Mulholland v Funnell
[2016] VSCA 290
•28 November 2016
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
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.
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 Conference convened by a purported majority of the State Branches took place in Brisbane (‘the 2009 Federal Conference’), at which conference there was an election of what was described as the ‘Federal Executive’. That group continued to hold a number of Federal Conferences over the following years. Paul Funnell (‘Funnell’), the respondent to this application for leave to appeal, was elected Federal President of the Federal Executive in 2012 and was re-elected in 2013.
On 19 July 2014, the Federal Executive, including Funnell as the Federal President, convened a meeting of 27 Victorian members of the DLP in Scoresby, Victoria (‘the Scoresby meeting’). The Scoresby meeting was convened to resolve an issue of confidence in the Victorian State Executive relying upon r 130 of the DLP Rules which provides that the party’s Federal Executive may in certain circumstances intervene in the affairs of a State Branch by convening a State Conference to resolve an issue of confidence in the State Executive.
The outcome of the Scoresby meeting was that Mulholland, who had been Victorian State Secretary before the meeting, was replaced as were the other office-bearers of the then Victorian State Executive.
Mulholland brought proceedings in the Trial Division of the Supreme Court seeking various declarations. At the heart of his complaint was the claim that the Scoresby meeting was not a validly convened State Conference and that none of its purported resolutions was validly made. Central to the determination of that issue was the validity of the 2009 Federal Conference and subsequent Federal Conferences. Macaulay J upheld a summary judgment application brought by Funnell against Mulholland primarily on the basis that Mulholland’s claim had no real prospect of success.[3]
[3]Mulholland v Funnell [No 2] [2015] VSC 108 (‘Reasons’).
Mulholland now seeks leave to appeal from the decision of Macaulay J. Pursuant to s 14C of the Supreme Court Act 1986, leave to appeal requires the Court to be satisfied that there is a real prospect of success on the appeal.[4]
[4]See Kennedy v Shire of Campaspe [2015] VSCA 47 [14].
For the reasons that follow, we would refuse leave to appeal.
The judge’s reasons
In the Supreme Court, Mulholland sought a number of declarations to the effect that he was, and had been, since 1 July 2007, the Federal Secretary of the DLP; that the persons he named in his pleadings were the true members of the DLP Federal Executive; that Funnell did not have any authority to represent that he was a member of the Federal Executive or that he was even ever a DLP member; that the Scoresby meeting was not a valid State Conference as it was invalidly convened and chaired by Funnell purporting to be the Federal President of the DLP; and that neither the Scoresby meeting’s purported elections of office-bearers nor its resolutions was valid. The effect of the declarations Mulholland sought was that the true current Victorian Executive would be those persons (including Mulholland) whom he argued comprised the Executive immediately before the Scoresby meeting.
Mulholland supported the declarations he sought primarily on the basis that the Scoresby meeting was not a legitimate Victorian State Conference because the 2009 Federal Conference had not been validly convened. Equally, he argued that there could have been no legitimate Federal conference in 2011, 2012 or 2013. Accordingly, Funnell could not have been elected President of the Federal Executive in 2012 or 2013, nor could the Federal Executive of which he purported to be President have existed at all in May 2014, with the consequence that it could not have legitimately convened the Scoresby meeting at which the then Victorian office-bearers’ positions were vacated and new Victorian office-bearers were elected.
At the outset of the trial of the proceeding, Macaulay J raised a number of concerns with Mulholland, including whether the correct or necessary parties were joined to the proceeding. Mulholland applied for an adjournment for the purpose of giving ‘opportunity to other parties who may be interested to be joined in a voluntary capacity’.[5] Funnell opposed that application. Funnell sought to make an application for summary judgment. The judge permitted Funnell to advance his summary judgment application at the same time as opposing the adjournment.
[5]Reasons [8].
Funnell supported his summary judgment application by relying upon two sources of power: first, the power of the court to give judgment in favour of a defendant who has filed an appearance at any time provided he has a good defence on the merits, under r 23.03 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Supreme Court Rules’), or, alternatively, under s 62 of the Civil Procedure Act 2010, which enables a defendant in a civil proceeding to apply for summary judgment where the plaintiff’s claim has no real prospect of success.[6]
[6]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.
The judge began by outlining the history of the DLP. He noted, as mentioned above,[7] that, from the mid-1970s to 2008, the Victorian Branch was the only Branch of the DLP in existence and during that time the Victorian State Conference and State Executive operated simultaneously as the Federal Conference and Executive.
[7]See [1]–[2] above.
The judge considered earlier proceedings that had been brought. He noted that on 12 December 2011 the Commonwealth Administrative Appeals Tribunal (‘the AAT’), in Mulholland v Australian Electoral Commission[8] (‘the AAT proceeding’), had made the significant finding that, as well as New South Wales, other State Branches were also reconstituted in 2008 and 2009, namely, Queensland and Western Australia by no later than 8 October 2008, and South Australia during or shortly after July 2009. It also found that the 2009 Federal Conference had been validly convened, having been requested by a majority of the State Branches of the DLP prior to 28 November 2009.
[8][2011] AATA 879.
He also noted that the Court of Appeal upheld a challenge by Mulholland to a decision of the Victorian Electoral Commission (‘the VEC’) in September 2008 registering Mark Farrell (‘Farrell’) as the Secretary of the Victorian State Branch of the DLP (‘the Court of Appeal proceeding’)[9] but made orders declaring that its decision was without prejudice to the validity of subsequent decisions with respect to the registered officers of the Victorian State Branch of the DLP. He described the later proceeding which was brought against Mulholland by Kevin Butler (‘Butler’) which was heard by Robson J (‘the Robson J proceeding’) and which led to a declaration of the composition of the Victorian Executive.[10] The judge said:[11]
[9]Mulholland v Victorian Electoral Commission (2012) 36 VR 167. See [58]–[60] below.
[10]Butler v Mulholland [No 2] [2013] VSC 662. This is described below at [61]–[73].
[11]Reasons [18]–[22] (citations omitted).
On 13 September 2008 the Victorian Branch held its State conference. At that conference one Mark Farrell was elected Secretary of the party, defeating Mr Mulholland. Following that election, Mr Farrell was registered by the Victorian Electoral Commission as registered officer of the party pursuant to a provision of the Electoral Act 2002 (although that registration was later set aside by the Victorian Court of Appeal as explained below).
Additionally, at that conference Mr Kevin Butler was elected against the incumbent President, Mr Patrick Keelan; Mr Michael Casanova defeated Mr Patrick Crea for the position of Assistant Secretary; Mr David Bennett defeated Mr Capello for the position of Treasurer; Mr John Madigan defeated Mr Gerard Flood for the position of First Vice President (by a majority of one vote); and Ms Frances Murphy was re-elected unopposed as Second Vice President.
Because of an ongoing dispute about the legitimacy of the 13 September 2008 elections generally, thereafter two rival groups claimed to be the true Victorian State Executive. One was led by Mr Mulholland and the other was led by Mr Butler. So, on 9 May 2009 the two ‘executives’ convened rival State Conferences.
… on 14 June 2012, in Mulholland v Victorian Electoral Commissioner the Victorian Court of Appeal set aside the Commission’s decision to register Mr Farrell as the registered officer of the DLP. It did so without prejudice to the validity of subsequent decisions of the Commission to appoint Mr Michael Casanova as registered officer on 3 August 2009 (and subsequent appointments thereafter). The Court of Appeal’s decision was a consequence of its conclusion that the election of Mr Farrell as Secretary of the Victorian Branch on 13 September 2008 (replacing Mr Mulholland) was invalid because two of the delegates who had voted were not qualified to do so and the vote was only carried by a majority of one.
In another proceeding commenced by Mr Mulholland following the 2008 Victorian State conference, Mr Mulholland sought declarations as to the composition of the State Executive following that conference and the rival 9 May 2009 conferences. In his judgment in Butler v Mulholland [No 2] published 2 December 2013, Robson J made declarations as to the composition of the State Executive following each conference as depicted in the fourth column of the following table. Mr Mulholland’s contended composition of the executive at the two points in time is represented in the second and third columns:
Office
Post-September 2008
(Mulholland)
Post-9 May 2009
(Mulholland)
Robson J Orders
(after each date)
President
P Keelan
P Keelan
K Butler
First Vice President
Vacant
G Flood
Vacant
Second Vice President
F Murphy
F Murphy
F Murphy
Secretary
J Mulholland
J Mulholland
J Mulholland
Assistant Secretary
P Crea
P Crea
M Casanova
Acting Treasurer
P Crea
D Bennett
D Bennett
The judge also considered the composition of the Federal Executive. He began by noting that Mulholland accepted the reconstitution of the New South Wales Branch on 26 July 2008, with Michael O’Donohue as Secretary. However, Mulholland denied the reconstitution of any other State Branch since mid-2009. That is, Mulholland refused to accept the findings of the AAT. Instead, he argued that the Federal Executive, by virtue of rr 148[12] and 37[13] of the DLP Rules, was composed of the Victorian Executive and the Secretary of the New South Wales Branch as an ex officio member. The judge noted that on 17 July 2009 Patrick Keelan (‘Keelan’), Patrick Crea (‘Crea’), Frances Murphy (‘Frances Murphy’) and Mulholland, purporting to be the Federal Executive of the DLP, met and resolved to receive a report from Mulholland. That report concluded:
That under the Constitution and Rules of the DLP, the Federal Executive office-bearers are those elected as Victorian Executive office-bearers at the last Victorian State conference before any State Branch outside of Victoria was reconstituted, being the 2007 State conference, at which the following office-bearers were elected — Patrick Keelan (President), Frances Murphy (Second Vice President), John Mulholland (Secretary) and Pat Crea (Assistant Secretary).
