Tutoveanu v Velez

The plaintiff, Mr Anton Tutoveanu, is a member of the second defendant, the political party known as The Greens NSW. Mr Luc Velez, the first defendant is, and has been since 12 November 2024, the Greens candidate for the electorate of Sydney in the forthcoming federal election.

Mr Tutoveanu commenced these proceedings by filing his summons two days ago in the Duty List. He seeks to have the process by which Mr Velez was preselected set aside in the expectation that what Mr Tutoveanu describes as a "redraw" could be conducted in which Mr Tutoveanu would be eligible to participate as a candidate.

The summons will be dismissed primarily because, even if there were merit in Mr Tutoveanu's underlying complaints, he has brought his proceedings far too late. The deadline for nominations to be submitted to the Australian Electoral Commission (AEC) is noon today. Were the Court to grant relief, the practical result would be to leave the Greens without a candidate in the seat of Sydney. That prejudice is the essential dispositive consideration for the exercise of the Court’s discretion in this case.

Mr Tutoveanu, who is studying or has studied law, appeared for himself. The defendants were represented by Mr P Santucci of Counsel. The Court had the advantage of written and oral submissions from the parties.

Mr Tutoveanu came before the Court at 2pm on 8 April 2025, having notified my Associate on the previous afternoon of his intended application. My Associate had asked Mr Tutoveanu to ensure the defendants were aware of his application so that they could be present, if they wished, when he filed his summons. The defendants did appear at 2pm on 8 April 2025 by their solicitor.

The summons seeks this relief:

While no order to this effect is sought, the assumption underlying Mr Tutoveanu's application is that the practical result would be a new nomination process in which Mr Tutoveanu would be a candidate.

Given the urgency created by the deadline, the Court made these directions:

Those directions were complied with and I heard the summons between 2pm and 3.35pm yesterday. At 3.55pm I informed the parties that the summons would be dismissed and that I would make orders and deliver reasons this morning. These are the reasons. The facts, which I find to be as set out in [10] to [22] below, were not in dispute.

On 4 October 2024, Mr Seamus Lee, the Sydney preselection returning officer for the Greens, sent this email to members (emphasis added):

On 16 October 2024, the closing date for nominations, at 3.44pm, Mr Tutoveanu sent this email to Mr Lee attaching some of the documents required under the relevant rules (which are set out in [24] below). However, the email did not include a current Working With Children Check (WWCC). The email said:

At 3.53pm, Mr Lee responded:

Mr Tutoveanu did not hear anything further from Mr Lee about the request for an extension of the nomination deadline.

On 26 October 2024, Mr Tutoveanu received this group email from Mr Lee:

On 31 October 2024, Mr Tutoveanu received this group email from Mr Lee:

On 12 November 2024, Mr Tutoveanu received this group email from Mr Lee:

On 19 November 2024, Mr Tutoveanu received his WWCC.

Mr Tutoveanu then pursued his complaint with the Greens, contending that he had been unfairly excluded from the nomination process. A series of meetings between Mr Tutoveanu and representatives of the Greens ensued.

On 10 January 2025, Mr Tutoveanu received this email (January email) from the Co-Convenors of the Greens:

Mr Tutoveanu then had some further correspondence with the Greens, including serving a defamation concerns notice, but the exchanges between them appear to have ceased after 24 February 2025.

Nothing further happened until Mr Tutoveanu foreshadowed his application by email to my Associate on the afternoon of 7 April 2025.

The close of nominations to the AEC is midday today (10 April 2025). Bulk nominations by political parties were required to be lodged by midday on 8 April 2025. The Greens’ bulk nomination, including Mr Velez, was lodged on 5 March 2025.

The relevant provisions of the Greens’ Constitution are (emphasis added):

The relevant provisions of the Greens’ Sydney Federal Preselection Rules 2025 made pursuant to Clause 11.11 of the Greens’ Constitution are (emphases added):

The relevant provisions of the Disability Discrimination Act 1992 (Cth) (DDA) are:

There are a number of reasons why the Court rejects Mr Tutoveanu's summons. That rejection is based on substantial acceptance of the defendants’ submissions and rejection of Mr Tutoveanu’s submissions.

First and foremost is the issue of laches. Even if there were any merit in his complaints, which for the reasons which follow the Court finds there is not, Mr Tutoveanu's delay in bringing these proceedings is a complete answer.

Having made a complaint and engaged with representatives of the Greens, he received the January email (see [19] above). If he wished to bring these proceedings he should have done so as quickly as possible after 10 January 2025. That would have enabled both the orderly consideration of his claim and, if he were successful, sufficient time for a fresh nomination process to be conducted in accordance with the Rules.

