Plaintiff v Defendant

**1 Rule 130 of the Constitution and Rules ('Rules') of the Democratic Labour Party[1] ('DLP') provides that the party's Federal Executive may in certain circumstances intervene in the affairs of a State Branch by convening a State Conference to resolve an issue of confidence in the State Executive. On 19 July 2014, a meeting of some 27 Victorian members of the DLP, convened by a group calling itself the party's Federal Executive, was held in a hall in Scoresby, Victoria ('the Scoresby meeting'). In dispute in this proceeding is whether that meeting was a validly convened State Conference.

2 By resolutions made at that meeting, the then Victorian State Executive was replaced by a new executive. Mr John Mulholland, the plaintiff, was the State Secretary before the meeting, but he was replaced. At the time of the meeting, Mr Paul Funnell, the defendant, was the party's Federal President and a member of the Federal Executive which convened the Scoresby meeting - all of which are matters that Mr Mulholland vigorously contests.

3 In this proceeding Mr Mulholland seeks a suite of declarations which, if made, would declare that the Scoresby meeting was not a valid State Conference and none of its purported resolutions were validly made. Declarations to that effect would, in substance, amount to a recognition of those persons comprising the executive immediately before the Scoresby meeting as the true Victorian Executive. In addition, he also asks the Court to declare that certain named persons are members of the Federal Executive, and that Mr Funnell was never the Federal President or a member of the Federal Executive or even ever a DLP member.

4 The logical route to all of these legal conclusions rests upon Mr Mulholland impugning the validity of a Federal Conference that took place in Queensland on 28 November 2009 and the several Federal Conferences that have occurred since.**

Applications for adjournment and for summary judgment

**5 At the outset of the trial of the proceeding, I raised a number of issues of concern including the question of whether the correct or necessary parties had been joined to the proceeding. That concern arose because Mr Funnell no longer holds the position (if he ever held it) as Federal President of the DLP, and in fact holds no office-bearer position in the party at all. Mr Hanna, who appeared for Mr Funnell emphasised that he appeared only for Mr Funnell and that he represented no other interest. Further, he explained that Mr Funnell's interest lay only in meeting the specific allegations that concerned him. Since Mr Funnell had not been re-elected as President at the December 2014 Federal Conference in Moorebank, Sydney, those questions were now essentially of historical interest only.

6 Both federally and at the State level, the DLP is an unincorporated association of persons associated and governed by the Rules. None of the members of the current Victorian State Executive whose positions would be affected by any declaration I may make about the composition of that executive are parties to the proceeding. Nor are any of the current members of the Federal Executive parties to the proceeding despite the fact that the relief sought, or at least the reasoning towards that relief, would imply the conclusion that those who currently claim to be the Federal Executive are not in fact that executive and that the Queensland conference of 2009 and each Federal Conference since was invalid. Nor is the Victorian State DLP parliamentarian a party to the proceeding when her interests may be affected by the declarations sought.

7 I raised a further, related concern. It was that, if a declaration only binds those who are parties to the proceeding, there may be no utility in making any of the declarations if they only bind one person who no longer holds any office-bearing role within the DLP.

8 After considering his position, Mr Mulholland, who appeared for himself but is no stranger to litigation,[2] applied for an adjournment. He applied for an adjournment, not to seek to join any party 'involuntarily', but to 'give opportunity to other parties who may be interested to be joined in a voluntary capacity'. That application was opposed. It was opposed, in part, on the ground that to allow the application would be futile. Mr Funnell argued that Mr Mulholland's claim lacked any real prospect of success regardless of who was a party. Since Mr Funnell had also sought to make an application for summary judgment prior to the trial, and again at the beginning of the trial, in the circumstances that arose I allowed him to advance his summary judgment application when also opposing the adjournment application.

9 So, the issues upon which I commenced to hear argument were whether I should grant Mr Mulholland an adjournment for the purpose he advanced, and whether summary judgment should be given in favour of Mr Funnell. Each application involved the consideration of overlapping issues.