[12]See [1] above.
[13]Rule 37 of the DLP Rules provides that the Federal Executive:
shall comprise the officers elected by the previous Federal Conference, each State Secretary, or a proxy from the State Executive, and the Democratic Labor Party leader and deputy leader in each House of the Federal Parliament.
The judge emphasised that the conclusion of that report did not reflect the composition of the Victorian Executive declared in the Robson J proceeding.
He also noted that several Federal Conferences had been convened since the 2009 Federal Conference:
After the Federal Conference of 28 November 2009 and the subsequent conference on 23 July 2011 …, further Federal Conferences were held on 28 July 2012 (Corio), 20-21 April 2013 (Hobart) and 6 December 2014 (Sydney). Mr Funnell was elected Federal President at the Corio meeting in 2012, and re-elected at the Hobart meeting in April 2013. He was not re-elected at the December meeting in 2014. In his place, Rosemary Lorrimar was elected the new Federal President.[14]
[14]Reasons [29].
The judge determined to refuse the adjournment, noting that Mulholland was ‘no stranger to litigation’,[15] and referred to numerous instances of earlier litigation in which Mulholland was a party.[16] The judge also pointed to Mulholland’s ambivalence about seeking an adjournment. After counsel for Funnell had completed his submissions opposing the adjournment application, and applied for summary judgment, Mulholland had enquired whether he could withdraw his adjournment application, and if so, whether that would preclude the summary judgment. The judge observed that it was unclear whether, after he had indicated that he would determine the summary application in any event, Mulholland persisted in seeking an adjournment. The judge found that Mulholland had no intention to apply to join any particular individual to the proceeding; he did not propose any persons whom he might invite to consent to being joined and nor did he act upon the judge’s suggestion, where the potential persons whose interests are affected by the proceeding are numerous, to appoint a representative under O 18 of the Supreme Court Rules. The judge took the view that an adjournment would likely result in further delay and wasted costs, with no benefit.
[15]Ibid [8].
[16]See, for example, the proceedings identified in the appendix to this judgment.
Furthermore, in refusing the adjournment, the judge accepted that all members of the DLP, including Funnell, were volunteers and that resisting the multiple proceedings brought by Mulholland was time-consuming and oppressive on those members of the DLP whom Mulholland opposed. He also took into account that two other proceedings brought by Mulholland were pending in the Victorian Civil and Administrative Tribunal (‘the VCAT proceedings’). The VCAT proceedings were considered likely to raise the same or similar questions of fact as those raised in the proceeding before the judge, namely, whether the Scoresby meeting was validly convened which in turn was based upon the challenge to the validity of the 2009 Federal Conference.
The judge supported his conclusion that the proceeding brought by Mulholland had no real prospect of success on three grounds.
First, the judge found that neither Mulholland’s pleadings nor his supporting evidence put in issue or substantiated the fundamental proposition upon which his case relied, namely, that the 2009 Federal Conference was invalid. No specific defect was alleged with respect to the validity of the 2009 Federal Conference. Neither Mulholland’s pleadings nor his evidence addressed or challenged the existence of other State Branches in 2009. The onus of disproving the existence of other State Branches lay on Mulholland. The judge stated that the paucity in Mulholland’s proposed evidence was particularly pronounced when compared to the evidence upon which the AAT relied for its conclusions, that evidence including, for example, returns filed with the Commonwealth Electoral Commission on behalf of States other than Victoria and New South Wales; contemporaneous emails and correspondence from Mulholland appearing to recognise the existence of those other State Branches; and correspondence by office-bearers of branches in Queensland, Western Australia and South Australia with the Commonwealth Electoral Commission. The judge considered that, in the proceeding before him, it was incumbent upon Mulholland to acknowledge and challenge the AAT’s contrary findings of fact. Further, the judge noted that, when the inadequacies in the pleadings and evidence were pointed out to Mulholland, he did not seek to make any amendments to his pleadings or improve upon his evidence.
Secondly, he considered that, given the findings of the AAT on the existence of other State Branches and the validity of the 2009 Federal Conference, made after hearing full evidence on the subject, there was no reason to suppose that Mulholland would succeed on those essential questions of fact. In particular, the AAT had found that the request for the 2009 Federal Conference, having been made by a majority of State branches, was in accordance with r 34 of the DLP Rules which provided as follows:
The supreme governing body of the Democratic Labor Party (DLP) of Australia shall be the Federal Conference, meeting at the earliest practicable opportunity in the period between each federal election or as otherwise required by the Federal Executive or requested by a majority of the State Branches. The Federal Executive may convene a Federal Conference by way of correspondence or by postal vote in the same manner applicable to a State Conference. Any questions resolved in this manner shall have the full effect of Federal Conference decisions.[17]
[17]Emphasis added.
The AAT had also determined that Anthony Zegenhagen (‘Zegenhagen’) was validly registered as the federal registered officer of the DLP following the 2009 Federal Conference for the purposes of the Commonwealth Electoral Act 1918 (Cth) (‘the Cth Act’). Further, it found that a meeting of the Federal Conference of the DLP was held in Sydney on 23 July 2011, with respect to the decision to register Zegenhagen as the registered officer.[18]
[18]The judge queried whether the decision of the AAT gave rise to an issue estoppel, and whether the parties in the present proceeding could be said to be the privies of the parties to the AAT proceeding. Ultimately, he did not determine the issue because it had not been argued fully before him but noted that the argument faced real difficulties: Reasons [55].
The judge considered that the findings of the AAT were relevant to the issues before him. He said:
It is relevant to observe that a senior tribunal had engaged in a fact finding exercise, on much fuller evidence from both sides than is to be called in this case, and made findings of fact adverse to Mr Mullholland on the central issue in this case.[19]
[19]Reasons [57].
He expressly acknowledged, however, that neither he, nor the parties, may be strictly bound by the AAT’s findings. He said:
Even if this Court is not bound by those findings, and even if the parties themselves are not bound by them, the tribunal’s findings, and its manifestly sound reasoning for them, are a very powerful practical indicator of any prospect that Mulholland has of successfully persuading this court to a different factual conclusion. That is a matter which, as a matter of logic and common sense, I can and should take into account in evaluating whether there is a real prospect of success in this case.[20]
[20]Ibid [58].
In this context, Macaulay J also observed that the Court was required to give effect to the overarching purpose of the Civil Procedure Act, namely, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[21] He referred to the remarks of Giles CJ in State Bank of New South Wales Ltd v Alexander Stenhouse Ltd[22] with respect to the potential abuse of process where a party seeks to re-litigate an issue already decided:
[21]Civil Procedure Act, ss 7, 8.
[22](1997) Aust Torts Reports 81–423.
…an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are
(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings;
all part of —
(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.[23]
[23]Reasons [59].
The judge considered that each of the factors identified by Giles CJ as the basis for an abuse of process
… highlight[s] the injustice, inefficiency and costliness that is being perpetrated by Mr Mulholland’s pursuit of an issue that occurred over 5 years ago, which he is continuing to pursue in another forum in any event, and on which he has previously failed after a full investigation by a tribunal of fact.[24]
[24]Ibid [60].
Thirdly, the judge held that the failure to join a proper contradictor to the proceeding was fatal to Mulholland’s case. The judge undertook a detailed consideration of the principles applicable to declaratory orders. He set out the sources of the Supreme Court’s power to grant declaratory relief, referring to the inherent power, discussed in Ainsworth v Criminal Justice Commission,[25] and the statutory power under s 36 of the Supreme Court Act 1986. The judge observed that it was an established part of the considerations governing the exercise of judicial discretion in favour of making a declaration for there to be a proper contradictor with an interest in opposing the declaration sought. He referred to a number of common law authorities[26] and commentary[27] in support of that proposition. He characterised the significance of having a person joined as a proper contradictor where declaratory relief was sought as follows:
First, the person seeking a declaration needs to secure a proper contradictor, to ensure that the person or persons against whom the declaration is sought are brought before the Court. This enables the proper contradictor to be heard on the matter and to be bound by the declaration, as the determined-controversy is a res judicata as between the parties. Secondly, judgments in declaratory proceedings only bind the parties to the judgment. Thirdly, among the several considerations to weigh in the balance in exercising the discretion to grant or refuse a declaration, are the declaration’s utility or practical purpose and the presence or absence of arguments opposing a plaintiff’s interest.[28]
[25](1992) 175 CLR 564, 581–2.
