Australian Labor Party

New South Wales Branch

Review Tribunal

Stratton v Murnain

It has been determined, in accordance with Rule J.1(c) of the

NSW Labor Party Rules, to hear this application on the
papers.

1. On 16 September 2020, the Review Tribunal after

examining documents presented and relied upon in the
Review, published an interim consideration of the
matter stating (at 9)

The matter having proceeded based on a

reliance on documents which, as a matter of
law, cannot be admitted into evidence, the
Appellant ought to be given an opportunity
to consider his position before the Tribunal
proceeds further.

2. Mr Stratton (the appellant) seeks his appeal to be

relisted.

3. Initially the appellant sought orders:

(i) to overturn the Decision to defer the hearing of the

charge, he brings against Kaila Murnain, former
 General Secretary of the NSW branch of the Labor
Party;

(ii) to order a different constitution of the IAT panel;

or alternatively,

(iii) the Review Tribunal hear the charge;

and in his application to relist he sought a further
order; and

(iv) “for directions as to what evidence will be

admissible in hearing this charge.”

As to order (i)

4. The IAT in the use of its discretion with respect

questions of case management deferred the IAT hearing
“until such time as ICAC has published its findings on the
matters the subject of Operation Aero.” Ms Murnain had
given evidence before that ICAC hearing.

5. The IAT gave cogent and practical reasons for the

deferral of the hearing: one of its persuasive reasonings
was: ICAC had called witnesses to determine a serious
factual issue and such witnesses would not necessarily
be available to a disciplinary tribunal. The findings of
fact by ICAC, the IAT held, “will be crucial to the ultimate
determination of the charge”.

6. The IAT also has the power under Rule J.1(c) to regulate
its own proceedings. It made a procedural/interlocutory
decision regulating the conduct of a matter referred to it.
The law in Australia does not encourage appeals against
 procedural/interlocutory decisions involving the
exercise of discretion according to long established
authority1. The IAT still has carriage of the appeal, and
in the absence of any procedural unfairness or any other
miscarriage of justice, its procedural rulings should be
respected. We see no miscarriage of justice here.

7. It follows from the reasoning in 5 and 6 above that

Orders (i), (ii) and (iii) are refused.

8. Order (iv) is also refused for the same reasoning.

Further the Tribunal notes, Mr Stratton in the amended

document he has filed, requests this Tribunal to make
directions as to which catagories of evidence (as
proposed in his amended document) are admissible. One
of the catagories he still referenced in that document is
“evidence compelled from Kaila Murnain before ICAC”,
despite the ruling of the Tribunal. The IAT has carriage
of this matter and it will determine what evidence is
admissible in its conduct of the matter.

9. This Decision is to be read with the prior interlocutory

decision of the Review Tribunal dated, 16 September
2020.

10. The Appeal is dismissed.

27 October 2020

1 House v R, [1936] HCA 40, per Dixon, Evatt and McTiernan