Asmar v Albanese (No 5)

[2021] VSC 782

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:

1. 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 10^th, 12^th and 13^th 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.

1. 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.

1. 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.

1. 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.

1. 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 1^st to 9^th, 11^th, 14^th, 21^st and 23^{rd to} 24^th defendants be agreed, or in default of agreement, be assessed by the Costs Court. That assessment will only be between the plaintiffs and the 1^st to 9^th, 11^th, 14^th, 21^st and 23^rd to 24^th defendants. I will order that upon the agreement or assessment, the plaintiffs pay the 1^st to 9^th, 11^th, 14^th, 21^st and 23^rd to 24^th defendants 80% of the costs agreed or assessed and pay the 10^th, 12^th and 13^th defendants 20% of the costs agreed or assessed.

1. 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