[26]Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, 448 (Lord Dunedin); Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437-8 (Gibbs J); London Passenger Transport Board v Moscrop [1942] AC 332, 345 (Viscount Maugham); ACCC v MSY Technology (2012) 201 FCR 378, 382–3 [14]–[16], Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119, 133–4.
[27]Lord Woolf and Jeremy Woolf, Zamir & Woolf: The Declaratory Judgment (Sweet & Maxwell, 4th ed, 2011) 3 [1-07], 99–100 [3–129], 260 [6–02], 267 [6–16]; P W Young, Declaratory Orders (Butterworths, 2nd ed, 1984) 16, 18; Justice French, ‘Declarations — Homer Simpson’s Remedy — Is There Anything They Cannot Do?’ (University of Western Australia, Faculty of Law, Perspectives on Declaratory Relief, 30 November 2007) 2–3.
[28]Reasons [79].
Applying those principles to the present case, the judge pointed to two problems with the contradictor proposed by Mulholland: first, the defendant Funnell was no longer a member of the DLP or its Federal President and his only interest in the matter was to refute the allegations that he had never been a DLP member or its Federal President. Secondly, no proper contradictor had been secured ‘in the absence of at least the current members of the Federal Executive if not also appointed representatives of those State Branches whose existence Mr Mulholland denies’.[29] Thus, persons whose interests would potentially be affected by any declaration would not have the opportunity to be heard and any declaratory relief provided would be rendered of no utility.
[29]Ibid [82].
The judge also held that there was no basis, under s 64 of the Civil Procedure Act, to refrain from entering summary judgment despite being satisfied of no real prospect of the claim succeeding. The dispute was not of such a nature that only a full hearing on the merits was appropriate. Moreover, it was not against the interests of justice to do so, given the judge’s view that Mulholland should not be allowed an adjournment.
Grounds of appeal
Mulholland relies on 22 proposed grounds of appeal. They give rise to the following three issues:
(1) Was the judge’s reliance on the AAT’s findings inappropriate? Grounds 7,[30] 11,[31] 15,[32] 16,[33] 20.[34]
[30]Ground 7: His Honour gave unwarranted and/or undue weight to the factual findings made by the AAT (at [16]–[17] and [52]–[62]).
[31]Ground 11: His Honour wrongly considered answers to questions posed by the AAT to be determinative of organisational matters internal to the DLP when what was being decided was whether the Australian Electoral Commission in accordance with s l34 of the Commonwealth Electoral Act 1918, had made a correct decision to change the DLP's registered officer (at [26]–[28]).
[32]Ground 15: His Honour relied for a supposedly definite and certain summary judgment upon the indefinite and uncertain authority of findings in AAT proceedings of doubtful relevance to the present proceedings or that were distinguishable (at [52]–[58]).
[33]Ground 16: His Honour erred in treating the plaintiff’s involvement in earlier litigation with the Victorian and Australian Electoral Commissions as having any bearing upon a just, efficient, timely and cost-efficient resolution of the present dispute (at [59]–[61]).
[34]Ground 20: His Honour failed to properly consider the state of the pleadings and evidence before him, the applicability of AAT findings in ostensibly unrelated prior proceedings and the effective injunction imposed by s 64 of the Civil Procedure Act 2010 against premature termination of proceedings by summary means [85]–[87]).
(2) Was there an absence of a proper contradictor or other necessary parties?
Grounds 2,[35] 17,[36] 18,[37] 19.[38]
[35]Ground 2: His Honour misdirected himself in relation to whether the proper person(s) was/were joined to the proceedings, and to whether, in consequence, the orders or declarations sought would have no utility (at [5]–[7]).
[36]Ground 17: His Honour misapplied the general rule relating to the securing of a proper contradictor, by wrongly deciding, first, that the defendant was not a ‘proper contradictor’ (at [63]–[77] and [78]–[79]).
[37]Ground 18: In the alternative to ground (17), his Honour failed to distinguish the case, where the general rule applied, from the present case where the context differs (at [63]–[77] and [78]‑[79]).
[38]Ground 19: His Honour failed to consider the organisational context of the dispute between the two litigants involved, which led to erroneous conclusions as to potential prejudice to other parties not joined, as to the futility of declarations sought by the plaintiff, as to whether the defendant was a proper contradictor and as to whether the case had any real prospects of success (at [80]–[84]).
(3) Were the judge’s observations prejudicial and was there a failure to attend to the evidence?
Grounds 1,[39] 3,[40] 4,[41] 5,[42] 6,[43] 8,[44] 9,[45] 10,[46] 12,[47] 13,[48] 14,[49] 21,[50] and 22.[51]
[39]Ground 1: His Honour identified the context from which the proceedings arose in a manner prejudicial to the plaintiff (at paragraphs [1]–[4] of his Honour's judgment).
[40]Ground 3: His Honour’s reference to the plaintiff ‘who appeared for himself but is no stranger to litigation’, read with his Honour’s reference to the ‘adjournment’ application and the detailed footnote references to that litigation, was prejudicial to the plaintiff (at [8]).
[41]Ground 4: His Honour erred in failing to determine that the defendant’s application for summary judgment was subject to an estoppel arising from an earlier refused application (at [8]).
[42]Ground 5: His Honour fused the unrelated issues of the defendant’s summary judgment application and the assumed ‘adjournment’ application from the plaintiff, which his Honour should have realised was not an application, but an out-of-his-depth attempt by the plaintiff to assist his Honour with his Honour’s concerns to have other persons joined to the case where the plaintiff did not understand the procedural need (at [8]–[11]; see also sub‑paragraph (21) herein).
[43]Ground 6: His Honour gave cursory and inadequate attention to much, if not most, of the evidence that was before him (at [12]).
[44]Ground 8: His Honour made observations prejudicial to the plaintiff as to who commenced the proceedings in Butler v Mulholland [No 2] [2013] VSC 662 (2 December 2013) and as to the principal outcome of the proceedings (at [22]).
[45]Ground 9: His Honour misread the plaintiff’s evidence in relation to the makeup of the DLP Federal Executive and wrongly concluded that the claimed composition of the Federal Executive in July 2009 did not accurately reflect the composition of the Victorian Executive later declared by Robson J in Butler v Mulholland [No 2] [2013] VSC 662 (at [23]–[25]).
[46]Ground 10: His Honour made a prejudicial finding that a resolution of a DLP Federal Executive meeting under the DLP Rules ‘was no more than a self-serving pronouncement’ (at [25]).
[47]Ground 12: His Honour took no proper account of the non-compliance with the DLP Rules that led to the bogus election of bogus Federal Executive office-bearers from November 2009 until December 2014 inclusive (at [29]–[30] and [40]–[41]).
[48]Ground 13: His Honour erred in determining that there was no pleaded and/or evidentiary support for the plaintiff’s fundamental propositions and claims (at [44]–[47]).
[49]Ground 14: His Honour misdirected himself as to the state of the pleadings and evidence and made arbitrary and/or prejudicial observations as to the plaintiff’s case being ‘an exercise in avoidance’ and having ‘no real prospect of establishing the facts to persuade a court to make the declarations he seeks’ (at [48]–[51] and [59]–[61]).
[50]Ground 21: In the context of considering the plaintiff’s assumed adjournment application, his Honour’s observations of the plaintiff were prejudicial (at [88]–[91]).
[51]Ground 22: His Honour erred in misrepresenting the plaintiff’s contention as to the quorum required under the DLP Rules, and in his consequent prejudicial reference to ‘a red-herring’ (at [96]–[98]).
Before examining the issues arising from the proposed grounds of appeal it is necessary to say a little more about the history of this proceeding and the proceedings brought within the Commonwealth hierarchy (including the AAT proceeding and a separate Federal Court proceeding for judicial review) and those brought within the Supreme Court (including the Robson J proceeding).
Earlier litigation
Mulholland’s Commonwealth proceedings
Following the 2009 Federal Conference, a delegate of the Australian Electoral Commission (‘the AEC’), on 8 January 2010, changed the AEC’s register pursuant to s 134(3) of the Cth Act by substituting Zegenhagen in place of Mulholland as the registered officer of the Federal Branch of the DLP (‘the delegate’s decision’).
(i) The AAT proceeding
Mulholland applied for internal review of the delegate’s decision pursuant to s 141(2) of the Cth Act. The AEC affirmed the delegate’s decision on 28 May 2010 (‘the AEC decision’). Mulholland sought administrative review of the AEC decision. On 12 December 2011, in the AAT proceeding, the AAT (constituted by Downes J as President, Deputy President Constance, and Senior Member Handley) affirmed the AEC decision.[52]
[52]The AAT proceeding [2011] AATA 879. See [21]–[24] above.
