Appellant v Firstnamed Respondent

1 This is an appeal from an Associate Justice of this Court who refused to grant leave, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 to the appellant, Mr John Mulholland, to appeal against a decision of Deputy President Macnamara of VCAT.

2 Mr Mulholland had sought in separate proceedings at VCAT to review two decisions made by the Victorian Electoral Commission ('the Commission')[1] relating to the application of the Electoral Act 2002 ('the Act') to the affairs of the Democratic Labor Party ('DLP').

3 The Commission and the current State Secretary of the DLP, Mr Kevin Butler (who was a party to the VCAT proceeding) are the respondents to the appeal.

4 Although this is a hearing de novo it is helpful to refer to the findings of the Associate Justice which are contained in the order made by him on 19 February 2010 refusing the application for leave. His Honour said as follows:

The interpretation of Rule 4 of the Democratic Labor Party rules which requires the interpretation of whether a person is eligible to vote in Commonwealth elections may involve a question of law. The Deputy President, in effect, recognised that an arguable case could be put against the position he adopted as he stated that he came to his conclusion with some hesitation. Leave to appeal, however will not be granted because as there can be no substantial injustice to the Applicant. There have been two further election held since the election upon which the Plaintiff claims was invalid. If there was a successful appeal it would not make any difference to the office bearers of the Democratic Labor Party. There is also no public interest in the questions raised by the appeal.

5 Notwithstanding that this is an application for leave to appeal which should be dealt with expeditiously, and if possible summarily, it has required some consideration.

6 Mr Muholland was the long standing secretary of the DLP. At the State Conference held on 13 September 2008 he was defeated by one vote by Mr Mark Farrell for the position of secretary of the party. Subsequently after inspecting the Commonwealth Electoral Roll, Mr Muholland found that two of the delegates who had voted in the election had given addresses inconsistent with the Commonwealth division in which they were enrolled.

7 This was said to be of significance as Rule 4 of the Democratic Labor Party rules provided:

The members shall be those eligible to vote in Commonwealth elections who are deemed by the Democratic Labor Party to be like of like spirit and to identify with the principles, objectives and platform of the Democratic Labor Party.

8 Mr Mulholland's primary submission was that both delegates, by reason of inconsistencies between their residential addresses and their addresses on the electoral roll were ineligible to vote at a Commonwealth election. Therefore, so the argument ran, Mr Farrell's election was "null and void" (as the two votes may have made a material difference) and that this consequently infects the two decisions of the Commission which Mr Mulholland challenges.

9 The first decision was contained in a letter of 17 October 2008 by the Commission to refuse Mr Mulholland's application for re-registration of the DLP as a party pursuant to s 58B of the Act. Mr Tully, the Electoral Commissioner, wrote to Mr Mulholland in the following terms:

Having considered our position, I can now inform you of the Victorian Electoral Commission's (VEC's) position regarding the re-registration of the Democratic Labor Party (DLP).

Prima facie I recognise Mr Mark Farrell as the secretary of the DLP as chosen by the party conference. I am not prepared to engage in further discussion on this matter.

...

Your application for re-registration of the DLP was not valid, as you were no longer the party secretary at that time. Therefore I am returning your application, including a cheque for the re-registration fee and the list of members of the party.

10 The second decision was made on 18 December 2008 in which the Commission acceded to an application pursuant to s 51 of the Act to change the register so as to record Mr Farrell as the registered officer rather than Mr Mulholland. Mr Tully wrote to Mr Mulholland in the following terms:

Thank you for your letter of 11 December 2008, faxed to the Victorian Electoral Commission (VEC) on that date and lodged at the VEC with associated documents on 12 December 2008.

After considering those documents, I have decided to grant the application to change the registered officer of the Democratic Labor Party (DLP) of Australia from you to Mr Mark Farrell.

In your letter, you argue that I should not have recognised Mr Farrell as the secretary of the DLP. You contend that I should stay a decision on (sic) the registered officer until the conclusion of court proceedings

...

The VEC has no desire to become involved in internal party matters. However, under s 58B of the Electoral Act 2002 (the Act), an application for re-registration of a political party must be signed by the party secretary. In the event of a dispute within the party about who is the legitimate secretary, it puts the VEC in a position of ultimately needing to decide.

...

In this case, I decided to recognise Mr Farrell prima facie as the secretary in the light of the information I had at that time.

...