10 After Mr Hanna completed his submissions opposing the adjournment and advocating summary judgment for Mr Funnell, Mr Mulholland enquired whether he could withdraw his adjournment application and, if so, whether that would have the effect of precluding the summary judgment application. At that stage of the proceeding (midway into the afternoon of the first day of a two-day scheduled trial) I ruled that I would proceed to determine the summary judgment application regardless of whether or not Mr Mulholland persisted in seeking an adjournment. Although it was not clear thereafter whether Mr Mulholland persisted in seeking an adjournment, I will determine that application.

11 So understood, the issues I now need to decide are: (1) should summary judgment be given in favour of Mr Funnell or (2) should Mr Mulholland be granted an adjournment for the purpose he stated (assuming he still sought it)?

12 It is also important to note at this point that both parties have filed affidavits which constitute the evidence in chief of their witnesses (subject to objections), and those affidavits exhibit the documents they each propose to tender.**

**13 At one point in time, the DLP had five senators in the Australian Parliament with State Branches around the country. However, in the mid-1970s the DLP organisation collapsed and, except in Victoria, State Branches ceased to exist. From that time, the Victorian Branch continued to stand candidates in both Federal and Victorian State elections. The Victorian Branch of the DLP was registered at the Federal level in 1984 when the registration provisions in the Commonwealth Electoral Act 1918 (Cth) first came into effect. At that time, Mr Mulholland held the position of Secretary at the Victorian Branch level and also Federally.

14 Until any other State Branches were reconstituted, rule 148 of the Rules provided that decisions of the Victorian State Conference and State Executive stood as decisions of the Federal Conference and Executive. In 2000 the current form of the Rules were adopted by the Victorian Conference.

15 On 26 July 2008, the New South Wales Branch of the DLP constituted itself electing Mr Michael O'Donohue as secretary. The New South Wales Branch was the first State Branch outside of Victoria to have reconstituted itself since the mid-1970s.

16 On 12 December 2011, in a case to which I will return in more detail below, the Commonwealth AAT (constituted by Justice Downes, President, Deputy President JW Constance and Mr John Handley, Senior Member) published its decision in Mulholland v Australian Electoral Commission[3]. The AAT found that, as well as NSW, other State Branches were also reconstituted in 2008 and 2009, namely, Queensland and Western Australia by no later than 8 October 2008, and South Australia during or shortly after July 2009.

17 To this day, in the face of those AAT findings, Mr Mulholland continues to deny that any branch other than the Victorian and NSW branches had been reconstituted by mid-2009 (or since). His position on that issue is of great significance to his argument in this case. If the AAT's findings bind members of the DLP generally, or are properly to be accepted as persuasive, they have significant ramifications for Mr Mulholland's prospects of success on his claim.**

**18 On 13 September 2008 the Victorian Branch held its State conference. At that conference one Mark Farrell was elected Secretary of the party, defeating Mr Mulholland. Following that election, Mr Farrell was registered by the Victorian Electoral Commission as registered officer of the party pursuant to a provision of the Electoral Act 2002 (Vic) (although that registration was later set aside by the Victorian Court of Appeal as explained below).

19 Additionally, at that conference Mr Kevin Butler was elected against the incumbent President, Mr Patrick Keelan; Mr Michael Casanova defeated Mr Patrick Crea for the position of Assistant Secretary; Mr David Bennett defeated Mr Capello for the position of Treasurer; Mr John Madigan defeated Mr Gerard Flood for the position of First Vice President (by a majority of one vote); and Ms Frances Murphy was re-elected unopposed as Second Vice President.

20 Because of an ongoing dispute about the legitimacy of the 13 September 2008 elections generally, thereafter two rival groups claimed to be the true Victorian State Executive. One was led by Mr Mulholland and the other was led by Mr Butler. So, on 9 May 2009 the two 'executives' convened rival State Conferences.

