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  • Unreported Judgment

Fennell v Brough

 

[2008] QSC 166

 

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MARTIN J 

 

No 7111 of 2008

 

DARYL JAMES FENNELL

Applicant

and

 

MAL BROUGH & OTHERS

Respondents

BRISBANE 

..DATE 25/07/2008

ORDER

HIS HONOUR:  I intend to make orders abridging time for the filing and service of the originating application so as to permit it to be heard today. 

I intend to make an order nunc pro tunc for substituted service of this proceeding on the respondents and in the manner described in the affidavit filed. 

In support of the application concerning service I observe that in order for this matter to be properly before the Court and for there to be a contradiction there really only needed to be 1 member of State Council who opposed the application in order that the application could be heard. 

The first question to consider is whether or not this is a justiciable controversy.  It has been determined to be so by this Court in Baldwin v. Everingham (1993) 1 Queensland Reports 10.  I was informed from the Bar table that the Liberal Party of Queensland is registered under the Electoral Act and that it receives public funding by reference to, as I understand it, the votes cast in favour of its candidates at elections. 

Notwithstanding the detail of that, I am satisfied that the question of the construction of the constitution of a registered political party is a justiciable issue and that that issue has been settled through many cases, the latest of which is Coleman v. The Liberal Party of Australia, New South Wales Division (2007) 212 Federal Law Reports 271 at paragraphs 32 to 40. 

Mr Ferrett, who appeared for some of the respondents, argued that notwithstanding the justiciability of it, there was a question as to the standing of Mr Fennell and he referred me to the decision of Justice Moynihan in Gault v. Flegg (2003) QSC 290, in which his Honour considered the position of a Mr Watson with respect to declarations that Mr Flegg had not been endorsed as the Liberal Party of Queensland candidate for the State seat of Moggill and that a plebiscite selecting him for that seat was void.  The applicant in that case was a member of the party who was an unsuccessful candidate for preselection.  Mr Watson was a member of the party and chairman of a particular relevant branch.  He was eligible to vote in the plebiscite and did so. 

At paragraph 12 his Honour said, "In order to have standing to bring a claim for relief in circumstances such as this a person must be affected by the decision beyond being a concerned member of the public."  And his Honour referred to the decision of Justice Drummond in Robinson v. ATSIC reported in Volume 140 of the Australian Law Reports 641, and I refer without further reading to Justice Drummond's discussion of that at pages 651 to 655 and in particular that part of his reasons at 655 where he speaks of "a person aggrieved" and says, "The expression focuses on a claim to an interest in the decision that the person seeking such relief must himself have, rather than on a claim to an interest in the decision that others, including an organisation of which that person is a member, may have."

Mr Doyle submitted that the standing point was resolved by reference to clause 112 of the constitution which provides that a convention of the type the subject of this application consists of a number of identified categories of persons, including members of State Council.  Mr Fennell is a member of State Council, he is a delegate, he has deposed to having registered for the meeting, he has an interest in that meeting being held beyond those interests held by ordinary members of the party who are not entitled to attend.  He also possibly has a right to have the powers of the State Council determined in circumstances such as this.

The issue boils down to one of construction of part of the Liberal Party's constitution.  Clause 148(a) provides that, "A constitutional convention may be convened by State Council at any time."  That, in my view, should be construed to read that it may at any time exercise that power but for the reasons advanced by Mr Doyle I consider that the proper construction of that part of the constitution results in a finding that it does not contain a power to postpone. 

Reference was made to the decision of Smith v. Paringa Mines and the many decisions which have followed it, to the effect that unless there is an express power to postpone a general power will not suffice.  There was no general power referred to by Mr Ferrett as giving rise to any power to postpone, rather he said an inference should be drawn of a power to postpone.

Although the decision in Smith v. Paringa was given in the century before last, it has been followed many times.  I accept what Mr Ferrett said about the proper way of construing documents such as this contract.  One looks at the whole document.  It should be construed by reference to the modern principles of construction and one should not adopt an inflexible approach of simply applying authorities which have been decided in other places on other cases.

In my view the way of construing this constitution is to examine it as a whole, consider the objects which are stated in the constitution and to read clause 148 simply in the manner in which it is written, namely that it gives a power to convene a meeting and no more to State Council.  Once a meeting has been convened it is then open to the members attending that meeting to adjourn it if they wish to do so.  It is pointed out at pages 42 and 43 of Horsleys Meetings Fifth Edition that, "Where it is no longer opportune or convenient for the meeting to be held as initially decided upon an expedient procedure may be for the meeting to be held and provided a quorum is present to be forthwith adjourned to a specified date."  And that is an option that is open to the convention or, for that matter, any other body with a similar set of rules.

It was urged upon me that there were discretionary grounds upon which I should not make a declaration.  They were that at this late stage it would result in uncertainty, it would cause difficulties contacting members and therefore there was a doubt as to the utility of the declaration sought.  Further, it was argued that if a meeting was not held tomorrow it would not preclude meetings being held in the future to consider the same matter.  That is no doubt correct, but in my view if a body of the standing of a registered political party does not comply with its constitution and resolves in an invalid way to postpone a meeting, then that should be recognised and dealt with rather than allowing a meeting which had been validly called not to proceed. 

The consequences then are these:  I make the declarations in the form sought in the application.  I have been informed from the Bar table that there are means of alerting people to consequences of that declaration.  I do not think it appropriate that I make any orders for service of those orders apart from making an order for substituted service on the respondents of those orders.  In other words, what the party does with respect to other persons who are attending is a matter entirely for it.

...

HIS HONOUR:  Well then I will make an order that service of the order can be effected by emailing the contents of the order.

...

HIS HONOUR:  I order that the third respondent pay the costs of and incidental to the application incurred by the applicant.

...

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Editorial Notes

  • Published Case Name:

    Fennell v Brough & Ors

  • Shortened Case Name:

    Fennell v Brough

  • MNC:

    [2008] QSC 166

  • Court:

    QSC

  • Judge(s):

    Martin J

  • Date:

    25 Jul 2008

Litigation History

No Litigation History

Appeal Status

No Status