My decision on the registered officer of the DLP flows from that on (sic) the secretary. Under s 51 of the Act, an application to change the registered officer of a party must be made by the secretary. Mr Farrell has applied as the secretary of the DLP to change the registered officer. The nature of a registered officer's position is significant here. The registered officer is the primary point of contact between the VEC and the party, and has prescribed functions under the Act, including lodging nominations for an election, submitting how to vote cards for registration, requesting enrolment information, and applying for public funding. A registered officer who is not recognised by the party organisation would be unable to carry out these functions. It appears to me that this is your position in relation to the current organisation of the DLP and therefore I consider that I should grant the application to change the registered officer.

11 Underpinning each decision made by the Commission was the assumption that Mr Farrell was the secretary of the DLP, not Mr Mulholland. It was common ground (as the correspondence demonstrates) that the Commission did not engage in any detailed factual or legal analysis of who may or may not be the secretary of the party. Rather through Mr Tully, the Commission quite properly, if I may say so, relied upon information conveyed to it by the elected secretary.

12 Mr Mulholland's argument before the Deputy President was of considerable complexity and breadth, however on the application for leave to appeal before the Associate Justice and on the appeal before me, Mr Mulholland's argument focused on the question of whether the delegates were eligible to vote. This, in turn, depended upon the construction of the Commonwealth Electoral Act 1918 (Cth)

13 At VCAT Mr Mulholland argued two points at some length, one which was characterised as the "installation" point, the other as the "credentials" issue. The installation point was basically an argument that the old executive of the DLP remained in office because no "installation" of the newly elected office bearers had taken place subject to Rule 32 of the party rules. That point failed. The credentials issue related to the eligibility of Mr Dominic Farrell and Miss Claire Lindorff to vote in the election. The Deputy President, if I may respectfully say so, conducted an exhaustive and very helpful analysis in reaching his conclusion as to whether the election for State Secretary was invalid. He concluded that it was not:

...I believe that a person who could be regarded as eligible to vote in Commonwealth elections if that person's eligibility was conditional upon completion of the formal step required to transfer enrolment from one subdivision to another under s 99(2) of the Commonwealth Electoral Act 1918. This is the situation in which both the challenged delegates found themselves at the time. They were credentialed as delegates for the appropriate electoral division in which they in fact resided.

14 The Deputy President, as was noted by the Associate Justice, however reached this conclusion with some hesitation noting in particular what has been said by the High Court in Snowdon v Dondas (No 2).[2]

15 The test laid down for an application for leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act is set out by Phillips JA (with whom Tadgell and Batt JJA agreed) in Secretary to the Department of Premier and Cabinet v Hulls.[3] The reasoning of Phillips JA is to be found at [8] to [16]. I hope I do no disservice to his Honour's analysis in reducing it to the following principles:

• The applicant must identify a question of law important to the success or failure of the appeal and the relief sought must relate to that question of law;[4]

• The applicant must identify a real or significant argument on the identified question of law but cannot be expected to establish error per se as that is the task on appeal;[5]

• Generally the identification of a decision based on a question of law that is attended by sufficient doubt will be sufficient to justify the grant of leave; where the order is one of an interim nature that may however militate against the grant of leave;[6]

• Other reasons may be advanced to further an argument for the grant of leave such as that of the general public importance particularly where continuing uncertainty may not be in the public interest;[7]

• A relevant consideration, where the decision sought to be appealed is interlocutory, is whether there would be substantial injustice in leaving the order unreversed.[8] However with a final decision such injustice will usually be demonstrable, but in some cases it may be necessary to show prejudice if the order is allowed to stand.

16 It follows from the above, particularly in the context of a final determination made by the Deputy President, that the primary task of Mr Mulholland was to demonstrate that his determination was attended with sufficient doubt. A secondary issue which may be relevant is that of substantial injustice; however it would be wrong to characterise that consideration as being integral to a determination that leave be granted. It may, and I emphasise may, be relevant to a decision to grant leave.

17 True it is that the question of the eligibility of the delegates turned upon on interpretation of Rule 4 of the DLP's rules; however there can be no doubt that the Deputy President's determination in his review of the decision of the Commission turned, at least in part, on the application of provisions of the Act, on the construction of the Commonwealth Electoral Act 1918 as well as an analysis of several decisions of the High Court and of this Court.

