Rennick v Riley[2024] QSC 130

SUPREME COURT OF QUEENSLAND

1. [1]
   On 7 July 2023, the Liberal National Party of Queensland (LNPQ) – an unincorporated and voluntary association – conducted a pre-selection for its candidates for the next Senate election. Senator Rennick contested the third position on the LNP ticket. He lost the contest by three votes to Stuart Fraser (the sixth Respondent).
2. [2]
   Three days later, Senator Rennick lodged an appeal to the LNPQ Disputes Committee against that result under cl T.28 of the Constitution of the LNPQ. He asserted that he had been unfairly treated and that there had been “grave irregularities.”
3. [3]
   On 25 August 2023, the Disputes Committee dismissed his appeal (the August decision). It found that he had not been unfairly treated and that there was insufficient evidence to justify declaring that the Senate pre-selection vote was void.
4. [4]
   The Constitution, in cl M.4, allows for an appeal from the Disputes Committee to State Council.
5. [5]
   The first meeting of State Council after the August decision took place on 21 and 22 October 2023 – about two months after the August decision.
6. [6]
   On 2 April 2024, just over seven months after the August decision, Senator Rennick sought to appeal against it under cl M.4 of the Constitution.
7. [7]
   On 19 April 2024, the State Executive of the LNPQ decided that Senator Rennick’s (second) appeal was out of time (the April decision).
8. [8]
   Senator Rennick seeks specific relief with respect to the April decision, including:

   1. a declaration that he is entitled to appeal the August decision to a meeting of State Council of the LNPQ under cl M.4 of the Constitution;
   2. a declaration that his entitlement to appeal (as sought above) has not been lost by reason of effluxion of time; and
   3. an injunction requiring the State Council to hear any appeal brought pursuant to his entitlement (as sought above) and to determine that appeal in accordance with the Constitution.
9. [9]
   With respect to the relief he seeks there are questions of fact and law to be determined, but, before that can be done, there is the matter of whether this dispute is justiciable. If it is not, then the court cannot provide any relief.

The justiciability of disputes of this kind

10. [10]
    One of the keys to the determination of this issue is the proper characterisation of the dispute for which relief is sought.
11. [11]
    The issues for determination all relate to whether Senator Rennick can appeal the August decision. While the background to the August decision is relevant, this is not an application which concerns the pre-selection process itself. The question to be considered is:

Is the determination of whether a member of an unincorporated, voluntary association has lost the right to an internal appeal against a decision made by a body (within the association) through the effluxion of time, justiciable? 

12. [12]
    A decision in Senator Rennick’s favour on this application alone would not affect the pre-selection result. It would only require that State Council consider the second appeal. That is of importance in light of the applicant’s submissions about justiciability.
13. [13]
    Each party submits that I should follow a decision of an interstate court of appeal. The applicant says that I am bound to follow Asmar v Albanese^[1] ─ a decision of the Victorian Court of Appeal. The respondent says that I am bound to follow a decision of the New South Wales Court of Appeal (given six weeks after Asmar and to the opposite effect) in Camenzuli v Morrison.^[2]
14. [14]
    The argument requires that I consider the history of the decisions which led to Asmar and Camenzuli. That consideration must commence with the High Court’s decision in Cameron v Hogan.^[3]
15. [15]
    In early 1932 Edmond Hogan was a member of the Australian Labor Party of the State of Victoria and the Premier of Victoria. At a meeting in April 1932 the central executive of the Labor Party decided not to endorse Hogan as a Labor Party candidate. In the election held in May that year the Labor government was defeated but Hogan was re-elected as a “Premiers Plan Labor” candidate. As he had not been endorsed by the Labor Party he was not eligible for re-appointment as leader of the State Parliamentary Labor Party. He claimed that, but for his non-endorsement, he would have been re-appointed and entitled to the emoluments attached to that office. He brought an action in the Supreme Court of Victoria in which the relief he sought included declarations about his membership and damages.
16. [16]
    Gavan Duffy CJ held, among other things, that the central executive was not justified by the rules in refusing to endorse Hogan and that this amounted to an actionable breach of contract. Hogan was awarded 1s in damages and costs.
17. [17]
    The High Court reversed Gavan Duffy CJ’s decision. The State Labor Party was an unincorporated, voluntary association. The following may be drawn from the joint reasons of Rich, Dixon, Evatt and McTiernan JJ:

    1. A member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint except to enforce or establish some right of a proprietary nature.^[4]
    2. At common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalization it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature.^[5]
    3. If a member of a voluntary association complains, not of an invalid expulsion, but of some failure to observe the rules on the part of the committee or other officers, it would be necessary for the member complaining to show that the rules were intended to confer upon him a contractual right to the performance of the particular duty upon which he insists. It can seldom be the true meaning of the rules of any large association of such a kind that those under-taking office thereby enter into a contract with each and every member that they will execute the office in strict conformity with the rules.^[6] 
    4. The foundation of the jurisdiction to grant an injunction is the existence of some civil right of a proprietary nature proper to be protected. The property under the control of the central executive and that under the control of the branches might, if all the members concurred in dissolving the association, be distributed among them, but if so, it would be by reason of a decision under the rules authorizing that distribution.^[7]
18. [18]
    Starke J, who agreed in the result, said:

“The endorsement or non-endorsement of members of the Australian Labor Party as candidates for Parliament is a matter for the internal administration of the Party. The rules vest the power of endorsement or non-endorsement in the central executive, but that authority does not impose any contractual obligation upon the central executive towards any candidate. Endorsement in any case is not a contractual right which is enforceable in any Court of law by one member against his fellow members. The remedy for any grievance that Hogan has in respect of his non-endorsement must be sought and found in the rules of the party, and through the appropriate bodies set up by those rules for that purpose, such, for instance, as the annual conference and the federal conference.”^[8]

19. [19]
    This decision has been consistently applied unless a member’s proprietary rights were involved or the circumstances showed clearly that the rules of an association were intended to create a legally enforceable contractual relationship among the members inter se.^[9] The traditional approach adopted by the courts has been to refuse to intervene in the internal affairs of voluntary not-for-profit associations to review alleged breaches of the consensual relationship between the members.^[10] That approach changed, so far as political parties are concerned, after the decision in Baldwin v Everingham.^[11]
20. [20]
    In Baldwin v Everingham Dowsett J distinguished Cameron v Hogan on the basis that, since that decision, there had been substantial changes to the legislation concerning political parties. After referring to Edgar and Walker v Meade^[12] he said that: “disputes concerning the rules of political parties registered under the Commonwealth Electoral Act are now also justiciable. This conclusion differs from the conclusion in Cameron v. Hogan not because changing policy considerations dictate a different result, but rather because the Commonwealth Parliament, in conferring legislative recognition upon political parties has taken them beyond the ambit of mere voluntary associations.”^[13]
21. [21]
    The broad reasoning in Baldwin v Everingham has been followed by single judges in Supreme Courts in several jurisdictions. But it has now been the subject of direct attention by Courts of Appeal in the Asmar and Camenzuli decisions.
22. [22]
    I am bound by the decision in Farah Constructions Pty Ltd v Say-dee Pty Ltd^[14] not to depart from a decision of an intermediate appellate court in another jurisdiction in relation to non-statutory law unless I am convinced that the decision was plainly wrong. 
23. [23]
    For the reasons which follow, I am satisfied that I should follow Camenzuli because it is, in my respectful view, correct and, in any event, the part of the decision in Asmar concerning the point in issue in this case is arguably obiter. 

