Cuthbert v Abbott & Ors [2023] QCA 139 (2023) 15 QR 337

SUPREME COURT OF QUEENSLAND CITATION: Cuthbert v Abbott & Ors [2023] QCA 139 PARTIES: SHANE CRAIG CUTHBERT (appellant) v SHARON ABBOTT (first respondent) PETER ALLEN (second respondent) JAKE ARAULLO (third respondent) STEVE BAKER (fourth respondent) KATE BANFIELD (fifth respondent) JOHN BATTAMS (sixth respondent) ZAC BEERS (seventh respondent) GARY BULLOCK (eighth respondent) JONTY BUSH (ninth respondent) JULIE-ANN CAMPBELL (tenth respondent) MILTON DICK (eleventh respondent) TONI FULTON (twelfth respondent) CHRIS GAZENBEEK (thirteenth respondent) SALLY GUNNER (fourteenth respondent) NEIL HENDERSON (fifteenth respondent) MITCH HUGHES (sixteenth respondent) MICK McKITRICK (seventeenth respondent) JOSHUA MILLROY (eighteenth respondent) STEPHANIE NAUNTON (nineteenth respondent) THE HONOURABLE ANNASTACIA PALASZCZUK (twentieth respondent) INEZ PENROSE (twenty-first respondent) -- 1 of 16 -- 2 LINUS POWER (twenty-second respondent) STACY SCHINNERI (twenty-third respondent) WENDY STREETS (twenty-fourth respondent) ALANA TIBBITTS (twenty-fifth respondent) STUART TRAILL (twenty-sixth respondent) CHRISTINA WARRY (twenty-seventh respondent) ROHAN WEBB (twenty-eighth respondent) FILE NO/S: Appeal No 7401 of 2022 SC No 88 of 2022 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2022] QSC 113 (Bradley J) DELIVERED ON: 14 July 2023 DELIVERED AT: Brisbane HEARING DATE: 18 October 2022 JUDGES: Bond JA and Boddice and Freeburn JJ ORDERS: 1. Application for leave to adduce new evidence refused. 2. Appeal dismissed, with costs. CATCHWORDS: ASSOCIATIONS AND CLUBS – JURISDICTION OF THE COURTS – INTERFERENCE IN INTERNAL MANAGEMENT – where the appellant’s application for membership of a political party was accepted and then a decision was subsequently made to reconsider and then to reject his membership – where the appellant filed an originating application seeking injunctive relief allowing him to remain in the political party and a declaration that a contract existed between the appellant and the respondents which was breached when his membership was rejected – where the respondents contended that the appellant’s claims were not justiciable in court – where the political party is structured as an unincorporated voluntary association – where membership is governed by a national constitution – where the national constitution explicitly provides that arrangements relating to membership do not result in a legal relationship – where the primary judge accepted the respondents’ argument that the -- 2 of 16 -- 3 appellant’s claims were not justiciable – whether the primary judge erred in this finding Camenzuli v Morrison (2022) 107 NSWLR 439; [2022] NSWCA 51, applied Cameron v Hogan (1934) 51 CLR 358; [1934] HCA 24, applied Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404; [1983] QSCFC 52, applied Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited COUNSEL: The appellant appeared on his own behalf J M Harper for the respondents SOLICITORS: The appellant appeared on his own behalf Holding Redlich for the respondents [1] BOND JA: On 16 February 2022 the appellant filed an originating application seeking orders under the Association Incorporations Act 1981 (Qld) concerning the rejection of his application for membership of the Australian Labor Party (Qld Branch). [2] By an amended application filed on 21 March 2022 the appellant changed the juridical basis on which he sought relief, founding it on the proposition that a contract existed between himself and the Australian Labor Party (State of Queensland), being the Queensland Branch of the ALP. In a further amended originating application filed 22 April 2022, the appellant continued to rely on that foundation for his claims for relief. In that document, the appellant sought the following orders:1 “1. Immediate Injunctive relief, ordering the Respondent(s), as Secretary of and the Administrative Committee of a Voluntary Association namely, Australian Labor Party (State of Queensland), allowing the Applicant to remain a member of the Voluntary Association, Australian Labor Party (State of Queensland) for the immediate interim period, preceding any determination by the court of final orders. 2. Injunctive relief preventing the Respondent(s), from cancelling the Applicants membership to the Voluntary Association, Australian Labor Party (State of Queensland). 3. A declaration by the court that a contract existed between the Respondent(s), as Secretary of and Administrative Committee of a Voluntary Association namely, Australian Labor Party (State of Queensland), and the Applicant. 4. A declaration by the court that the Respondent(s), as Secretary of and Administrative Committee of a Voluntary Association namely, Australian Labor Party (State of Queensland), committed a breach of contract and that the Applicant is entitled to the relief sought. 1 Marking up of amendments removed. -- 3 of 16 -- 4 5. A declaration by the court that the Respondent(s), as Secretary of, Members of, Senator of, employee of and Administrative Committee of a Voluntary Association namely, Australian Labor Party (State of Queensland), defamed the Plaintiff and that the Applicant is entitled to the relief sought. 