However, Mr Tutoveanu accepts that he did nothing between that date and 7 April 2025. He told me that was because he was working on another case that he has before the Court, and he was weighing up his prospects of success in challenging Mr Velez’s preselection.

In considering delay, the Court looks at both the explanation for the delay and its impact upon the other party. Mr Tutoveanu’s explanation set out in the preceding paragraph is not an adequate explanation for the delay.

Even where there may be a proper explanation, the essence of laches is prejudice to the other party caused by the delay. In the present case, the Greens would suffer the irremediable prejudice of not being able to go through their constitutional process in time to nominate a new candidate before the deadline for nominations to be submitted to the AEC. They would have no candidate for the seat of Sydney.

That would be a result contrary to the public interest, at least because it would disenfranchise those voters in that electorate who would wish to vote for a Greens candidate as their preferred, or only, candidate. Mr Tutoveanu's answer, perhaps a surprising one from a member of a political party who presumably supports its electoral success, was that it was better in his view for there to be no candidate in the seat of Sydney rather than Mr Velez.

While each case turns on its own facts, as it happens the outcome in this case is similar to the decision of Robb J in Johnson v The Greens NSW [2019] NSWSC 215 at [99] - [101], insofar as the question of laches and irremediable prejudice was also sufficient in that case otherwise to disqualify the plaintiff from the relief he sought.

Turning to the merits, Mr Tutoveanu made it clear that his case was in contract, the relevant contract being evidenced by the Greens’ Constitution. He was not seeking to enforce the DDA. He accepted that the proper way to do that would be by initiating a complaint with the Australian Human Rights Commission and not by proceedings in this Court.

Mr Tutoveanu relied on what he submitted was the incorporation of the provisions of the DDA by reason of clause 2.3 of the Greens Constitution (see [23] above). I have considerable difficulty with the submission that clause 2.3 in its terms effects the wholesale incorporation of the DDA (and other legislation recited in that clause). Rather it appears that what clause 2.3 provides is that compliance with the DDA and other legislation is a consequence of conforming to the standards required by the Greens’ principle of “Grassroots Democracy”. The Court was not taken to where a statement of that principle could be found.

The time available has not permitted me to come to a concluded view on Mr Tutoveanu’s submission about the incorporation of the DDA. However, I will assume, without deciding, that his submission is correct. Even on that basis, Mr Tutoveanu's case has a number of difficulties.

First, the incorporation of the various nominated legislation is confined to precluding “member-groups” (there was no dispute Mr Tutoveanu was a member of the relevant “member-group”) “from imposing discriminatory admission procedures”. That appears, for example, to conform to the relevant prohibition in s 27 of the DDA (see [25] above) against incorporated associations (such as the Greens) engaging in discrimination in relation to admission to membership of the association.

So understood, Mr Tutuveanu’s case must fail because this is not a dispute about admission to membership of the Greens. I reject Mr Tutoveanu’s submission that somehow the concept of “admission to membership” could be extended to include admission to the preselection process.

It makes a great deal of sense that different considerations might apply when considering a candidate for nomination to public office from a pool of members which is the product of non-discriminatory admission procedures. A person may well be entitled to be admitted to membership who, for any number of reasons, might not be suitable to be elected to be a party’s candidate. That is the reality recognised by the risk assessment and probity process undertaken during the cooling off period under clauses 6 and 7 of the Rules (see [24] above).

Second, Mr Tutoveanu says, and the Court does not doubt, that he suffers from a "medical condition". However, the Court has no evidence as to what that medical condition is. While it will be apparent from the correspondence that I have set out above (see [11] above) that Mr Tutoveanu identifies as transgender/intersex, I did not understand him to be putting that such identification was the “medical condition” to which he was referring. Whatever maybe the case, the evidence does not permit the Court to conclude that Mr Tutoveanu suffers from a “disability” as defined in s 4(1) of the DDA (see [25] above) if it otherwise applied by incorporation into the Greens’ Constitution.

Third, there is a real question as to what was the discriminatory conduct to which Mr Tutoveanu was subjected. He relied on s 6 of the DDA (see [25] above) and the Greens adhering to the requirement to submit the completed nomination by 16 October 2024. He accepted, correctly in my respectful view, that the mere requirement for potential candidates to provide a WWCC could not be in and of itself discriminatory. He rightly identified that there was obviously an interest in a political party, particularly one that included a probity process for its candidates, to be assured that a candidate was eligible for a WWCC. Or, perhaps more pertinently, it would be relevant to a political party to know if there was something about a candidate that rendered them ineligible for a WWCC.

