Sullivan v Della Bosca [1999] NSWSC 136

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 : 3 March 1999

PARTIES : Gerald James Sullivan (Plaintiff) John Della Bosca (Defendant) JUDGMENT OF : Windeyer J at 1

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 DECISION : Summons dismissed. No order as to costs.

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