6. The respondent pay the applicant's costs of the application.” [3] Twenty-eight natural persons were named as respondents to the further amended originating application, each named “in [his or her] capacity as a member of the Administrative Committee of the Australian Labor Party (State of Queensland)”. [4] Case management orders made on 14 April 2022 provided for the parties to file statements of contentions and also written submissions as to the Court's jurisdiction to hear the appellant’s claims and for the hearing of any preliminary issue as to whether the Court had jurisdiction to hear the appellant’s claims. That issue arose because the respondents had contended that the applicant’s claims were not justiciable in court. [5] On 26 May 2022 the primary judge determined the preliminary issue by accepting the respondents’ argument that the applicant’s claims were not justiciable. The result was that the primary judge dismissed the proceeding commenced on 16 February 2022 and ordered the applicant to pay the respondents’ costs of the proceeding.2 [6] By his notice of appeal, the appellant alleged that the primary judge “erred in finding that the appellant’s claim is not justiciable” and sought an order that “the Court determine the appellant’s claim justiciable and allow the appellant’s claim to be heard in full in the Court”. [7] For the following reasons the appeal must be dismissed. Factual background [8] The Australian Labor Party (the ALP) is a political party. It is structured as an unincorporated voluntary association made up of individuals associated together for the advancement of the cause of a particular political programme. The ALP’s main constituent document is the ALP National Constitution (the National Constitution). It was common ground before this Court that the National Constitution is a rule made by the National Conference of the ALP. [9] The National Constitution provides that the ALP is organised so as to consist of branches in each state and that each state will have its own “branch rules”.3 The National Constitution contemplates that the way in which a person may become and remain a financial member of the ALP will be dealt with by the various state rules.4 In particular, the National Constitution provides: (a) by cl 31, that the “National Principles of Organisation” set out in Part D are intended to be binding on state branches and to be implemented through branch rules; 2 The primary judge also dismissed an application which the appellant had made to make further amendments to the originating application, but no challenge has been advanced to that order. 3 National Rules cll 13 and 34. 4 National Rules cll 1, 13, 34 and 35. -- 4 of 16 -- 5 (b) by cl 34 of Part D, that membership of the ALP is “open to all residents of Australia who are prepared to accept its objectives and who have associations with no other political party or proscribed organisation”; (c) by cl 35 of Part D, many specific rules about the process for recruitment of members, applying for membership, payment of membership fees, and the like; (d) by cl 36 of Part D, each state branch of the ALP “must adopt rules that establish an appeals process in relation to compliance with and enforcement of branch rules by members, affiliated unions and constituent units of the branch”, which branch rules must be submitted to the National Executive for approval; (e) by cl 46 of Part D, all state branch rules must be revised in accordance with the National Principles of Organisation and submitted to the National Executive for endorsement; (f) by cl 47 of Part D, the National Executive (which by cl 16(d) is generally empowered to “… exercise all powers of the Party on its behalf without limitation, including in relation to the state branches and other sections of the Party”) is specifically empowered to amend the rules of any state branch to implement the National Principles of Organisation. [10] The branch rules which are presently relevant are those expressed in the Queensland Labor Rules 2021 (the Queensland State Rules). The Queensland State Rules is the constituent document for the Queensland branch of the ALP, known as the “Australian Labor Party (State of Queensland)”. As the primary judge found, the Queensland branch of the ALP is not a separate voluntary association.5 The ALP is a single voluntary association, and the state branches are constituent parts of that single voluntary association. Of course, as previously mentioned, the question of membership is addressed by the branch rules of the particular state through which membership of the ALP is sought. [11] As contemplated by the National Constitution, the Queensland State Rules do specify the procedure by which a person may become and remain a member of the Queensland branch of the ALP, thereby becoming and remaining a financial member of the ALP.6 Relevantly, the Queensland State Rules provide: (a) by cl 3(1), for the connection with and primacy of the National Constitution in these terms: “These Rules are subject to the Rules of the National Conference and the National Executive and in the event of any inconsistency, the National Conference and National Executive Rules shall prevail in the event of a dispute: (a) as to who are entitled to be trustees of any personal property owned or controlled by the Party, the trustees shall be the persons recognised by the National Executive as the President and Secretary of the Party; (b) as to the membership of the Party or any Party Unit or as to membership of or as to who is the holder of any office 5 Cuthbert v Abbott & Ors [2022] QSC 113 at [24] – [25], citing Burton v Murphy [1983] 2 Qd R 321 and Asmar v Albanese [2022] VSCA 19 at [156] to [173]. 