The AAT identified five questions upon which the AAT proceeding turned:
(1) Had a branch or branches of the DLP been reconstituted in a State or States (other than Victoria) prior to 28 November 2009, and if so, when?
(2) Was a Federal Conference of the DLP requested by a majority of the State Branches of the DLP prior to 28 November 2009?
(3) Was a properly constituted meeting of the Federal Conference of the DLP held in Brisbane on 28 November 2009?
(4) If so, was Mr Zegenhagen validly appointed to be the registered officer of the DLP for the purposes of the [Cth] Act?
(5) Was a meeting of the Federal Conference of the DLP held in Sydney on 23 July 2011 and if so, was any decision made relevant to the registration of Mr Zegenhagen as the registered officer of the party for the purposes of the [Cth] Act?[53]
[53]The AAT proceeding [2011] AATA 879 [26].
The AAT answered all five questions in the affirmative.
With respect to the first question, the AAT found that, contrary to Mulholland’s assertions, four other State Branches apart from Victoria had been reconstituted before 28 November 2009: New South Wales on 26 July 2008, Queensland and Western Australia no later than 8 October 2008, and South Australia during or shortly after June 2009.[54] As to the second question, the AAT was satisfied that the Federal Conference was requested by the State Branches of Queensland, New South Wales, Victoria, and Western Australia.[55] Thus, the 2009 Federal Conference complied with r 34 of the DLP Rules, that the meeting be requested by a majority of the State Branches.[56] In making the determination that the Victorian State Branch had participated in the calling of the Federal Conference,[57] it is implicit that the AAT accepted that Farrell was the Secretary of the Victorian State Branch at the relevant time. At that stage of the proceedings, Williams J had affirmed the VEC December decision to register Farrell as the Secretary of the Victorian State Branch of the DLP.[58]
[54]Ibid [38].
[55]Ibid [42].
[56]See [22] above.
[57]The AAT proceeding [2011] AATA 879 [42].
[58]Mulholland v Victorian Electoral Commission (2011) 247 FLR 230 (Victorian Supreme Court). See [55]–[57] below.
Relevantly, however, the AAT also determined that, had Farrell not been the Secretary of the Victorian State Branch of the DLP at the relevant time, the disposition of the proceeding before it would have been unaltered. The AAT stated:
Even if we accepted Mr Mulholland’s argument that the Victorian branch which participated in this process was ‘bogus’ (which we do not) the request would still have been made by three out of the four State branches.[59]
[59]The AAT proceeding [2011] AATA 879 [43].
This is a significant finding for the current proceeding given that, as noted, the Court of Appeal allowed the appeal against Williams J to the effect that Farrell ought not to have been registered as the Secretary of the Victorian State Branch of the DLP at the relevant time.[60]
[60]The Court of Appeal proceeding (2012) 36 VR 167.
With respect to the third question, the AAT found that the 2009 Federal Conference was validly constituted with respect to the requirements in the DLP Rules, in particular rr 34 and 65, that the meeting and notice of the meeting be given to the State Branches as near as practicable to four months before the meeting. In response to the fourth question, the AAT found that, at the 2009 Federal Conference, Zegenhagen was validly appointed the registered officer.[61] Fifthly, the AAT found that, at a meeting of the Federal Conference held in Sydney on 23 July 2011, Zegenhagen was elected Federal Secretary of the DLP unopposed. There was no motion moved in relation to his position as registered officer of the DLP. On that basis, the AAT concluded that the Federal Conference accepted that, following his appointment at the 2009 Federal Conference, Zegenhagen had continued in this role.[62]
[61]The AAT proceeding [2011] AATA 879 [71].
[62]Ibid [76].
(ii) Appeal to the Full Federal Court
Mulholland appealed the AAT’s decision to the Full Federal Court and sought to adduce fresh evidence (‘the Full Federal Court proceeding’).[63] On 19 September 2012, the Full Federal Court refused Mulholland leave to adduce fresh evidence and dismissed the appeal. Cowdroy J, with whom Jacobson and Flick JJ agreed, upheld the AAT’s construction of the DLP Rules and found that the State Branches were authorised to call the 2009 Federal Conference, no prior permission of the Federal Executive was required, proper notice was given, and office-bearers were duly elected.[64] An application for special leave to appeal to the High Court was refused on 10 April 2013.[65]
[63]Mulholland v Australian Electoral Commission [2012] FCAFC 136.
[64]Ibid [104].
[65]Mulholland v Australian Electoral Commission [2013] HCASL 43 [6].
(iii) Judicial review of decision of AEC
Having exhausted the available avenues of appeal with respect to the AEC decision, Mulholland commenced an application for judicial review of the delegate’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) and s 39B of the Judiciary Act 1903 (Cth). On 26 February 2014, Murphy J ruled against Mulholland (‘the Murphy J proceeding’).[66] Murphy J concluded that Mulholland should not be granted an extension of time in which to bring the application under the ADJR Act as the application lacked merit. He summarily dismissed the application made under the Judiciary Act. He held that the delegate’s decision was not operative having been superseded by the AEC decision and emphasised that Mulholland had ventilated his challenge to the validity of the 2009 Federal Conference before the AEC as well as before the AAT and the Full Federal Court.[67]
[66]Mulholland v Australian Electoral Commission (2014) 219 FCR 1.
[67]Ibid 11 [50]–[51], 12 [56]–[57].
Mulholland sought to appeal from the orders made in the Murphy J proceeding. He argued before Mortimer J that the Murphy J proceeding was interlocutory and that he therefore had a right to appeal; alternatively, he sought an extension of time in which to apply for leave to appeal. Mortimer J granted Mulholland an extension of time in which to lodge his appeal but refused his application for leave to appeal (‘the Mortimer J proceeding’).[68] Critical to that decision was her Honour’s finding that no substantial injustice to Mulholland was occasioned by refusing leave because ‘the nature of the underlying dispute sought to be agitated by Mr Mulholland in the judicial review proceedings is the same as that in earlier proceedings’.[69] The judge also gave considerable weight to the need for finality of litigation, as Mulholland was said to have taken ‘every opportunity to appear and make arguments’.[70]
[68]Mulholland v Australian Electoral Commission [2014] FCA 916.
[69]Ibid [108]. See also [93], [109].
[70]Ibid [114].
Mortimer J noted, however, that but for those discretionary considerations, Mulholland’s case was capable of raising considerations in favour of a grant of leave to appeal in two respects. First, she stated that it was arguable that the primary judge erred in determining that the delegate’s decision had been superseded by the AEC decision and was no longer operative.[71] She emphasised that because the AEC decision was a confirmation of the delegate’s decision that decision arguably remained operative.
[71]Ibid [58]–[73].
Secondly, she held that the primary judge’s decision to dismiss summarily Mulholland’s application under the Judiciary Act was attended by doubt.[72] She noted that Murphy J relied upon the AAT’s finding that all four State Branches of the DLP had requested that the 2009 Federal Conference be convened, and all four State Branches had voted at the ballot so that even had the Victorian State Branch (or, as Mulholland would put it, those purporting to be the Victorian State Branch) not participated in the request, it would have made no difference to the election of Zegenhagen because a majority of branches were in favour. This would meet the requirement under r 34 of the DLP Rules. She also noted that Murphy J rejected Mulholland’s submission that the finding of the Court of Appeal that some people were ‘ineligible’ to vote in Victorian Branch elections within the meaning of cl 4 of the Rules[73] was relevant to the membership status of DLP members who had attended, and voted in, the 2009 Federal Conference. Mortimer J considered that there was some doubt about Murphy J’s conclusion that Mulholland’s evidence was so hopeless at establishing the contentions necessary for his case as to warrant a summary dismissal.
[72]Ibid [53], [75]–[91].
[73]The Court of Appeal proceeding is described further at [58]–[60] below.
Her Honour observed that Mulholland’s evidence was that 24 people voted (directly or by proxy) to elect Zegenhagen at the 2009 Federal Conference. Mulholland had submitted that 12 of those were not DLP members within the meaning of the Rules given the construction of ‘eligible’ members adopted by the Court of Appeal, namely, that a person was required to be eligible to vote in Commonwealth elections by virtue of correspondence between their residential address and the address recorded on the Commonwealth electoral roll. Mulholland had also submitted that 12 of the people who voted were ineligible because they were not financial members of the DLP. He contended that, in those circumstances, the AEC could not lawfully recognise the endorsement of Zegenhagen.
