Butler v Mulholland (No 2) - [2013] VSC 662

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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…

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.

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Details

Case: [2013] VSC 662
Decision Date: 2 December 2013

CaseChat Overview and Summary

The respondents in this case, the DLP Victorian Branch, sought a declaration that the election of certain office bearers of the State Executive was invalid, as well as an injunction preventing the office bearers from acting in their positions. The applicants, the named office bearers, argued that the court should not hear the case as it involved internal party matters. The case was heard in the Supreme Court of Victoria, with the Court of Appeal's decision being reviewed.

The court needed to determine if the dispute was justiciable, if the voters at the State Conference were party members as per the party's constitution and rules, if the conferences were valid, and if the principles of res judicata applied due to parallel appellate proceedings. Additionally, the court considered consequential orders and the relevant sections of the Electoral Act 2002.

The court found that the dispute was justiciable, as the applicants' positions involved public functions under the Electoral Act 2002, which meant the court could intervene. The court also determined that the voters at the State Conference were indeed party members as per the party's constitution and rules. The court held that the State Conferences were valid, and the principle of res judicata did not apply due to the distinct nature of the proceedings. Consequently, the court dismissed the respondents' claims and made orders for costs.

In summary, the Supreme Court of Victoria dismissed the respondents' claims and made orders for costs, finding that the dispute was justiciable, the voters at the State Conference were party members, the conferences were valid, and res judicata did not apply. The court's decision was based on the interpretation of the party's constitution and rules, as well as the relevant sections of the Electoral Act 2002.

Orders