Whether primary judgment attended by substantial doubt: alleged legal errors (grounds 6, 7, 8, 9, 10, 11, 12, 13 and 14)
56 By ground 6, Mr Mulholland contends the primary judge erred in applying the principles in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [164]-[167]. In that decision Gummow and Hayne JJ held that, in circumstances where third parties may have acquired rights that would be affected by an order for certiorari, a court should exercise its discretion to refuse an application for an extension of time to pursue such relief. Wakim does not apply in this case, Mr Mulholland submits, because the concerns of Gummow and Hayne JJ in Wakim arose because the applicant in that case was seeking to re-agitate exactly the same issues as had been addressed in the earlier proceeding. Mr Mulholland claims he is seeking to agitate different issues before the Court in this proceeding and, therefore, the principles from Wakim do not apply.
57 There are some differences in the way Mr Mulholland seeks to agitate his claim before this Court, which I set out at [99] below. However, as I explain in more detail at [100], although his claims vary in how they are expressed, the substantive issues sought to be agitated by Mr Mulholland are the same. In my opinion, his Honour's application of the principles in Wakim is not affected by error and this ground would have no merit, were leave to be granted. The alteration of the register by the AEC has been relied on in the conduct of two federal elections. As Gummow and Hayne JJ observed in Wakim 198 CLR 511; [1999] HCA 27 at [165] (and at [3] per Gleeson CJ agreeing, at [26] per Gaudron J agreeing; see also at [81] per McHugh J, at [304] per Callinan J), consideration of the effect on third parties of quashing an impugned decision or order is relevant to the discretion to refuse relief in any judicial review proceeding. Although the exercise of such a discretion does not arise unless and until an applicant has otherwise made out a successful ground of review, it was not an impermissible consideration in the present context for the primary judge.
58 The primary judge found that the delegate's decision had been superseded by the AEC decision of 28 May 2010, and was no longer "operative". Therefore, the primary judge found, by seeking review of an inoperative decision the proceeding lacked merit. The finding that the AEC decision was "inoperative" loomed as one of Mr Mulholland's key grievances with the primary judge's decision. Ground 7 contends that the primary judge "failed to apply the correct principle of law" in relation to whether the delegate's decision of 8 January 2010 remained "'intact', 'operative' and 'real'". In particular, Mr Mulholland claims the primary judge failed properly to apply Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [100], which quotes with approval the following passage from Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 178-179:
A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.
59 This passage, Mr Mulholland contended, stands for the proposition that the original decision remains in force, even when subject to subsequent, external review.
60 The respondent contends that Mr Mulholland failed adequately to identify the error in the primary judge's reasoning, and that Mr Mulholland's argument relies upon a "literal reading" of that passage of Re Brian Lawlor. The respondent submits that the primary judge was correct to find the decision of the delegate had been superseded by the internal review decision of the AEC and, in support of this submission, relies upon the framework and structure of both the Electoral Act and the Administrative Appeals Tribunal Act 1975 (Cth). The respondent relies on the fact that the January 2010 decision was made under delegation, by a delegate exercising a power delegated to her or him by the AEC. That power, the respondent contends, is still retained by the AEC, despite that delegation and, through the process of internal review, the AEC exercised that power itself pursuant to s 141(4)(a) of the Electoral Act by affirming the delegate's decision.
61 The decision under review at the Tribunal, and the operative decision, the respondent submits, is the decision of the AEC on internal review, made in May 2010, rather than the original decision by the AEC delegate. In support of its submissions, the respondent also relies on the terms of ss 43(1) and (6) of the AAT Act, which provide:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
…
(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with s 44), be deemed to be a decision of that person and, upon coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
62 These provisions, the respondent submits, contemplate that any decision subject to review by the Tribunal needs to have had "effect". If, as Mr Mulholland contends, the decision of January 2010 remained operative, the respondent submits, the decision of the AEC of May 2010 would have no "effect". Taking into consideration the requirements of s 43 and in particular subs (6), any such review conducted by the Tribunal of a decision without "effect" would not be competent.
63 The respondent also submitted the primary judge was correct to rely on the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; [2013] HCA 43 at [25], where French CJ, Crennan, Bell, Gageler and Keane JJ said:
The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect". An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.