6 Queensland State Rules Part C. -- 5 of 16 -- 6 in the Party or any Party Unit then notwithstanding the provisions of Rule 10 of the National Rules, any decision of the National Executive shall, subject to any subsequent decision of National Conference to the contrary, be final and binding on all members of the Party”; (b) by cl 3(2), all members are bound by the Queensland State Rules; (c) by cl 19, an Administrative Committee is responsible for the overall administration of the state branch; (d) by cl 12(1), a person may apply for membership by lodging a signed application in a form prescribed by the Administrative Committee together with payment of the prescribed fee; (e) by cl 12(1A), each applicant must agree amongst other things that if admitted to the ALP, they: (i) pledge themselves to the principles of the ALP’s state, national and local government platforms and to any alteration thereto made by a national or state conference; and (ii) pledge to do everything in their power to further the objectives of the Party as set forth in its constitution and general rules; (f) by cl 12(4) that the Administrative Committee may refuse an application for membership on particular stated grounds, including “that a refusal of membership is in the best interests of the Party” and “any other reason placed before, and regarded as sufficient by the Administrative Committee”; (g) by cl 12(7) that full membership rights (including the right to participate in meetings; and to stand and vote in plebiscites and preselections; and to stand as an endorsed candidate for public office) will not accrue until the unregistered member has registered with a Branch on the prescribed form and that registration has been approved by the Administrative Committee; (h) by cl 13, for detailed requirements concerning branch registration; (i) by cl 14, for detailed requirements concerning membership subscription and renewal; (j) by cl 22 for the existence of a Disputes Tribunal: “22 DISPUTES TRIBUNAL (1) The Disputes Tribunal shall, subject to the powers of the National Conference, the National Executive and the State Conference, mediate, conciliate, arbitrate or otherwise hear and determine all matters in dispute within the Party properly referred to it. (2) The Disputes Tribunal shall operate independently in its deliberations at all stages of the disputes process. (3) The procedures for the operation and conduct of the Disputes Tribunal shall be in accordance with Appendix Eight (AP8)”; -- 6 of 16 -- 7 (k) by Appendix Eight, detailed provisions dealing with the membership of the Disputes Tribunal, its method of operation, the initiation of a dispute, mediation, arbitration, appeals, the powers of the Disputes Tribunal, breaches of Disputes Tribunal rulings, public comment on matters before the Disputes Tribunal, and other matters including the time within which a complaint may be lodged. [12] The relevant aspects of the chronology of the relevant events concerning the appellant’s membership of the ALP were not in dispute before the primary judge: (a) On 1 October 2020, the appellant applied for membership of the ALP. (b) Shortly after, the application was accepted by the Administrative Committee of the Queensland branch of the ALP. (c) On 11 October 2021, the appellant’s request to be registered to the Cairns Branch of the Queensland branch of the ALP was approved by the Administrative Committee. (d) Later, the Administrative Committee reviewed or reconsidered the appellant’s membership and resolved to reject him as a member of the party. (e) The Administrative Committee notified him of its decision by telephone call on 10 December 2021 and by a letter dated 6 December 2021, which the appellant did not receive until sent by email on 10 December 2021. (f) On 13 December 2021, the appellant applied for the Administrative Committee to review its decision. The review was conducted on 14 February 2022 and the December decision was affirmed. (g) The appellant filed his originating application in the Supreme Court on 16 February 2022. [13] The most obvious factual obstacle to the appellant’s resort to the Court is that expressed in cl 2 of the National Constitution, which provides: “(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.” [14] Four other factual matters are relevant to the subject matter of cl 2 and its significance to the justiciability of the appellant’s claims. -- 7 of 16 -- 8 [15] First, as the primary judge found the Queensland State Rules are expressly subject to rules made by the National Conference and the National Executive;7 the National Constitution is a rule made by the National Conference, and the national rules prevail in the event of a dispute “as to membership of the Party or any Party Unit.” The relevant rule is cl 3(1) of the Queensland State Rules quoted at [11](a) above. The correctness of this part of the primary judge’s analysis was specifically accepted by the appellant during oral argument before this Court.8 [16] Second, the primary judge found that the