Cuthbert v Abbott & Ors

The issue arising in this application was whether the applicant’s claim against the respondents concerning the rejection of the applicant’s membership of the ALP was justiciable. Noting that there was no underlying right affected for which relief could be sought and that the Constitution did not convey an intention to create legal relations, the court held that the applicant’s claim was not within its jurisdiction.

Bradley J

26 May 2022 (delivered ex tempore)

The applicant argued that he had been denied natural justice as a result of the Administrative Committee’s decision to reject him as a member of the Labor party. He also submitted that the committee failed to comply with the party’s internal rules in its review of his membership. [2]. The respondents to the action, the committee members, queried whether the applicant’s claim, regarding membership of an unincorporated political party, fell within the court’s jurisdiction. [4].

The applicant’s grounds

The applicant proffered numerous grounds upon which he submitted his claim for relief was justiciable. Firstly, citing Ermogenous v Greek Orthodox Church Community of SA Inc (2002) 209 CLR 95, he argued that the National Constitution and Rules constituted a contract between the members of the ALP. [31], [32].

His Honour was not convinced that that was the case. Importantly, he observed that clause 2 of the National Constitution actively states an intention not to create legal relations, as follows (emphasis added):

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

(b)Without limiting clause 2(a), it is further expressly intended that all disputes within the Party, or between one member and another that relate to the Party be resolved in accordance with the National Constitution and the rules of the state branches and not through legal proceedings.

(c)By joining the Party and remaining members, all members of the Party consent to be bound by this clause.

In considering the merits of the applicant’s case, his Honour adopted the approach of Justice Stanley in Echunga Football Club Inc v Hills Football League Inc [2014] SASC 201. There, it was held that there is scope for flexibility when interpreting the rules of voluntary associations given they are managed by lay people. In that regard, his Honour pithily stated that “it would be difficult to imagine a clearer statement of an intention not to create legal relations than clause 2”. [35]. He also noted that in Asmar v Albanese [2022] VSCA 19, [69], the Court of Appeal specifically found that, via clause 2, the ALP “adopted the principle of non-justiciability in terms reflecting the decision in Cameron v Hogan” and “clearly expressed their desire not to create legal relationships based upon the National Constitution”.

The applicant’s assertion that a member of the ALP has a contractual claim to enforce the Rules against other members, by reason of their common membership was flawed since it directly conflicted with not only the National Constitution but also the 1955 National Conference decision, provisions in the Rules providing for the internal resolution of disputes, and possibly even the 1979 resolution urging members not to comment publicly about matters in dispute. [36]. Additionally, his Honour identified various other matters which were indicative of a lack of intention to create legal relations, amongst them:

1.The ALP has always been unincorporated and that has been the case for over a century;

2.Its objectives are entirely political;

3.Its internal procedures for disputes are designed in lieu of and to the exclusion of legal remedies. [40].

As such, it was held that it is not the case that the National Constitution and associated Rules amount to a contract between the members of the ALP. [41]. Indeed his Honour found that “[o]n the contrary … the members manifested an intention not to create legal relations”. [49].

Another of the applicant’s submissions was that the proper administration of the affairs of a political party has an importance which exceeds the individual interests of party members, and that given the standing of the ALP, it rightly follows that disputes about its rules are justiciable. [42]. He went on to argue that “normative policy considerations such as the public importance of voluntary associations and the rights of individuals” justify rejecting the reasoning of the High Court in Cameron v Hogan (1934) 51 CLR 358. [43].

His Honour rejected those arguments. Instead, applying Cameron v Hogan, he noted that it remains binding authority for the proposition that in the absence of “clear positive indication that the members [of voluntary associations] contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract”, presenting an obvious difficulty for the applicant. [48].

In addition to the above, the applicant sought to argue that the court retains a discretion to determine what is justiciable. [69]. His Honour clarified that that is a misstatement of the scope of the court’s jurisdiction – put simply a court is unable to decide a matter which is not justiciable. Further, even if a matter is justiciable, discretionary reasons can arise justifying the court to refuse relief:

“These principles do not operate in reverse. A discretion of the kind for which Mr Cuthbert contends would not be compatible with the rule of law.” [70].

Disposition

Here, since there was no legal right affected for which declaratory relief would be justified (see Cameron v Hogan (1934) 51 CLR 358, 378; Nagle v Feilden [1966] 2 QB 633, 647 (Denning MR)), the applicant’s proceeding was dismissed, with costs following the event. [82], [83].