64 In oral submissions, the respondent's counsel properly conceded that the difficulty of any inutility of Mr Mulholland's application could be cured by an amendment to his application to instead review the May 2010 decision of the AEC. However, the respondent contends that certain of the grounds agitated by Mr Mulholland in his application, for example, the allegation of bias made by Mr Mulholland against the individual delegate, would not be available to him.
65 It was not contested by Mr Mulholland that the review process set out in the Electoral Act provides for a sequence of decisions through both internal and external review. However, he expressly disavowed any suggestion of an amendment to the way in which his claim was put. He made it clear in his oral submissions that he was only interested in reviewing the decision of the AEC delegate at first instance. That was the decision, he contended, that had all the faults he had identified.
66 In my opinion, it is arguable the decision of the delegate in this process should not be characterised as "inoperative". Whether or not a decision under review continues to be "operative" after having been subject to internal review by the AEC and external review by the Tribunal may depend on the nature of the powers exercised upon review. Merits review may, but need not, interfere with the decision under review. That is true of both internal and external merits review. The construction of s 43 of the AAT Act pressed by the respondent may pay insufficient regard to the fact that the power being exercised under subs (1)(a) is to affirm the decision of the AEC.
67 In turn, in the present case, the decision of the AEC pursuant to s 141(4) affirmed the decision of the AEC delegate. It did not vary the delegate's decision, nor set it aside and substitute a new decision.
68 If, for example, the Tribunal had exercised the power conferred on it by ss 43(1)(b) or (c), then s 43(6) may have had a different application. Section 43(6) is a necessary provision so that any changes made by the Tribunal to the decision under review are given a certain operation. For example, it is important that persons affected can ascertain the date from which the decision, as altered by the Tribunal, is to operate. That being the legislative purpose, it is not a purpose which will be fulfilled in the same way for every statutory scheme that provides for Tribunal review.
69 Section 43(6) must interact, and be reconciled, with the statutory scheme in which the decision under review is located. It may be the case that even where the Tribunal exercises its powers under ss 43(1)(b) or (c), properly construed the effect on the decision under review is not retrospective: see Lesi v Minster for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27; [2003] FCAFC 285 at [30]-[50] per Mansfield, Selway and Bennett JJ.
70 Another authority, to which the Full Court in Lesi referred, illustrates a different approach when s 43(6) interacts with a different statutory scheme. In Collector of Customs v Gaylor Pty Ltd (1995) 35 NSWLR 649, the New South Wales Court of Appeal held that a successful applicant before the Tribunal was entitled to recover interest on any overpayment of duty made to the Collector of Customs from the date on which the decision under review came into effect, in accordance with the terms of s 43(6). Handley JA described (at 655) the effect of the Tribunal's decision to set aside the decision under review and substitute a new one, under the relevant provisions of the Customs Act 1901 (Cth), read together with s 43(6) of the AAT Act. His Honour found that the decision under review was "retrospectively exposed as unlawful and the payment to obtain release of the goods is recoverable in an action for money had and received or in modern terms, restitution".
71 Thus, even where the powers in ss 43(1)(b) or (c) are exercised, the authorities demonstrate that the effect of s 43(6) is not uniform and depends on the statutory scheme with which it interacts.
72 More obviously, where the Tribunal affirms a decision, it is arguable that the power it exercises is one of confirmation. The statute does not need to provide for any changes to the manner or scope of operation of the decision under review because it has been determined to be the correct or preferable decision. It continues to operate according to its terms.
73 I accept it is arguable that, in exercising its power to affirm an earlier decision of a delegate, the AEC's decision does not render the previous decision "inoperative". Nor, to use the language of the extract from Wingfoot (set out at [63] above), is the delegate's decision necessarily "spent" or "moot". The same is true when, at the next stage of review, the Tribunal exercises its power under s 43(1)(a) to affirm the AEC decision. The legal effect of the original decision by the AEC delegate is confirmed. His Honour's reasoning on this issue at [33] to [44] is in my respectful opinion attended with some doubt.