National Constitution provides by cl 55 that “decisions of National Conference are equally binding on all members of the Party” and that National Conference decisions “which relate to organisational, administrative or rules matters continue in force until a subsequent Conference otherwise determines.”9 [17] Third, the primary judge found that a 1955 National Conference decision about members initiating legal proceedings resolved that:10 “as a general principle it cannot concede the right of any member of the Party to initiate legal proceedings for the purpose of establishing the constitutional behaviour of the Labor Movement. We emphasise that, with a few isolated exceptions, the history of our Party discloses we have functioned on a basis of complete determination in accordance with our own rules and our own interpretation of them. We insist we must continue to create our own procedures, taking care of our own business without the introduction of lawyers and law courts.” [18] Fourth, the primary judge found that a 1979 National Conference decision about grievances expressed the belief “that the procedures of the Party at state and national level provide adequate opportunity for people who are dissatisfied to seek redress of Grievance.” And it “calls upon all members of the Party in respect of matters in dispute to refrain from making comment outside the Party.”11 The decision of the primary judge [19] The primary judge dealt sequentially with the six major arguments which the appellant had advanced in support of his contention that his claims for relief against the respondents were justiciable and concluded with addressing a miscellany of other contentions. It is convenient to summarise his Honour’s decision in the same way. Whether Mr Cuthbert is party to a contract with other members [20] The primary judge concluded that the approach which should be taken to the issue of intention to create legal relations was that set out in the majority judgment in the High Court decision of Ermogenous v Greek Orthodox Church Community of SA Inc.12 Relevantly, that meant that his Honour accepted that the legal principles by which the question posed in the subheading should be answered, were the following: 7 Cuthbert v Abbott & Ors [2022] QSC 113 at [27]. 8 Transcript at p 1-2 line 49 to p 1-4 line 11. 9 Cuthbert v Abbott & Ors [2022] QSC 113 at [21]. 10 Cuthbert v Abbott & Ors [2022] QSC 113 at [22]. 11 Cuthbert v Abbott & Ors [2022] QSC 113 at [21]. 12 Cuthbert v Abbott & Ors [2022] QSC 113 at [32], citing Ermogenous v Greek Orthodox Church Community of SA Inc (2002) 209 CLR 95 at [24]-[25]. -- 8 of 16 -- 9 (a) It was of the essence of contract that the parties voluntarily assume legally enforceable duty.13 (b) Circumstances might reveal a contrary intention by demonstrating that the parties could not be regarded as having intended to subject their agreement to the adjudication of the Courts.14 (c) An inquiry into that question may take account of “the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances”.15 (d) Save to say that the inquiry requires an objective assessment of the state of affairs between the parties and is not a search for the uncommunicated subjective motives or intentions of the parties, the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. [21] The primary judge thought that the question whether a member of the ALP had entered a contractual relationship with other members and the members of the Administrative Committee depended on what was objectively conveyed by the provisions of the party’s constituent documents, having regard to the circumstances in which those statements were made.16 His Honour found that the only means by which intention could be assessed in the case before him was by reference to the National Constitution and the Queensland State Rules.17 [22] In making that assessment, his Honour accepted that such documents had an inherent public dimension and that because they were a product of the efforts and resolutions of lay persons a more flexible interpretive approach might be justified,18 in this regard citing with approval the approach of Stanley J in Echunga Football Club Inc v Hills Football League Inc.19 [23] His Honour thought it was difficult to imagine a clearer statement of an intention not to create legal relations than cl 2 of the National Constitution.20 He referred with approval to the observations of the Victorian Court of Appeal in Asmar v Albanese,21 that by cl 2 of the National Constitution, the ALP had “adopted the principle of non- justiciability in terms reflecting the decision in Cameron v Hogan” and had “clearly expressed their desire not to create legal relationships based upon the National Constitution …, and not to have disputes as to those constituent documents determined by the courts.”22 His Honour thought the appellant’s contrary argument was strikingly inconsistent with the National Constitution, directly contrary to the 1955 National Conference decision (referred to at [17] above); inconsistent with the provisions in the Queensland State Rules providing for the resolution of disputes 13 Ermogenous v Greek Orthodox Church Community of SA Inc (2002) 209 CLR 95 at [24]. 14 Ermogenous v Greek Orthodox Church Community of SA Inc (2002) 209 CLR 95 at [24]. 