Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Johnston v The Greens NSW Incorporated [2020] NSWCA 189 Hearing dates: 21 August 2020 Date of orders: 21 August 2020 Decision date: 21 August 2020 Before: Basten JA, Simpson AJA Decision: (1) Vacate the hearing of the application for leave to appeal. (2) Direct that if the matter is not discontinued within 28 days, the applicant shall notify the Registrar as to the status of the proceedings. (3) Give leave to each active party to list the matter before the Registrar for further directions on five working days' notice to the other active parties. (4) Otherwise dismiss the amended notice of motion. (5) No order as to the costs of today. Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – settlement agreement – outstanding issue as to the parties to the agreement – whether proceeding to be discontinued wholly or in part – application to vacate hearing of leave application – costs Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 12.1; 51.56 Category: Procedural and other rulings Parties: Daryl Lindsay Johnston (Applicant) The Greens NSW Incorporated (First Respondent) Christopher Maltby (Second Respondent) Amalina Wallace (Third Respondent) David Shoebridge (Fourth Respondent) Abigail Boyd (Fifth Respondent) Dawn Walker (Sixth Respondent) Riki Scanlan (Seventh Respondent) David Mallard (Eighth Respondent) Christopher David Harris (Ninth Respondent) Representation: Counsel: Ms R Mansted (Fourth and Fifth Respondents) Solicitors: Applicant Self-represented Marque Lawyers (First Respondent) Deutsch Miller (Fourth and Fifth Respondents) Chalk & Behrendt (Sixth Respondent) Seventh, Eighth and Ninth Respondents self-represented File Number(s): 2020/52723 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2019] NSWSC 215; [2020] NSWSC 10 Date of Decision: 6 March 2019; 16 January 2020 Before: Robb J File Number(s): 2019/67490 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: In May 2018 The Greens NSW, a political party seeking to field candidates in a forthcoming election for the Legislative Council, held a pre-selection process. The third person on the ticket adopted as a result of that process was Mr Jeremy Buckingham MP. On 20 December 2018 he resigned his membership of The Greens NSW. As a result, it was necessary to adopt a process which would produce an alternative candidate. The question was whether he should simply be replaced by the person in position number four, or whether there should be a recount of the pre-selection ballot. The party adopted the former position. 2. The present applicant, Daryl Lindsay Johnston, considered that to be the wrong approach under the party's Constitution. He and another member of the party commenced proceedings in the Equity Division on 1 March 2019. For the proceedings to have utility, it was necessary for them to be heard and determined with great urgency in order to allow the party to lodge the necessary papers with the Electoral Commission in time for them to participate in the election. The papers had to be lodged by 6 March. With commendable expedition, and with the co-operation of the parties, the proceedings were filed, heard and determined on Friday, 1 March 2019. The trial judge, Robb J, made an order on that day dismissing the plaintiffs' summons. Costs were reserved. 3. Robb J delivered his reasons on 6 March 2019. Further submissions were made with respect to costs and a further judgment delivered on 16 January 2020. The following day, 17 January 2020, the Court entered the following order: "1. Orders that the first and second plaintiffs pay the first, fourth and fifth defendants' costs of the proceedings on the ordinary basis, to be assessed from 20 February 2019." 1. On 31 May 2020 Mr Johnston filed a summons seeking leave to appeal from the judgments and orders in the Equity Division. 2. Mr Johnston's co-plaintiff in the proceedings below, Christopher David Harris, did not join in the application for leave to appeal. However, that application challenged the costs order made in the Equity Division, being the costs payable by the plaintiffs, for which Mr Harris was jointly and severally liable. He was, appropriately, joined as a respondent to the proceedings in this Court. 3. On 19 August 2020, the applicant filed a notice of motion and affidavit in support. The circumstances revealed in the affidavit should be briefly stated, and in neutral terms. In substance, there had been settlement negotiations which had resulted in The Greens NSW making an offer to settle the matter on the basis that the applicant discontinue the application for leave to appeal and agree to pay an amount in full settlement of the costs of the proceedings, both in the Equity Division and in this Court. The applicant's position is that he accepted the offer, but there is an issue as to whether the offer bound all the active parties in this Court. 4. The applicant's notice of motion of 19 August 2020 sought a declaration that there is a valid and binding agreement to settle the proceedings. (It also sought other orders, including consequential costs orders and, separately, leave to amend the summons seeking leave to appeal and the draft notice of appeal.) It appears that the applicant (who is unrepresented in this Court) may have received advice that any dispute relating to the settlement agreement could not be resolved in this Court, which is the correct position. On the morning of the hearing, he filed an amended notice of motion seeking an order in the following terms (which may be identified as order 3A): "That these proceedings be stayed pending the applicant filing within 21 days for the relief of specific performance in the Common Law Division of the Supreme Court [of] New South Wales, and the determination of those proceedings." 1. No affidavit was filed in support of the amendment, but it became clear in the course of the hearing that there is a need to resolve the issue as to the parties to the settlement agreement, and the basis upon which any settlement is to take effect. 2. It is possible that the matter will be resolved by consent. If that were to be the case, the application for leave to appeal will be discontinued. It would be wrong for the Court to proceed to hear the matter, with the likelihood that further costs would be incurred by the parties, until any issues regarding the agreement to settle have been resolved. On the other hand, in the absence of evidence that the matter will be resolved by consent, it would be inappropriate to dispose of the application for leave to appeal. A grant of leave to appeal would, if the matter is resolved, be futile and add a level of complexity to further negotiations; refusal of leave would also add a level of complexity to resolving the matter. Accordingly, in accordance with the substance of order 3A referred to above, the date for hearing the application for leave to appeal should be vacated. 3. It is not appropriate or necessary to fix another date. If the parties reach agreement, the matter can be resolved by the filing of a notice of discontinuance in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 12.1(1)(a) and r 51.56. If the only matter unresolved is as to the costs order, that will provide a further basis on which leave is required, as to which the Court may be reluctant to grant leave. It should not be anticipated that further proceedings will be required in order to resolve the matter. However, the Court will direct that if the matter is not discontinued within 28 days, the applicant shall notify the Registrar as to the status of the proceedings. The matter may be listed before the Registrar for further directions on five working days' notice to the other parties. There should be no order as to the costs of today. The parties are encouraged to resolve their differences. 4. Accordingly the Court makes the following orders and directions: 1. Vacate the hearing of the application for leave to appeal; 2. Direct that if the matter is not discontinued within 28 days, the applicant shall notify the Registrar as to the status of the proceedings; 3. Give leave to each active party to list the matter before the Registrar for further directions on five working days' notice to the other active parties; 4. Otherwise dismiss the amended notice of motion; 5. No order as to the costs of today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2020