Mortimer J said:
In the present case … whether the vote at the Queensland conference to elect Mr Zegenhagen was valid by reason of the eligibility or ineligibility of those who voted for Mr Zegenhagen was not a matter about which the AEC delegate was to be satisfied before altering the register. It was a matter to be answered by reference to evidence and to the proper interpretation of the DLP constitution. There would in that sense be only one correct answer. There was a preliminary question, at least one of mixed fact and law, whether the four members of the DLP who applied under s 134(1)(b) to change the Register, by substituting Mr Zegenhagen’s name for that of Mr Mulholland, were validly authorised by the DLP to make that application. After that would come many questions, including whether s 134(1) required or contemplated that such authorisation was necessary. However for the purposes of the dismissal of Mr Mulholland’s application for judicial review, I am not satisfied, with respect, that the learned primary judge was correct to conclude that the kind of evidence Mr Mulholland sought to adduce was as proscribed as his Honour suggested.[74]
[74]The Mortimer J proceeding [2014] FCA 916 [90].
However, regardless of any doubt Mortimer J entertained, she considered those doubts to be entirely displaced by the discretionary considerations she had identified. In particular, she placed considerable significance on the fact that Mulholland was seeking to re-litigate the same dispute that had been deliberated upon by the AAT (and subsequently reviewed for errors of law by the Full Federal Court):
I accept Mr Mulholland’s submission that there may be some differences in the way he seeks to present his claims before this Court, and the way they have been presented in previous proceedings. However, it remains the fact that the underlying dispute between Mr Mulholland and the respondent — whether the November 2009 conference had been convened validly and in accordance with the DLP’s constitution so as to authorise Mr Zegenhagen’s nomination as registered officer — has already been determined by an independent merits review tribunal. In turn, the Tribunal’s decision has been reviewed judicially by this Court in relation to errors of law said to have been made by that Tribunal.[75]
[75]Ibid [100].
These comments are substantially similar to those expressed by Macaulay J. Indeed, they echo Macaulay J’s reliance on the comments of Giles CJ in State Bank of New South Wales Ltd v Alexander Stenhouse Ltd with respect to the potential abuse of process where a party seeks to re-litigate an issue already decided.[76]
[76]See [26]–[27] above.
Furthermore, Mortimer J acknowledged that Mulholland might consider that, in light of the proceedings he had brought subsequent to the AAT proceeding, he may have been able to cast his challenge to the AEC decision in a different way. However, such ruminations could not defeat the significance of bringing finality to a protracted dispute, especially where there had been previous unsuccessful challenges. She said:
I accept that the decisions of the Victorian courts have had some impact on Mr Mulholland’s thinking about other possible reasons the AEC decision might not have been lawful. It is not uncommon for later judicial decisions to cause litigants to ruminate on what might have been, had different arguments been presented in their cases.
Nevertheless, an important objective of the administration of justice is to bring some finality to parties’ disputes, especially in relation to public decision-making where there have been previous unsuccessful challenges. In the current circumstances, I consider this to be a separate, but relevant factor from the finding of no substantial injustice.[77]
[77]The Mortimer J proceeding [2014] FCA 916 [111]–[112].
She expanded upon this by observing that, taking into account the Court of Appeal’s decision, there was no objective basis for considering that Mulholland’s ‘new’ arguments would enjoy any better prospect of success in his challenge to the validity of the 2009 Federal Conference, particularly given the limited nature of the ‘new’ arguments. She affirmed that Murphy J was correct to place considerable weight on the objective of finality in litigation, especially set against the background of the considerable judicial consideration given to his previous challenges. Referring to Mulholland, Mortimer J observed:
With hindsight he may consider he should have made different arguments given the Victorian Court of Appeal and Supreme Court decisions. Even if that is his perspective, given the limited matters made relevant by s 134 of the Electoral Act, there is no objective basis to consider his ‘new’ arguments enjoy any better prospects of success. Considering those limited prospects, the interests of justice are best served by finality being imposed to quell the subject matter of this dispute about the AEC’s decision, especially given Mr Mulholland has had full review on the merits and judicial consideration of his essential complaint. The learned primary judge was correct, in my respectful opinion, to place considerable weight on this factor, as have I.[78]
[78]Ibid [114].
Again, these observations reinforce the reliance placed by Macaulay J upon those factors which guide the integrity of the system of justice, including the opportunities that had previously been taken by a party to litigate the same, or substantially the same, issue and ‘the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice’.[79]
[79]See [26] above.
Ultimately, Mortimer J arrived at what she described as a ‘firm conclusion’ that Mulholland would suffer no substantial injustice by a refusal of leave:
[T]he discretionary factors relevant to this application, and the factual circumstances in which it is brought, lead to the firm conclusion that there is no substantial injustice to Mr Mulholland and leave should be refused.[80]
Mulholland’s Victorian proceedings
[80]The Mortimer J proceeding [2014] FCA 916 [92].
There are three sets of proceedings involving Mulholland as a party which are relevant to the present case.
(i) Proceedings against the VEC and Kevin Butler
On 13 September 2008, the Victorian Branch of the DLP held an election for office-bearers at a State Conference. Mulholland was defeated by a margin of one vote in the election for secretary. Following that election, Mulholland commenced proceedings in VCAT seeking to review two decisions made by the VEC on 17 October 2008 (‘the VEC October decision’) and 18 December 2008 (‘the VEC December decision’). The first and second respondents in these and related proceedings were the VEC and Butler respectively. In the VEC October decision, Mulholland’s application to re-register the DLP was rejected because Mulholland was held not to be the competent applicant for re-registration, the VEC having determined that he had not been elected successfully as the DLP Secretary. In the VEC December decision, the successful candidate for secretary, Farrell, was substituted for Mulholland as the registered officer of the DLP.
At issue in the proceedings was whether, pursuant to r 4 of the DLP Rules,[81] the September 2008 election was void. It was argued that two delegates who had voted at the State Conference were not eligible to vote in Commonwealth elections, and therefore were not members of the DLP at the relevant time because, as at 13 September 2008, they each lived at an address different to that recorded on the electoral roll maintained under the Cth Act. Macnamara DP affirmed both decisions on 3 December 2009.[82]
[81]Rule 4 of the Rules states: ‘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.’
[82]Mulholland v Victorian Electoral Commission (Unreported, Victorian Civil and Administrative Tribunal, Macnamara DP, 3 December 2009).
Mulholland sought leave to appeal from the VCAT decision, which application was refused by Efthim AsJ on 19 February 2010. Mulholland appealed from that refusal to a judge in the Trial Division of the Supreme Court. On 16 April 2010, J Forrest J granted leave to appeal in part, the grounds of appeal being confined to those impugning the VEC December decision.[83] The appeal was dismissed by Williams J on 18 March 2011.[84] Mulholland was granted leave to appeal from Williams J by the Court of Appeal on 13 May 2011.[85]
[83]Mulholland v Victorian Electoral Commission [2010] VSC 130.
[84]Mulholland v Victorian Electoral Commission (2011) 247 FLR 230 (Victorian Supreme Court). Mulholland also sought to stay the costs application brought against him by the VEC and Butler. Williams J rejected that application and ordered that Mulholland pay the costs of the respondents following their successful resistance to his appeal: Mulholland v Victorian Electoral Commission[No 2] [2011] VSC 161.
[85]Mulholland v Victorian Electoral Commission [2011] VSCA 129 (Tate JA and Macaulay AJA).
On 14 June 2012, in the Court of Appeal proceeding, the Court allowed the appeal.[86] It held that the two delegates whose eligibility to vote at the State Conference was challenged were not entitled to vote in the election of office-bearers and thus that the vote to elect the secretary of the Victorian State Branch was not carried by a true majority. The 13 September 2008 election for the position of secretary was void. It set aside the VEC December decision on the basis that the VEC acted on an incompetent application in that it was signed by a secretary elected at a void election.
[86]The Court of Appeal proceeding (2012) 36 VR 167 (Redlich and Hansen JJA and Kyrou AJA).
The Court of Appeal ordered the VEC to reinstate Mulholland as the registered officer of the Victorian State Branch of the DLP between the limited period between 18 December 2008 and 2 August 2009 (inclusive). The reference to the limited period can be explained in that the VEC had made subsequent relevant changes to the register, commencing from the decision to register Michael Casanova (‘Casanova’) as registered officer of the Victorian State Branch of the DLP on 3 August 2009. Those changes had not been disputed by Mulholland in his proceedings before VCAT, the Supreme Court at first instance or on appeal. The Court of Appeal expressly rejected Mulholland’s submission that the changes that were made to the register by the VEC on 3 August and 28 October 2009 were invalid. The Court referred to s 51 of the Electoral Act 2002 (‘the Victorian Act’) that relates to applications to the VEC for changes to the register of political parties, for example, substituting the name of a registered officer. Hansen JA (with whom Redlich and Kyrou AJA agreed) said:
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.
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.[87]
[87]Ibid 190–1 [115]–[116].
