Butler v Mulholland (No 2)
[2013] VSC 662
•2 December 2013
Elec
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No 9511 of 2008
| BETWEEN | |
| KEVIN BUTLER | Plaintiff |
| v | |
| JOHN MULHOLLAND | Defendant |
| AND BETWEEN | |
| JOHN MULHOLLAND | Plaintiff by Counterclaim |
| v | |
| KEVIN BUTLER | Defendant by Counterclaim |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 October 2013 | |
DATE OF JUDGMENT: | 2 December 2013 | |
CASE MAY BE CITED AS: | Butler v Mulholland (No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 662 | |
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CLUBS AND ASSOCIATIONS – Political party – DLP Victorian Branch – Dispute as to validity of election of office bearers of State Executive – Whether dispute justiciable – Whether voters at State Conference party members within meaning of party constitution and rules – Construction of party constitution and rules – Whether valid State Conferences held – Parallel appellate proceedings – Res judicata – Consequential orders – Electoral Act 2002.
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APPEARANCES: | |
| For the Plaintiff and Defendant by Counterclaim | Mr Butler in person |
| For the Defendant and the Plaintiff by Counterclaim | Mr Mulholland in person |
HIS HONOUR:
Introduction
Mr Butler and Mr Mulholland are both members of the Democratic Labour Party (DLP) of Australia. The DLP is a political party and is constituted as an unincorporated association. The current Constitution was adopted by the members in 2000. The Constitution provides that the party is a Federation of constituent State or Territory branches consisting of no more than one branch from each State or Territory of the Commonwealth of Australia.
The Constitution regulates the activities of both the State Branches and the party at the Federal level.
So far as the Victorian Branch of the DLP is concerned, the ruling body of the State Branch is the State Executive. Under the Constitution, the State Executive office-bearers are the President, First Vice-President, Second-Vice President, Secretary, Assistant Secretary and Treasurer.
Under the Constitution, the office-bearers are to be elected at the annual State Conference. After the 2000 Constitution was adopted there were few, if any, contested elections for the office-bearers of the Victorian Branch until 2008. The 2008 annual State Conference was held on 13 September 2008. All office-bearer positions except the Second Vice-President were the subject of contested elections. Kevin Butler (the plaintiff and defendant by counterclaim) stood for election as President against the incumbent President, Patrick Keelan. Mr Butler was declared the winner by 28 votes to 19. John Mulholland (the defendant and plaintiff by counterclaim) stood for election as Secretary but was defeated by Mark Farrell 24 votes to 23. Michael Casanova defeated Patrick Crea for the position of Assistant Secretary 28 votes to 18. David Bennett defeated Mr Capello for the position of Treasurer 23 votes to 20. John Madigan defeated Gerrard Flood for the position of First Vice-President 24 votes to 23. Frances Murphy, the incumbent Second Vice-President, was re-elected unopposed for that position.
Mr Mulholland had been the Branch Secretary for some twenty-odd years. Mr Mulholland subsequently ascertained that two of the voting delegates at the conference, Mr Domenic Farrell (the brother of Mark Farrell) and Ms Claire Lindorff, had declared to the returning 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 and thus would have been ineligible to vote in Commonwealth elections. Mr Mulholland formed the view that under the Constitution of the Victorian branch, the two persons concerned were thereby not members of the DLP and thus were not eligible to vote. Under the Constitution, a member of the DLP was required to be eligible to vote in Commonwealth elections. The two concerned 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 on the Commonwealth Electoral Rolls.
Mr Mulholland and his supporters, including his sister Mrs Murphy, Mr Keelan and Mr Crea sought to challenge the results of the elections held at the State Conference.
As discussed below, this challenge ultimately led to the DLP office-bearers splitting into two groups. For ease of reference I will refer to the two groups as the Butler faction and the Mulholland faction. The Butler faction included Mr Butler (who was now the President), Mr Farrell (who was now the purported Secretary), Mr Casanova (who was now the Assistant Secretary), and Mr Madigan (who was now the First Vice-President).
The Mulholland faction included Mr Mulholland (the former Secretary), Mr Keelan (the former President), Mrs Murphy (the current Second Vice-President), and Dr Bennett (the current Treasurer).
On this basis, the Butler faction had three office-bearer members of the State Executive, and the Mulholland faction had three office-bearer members of the State Executive.
The split in the Victorian Branch has continued until now, with both the Butler faction and the Mulholland faction claiming to be the authorised office-bearers of the Victorian Branch of the DLP.
In other proceedings in the Supreme Court involving Mr Butler as a defendant (and the Electoral Commission of Victoria as the other defendant) and Mr Mulholland as plaintiff, the Court of Appeal has held that the two disputed delegates were in fact not entitled to vote, that the election of Mark Farrell was void, and that Mr Mulholland remained the Secretary of the Victorian Branch of the DLP.[1]
[1]Mulholland v Victorian Electoral Commission & Anor [2012] VSCA 104.
In this proceeding, Mr Mulholland does not dispute that Mr Butler won the election as President, and that Mr Casanova won the election as Assistant Secretary, on 13 September 2008. Mr Mulholland disputes that John Madigan was elected First Vice-President on the grounds that Mr Madigan only defeated Mr Flood by one vote (similarly to Mr Farrell defeating Mr Mulholland by only one vote.) Mr Mulholland says that the election was therefore void, and that as Andrew Robinson (the former First Vice-President) had resigned, the position of First Vice-President remained vacant until filled by Gerrard Flood on 9 May 2009 at the State Conference organised by Mr Mulholland. A separate State Conference organised by Mr Butler was also held on 9 May 2009 but at a different location, the Richmond library.
Mr Mulholland also claims that none of the persons who were elected as office-bearers on 13 September 2008 took over their offices, as they were not installed as required by the Constitution. Accordingly, Mr Mulholland says that the former office-bearers (save for Mr Robinson, who had resigned his office) continued in office pending the holding of a further valid State Conference, which he claims was the State Conference he organised and held on 9 May 2009.
In the alternative, Mr Mulholland claims that if the elected office-bearers did assume their office (notwithstanding that they were not installed), then the purported meetings of the State Executive held by Mr Butler’s faction, after the 13 September 2008 State Conference, were not effective as a quorum of validly elected office-bearers was not present.
Under the Constitution, a quorum of half of the office-bearers plus one was required. In this case, where there were six office-bearers (or perhaps only five), then four office-bearers were required to be in attendance to constitute a quorate meeting of the State Executive.
Mr Mulholland says that, after the 13 September 2008 State Conference, Mr Butler’s faction had only two validly appointed office-bearers, being Mr Butler (the President) and Mr Casanova (the Assistant Secretary). On the other hand, Mr Mulholland concedes that his group only had three validly elected office-bearers, being himself as Secretary, Dr Bennett as Treasurer, and his sister Mrs Murphy as the Second Vice-President.
Mr Mulholland says that the previous First Vice-President (Mr Robinson) had retired at the 13 September 2008 State Conference and that, accordingly, neither Mr Madigan nor Mr Flood were elected as First Vice-resident. Mr Mulholland says that, consistently with the decision of the Court of Appeal, the election of the First Vice President was invalid, as Mr Madigan only won by one vote.
