Diana Asmar & Ors (according to the attached Schedule) v The Honourable Anthony Albanese & Ors (according to the attached Schedule) [No 2]
[2022] VSCA 26
•3 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0125
| DIANA ASMAR & ORS (according to the attached Schedule) | Appellants |
| v | |
| The Honourable ANTHONY ALBANESE & ORS (according to the attached Schedule) [No 2] | Respondents |
---
| JUDGES: | T FORREST, WHELAN JJA and FORBES AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 3 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 26 |
| JUDGMENT APPEALED FROM: | [2021] VSC 672 (Ginnane J) |
---
PRACTICE AND PROCEDURE – Costs – Costs of application for leave to appeal and appeal – Leave granted but appeal dismissed – Applicant/appellants successful on a significant issue – Costs to be apportioned on an issues basis – Applicant/appellants to pay 75% of respondents’ costs.
---
| APPEARANCES: | Counsel | Solicitors |
| No appearances |
T FORREST JA
WHELAN JA
FORBES AJA:
On 25 February 2022, we published reasons[1] and made orders on the application for leave to appeal and the appeal in this proceeding.
[1]Asmar v Albanese [2022] VSCA 19.
The orders made that day removed certain applicants[2] as parties, granted leave to appeal to the remaining applicants, and dismissed the appeal. An order was made directing that any submissions as to costs were to be filed within a specified period.
[2]The fourth, fifth, sixth, eleventh, and twelfth applicants.
Submissions as to costs were filed on behalf of the first, second, seventh, ninth, tenth and thirteenth appellants (‘the remaining applicant/appellants’), and from the first to ninth, eleventh, and fourteenth to twenty-fourth respondents (‘the active respondents’). No submission was filed on behalf of the tenth, twelfth and thirteenth respondents. Those respondents did not appear on the application and appeal. They had filed a written case which merely adopted the written case of the active respondents. No submission was filed on behalf of the twenty-fifth and twenty-sixth respondents, who had advised the Court that they did not intend to participate in the application and appeal. [3]
[3]The numbering of the parties is not sequential as the numbering was not changed upon earlier alterations to the parties.
The proceeding concerned the pre-selection of Australian Labor Party (‘ALP’) candidates in Victorian electorates for the forthcoming federal election. The major issues to be determined in the proceeding were:
(a) whether the Australian Labor Party, Victorian Branch was subject to the provisions of the ALP National Constitution; and
(b) whether disputes as to pre-selection were justiciable.
Other issues were also addressed, including whether ‘intervention’ by the National Executive of the ALP was valid if the Australian Labor Party, Victorian Branch was subject to the provisions of the ALP National Constitution; and whether complaints as to unlawful interference with the administration of certain trusts established under the Victorian Branch Rules were made out.
In substance, the active respondents succeeded in having the appeal dismissed because it was held that the Australian Labor Party, Victorian Branch was subject to the provisions of the ALP National Constitution. Contrary to the finding of the trial judge and the submission of the active respondents, the remaining applicant/appellants succeeded in establishing that the dispute as to the pre‑selections was justiciable, but this did not alter the outcome. The parties had mixed success on the other issues.
The remaining applicant/appellants’ submission as to costs was that the Court ought to exercise its broad discretion as to costs on an ‘issues basis’. As the applicant/appellants had succeeded on the justiciability issue, it was submitted that they should only be ordered to pay 50 per cent of the respondents’ costs. It was submitted that the issue of justiciability had occupied a significant amount of the hearing time.
The active respondents submitted that costs should follow the event in the ordinary way.
The issue of justiciability was a significant one. The issue was addressed at length in both the written cases and the oral hearing. It concerned an issue of law which has public importance. The remaining applicant/appellants succeeded on that issue, and, in our view, the usual order that costs ‘follow the event’ should be varied here so as to reflect that success.
In our opinion, the remaining applicant/appellants should pay 75 per cent of the active respondents’ costs, and otherwise there should be no order as to costs. We will make an order accordingly.
