Australian Democrats WA Division Inc & Anor v Australian Democrats Vic Division Inc & Ors P51/1998 [1999] HCATrans 436 (20 October 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P51 of 1998

B e t w e e n -

AUSTRALIAN DEMOCRATS WA DIVISION INC

First Applicant

DAVID EDWARD CHURCHES

Second Applicant

and

AUSTRALIAN DEMOCRATS VIC DIVISION INC

First Respondent

AUSTRALIAN DEMOCRATS SOUTH AUSTRALIAN DIVISION INC

Second Respondent

AUSTRALIAN DEMOCRATS ACT DIVISION INC

Third Respondent

ROBERT LEONARD DAWSON and ARTHUR CHESTERFIELD-EVANS

Fourth Respondents

ANTHONY ARTHUR WALTERS

Fifth Respondent

KEVIN CHARLES ANDERSON

Sixth Respondent

CHERYL KERNOT

Seventh Respondent

MEG HEATHER LEES

Eighth Respondent

ANTHONY CHARLES FOUNTAIN

Ninth Respondent

KEITH DOUGLAS LEES

Tenth Respondent

HEATHER JOYCE SOUTHCOTT

Eleventh Respondent

JOHN GORDON EVANS

Twelfth Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 20 OCTOBER 1999, AT 3.38 PM

Copyright in the High Court of Australia

GLEESON CJ: Is there any appearance in this matter? We were told that a Mr Churches was appearing.

MR W.S. MARTIN, QC: I appear with my learned friend, MR C.P. SHANAHAN, for the respondent. (instructed by Slater & Gordon) My instructors tell me that Mr Churches has been seen in the precincts of the building. We might make some inquiries.

GLEESON CJ: Officer, would you call Mr Churches, please.

MR D.E. CHURCHES: I am a little bit awe struck with being here, your Honours. I am appearing on my own behalf and on behalf of the Australian Democrats WA Division Incorporated. (instructed by Michell Sillar McPhee)

GLEESON CJ: Right, well, go ahead, Mr Churches.

MR CHURCHES: If I can just refer to my notes. I did send in to the Court our supplementary argument and I guess I will explain why I am here. I am appearing, not by choice, in this matter - these are very big shoes to try to fill - but, after some five years of pursuing this matter and many thousands of dollars later, at this particular point in time, we just cannot afford to pay Mr McPhee, who has done a very good job to this point in time, to represent us here. That may change as funds come to hand.

We have been desperate to try to get the issues that we complain of to trial and we have not sought leave to adduce this new evidence lightly because it has caused us, perhaps, as much or more than a year delay in getting the appeal against the decision of Master Ng heard by the Full Court.

We have done very well in the criminal courts and mentioned in this case, of course, is that there was a criminal complaint made against us and we succeeded in both the Magistrates Court and the Full Court on that matter. In fact, we were encouraged by Justices Wallwork and Parker with respect to our civil case in that matter. Somehow we have failed to get our point across to Master Ng and in the case of Justice Owen and his fellow judges, they seem to have been confused. The crucial issue that we say is at issue here is not those found by Justice Owen but sort of found by Justice Owen.

Perhaps if I can refer to the application booklet, pages 11 or 228 of the decision of Justice Owen. It is apparent from reading the decision that he too found there was some confusion about precisely what Master Ng had found. The respondents had their idea too and Justice Owen did not agree but he refined it in his view down to two points. The first point that the first applicant, the Australian Democrats WA Division:

was not and could not have been a member of the national party;

and the second one, and it is the second finding he thinks that the Master found, that:

the expulsion of individual members of the WA division from the national party had the effect of removing any power that the WA division previously had to act as governing body or representative body of the national party.

Unfortunately, the facts would seem to indicate that Justice Owen is a little bit confused on this issue too and I do not apologise for saying that it is a difficult issue to grasp. There were a number of events that took place in Western Australia in early 1994 and, perhaps if I can quickly run through those, then it may make the picture clearer.

On June 17 1994 I was elected, again, as President of the Australian Democrats WA Division incorporated in this State. Up until that time it had functioned as the WA Division of the Australian Democrats party. It had some 250 members and to all intents and purposes was accepted by all people as the legitimate division of the Australian Democrats. On July 13/15 a letter appeared from factional opponents in the national body, the National President, Secretary and Vice Presidents, questioning the legitimacy of the WA Division. Interestingly, in that letter it states very boldly, "As you know, the WA Division is an incorporated body", and it is one of the pieces of evidence that we are seeking to adduce.