Mr Mulholland says that, despite only three office-bearers of his faction meeting as the State Executive after the 13 September State Conference (and thus not constituting a quorum under the Constitution), the three office-bearers meeting as the State Executive were nevertheless entitled to call a further State Conference to regularise the management of the State Branch of the DLP. Mr Mulholland says that the three Executive members had no other option but for them to put the matters back to the membership, and this is what they decided in November 2008. The proposal by the three Executive members to hold a State Conference in November 2008 was aborted pursuant to an order of Hollingworth J made on 31 October 2008 in this proceeding.
On 31 October 2008, Messrs Farrell, Butler, Madigan and Casanova (the plaintiffs) instituted these proceedings in this Court against Mr Mulholland and Mr Crea (the defendants). Mr Crea had been Assistant Secretary in the Mulholland faction but was purportedly removed on 13 September 2008.
The plaintiffs alleged that they were each members of a voluntary association called the Democratic Labour Party. They alleged that at the conference held on 13 September 2008, Mr Farrell was elected Secretary; Mr Butler, President; Mr Madigan, First Vice-President; and Mr Casanova, Assistant Secretary, in the State Executive of the Victorian branch of the DLP.
The plaintiffs alleged that Mr Mulholland had refused to hand over records and assets of the DLP to the State Executive, represented himself as the State Secretary to the Victorian Electoral Commission, contacted members of the DLP and generally represented himself as the Secretary and purported to cancel the monthly meetings of the State Executive. The plaintiffs alleged that the conduct of Mr Mulholland was unlawful and in breach of the Constitution and Rules of the DLP.
The plaintiffs claimed a declaration that as of 13 September 2008, the State Executive was constituted by the persons set out above. The plaintiffs sought interlocutory and permanent injunctions restraining Mr Mulholland from:
(a) describing himself or holding himself out as the Secretary of the DLP, Victorian branch;
(b) cancelling monthly meetings of the State Executive of the DLP, Victorian branch;
(c) convening a conference of the DLP, Victorian Branch on 15 November 2008 or at all; and
(d) signing cheques on behalf of the DLP, Victorian Branch.
The plaintiffs sought delivery up of DLP papers and property and further sought interlocutory and permanent injunctions restraining Mr Crea from signing cheques on behalf of the DLP, Victorian branch.
After the conference on 13 September 2008, Mr Mulholland maintained 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.
On 17 October 2008, the VEC rejected Mr Mulholland’s application to re-register the DLP as a registered political party on the grounds that Mr Mulholland was not the Secretary and was not authorised to make the application.
On 31 October 2008, a summons was issued in the Supreme Court proceedings seeking interlocutory relief. On 12 November 2008, Hollingworth J made the orders sought, restraining Mr Mulholland from holding himself out as Secretary of the DLP Victorian Branch. Her Honour also made orders for the hearing of the matter.
On 3 December 2008, Mr Mulholland filed a defence and counterclaim. Amongst other matters, he pleaded that the Court had no jurisdiction to determine the dispute. Mr Mulholland has changed his position on jurisdiction and now contends that the Court does have jurisdiction to resolve the dispute.
Mr Mulholland pleaded that if the Court did have jurisdiction, then he counterclaimed alleging that Mr Farrell and Ms Lindorff were ineligible to vote at the meeting of 13 September 2008.
Mr Mulholland sought a declaration that the State Executive of the DLP Victorian branch consisted of:
(a) Patrick Keelan as President
(b) John Mulholland as Secretary;
(c) a casual vacancy for First Vice–President;
(d) Frances Murphy as Second Vice-President;
(e) Mr Crea as Assistant Secretary; and
(f) Mr Crea as Acting Treasurer.
Mr Mulholland sought an order for delivery up to himself of DLP property and a mandatory injunction convening a conference of the Victorian branch of the DLP as soon as practicable.
On 18 December 2008, the VEC decided to substitute Mark Farrell for Mr Mulholland as the registered officer of the DLP. Mr Mulholland appealed to VCAT seeking to overturn this decision and also appealed against the decision of the 17 October 2008 of the VEC.
On 13 February 2009, pursuant to r 23.03 of the Supreme Court Rules, judgment was given for Mr Crea against the plaintiffs. On 17 February 2009, Daly AsJ referred the proceeding to mediation. The mediation held on 23 February was successful. Under the terms of settlement, Mr Farrell, Mr Butler, Mr Butler (on behalf of Mr Michael Casanova and Mr John Madigan) and Mr Mulholland agreed that a State Conference would continue to be held on 9 May 2009 at the Richmond Library. The agreement reached at mediation also provided that this proceeding be dismissed with a right of reinstatement and that there be no order as to costs.
On 6 March 2009, pursuant to the terms of settlement reached at the mediation, orders were made by Daly AsJ by consent that the claim and counterclaim in this proceeding be dismissed, that there be no order as to costs, and that each party had a right of reinstatement if the terms of settlement between the parties made 23 February 2009 were not complied with.[2]
[2]Orders of Associate Justice Daly, 6 March 2009.
Subsequently, the settlement agreement collapsed. Despite Mr Mulholland agreeing to the State Conference being held at the Richmond library, Mr Mulholland organised another purported State Conference to be held by his supporters on 9 May 2009 but at a different location to the Richmond library. On the other hand, the State Conference called by Mr Butler and his faction was also held on 9 May 2009 at the Richmond library. At each State conference, office holders were purportedly elected, and since that day the State Branch has been administered by two purported groups of office holders that trace the purported validity of their positions back to the respective State Conferences held on 9 May 2009.
On 28 October 2009, the Victorian Electoral Commission registered Mr Butler as the registered officer of the DLP.
On 31 December 2009, Deputy President Macnamara of VCAT dismissed Mr Mulholland’s challenges to the decisions of the VEC made on 17 October 2008 and 18 December 2008 referred to above. Mr Butler was a party to those proceedings. Mr Mulholland thereafter sought leave to appeal the VCAT decision to the Supreme Court of Victoria.
On 15 January 2010, at a purported meeting of the Victorian State Executive held by Mr Butler’s faction, Mr Mulholland was purportedly expelled from the Victorian branch of the DLP and consequently from the DLP Australia.[3]
[3]Affidavit of Kevin Butler (sworn on 22 June 2010).
On 16 April 2010, J Forrest J granted leave to Mr Mulholland to appeal against the decision of the Tribunal relating to Mr Farrell being substituted as the registered officer of the DLP, but refused leave to appeal on the decision relating to the Commission rejecting Mr Mulholland’s application to re-register the DLP as a political party with the VEC.
On 24 June 2010, the plaintiffs issued a summons in this proceeding against Mr Mulholland seeking an order reinstating the proceeding and certain interlocutory relief.[4] It will be recalled that the proceedings had earlier been dismissed by consent with a right of reinstatement.
[4]Butler Summons, 24 June 2010.
On 29 June 2010, Pagone J made orders on the summons, reinstating the proceeding. His Honour also ordered that:
Until the determination of the proceeding or further order, Mr Mulholland was restrained from:
(a) Describing himself of holding himself out as the Secretary of the DLP, Victorian branch;
(b) Cancelling monthly meetings of the State Executive of the DLP, Victorian branch;
(c) Convening a conference of the DLP, Victorian branch on any date; and
(d) Signing cheques on behalf of the DLP, Victorian branch.[5]
[5]Orders of Justice Pagone, 29 June 2010.
Mr Mulholland was also ordered to deliver up certain DLP property, including a computer and printer, membership list, minutes and DLP cheque books.
The order noted that Mr Butler and Mr Mulholland appeared in person and that there was no appearance on behalf of the other parties. Justice Pagone gave leave for the other parties to be removed from the proceeding.