15 Ermogenous v Greek Orthodox Church Community of SA Inc (2002) 209 CLR 95 at [25]. 16 Cuthbert v Abbott & Ors [2022] QSC 113 at [33]. 17 Cuthbert v Abbott & Ors [2022] QSC 113 at [34]. 18 Cuthbert v Abbott & Ors [2022] QSC 113 at [35]. 19 [2014] SASC 201 at [18], applied by Le Meire J in Kaur v Sikh Gurdwara Perth (Inc) [2017] WASC 270, [44]. 20 Cuthbert v Abbott & Ors [2022] QSC 113 at [35]. 21 [2022] VSCA 19 at [69] (T Forrest, Whelan JJA and Forbes AJA). 22 Cuthbert v Abbott & Ors [2022] QSC 113 at [35]. -- 9 of 16 -- 10 through internal party processes (referred to at [11](j) and [11](k) above) and perhaps inconsistent with the 1979 resolution (referred to at [18] above).23 [24] The primary judge found other indications of an absence of intention to create legal relations in the following:24 (a) The ALP had chosen to remain unincorporated despite that opportunity existing under available legislative schemes. (b) The objectives of the party were entirely political and distinct from being for the personal welfare, improvement, or provision of services to its members. (c) The internal procedures for disputes were framed instead of and to the exclusion of legal remedies. (d) Control of amendment of the constituent documents was beyond any individual member and lay with the National Conference (in the case of the National Constitution) and with the State Conference or the National Executive (in the case of the Queensland State Rules). [25] The primary judge concluded that:25 “The party’s constituent documents, in the circumstances in which they were made and are used, objectively convey that, by joining the ALP as a member, a person does not intend to create legal relations between the member and other members or between the member and the managing committee of the unincorporated association. It follows that the National Constitution, and the Rules made in accordance with it, do not comprise a contract between the members of the ALP.” Whether Cameron v Hogan is “bad law” [26] The essence of his Honour’s rejection of the appellant’s argument that Cameron v Hogan (1934) 51 CLR 358 was “bad law” and should not be followed is to be found in this passage:26 “In Cameron v Hogan, the High Court held that a member of the ALP, the then Premier of Victoria, could not maintain an action that his exclusion from the party was in breach of its rules, nor could the member maintain an action for any other breach of any party rules including the rules for pre-selection, unless the member could establish interference with a relevant proprietary right, or the member could establish that the rules were contractually binding. The decision in Cameron v Hogan was applied by the New South Wales Court of Appeal in Camenzuli v Morrison,27 its force undiminished by the passage of nearly ninety years. The unsuccessful party sought special leave to appeal on two grounds; the first being whether the authority of Cameron v Hogan should be qualified in light of later amendments to the Commonwealth Electoral Act 1918 (Cth) 23 Cuthbert v Abbott & Ors [2022] QSC 113 at [36]. 24 Cuthbert v Abbott & Ors [2022] QSC 113 at [40]. 25 Cuthbert v Abbott & Ors [2022] QSC 113 at [41]. 26 Cuthbert v Abbott & Ors [2022] QSC 113 at [45] to [47], footnotes in original. 27 [2022] NSWCA 51. -- 10 of 16 -- 11 about the printing of the name of a candidate endorsed by a registered political party on a ballot paper. The High Court refused special leave because there were insufficient prospects of success on an appeal from that decision in relation to the finding that the matter was not justiciable (applying Cameron v Hogan) as well as to the substantive question of construction of the relevant party rules.28 Cameron v Hogan is a decision of the High Court. The decision in Camenzuli v Morrison is not obviously wrong. This court should proceed on the basis that the decision in Cameron v Hogan remains binding authority in accordance with its terms.29 Mr Cuthbert’s submission that the decision is “bad law” must be rejected.” [27] The primary judge expressly referred to and rejected the argument which the appellant had advanced that Cameron v Hogan should be distinguished because the internal stability and good governance of a political party was important in the democratic process. His Honour observed:30 “The public importance of political parties may be accepted. They have been, to certain extents, the subject of legislation in the Commonwealth Electoral Act and the Electoral Act 1992 (Qld). Each Act provides for the registration of a political party for particular purposes and for a copy of the party constitution to be lodged with the election authority. Although questions about the person who holds a particular position with a statutory function or duty may be justiciable, neither Act provides that a registered party’s rules or constitution may be legally enforced. In Baldwin v Everingham [1993] 1 Qd R 10 the recognition and registration of political parties was the basis on which Dowsett J distinguished Cameron v Hogan. Although his Honour’s reasoning was followed in several subsequent decisions,31 following Camenzuli it must now be accepted that the statutory changes have not put registered political parties in a different position from that which prevailed at the time of Cameron v Hogan in respect of internal disputes.” The identification of respondents [28] It was common ground that the respondents were the members of the Administrative Committee of the Queensland branch of the ALP. The primary judge noted that the practical difficulty of identifying the necessary respondents was one of the reasons courts sometimes declined to hear disputes about the inner workings of unincorporated voluntary associations, but concluded that the absence of such a difficulty did not, of itself, make the appellant’s claim justiciable. Whether Mr Cuthbert’s livelihood is affected [29] Seeking to rely on cases where courts have intervened in the affairs of voluntary associations when a person has been expelled from membership and their livelihood 28 [2022] NSWCA 51. 