be notified with the publication of these reasons.

JUDGMENT VERIFICATION I certify that this and the 25 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Francois Kunc Amended 26 July 2021 Mary Boneham DATED Associate

Amendments 26 July 2021 - Para 17, after Second, (first line of para) "Mr King referred to a provision such as cl 21.6.4 being a "carve out" from cl 13.2.4(1). In the course of argument, I suggested it might be the other way around. However, either way, to speak of a "carve out"" 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: 26 July 2021