On 19 July 2010, Mr Butler issued a summons in this proceeding against Mr Mulholland, alleging that Mr Mulholland had breached the orders of Pagone J and was in contempt of court. The matter came before Emerton J. On 30 July 2010, Her Honour granted leave to the first, third, and fourth plaintiffs to withdraw their appearances in the proceeding. Her Honour also made further orders relating to Mr Mulholland delivering up property of the DLP.[6]
[6]Orders of Justice Emerton, 30 July 2010.
On 1 September 2010, the matter came on before Cavanough J in the Practice Court. To remove any doubt His Honour ordered that Messrs Farrell, Madigan and Casanova be removed as parties to the proceeding both as plaintiffs and to the counterclaim. His Honour also made directions including that the remaining plaintiff, Mr Butler, file and serve an amended statement of claim by 8 September 2010.[7]
[7]Orders of Justice Cavanough, 1 September 2010.
On 10 September 2010, Cavanough J vacated the directions for the filing of the amended statement of claim in the proceeding. His Honour said that the hearing of the appeal in the Supreme Court of Victoria (against the orders of Deputy President Macnamara in the application to review the decision of the VEC) might lead to a resolution of the proceeding or to a narrowing of the issues in the proceeding.[8]
[8]Orders of Justice Cavanough, 10 September 2010.
On 18 March 2011, Williams J delivered judgment in the appeal of Mr Mulholland against the VCAT decision. Justice Williams dismissed the appeal, in substance holding that the two disputed delegates were entitled to vote and that Mr Farrell was duly elected as the Secretary of the Victorian Branch of the DLP. Mr Mulholland sought leave to appeal to the Court of Appeal, which was granted.
On 18 March 2011, Mr Mulholland issued a summons in the proceeding seeking an order discharging the interlocutory orders made by Hollingworth J on 12 November 2008 and reinstated upon the orders of Pagone J on 29 June 2010.[9]
[9]Mulholland Summons, 18 March 2011.
On 22 March 2011, Daly AsJ ordered that Mr Butler file and serve an amended statement of claim by 1 April 2011 and made further directions for the filing of subsequent pleadings. Her Honour adjourned the matter for directions to 7 June 2011.[10] On 31 March 2011, Cavanough J dismissed the summons of Mr Mulholland of 18 March 2011.[11]
[10]Orders of Associate Justice Daly, 22 March 2011.
[11]Orders of Justice Cavanough, 31 March 2011.
On 4 April 2011, Mr Butler filed an amended statement of claim.[12] The amended statement of claim repeated the allegations relating to the 13 September 2008 State Conference. It also complained of Mr Mulholland’s subsequent conduct and alleged failure to comply with the orders of Hollingworth J and Pagone J.
[12]Butler Amended Statement of Claim, 4 April 2011.
Mr Butler sought wide relief, including an order restraining Mr Mulholland from presenting himself as a member or official (including secretary and registered officer) at any level of the DLP and ordering him to write to all members of the DLP stating that he was no longer the secretary of the Victorian branch, nor a member of the DLP.
On 29 April 2011, Mr Mulholland filed an amended defence and counterclaim. He again alleged that this court did not have jurisdiction to resolve the issue of who was the true Secretary of the DLP Victorian branch and referred to Cameron v Hogan.[13] Mr Mulholland contended that, contrary to the emphasis of the plaintiff, the issue for determination in this proceeding was not political, personal or criminal but rather the issue was simply the dispute arising from the office-bearers election at the 2008 conference.
[13](1934) 51 CLR 358, 384.
On 6 September 2011, Daly AsJ ordered that, subject to Mr Butler filing a notice of trial by 22 February 2012, the proceeding be listed for hearing on 22 March 2012 on an estimate of four days.[14] Her Honour also referred the matter to mediation. The mediation subsequently held before Bishop Elliot was not successful.
[14]Orders of Associate Justice Daly, 6 September 2011.
On 16 January 2012, Mr Mulholland issued a summons seeking an order that Mr Butler’s claim be dismissed and that the interlocutory orders made by Pagone J on 29 June 2010 reinstating the proceeding and the interlocutory orders of Hollingworth J be set aside. Mr Mulholland also sought an order that Mr Butler forthwith return to Mr Mulholland all records, funds, assets or other property or material delivered up to Mr Butler (and/or the original plaintiffs), on the interlocutory orders made by Hollingworth and Pagone J.[15]
[15]Mulholland Summons, 16 January 2012.
On 9 February 2012, Mr Butler filed a summons in the proceeding seeking, inter alia, an order that Mr Mulholland was in contempt of court. On that day, Daly AsJ ordered that the further hearing of Mr Mulholland’s summons filed 16 January 2012 be adjourned to 21 February 2012 before the Associate Judge’s Court and that Mr Butler’s summons filed on 9 February 2012[16] be adjourned to the judge in the practice court on a date to be fixed but after 21 February 2012.[17]
[16]Butler Summons, 9 February 2012.
[17]Orders of Associate Justice Daly, 9 February 2012.
On 21 February 2012, Daly AsJ vacated her order that the trial of the proceeding be listed for hearing on 22 March 2012.[18] Her Honour also referred to a judge of this Court for hearing on 22 March 2012 Mr Mulholland’s summons filed 16 January 2012 and Mr Butler’s summons filed 9 February 2012.
[18]Orders of Associate Justice Daly, 21 February 2012.
The matter came on before me on 22 March 2012. At that stage, the appeal of Mr Mulholland to the Court of Appeal against the decision of Williams J had been heard but judgment had not been delivered.
I held that on the balance of convenience the four injunctions made by Pagone J in 2010 should remain in place. Accordingly, I ordered that the summons of Mr Mulholland dated 16 January 2012 be adjourned to the trial of this matter.
Mr Butler’s summons of 9 February 2012 raised issues of alleged contempt by Mr Mulholland. Given there was an issue as to whether the court had jurisdiction to resolve disputes between the members of a voluntary unincorporated association, I considered it appropriate to defer consideration of that summons until this issue was resolved at the trial. Accordingly, Mr Butler’s summons was also adjourned to the trial of this matter.
On 14 June 2012, the Court of Appeal delivered its decision in Mulholland v VEC and Butler.[19] I discuss that decision below, as it has a direct bearing on the matters raised for determination in this trial.
[19]Mulholland v VEC [2012] VSCA 104.
On 18 July 2012, Mr Michael Murphy was substituted as the registered officer of the DLP with the VEC, he previously being purportedly appointed Secretary of the Victorian Branch of the DLP in lieu of Mr Butler.
On 18 March 2013, the matter came on before me for directions for trial. I gave leave to Mr Mulholland to file an amended defence and counterclaim. It was delivered on 19 April 2013. By leave, further affidavits were filed by Mr Butler and Mr Mulholland.
Mr Butler, for his part, sought orders that:
(1)Mr Mulholland no longer represent himself as an official of the DLP at any level;
(2)Mr Mulholland return to the DLP Executive through Mr Michael Murphy, the Victorian State Secretary of the Victorian Branch of the DLP, all monies, receipts, records, archives, equipment and other property of the DLP under his power or control, including such items that he has given to Mr Crea.
These orders encapsulate the substance of the specific orders that Mr Butler sought by his amended statement of claim of 1 April 2011.
