JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2015
DATE OF JUDGMENT:	25 March 2015
CASE MAY BE CITED AS:	Mulholland v Funnell (No. 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 108

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CLUBS AND ASSOCIATIONS – Political party – DLP – Intervention of Federal Executive in the affairs of the Victorian State Branch – Validity of Federal Conferences - Whether Victorian State Conference called by Federal Executive was a valid DLP conference - Dispute as to office bearers comprising the Federal Executive of DLP.

DECLARATIONS – Principles - Failure to join a proper contradictor – Lack of utility or practical purpose of the declarations sought.

PRACTICE AND PROCEDURE – Summary Judgment and adjournment applications – r 23.03 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – s 62 of the Civil Procedure Act 2010 (Vic) - Principles – Inadequate pleadings and evidence – Weight to be given to previous findings by a tribunal of fact adverse to the claim – Lack of proper contradictor and no practical purpose for declarations sought - No real prospect of success – Adjournment application refused and summary judgment application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appears for himself
For the Defendant	Mr Hanna

TABLE OF CONTENTS

Introduction and Issues.................................................................................................................... 1

Applications for adjournment and for summary judgment................................................... 2

Background......................................................................................................................................... 4

State Branches of the DLP?.......................................................................................................... 4
Composition of the Victorian Executive?.................................................................................. 5
Rule 148 and the composition of the Federal Executive?....................................................... 7
Legitimacy of the 2009 Federal Conference?............................................................................ 8

Should summary judgment be ordered in favour of Mr Funnell?........................................... 9

Principles........................................................................................................................................ 9
Mr Mulholland’s claim in this proceeding............................................................................. 11
Does Mr Mulholland’s claim have a real prospect of success?........................................... 13
A........ No pleaded or evidentiary support for his fundamental proposition......... 14
B......... The effect or significance of the AAT decision.................................................. 16
C........ Failure to join a proper contradictor.................................................................. 20
Principles applicable to declaratory orders..................................................... 20
Principles applied................................................................................................ 24
Conclusion: No proper contradictor in this case............................................. 25

Conclusion on real prospect of success................................................................................... 25

Should Mr Mulholland be allowed an adjournment?.............................................................. 26

Other matters..................................................................................................................................... 27

Jurisdiction................................................................................................................................... 27
Lack of a quorum?...................................................................................................................... 28

Conclusion......................................................................................................................................... 29

HIS HONOUR:

Introduction and Issues

Rule 130 of the Constitution and Rules (‘Rules’) of the Democratic Labour Party[1] (‘DLP’) 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. On 19 July 2014, a meeting of some 27 Victorian members of the DLP, convened by a group calling itself the party’s Federal Executive, was held in a hall in Scoresby, Victoria (‘the Scoresby meeting’). In dispute in this proceeding is whether that meeting was a validly convened State Conference.
[1]The spelling of the word ‘Labour’ in the name of the party is now controversial,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mulholland v Funnell (No. 2)

Details

AGLC: Mulholland v Funnell (No. 2) [2015] VSC 108
Case: [2015] VSC 108
Decision Date: 25 March 2015

CaseChat Overview and Summary

In the case of Mulholland v Funnell, the dispute involved members of the Democratic Labour Party (DLP), with the primary contention being the validity of the Federal Executive's intervention in the affairs of the Victorian State Branch, particularly regarding the convening of a conference. The matter was heard in the Supreme Court of Victoria.

The central legal issues revolved around the authority of the Federal Executive to intervene in the affairs of the Victorian State Branch, the legitimacy of the conference convened by the Federal Executive, and the composition of the office bearers forming the Federal Executive of the DLP. The case also examined the principles surrounding the appropriate contradictors in such disputes and the utility of the declarations sought by the plaintiff.

The court addressed these issues by considering the procedural and substantive aspects of the dispute. It found that the plaintiff had failed to join a proper contradictor and that the declarations sought lacked practical purpose. The court gave significant weight to previous findings by a tribunal of fact that were adverse to the plaintiff's claims. Furthermore, the court noted that the pleadings and evidence presented were inadequate, and the plaintiff had no real prospect of success. Consequently, the court granted the defendant's application for summary judgment and refused the plaintiff's application for an adjournment, finding that the case had no utility.

The court's final orders included granting summary judgment in favour of the defendant and dismissing the plaintiff's application for an adjournment. The declarations sought by the plaintiff were denied due to their lack of practical purpose and the absence of a proper contradictor.

Orders