SCHEDULE OF PARTIES
| DIANA ASMAR, on behalf of herself as a member of the Victorian Branch of the Australian Labor Party and as a member of the Victoria No. 1 Branch of the Health Services Union (‘HSU’), and in a representative capacity on behalf of all individual members of the Victorian Branch of the Australian Labor Party and members of affiliated Trade Unions of the Victorian Branch of the Australian Labor Party, except for those members of the Victorian Branch of the Australian Labor Party or of affiliated unions of the Victorian Branch of the Australian Labor Party who are respondents in this proceeding | First Appellant |
| HIBA SALEM, on behalf of herself as a member of the Administrative Committee of the Victorian Branch of the Australian Labor Party and in a representative capacity on behalf of all members of the Administrative Committee of the Victorian Branch of the Australian Labor Party as at 16 June 2020, except for those members of the Administrative Committee who are respondents in this proceeding | Second Appellant |
| ********** | Third Appellant |
| ********** | Fourth Appellant |
| ********** | Fifth Appellant |
| ********** | Sixth Appellant |
| 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 Plumbing Division Victoria’), and in a representative capacity on behalf of CEPU Plumbing Division Victoria and its members | Seventh Appellant |
| ********** | Eighth Appellant |
| 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 Appellant |
| PAUL CONWAY, on behalf of himself as a member of the Party and as a member of the Victorian Branch of the Australasian Meat Industry Employees Union (‘AMIEU Victoria’), and in a representative capacity on behalf of AMIEU Victoria and its members | Tenth Appellant |
| ********** | Eleventh Appellant |
| ********** | Twelfth Appellant |
| THE UNITED FIREFIGHTERS UNION OF AUSTRALIA | Thirteenth Appellant |
| and | |
| The Honourable ANTHONY ALBANESE, in his capacity as a member of the National Executive of the Australian Labor Party | First Respondent |
| Senator TIM AYRES, in his capacity as a member of the National Executive of the Australian Labor Party | Second Respondent |
| STEVEN BAKER, in his capacity as a member of the National Executive of the Australian Labor Party | Third Respondent |
| NICK CHAMPION, in his capacity as a former member of the National Executive of the Australian Labor Party | Fourth Respondent |
| KATE DOUST, in her capacity as a member of the National Executive of the Australian Labor Party | Fifth Respondent |
| GERARD DWYER, in his capacity as a member of the National Executive of the Australian Labor Party | Sixth Respondent |
| DAVID GRAY, in his capacity as a member of the National Executive of the Australian Labor Party | Seventh Respondent |
| ROSE JACKSON, in her capacity as a member of the National Executive of the Australian Labor Party | Eighth Respondent |
| TIM JACOBSON, in his capacity as a member of the National Executive of the Australian Labor Party | Ninth Respondent |
| GRAEME KELLY, in his capacity as a member of the National Executive of the Australian Labor Party | Tenth Respondent |
| Senator SUE LINES, in her capacity as a member of the National Executive of the Australian Labor Party | Eleventh Respondent |
| TARA MORIARTY, in her capacity as a member of the National Executive of the Australian Labor Party | Twelfth Respondent |
| BOB NANVA, in his capacity as a member of the National Executive of the Australian Labor Party | Thirteenth Respondent |
| MICHAEL O’CONNOR, in his capacity as a member of the National Executive of the Australian Labor Party | Fourteenth Respondent |
| MICHAEL RAVBAR, in his capacity as a member of the National Executive of the Australian Labor Party | Fifteenth Respondent |
| AMANDA RISHWORTH, in her capacity as a member of the National Executive of the Australian Labor Party | Sixteenth Respondent |
| WENDY STREETS, in her capacity as a member of the National Executive of the Australian Labor Party | Seventeenth Respondent |
| 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 rules 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules | Eighteenth Respondent |
| Senator RAFF CICCONE, in his capacity as a member of the National Executive of the Australian Labor Party | Nineteenth Respondent |
| 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 rules 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules | Twentieth Respondent |
| 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 Respondent |
| ********** | Twenty-Second Respondent |
| 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 Respondent |
| 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 Respondent |
| JAMES McWHINNEY, in his capacity as Trustee under rules 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules | Twenty-Fifth Respondent |
| LABOR SERVICES & HOLDINGS PTY LTD, in its capacity as Trustee under rule 21.3 of the Australian Labor Party Victorian Branch Rules | Twenty-Sixth Respondent |
2