By his amended defence and counterclaim of 19 April 2013, Mr Mulholland counterclaimed that:
(a) Dominic Farrell and Claire Lindorff were ineligible to vote at the state conference held on 13 September 2008 and that, accordingly, the State Executive officer-bearers immediately prior to the State Conference on 13 September 2008 continue to hold office, with the exception of Mr Andrew Robinson, who declined to continue as Acting Vice-President beyond 13 September 2008. Mr Mulholland alleges that therefore the State Executive officer-bearers of the DLP’s Victorian Branch who continued in office immediately after that Conference were:
(i) Patrick Keelan as President;
(ii) A casual vacancy for the position of First Vice-president;
(iii) Frances Murphy as Second Vice-President;
(iv) John Mulholland as Secretary;
(v) Pat Crea as Assistant Secretary; and
(vi) Pat Crea as Acting Treasurer.
(b) The disputed election of office-bearers at the 2008 Victorian State Conference was followed by a further State Conference arranged and conducted in accordance with the Constitution and Rules by the continuing Executive on 9 May 2009, at which the new State Executive was elected comprising:
(i) Patrick Keelan as President;
(ii) Gerrard Flood as First Vice-president;
(iii) Frances Murphy as Second Vice-president;
(iv) Mr Mulholland as Secretary;
(v) Pat Crea as Assistant Secretary; and
(vi) David Bennett as Treasurer.
(c) A subsequent State Conference on 26 June 2010 re-elected to the same positions the office-bearers elected at the 2009 Conference, with Mr Mulholland being re-elected as Secretary.
(d) On 29 June 2010, Pagone J reinstated the proceedings commenced by the original plaintiffs before Hollingworth J in 2008, and made interlocutory orders by which Mr Mulholland was once more restrained from holding himself out to be Victorian Secretary of the DLP.
(e) Immediately following the making of the orders by Pagone J, Mr Mulholland removed himself from his position as Victorian Secretary of the DLP and was replaced on the Executive by Pat Crea, as Acting Secretary, a position he has held continuously since that time.
Mr Mulholland alleges that under Rule 43 of the DLP Constitution and Rules and section 51 of the Electoral Act 2002 (the Act), he had a right to continue as the Registered Officer of the DLP in Victoria. Mr Mulholland says that he was wrongfully deprived of that right when the Electoral Commissioner decided to recognise Mark Farrell as the DLP Secretary in Victoria, when he was not the Secretary, and to accept from him an application to substitute his own name for that of Mr Mulholland in the Register of Political Parties.
Mr Mulholland says that under s 51 of the Act such an application must be signed by the Secretary of a party seeking the change. Mr Mulholland alleges that Mark Farrell was not the Secretary and his application was incompetent. Mr Mulholland says that a succession of subsequent similar applications was also incompetent and that the historical public record, from 18 December 2008 until 2 August 2009, was thereby incorrect, and has so remained in consequence of subsequent changes on 3 August 2009, 28 October 2009 and 18 July 2012.
Mr Mulholland seeks an order or rectification that Mr Butler and/or any other member of the DLP return to Mr Mulholland all materials, including records, funds and assets of the DLP delivered up to Mr Butler (pursuant to the interlocutory orders of 12 November 2008, and 29 June 2010) and deliver up all related additions to those records, funds and assets obtained since interlocutory orders were effected.
Mr Mulholland seeks a declaration that the State Executive of the Victorian Branch of the DLP immediately following upon its 2008 Victorian State conference consisted of:
(i)Patrick Keelan as President;
(ii)a casual vacancy for the position of first Vice-President;
(iii)Frances Murphy as Second Vice-President;
(iv)John Mulholland as Secretary;
(v)Patrick Crea as Assistant Secretary; and
(vi)Patrick Crea as Acting Treasurer.
Mr Mulholland also seeks a declaration that the Victorian State conference of the DLP arranged and conducted on 9 May 2009 by the continuing Executive (as previously referred to) was a valid State conference of the DLP and that the office-bearers elected at that conference to the Victorian State Executive were:
(i)Patrick Keelan as President;
(ii)Gerrard Flood as Vice-President;
(iii)Frances Murphy as Second Vice-President;
(iv) John Mulholland as Secretary;
(v)Patrick Crea as Assistant Secretary; and
(vi)David Bennett as Treasurer.
Mr Mulholland seeks a declaration that the Victorian State conference of the DLP arranged and conducted on 26 June 2010 by the Executive elected on 9 May was a valid State conference of the DLP and that the office holders elected at the 2009 Victorian conference were as identified.
Mr Mulholland seeks an order that the applications made to change the name of the registered officer entered in the Register of Political Parties, which changes were made to the Register by entering the name of Michael Casanova on 3 August 2009, Kevin Butler on 28 October 2009 and Michael Murphy on 18 July 2012, were not in accordance with a necessary requirement of s 51 of the Act and therefore incompetent and ineffective to warrant the said changes to the Register.
In substance, the relief sought all turns on the question of which faction or members thereof (that is, Mr Butler’s faction or Mr Mulholland’s faction) constitutes the officers of the Executive of the Victorian State Branch.
The proceedings also must take into account the findings of the Court of Appeal in the matter of Mulholland v Victorian Electoral Commission and Anor,[20] and the decision of Deputy President Macnamara of VCAT. In both those matters, Mr Butler and Mr Mulholland were parties.
[20][2012] VSCA 104.
Relevant provisions of the Constitution
I adopt, in part, the summary of the Rules provided in the Court of Appeal’s decision. The DLP Rules provide that the party shall be a Federation of constituent State or Territory branches consisting of not more than one branch from each State or Territory of Australia.[21] Each State or Territory branch shall be named that State Branch of the DLP.[22]
[21]Constitution of the Democratic Labour Party, Rule 2.
[22]Rule 3.
Rule 4 provides:
The members shall be those eligible to vote in Commonwealth elections who are deemed by the Democratic Labor Party to be of like spirit and to identify with the principles, objectives and platform of the DLP. They shall attend DLP meetings, contribute to the funds, canvass for new members, assist with elections, vote for DLP candidates in elections or otherwise declare their association, loyalty and support.
Then, following provisions as to Perspective, Principles and Objectives, come rules pertaining to Organisation. The structure is this: there are to be Local Branches which, until the Federal Executive decides otherwise, shall be organised on the basis of one per Federal Electorate and consisting of 10 or more members (or fewer, with State Executive approval) who shall elect a President, Secretary and Assistant Secretary/Treasurer.[23] In any Federal electorate in which there is not a Local Branch, an individual member or members may be deemed by the State Executive as a Local Branch for the purpose of representation at State Conference.[24] The Rules also make provision for Support Groups (Rule 24) and Affiliated Organisations (Rule 25).
[23]Rule 21.
[24]Rule 22.
There is a State Conference which is ‘the supreme governing body’ of the DLP in each State; it shall meet annually, or as required by the State Executive or requested by a majority of Local Branches.[25]
[25]Rule 27.
Each Local Branch, Support Group or Affiliated Organisation is entitled to be represented at State Conference in proportion to its membership, on a stated ratio (which, for 100 members or less, is three delegates).[26]
[26]Rule 28.
As to voting and office-bearers, the following is provided. Rule 29 provides for the procedures to be followed at a State Conference. The first matter referred to is credentialing of delegates, a matter dealt with in Rules 69-71. The scheme is that credentials of delegates to attend a State Conference are to be submitted by each Local Branch, Support Group or Affiliated Organisation to the State Secretary at least two months before a Conference.