74 That is not to say that leave to appeal should be granted. If Mr Mulholland's contention is correct, it would simply confirm this Court's jurisdiction to review the original decision by the AEC delegate. Other discretionary considerations persuade me, on balance, that leave should be refused, and I refer to these at [93] to [114] below.
75 Ground 8 alleges the primary judge "failed to take into account" the fact the judicial review application was based on different factual and legal questions about why the delegate's registration decision was unlawful. This contention finds expression in several different ways in other grounds: namely, grounds 9, 10, 11 and 12. It is appropriate to deal with them together, but necessary to attempt to summarise the points Mr Mulholland sought to make in his judicial review application, before the primary judge and in his leave to appeal application, about why the judicial review proceeding raised issues not previously considered by the Tribunal and the Full Court.
76 On the basis of what is set out in his originating application in the judicial review proceeding, Mr Mulholland made the following points:
The Victorian Court of Appeal decision in Mulholland v Victorian Electoral Commission (2012) 36 VR 167; [2012] VSCA 104, to which I have referred above at [24], and which determined that the election of a Victorian Secretary of the DLP to replace Mr Mulholland was void, meant it would be "unsafe in law to allow the AEC's decision of 8 January 2010 to stand".
This was because the AEC had been given the "wrong information" by the "DLP beneficiary of the decision" (which I take as a reference to Mr Zegenhagen).
The "special circumstances" of the Court of Appeal decision have completely changed the context in which the "new" DLP federal executive officebearers were purportedly elected at the Queensland conference. The factual basis for this allegation, however, on Mr Mulholland's affidavit material itself as cross-referenced at [29] of his judicial review application, is not limited to the Court of Appeal's finding about the meaning of "member" in the DLP constitution by reference to eligibility to vote in Commonwealth elections, but includes whether certain individuals were financial members and whether they held a proxy for a person who was not validly considered a DLP member. Mr Mulholland alleges that these invalidities cumulatively affected 12 out of the 24 "purported delegates or proxy holders" at the Queensland conference.
77 He also made the point, in his grounds on the leave to appeal application, that the primary judge "could not have taken into account the relevant new material" from the judgment of Robson J in Butler v Mulholland (No 2) [2013] VSC 662, to which I referred at [25] above. This new material, Mr Mulholland asserted, "demonstrably falsifies findings of the AEC delegate, the Full AEC and the AAT" regarding the delegate's registration decision.
78 The Court of Appeal decision was delivered on 14 June 2012. The Full Court appeal had been heard on 23 May 2012 and judgment was delivered on 19 September 2012 without reference to the Court of Appeal decision. Robson J's decision was delivered on 2 December 2013. The primary judge heard the matter which is the subject of this application on 1 November 2013 and delivered judgment on 26 February 2014.
79 The primary judge dealt with Mr Mulholland's foreshadowed "new" challenges to the delegate's registration decision at [45]-[49] of his reasons. He did so on three bases. First (at [46]), by referring to findings made by the Tribunal that all four state branches of the DLP had requested the conference be convened, and all four branches had voted at the ballot so that, even if the Victorian branch's participation (or rather, those "purporting" to represent the Victorian branch, if Mr Mulholland's arguments were to be accepted) was not valid, it would have made no difference to the election of Mr Zegenhagen because a majority of branches were in favour. The primary judge said Mr Mulholland "advanced no cogent basis for the Court to interfere with that conclusion".
80 Second (at [47]-[48]), although recognising that the Victorian Court of Appeal's interpretation of "eligible" in cl 4 of the DLP constitution had resulted in it finding some people were ineligible to vote in Victorian branch elections, he found that Mr Mulholland's submissions that sought to apply this finding to lists of DLP members who attended the Queensland conference could not be accepted, because Mr Mulholland had not established how these people were not members within the meaning of the DLP constitution.
81 Third (at [49]), the primary judge found that Mr Mulholland was not able to resort to fresh evidence on judicial review to make an argument of this kind, when the evidence was available to be put before the delegate, and it was sought to be adduced to undermine the factual findings of the delegate.
82 The primary judge's first and second bases depended on an assessment of the evidence adduced by Mr Mulholland on his judicial review application, and the submissions he put in support of the application. Mr Mulholland's affidavit evidence, and in particular his affidavit of 26 August 2013, advanced several contentions as to why the vote at the Queensland conference should be found to be invalid.
