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[2024] QSC 130
This was an application for substantive relief against a decision of a political party’s internal executive body that a member’s appeal against an initial decision regarding a pre-selection result was brought out of time. Martin SJA held that the dispute was non-justiciable by preferring New South Wales appellate authority over conflicting Victorian appellate authority. His Honour also considered in any event that the appeal was not brought within a reasonable time as it was brought seven months after the decision appealed from. The application was accordingly dismissed.
Martin SJA
20 June 2024
Background
The applicant is a senator, sitting as a member of the Liberal National Party Queensland (“LNPQ”) political party in the Commonwealth Parliament. The LNPQ is a voluntary and unincorporated association. The applicant contested the third position on the LNPQ federal senate ticket for Queensland and lost that pre-selection contest. [1].
The applicant appealed against that result to the LNPQ Disputes Committee, but his appeal was dismissed. Seven months later, he appealed the decision of the Disputes Committee to the LNPQ State Council. In April 2024, the LNPQ State Executive decided that the applicant’s second appeal was brought out of time (“April decision”). The LNPQ Constitution was silent as to the time limit for appeals. [2]–[7].
The applicant sought various relief with respect to the April decision. However, the Court was first required to determine whether the April decision that the applicant has lost an internal right of appeal within the LNPQ through the effluxion of time was justiciable. [8]–[9], [11].
Justiciability
The issue of justiciability was essentially contingent on whether to follow Asmar v Albanese (2022) 68 VR 1 (“Asmar”), a decision of the Victorian Court of Appeal which held that an internal decision relating to the rules of a political party in that case was justiciable, or Camenzuli v Morrison (2022) 107 NSWLR 439 (“Camenzuli”), a decision of the New South Wales Court of Appeal which held that such a decision was not justiciable.
Martin SJA took as his Honour’s starting point the proposition articulated in Cameron v Hogan (1934) 51 CLR 358, 370, 373 that, inter alia, a member of a voluntary unincorporated association is required to show that the association’s rules were intended to confer on the members of the association a legally enforceable proprietary right inter se if a dispute regarding the association’s rules is to be justiciable. [19].
The Victorian Court of Appeal decided Asmar based on the Court’s construction of the relevant rules and that construction led to a dismissal of the appeal: Asmar, 31 [181]. [27]. However, because the Court concluded at [31]–[32], [182] that success on the issue of justiciability could not have altered that outcome, his Honour considered that the consideration the Court gave as to why the dispute was justiciable was merely obiter. [27]–[28]. Martin SJA therefore opted to follow Camenzuli instead on the basis that the reasoning in Camenzuli formed part of that case’s ratio, and that his Honour agreed with the reasoning of the New South Wales Court of Appeal with respect to disputes between members of voluntary unincorporated associations lacking justiciability in the absence of those rules having contractual force. [35], [38]. Those conclusions were also supported by the Western Australian Court of Appeal in Cockman v Gorman (2023) 413 ALR 646, 658 [63], which his Honour referred to. [40]–[42].
Because of this, his Honour considered himself bound by Camenzuli by virtue of the requirement in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 to not depart from a common law decision of an intermediate appellate court in another jurisdiction unless the decision is considered to be plainly wrong. [22]. Martin SJA accordingly held that because the applicant cannot maintain any proprietary action founded on his complaint that a breach of the LNPQ’s pre-selection rules has occurred, the dispute was non-justiciable. [46]–[48].
Time Limits for Appeal under the LNPQ Constitution
Consistently with the passage in Camenzuli, 457–458 [70], Martin SJA sought to resolve the issue as to the LNPQ Constitution’s provisions for appeal in the interests of finality. [49]. Because the LNPQ Constitution did not specify a time limit for the commencement or conclusion of appeals, his Honour considered applicable the principle that where no time limit in an instrument for the exercise of a right or fulfilment of an obligation is specified, the law will imply a reasonable time limit: Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, 543, 554 and 567. [53], [57].
Ultimately, Martin SJA was disinclined to make a declaration about what constitutes a reasonable time to lodge an appeal in this context. His Honour considered that, in any event, it was a matter for the LNPQ State Executive to determine the question of appeals periods “as it sees fit” as cl U.24 of the LNPQ Constitution provided:
“State Executive shall, subject to direction or ratification by State Council, determine all questions relating to the meaning and effect of the Constitution.” [68]–[70].
Martin SJA nevertheless held that even if that were not so, bringing an appeal seven months after the original decision is “outside any reasonable time limit.” [71].
Disposition
As the dispute was not justiciable, and the appeal was not otherwise brought within a reasonable time, the application was dismissed. [72]–[74].
A Lukacs