The WA Division Executive ignored the letter and provided at a purported expulsion hearing on the 30,31 July 1994, a letter from Fair Trading in Western Australia stating - and they were, after all, the authority that maintains the Act that controls incorporated bodies - that they had received no complaint with respect to the election of the Executive of the WA Division and concerned that they had, in fact, advised us to conduct the elections and under which constitution we should use. At that meeting in July 30,31, despite our protestations, no member of the WA Division was accepted as a delegate or representative from the WA Division, and on that basis, we took the view that it was not, in terms of the national Constitution, a properly constituted meeting of the Australian Democrats National Executive.

At that meeting a number of members were purported to have been expelled. I was one of those. Without our knowledge a meeting took place in August 1994 at which, and it is again one of the pieces of evidence we are seeking to adduce, a move was made to, and carried by a purported meeting of the National Executive, shutting out the WA Division. Mind you, we were never told of it and, in fact, we never found out about it until the criminal trial revealed this evidence. It was sought and came forth. In November 1994, and it is a little confusing, the National President wrote to WA members and told them that if they did not resign from the WA Division Incorporated, they would cease to be members of the Australian Democrats.

Now, unfortunately, Master Ng confused those events and somehow he took the view that the WA Division Executive lost all its rights because I was purportedly expelled and, of course, because of executives, somebody else could simply replace me. It did not affect the legitimacy of the incorporated body in WA and, of course, unfortunately, Justice Owen has followed that path. The purported shut-out of the WA Division, because that is what it really is, actually took place in August 14 and there is no constitutional basis for that shut-out. We question the legitimacy of the meeting and it is a void act, we say, because there is no power in the Constitution for them to shut out or dismiss, or whatever.

I will quickly come back to Justice Owen. We believe that on that same page, page 228 at the bottom, Justice Owen goes on to say:

It appears from the Master's reasons that after having considered the constitution of the national party he found that under clause -

that actually should be 5, not 11.2 -

the division executive must be a body elected by members of the national party in that division. The learned Master found that the effect of the expulsion of a number of members of the first appellant from the national party in 1994 meant that they were no longer members of the national party. Accordingly they were not eligible to hold a position on the division executive nor did they have the power under clause -

5 it should actually be, not 11.2 -

to elect a division executive. As a result of the expulsion, the Master held that the first appellant, while remaining an incorporated body, could no longer be considered a properly constituted division of the national party.

I will stop there because this is where we come back to what, we think, is the kernel of the issue. We believe that the evidence which we are seeking to adduce homes in precisely on the issue that has been identified, as we see it, as the real crux of the matter. If I might, perhaps, refer to the supplementary arguments that I put forward in support of our application and, perhaps, to point - yes, I am sorry, I am a little lost here.

GLEESON CJ: These are the ones that begin "The Applicants fully support all their previous submissions".

MR CHURCHES: Yes, that is correct. I will just go down to the - what we believe strikes at this particular issue, and we think that Master Ng and Justice Owen got it wrong, is that it appears that the decisions of the High Court on this matter, and I am referring particularly to the - - -

McHUGH J: Cameron v Hogan.

MR CHURCHES: Actually Kepert v West Australian Pearlers' Association.

GLEESON CJ: What paragraph are you on?

MR CHURCHES: I am on 8(iii) and I have quoted Justice Higgins. Now, it would seem to us that this appears to be the law on this situation and that Master Ng and Justice Owen appear to have ignored this point. All the authority that our solicitor was able to find, and I apologise for not providing the first two American authorities. Unfortunately, my skills on the Internet are not so good at pulling down American authority. Of course, there are a couple of more recent cases there which seem to indicate that the position adopted by the Master and by Justice Owen appears to be against what we would have thought was the law in the land.

Of course, I go on to point 9. The learned Master, we think wrongly, has approached the status of the association as if it were a separate legal person from its members. We think the position at law is, such incorporation merely provides a mechanism, and thus within the provisions of the national Constitution, whereby an existing unincorporated association of members can order their affairs, by becoming an incorporated association, in relation to dealing with the outside world for the association.