29 The Victorian Court of Appeal had reached the same conclusion in Asmar v Albanese [2022] VSCA 19 at [208]. 30 Cuthbert v Abbott & Ors [2022] QSC 113 at [50] to [51], footnote in original. 31 For example, Clarke v Australian Labor Party (1999) 74 SASR 109, 136–9 [73]-[91] (Mullighan J); Coleman v Liberal Party of Australia [No 2] [2013] VSC 662, [103]-[105] (Robson J). -- 11 of 16 -- 12 depended upon membership, the appellant had argued that his livelihood had been affected by the rejection as a member of the ALP. [30] The primary judge made these factual findings:32 “Mr Cuthbert does not and has never depended on membership of the ALP for his livelihood. He has never been elected as a member of parliament. He has never been selected as a candidate for the party. Nor does it appear has he ever nominated for selection. Mr Cuthbert has never been appointed to any paid office in the party. He has not sought such employment. He has never derived any income from membership of the ALP. … In no relevant sense do the internal rules of the party place an unjustifiable restraint on the income earning activities of Mr Cuthbert or substantially and unreasonably restrict his liberty of employment.33 They are not a restraint of trade.” [31] The primary judge addressed the proposition that loss of membership could be regarded as adversely affecting the appellant’s opportunity of becoming a member of parliament by adopting the conclusion of McGrath J in Dawkins v The State Secretary of the Australian Labor Party (WA Branch) [No 2] that the loss of an opportunity to be a member of parliament “is an insufficient basis to contend that the failed candidate's property, income or reputational interest has been adversely affected.”34 Whether Mr Cuthbert’s reputation is affected [32] The appellant had argued that rejection affected his reputation and the Court had jurisdiction to consider the civil wrong of defamation. The appellant had submitted that certain persons had made statements which were defamatory of him. He had argued that defamation and review of membership went hand in hand. [33] The primary judge accepted the possibility that the appellant might have a claim for defamation against those persons in respect of the statements but concluded that was not the claim for relief which the appellant had sought. That there might be a claim for defamation did not make the claim for relief concerning the treatment of his membership justiciable.35 The scope of declaratory relief [34] The appellant had argued that the Court had a broad discretion to decide what was justiciable. The primary judge rejected that argument and concluded that the Court could not by exercise of discretion make justiciable that which was not justiciable. His Honour concluded:36 32 Cuthbert v Abbott & Ors [2022] QSC 113 at [56] and [60], footnote in original. 33 Cf Buckley v Tutty (1971) 125 CLR 353, 381 (Barwick CJ, McTiernan, Windeyer, Owen and Gibbs JJ); Eastham v Newcastle United Football Club Ltd [1964] Ch 413, 446 (Wilberforce J); and Greig v Insole [1978] 1 WLR 302, 345 (Slade J). 34 [2022] WASC 117 at [41]. 35 Cuthbert v Abbott & Ors [2022] QSC 113 at [64] to [68]. 36 Cuthbert v Abbott & Ors [2022] QSC 113 at [71], footnote in original. -- 12 of 16 -- 13 “A declaratory remedy is available to vindicate a legal right. The court could make a declaration of right whenever the applicant’s interest is sufficient to justify it. Where there is no legal right, no such relief is available.37” Mr Cuthbert’s other submissions [35] The primary judge noted that the appellant had argued that his claim involved the rights of individuals, issues of good faith and honesty, and that equity entitled him to enforce the party’s rules because the party itself had power to do so. [36] The primary judge was unimpressed, observing:38 “These submissions are framed in very general terms. It is not possible to identify with precision their legal or logical basis. Mr Cuthbert has not identified any legal right. His submissions employ good faith and honesty as mere rhetorical flourishes. Again, absent a legal right, it does not appear that the ALP could enforce its internal rules against a member by a court proceeding.” Consideration of the appellant’s argument on appeal [37] The appellant was self-represented. The only ground expressed in his notice of appeal was the inadequate statement that his Honour erred in deciding that the appellant’s claim was not justiciable. The appellant’s written submissions did assert error by the primary judge in various ways, essentially by asserting the primary judge erred by rejecting