Mulholland v Victorian Electoral Commission - [2012] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0041
JOHN VINCENT MULHOLLAND	Appellant
v
VICTORIAN ELECTORAL COMMISSION	First Respondent
and
KEVIN BUTLER	Second Respondent

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JUDGES:	REDLICH and HANSEN JJA and KYROU AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	31 January and 17 February 2012
DATE OF JUDGMENT:	14 June 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 104
JUDGMENT APPEALED FROM:	[2011] VSC 89 (Williams J)

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ADMINISTRATIVE LAW – Victorian Electoral Commission (‘Commission’) – Register of political parties to include name of registered officer of party – Disputed election for secretary of political party – Decision of Commission to accept person purportedly elected as being the secretary of the party – Further decision to register that person as the registered officer in substitution for the existing secretary/registered officer who was the unsuccessful candidate for election – Administrative review of decisions by Victorian Civil and Administrative Tribunal – Decisions affirmed – Appeal to Trial Division limited to decision to change name of registered officer – Appeal dismissed – Appeal to Court of Appeal – Validity of election – Whether two delegates who voted were members of party and eligible to vote – Construction of rules of party – Whether ‘eligible to vote in Commonwealth elections’ – Electoral Act 2002 (Vic), ss 51 and 60 – Commonwealth Electoral Act 1918 (Cth), ss 93(2), 221, 229, 235, 266 and Schedule 3, paras 10, 17 and 19.

ASSOCIATIONS AND CLUBS – Political party – Democratic Labor Party – Rule providing that ‘members shall be those eligible to vote in Commonwealth elections’ – Construction of rule.

ELECTIONS – Commonwealth elections – ‘Eligibility to vote’ – Whether two delegates to State Conference who voted on election for secretary were eligible (or entitled) to vote at an election for members of the House of Representatives and senators – Commonwealth Electoral Act 1918 (Cth), ss 93(2), 221, 229, 235, 266, Schedule 3, paras 10, 17 and 19.

JUDGMENTS, ORDERS AND DECLARATIONS – Administrative decision to substitute a person as registered officer in Register of political parties – Decision and change of registered officer set aside – Whether subsequent changes of registered officer in the Register affected.

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

REDLICH JA:

I agree with Hansen JA for the reasons he gives that the two delegates about whom the appellant complains were not entitled to vote at the DLP elections held on the 13^th September 2008. I would allow the appeal and make the orders which Hansen JA proposes.

HANSEN JA:

At the meeting of the State Conference of the Victorian Branch of the Democratic Labor Party of Australia (‘DLP’) held on 13 September 2008, an election was held for office bearers. The overall result was a changing of the guard. One of those who lost his position was the appellant, John Vincent Mulholland, who had long been the secretary of the Victorian…

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.

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Details

Case: [2012] VSCA 104
Decision Date: 14 June 2012

CaseChat Overview and Summary

Mulholland brought a challenge in the Court of Appeal of the Supreme Court of Victoria against the decision of the Victorian Electoral Commission (Commission) to register a new secretary for the Democratic Labor Party. The Commission had accepted the election of a new secretary and registered that person as the party's registered officer in place of the existing secretary, who had been the unsuccessful candidate in the election. The Victorian Civil and Administrative Tribunal (VCAT) had previously affirmed the Commission's decisions, and Mulholland appealed to the Trial Division. The appeal was limited to the decision to change the name of the registered officer. The Court of Appeal dismissed the appeal.

The Court of Appeal was required to determine whether the two delegates who voted in the election for the secretary of the party were eligible to vote in Commonwealth elections. The party's rules provided that members were those eligible to vote in Commonwealth elections. The Court had to construe the rules of the party and determine whether the two delegates were eligible to vote in Commonwealth elections. The Court also had to consider the implications of the Commission's decision to change the registered officer on the Register of political parties.

The Court of Appeal found that the two delegates who voted in the election were eligible to vote in Commonwealth elections, and therefore, were members of the party. The Court held that the Commission's decision to accept the election of the new secretary and to register that person as the registered officer was valid. The Court found that the subsequent changes of registered officer in the Register of political parties did not affect the validity of the Commission's decision. The Court dismissed the appeal and affirmed the decisions of VCAT and the Trial Division.

The Court of Appeal set aside the decision of the Commission to change the registered officer in the Register of political parties. The Court did not make any orders in relation to the registration of the new secretary as the registered officer of the party. The Court held that the decision of the Commission to change the registered officer was invalid because the two delegates who voted in the election were not eligible to vote in Commonwealth elections. The Court did not consider it necessary to make any further orders in relation to the registration of the new secretary as the registered officer of the party.

Orders