83 Mr Mulholland's evidence was that 24 people voted (directly or by proxy) to endorse Mr Zegenhagen at the Queensland conference. Mr Mulholland's affidavit evidence was that 12 of those were not DLP members within the meaning of the DLP constitution and so there was no majority vote for Mr Zegenhagen. On the basis of that evidence, Mr Mulholland contended the AEC could not lawfully recognise the endorsement of Mr Zegenhagen by the Queensland conference. He advanced several reasons.
84 First, Mr Mulholland was contending that the Court of Appeal decision, together with Robson J's decision, which restored him as Secretary to the Victorian Branch, affected the validity of the authorisation held by people who asserted they were the Victorian delegates to the Queensland conference, including as I understand it their authorisation to convene the conference.
85 Second, he was suggesting that the construction of "eligible" given by the Court of Appeal - namely, that a person was required to be eligible to vote at Commonwealth elections, which in turn meant that their residential addresses had to be the same as the address recorded on the Commonwealth electoral roll - may disqualify some of the people who had attended the Queensland conference and voted for Mr Zegenhagen.
86 Third, he was contending that 12 of those people (including some who gave proxies) were not financial members of the DLP and were not eligible to vote.
87 In my respectful opinion, it is not clear that these arguments, based as they are on matters of fact, which Mr Mulholland did not have the opportunity to prove in the way he would have had if the matter had proceeded to trial, were so hopeless as to warrant summary dismissal. As I observe at [90] below, how these matters might relate to the task of the AEC under s 134(1) would have required further elaboration and development. Lack of connection between these factual irregularities, even if proven, and the statutory task in s 134(1), may have been fatal to the ultimate success of any judicial review application by Mr Mulholland. Similarly, whether as a matter of discretion relief would have been granted under the Judiciary Act might well have been a significant issue, given the previous series of challenges to the AEC decision. Both those outcomes, however, are quite distinct from summary dismissal of the entire proceeding.
88 Further, with respect, I do not accept the breadth of the proposition set out by the primary judge at [49] of his Honour's reasons. The migration case to which his Honour refers occurred in a different fact-finding setting and the principles enunciated cannot necessarily be applied in the way suggested.
89 Other authorities are less emphatic, and recognise that the admissibility on judicial review of evidence before the decision-maker depends on the ground of review advanced. Where there are both issues of statutory interpretation and a need to establish the requisite factual situation which will bring the statute into operation, there may be a need to adduce additional material: see McCormack v Commissioner of Taxation (2001) 114 FCR 574; [2001] FCA 1700 at [37]-[40]; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540.
90 In the present case (and unlike the migration case to which the primary judge referred), whether the vote at the Queensland conference to elect Mr Zegenhagen was valid by reason of the eligibility or ineligibility of those who voted for Mr Zegenhagen was not a matter about which the AEC delegate was to be satisfied before altering the register. It was a matter to be answered by reference to evidence and to the proper interpretation of the DLP constitution. There would in that sense be only one correct answer. There was a preliminary question, at least one of mixed fact and law, whether the four members of the DLP who applied under s 134(1)(b) to change the Register, by substituting Mr Zegenhagen's name for that of Mr Mulholland, were validly authorised by the DLP to make that application. After that would come many questions, including whether s 134(1) required or contemplated that such authorisation was necessary. However for the purposes of the dismissal of Mr Mulholland's application for judicial review, I am not satisfied, with respect, that the learned primary judge was correct to conclude that the kind of evidence Mr Mulholland sought to adduce was as proscribed as his Honour suggested.
91 For these reasons, there is some doubt about the primary judge's reasoning at [45]-[49] of the judgment. Together with his approach to whether the AEC decision was "inoperative", grounds 8, 9, 10, 11 and 12 of the application and proposed notice of appeal are capable of raising doubts weighing in favour of the grant of leave to appeal.
92 As I set out below, however, the discretionary factors relevant to this application, and the factual circumstances in which it is brought, lead to the firm conclusion that there is no substantial injustice to Mr Mulholland and leave should be refused.