The ‘proceeding pending in the Trial Division’ referred to what became the Robson J proceeding. The Court of Appeal observed that that proceeding ‘raises the same basic issue as the appeal, namely the validity of the 13 September election’.[88]
[88]Ibid 177 [43].
(ii) The Robson J proceeding
On 31 October 2008, following the VEC October decision, the plaintiffs Farrell, Butler, John Madigan (‘Madigan’) and Casanova commenced proceedings by writ against Mulholland and Patrick Crea. The plaintiffs alleged that they were elected as Secretary, President, First Vice-President and Assistant Secretary at the State Conference on 13 September 2008. The defendants were, until that State Conference, the Secretary and Acting Treasurer of the Victorian Branch of the DLP. Farrell and Butler sought a declaration that they had been duly elected as State Executive office‑bearers on 13 September 2008. Injunctions restraining Mulholland from holding himself out to be, or acting as, the Secretary and an order for the delivery up of the books and records of the State Branch were also sought.
Interlocutory orders were made in favour of the plaintiffs on 12 November 2008. Subsequently, on 20 November 2008, the plaintiffs filed a statement of claim and, on 3 December 2008, each defendant filed a defence. Mulholland also filed a counterclaim alleging that the State Executive prior to the State Conference on 13 September 2008 remained in office and sought declarations to that effect, an order for the delivery up to him of the property of the State Branch, and an order convening a State Conference.
On 6 March 2009, the parties having reached agreement at a court-ordered mediation, the Court ordered by consent that the claim and counterclaim be dismissed, with a right of reinstatement if the terms of settlement were not complied with.[89] The settlement agreement collapsed, culminating in the holding of two rival State Conferences on 9 May 2009. One was called by Butler and another was called by Mulholland. At each State conference, a separate set of office-holders was purportedly elected.
[89]Orders of Daly AsJ, 6 March 2009.
Following the breakdown of the settlement arrangements, the proceeding was reinstated in 2010.[90] Only Butler and Mulholland remained, respectively, the plaintiff and the defendant.
[90]Orders of Pagone J, 29 June 2010.
Robson J noted that ‘[i]n 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’.[91] He examined the authorities on the justiciability of the regulation of political parties and considered that the identity of the Secretary and his or her authority to make an application to the VEC for registration of a political party are important issues for the proper working of the Victorian Act. He concluded that the issue of who is the Secretary of the DLP in the Victorian State Branch of the DLP, and who constitutes the State Executive, are justiciable issues.
[91]The Robson J proceeding [2013] VSC 662 [72].
Robson J observed that the decision of the Court of Appeal had ‘a direct bearing on the matters raised for determination in this trial’.[92] He referred to the passage from Hansen JA’s reasons extracted above[93] and remarked that ‘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’.[94] He declared that Mulholland remained the current Secretary of the Victorian State Branch of the DLP and declined to make orders that Mulholland return DLP property to the purported Secretary of the faction of office-bearers led by Butler. He did so because he took the view that after the 2008 State Conference neither the Mulholland faction nor the Butler faction had sufficient members to raise a quorum at which business could be properly transacted.
[92]Ibid [2013] VSC 662 [59].
[93]See [59] above.
[94]The Robson J proceeding [2013] VSC 662 [127].
He upheld Mulholland’s objection to the election of Madigan as Vice‑President for the same reasons given by the Court of Appeal in support of its finding that the election of Farrell as secretary was void, namely, that Madigan had been elected only by one vote at the State Conference of 13 September 2008 and there were two people who voted who were ineligible to do so. The Butler faction included both Farrell and Madigan, neither of whom were properly elected office-bearers. It otherwise consisted only of two members, Butler and Casanova.
Robson J held that under r 73 of the DLP Rules, a quorum required more than three members of the State Executive.[95] Mulholland’s faction consisted of Keelan, Mr Flood, Dr Bennett (‘Bennett’), Frances Murphy, Mulholland and Crea but of those the only ones elected at the 13 September 2008 State Conference were Frances Murphy, as Second Vice-President, and Bennett, as Treasurer. Taking into account that Mulholland had been the previous Secretary of the Victorian State Branch and had not been displaced, he was also to be counted as an office-bearer following the 2008 State Conference. Thus, the Mulholland faction consisted of only three members and could not raise a quorum to carry out any business.
[95]This was pursuant to r 73 of the DLP Rules which provided that a quorum for meetings of the State executive was not less than one-half of the number of office-bearers plus one. Robson J said (at [135]): ‘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’.
Given that there had been no duly convened meeting of the State Conference of the Victorian State Branch of the DLP since September 2008, all the office-bearers who were duly elected at that Conference had not been validly replaced.
Robson J held that for the DLP to continue in Victoria under its current rules it would be necessary for one or more of the office-bearers in one faction to meet with one or more office-bearers in the other and, if a quorum was achieved, a State Conference could be called to elect new office-bearers. He did not consider that there would be circumstances in which the Federal Executive might intervene in the affairs of a State Branch by convening a State Conference as occurred with the Scoresby meeting on 19 July 2014. The question of federal intervention was not raised before him.
On 2 December 2013, Robson J made a declaration as to the composition of the Victorian State Executive following the State Conference on 13 September 2008, but he declined to make the declaration sought by Mulholland in relation to the State Conference on 9 May 2009.[96] As noted above,[97] Macaulay J referred to the declaration made by Robson J about the composition of the Victorian State Executive, namely that the composition of the Victorian State Branch of the DLP following upon its September 2008 State Conference was: President — Butler; First Vice-President — casual vacancy; Second Vice-President — Frances Murphy; Secretary — Mulholland; Assistant Secretary — Casanova; and Treasurer — Bennett. Robson J also held that the rival State Conferences conducted on 9 May 2009 were invalid and the State Conference conducted on 26 June 2010, organised by Mulholland, was not validly convened.
[96]The Robson J proceeding [2013] VSC 662 [143]–[144].
[97]See [14] above.
He declined, however, to make the orders sought by Mulholland that the changes to the registered officer made by the VEC on 3 August 2009, 28 October 2009 and, on 18 July 2012, subsequent to decision of the Court of Appeal, were ineffective. Robson J noted that applications under the Victorian Act prescribed a procedure for VCAT to review decisions of the VEC making changes to the register of political parties (s 51 of the Victorian Act). He remarked:
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.[98]
[98]The Robson J proceeding [2013] VSC 662 [147].
The effect of Robson J’s decision was that, as at 2 December 2013, the composition of the Executive of the Victorian State Branch of the DLP was recognised, at law, as having the composition that was elected at the State Conference on 13 September 2008. The decision by Robson J took account of the effect of the Court of Appeal’s decision in Mulholland’s favour and its implications.
(iii) Proceedings against Funnell
On 15 July 2014, Mulholland brought an application before Ginnane J in the Supreme Court, seeking an interlocutory injunction restraining Funnell from describing himself as, or representing or holding himself out to be, Federal Secretary or President of the DLP and from convening, arranging, organising or conducting the Scoresby meeting.[99] Mulholland’s primary argument was that the Federal Executive and certain State Branches responsible for convening the Scoresby meeting lacked legitimacy. The application was dismissed.
[99]Mulholland v Funnell [2014] VSC 349. See above at [3]–[5].
In arriving at that decision, Ginnane J took into account the decision of the AAT proceeding in 2011. Noting that the AAT had determined that a properly constituted Federal Conference took place in 2009, he said:
While it is true that the AAT was considering different issues concerning the registration requirements of the Commonwealth Electoral Act 1918 (Cth), I consider that, particularly on an interlocutory application, I should give considerable weight and respect to its conclusions.[100]
[100]Mulholland v Funnell [2014] VSC 349 [12].
After the Scoresby meeting took place, Mulholland returned to the Supreme Court for the trial before Macaulay J.
Against that background, we turn to consider the issues raised by the proposed grounds of appeal.
Was the judge’s reliance on the AAT’s findings inappropriate?
In support of his application for leave to appeal from Macaulay J, Mulholland submits that findings made in separate proceedings relating to the decision to change the registered officer of the DLP on an electoral register should not be relied upon in a proceeding concerning an internal organisational matter on a different subject, namely, whether the Scoresby meeting was a validly convened State conference. In particular, he impugns the findings of the AAT proceeding that other State Branches apart from New South Wales were reconstituted in 2008 and 2009 and that the 2009 Federal Conference was properly convened, enabling Zegenhagen to be validly appointed as the party’s registered officer.[101] Drawing upon Weinberg JA’s observations in Morris v Riverwild Management Pty Ltd,[102] Mulholland argues that the AAT’s findings lack relevance. He submits that the AAT proceeding arose under the Cth Act and relates to the AEC decision in relation to the substitution of Zegenhagen for Mulholland as the registered officer of the Federal Branch of the DLP, as opposed to his present complaint, which concerns an internal organisational matter within the DLP, arising under the DLP Rules.
[101]See Reasons [16]–[17] and [52]–[62].
[102](2011) 38 VR 103, 118–120 [64]–[73].
