Mulholland v Funnell

[2016] VSCA 290

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0056

JOHN MULHOLLAND	Applicant
v
PAUL FUNNELL	Respondent

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JUDGES:	WARREN CJ, TATE and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2016
DATE OF JUDGMENT:	28 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 290
JUDGMENT APPEALED FROM:	[2015] VSC 108 (Macaulay J)

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CLUBS AND ASSOCIATIONS – Democratic Labor Party (‘DLP’) – Appeal from grant of summary judgment – Whether Federal and State Conferences of DLP validly convened – Whether election of office-bearers and resolutions passed at conferences were void – Whether judge erred in having regard to findings in matters in other jurisdictions – Whether judge adopted a prejudicial approach or failed to give adequate attention to the evidence – Absence of proper contradictor – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Respondent	Mr D J Hanna

WARREN CJ
TATE JA
WHELAN JA:

TABLE OF CONTENTS

Introduction and Summary…………………………………………………………………....2

The judge's reasons………………………………………………………………………….….3

Grounds of appeal…………………………………………………………………………….13

Earlier litigation………………………………………………………………………………15

Mulholland's Commonwealth proceedings……………………………………………………..15

(i)         The AAT proceeding………………….…………………………………….…...15

(ii)        Appeal to the Full Federal Court ……………………………………………….18

(iii)      Judicial review of decision of AEC ……………………………………………...18

Mulholland's Victorian proceedings……………………………………………………………23

(i)        Proceedings against the VEC and Kevin Butler………………………………..23

(ii)       The Robson J proceeding………………………………………………………..26

(iii)      Proceedings against Funnell…………………………………………………....30

Was the judge's reliance on the AAT's findings inappropriate?........................................31

Was there an absence of a proper contradictor or other necessary parties?....................34

Were the judge's observations prejudicial and was there a failure to attend to the

evidence?....................................................................................................................................36

Conclusion on the application for leave to appeal……………………………………......40

Introduction and Summary

1. This application for leave to appeal arises from a fundamental dispute over the composition of the federal and Victorian Branches of the Democratic Labour Party[1] (‘DLP’).  In 1984, the Victorian Branch of the DLP, being the only State Branch then in existence, was registered at the federal level.[2] Rule 148 of the Constitution and Rules of the DLP (‘the DLP Rules’) provided that until any other State Branches were reconstituted, decisions of the Victorian State Conference and State Executive stood as decisions of the Federal Conference and Federal Executive. On 1 July 2007, John Mulholland (‘Mulholland’), the applicant for leave to appeal, was elected Secretary of the Victorian Branch of the DLP at a Victorian State Conference. He simultaneously became the DLP Federal Secretary.

   [1]The spelling of ‘Labour’ is a matter of controversy.  It was changed to ‘Labour’ from ‘Labor’ in Victoria on 9 October 2014 by a decision of the Victorian Electoral Commission upon an application by Mr Michael Murphy.

   [2]At one point in time the DLP had five senators in the Australian Parliament with State Branches across the country.  In the mid-1970’s all the State Branches except Victoria ceased to exist.

1. On 26 July 2008, the New South Wales Branch of the DLP reconstituted itself.  The establishment of other State Branches, including Branches in Western Australia, Queensland and South Australia, is a matter disputed by Mulholland.  On 28 November 2009, a Federal…