//
[2012] VSC 123
General information, not legal advice.
Supreme Court of Victoria
2012-03-22
ROBSON J
Original judgment source is linked above.
1 The dispute before me arises out of the purported election of Mr Mark Farrell as the secretary of the Victorian branch of the Democratic Labor Party (DLP) on 13 September 2008. On that day, the Victorian branch of the DLP held a state conference to elect officers of the state branch. Mr John Mulholland was the existing state secretary and had been so for some 23 years. Mr Farrell and Mr Mulholland both stood for the position of secretary. Mr Farrell defeated Mr Mulholland by one vote, securing 24 votes to 23 votes.
2 Mr Mulholland subsequently ascertained that two of the voting delegates at the conference, Mr Domenic Farrell and Ms Claire Lindorff, had declared to the officer, who approved the credentials of those authorised to attend and vote at the meeting, residential addresses that were different from those recorded as their address on the Commonwealth Electoral Roll. Mr Mulholland formed the view that under the rules of the Victorian branch, the two persons concerned were thereby not eligible to vote. They had been credentialed as delegates at the State Conference in respect of local branches in the divisions in which they lived and not in the divisions in respect of which they were enrolled.
3 Accordingly, after the conference Mr Mulholland maintained, and continues to maintain that he remained the secretary of the Victorian branch of the DLP and Mr Farrell was not the elected secretary. As secretary he purported to register the Victorian branch of the DLP with the Victorian Electoral Commission (VEC). The VEC did not accept Mr Mulholland as secretary and thus entitled to register the branch, but recognised Mr Farrell as the secretary entitled to register the branch.
4 Mr Mulholland challenged the decision of the VEC in VCAT. Mr Butler was a party to those proceedings. Mr Butler is a member of the DLP. He is currently the secretary. VCAT ruled on 3 December 2009 that Mr Farrell was properly recognised by the VEC as the secretary.
5 The decision of VCAT went on appeal to Williams J with leave granted by Forrest J. Before her Honour, the validity of the right of Mr Dominic Farrell and Ms Lindorff to vote was considered. The construction of the rule that Mr Mulholland was relying on in his contention that Mr Dominic Farrell and Ms Lindorff were not eligible vote, and in fact were not even members of the party, was canvassed by Williams J, and her Honour rejected Mr Mulholland's arguments.
6 On 18 March 2011, her Honour upheld the decision of VCAT. On 13 May 2011, the Court of Appeal gave leave to Mr Mulholland to appeal the decision of Williams J. The appeal has been heard, and judgment has yet to be delivered.
7 Since 2008, the Victorian branch has continued to hold annual conferences. Mr Butler is now the state secretary of the DLP.
8 On 31 October 2008, Mr Farrell, Mr Kevin Butler, Mr John Madigan and Mr Michael Casanova instituted proceedings in this Court against Mr Mulholland and Mr Pat Crea. Mr Crea has been assistant secretary to Mr Mulholland but was purportedly removed on 13 September 2008.
9 The plaintiffs allege that they were each members of a voluntary association called the Democratic Labour Party. They allege that at the conference held on 13 September 2008 Mr Farrell was elected secretary, Mr Butler the president, Mr Madigan the first vice-president and Mr Casanova assistant secretary in the state executive of the Victorian branch of the DLP.
10 The plaintiffs allege that Mr Mulholland has refused to hand over records and assets of the DLP to the state executive, represented himself as the state secretary to the VEC, contacted members of the DLP and represented himself as the secretary, purported to cancel the monthly meetings of the state executive, and such like.
11 The plaintiffs allege that the conduct of Mr Mulholland complained of is unlawful and in breach of the constitution and rules of the DLP.
12 The plaintiffs claimed a declaration that as of 13 September 2008, the state executive is as referred to earlier. The plaintiffs also sought interlocutory and permanent injunctions restraining Mr Mulholland from:
(a) describing himself or holding himself out as the Secretary of the DLP, Victorian branch;
(b) cancelling monthly meetings of the state executive of the DLP, Victorian branch;
(c) convening a conference of the DLP, Victorian branch on 15 November 2008 or at all; and
(d) signing cheques on behalf of the DLP, Victorian branch.