There is then provision for a State Executive, which shall be the ruling authority of the State Branch between each State Conference, and shall comprise the officers elected by an annual State Conference.[27] The office-bearers shall be President, First Vice-President, Second Vice-President, Secretary, Assistant Secretary and Treasurer.[28] Rule 32 requires that any vote required on the election of State Executive shall be conducted by secret ballot. Rule 32 also provides that “Newly elected office-bearers and delegates may be installed at a convenient time before the close of the Conference.”
[27]Rule 30.
[28]Rule 31.
Rule 65 provides for the arrangements and calling of State Conferences. This power is given to the State Executive alone.
Rule 72 relevantly provides that a quorum for a State Executive meeting shall be not less that one-half of the number of officer-bearers at that level, plus one.
Finally, there is provision for a Federal Conference which shall be the supreme governing body of the DLP,[29] at which each State Branch shall be represented in proportion to its members.[30]
[29]Rule 34.
[30]Rule 35.
The Court of Appeal decision
The Court of Appeal recognised that the proceeding before me raises the same basic issues as dealt with on the appeal, namely the validity of the 13 September 2008 election.[31]
[31]Mulholland v Victorian Electoral Commission & Anor [2012] VSCA 104.
In the appeal, Mr Mulholland contended that the election of Mr Farrell as secretary was void because two delegates who voted were not eligible to do so, as they were not members of the DLP at the election on 13 September 2008. The Court noted that Mr Mulholland made the same point concerning the election of the First Vice-President in which John Madigan defeated Gerrard Flood 24 votes to 23 votes (the same margin as with the election for Secretary). The Court of Appeal noted that the unsuccessful candidate for that position took no action to challenge the result.
Mr Mulholland’s contention was based on Rule 4 of the Constitution and the Rules of the DLP (the DLP Rules) which states who may be a member of the DLP. It provides that:
The members shall be those eligible to vote in Commonwealth elections who are deemed by the Democratic Labor Party to be of like spirit and to identify with the principles, objectives and platform of the DLP.[32]
[32]Rule 4 (emphasis added).
Mr Mulholland submitted that the two delegates were not ‘eligible to vote in Commonwealth elections’ because each lived at an address that was not their address recorded on the Electoral Roll (‘the Roll’) maintained under the Commonwealth Electoral Act 1918 (‘the Commonwealth Act’). In each case the respective addresses were in different Electoral Divisions.[33] The two delegates were Dominic Farrell and Claire Lindorff. Mr Farrell lived in Warrnambool, in the Division of Wannon, but was enrolled in the Division of Hotham. Ms Lindorff lived in Bundoora, in the Division of Scullin, but was enrolled in the Division of Maribyrnong. Mr Mulholland contended that in these circumstances and having regard to relevant provisions of the Commonwealth Act, the effect of Rule 4, properly understood, was that on 13 September 2008 Dominic Farrell and Ms Lindorff were not ‘eligible to vote in Commonwealth elections’ and thus were not members of the DLP.
[33]Electoral Divisions are established under the Commonwealth Act for the election of members of the House of Representatives. Section 4(1) of the Act defines the word ‘Division’ to mean an Electoral Division.
The Court said that it was not known for whom Dominic Farrell and Ms Lindorff voted in the election for Secretary, or, for that matter, First Vice-President. However, the Court held that it was clear from the numbers that their votes could alone have determined the majority. The Court held that in this situation the Court does not enquire as to how they actually voted. It is enough if the impugned votes produced the numerical result, in the sense that if cast one way the result would be ‘X’ and if cast the other way the result would be ‘Y’. That being so, if Dominic Farrell and Ms Lindorff were not entitled to vote, the election would be declared void. The Court referred to and relied on Chanter v Blackwood (No 2).[34]
[34](1904) 1 CLR 121, 131.
After a careful consideration of the Commonwealth Act, Hansen JA (with whom Redlich JA and Kyrou AJA agreed) found that the two delegates were not eligible to vote in Commonwealth elections within the meaning of Rule 4 of the DLP Rules and that neither was then a member of the DLP. The Court held that the consequence was that, not being members, the two delegates were not entitled to vote for Secretary. The Court said that in this situation, as the delegates’ votes must be taken to have affected the result, the election for Secretary was void.
The Court allowed the appeal and set aside the decision of the Tribunal, affirming the Commission’s decision of 18 December 2008. The Court ordered that:
the decision of the Commission dated 18 December 2008 to register, and the registration of, Mark Farrell as the registered officer of the DLP be set aside provided that such setting aside is without prejudice to and does not affect the validity of the change of the name of the registered officer in the Register from Mark Farrell to Michael Casanova on 3 August 2009 and any subsequent change.[35]
[35]Mulholland v Victorian Electoral Commission & Anor [2012] VSCA 104, [117].
Justiciability
Both Mr Butler and Mr Mulholland urged me to resolve the stand-off between the two competing executive factions and to determine who were the validly appointed members of the State Executive of the DLP.
Nevertheless, Mr Mulholland recognised that the Court could not do so unless the issues between them were justiciable, and (secondly) whether or not the Court would make the declarations sought, depending on discretionary considerations.
In Cameron v Hogan,[36] the High Court of Australia was asked to consider whether the Labor Party had properly followed its rules in denying endorsement to a member who had been Premier of the State of Victoria and expelling him from the party. The plaintiff brought an action in the Supreme Court of Victoria, seeking a declaration that he was a member of the party and sought an injunction to restrain the defendants from acting on or carrying into effect his expulsion.
[36](1934) 51 CLR 358 (Rich, Dixon, Evatt and McTiernam JJ).
At first instance, the Supreme Court of Victoria found for the plaintiff and held that the defendants had not followed the correct procedures. Chief Justice Gavan Duffy held that the actions of the defendants amounted to a breach of contract, but that the plaintiff had no such substantial or proprietary interest in the property of the Party as to justify a declaration or injunction, and gave judgment for the plaintiff for nominal damages and costs.
On appeal by the defendants to the High Court of Australia, the High Court upheld the appeal and dismissed the action. The High Court held that members of the Australian Labor Party were furnished with no civil or proprietary interest suitable for protection by injunction or declaration. The Court held that the basis of ascertainable and enforceable legal rights was lacking. The Court held that the policy of the law was against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment.[37]
[37]Cameron v Hogan (1984) 5 CLR 358, 378.
Since Cameron v Hogan was decided, various Australian Courts have sought to distinguish the decision particularly in regard to the regulation of political parties.[38] Relevantly, in the case of political parties, several decisions have distinguished Cameron v Hogan on the grounds that the Commonwealth Act recognises political parties, provides for their registration and authorises the granting of public funds to political parties.[39]
[38]See the instances where the Courts have sought to distinguish Cameron v Hogan (1934) 51 CLR 358 referred to by Palmer J in Coleman v Liberal Party (2007) 212 FLR 271; [2007] NSWC 736 (Coleman).
[39]Baldwin v Everingham [1993] 1 Qd R 10 (‘Baldwin’); Clarke v ALP (SA Branch) (1999) 74 SASR 109 (‘Clarke’); Coleman [2007] 212 FLR 271; Thornley v Heffernan (unreported, Supreme Court, NSW, Brownie J, 25 July 1995); Tucker v MacDonald [2001] QSC 296 and Galt v Flegg [2003] QSC 290 (Moynihan SJA).
The cases referred to in the previous foot note have also had regard to the importance of political parties in public affairs and (by implication) that the proper administration of these voluntary associations extended beyond the interests of the party members inter se and into the broader public welfare.[40] On that basis, the authorities have distinguished political parties from mere social unincorporated associations, whose affairs are only of concern to its members.
