Sullivan v Della Bosca [1999] NSWSC 136 (3 March 1999)

Last Updated: 4 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Sullivan v Della Bosca [1999] NSWSC 136

CURRENT JURISDICTION:

FILE NUMBER(S): 4895/98

HEARING DATE{S): 19/02/99

JUDGMENT DATE: 03/03/1999

PARTIES:

Gerald James Sullivan (Plaintiff)

John Della Bosca (Defendant)

JUDGMENT OF: Windeyer J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. N. Perram (Plaintiff)

Mr. J. McCarthy Q.C (Defendant)

SOLICITORS:

Verekers (Plaintiff)

McClellands (Defendant)

CATCHWORDS:

EQUITY - Declaratory Relief - challenge to pre-selection process of ALP - rules not complied with - discretion as to granting of declaration

ACTS CITED:

DECISION:

Summons dismissed. No order as to costs.

JUDGMENT:

JUDGMENT

Outline of Action

1 The plaintiff is the elected member for the seat of Wollongong in the Legislative Assembly of the Parliament of New South Wales. He is a member of the Australian Labor Party. He has not been selected by that Party as its member to contest the next State election. He claims that the pre-selection processes were not conducted in accordance with the appropriate rules of the Australian Labor Party so that the ballot under which the candidate was chosen is void.

Grounds for Challenge

2 The plaintiff founds his action on two grounds. The first is that the ballot for selection of candidates was not a rank and file ballot of all members of branches in the appropriate district, but rather one conducted in accordance with Rule N.40 of the Rules and that the pre-conditions for an N.40 ballot had not been met. The second ground is that challenges to the numbers of delegates from certain branches for the reformation meeting of the Wollongong State Electoral Council were not determined by the Credentials Committee of the Party prior to the ballot taking place as required by Rule A37(c). It is necessary to add that the defendant did not contend the action is not justiciable in this Court, nor did the defendant base any argument on the fact that the challengers are not plaintiffs. Notwithstanding this it is desirable to set out Rule C.1 which is as follows:

Legal Status of Rules

C.1 It is intended that these Rules and everything done in connection with them, all arrangements relating to them (whether in these Rules or implied by them) and any agreement or business entered into, or payment made by or under the Rules, 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 arrangements, agreements and business are only binding in honour.

Facts

3 The ordinary method of selection of candidates for the Legislative Assembly is by ballot of branch members living in the relevant electorate who fulfil certain conditions including the requirement of appearing on the most recent Commonwealth or State Electoral Roll for the electorate - rule N17. Rule N40 is as follows:

Suspension of Selection Ballots

N.40 The Administrative Committee can, in consultation with the Parliamentary Leadership and the local Electorate Council, decide to hold a ballot under the provisions of this rule;

(a) in the case of the State By-election unless determined otherwise by the Joint Campaign Committee or,

(b) in case of any other by-elections; or

(c) if an endorsed candidate needs to be selected while the Party is on a campaign footing, as determined by the Administrative Committee; or

(d) in other urgent situations, as recommended by the Party Officers and with the leave of the Administrative Committee.

If this happens the candidate will be selected by a Committee made up of equal numbers from the Administrative Committee, and where practicable, the Local Electorate Council. The Committee's candidate will become the endorsed Labor candidate.

4 On 20 November 1998, the Administrative Committee of the New South Wales branch of the Australian Labor Party called for nominations for pre-selection for the seat of Wollongong. Nominations closed on 2 December. Mr. Sullivan duly nominated. On the same day, namely 20 November, the Administrative Committee made the decision to hold a ballot for the seat of Wollongong as provided by Rule N.40. The numbers on the local electoral council became of importance.

5 The pre-selection process was to take place on 4 and 5 December. On 20 November 1998 there was not in existence a State Electorate Council in the Electorate of Wollongong. Where an Electorate Council does exist its membership comprises delegates from branches, the numbers of delegates from each branch being determined in accordance with Rule G.1 by the number of members in the particular branch. The reason why there was no local Electorate Council for Wollongong was that problems relating to member qualifications, which arose in 1996, had not been determined. There was to have been a further meeting on 20 November 1998, but prior to that date it was adjourned so that the challenges to membership of certain branches could be determined by the Credentials Committee. Those challenges - or two of them - were made by letters dated 20 November 1998, in identical terms (other than in respect of payment of fees) by Mr. Warwick MacMillan and Mr. Wilf Billington. The challenges related to delegates nominated to the Wollongong Electorate Council from Berkeley Branch, Mount Keira Branch and Warrawong Branch. It is convenient to set out the terms of one of the challenges in full.