13 The plaintiffs also sought delivery up of DLP papers and property and further sought interlocutory and permanent injunctions restraining Mr Crea from signing cheques on behalf of the DLP, Victorian branch.
14 On 31 October 2008, a summons was issued seeking interlocutory relief. On 12 November 2008, Hollingworth J made the orders as requested. Her Honour also made orders for the hearing of the matter.
15 On 3 December 2008, Mr Mulholland filed a defence and counterclaim. Amongst other matters, he pleaded that the Court has no jurisdiction to determine the dispute. That issue has not been resolved. Mr Mulholland pleaded that if the Court has jurisdiction, then he counterclaims alleging that Mr Dominic Farrell and Ms Lindorff were ineligible to vote at the meeting of 13 September 2008.
16 Mr Mulholland claimed a declaration that the state executive of the DLP Victorian branch consists of:
17 Mr Mulholland sought an order for delivery up of DLP property to himself and a mandatory injunction convening a conference of the Victorian branch of the DLP as soon as practicable.
18 On 13 February 2009, pursuant to Rule 23.03 judgment was given for Mr Crea against the plaintiffs. On 17 February 2009, Associate Justice Daly referred the proceeding to mediation. The mediation was successful. On 6 March 2009, orders were made by Associate Justice Daly by consent that the claim and counterclaim be dismissed, there be no order as to costs, and that each party had a right of reinstatement if the terms of settlement between parties made 23 February 2009 were not complied with.[1]
19 On 15 January 2010, at the Victorian state executive meeting, Mr Mulholland was purportedly expelled from the Victorian branch of the DLP and consequently from the DLP, Australia.[2]
20 On 24 June 2010, the plaintiffs issued a summons in the proceeding against Mr Mulholland seeking an order reinstating the proceeding and certain interlocutory relief.[3] Mr Butler swore an affidavit in support of the application. He deposed he was the Victorian state secretary of the DLP.
21 On 29 June 2010, Pagone J made orders on the summons reinstating the proceeding. He also ordered that:[4]
Until the determination of the proceeding or further order, Mr Mulholland is restrained from:
(a) Describing himself of holding himself out as the Secretary of the DLP, Victorian branch;
(b) Cancelling monthly meetings of the State Executive of the DLP, Victorian branch;
(c) Convening a conference of the DLP, Victorian branch on any date; and
(d) Signing cheques on behalf of the DLP, Victorian branch.
22 Mr Mulholland was also ordered to deliver up certain DLP property including a computer and printer, membership list, minutes, and DLP cheque books.
23 The order noted that Mr Butler and Mr Mulholland appeared in person and there was no appearance on behalf of the other parties. Pagone J gave leave for the other parties to be removed from the proceeding.
24 On 19 July 2010, Mr Butler issued a summons against Mr Mulholland alleging Mr Mulholland had breached the orders of Pagone J and was in contempt of court. The matter came on before Emerton J. On 30 July 2010, her Honour granted leave to the first, third and fourth plaintiffs to withdraw their appearances in the proceeding. She also made further orders relating to Mr Mulholland delivering up property of the DLP.[5]
25 On 1 September 2010, the matter came on before Cavanough J in the practice court. To remove any doubt he ordered that Messrs Farrell, Madigan and Casanova be removed as parties to the proceeding both as plaintiffs and to the counterclaim. He also made directions including that the remaining plaintiff Mr Butler file and serve an amended statement of claim by 8 September 2010.[6]
26 On 10 September 2010, Cavanough J vacated the directions for the filing of the amended statement of claim. He said that the hearing of the related matter no 10965 of 2009 may lead to a resolution of this proceeding or to a narrowing of the issues in this proceeding.[7]
27 On 8 December 2010, Macaulay J ordered that the summons of 19 July 2010 and directions generally be adjourned to before Associate Justice Daly on 15 February 2011.[8]
28 On 18 March 2011, Mr Mulholland issued a summons seeking an order that the interlocutory orders made by Hollingworth J on 12 November 2008 and reinstated upon the orders of Pagone J on 29 June 2010, be discharged.[9]
29 On 22 March 2011, Associate Justice Daly ordered that Mr Butler file and serve an amended statement of claim by 1 April 2011 and made further directions for the filing of subsequent pleadings. She adjourned the matter for directions to 7 June 2011.[10]
30 On 31 March 2011, Cavanough J dismissed the summons of Mr Mulholland of 18 March 2011.[11]
31 On 4 April 2011, Mr Butler filed an amended statement of claim.[12] The amended statement of claim repeats the allegations relating to the 15 September 2008 state conference. It also complains of Mr Mulholland's subsequent conduct and alleges failure to comply with the orders of Hollingworth J and Pagone J.