[40]Coleman [2007] 212 FLR 271, [48]-[49].
In Clarke v ALP (SA Branch),[41] Mullighan J held he had jurisdiction to determine the issues between the parties and relied on the recognition contained in the state Electoral Act 1985 (SA) which provided for the registration of political parties.[42] In Clarke, a sitting member of the South Australian State Parliament challenged the membership of a group of new members to his electorate who threatened to deny him re-endorsement for his party at the next State election. The executive of the party sought to sanction the admission of the members retrospectively and thereby circumvent the member’s objection to their being admitted to membership in his electorate. Justice Mullighan found that the action of the executive was not permitted under the rules of the party. His Honour made declarations and orders declaring the memberships of the group to be invalid and injunctions as to the procedures that ought to be followed.
[41](1999) 74 SASR 109 (Clarke).
[42]Ibid [63].
In Baldwin v Everingham,[43] Dowsett J held that the application by a member of the Liberal Party for endorsement as a candidate for the seat of Moreton in the forthcoming Federal election had not had his application properly dealt with under the rules of the Liberal Party. His Honour made appropriate orders to ensure that the candidate’s application was properly considered.
[43][1993] 1 Qd R 10 (Baldwin).
In Coleman,[44] Palmer J ruled on the proper construction of the party constitution in another pre-selection dispute.
[44](2007) 212 FLR 271.
The DLP is registered as a political party under the Commonwealth Act, having been registered on 20 July 1984. Under the Victorian Act, the Victorian Electoral Commission must establish and maintain a Register of Political Parties containing a list of the political parties which are registered under the Act. The DLP is a registered political party. I have summarised the relevant provisions earlier.
Under the Victorian Act, a registered political party is entitled to payments by the State. Under s 208 of the Act, for the purpose of having an entitlement under s 211 (ie a sum for each first preference vote), the registered officer of a registered political party must within a certain time provide information to the Victorian Electoral Commission on the amount spent by the party in a State election.
Under the Victorian Act, in relation to a political party, ‘the secretary’ means the person who holds the office (however described) the duties of which involve responsibility for carrying out of the administration, and for the conduct of the correspondence, of the party. Under the Victorian Act, a registered political party must nominate a person to be the registered officer of the political party. The application for registration of the party must be signed by the secretary of the political party and the application must set out the name and address of the person who is to be the registered officer of the political party for the purpose of the Act.
It can be seen, therefore, that the identity of the secretary and his authority to make an application to the Commission for registration of the political party are important issues for the proper working of the Victorian Act.
In my opinion, the issue of who is the Secretary of the DLP in the Victorian State branch is a justiciable issue. Similarly, the Secretary can only act with the authority given to him under the Constitution of the DLP and in accordance with the instructions of the State Executive. The membership of the State Executive is therefore an important issue, which it is in the public interest to resolve. In my opinion, the determination of the issue of who constitutes the State Executive is also justiciable.
The Failure to install the newly elected office-bearers
Mr Mulholland contends that none of the office-bearers who were elected on 13 September 2008 took office, as after the election they were not installed in office. Rule 32 provides for the election of office-bearers at the State Conference and concludes that newly elected office-bearers “may” be installed at a convenient time before the close of Conference.
This issue was raised in the VCAT proceedings between Mr Mulholland as applicant and the VEC and Mr Butler as respondents. Deputy President Macnamara of VCAT held that on its true construction Rule 32 required the chairman of the conference to install the new executive before the conclusion of the conference. He held that in context “may” meant “must”. It is not in dispute that Mr Keelan, as the chairman of the meeting, did not install the new office-bearers (if installation involved some sort of ceremony beyond the results of the election being announced by the returning officer and the chairman of the meeting acknowledging to the meeting the election of the new office bearers).
Deputy President Macnamara looked to the dictionary meaning of the verb “install”. The first definition given was to “place (person in office or rank) with ceremonies”; the second definition given was to “Establish (person, oneself in place, condition, etc); place (heating or lighting apparatus etc) in position for use.” The Deputy President said that when the DLP Rules spoke of “installation”, they meant “that the new executive as elected should be ceremonially put in charge or at the helm of the branch’s affairs.”[45]
[45]Referring to the Australian Concise Oxford Dictionary.
Mr Butler gave evidence that Mr Keelan called Mr Butler to come forward to take over as chair of the meeting. Mr Butler declined as he wanted to move motions and as the chairman he would have been unable to do so. The other elected office-bearers were not installed in any ceremonial way.
Deputy President Macnamara held that “installation” could take place after the close of the conference, and that installation did take place when the orders of Hollingworth J were complied with by Mr Mulholland. Deputy President Macnamara said that once Mr Mulholland surrendered the property and records under his control to the Butler executive they were effectively installed. As mentioned above, on 12 November 2008, Hollingworth J made interlocutory orders in this proceeding. Her Honour, inter alia, restrained until the hearing and determination of the proceeding, Mr Mulholland from holding himself out as the Secretary of the DLP Victorian Branch. Her Honour also ordered that Mr Mulholland deliver up to Mr Farrell (who was then the first plaintiff) the DLP books and records.
This construction of Rule 32 and the decision of Deputy President Macnamara on the issue of installation were not appealed. In the present proceedings, Mr Mulholland contends that Mr Keelan’s failure to “install” members of the State Executive meant none of them took office. I take this submission to extend to consequentially impugning the validity of the new State Executive’s election.
In my opinion, whatever is meant by the word “installation”, the new elected office-bearers were duly elected once the results of the election were announced by the returning officer.
“Installation” does not appear to be a term with any recognised meaning in general law, nor is it referred to in texts such as Horsley’s Meetings: Procedure, Law and Practice.[46] The standard procedure for concluding an election and announcing the result(s) is described in Horsley’s:
At the conclusion of an election, the Chair (or the returning officer, if the rules so provide) announces the name of each successful candidate, and declares that person elected as Chair of the meeting or to the particular office for the ensuing period, as the case may be. … The acclamation that often follow a Chair’s announcement of an election is to express congratulations, and is not to be confused with voting by acclamation …[47]
[46]See AD Lang, Horsley’s Meetings: Procedure, Law and Practice (Lexis Nexis Butterworths, 6th ed, 2010) (‘Horsley’s’), Ch 17 ‘Elections and Ballots’.
[47]Horsley’s [17.10]; see also, eg, JP Monro, How to Conduct Meetings: A Textbook for Chairmen, Secretaries and Conveners of Meetings (John Pollard, n.d.), 50.
Absent compelling evidence that “installation” was a term with special meaning to the DLP, in my opinion it ought be ascribed its ordinary English meaning, as canvassed in Deputy President Macnamara’s reasons (outlined above). “Installation” was neither defined nor explained in the DLP Rules. Nor was there compelling evidence of some traditional meaning or practice ascribed to the word.[48] Dr Bennett gave evidence at trial as to his belief that the new executive members had “to come up to the front and for the new president and secretary to take over the chair, at the front” for installation to occur and the election process thus to be completed.
[48]Compare, for example, the tradition that the newly-elected Speaker of the House in Westminster System parliaments is (ostensibly) physically dragged to the Speaker’s chair by other Members – see, eg, generally, UK Parliament Website, ‘Traditions of Parliament’ < (accessed at 19 November 2013), ‘Dragging the Speaker of the House of Commons’. It should be noted that this traditional dragging of the new Speaker occurs after he or she is elected, and (similarly to the present case) the observance or non-observance of the tradition cannot impeach the validity of the election which occurs before it.