Mulholland submits that the inappropriateness of relying upon findings made by the AAT in separate proceedings directed to a different issue is further reinforced in the context of the application for summary dismissal. He submits that, by reason of Macaulay J’s orders, he was deprived of the opportunity to have his challenge properly ventilated and neither he nor Funnell was given the opportunity to test their evidence as they would have if a trial had been conducted.
In oral argument, these submissions were pressed by reference to Mortimer J’s reasons for judgment. Mulholland relies upon Mortimer J’s conclusion that the reasoning of Murphy J in summarily dismissing his claim under the Judiciary Act was attended by some doubt.[103] He submits that Mortimer J was not satisfied that the evidence which he led in that proceeding was as limited as Murphy J considered it to be. In particular, he seeks to rely upon her Honour’s observation that a triable issue was raised by the question of whether 12 of the Victorian delegates who voted at the 2009 Federal Conference to endorse Zegenhagen were eligible to do so. The import of Mortimer J’s remarks, Mulholland submits, is that the AAT’s finding that it was immaterial to the question of whether the 2009 Federal Conference was validly convened whether the ‘true’ Victorian Branch participated in calling the 2009 Federal Conference or whether the Victorian State Branch was ‘bogus’ at the time,[104] was confined to the issue of whether there was a valid request for the 2009 Federal Conference. The AAT’s finding did not extend to the question of the eligibility of the delegates at the 2009 Federal Conference who elected Zegenhagen.
[103]See [45]–[47] above.
[104]See [38] above.
Mulholland submits that the decision in the Court of Appeal proceeding exposed a defect in the eligibility of two of the purported Victorian members of the DLP. As a result, the eligibility of certain Victorian delegates who voted for Zegenhagen in the 2009 Federal Conference, as purported members of the DLP within the meaning of the Rules, was thrown into question. Mulholland argues that Macaulay J, in relying upon the AAT’s findings, erred in unduly curtailing consideration of an issue that ought not to have been summarily dismissed. Mulholland also noted that Mortimer J came to a different conclusion to that of Murphy J on the issue of whether the delegate’s decision remained ‘operative’ or had been superseded by the AEC decision.[105] Mulholland submits that this is an example of the complexity of the issues in his proceedings which expose the necessity of a trial and the full presentation of evidence.
[105]See [44] above.
Alternatively, Mulholland argues that although it may have been appropriate for Macaulay J to take account of the AAT’s findings, he erred in giving them undue weight. He submits that the AAT’s findings were of ‘uncertain authority’.
In response, Funnell contends that there was no error in Macaulay J’s reliance upon the findings of the AAT. He argues that the AAT’s findings are relevant to the determination of the issues in the current proceeding, as the same underlying factual issues are present. Moreover, Funnell emphasises, Macaulay J did not express himself as being bound by the earlier proceedings. To the extent that Mulholland complains that the AAT’s findings are of ‘uncertain authority’, Funnell relies upon the unsuccessful appeal made by Mulholland from the AAT’s decision to the Full Federal Court and his unsuccessful special leave application to the High Court. Funnell also submits that Macaulay J’s reliance upon the history of the various proceedings involving the AEC and VEC was a just, efficient, timely and cost efficient resolution of the present dispute.
In our view, Macaulay J was correct to rely upon the findings of the AAT in the manner in which he did. He did not seek to apply those findings unquestioningly. Rather, he took account of those findings in the context in which Mulholland was unable to adduce evidence to contradict the findings, nor indeed to proffer anything more than assertions in support of his case. In particular, we consider that Macaulay J was correct to rely upon the AAT’s finding that other State Branches existed at the relevant time, based upon the considerable evidence to which the AAT had regard and the lack of any probative evidence adduced by Mulholland.[106] He was also correct to rely upon the finding that the 2009 Federal Conference had been validly convened, in particular in light of the failure of Mulholland to identify any specific defect in his pleadings in the manner in which it was convened. Furthermore, as mentioned, the AAT acknowledged that, even without a valid request from Victoria, the requirement for a majority of State Branches under r 34 of the DLP Rules was met.[107]
[106]See [21] above.
[107]See [38] above.
Moreover, Mulholland’s reliance on observations made by Mortimer J is misguided. As we have sought to describe above, in her refusal of leave, her Honour reflected the very same concerns that lay at the heart of Macaulay J’s judgment.[108] She also placed considerable weight on the fact that the AAT had conducted a full merits review of the AEC decision and that the Full Federal Court had dismissed the appeal from the AAT on questions of law. She considered the ‘new’ challenge as concerned with substantially the same fundamental dispute as was the subject of previous litigation. Importantly, she also observed that Mulholland’s ‘new’ complaint was a limited one and there was no objective basis for considering that it had a greater prospect of success than his previous challenges. She placed considerable reliance on the need for finality, particularly with respect to challenges made against decisions by public officials.
[108]See [48]–[52] above.
In our view, the observations made by Mortimer J support, and do not detract from, the conclusions arrived at by Macaulay J including the extent to which those conclusions rely upon the findings of the AAT. In addition, it was significant that Mulholland had commenced the VCAT proceedings re-agitating the same dispute after his application before Mortimer J was unsuccessful. The pursuit of the same, or substantially similar, grievance in another forum justifiably reinforced the judge’s concern that there was a risk that the proceeding before him amounted to an abuse of process which he was entitled to bring to an end by means of a summary determination. This was especially so given that the proceeding before Macaulay J was a matter involving a paucity of evidence and an absence of properly reasoned argument.
Was there an absence of a proper contradictor or other necessary parties?
Mulholland submits that Macaulay J was wrong in his consideration of whether the proper person was joined to the proceedings. He submits that the judge misapplied the law relating to the need for a proper contradictor and, further, was incautious in considering the lack of utility of the relief sought as a basis for summary dismissal. He argues that Funnell is the proper contradictor because the triable issues in the proceeding include Funnell’s misrepresentations of himself as a member of the DLP, as a member of the Federal Executive, and as the Federal President. Mulholland submits that because he was the Secretary of the Victorian State Branch, as recognised by the Court of Appeal, he has the necessary authority to bring proceedings against a non-member defendant or a member acting in breach of the DLP Rules, in particular, the rules governing the organisation and conduct of a Victorian State Conference. He argues that Funnell is the proper contradictor because Funnell organised and conducted the Scoresby meeting.
Furthermore, Mulholland argues, relying upon Australian Competition and Consumer Commission v MSY Technology Pty Ltd,[109] that Funnell, by admitting that he was bound by the DLP Rules, impliedly consented to being the defendant in proceedings where a declaration relating to compliance with the DLP Rules is sought.
[109](2012) 201 FCR 378, 382–5 [13]–[19], 387 [30]–[32].
Funnell submits that he is not the proper contradictor in the present proceeding. He points to the earlier decision of Ginnane J[110] refusing Mulholland’s application for an injunction against Funnell for purporting to act as Federal President of the DLP. He also relies upon his affidavit of 11 December 2014 attesting to his term as President of the DLP and the culmination of that term on 6 December 2014. Funnell disputes Mulholland’s contention that he implicitly consented to being a contradictor by reference to that affidavit, filed some months before the trial, in which he expressly rejected the assertion that he was an appropriate defendant.
[110]Mulholland v Funnell [2014] VSC 349. See [73]–[75] above.
In our view, Macaulay J was correct to identify the need for a proper contradictor and to conclude that Funnell was not the proper person against whom the proceeding should have been brought. The interest Funnell sought to protect was severely limited, he being concerned only to refute the allegations made directly against him. No longer being a member of the DLP, it would seem that his interest in whether the 2009 Federal Conference, or the Scoresby meeting, was validly convened was significantly diminished. The converse proposition is that there are persons whose interests would be affected by the declarations sought who are not party to the proceedings (particularly those persons elected to the Executive of the Victorian State Branch of the DLP at the Scoresby meeting). The judge was correct to consider that this reduced the utility of the relief sought, and that it supported an assessment that, if the trial proceeded to its conclusion, there was no real prospect a court, in its discretion, would grant the declarations sought.
Were the judge’s observations prejudicial and was there a failure to attend to the evidence?
A number of Mulholland’s grounds of appeal allege that the observations made by Macaulay J were prejudicial and that the judge misconceived, or placed inadequate or no weight upon, Mulholland’s pleadings or evidence. These grounds may be grouped into three broad categories: grounds relating to the judge’s conception of Mulholland’s procedural expertise as a litigant, grounds relating to the judges’ observations about the state of the evidence, and a claim that the application for summary judgment by Funnell was subject to an estoppel.