As I ultimately understood Mr Tutoveanu's case on discrimination, it was as follows. Mr Tutoveanu told the Court, and I accept, that he no longer had a driver’s licence because he had surrendered it due to his medical condition. He was unable to obtain a WWCC promptly because he did not have a form of officially recognised identification that would enable him to make the application for a WWCC. In the ordinary course, a driver’s licence would have been sufficient. This meant that Mr Tutoveanu had to take steps to obtain an alternative form of government issued identity document which he could then submit as part of his application for a WWCC. He also told me that he had in fact previously held a WWCC. Nevertheless, obtaining the identity document took time, and it was because of that delay that he was unable to comply with the nomination timetable that had been announced by the Greens.

In giving his explanation, the course of argument clarified that the precise act of discrimination upon which Mr Tutoveanu relied was that the Greens had adhered to the advertised closing date for nominations and had failed to give him more time in which to provide the necessary documentation, being the WWCC. The Greens had failed therefore to make a “reasonable adjustment” for the purposes of the DDA. If that is the act of discrimination, then in my respectful view, having regard to the language of s 6, the connection with any alleged disability and the alleged indirect discrimination is too remote: a medical condition (assumed to be a disability) which had caused him to surrender his driver’s licence, so that he had to obtain alternative identification in order to lodge a complete nomination, which resulted in a delay which the Greens had failed to accommodate.

However, if the analysis in the preceding paragraph is wrong, there are still two other difficulties.

First, Mr Tutoveanu was unable to point to any power in the Rules (or any other constitutional Greens document) that would have enabled the relevant officers to extend the time for the nomination process to accommodate Mr Tutoveanu’s request.

Second, assuming the incorporation of s 6 of the DDA into the Constitution and the Rules, I accept Mr Santucci's submission that the Greens had discharged their onus under s 6 to demonstrate that the adherence to the requirement (being the closing date for nominations) was reasonable “in the circumstances of the case” for at least two reasons. First, there was no power under the Rules to extend the time at the request of a potential candidate. Second, and perhaps even more importantly in practice, there are the facts that the timetable for the nomination had been announced publicly, had been complied with by others and was within hours of concluding when Mr Tutoveanu had made his request for an extension. There can be no doubt that Mr Tutoveanu did not help his cause by waiting until the last afternoon of the nomination period to make his request, a delay he did not seek to explain or justify.

Mr Tutoveanu also relied on what he alleged to be non-compliance with clause 8.2 of the Rules, which I set out again here for convenience:

The difficulty in the present case is a dearth of evidence concerning the application of that rule in this case. Mr Tutoveanu told me that the pool of nominees ultimately consisted of two persons who identified as "cis men". That was not contested by the defendants. However, the Court was not taken to any evidence of whether any “urgent meeting of the preselection committee” took place under clause 8.2. However, even assuming that no such meeting took place, it is clear from the terms of clause 8.2 that it would still have been open to the preselection committee to proceed with those candidates who had nominated for preselection. So much is apparent from the discretion reposed in the committee "to determine whether the preselection needs to be suspended and the nomination period reopened to facilitate greater diversity".

It may be, and could have been in this case, that notwithstanding the identification of the two nominees as "cis men" that they had other qualities which might have satisfied the preselection committee of adequate diversity. The point for present purposes is that given the discretionary nature of the outcome under clause 8.2 even if it applied, in the absence of detailed evidence about the two nominees and what in fact happened, the Court is not prepared to find that non-compliance with clause 8.2 (if it had been such) would be a sufficient basis to vitiate the nomination process. This might not have been the Court’s conclusion if clause 8.2 was expressed in mandatory terms so that if it was engaged, then the preselection committee would have been required to reopen the nomination period.

Finally, there are two additional discretionary reasons why the Court refuses relief.

First, the evidence discloses that, unsurprisingly, since January 2025 the Greens have spent considerable time, effort and (I therefore infer) money in promoting Mr Velez’s candidature. This includes the printing and erection of posters and flyers, the undertaking of mail outs and door knocking activities, and other activities typical in the lead up to an election. All of that expenditure and effort would amount to nothing and go to waste were Mr Tutoveanu to obtain the relief that he seeks.

Second, the Court would not make orders which have as their implicit purpose to allow Mr Tutoveanu to participate in the nomination process in circumstances where there is a real doubt over Mr Tutoveanu's eligibility to be nominated for election to the Commonwealth Parliament by reason of s 44 of the Commonwealth Constitution. That section includes:

The disqualification operates at the point of nomination: Re Canavan (2017) 263 CLR 284 at 313-314; [2017] HCA 45 at [72].