Absent further evidence of custom or tradition, it is difficult to envisage what is meant by “installation” beyond acceptance of the position and assumption of the post. Acceptance of the position is implicit in accepting nomination for election, and assumption of the post occurs when the new office bearer takes up their duties – as Deputy President Macnamara noted in his reasons, this occurred when the orders of Hollingworth J where complied with.
In the absence of any understood, defined or accepted meaning of what constituted “installation” there are strong grounds for assuming that whatever it was, it was merely ceremonial and was not a necessary step in enlivening in the newly elected office-bearer the powers and duties of office. or a constitutive element of the election process.
This is borne out by the phrasing of Rule 32 – “[n]ewly-elected office bearers may be installed” – which clearly implies that the office bearer or delegate has already been elected when installation is to occur. In my opinion, the absence of installation cannot impeach the validity of the election itself. The ceremony of installation does not create any new powers, duties or obligations for the newly-elected office bearer.
In Nicholls v Board of Examiners[49] Ormiston J considered the significance of the oath of allegiance to be given by a person seeking admission and enrolment as a barrister and solicitor of the Supreme Court of Victoria under the then Legal Profession Practice Act 1958. The Court was considering and appeal where an American citizen who was resident in Australia applying to be admitted to practice, sought to be excused from giving the oath of allegiance when being admitted to practice. In obiter statements, Ormiston J considered the obligation of allegiance owed by an alien when under the protection of the sovereign. It had been argued in that case, but not decided, that the taking of the oath of allegiance did not create a duty of allegiance that otherwise did not exist by reason of being under the sovereign’s protection.
[49][1986] VR 719 (per Ormiston, Fullagar and Vincent JJ).
Ormiston J said that he was unable to find any authority, at least since the Middle Ages, which suggested that the taking of an oath of allegiance created any new or different obligation on a resident foreign national, than otherwise existed at law.
The issue in that case, recognised that the taking of an oath (such as an oath of allegiance) may, in some circumstance, merely be ceremonial if the obligations promised or enunciated by the oath otherwise exist. Similarly, the reference to the newly elected office-bearer being installed may be merely a reference to a ceremonial step, the absence of which, may not meant that the newly elected office-bearer has not been duly elected and all his or her powers of office duly enlivened.
This of course does not mean that, in an appropriate case, an oath of office may not be a necessary step of the election process - without which the person concerned has not assumed the powers and duties of the office - much like the swearing in of a government minister by the Governor.
If I am wrong about the content and legal import of installation and the Rule goes beyond a ceremonial character and imports a procedural step in the election, then in my opinion, the Rule merely allows the newly elected office-holders to assume their new offices before the close of the conference. In those circumstances, the existing office-holders would be replaced before the close of the conference such that the new President would preside, the new Secretary would take over continue to take the minutes and such like.
In this case the successful candidates actively assumed their respective offices after the meeting closed, at the latest when they met at the State Executive on 3 October 2008. Mr Farrell in his affidavit sworn 30 October 2009 filed in this proceeding deposes that the State Executive met on 3 October 2009. He says that the State Executive resolved to take legal proceedings against Mr Mulholland for continuing to represent himself as the Secretary of the DLP and to recover DLP property from Mr Mulholland. I infer, therefore, that the State Executive that Mr Farrell refers to is that comprising those office-bearers that were part of the Butler faction.
In my opinion, Mr Butler and the other office-bearers that were in his faction assumed, at the latest, the office when they purported to exercise their powers in meeting as the executive on 3 October 2009 at the latest. As it was, they did not have sufficient office-bearers to constitute a quorum. That does not deny their assumption of office and Mr Butler, Mr Madigan and Mr Casanova being installed as office-holders.
For all these reasons, I reject Mr Mulholland’s submission that the Butler office-bearers were not duly elected and did not assume the rights and duties of their offices.
Who is the current secretary of the DLP Victorian Branch?
The Court of Appeal found that Mr Mulholland remained the Secretary after the 13 September 2008 annual conference of the Victorian branch of the DLP. The Court found that the election for Secretary was void. The Court addressed the contention of Mr Mulholland that he remained the Secretary as he had not thereafter been validly replaced as Secretary by a vote of a duly convened meeting of the DLP. The Court said as follows:
[115] Before turning to that relief it remains to mention the appellant’s submission that he ‘remains’ the secretary of the DLP. This was because, he submitted, the impugned vote on 13 September 2008 was void and he had not thereafter been validly replaced as secretary by a vote at a duly convened meeting of the DLP. That being so, both his removal as registered officer and the subsequent changes of registered officer were wrongly made, for in making those changes to the Register the Commission had acted on an erroneous assumption. This submission would seem to extend to submitting that the procedures prescribed by s 51 were not complied with, and that the applications for the subsequent changes were not made by a competent applicant. In short, the subsequent changes of registered officer in the Register were to be assumed as invalidly founded and set aside.
[116] The submission must be rejected. It suffers from the fundamental flaw that the appellant has not sought review of the changes of registered officer made by the Commission on 3 August and 28 October 2009. The present appeal concerns only the question of law arising from the decision of the Tribunal to affirm the Commission’s decision of 18 December 2008. That being so, the facts pertaining to the subsequent changes, and the reason why the Commission determined to and did so change the Register, were not agitated before the Tribunal, Williams J or this Court. Quite simply, they were irrelevant. They were not made relevant by the appellant asking for relief that went beyond that which would be granted on review of the 18 December 2008 decision. Moreover, it is to be remembered that the subsequent changes to the Register were made prior to the hearing at the Tribunal. In these circumstances the appellant’s submission as to setting aside the subsequent changes must be rejected. Of course the appellant may be able to seek relief concerning the subsequent changes of registered officer in the proceeding pending in the Trial Division, and in seeking relief concerning those changes in this appeal he may have been seeking an advantage for use in that proceeding; but, however that may be, the submission is misconceived.[50]
[50]Mulholland v Victorian Electoral Commission & Anor [2012] VSCA 104, [115]-[116].
In my opinion, the observations of the Court of Appeal leave open the finding that Mr Mulholland has not been replaced as Secretary by any duly convened meeting of the State Conference. In my opinion, for the reasons given below, Mr Mulholland has not been replaced as Secretary by any duly convened meeting of the State Conference of the Victorian Branch of the DLP. In my opinion, the same reasoning also applies to the other office-bearers who were duly elected at the 2008 State Conference.
Immediately, after the 2008 State Conference, the members of the State Executive were:
President Kevin Butler
First Vice-President John Madigan
Second Vice-President Frances Murphy
Secretary John Mulholland
Assistant Secretary Michael Casanova
Treasurer David Bennett
Mr Madigan’s position
In the proceeding before the Court of Appeal, Mr Mulholland sought to contend that the election of Mr Madigan as First Vice-President was void because two delegates who voted were not eligible to vote. In response to that contention, the Court of Appeal said that the unsuccessful candidate for that position took no action to challenge the result. As discussed above, Mr Madigan was a party to this proceeding, but sought to be removed as a plaintiff. In my opinion, it is open to this Court to make a ruling on his position where the issue was raised in a proceeding to which he was then a party but which later he chose to be removed as a plaintiff.
Mr Mulholland contends that the election for the First Vice-President was void for the reasons given by the Court of Appeal, and as Andrew Robinson had resigned, the position was vacant and would remain so until a properly convened meeting of the State Conference elected a new First Vice-President.