51 Evans Street

Wollongong 2500

20 November 1998

Mr. John Della Bosca

General Secretary

Australian Labor Party (NSW) Branch

PO Box K408

HAYMARKET NSW 2000

Dear John

I hereby wish to challenge the elections to be held at the Reformation Meeting of Wollongong SEC on 20 November 1998 in the A.W.U. Offices (Ironworkers Building), 325 Crown Street, Wollongong, commencing at 7.30 pm. Specifically I wish to appeal under Section A37(a) of the Party Rules against the list of voting delegates from the following Branches and against the nomination of candidates from those Branches for the following reasons.

Berkeley Branch - Delegates T Flynn, D. Staggs, T Jones, T Foye, B Hogan, K Hingle, S. Deeley, J. Parker, L Jones, and alternative delegates M Benn, L Benn, J Morante, R Pickham, L Watts, D Baldacchino, J Holmes, E James, G Crofts are hereby challenged under G1(a). I believe the Branch has elected too many delegates.

Mt. Keira Branch - Delegates G Harrison, D Brown, S Denton, J Stanley, A Harrison, G Hurley, M Tillbrook, J McKay, P Georghallis, J Harrison, I Poo and alternate delegates, V Harrison, N. Manias, D. Bosma, J. Yiannaki, P Myajevic, M Croaker, J Thom, G Gogich, L Thom, R Clarke, P Felvus.

Warrawong Branch - Delegates K Jonovski, Z. Todoroski, Z. Esen, A Sawan, and alternate delegates G Jonovski, C Erginli, C Ozturk, A Siriovski, are hereby challenged under G1(a). I believe they have too many delegates.

Specifically I wish to challenge under Rule I b(a) Mt Keira S Denton, J Stanley, G Hurley and alternate delegates N Manias, D Bosma, R Clarke, who do not appear on the electoral roll.

Also, mail has been returned marked "not at this address" for delegates M Tillbrook, I Poo and the alternate delegates M Croaker and P Felvus.

Family members have also verified that L Thom does not reside at his stated address.

As a consequence of the above I challenge the abovenamed peoples' ability to be included on the list of eligible voters for his/her Branch.

I challenge the ability of Mt Keira delegate G Hurley and Berkeley alternate delegate Eva James (who do not appear on any current financial or unfinancial branch list within Wollongong Electorate) to be included on the list of eligible voters for his/her Branch.

I request that the above delegates' credentials be investigated (and any alternates representing them) and no counting of votes for positions be conducted until the bona fides of Branches and delegates be established by the appropriate authority.

I request Branch Returns to Wollongong S.E.C. of those Branches listed above, be seized or copies to be held by the appropriate authority.

Yours sincerely,

WARWICK MacMillan

P.S. I understand that a fee is to be lodged with this Appeal. As I and my wife do not have any credit cards and there would be a delay in me mailing a cheque to the NSW Branch of the ALP, I have asked the Assistant Secretary of Coniston Branch, Rhonda Sullivan to pay this on my behalf and I will reimburse her. Rhonda Sullivan's credit card details are: Teachers Credit Union Visa Card, name: Rhonda A Sullivan, No. 4564 1219 4067 5089, expiring 8/99.

Encls: Notification of Reformation Meeting of Wollongong S.E.C. (including ballot draw and S.E.C. delegates list)

6. It seems clear from this that the challenges to voting of delegates from Berkeley and Warrawong branches related not to the qualifications of selected delegates but to the entitlement of the branch to the particular number of delegates claimed. So far as Mt Keira branch is concerned that challenge appears to relate to qualifications of elected delegates pursuant to Rule I 6 which is as follows:

Joining a Local Branch

I.6 (a) Branch members and those wanting to join the branch must live within the State electorate. Unless there is overwhelming evidence against this, proof of where a branch member or an applicant for branch membership lives is taken from the up-to-date Commonwealth Electoral Roll or by production of an up-to-date Commonwealth Enrolment Card. For the purpose of this Rule, the Commonwealth Electoral Roll includes supplementary rolls and computer printouts.