It is not appropriate that I make any final determination on the question of Mr Tutoveanu’s eligibility for nomination and election to the Commonwealth Parliament. I am not to be taken as doing so. It is sufficient for me to conclude, as I do, that there is real doubt over his current eligibility which would require close examination.

There is no dispute that Mr Tutoveanu was born in Romania. The evidence includes a statutory declaration that he made on 8 April 2025 (being after the nomination period closed) which includes “I denounce my Romanian citizenship which is given as a birth right according to Romanian laws and cannot be recognised as retracted by the Romanian Government”. Mr Tutoveanu accepted that he had done no more than make that statement because, as I understood him, he thought that was all that he could do and that it reflected his understanding of Romanian law.

The Court was provided with English translations of two documents:

The Court finds that each of those websites is a publication that appears to be a reliable source of information such that those documents are admissible as evidence of foreign law, being statutes of Romania, in accordance with s 174(1)(b) of the Evidence Act 1995 (NSW). As such, the Court is entitled to find, and does find, as a matter of fact that the relevant law of Romania is as set out in the Constitution of Romania and the Citizenship Act. The Court does not require other expert evidence to prove that law: Re Tang (Deceased) (2017) 52 VR 786; [2017] VSCA 171 at [64]. See also J McComish, ‘Pleading and Proving Foreign Law in Australia’ (2007) Melbourne University Law Review 400 at 424-424.

The Constitution of Romania includes:

The Citizenship Act includes:

In short, it appears that (contrary to his understanding) Mr Tutoveanu can renounce his Romanian citizenship but that any such renunciation must be in accordance with the procedure in the Citizenship Act, and does not take effect under Romanian law until the steps set out in Article 31 are taken by the Romanian authorities. None of that has occurred in relation to Mr Tutoveanu. In those circumstances it appears that he retains his Romanian citizenship and there is at the very least a real doubt as to whether at this time or at any time in the near future Mr Tutoveanu would be eligible for nomination to election to the Commonwealth Parliament by reason of s 44 of the Commonwealth Constitution.

For these reasons the summons will be dismissed.

I have now heard the parties as to costs. The usual order is that costs follow the event and therefore the defendants are entitled to their costs. Mr Tutoveanu resisted that outcome, not least on the basis that he said costs should abide the outcome of the motion he had ready to file to seek to set aside my foreshadowed dismissal of the summons under UCPR Pt 36 r 36.15 (notwithstanding that he had not yet heard these reasons). I do not accept that submission.

The defendants have filed an affidavit from their solicitor setting out the costs that have been incurred and move the Court for a gross sum costs order.

The preconditions that would support the making of a gross sum costs order are satisfied in this case, which may be described, if I may say so without any disrespect, as a short and sharp encounter that lasted for only two days.

The factors supporting the making of a gross sum costs order are:

I did consider allowing Mr Tutoveanu an opportunity, even as brief as a further half hour, to go away and compose his thoughts on the question of costs, or to deal with costs on the papers. Mr Tutoveanu did not take up the offer of a short adjournment. As to proceeding on the papers, I accept Mr Santucci’s submission, not least in the face of Mr Tutoveanu having suggested that his costs submissions would include allegations against counsel for misleading conduct (of which I saw none and which Mr Tutoveanu did not specify), that it would be contrary to the overriding purpose to prolong matters by allowing the discrete question of costs to be dealt with on the papers. I am therefore satisfied it is appropriate that I should deal with costs now.

The total costs incurred for the defendants’ solicitors and counsel was $14,000 ex GST. However, the amount sought represents a discount of nearly 30% to $10,000 ex GST or $11,000 inclusive of GST.

In the ordinary course a gross sum party-party costs order will involve two discounts. The Court will first consider in a “broad brush” way the likely outcome that would have been achieved on assessment. In the Court's experience this is generally a discount of somewhere between a quarter and a third. Approximately 30%, in my respectful view, is an appropriate discount to represent what would be the likely party-party costs assessment outcome in this case.

In making gross sum costs orders the Court often makes a second discount to reflect the “broad brush” approach which has meant the costs debtor has not been given the opportunity of an assessment, but also to reflect that the costs creditor is achieving an earlier result than it might have otherwise. I do not propose to make such a discount in this case. That is because the case has been conducted over two days and I am satisfied that the attendances which are now the subject of the invoices attached to the defendants’ solicitor's affidavit were appropriate in all the circumstances, and not by any means excessive given the urgency with which the matter was brought on.

For these reasons, the Court accepts Mr Santucci’s submission that there should be a gross sum costs order in favour of the defendants in the sum of $11,000 inclusive of GST.

The orders of the Court are: