Mulholland v VEC (Costs) - [2011] VSC 161

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

JUDICIAL REVIEW & APPEALS LIST

S CI 2009 10965

JOHN VINCENT MULHOLLAND	Appellant
v
VICTORIAN ELECTORAL COMMISSION	First Respondent
and
KEVIN BUTLER	Second Respondent

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2011
DATE OF RULING:	29 April 2011
CASE MAY BE CITED AS:	Mulholland v VEC & Anor (Costs)
MEDIUM NEUTRAL CITATION:	[2011] VSC 161

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COSTS – Unsuccessful appeal from decision of Victorian Civil and Administrative Tribunal – Construction of rules of Democratic Labour Party – Alleged public interest – Related proceedings – Foreshadowed appeal – Costs to follow the event

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the First Defendant	Mr C Horan	Victorian Government Solicitor
For the Second Defendant	In person

HER HONOUR:

The application

The appellant, Mr Mulholland, has appealed unsuccessfully from a decision of the Victorian Civil and Administrative Tribunal affirming a determination of the first respondent, the Commission, to change the name of the Registered Officer of the Democratic Labour Party under s 51 of the Electoral Act 2002. The appeal turned on the construction of r 4 of the Democratic Labour Party Constitution and Rules.

The Commission and the second respondent, Mr Butler, sought costs against Mr Mulholland. Their applications were resisted and, by consent, the issues were addressed in written submissions.

Mr Mulholland submits that there should be no orders as to costs against him or, alternatively, that any such orders should be stayed until the determination of any appeal. He makes a number of arguments in support of this submission, which I will address in turn.

Section 109 of the Victorian Civil and Administrative Tribunal Act 1998

Mr Mulholland first submits that the Court should follow the practice at VCAT where, in accordance with s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’), parties generally bear their own costs. He submits that this should be done because the proceeding was an appeal from a determination of the Tribunal.

I agree with the Commission’s response that there is no reason for s 109 to apply to an appeal brought under s 148 of the VCAT Act. There is no reason for the VCAT practice to be followed.

Section 24 of the Supreme Court Act 1986 applies. It provides that costs shall be awarded in the exercise of the Court’s discretion. That discretion is to be exercised judicially by reference to factors pertinent to the litigation.[1] The usual rule is that costs follow the event and will be awarded in favour of the successful party.[2]
[1]Latoudis v Casey (1990) 170 CLR 534, 557 (Dawson J).
[2]Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [67] (McHugh J).

Statutory function

Mr Mulholland argues that the Commission should not have the benefit of a costs order because it was carrying out its statutory function in defending the appeal. He refers to the Commission having adopted…

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 VEC (Costs)

Details

AGLC: Mulholland v VEC (Costs) [2011] VSC 161
Case: [2011] VSC 161
Decision Date: 29 April 2011

CaseChat Overview and Summary

The matter before the court was an appeal by Mulholland against the Victorian Electoral Commission (VEC) concerning costs awarded by the Victorian Civil and Administrative Tribunal (VCAT). Mulholland, a member of the Democratic Labour Party (DLP), sought a review of a decision made by the VEC regarding the party's internal dispute. The primary issue was whether the appeal against the VCAT decision was in the public interest, which would entitle Mulholland to an order for costs to follow the event.

The legal issues involved the interpretation of the DLP's rules and the application of the principle that costs should follow the event where an appeal is in the public interest. The court had to determine whether the appeal met the criteria for being in the public interest and if the appeal was foreshadowed, as this would impact the costs order. The court needed to consider the broader implications of the appeal on the functioning of political parties and the importance of internal party democracy.

The court found that the appeal was not in the public interest and was not foreshadowed. It held that the rules of the DLP were clear and unambiguous, and Mulholland's actions did not meet the threshold for public interest. The court emphasised the importance of internal party democracy and the need for members to abide by the party's rules. As a result, the court dismissed the appeal and ordered Mulholland to pay the VEC's costs of the appeal.

Orders