(b) In the case of people who are not citizens, a passport or other documentary proof of non-Australian nationality must be produced, along with documentary proof of residence.

(c) In the case of people who are under eighteen years of age, a birth certificate or the certified copy of entry of birth must be produced.

(d) Any person who wants to join the branch must prove that he/she is a paid-up member of that union if eligible.

(e) Any unemployed person who wants to join the branch may be asked to prove that he/she was a paid-up member of the union which covered his/her work at the time he/she became unemployed. An unemployed person will be asked to produce documentary evidence of unemployment, such as a Social Security card.

7. In addition Rule N.17(a) sets out certain qualifications to vote in a selection ballot which in general go to the qualifications required by delegates and do not go to the branch entitlement to a particular number of delegates.

N. 40 Challenge

8. The only arguments relied upon for this challenge were that the decision was not validly made because there had been no consultation with the local electorate council, and because there was no evidence the requirements of one of Rule N.40(c) or (d) were satisfied. As to the first there could be no consultation as there was no body in existence to consult, and Rule D.4(e) provides that the Administrative Committee is in charge of all matters relating to the selection of parliamentary candidates where there is no Electorate Council in existence, so that ground fails. As to the second, there is evidence of consultation with the parliamentary leadership and there is no evidence adduced by the plaintiff to show that the requirements of one of Rule N.40(c) or (d) did not exist. This challenge fails.

Credentials Protest

9. Rule A.37 which sets out the procedure for a protest in respect of a list of voters for an electorate council ballot is as follows:

A.37 (a) A protest can be made after a list of voters has been prepared for a branch or Electorate Council ballot. A branch member can only protest about the list of voters for his/her branch. An Electorate Council delegate can only protest about the list of voters for his/her Electorate Council. All protests are made to the NSW Credentials Committee but must:

(i) Be received in writing by the General Secretary, within seven days of the branch or Electorate Council credentialling.

Note: Credentialling is the process whereby a list of members is determined who can vote in Party ballots.

(ii) Detail the basis for the protest and include a deposit of $50 plus $5 for each member charged. The deposit will be returned if there is a good reason for the protest.

(b) The NSW Credentials Committee only deals with specific matters in the protest. It is the final decision-maker, other than Rule A.41.

(c) There cannot be a protest or appeal by any member over a list of eligible branch or Electorate Council voters after the result of the ballot.

10 Mr. MacMillan and Mr. Billington were informed their challenges would be dealt with by the Credentials Committee on 1 December 1998 at 337 Sussex Street, Sydney. They attended for that purpose with Mr. & Mrs. Sullivan, who were involved with another challenge from the Coniston branch, which is not relevant here. Other challenges from other electorates were being dealt with the same evening. The relevant ones came on at about 8.00 p.m.

11 Although the evidence is far from clear on this and many other matters, I am satisfied that the Committee made an immediate decision that persons whose applications for membership had been referred under Rule A.20 but not determined could not be considered when determining branch entitlement to delegates. These can be referred to as undetermined A.20's. The rule appears to be a rule aimed at preventing branch stacking by delaying admissions to membership for certain periods if there is a rush of applications to join a branch.

12 After this decision the Committee split up with two committee members being allocated to each branch. Mr. Sullivan said that this was the purpose of excluding from membership lists those caught by the undetermined A.20 ruling. He, together with his wife, Mr. MacMillan and two Committee members, Messrs. Scimone and Gartrell, dealt with Coniston branch. That took up until about 10.00 p.m. He said that Mrs. Sullivan then said to Mr. Scimone and Gartrell that there were some names and membership lists for Berkeley, Mt. Keira and Warrawong who had not been notified of the A.20 rule. These people can be referred to as "unnotified A.20s" as distinct from "undetermined A.20s". He said that he was asked to go into the Prime Minister's room to write out lists of names and he, his wife and Mr. MacMillan did so and that at about 10.30 p.m. Mr. Gartrell rushed in to collect the lists. Mr. Sullivan said that he asked about the "other challenges to members who are not on the electoral roll, not living in the electorate, not living at the address given, not on the 1997 branch lists, those who were unfinancial in 1997, and those who paid concessional membership but who were employed". He said that Mr. Gartrell had said that could not be done then and would have to be looked at later as the committee was about to consider matters for the Bligh electorate.