Asmar v Albanese

24. [24]
    In this case members of the Australian Labor Party Victorian Branch and others brought proceedings for declarations and injunctions concerning certain National Executive resolutions. Those resolutions were to the effect that the operation of all committees of the Victorian Branch was suspended and, in lieu of the usual processes for pre-selection, the National Executive would conduct those pre-selections for candidates for Federal electorates. At first instance the applicants were unsuccessful. On appeal they also failed. The Court of Appeal agreed with the trial judge’s finding that the Victorian Branch was not a separate entity to the Australian Labor Party and that the National Executive had power to intervene under provisions of the National Constitution which were binding on the Victorian Branch. The impugned resolutions did not exceed the powers contained in the National Constitution of the ALP.  
25. [25]
    As far as the issue of justiciability is concerned, the headnote on the authorised report sufficiently summarises the effect of the decision for the purposes of this case:

    1. Absent further consideration by the High Court, Baldwin v Everingham ought not be relied on as a basis for concluding that all disputes within unincorporated political parties were justiciable.
    2. Pre-selection disputes in relation to federal parliamentary elections would generally have the necessary direct connection with the Commonwealth Electoral Act to render them justiciable, because of the close connection between such disputes and the provisions of the Act governing nomination and endorsement and electoral funding. This was notwithstanding, in this case, the terms of the party’s constitution and branch rules and that there was no dispute as to the identity of the registered officer.
    3. The necessary direct connection to found justiciability arose because the validity of the pre-selection process, as the necessary precursor to the nomination and endorsement of candidates by the registered officer under the Act, was in dispute.
26. [26]
    One of the matters in contention in this hearing was the nature of the reasoning of the Court of Appeal (as relied upon by the applicant in this case) and whether or not it formed part of the ratio decidendi of the decision. The Court of Appeal noted that the trial judge had held that an issue having a direct bearing on the proper application and operation of the Electoral Acts was justiciable. The court held that he was correct to do so. But, they went on to say:

“The justiciability issue, and its application to these disputes, is a potentially complex and controversial one. But, if the judge is correct in his construction of the Branch Rules and the National Constitution, the applicants must fail regardless of how this potentially complex and controversial issue is determined. As we consider that the judge was correct on that issue, in the unusual circumstances of this proceeding, we consider it best to address the issue of construction of the Branch Rules and the National Constitution first.”^[15] (emphasis added)

27. [27]
    The court decided the case on the basis of its construction of the various rules relevant to the matter before them. At [181], the court said:

“Given these conclusions, whilst we would grant leave to appeal on each of the proposed grounds, the appeal must be dismissed. …”

28. [28]
    At [182], the court said:

“The issue of justiciability, which occupied considerable attention before the trial judge and before us, cannot alter this outcome. Nevertheless we now turn to the issue of justiciability, and the two “pathways” to success in the appeal relied upon on behalf of the applicants before us in that context.”

29. [29]
    It is arguable that, given that the issue of justiciability could not alter the outcome of the appeal, that the court’s consideration of and findings about that issue are obiter. But, in order to determine the question of construction of the rules and constitution the court must, at least implicitly, have had to accept the construction point was justiciable. Given the view I have reached about Camenzuli, I do not need to dwell on that issue.
30. [30]
    Special leave to appeal this decision was refused.^[16]
31. [31]
    The court also considered two single judge decisions to which reference should be made. It held that in Setka v Carroll,^[17] Riordan J was correct to treat the dispute before him as not justiciable. 
32. [32]
    In Setka v Carroll, Riordan J considered an application for a declaration that a particular clause in the National Constitution of the Australian Labor Party did not permit the National Executive to expel Mr Setka otherwise than in accordance with r 20 of the Victorian Branch Rules. Other injunctions were sought to restrain the National Executive from expelling him from the ALP. Riordan J refused the application on the basis that the court did not have jurisdiction to interfere with the internal decisions of voluntary unincorporated associations unless to protect or enforce a contractual or other right recognised in law. In so doing, his Honour applied Cameron v Hogan. Riordan J considered Baldwin v Everingham in some detail and reached a conclusion, with which I respectfully agree, that Dowsett J did not explain how legislative recognition gave rise to a cause of action or other “ascertainable and enforceable legal right.”
33. [33]
    Riordan J then considered the cases which have applied Baldwin v Everingham and came to the view that where the issue of justiciability was either the subject of a concession or not argued, those other cases do not identify the cause of action necessary to ground relief. His Honour also referred with approval to an observation of the learned author of Justice in Tribunals:

“It is disappointing that this distinction [between the provisions of the CCA Act and the Electoral Act] was not more closely considered in Baldwin, which merely asserts that "it was the fact of statutory recognition which was important to the decision in Edgar and Walker v Meade, and not the quasi-corporate status conferred by the Act" and that "disputes concerning the rules of political parties registered under the Commonwealth Electoral Act are now also justiciable''. It is a long leap of logic from the comprehensive legislative scheme in Edgar and Walker v Meade to the conclusion that Cameron v Hogan is nullified by "funding" provisions tacked on to an electoral Act. The public interest in those provisions could be protected, if need be, by direct reference to the Act, without assuming general jurisdiction over internal party affairs.”^[18]

34. [34]
    The court in Asmar also held that Robson J was correct when he held that a dispute was justiciable in Butler v Mulholland (No 2).^[19] In that case the issue before the court was the identity of the secretary of the Democratic Labor Party. Robson J held that it was justiciable because, under the Electoral Act 2002 (Vic), an application for registration was required to be signed by the Secretary of the political party and the application would determine the identity of the “registered officer” who had other powers under that Act. Robson J held that:

“… the identity of the Secretary and his authority to make an application to the Commission for registration of the political party are important issues for the proper working of the Victorian Act.”^[20]

Camenzuli v Morrison

35. [35]
    Soon after the decision in Asmar v Albanese the Court of Appeal in New South Wales was faced with an application by a member of the State Council and State Executive of the New South Wales Division of the Liberal Party of Australia which sought to impugn the validity of steps taken by the Federal Executive. Those steps included the establishment of a committee with power to endorse three incumbent Liberal members of the Parliament as Liberal candidates to recontest their seats. The challenge was to the validity of a resolution exercising the power of pre-selection.  Unlike the decision of the Victorian Court of Appeal, the court said that it was necessary to address the justiciability of the issue before considering the point of construction about the rules. The following may be drawn from the joint decision of that court:

    1. “Statements that preselection disputes have a ‘close connection’ with provisions of the Electoral Act concerning nomination, endorsement and funding fall short of explaining why a dispute between the members of an organisation whose rules lack contractual force may become justiciable.”^[21]
    2. “The reasoning in earlier cases, including Baldwin, which treated the fact that the issue was one of public importance as sufficient to render all questions as to the internal processes justiciable, provides an inadequate basis for distinguishing Cameron v Hogan. However, the need to determine who is the officer responsible for taking steps within the statutory scheme may render that issue justiciable. It need not be addressed in this case.”^[22]
36. [36]
    The court referred to the decision of Riordan J in Setka v Carroll and, after setting out parts of it, said that his reasoning was persuasive.^[23]
37. [37]
    The court then referred to the reasoning of Ginnane J in Asmar v Albanese (No 4)^[24] where his Honour (after accepting the reasoning of Riordan J)  said:

“[160]  The Electoral Acts do not seek to regulate the internal affairs of political parties – for example, they do not require the Electoral Commissions to approve amendments to their constitutions or rules – nor do they prescribe procedures for resolution of disputes between branches and members and between branches and the National Executive. The registration procedures applying to political parties are quite different to those contained in Commonwealth industrial legislation and applying to industrial organisations. 