18 I am satisfied, as I think the Associate Justice was, that there is a genuine question of law to be tried notwithstanding that it forms the substratum of the decision made by the Commission.[9] Also in my view the decision of the Deputy President is attended by sufficient doubt to warrant the grant of leave.[10]

19 To my mind there is, however, a significant question as to whether there is any utility in permitting the appeal to proceed - in other words, does the consideration of "no substantial injustice" loom sufficiently large to refuse the application?[11]

20 The first decision made on 17 October 2008 resulted in the Commission refusing Mr Mulholland's application to re-register the DLP as he was not the secretary as required by s 58B of the Act. Subsequently on application by Mr Farrell as secretary under s 58B, the Commission ordered that the DLP be re-registered. No review has been sought of the decision to re-register the DLP based upon Mr Farrell's application. In other words, the DLP is now re-registered as a political party on Mr Farrell's application, not Mr Mulholland's.

21 In my view there is no utility whatsoever in permitting Mr Mulholland to maintain an appeal in respect of the first decision. The party has been re-registered. This was what both Mr Mulholland and Mr Farrell desired. An order by this Court to set aside the Commission's decision refusing Mr Mulholland's application to re-register the party will not affect the outcome of the Commission's decision based on Mr Farrell's application. Indeed as I have said each sought the same end result.

22 The second decision made on 18 December 2008 is, however, different. The application to change the registered officer, pursuant to s 51 of the Act requires a change to the Register of Political Parties maintained by the Commission. Such an application, by s 51(2) of the Act:

(a) Must be in writing and signed by the secretary of the political party; and

(b) In the case of an application to substitute the name of a person and the name of a registered officer of a political party may also be signed by the registered officer;

(c) The Commission can then, if satisfied, pursuant to s 51(5) of the Act, change the register.

23 For the Commission to proceed to deal with an application to change the registered officer it is, it would seem, mandatory that it be signed by the secretary of the political party. If in fact Mr Farrell was not the secretary of the DLP it would be open to a court to set aside the Commission's decision (set out in the letter of 18 December) made under s 51(5) of the Act.

24 Counsel for the Commission contended that as a result of subsequent changes to the register in August 2009 and October 2009 in relation to the identity of the registered officer (now Mr Butler, the second defendant), there was no utility in permitting the appeal to proceed as it could not affect the position of the current registered officer (there being no review sought of the Commission's decision to make the two subsequent changes in respect of the identity of the registered officer). It was also pointed out that each change appeared to be consequential upon elections held by the DLP.

25 Mr Butler argued that to permit the appeal to proceed at this point of time would involve considerable expense which neither he nor the party could afford, particularly in an election year. Moreover he said that to permit the appeal to take its course would result in considerable distraction from the main game, being the relatively imminent State and Federal elections.

26 Mr Mulholland, in essence, based his argument on the following proposition:

The Electoral Commission has intervened to remove public recognition of myself as the secretary/registered officer.

He contended that the register as a public record, would remain incorrect, even if for a short period, that being the time between the registration of Mr Farrell as the registered officer on 7 December 2008, to 3 August 2009 when it was altered.

27 There is considerable force in the submissions made by counsel for the Commission. In practical terms any decision on the appeal from the Deputy President will not affect the current status quo. Mr Butler will remain the registered officer, there being no challenge to the Commission's decision of that change to the register.

28 I am, however, of the view that given that the register is a public record (s 43 of the Act) and that in the event Mr Mulholland's appeal is successful, it may result in an order affecting the contents of the public record, then such a decision would not be sterile or of no utility. It would enable the record "to be put straight". Moreover I think a court should not refuse a party an opportunity to pursue his or her right to appeal where sufficient doubt has been demonstrated in relation to the soundness of what is the final decision as to the contents of the register unless it was persuaded that it was patently futile to permit such a course. This is not such a case.

29 Finally, I do not see the question of public importance influencing the grant of leave one way or another, although I accept that if anything, this consideration favours the grant of leave given the significance of the register in political affairs in this State.

30 I have, therefore, concluded that the appeal should, in part, be allowed; leave to appeal should be granted but only in relation to the appeal against the Deputy President's determination relating to the decision by the Commission of 18 December 2008 to change the registered officer of the DLP from Mr Mulholland to Mr Farrell.

31 Mr Mulholland will be required to deliver a notice of appeal confined to that issue alone.

[1] Section 60 of the Electoral Act entitled him to do so.

[2] [1996] HCA 27; (1996) 188 CLR 48, 74.

[9] Secretary to the Department of Premier and Cabinet v Hulls [1999] 3VR 331 [9].