I just make note of point 10, even to this day the overwhelming majority of divisions are incorporated bodies and, of course, if the law is such that there can be no unincorporated body, then the division has to be the incorporated body. We find it a little difficult to entertain that somehow there is an unincorporated body in existence which was put forward by the respondents as well as an incorporated body. It clearly appears to us not to be the law and Master Ng had taken that point and so had Justice Owen.

If I can just touch briefly on the fresh evidence. We are a little bit perplexed over the issue because it seems to us that we succeeded, I might say, on all the points bar whether this evidence would have an important effect on the decision of Master Ng. Now, while I realise that that is a hard thing to determine, in practical terms, we think that it is going to be of immense value and importance to an appeal court. It may be that Master Ng may not have accepted the fresh evidence but we think that he would have and I will quickly touch on - - -

GLEESON CJ: One of the problems, Mr Churches, is that it is a question of fact and this Court does not normally seek to determine disputed questions of fact raised in interlocutory proceedings. That, I think, is the problem you have to address.

MR CHURCHES: Right.

McHUGH J: Your written submissions accept that the relevant law is not in doubt, only the application of well-settled principles to the facts of the case. It just seems to be a case about facts which lay down no question of general importance to the community generally. It might be very important from your point of view.

MR CHURCHES: Yes, and I guess we have touched on that in the submissions that we have made and, if you like, I might go to those.

McHUGH J: Certainly.

MR CHURCHES: The Judiciary Act 1903 we have referred to and point (a) says whether the proceedings in the judgment to which the application relates was pronounced involved a question of law that is of public importance, whether because of its general application or otherwise. We submit that there is a lot of public interest involved in this particular question because of the balance of power situation that exists in both the federal and State Parliament. This question, certainly, will have a dramatic effect once finalised and this is an important step on the way to finalising the issue of really just who are the Democrats in Western Australia - two senators and two upper house members in Western Australia apparently voting, and important legislation certainly is passing, and having a dramatic effect on the people of Australia.

We think that there is an urgent need to try to get that matter resolved and we believe that the administration is not served by denying us the opportunity to have evidence which, we think, is crucial to deciding this question. It is evidence that it is agreed we had no prior access to, and that I know the finality of justice and those issues are important considerations, but we certainly need this material to assist us in describing to the appeal court the how, when and whys of what took place to remove, or purportedly remove, the WA Division from its position in Western Australia. I assume the lights mean that my 20 minutes has elapsed.

McHUGH J: You have till the red light. This is a warning.

MR CHURCHES: Right. I will quickly refer to the final points in the supplementary submissions. As we said, it is our submission that all the available authority - by all the available authority the learned Master was wrong and we are concerned that the Full Court has relied on these assertions and that it would be against the fair administration of justice, to our mind, that if this decision should stand without restating the separate arguments for each of the pieces of fresh evidence, we say all those items are matters within the peculiar control of the defendants at the time of the application for summary judgment.

They all disprove the facts sworn by the defendants, notably J Evans. We say they clearly assist the plaintiff's argument on appeal but the summary judgment was wrong and there should be a trial in the usual way to decide the facts before legal principles are applied to those facts. We just feel that somehow things have gone backwards and decisions have been made without the facts being determined. Thank you, your Honours.

GLEESON CJ: Thank you, Mr Churches. We do not need to hear you, Mr Martin.

This is an application for special leave to appeal against an interlocutory decision of the Full Court of the Supreme Court of Western Australia which refused leave to the applicants to introduce fresh evidence in connection with an appeal to be heard by the Full Court. The applicants do not contend that, in deciding whether to permit the fresh evidence, the Full Court made any error of law of principle in relation to the tests to be applied for the purpose of making such a decision. An examination of the reasons of the Full Court on the interlocutory application shows that those reasons turned entirely upon factual issues as to the significance of the fresh evidence and the extent to which it would assist the case of the appellants. No question of law or principle is raised by the applications and the case is not a proper one for the grant of special leave to appeal.

Can you resist an order for costs, Mr Churches? Is there an application for costs?

MR MARTIN: There is.

GLEESON CJ: Do you want to say anything about that?

MR CHURCHES: Your Honour, we naturally are certainly hard pressed on costs but we undertook the effort on the understanding that costs would be involved. We will have to accept that.

GLEESON CJ: Thank you. The applicants must pay the respondent's costs of the application.

AT 4.01 PM THE MATTER WAS CONCLUDED