[161]  The funding of and conferral of rights and imposition of obligations on political parties required a legislative scheme to ensure that the applicant for registration was a genuine political party, to gain legislative authority for providing funding for them and to ensure accountability for that funding. But those measures do not make internal disputes in the political party justiciable. I accept that where a dispute exists of the kind presented by Butler v Mulholland (No 2), as to the identity of the political party’s authorised agent, a court is likely to decide the issue by making an appropriate declaration to enable the Electoral Acts to operate in respect of that party. But that decision does not create a principle of wider application extending to all disputes within a political party or between a branch and the national body. In my opinion, to justify the Court’s intervention in an internal dispute in a political party, the issue sought to be determined must have a direct bearing on the proper application and operation of the Electoral Acts. The plaintiffs’ claims do not have that character. A disputed issue does not become justiciable by a party relying on the Electoral Acts if the dispute has little connection with their operation. The plaintiffs’ claims in this case do not have a direct connection to the application or operation of the Electoral Acts.”

38. [38]
    In Camenzuli the court came to the conclusion that the reasoning of the Victorian Court of Appeal in Asmar was not persuasive, that they were comfortably satisfied that it was wrong and that the reasoning of Riordan J in Setka, with the agreement of Ginnane J in Asmar v Albanese (No 4) was to be preferred.^[25] I respectfully agree with the reasoning expressed in Camenzuli.
39. [39]
    Special leave to appeal this decision was refused.^[26]

Another decision on point is given

40. [40]
    In March 2023 the Western Australian Court of Appeal delivered a decision which considered similar matters in Cockman v Gorman.^[27] The appellant had been unsuccessful in a pre-selection contest for the Australian Labor Party in a federal election. He brought proceedings against officeholders in the Western Australian Branch of the ALP, seeking damages for alleged breaches of the WA Labor Constitution and Rules (WA Labor Rules). The primary judge held that the WA Labor Rules were not intended to create legal relations and, so, the appellant’s claim based on a breach of contract failed.
41. [41]
    The Court of Appeal held that the WA Labor Rules were not intended to create contractual relations with respect to the pre-selection of candidates for parliamentary elections or party membership. The appellant argued that the reasoning in Asmar should be preferred to the reasoning in Camenzuli. The Court said:

“[63] As a matter of precedent, it seems to us that the observations of the Victorian Court of Appeal as to the operation of the Electoral Act in Asmar were obiter. The court had already decided to dismiss the claim on its merits before turning to consider the issue of justiciability which could not affect that outcome. … This Court is not bound to follow the obiter dicta in Asmar, although it would ordinarily be expected to give great weight to those observations.”

42. [42]
    The Court then considered Camenzuli and said that the justiciability of disputes about the Constitution of a registered political party under the Electoral Act formed the basis of the decision of the New South Wales Court of Appeal to dismiss the appeal in that case. That the justiciability conclusion was part of the ratio of that case was accepted by the appellant. Thus, the relevant part of the decision in Camenzuli was binding on the Western Australian Court of Appeal unless that court was satisfied that it was plainly wrong. The court was not so satisfied. The Court said:

“[65] We are not persuaded that the decision in Camenzuli is wrong let alone plainly wrong. We cannot see anything in the Electoral Act which gives the courts jurisdiction to determine disputes about the application of the rules of unincorporated political parties, which are not otherwise enforceable, in relation to the selection of candidates for federal Parliamentary elections.

[66]  While the Electoral Act provides for the registration of political parties, it does not provide for their incorporation. While the Act requires an eligible political party to have a constitution which must be lodged with the Electoral Commissioner, it does not provide for what the constitution must contain (other than that it must set out the aims of the party) and does not directly give any legal force to the constitution. There is no prescription of the process for the endorsement of candidates. The role of the registered officer in relation to nominations is merely to be the conduit of information to the Electoral Commissioner in a context where the legislation leaves it to the political party to decide who it endorses. It does not mandate that endorsed candidates be selected by a means provided for in the constitution of the party as opposed to by some other means.

