Butler v Mulholland - [2012] VSC 123

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 9511 of 2008

KEVIN BUTLER	Plaintiff
- and -
JOHN MULHOLLAND	Defendant
AND BETWEEN:
JOHN MULHOLLAND	Plaintiff by Counterclaim
- and -
KEVIN BUTLER	Defendant by Counterclaim

---

PRACTICE AND PROCEDURE – Application by defendant to dismiss proceedings and set aside injunctions – Whether prejudice suffered by the defendant warrants, on the balance of convenience, the setting aside of the injunctions – Application adjourned to the trial of the proceedings – Cross application by the plaintiff for finding that the defendant is in contempt of court – Cross application also adjourned to the trial of the proceedings.

JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2012
DATE OF JUDGMENT:	22 March 2012
CASE MAY BE CITED AS:	Butler v Mulholland
MEDIUM NEUTRAL CITATION:	[2012] VSC 123

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	In person

HIS HONOUR:

The dispute before me arises out of the purported election of Mr Mark Farrell as the secretary of the Victorian branch of the Democratic Labor Party (DLP) on 13 September 2008. On that day, the Victorian branch of the DLP held a state conference to elect officers of the state branch. Mr John Mulholland was the existing state secretary and had been so for some 23 years. Mr Farrell and Mr Mulholland both stood for the position of secretary. Mr Farrell defeated Mr Mulholland by one vote, securing 24 votes to 23 votes.

Mr Mulholland subsequently ascertained that two of the voting delegates at the conference, Mr Domenic Farrell and Ms Claire Lindorff, had declared to the officer, who approved the credentials of those authorised to attend and vote at the meeting, residential addresses that were different from those recorded as their address on the Commonwealth Electoral Roll. Mr Mulholland formed the view that under the rules of the Victorian branch, the two persons concerned were thereby not eligible to vote. They had been credentialed as delegates at the State Conference in respect of local branches in the divisions in which they lived and not in the divisions in respect of which they were enrolled.

Accordingly, after the conference Mr Mulholland maintained, and continues to maintain that he remained the secretary of the Victorian branch of the DLP and Mr Farrell was not the elected secretary. As secretary he purported to register the Victorian branch of the DLP with the Victorian Electoral Commission (VEC). The VEC did not accept Mr Mulholland as secretary and thus entitled to register the branch, but recognised Mr Farrell as the secretary entitled to register the branch.

Mr Mulholland challenged the decision of the VEC in VCAT. Mr Butler was a party to those proceedings. Mr Butler is a member of the DLP. He is currently the secretary. VCAT ruled on 3 December 2009 that Mr Farrell was properly recognised by the VEC as the secretary.

The decision of VCAT went on appeal to Williams J…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Butler v Mulholland

Details

AGLC: Butler v Mulholland [2012] VSC 123
Case: [2012] VSC 123
Decision Date: 22 March 2012

CaseChat Overview and Summary

The case of Butler v Mulholland was heard in the Supreme Court of Victoria. The dispute between the parties revolves around an application by the defendant to dismiss the proceedings and set aside injunctions. The plaintiff, Butler, filed a cross application for a finding that the defendant, Mulholland, is in contempt of court.

The court was required to determine whether the defendant had suffered prejudice that warranted the setting aside of the injunctions on the balance of convenience. Additionally, the court had to consider the cross application by the plaintiff to establish that the defendant was in contempt of court. The court's decision on both applications was deferred until the trial of the proceedings, indicating that the resolution of these issues was contingent upon the outcomes of the broader case.

In adjourning the applications, the court emphasised that the resolution of the dispute over the injunctions and the contempt allegation would be more appropriately addressed once the merits of the case were fully explored during the trial. The court's decision reflects a cautious approach, ensuring that the applications are not decided in isolation from the substantive claims and defenses presented by the parties. The final orders of the court will await the conclusions reached during the trial.

Orders