32 Mr Butler sought wide relief including an order restraining Mr Mulholland from presenting himself as a member or official (including secretary and registered officer) at any level of the DLP and ordering him to write to all members of the DLP stating that he is no longer the secretary of the Victorian branch, nor a member of the DLP.
33 On 29 April 2011, Mr Mulholland filed an amended defence and counterclaim of some 28 pages. He again pleads issues of jurisdiction and refers to Cameron v Hogan.[13] Mr Mulholland says that, contrary to the emphasis of the plaintiff, the issue for determination in the proceeding is not political, personal or criminal but rather the one issue needing to be resolved concerns the dispute arising from the office-bearers election at the 2008 conference.
34 On 7 June 2011, Mr Butler filed his defence to the counterclaim of some 35 pages.
35 On 6 September 2011, Associate Justice Daly ordered that subject to Mr Butler filing a notice of trial by 22 February 2012, the proceeding be listed for hearing on 22 March 2012 on an estimate of 4 days.[14] Her Honour also referred the matter to mediation. The mediation before Bishop Elliot was not successful.
36 On 16 January 2012, Mr Mulholland issued a summons seeking an order that Mr Butler's claim be dismissed and that the interlocutory orders made by Pagone J on 29 June 2010 reinstating the proceeding and the interlocutory orders of Hollingworth J be set aside. Mr Mulholland also sought an order that Mr Butler forthwith return to Mr Mulholland all records, funds, assets or other property or material delivered up to Mr Butler (and/or the original plaintiffs), on the interlocutory orders made by Hollingworth and Pagone J. He also seeks an order that his own counterclaim be otherwise dismissed.[15]
37 On 9 February 2012, Mr Butler filed a summons seeking, inter alia, an order that Mr Mulholland is in contempt of court. On that day, Associate Justice Daly ordered that the further hearing of Mr Mulholland's summons filed 16 January 2012 be adjourned to 21 February 2012 before the Associate Judge's Court and that Mr Butler's summons drafted on 27 January and filed on 9 February 2012[16] be adjourned to the judge in the practice court on a date to be fixed after 21 February 2012.[17]
38 On 21 February 2012, Associate Justice Daly vacated her order that the trial of the proceeding be listed for hearing on 22 March 2012.[18] Her Honour also referred to a judge of this Court for hearing on 22 March 2012 Mr Mulholland's summons filed 16 January 2012 and Mr Butler's summons drafted 27 January 2012 and filed 9 February 2012.
41 I have included this recital of the history of this proceeding because Mr Mulholland has raised the issue that the existing injunctions, first made by Hollingworth J in 2008 then reinstated by Pagone J in 2010, are acting to his prejudice.
42 The order, made by Pagone J, which Mr Mulholland seeks to set aside, includes an absolute order as to the delivery up of certain property. As this was an absolute order, and not prefaced with the words 'until the hearing and determination of the proceeding, or until further order', I am unable to interfere with it. In contrast, the injunctions included in the remainder of the order can be revisited by me.