13 Mrs. Sullivan said in affidavit that after the Coniston branch A.20s were excluded the following conversation took place:

4. Rhonda Sullivan: "Is the same process taking place with Warrawong and Berkeley?"

Gartrell or Scimone: "Yes."

Rhonda Sullivan: "But that won't address the problem of the A20s that have the same dates of issue that have not been notified to head office. They are on these lists."

I then produced lists relating to the Berkeley, Warrawong and Mt. Keira branches copies of which are at pages 5-7 hereof.

4. Amanda Fazio then joined the meeting at our table and I gave her a copy of those documents following which there was a conversation in words to the following effect:

Fazio "I'll take these to Warrawong and Berkeley then."

Gartrell "But dates of issue aren't important, it's the date of their first meeting that's important.

I showed him a summary of meeting dates during the period and said:

Rhonda Sullivan: "There are 13 listed here. What other meetings could there have been?"

Gartrell: "Have these people been listed in your challenge?"

Rhonda Sullivan: "The number of delegates is dependent on the eligible votes so we don't need to look at people who are not on the electoral role [sic], etc."

Gartrell: "Are they listed?"

Gerry Sullivan: "This challenge was following the model of a successful challenge in 1996 and you can't have one way of interpreting a rule in 1996 and a different one now."

5. There was then further conversation about the Rules and Amanda Fazio took a copy of the lists for the three branches to the other end of the room where a group of committee members were talking. She returned after a while and there was a conversation in words to the following effect:

Fazio: "There has been a precedent."

Scimone: "Let's see if any of these individuals have been removed as A20s."

Rhonda Sullivan "I tried not to include them when I made up these lists but they could appear in the category of concessional membership."

We then checked the Berkeley list and removed some people who had been caught by the A20 Rule.

6. The conversation then continued in words to the following effect:

Gartrell: "I don't suppose you have the electoral rolls with you do you?"

Gerry Sullivan: "Which ones?"

There was then discussion as to which ones should be used and we looked up the roles [sic] current in 1997.

There was then a conversation in words to the following effect:

Scimone or Gartrell: "What about these non-notified A20s?"

Rhonda Sullivan: "I'm happy to list them for you and fax them through."

Gartrell: "No they have to be done tonight. Can you go and write out lists of them."

Rhonda Sullivan or

Gerry Sullivan: "Yes we can."

7. My husband, Warwick MacMillan and I then went into another room and we each took a branch list and prepared lists of the "non-notified A20s."

8. My husband then said: "I'll just photocopy these," and started to do so whereupon Mr. Gartrell said: "There's no time for that. I'll give you a copy later," and took them out of his hand.

14 The lists referred to in paragraph 3 of that affidavit are lists relating to each of the three branches. I have annexed copies at the end of this judgment.

15 Mr. MacMillan in affidavit evidence said that after dealing with the Coniston branch the following conversation took place:

MacMillan: "We can accept that but we still want to get them in for a rank and file vote."

Scimone: "You can show us the evidence later. That's all we have to do now."

Rhonda Sullivan: "What about Warwick's challenge?"

Scimone (or Gartrell): "We're not here for that".

Rhonda Sullivan: "The Credentials Committee should deal with this now."

Scimone: "You can't go ahead with it. We're not going to do it."

Either MacMillan or

Rhonda Sullivan: "David Brown lodged an identical challenge in 1996 and you accepted that."

Gartrell: "Let me go and see Amanda about this."

9. Shortly afterwards Amanda Fazio came over to us and there was a conversation in words to the following effect:

Fazio: "What is this challenge?"

MacMillan "It's a challenge about non-notified A20s and a lot of other things, failing to prove addresses, etc."

Fazio "What do you mean by non-notified A20s?"