the arguments previously advanced. The appellant did not develop his argument orally before this Court, but relied solely on his written submissions. [38] Before addressing the case advanced on appeal, it is appropriate to consider the appellant’s application to rely on new evidence on appeal. The application to rely on new evidence [39] The appellant sought leave to rely on new evidence, namely the constitutions and rules of the Victorian Branch of the ALP for 1928, 1932, 1933 and 2021. [40] The respondent relied on Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408 to suggest that in order to establish the “special grounds” required by UCPR r 766, these three conditions must be satisfied: (a) the evidence could not have been obtained with reasonable diligence for use at the trial; (b) the evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and (c) the evidence is credible though it need not be incontrovertible. [41] It suffices to dispose of the application to explain that the appellant could not satisfy the second condition. He suggested that the new evidence would allow this Court “to 37 Cameron v Hogan (1934) 51 CLR 358, 378; Nagle v Feilden [1966] 2 QB 633, 647 (Denning MR). 38 Cuthbert v Abbott & Ors [2022] QSC 113 at [73]. -- 13 of 16 -- 14 more clearly identify the differences between the Rules relied by the High Court decision in 1932 [namely, Cameron v Hogan] and the current Rules”. The problem with that argument is that there was no basis to conclude that evidence of what might have been the situation in the Victorian branch over time had any relevance to what was the situation in relation to applying for membership of the ALP by way of its Queensland branch at the time the appellant made his application. [42] The application must fail. The appellant’s arguments [43] The appellant’s submissions sought to have this Court conclude that the High Court decision of Cameron v Hogan should not be followed on the basis that it was “bad law”. Of course, absent a subsequent decision of the High Court which overruled Cameron v Hogan or established a mode of analysis which was inconsistent with it, it is no more open to this Court to take that course than it was for the primary judge. The appellant identified no such decision. [44] Next the appellant sought to have this Court conclude that the primary judge erred in following Camenzuli v Morrison. But the primary judge was correct to regard that decision as highly relevant as it was a very recent decision of an intermediate court of appeal examining the very aspects of legal principle on which the appellant sought to rely. In Camenzuli v Morrison the New South Wales Court of Appeal considered Cameron v Hogan and the argument (also advanced here) that it should not be followed because of the importance in public life of the role and manner of operation of political parties. It suffices to quote from the headnote: “Cameron v Hogan is binding authority that disputes arising from the application of the rules of an unincorporated political party are not justiciable. The role and manner of operation of political parties has not changed materially since Cameron was decided. The provisions in the current [Commonwealth Electoral Act 1918 (Cth)] providing for party registration, candidate nomination and endorsement, and public funding do not purport to affect the general internal operations of political parties. Accordingly, it is not correct to state at a high level of generality that the statutory changes have now taken political parties “beyond the ambit of mere voluntary associations”. The public interest in the operation of major political parties does not justify judicial intervention in internal party disputes generally. Whether a dispute within a political party is justiciable must be determined in each case with respect to relevant provisions of the [Commonwealth Electoral Act 1918 (Cth)].” [45] It may be noted that in the present case the appellant did not identify any specific statutory provisions which justified the conclusion that a dispute as to membership of a political party must be regarded as justiciable. [46] In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135], the High Court stated: “Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the -- 14 of 16 -- 15 interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.” [47] The appellant did not address this principle. He advanced no submission as to the basis on which this Court should regard Camenzuli v Morrison to be plainly wrong. The single judge decisions to which he referred do not provide any basis for reaching that conclusion. The primary judge was right when he expressed the conclusion identified at [26] above. [48] It is worth observing that in Camenzuli v Morrison the New South Wales Court of Appeal specifically recognized: (1) that the joint reasons of Rich, Dixon, Evatt and McTiernan JJ in Cameron v Hogan did not conclude that no issue as to the operation and management of a voluntary association could be the subject of proceedings in a court; and (2) the joint reasons in Cameron v Hogan acknowledged that proceedings might be brought to enforce a proprietary interest in property held by a voluntary association and to enforce contractual rights between members (if any).39 [49] The appellant argued before the primary judge and in his written submissions before this Court that his claims for relief were justiciable because his claims sought to enforce contractual rights between members. [50] In this regard, the appellant first contended that the primary judge failed to apply the objective test to the question of whether parties intended to subject their agreement to the adjudication of the Courts which was articulated by the High court in Ermogenous v Greek Orthodox Church Community of SA Inc. That submission must be rejected. The primary judge explicitly did apply that test. [51] Next the appellant contended that the primary judge applied the test incorrectly. The approach which the primary judge took is summarised at [21] to [25] above. The appellant submitted: “The Court has failed to consider the circumstances objectively and relies only on these documents. There are a considerable amount of circumstances by which intention was communicated that have not been considered such as, the payment of membership fees, the support and approval for the Plaintiff to establish the Central Queensland Labor Club as a division of the Australian Labor Party (State of Queensland), membership of the LEAN Labor Environmental Network, Labor Left faction, invitation to join United Workers’ Union in solidarity, Agreeing to the rules, requesting a review and access to the internal tribunal, trust associated with using and accessing assets and equipment of the Association, employment as a volunteer, application and election for the Regional Members Association, acting as if the rules are binding.” [52] The appellant’s argument must be rejected. There is nothing in the facts there identified which is inconsistent with or which throws doubt on the correctness of the analysis conducted by the primary judge. Nor did the appellant develop any argument which explained how they did. Rather, as has been identified: (1) on their proper construction the Queensland State Rules were subject to the National Constitution; 39 Camenzuli v Morrison [2022] NSWCA 51 at [34]. -- 15 of 16 -- 16 (2) on their proper construction the Queensland State Rules intended that the National Constitution would prevail in the event of a dispute “as to membership of the Party or any Party Unit”; (3) the appellant’s dispute with the respondents was such a dispute; and (4) the result is that the Queensland State Rules themselves must be taken to have revealed the intention that they were intended to be binding, but in honour only. It is that manner of being “binding” which justified the conclusion that the parties could not be regarded as having intended to subject their agreement to the adjudication of the Courts, with the result that membership could not be regarded as giving rise to legal rights which were enforceable contractually in the Courts. The primary judge in this case examined the relevant circumstances in the present case and no error has been demonstrated in the objective assessment which he made. It is neither necessary nor appropriate to examine cases which consider different rules or different circumstances and in different contexts. [53] The appellant contended that the primary judge erred in applying Echunga Football Club Inc v Hills Football League Inc [2014] SASC 201. This was a reference to the primary judge stating that “the rules of a voluntary association open to the public have an inherent public dimension and may justify a more flexible interpretive approach because they are a product of the efforts and resolutions of lay persons”.40 There was no evidence that his Honour’s assumption that the rules were the product of such efforts was based on a factual error. But even if it was, his Honour’s conclusion summarised at [23] above was correct. [54] The appellant contended that the primary judge erred in failing to recognise the damage that has been caused to the appellant’s reputation. However, the primary judge made no such error. As already mentioned, the primary judge was prepared to accept the possibility that the appellant might have a claim for defamation but concluded that was not the claim for relief which the appellant had sought. His Honour had correctly identified that the claim for relief in relation to defamation was only expressed as a justification for the other claims for relief. If the appellant wishes to seek a remedy for defamation then he may commence a proceeding seeking such a remedy and, if he can plead an arguable case, that proceeding will be able to proceed. [55] The appellant argued that the primary judge erred in rejecting his submission that his livelihood has been affected by the enforcement of the National Constitution or the Rules. No basis on which to overturn the primary judge’s factual findings quoted at [30] above was identified. That argument too must be rejected. [56] The appellant repeated the arguments referred to and dealt with by the primary judge in the way described at [34] to [36] above. The primary judge made no error in the manner by which he disposed of the arguments. Conclusion [57] I would make the following orders: (a) Application for leave to adduce new evidence refused. (b) Appeal dismissed, with costs. [58] BODDICE J: I agree with Bond JA. [59] FREEBURN J: I agree with Bond JA. 40 Cuthbert v Abbott & Ors [2022] QSC 113 at [35]. -- 16 of 16 --