[67]  Further, the implication which the appellant invites the court to draw from the terms of the Electoral Act appears inconsonant with the very short time between the issue of writs and the date for nominations for which the Act provides. An implicit right to litigate about whether candidates were validly endorsed by a political party would tend to frustrate those provisions. The decisions in Asmar and Camenzuli show that some disputes of this kind can be resolved expeditiously. However, it cannot be expected that all disputes can be resolved so quickly, or that the courts could deal with a multitude of disputes of the kind that preselection contests are apt to generate within the time provided for the nomination. In a context where nomination is an essential prerequisite for candidature, the implication invited by the appellant would lead to the litigation of disputes that could imperil the capacity of a political party to nominate candidates within the required time prescribed by the Act. That consideration strongly counts against the drawing of the implication for which the appellant contends.” (emphasis added)

The spectre of the “rogue” official

43. [43]
    In Cockman v Gorman it was argued,^[28] unsuccessfully, that Camenzuli was wrongly decided because the construction adopted in that case did not accommodate the prospect of a registered officer of a registered political party “going rogue.” This is a reference to the possibility that the registered officer could ignore the result of a pre-selection and lodge a nomination for a different person or persons.
44. [44]
    The notion of a rogue officer was taken up by the applicant in this case as a legitimate means of testing the likelihood that Parliament’s intention was that these endorsements and communication of the endorsements be beyond examination by the courts.
45. [45]
    That may be the case, but it does not need to be decided because that is not the question before this court. This is a case about the internal mechanisms for appealing from a decision of a body which is part of the LNPQ. That mechanism is not confined to appeals from pre-selection decisions, it extends, for example, to disciplinary proceedings.

Are the issues raised in the application justiciable?

46. [46]
    No.
47. [47]
    The only questions before this court concern the capacity to appeal the August decision and whether there is a time limit for that process. This is not a case about a failure to comply with pre-selection processes. Allegations about those processes form the background to this application but those processes cannot be affected just by the decision in this case.
48. [48]
    The appeal process for a disappointed candidate for pre-selection under the LNPQ Constitution has no connection with the proper application or operation of the Electoral Acts. This is an internal dispute of the kind held in Cameron v Hogan to be non-justiciable. It is, in effect, a complaint that a breach of the LNPQ’s rules has been committed. As such, the applicant cannot maintain any action directly founded upon that complaint except to enforce or establish some right of a proprietary nature.^[29] No such right is contended for.

Construction of the LNPQ Constitution

49. [49]
    The respondents argued that, if I found that the dispute was not justiciable, I should not go on to consider the constitutional provisions for appeal. I disagree. I will proceed as the Court of Appeal did in Camenzuli:

“[70] … Although we are satisfied that the issues are not justiciable, in the interests of finality and against the possibility that we are wrong on the determinative issue, we now turn to the substantive dispute.”

The Disputes Committee

50. [50]
    The Constitution, in cl M.3, provides that there shall be a Disputes Committee to hear and determine:

“(a) any appeals arising out of the conduct or result of any pre-selection proceedings, and

2. disciplinary proceedings referred to it by State Executive or State Council, and

3. any other investigation, complaint or dispute referred to it by virtue of this Constitution or otherwise by State Executive, State Council or the State Director.”

51. [51]
    A member’s right to appeal is contained in cl M.4(d):

“(d) A member may elect to appeal a decision of the Disputes Committee to a meeting of State Council as follows:

i. the Disputes Committee shall provide a written report on their determination of the complaint or matter to State Council. A copy of that report shall be supplied to both State Council and the appellant Member no less than 14 days before the meeting of State Council in which the appeal is to be heard; and

ii. the appellant Member shall be entitled to provide a written report to State Council defending against the decision of the Disputes Committee. That report shall be submitted no less than 72 hours before the meeting of the State Council in which the appeal is to be heard and shall be supplied to State Council at the soonest reasonable opportunity after its submissions by the appellant Member; and

iii. at the meeting of State Council in which the appeal is being heard a member of the Disputes Committee may for not more than 15 minutes speak to the committee’s report; and

iv. at the meeting of State Council in which the appeal is being heard the appellant Member may for not more than 15 minutes speak to their report or otherwise to their defence against the decision of the Disputes Committee; and

v. upon receiving reports from both the Disputes Committee and the appellant Member State Council shall then vote by secret ballot to uphold or dismiss the decision of the Disputes Committee. The outcome of the vote by State Council shall be final and binding on the Party and all Members.”

52. [52]
    Clause M.4 also provides that the procedure for an appeal shall be determined by State Council with these minimum requirements:

“(a) the Member shall be invited to meet with the Disputes Committee in order that the matter may be properly investigated and so that the Member has a reasonable opportunity to hear and defend the complaint/s; and

2. the Member shall be provided with no less than 14 days written notice of both the complaint/s and the time, date and place of the meeting with the Disputes Committee to which they are asked to attend; and

3. the Member shall have and be informed of an entitlement to have either a legal representative present at any meeting with the Disputes Committee or alternatively they may have a support person present provided the support person signs a non-disclosure agreement provided to the support person no less than 72 hours from the meeting date.”

53. [53]
    There is no provision setting out a time by which any appeal must be commenced or concluded.

Is there a time limit for appeals from the Disputes Committee?

54. [54]
    Senator Rennick accepts that there must be some timeframe for the bringing of an appeal against the Disputes Committee’s decision about a pre-selection. Mr Stewart KC submitted:

    1. that the only reasonable timeframe that might be implied would be a requirement for the appeal to be brought in sufficient time for it to be dealt with and resolved before the close of nominations for candidates for the Senate for the next Federal election; and
    2. that it cannot be contended that such a timeframe has been exceeded in this case.
55. [55]
    The argument advanced for the applicant was that it should not be inferred that any appeal under cl M.4(d) had to be brought within an unspecified “reasonable time.” The following reasons were advanced in support of that contention:

    1. specific time limits are imposed in other parts of the Constitution. For example, cl D.27(b) provides:

“Any Member who State Executive determines has actively assisted a candidate standing against an endorsed Candidate of the Party shall cease to be a Member. In that event such person may appeal such determination to the Disputes Committee within 28 days notification of such determination.”

2. if a person is to lose a substantive right of appeal by reason of the passing of time, it is reasonable to expect that this timeframe is capable of being identified; and
3. if an appeal is brought it is likely to be in respect of a controversial topic and the existence of an unspecified and malleable time limit is likely to fuel this controversy – leading to unnecessary disputes as to whether a “reasonable time” has been exceeded.

56. [56]
    The first observation which can be made is that neither party contended for an unlimited time to appeal when it concerns the identity of candidates for an election.
57. [57]
    Where, in any instrument, a right is given or an obligation imposed, and no time is specified by which that right must be exercised or the obligation fulfilled, the law will usually imply that the time for doing so will be a reasonable time in all the circumstances. Many examples may be found in contract such as Perri v Coolangatta Investments Pty Ltd.^[30] Similar implications have been made in statutes: see Plaintiff S297/2013 v Minister for Immigration and Border Protection.^[31]
58. [58]
    What is a reasonable time depends on the context. It was put this way by Fraser JA (de Jersey CJ and Chesterman JJA agreeing) in Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd:^[32]

“[17]  The question of what is a reasonable time is a question of fact. It is to be determined at the time when performance is alleged to be due and the relevant circumstances then existing must be taken into account. That is not to say, however, that a party is entitled to justify its delay by relying upon the materialisation of a risk which that party was contractually obliged to bear. The circumstances which are relevant in determining a reasonable time do not include those which were under the control of the party performing the services …” (citations omitted)

59. [59]
    Whether an act is to be regarded as having occurred within a reasonable time is not to be assessed at the time of the act taking place. The relevant time for considering what is in fact a reasonable time is the time at which the right which is to be exercised is first capable of being exercised: see Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd.^[33]
60. [60]
    The context in this case will include any other time period which is relevant to an appeal. As is noted above, the Disputes Committee has to provide a written report on their determination no less than 14 days before the meeting of State Council at which the appeal is to be heard (cl M.4(d)(i)). An appellant may provide a written report not less than 72 hours before that meeting (cl M.4(d)(ii)).
61. [61]
    I was not directed to any part of the Constitution which sets out how (rather than when) an appeal is to be instituted. Clause M.4 provides that a member may elect to appeal a decision of the Disputes Committee to “a meeting of State Council.” It does not say “to the next meeting of State Council.” But it is difficult to accept that an appellant could sleep on his rights by, say, waiting for a meeting of State Council to occur and then seek to have an appeal heard at a later meeting.
62. [62]
    While it is possible to “count back” from a State Council meeting to find the last day on which the Disputes Committee memorandum must be provided that does not determine the outer limit of a time for appealing. For a time to be reasonable the context must be taken into account and that context includes:

    1. the general proposition that all persons who wish to appeal a Disputes Committee decision should be treated the same, that is, the same period (perhaps with an allowance for exceptional circumstances) should apply to all prospective appellants;
    2. persons who may be affected by a successful appeal should be made aware of that as soon as reasonably possible; and
    3. with respect to pre-selection questions, successful candidates may commit themselves, in numerous ways, on the basis of that pre-selection. With that in mind, it would be reasonable for them to be alerted within a reasonable time to the possibility that the pre-selection might be revisited.

Matters pertaining to Senator Rennick

63. [63]
    Senator Rennick gave uncontradicted evidence of correspondence with the LNPQ and its solicitors in which he raised many objections to the pre-selection process. That demonstrates that he had decided that the decision could, on his view of events, be challenged. Mere correspondence, no matter how detailed or vociferous, cannot extend a time for appealing, otherwise, as was observed in Donau Pty Ltd,^[34] the correspondence or negotiations could go on indefinitely without the right to appeal being required to be exercised.
64. [64]
    The parliamentary duties which Senator Rennick was required to fulfil do not dictate the term of an appeal. He says that he considered that it would have been unreasonable for him to have to compromise efforts he was making with respect to certain issues before Parliament. I disagree. This is a case in which he gave greater priority to some things over his right to appeal. In any event, the election to appeal does not seem to require much. His purported election was only one page in length.
65. [65]
    In his affidavit, Senator Rennick says that, on 10 November 2023, he was informed by the LNPQ President “that I would be able to appeal the Decision of the Disputes Committee to the State Council.” He says that had he not been told that and given other information to which he refers, he would have lodged his appeal by November 2023, that is, more than two months after the August decision.
66. [66]
    None of the matters referred to in his affidavit on the point of receiving information about appeal rights includes anything with respect to timing. Each of the matters referred to seem to be little more than the statement of fact, namely, that an appeal was available.
67. [67]
    Personal circumstances are matters which might allow for an extension of the time available to appeal. But nothing which has been put before the court demonstrates that an extension to a point seven months after the decision sought to be appealed would be reasonable.

Is 28 days a reasonable limit?

68. [68]
    Mr Dunning KC submitted that a useful guide as to the maximum period for a reasonable time to appeal is the appeal period ordinarily allowed in Australian courts, that is, a maximum of 28 days. I am not inclined to make a declaration about what is a reasonable time in which to lodge an appeal.
69. [69]
    The members of the LNPQ agree to be bound by the Constitution and any code or procedure established or approved by State Council – cl D.21. In so agreeing, they agree to abide by provisions of the Constitution including cl U.24 which provides:

“State Executive shall, subject to direction or ratification by State Council, determine all questions relating to the meaning and effect of the Constitution.”

70. [70]
    It is open to State Executive to determine the question of appeal periods as it sees fit.
71. [71]
    While I will not make a declaration about what might be a reasonable time limit for appealing a decision, I am content to decide that this appeal, lodged seven months after the decision, is outside any reasonable time limit.

Conclusion

72. [72]
    This is an application which falls within the category described in Cameron v Hogan.^[35] It is not justiciable.
73. [73]
    If it were a case which allowed for intervention, then the applicant has failed to demonstrate that he lodged an appeal within a reasonable time.
74. [74]
    The application is dismissed. I will hear the parties on costs.