In my opinion, I am bound by the reasoning of the Court of Appeal to find that the election for First Vice-President was void. As Mr Robinson had resigned, the position was therefore vacant and, for the reasons given below, remains vacant.
The validity of the elections at the 2008 conference
Initially, Mr Mulholland asserted that the elections at the conference were all void. His counterclaim sought a declaration that the State Executive immediately following the 2008 State Conference was constituted by the same office holders that held office as the State Executive immediately before the election, save for the position of First Vice-President, which he contended was a casual vacancy, as Mr Robinson had resigned as First Vice-President. Mr Mulholland no longer seeks that order. Mr Mulholland accepts that Mr Butler’s election was valid, as well as Mr Casanova as Assistant Secretary. As mentioned above, Mr Mulholland still maintains that Mr Madigan was not elected as Vice-President, which I have accepted.
The subsequent conferences
After the 2008 State Conference, the Executive split into two camps. Mr Butler’s group consisted of Mr Butler, Mr Madigan, Mr Casanova, and Mr Farrell. The appointment of Mr Farrell as Secretary was disputed by Mr Mulholland. His objection was upheld by the Court of Appeal. Thus, in this group there were only two members of the State Executive, as I have accepted that Mr Farrell and Mr Madigan were not duly elected to their offices.
Mr Mulholland’s group consisted of Mr Keelan, Mr Flood, Dr Bennett, Mrs Murphy, Mr Mulholland, and Mr Crea. On Mr Mulholland’s submissions as to the members of the State Executive, only Dr Bennett, Mrs Murphy and Mr Mulholland were members of the State Executive.
Under Rule 73 of the DLP Constitution, a quorum for meetings of the State Executive was not less than one-half of the number of office-bearers plus one. In other words, a quorum of four office-bearers was required if office-bearers meant the number of offices that could be filled under the Constitution. If office-bearers meant only those filled at the time with an office-bearer, then in my opinion the quorum was still four. If the number of office-bearers referred to those in office, then half of five would be two and half plus one which would make three and half. On any view, more than three executive members would be required for a quorum.
Accordingly, neither a meeting of the Mulholland faction or the Butler faction would constitute a quorate State Executive meeting. Under Rules 65 and 66, only the State Executive could call and arrange a State Conference. On that basis, the purported State Conferences called by the Mulholland faction and the Butler faction in 2009 and subsequently were not called in accordance with the Constitution. It should be noted that Mr Mulholland contends that the he has not been replaced by a validly convened meeting of the State Conference. Subsequent purported conferences have also not been validly called by the State Executive. The State Executive has been split into two competing camps, neither of which can muster a quorum to carry out any business.
Mr Mulholland admitted as much in his submissions, where he conceded that his group did not have quorum to transact business of the State Executive but that necessity demanded that a State Conference be called, which his group purported to do.
In my opinion, for the DLP to continue in Victoria under its current Constitution it will be necessary for one of more of the current office-bearers in one faction to meet with the office-bearers in the other faction. In those circumstances, if a quorum was achieved, a State Conference could be called to elect new office-bearers. For example, Mr Butler could meet with Mr Mulholland’s office-bearers and the four agree on a new State Conference.
The registered officer
Under the Act, there is no requirement that the registered officer be any particular member of the State Executive or member of the party. The application for registration is made by the party. Applications for a change to the Register of Political Parties under s 51 of the Act are also made by the party. The Act does require the applications to be signed by the Secretary. Nevertheless, in my opinion, it is a matter for the State Executive as to who should be registered as the registered officer. In my opinion, the Secretary should obtain a decision from the State Executive as to who the registered officer should be. The Secretary’s function is to carry out the decisions of the State Executive, save where the Constitution otherwise provides.
Conclusion
I would dismiss the application for the orders sought by Mr Butler that Mr Mulholland no longer represent himself as an official of the DLP at any level. I have found that Mr Mulholland remains the current Secretary of the Victorian Branch of the DLP. I would also dismiss the application for orders that Mr Mulholland return DLP property to Mr Murphy. Mr Murphy is being held out by Mr Butler’s faction as the Secretary of the State Executive of the Victorian Branch of the DLP. According to my findings, he has not been duly elected the Secretary.
As to the property of the DLP, that is a matter for the State Executive to deal with. It is up to the State Executive to decide by whom and where the property of the DLP should be held.
Mr Mulholland seeks an order that Mr Butler and/or any other member of the DLP return to Mr Mulholland all materials, including records, funds and assets of the DLP delivered up to Mr Butler (pursuant to the interlocutory orders of 12 November 2008, and 29 June 2010) and deliver up all related additions to those records, funds and assets obtained since interlocutory orders were effected. I propose not to make such an order. Mr Butler is the President of the Victorian Branch of the DLP. It will be up to the State Executive to decide by whom and where the property of the DLP should be held.
Mr Mulholland seeks a declaration that the State Executive of the Victorian Branch of the DLP immediately following upon its 2008 Victorian State conference consisted of:
(i)Patrick Keelan as President;
(ii)a casual vacancy for the position of first Vice-President;
(iii)Frances Murphy as Second Vice-President;
(iv)John Mulholland as Secretary;
(v)Patrick Crea as Assistant Secretary; and
(vi)Patrick Crea as Acting Treasurer.
I do not propose to make such an order for the reasons given. I will order and declare instead that the State Executive of the Victorian Branch of the DLP immediately following upon its 2008 Victorian State conference consisted of:
(i)Kevin Butler as President;
(ii)a casual vacancy for the First Vice-President;
(iii)Frances Murphy as Second Vice-President;
(iv)John Mulholland as Secretary;
(v)Michael Casanova as Assistant Secretary; and
(vi)David Bennett as Acting Treasurer.
Mr Mulholland also seeks a declaration that the Victorian State conference of the DLP arranged and conducted on 9 May 2009 by the continuing Executive (as he alleges above) was a valid State conference of the DLP and that the office-bearers elected at that conference to the Victorian State Executive were:
(i)Patrick Keelan as President;
(ii)Gerrard Flood as Vice-President;
(iii)Frances Murphy as second Vice-President;
(iv)John Mulholland as Secretary;
(v)Patrick Crea as Assistant Secretary; and
(vi)David Bennett as Treasurer.
For the above reasons I propose not to make such a declaration. In my opinion, the State Conference was not validly convened.
Mr Mulholland also seeks a declaration that the Victorian State conference of the DLP arranged and conducted on 26 June 2010 by the Executive elected on 9 May was a valid State conference of the DLP and that the office holders elected at the 2009 Victorian conference were as identified. For the reasons expressed above, I find that the Victorian State Conference organised by Mr Mulholland was not a valid State Conference of the DLP.
Mr Mulholland also seeks an order that the applications made to change the name of the registered officer entered into the Register of Political Parties, which changes were made to the Register by entering the name of Michael Casanova on 3 August 2009, Kevin Butler on 28 October 2009, and Michael Murphy on 18 July 2012 were not in accordance with a necessary requirement of s 51 of the Act and therefore incompetent and ineffective to warrant the said changes to the Register.
The Act prescribes a procedure for the review of decisions to grant an application under s 51 of the Act in s 60. Section 60 provides that the application for a review is to be made to VCAT. VCAT decisions on questions of law may be appealed to this Court. Accordingly, I refuse the application relating to the Register of Political Parties.
I will hear the parties on the question of costs.
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