Mulholland complains that the judge misconceived his procedural expertise as a litigant.[111] He relies upon the judge’s reference to Mulholland as a plaintiff ‘who appeared for himself but is no stranger to litigation’ and the judge’s footnoted references to previous proceedings involving Mulholland as a party.[112] He submits that, contrary to the judge’s perception of him, he did not understand that there was a need, as a matter of procedure, to have other parties joined to the proceeding and that his inquiries of the judge on that subject were misconstrued as an application for adjournment. He submits that the judge’s incorrect view that Mulholland was well‑equipped to follow the procedural rules governing an application for adjournment led to an improper ‘fusing’ together of the summary judgment application by Funnell with the purported adjournment application leading to the summary dismissal of his proceeding.
[111]Grounds 3 and 5 of the grounds of appeal.
[112]Reasons [8]. See also Reasons n 2.
Mulholland also submits that, as a consequence of the judge erroneously believing that Mulholland had made an application for adjournment, the judge made a number of observations prejudicial to him.[113] These included the remarks made by the judge as to the potential application of O 18 so as to enable the appointment of a representative for numerous defendants and the need for DLP members to resist the ‘time consuming’ and ‘oppressive’ applications by Mulholland, and the relevance of the other proceedings referred to by the judge.
[113]Ground 21.
In response Funnell argues that the judge’s remark that Mulholland was ‘no stranger to litigation’ did not convey that Mulholland’s familiarity with litigation extended to the procedural aspects of an application for adjournment. He submits that Mulholland cannot commence a proceeding as a self-represented litigant and rely upon his lack of legal qualification as a shield against loss. Funnell also submits that Mulholland has failed to establish that the issues of adjournment and dismissal were improperly ‘fused’ by the judge. He submits that there is no substance to Mulholland’s complaint that the judge made observations prejudicial to Mulholland, as opposed to findings which did not favour Mulholland, as a consequence of understanding him to have made an application for adjournment.
We agree. In our view, Macaulay J kept the question of the application for a summary judgment by Funnell, and the application for an adjournment by Mulholland, sufficiently distinct. There were separate considerations relied upon by the judge in respect of each application. This is apparent from the numerous bases examined above in support of the summary judgment application and the consideration that an adjournment would result only in delay with no benefit. In any event, many of the considerations were relevant to both applications. For example, the absence of a proper contradictor and the lack of utility in the relief sought supported both the refusal of an adjournment and the grant of a summary judgment in favour of Funnell, given that the judge found, as he did, that Mulholland had no intention of taking advantage of an adjournment to join the necessary parties.[114]
[114]See [18] above.
Mulholland’s second category is that the judge made observations prejudicial to him with respect to evidentiary matters. First, he submits that the judge gave cursory and inadequate attention to the evidence before him,[115] in particular the DLP Rules as they applied to his case, the Rules being the ‘context from which the proceedings arose’[116] and the ‘organisational context of the dispute’,[117] and Funnell’s non-compliance with those Rules.[118] He submits that the judge was incorrect to find an absence of evidentiary support for those propositions fundamental to his claim.[119]
[115]Ground 6.
[116]Ground 1.
[117]Ground 19.
[118]Ground 12.
[119]Ground 13. Further, Mulholland argues that the issue of the quorum required at a valid meeting under the DLP Rules was incorrectly dismissed by the judge as a ‘red herring’ as opposed to a triable issue fundamental to his case: Ground 22. It is sufficient to note that although the Statement of Claim pleaded all the DLP Rules, including the need for a quorum, the complaint was of an unspecified failure to comply with the Rules.
Mulholland argues that the judge disregarded his evidence in relation to the composition of the DLP Federal Executive,[120] and, as a consequence, erroneously characterised a resolution passed by Mulholland’s purported composition of the DLP Federal Executive as ‘no more than a self-serving pronouncement’.[121] He submits that, as a consequence of the judge misconceiving the state of the evidence, the judge erred in remarking that Mulholland’s case was ‘an exercise in avoidance’ and had ‘no real prospect of establishing the facts to persuade a court to make the declarations he seeks’.[122]
[120]Ground 9.
[121]Ground 10.
[122]Reasons [48], [61].
Funnell replies that Mulholland’s submission that the judge gave cursory and inadequate attention to the evidence[123] may be rejected for its lack of particularity, there being no obligation upon the judge to refer to every item of evidence in his judgment.
[123]See especially grounds 1, 6, 12, 13 and 19 of the grounds of appeal.
In our view, it cannot be concluded that the judge gave cursory attention to the evidence sought to be adduced by Mulholland. Mulholland’s complaint is, in reality, that the judge found against him when the judge carefully placed in context the allegations he made and concluded that there was no proper basis upon which Mulholland could challenge the AAT’s findings. The reasons Macaulay J concluded that Mulholland’s case was ‘an exercise in avoidance’[124] that had ‘no real prospect of establishing the facts to persuade a court to make the declarations he seeks’[125] was because his case did not meet the contrary findings of the AAT other than by way of assertion.
[124]Reasons [48].
[125]Ibid [61].
It is an inherent part of the evaluation of an application for summary dismissal that a judge will make findings about a plaintiff’s prospects of success. This may involve a robust description of the case a plaintiff has sought to put. It would be wrong to construe unfavourable findings expressed in that manner as prejudicial. We consider that many of the passing observations made by Macaulay J fall into this category.[126]
[126]For example, ground 8.
Thirdly and finally, Mulholland submits that the judge incorrectly failed to determine that Funnell’s application for summary judgment was subject to an estoppel arising from an earlier refused application before Zammit AsJ in July 2014.[127] Funnell submits in response that no such issue was raised before Macaulay J and that, in any event, no application for summary dismissal was made before Zammit AsJ. Rather, Funnell contends that the hearing before Zammit AsJ was a directions hearing, at which an application for summary dismissal was raised as an option, in contrast to a direct listing for trial. Her Honour having chosen to list the matter for trial, the application for summary dismissal was made at that stage of the proceeding.
[127]Ground 4.
At the hearing of the application for leave to appeal Mulholland handed to the Court a transcript of the proceeding before Zammit AsJ on 12 August 2014 wherein her Honour queried whether it was Funnell’s position that the claim had no real prospect of success or was an abuse of process, or a combination of both. Funnell’s counsel clarified that in the defence it was pleaded that the matter was vexatious and no justiciable cause of action was disclosed. The transcript makes it clear that the subject before Zammit AsJ was the question of what directions ought be made for the future conduct of the proceeding, and especially the issue of listing. As counsel said:
We are of the view that whatever gets us from point A to point B in your Honour’s court is the most appropriate orders to make today, whether that be listing it for an application to strike out the statement of claim or listing it for a substantive hearing. I really have no preferences. I am in the court’s hands.
The balance of the transcript reveals that her Honour then concerned herself with finding an appropriate date that would be convenient to the parties and making orders for service of an exchange of documents.
There was no summary dismissal application made by Funnell before Zammit AsJ and her Honour made no judicial determination of that question. There is no estoppel.
Conclusion on the application for leave to appeal
There being no merit in the proposed grounds of appeal, we would refuse leave to appeal.
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APPENDIX
RELEVANT PROCEEDINGS
Victorian proceedings
1. Mulholland v Victorian Electoral Commission (Unreported, Victorian Civil and Administrative Tribunal, Macnamara DP, 3 December 2009).
2. Mulholland v Victorian Electoral Commission [2010] VSC 130 (J Forrest J).
3. Mulholland v Victorian Electoral Commission (2011) 247 FLR 230, (Victorian Supreme Court) (Williams J).
4. Mulholland v Victorian Electoral Commission (Costs) [2011] VSC 161 (Williams J).
5. Mulholland v Victorian Electoral Commission [2011] VSCA 129 (Leave to appeal, Court of Appeal) (Tate JA and Macaulay AJA).
6. Mulholland v Victorian Electoral Commission (2012) 36 VR 167 (Court of Appeal) (Redlich and Hansen JJA, Kyrou AJA).
7. Butler v Mulholland [2012] VSC 123 (interlocutory applications, Robson J).
8. Butler v Mulholland [No 2] [2013] VSC 662 (Robson J).
9. Mulholland v Funnell [2014] VSC 349 (interlocutory applications, Ginnane J).
10. Mulholland v Funnell [No 2] [2015] VSC 108 (Macaulay J).
Commonwealth proceedings
11. Mulholland v Australian Electoral Commission [2011] AATA 717 (joinder, (Downes P and Constance DP).
12. Mulholland v Australian Electoral Commission [2011] AATA 879 (Downes P, Constance DP, Handley SM).
13. Mulholland v Australian Electoral Commission [2012] FCAFC 136 (Jacobson, Cowdroy and Flick JJ)
14. Mulholland v Australian Electoral Commission [2013] HCASL 43 (Special leave application, High Court of Australia) (Hayne and Crennan JJ).
15. Mulholland v Australian Electoral Commission (2014) 219 FCR 1 (Murphy J).
16. Mulholland v Australian Electoral Commission [2014] FCA 916 (Mortimer J).
17. Mulholland v Australian Electoral Commission [No 2] [2014] FCA 917 (Costs, Mortimer J).
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