Asmar v Albanese (No 5)
[2021] VSC 782
•16 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 01465
| DIANA ASMAR in her capacity as Secretary of the Health Workers Union and others according to the schedule | Plaintiffs |
| v | |
| THE HONOURABLE ANTHONY ALBANESE and the persons whose names are set out in the schedule (in their capacity as the National Executive of the Australian Labor Party, and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party respectively) | Defendants |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 November 2021 |
DATE OF JUDGMENT: | 16 November 2021 (Revised) |
CASE MAY BE CITED AS: | Asmar v Albanese (No 5) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 782 |
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COSTS – Plaintiffs unsuccessful – Two groups of defendants with separate representation – One set of costs appropriate – Division of costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R Merkel QC with Ms C Mintz | Robinson Gill |
| For the 1st – 9th, 11th, 14th – 21st and 23rd – 24th Defendants | Mr PG Willis SC with Mr AD Lang and Mr JH Kirkwood | Holding Redlich |
| For the 10th, 12th and 13th Defendants | Dr AT Hoel | Patrick & Associates |
| For the 26th Defendant | Hope & Co Lawyers |
HIS HONOUR:
In this proceeding, a separate and additional costs issue to those determined in Kairouz v Bracks (No 3)[1] was raised. That was that the 10th, 12th and 13th defendants in this proceeding (‘the Three Defendants’) submitted that they should be awarded their costs on a standard basis until 18 May 2021, which was the approximate day on which the plaintiffs delivered their concise statement of their case. This order would be additional to any costs awarded to the other defendants. The Three Defendants accepted that after 18 May the plaintiffs should be ordered to pay one set of costs, although they claimed a proportion of it.
[1][2021] VSC 783.
They submitted that it was reasonable for them to retain separate representation until 18 May. They argued that it was not clear until then whether they needed separate representation as the plaintiffs were making allegations of improper purpose against the National Executive of the Australian Labor Party of which they were members. They pointed out that they were part of the New South Wales branch of the ALP.
I do not place much weight on this submission, not least because of the absence of evidence as to what matters affected the Three Defendant’s decision to have separate representation. In addition, after 18 May they continued to have separate representation, again without explanation as to why they did so. I do not accept that they should be awarded their costs on a standard basis until 18 May.
That said, for the reasons that I gave in Kairouz v Bracks (No 3), I consider that the Three Defendants should receive some costs to reflect the part that their legal representation played in the proceedings.
I propose to make a similar order to that made in Kairouz v Bracks. I will order that the costs on a standard basis of the 1st to 9th, 11th, 14th, 21st and 23rd to 24th defendants be agreed, or in default of agreement, be assessed by the Costs Court. That assessment will only be between the plaintiffs and the 1st to 9th, 11th, 14th, 21st and 23rd to 24th defendants. I will order that upon the agreement or assessment, the plaintiffs pay the 1st to 9th, 11th, 14th, 21st and 23rd to 24th defendants 80% of the costs agreed or assessed and pay the 10th, 12th and 13th defendants 20% of the costs agreed or assessed.
That procedure avoids the possibility that the plaintiffs may end up being required to pay more than 100% of one set of costs on a standard basis.
SCHEDULE OF PARTIES
BETWEEN:
DIANA ASMAR in her capacity as Secretary of the Health Workers Union Victoria No 1 Branch T/A the Health Workers Union...................................................................................................................... First Plaintiff
HIBA SALEM in her capacity as Delegate of the Victorian Branch of the Australian Labor Party’s Administrative Committee.......................................................................................................... Second Plaintiff
**************************************.................................................................................................. Third Plaintiff
MICK MYLES, on behalf of himself as a member of the Party and as a member of the Victorian Divisional Branch of the Construction and General Division of the Construction, Forestry, Maritime, Mining and Energy Union (‘CFMMEU Construction and General Division Victoria’), and in a representative capacity on behalf of the CFMMEU Construction and General Division Victorian and its members........................... Fourth Plaintiff
BEN DAVIS, on behalf himself as a member of the Party and as a member of the Victorian Branch of the Australian Workers’ Union (‘AWU Victoria’), and in a representative capacity of AWU Victoria and its members........................................................................................................................................... Fifth Plaintiff
PAUL HEALY, on behalf of himself as a member of the Party and as a member of the Victorian No 2 Branch of the Health Services Union (‘HSU Victoria 2’), and in a representative capacity on behalf of HSU Victoria 2 and its members............................................................................................................................... Sixth Plaintiff
EARL SETCHES, on behalf of himself as a member of the Party and as a member of the Victorian branch of the Plumbing Division of the Communications, Electrical. Electronic Energy, Information Postal, Plumbing and Allied Services Union of Australia (‘CEPU Pluming Division Victoria’), and in a representative capacity on behalf of CEPU Pluming Division Victoria and its members.................................................... Seventh Plaintiff
**************************************................................................................................................. Eighth Plaintiff
PETER MARSHALL, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the United Firefighters Union (‘UFU Victoria’) and in a representative capacity on behalf of UFU Victoria and its members............................................................................................................................. Ninth Plaintiff