MacMillan: "There are a lot of people who joined at meetings who should have been caught by the A20 rule but who were not previously notified by the secretaries to head office. I have identified them."

Fazio: "Okay, on that basis you can go ahead."

10. Gerry Sullivan, Rhonda Sullivan and I then wrote out three handwritten lists of the "non-notified A20s". Just after 10.30 p.m. I observed Gerry Sullivan go to copy the lists in an ante room just off the meeting room and I saw Tim Gartrell go after him and there was a conversation in words to the following effect:

Gartrell: "We haven't go bloody time to do this. I'll get you a copy later. Just give them to me."

Gartrell then took the notes into the meeting room and shortly afterwards Gerry Sullivan, Rhonda Sullivan and I left.

16 Ms Fazio, who is an executive officer of the New South Wales Branch of the Australian Labor Party said that when the unnotified A20 issue was raised the Credentials Committee decided it would not deal with it as it was not part of the original challenge. I do not understand this to be attacked. She said that this decision was made after the plaintiff and his colleagues left the meeting and that does at least sit with some of the other evidence. She said that the reports of the sub-committees dealing with Coniston, Warrawong and Berkeley branches were dealt with, but as there had been no time to determine the Mt. Keira branch entitlement that was delegated to a sub-committee which met the next day. The evidence was that the undetermined A20s had been deleted from the list but the branch list had not been checked.

17 In oral evidence Ms Fazio said that the lists which I have annexed to this judgment were handed in by Mr. Sullivan before the sub-committees split off in response to a question whether there was any other material to support the challenges.

18 The minutes of the meeting of the credentials committee show that the committee decided on the evening of the meeting that Berkeley branch had 78 registered members giving them an entitlement to six delegates, a reduction of three. In fact under rule G.1 the entitlement was seven and that may have been amended later. Warrawong was determined to have 27 members giving entitlement to three delegates, a reduction of one.

19 According to the minutes and the evidence of Ms Fazio, the Mt. Keira challenge could not be finally determined that night as there was no time, and all that was concluded was the deletion of the outstanding A20s. It was then determined that the task of checking the branch books would be delegated to two senior branch officials Messrs. O'Connor and Arbib. Ms Fazio said that she handed to them the original challenge and the later list of Mr. Sullivan applicable to the branch, and the branch records. I accept that. According to the minutes they completed the task next day and determined the branch had 67 members giving it an entitlement to six delegates to the electorate council as against a claimed eleven.

20 Thus the total reduction of delegates as a result of the protests was nine.

21. Of the delegates put forward by Mt. Keira, apart from the general challenge about numbers, three delegates and three alternate delegates were challenged under Rule I6(a) on the ground that their names were not on the Electoral Roll; two delegates and two alternate delegates were challenged on the basis that they did not live in the Wollongong area; and one was challenged on the basis that he did not live at his stated address. One of those challenged for non-inclusion on the Electoral Roll was also challenged on the basis that he did not appear on a current branch list of financial or unfinancial members. Assuming that all the challenges were proper, were not dealt with, and would have succeeded had they been dealt with, the branch membership would have been reduced from 67 to 56, decreasing delegation entitlement numbers by one. Strictly speaking there was no general challenge to numbers of delegates from Mt. Keira branch, but only a challenge to qualifications of some delegates, but no point seems to have been taken on this.

22 It is fair to say that the evidence is quite confused and quite deficient insofar as important matters are concerned. However, I am satisfied on the following matters:

a. that members caught up by the outstanding A20 referrals determination were excluded from the lists of the three branches;

b. that unnotified A20's were not included because no notice was given of this challenge and this has not been shown to be an incorrect determination;

c. that the branch books were checked to determine the number of registered members after exclusion of the outstanding A20 referrals;

d. That the committee made the final determinations in the absence of the challengers, who make no complaint about that.

23 The question then is whether the lists of specific matters and names for each of the three branches were considered and determined by the committee. So far as Berkeley branch and Warrawong branch are concerned, in spite of the confusion in the evidence, I find that they were and certainly that the plaintiff has not established on the balance of probabilities they were not. There are two pieces of evidence of some significance on this aspect. The first is that the electoral rolls were called for; the second is that a careful checking of the names of persons determined by the committee to be registered members does not include the names of some persons challenged in the Sullivan lists under various headings. On the Berkeley list the deletions include two persons claimed as not being on the roll, one person as not living within the electorate, one unfinancial member and at least five concessional members. On the Warrawong list the deletions include two out of the three persons claimed not to be on the electoral roll, two out of three claimed as not living in the electorate and five claimed as having joined after the relevant date.

24 I find that the challenge in respect of those branches was determined prior to the poll. In coming to this conclusion I have kept in mind the strong submission made by Mr. Perram for the plaintiff that it would have been easy enough for the defendant to have called one of the members of credentials committee, and that his witnesses were not cross-examined on their affidavits. There is, I think considerable force in that submission, but in view of the evidence that the particular challenges must in some way have been dealt with, I do not think it carries the day. As a matter of interest had those members on Mr. Sullivan's lists for Berkeley and Warrawong, who do not appear to have been excluded, been excluded, the result might have been that the relevant branch membership for Berkeley was 53 giving an entitlement to five delegates, not six or seven and the Warrawong branch membership would have been reduced by seven to 20, giving the same branch entitlement as determined.

25. So far as Mt. Keira Branch is concerned the matter is less clear. One reason for this is that the list of members determined to be registered members of the branch is not set out in the minutes or the report of the Credentials Committee prepared by Ms Fazio as it was for the other two branches. Had it been, it might have indicated that the particular challenges had been dealt with. However, the minutes on their face indicate that after the outstanding A20 referral names were deleted, the checking of the books was referred to a sub-committee. In the absence of any evidence that the particular challenges notified were dealt with, which evidence could easily have been given by the members of the sub-committee, it is open to me to find that they were not dealt with and I so find. In addition, the committee itself is not shown to have made any determination on Mt. Keira. I was not referred to any rule authorising the delegation of decision making. The result of this is that Mt. Keira, after the reduction of its original entitlement to a figure of six, may have been, but was not necessarily, susceptible to a further reduction. That figure is undetermined but according to the minutes of the Review Tribunal of 12 February 1999 the entitlement at the least would be three. That is a matter which I find was not determined, and thus the result is that I must find that the Credentials Committee did not determine the challenges before the relevant election.

Claim for declaration and discretion

26. Details of the pre-selection ballot are not before the court. There is no evidence of the number of candidates but there is evidence that the final decision was between Mr. Sullivan and Mr. Markham. According to the report of the review tribunal meeting of 12 February 1999, the outcome of the ballot, presumably after distribution of preferences, was Markham 58.78 votes and Sullivan 17.206 votes. On that basis it is impossible to conclude that six votes less could have made any difference, the reduction being three fewer delegates from Mt. Keira branch and thus three fewer electors put forward by administration.

27. It is not really relevant to this claim, but even had the plaintiff established his claim to the review tribunal - based it seems on material not placed before the Credentials Committee - that the delegates should have been reduced by nine resulting in a decrease in votes on the election committee by 18, that is unlikely to have made any difference unless those deleted were extremely persuasive.

28 This is a claim for a declaration, that the pre-selection ballot which was held is void and without effect and for an order for a fresh ballot. I do not understand how that latter order can be made. As to the declaration there is a discretion in the court as to whether or not it should make the declaration sought. In the view of the matters discussed under this heading I have concluded that I should decline to make that declaration as I consider it clear there would be no utility in it as a new vote would not assist the plaintiff. I consider also that Rule C.1 gives added reason to exercise the discretion to refuse to make a declaration in proper circumstances. It is proper to consider whether Mr. Sullivan, a person bound by the rules, should obtain a declaration in proceedings which on their face are contrary to the rules, giving rise only to a Phyrric victory. In the circumstances however there should be no order as to costs.

Orders

1. Summons be dismissed.

2. No order as to costs.

3. Exhibits can be returned.

I certify that paragraphs 1 to 28 and three pages annexed are a true copy of the Reasons for Judgment given by Windeyer J in matter 4895/98 Sullivan v Della Bosca

______________________________

Laurel Laurent

Associate to Mr. Justice Windeyer

3 March 1999

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LAST UPDATED: 03/03/1999