43 Mr Mulholland contends that he suffers prejudice by reason of the injunctions. He says that he is not able to represent himself to DLP members as the current Victorian secretary; he has not able to effectively rebut allegations that have been made against him in an article in 'The Age' newspaper, which he says were untruthful, defamatory and hurtful; he says he has not been able to put his side of the case in relation to the DLP state elections but that Mr Butler is not so restrained and can make public claims to the secretaryship that Mr Mulholland cannot.
44 It would be imprudent of me, as I propose to hear the matter, to go into too much detail about the rights and wrongs of the arguments put by Mr Mulholland and the rights and wrongs of the arguments put by Mr Butler. I cannot, however, overlook the fact that Williams J has considered the arguments of Mr Mulholland on the construction of rule 4 of the DLP constitution, which is the basis of his attack on the voting rights of the two people that he says weren't entitled to vote, Mr Dominic Farrell and Ms Lyndorff. Williams J has ruled that the construction of rule 4 is different to that construction proposed by Mr Mulholland, and held that merely because Mr Dominic Farrell and Ms Lindorff each gave an address which was different to the address on the Commonwealth Electoral Role, that did not disqualify them from voting at the meeting of 13 September 2008.
45 William J's decision is on appeal to the Court of Appeal. In my view, with which Mr Butler agrees and Mr Mulholland agrees to a limited extent, the decision of the Court of Appeal may bear upon the issue of the construction of rule 4 and thereby bear on the underlying point which Mr Mulholland is relying on to maintain his argument that he is the current existing secretary of the Victorian branch of the DLP.
46 There is much substance in what Mr Mulholland says about the prejudice he suffers through the injunctions that are in place. The substance of his prejudice argument goes to the first injunction, restraining him from holding himself out to be the secretary of the Victorian DLP. On the other hand I have to consider the prejudice to the DLP that would flow from two people maintaining to the members that they were secretary of the Victorian DLP at the same time. Such a situation would be very disruptive to a political organisation which has a representative in Federal Parliament. In addition, I must also take into account that Williams J has already expressed the considered view that the arguments of Mr Mulholland on the construction of rule 4 are not sustainable. All of these things must be taken into account when considering the balance of convenience in this matter.
47 I find that the balance of convenience rests with the four injunctions made by Pagone J in 2010 remaining in place. Accordingly I propose to order that the summons of Mr Mulholland, dated 16 January 2012 be adjourned to the trial of this matter.
48 Mr Butler's summons of 9 February 2012 raises issues of alleged contempt by Mr Mulholland. Given there is an issue as to whether the court has jurisdiction to resolve disputes between the members of a voluntary unincorporated associations, I consider it appropriate to defer consideration of this summons until this issue is resolved at the trial. Accordingly, Mr Butler's summons is also adjourned to the trial of this matter.
[1] Orders of Associate Justice Daly, 6 March 2009.
[4] Orders of Justice Pagone, 29 June 2010.
[5] Orders of Justice Emerton, 30 July 2010.
[6] Orders of Justice Cavanough, 1 September 2010.
[7] Orders of Justice Cavanough, 10 September 2010.
[8] Orders of Justice Macaulay, 8 December 2010.
[10] Orders of Associate Justice Daly, 22 March 2011.
[11] Orders of Justice Cavanough, 31 March 2011.
[12] Butler amended statement of claim, 4 April 2011.
[13] [1934] HCA 24; (1934) 51 CLR 358, 384.
[14] Orders of Associate Justice Daly, 6 September 2011.
[15] Mulholland summons, 16 January 2012.
[17] Orders of Associate Justice Daly, 9 February 2012.
[18] Orders of Associate Justice Daly, 21 February 2012.
[19] Mulholland affidavit, 16 January 2012.
[20] Mulholland affidavit, 8 February 2012.
[21] Mulholland affidavit in reply, 13 March 2012.
[23] Butler affidavit in reply, 14 March 2012.
Butler
Mulholland [2012] VSC 123
(1934) 51 CLR 358