PAUL CONWAY, on behalf of himself as a member of the Party and as a member of the Victoria branch of the Australasian Meat Industry Employees Union (‘AMIEU Victoria’), and in a representative capacity on behalf of AMIEU Victoria and its members.............................................................................................. Tenth Plaintiff
SHANE STEVENS, on behalf of himself as a member of the Party and as a member of the Victorian Divisional Branch of the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy union (‘CFMMEU Victoria’), and in a representative capacity on behalf of CFMMEU Victoria and its members.................................................................................................................................... Eleventh Plaintiff
LUBA GRIGOROVITCH, as a member of the Party and as a member of the Victorian Branch of the Australian Rail, Tram and Bus Industry Union (‘RTBU Victoria’), and in a representative capacity on behalf of RTBU Victoria and its members............................................................................................................ Twelfth Plaintiff
The United Firefighters’ Union of Australia.......................................................................... Thirteenth Plaintiff
and
The Honourable ANTHONY ALBANESE, in his capacity as a member of the National Executive of the Australian Labor Party................................................................................................................. First Defendant
Senator TIM AYRES, in his capacity as a member of the National Executive of the Australian Labor Party.................................................................................................................................................. Second Defendant
STEVEN BAKER, in his capacity as a member of the National Executive of the Australian Labor Party.. Third Defendant
NICK CHAMPION, in his capacity as a member of the National Executive of the Australian Labor Party.................................................................................................................................................. Fourth Defendant
KATE DOUST, in her capacity as a member of the National Executive of the Australian Labor Party....... Fifth Defendant
GERARD DWYER, in his capacity as a member of the National Executive of the Australian Labor Party. Sixth Defendant
DAVID GRAY, in his capacity as a member of the National Executive of the Australian Labor Party.. Seventh Defendant
ROSE JACKSON, in her capacity as a member of the National Executive of the Australian Labor Party Eighth Defendant
TIM JACOBSON, in his capacity as a member of the National Executive of the Australian Labor Party.. Ninth Defendant
GRAEME KELLY, in his capacity as a member of the National Executive of the Australian Labor Party. Tenth Defendant
Senator SUE LINES, in her capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................... Eleventh Defendant
TARA MORIARTY, in her capacity as a member of the National Executive of the Australian Labor Party................................................................................................................................................. Twelfth Defendant
BOB NANVA, in his capacity as a member of the National Executive of the Australian Labor Party Thirteenth Defendant
MICHAEL O’CONNOR, in his capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................ Fourteenth Defendant
MICHAEL RAVBAR, in his capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................... Fifteenth Defendant
AMANDA RISHWORTH, in her capacity as a member of the National Executive of the Australian Labor Party.............................................................................................................................................. Sixteenth Defendant
WENDY STREETS, in her capacity as a member of the National Executive of the Australian Labor Party.......................................................................................................................................... Seventeenth Defendant
SHANNON THRELFALL-CLAREK, in her capacity as a member of the National Executive of the Australian Labor Party and in her capacity as a Trustee under rr 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules...................................................................................................................... Eighteenth Defendant
Senator RAFF CICCONE, in his capacity as a member of the National Executive of the Australian Labor Party........................................................................................................................................... Nineteenth Defendant
SUSIE BYERS, in her capacity as a member of the National Executive of the Australian Labor Party and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party, and in her capacity as a Trustee under rr 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules... Twentieth Defendant
LINDA WHITE, in her capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party Twenty-First Defendant
**************************************.............................................................................. Twenty-Second Defendant
MICHAEL DONOVAN, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party....................................................................................................................................... Twenty-Third Defendant
LLOYD WILLIAMS, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party..................................................................................................................................... Twenty-Fourth Defendant
JAMES MCWHINNEY, in his capacity as Trustee under Rule 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules................................................................................................... Twenty-Fifth Defendant
LABOR SERVICES & HOLDINGS PTY LTD, in its capacity as Trustee under Rules 21.3 of the Australian Labor Party Victorian Branch Rules........................................................................................ Twenty-Sixth Defendant