Cuthbert v Abbott & Ors

In this significant case, the Court of Appeal considered whether the appellant’s claim in relation to his application for membership of the Australian Labor Party was justiciable. It ultimately concluded that the appellant’s claim was not justiciable and reaffirmed that courts should apply the High Court’s judgment in Cameron v Hogan (1934) 51 CLR 358 in determining whether a claim in respect of a voluntary association was justiciable.

Bond JA and Boddice and Freeburn JJ

14 July 2023

The appellant applied for membership of the Australian Labor Party (“ALP”). [12]. This application was ultimately rejected. [12]. Although the appellant sought an internal review of this decision, the decision to reject his application was affirmed in February 2022. [12]. Shortly thereafter, he commenced proceedings, seeking orders predicated on the proposition that a contract existed between himself and the Queensland Branch of the ALP. [2]. Against this, the respondents contended that the appellant’s claims were not justiciable. [4]. These arguments were accepted at first instance, and the proceedings were dismissed. [5]. The appellant appealed from this decision to the Court of Appeal on the grounds that the primary judge “erred in finding that the appellant’s claim is not justiciable”. [6].

Central to the primary judge’s conclusions was the High Court’s judgment in Cameron v Hogan (1934) 51 CLR 358 (“Cameron”), which held that a member of the ALP could not maintain an action for breach of party rules “unless the member could establish interference with a relevant proprietary right, or the member could establish that the rules were contractually binding”. [26]. Although Cameron had been distinguished in Baldwin v Everingham [1993] 1 Qd R 10 for registered political parties, his Honour found that the recent New South Wales Court of Appeal decision in Camenzuli v Morrison (2022) 107 NSWLR 439 (“Camenzuli”) (which had reaffirmed Cameron) meant that Cameron applied even to political parties that were registered with relevant election authorities. [27].

Before the Court of Appeal, the appellant maintained his submission that Cameron was “bad law”. [43]. Justice Bond, with whom Boddice and Freeburn JJ agreed, found that such a conclusion was not open to the Court, in the absence of a subsequent decision of the High Court which overruled Cameron or which “established a mode of analysis which was inconsistent with it”. [43]. Similarly, the appellant submitted that the primary judge erred in following Camenzuli. [44]. Justice Bond observed that the appellant did not identify any reason why the court should conclude that Camenzuli, a decision of another intermediate court, was “plainly wrong”. [46]–[47]. Accordingly, his Honour declined to depart from Camenzuli. [47]–[48].

Turning then to the application of Cameron and Camenzuli, Bond JA held that the Queensland State Rules of the ALP were subject to its National Constitution, which would prevail in the event of a dispute “as to membership of the Party or any Party Unit”. [52]. The National Constitution, notably, expressly provides in cl 2(a) that anything done in connection with 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”. [13]. It further provides at cl 2(b) that all disputes will be “resolved in accordance with the National Constitution and the rules of the state branches and not through legal proceedings”. [13]. Accordingly, his Honour concluded that the parties could not have intended to create a legal or contractual relationship. [52].

Justice Bond further concluded that the primary judge had not erred in failing to recognise that damage had been caused to the appellant’s reputation. [54]. Rather, it was open to the appellant to make a claim in defamation if he so desired. [54]. His Honour similarly rejected the argument that the primary judge erred in rejecting the appellant’s submission that his livelihood had been affected by the decision. [55].

In the event, the Court dismissed the appeal with costs. [57]–[59].

M Paterson