21 As mentioned above, on 14 June 2012, in Mulholland v Victorian Electoral Commissioner[4] the Victorian Court of Appeal set aside the Commission's decision to register Mr Farrell as the registered officer of the DLP. It did so without prejudice to the validity of subsequent decisions of the Commission to appoint Mr Michael Casanova as registered officer on 3 August 2009 (and subsequent appointments thereafter).[5] The Court of Appeal's decision was a consequence of its conclusion that the election of Mr Farrell as Secretary of the Victorian Branch on 13 September 2008 (replacing Mr Mulholland) was invalid because two of the delegates who had voted were not qualified to do so and the vote was only carried by a majority of one.

22 In another proceeding commenced by Mr Mulholland following the 2008 Victorian State conference, Mr Mulholland sought declarations as to the composition of the State Executive following that conference and the rival 9 May 2009 conferences. In his judgment in Butler v Mulholland (No 2) published 2 December 2013,[6] Robson J made declarations as to the composition of the State Executive following each conference as depicted in fourth column of the following table. Mr Mulholland's contended composition of the executive at the two points in time is represented in the second and third columns:**

Rule 148 and the composition of the Federal Executive?

**23 Ever since the reconstitution of the New South Wales Branch in 2008, Mr Mulholland's argument has been, and remains to this day, that the Federal Executive comprises the Victorian Executive plus the Secretary of the New South Wales Branch as an ex officio member. Of course, if that was the case, it would follow that those who Robson J declared to be the Victorian Executive (plus Mr O'Donohue) would be the Federal Executive, including Mr Mulholland as the Federal Secretary. Critically, for this case, it would also mean that those who purported to convene the Victorian State Conference of 19 July 2014, using Rule 130, were not the true Federal Executive.

24 For his conclusion, Mr Mulholland reasoned from the combined effect of rules 148 (see [14] above) and 37, the latter of which provides that the Federal Executive -**

...shall comprise the officers elected by the previous Federal Conference, each State Secretary, or a proxy from the State Executive, and the Democratic Labor Party leader and deputy leader in each House of the Federal Parliament.

25 On 17 July 2009 Mr Keelan, Mr Crea, Ms Murphy and Mr Mulholland, purporting to be the Federal Executive of the DLP, met and resolved to receive a report from Mr Mulholland which concluded:

That under the Constitution and Rules of the DLP, the Federal Executive office-bearers are those elected as Victorian Executive office-bearers at the last Victorian State conference before any State Branch outside of Victoria was reconstituted, being the 2007 State conference, at which the following office-bearers were elected - Patrick Keelan (President), Frances Murphy (Second Vice President), John Mulholland (Secretary) and Pat Crea (Assistant Secretary).[7]

Although that resolution was no more than a self-serving pronouncement by the group that made it, for what it is worth it was not made by nor did it accurately reflect the composition of the Victorian Executive as later declared by Robson J.[8]

**26 Like Mr Mulholland, that group did not recognise the existence of any State Branch other than the Victorian Branch and the New South Wales Branch as at mid-2009. Accordingly, it did not recognise the legitimacy of the Federal conference in Queensland of 28 November 2009 allegedly convened 'by a majority of the State Branches' (see rule 34) which claimed to be in existence by July 2009, including branches in Western Australia, Queensland and South Australia.

27 The specific issue to be decided by the Commonwealth AAT in Mulholland v Australian Electoral Commission[9] was whether Mr Zegenhagen had been validly registered as the federal registered officer of the DLP following the 28 November 2009 Federal Conference. To decide that issue, the AAT determined there were five questions for resolution:[10]**

**(a) Had a branch or branches of the DLP been reconstituted in a State or States (other than Victoria) prior to 28 November 2009, and if so, when?

(b) Was a Federal conference of the DLP requested by a majority of the State Branches of the DLP prior to 28 November 2009?

(c) Was a properly constituted meeting of the Federal Conference of the DLP held in Brisbane on 28 November 2009?

(d) If so, was Mr Zegenhagen validly appointed to be the registered officer of the DLP for the purposes of the Act? [ie the Commonwealth Electoral Act 1918 (Cth)]

(e) Was a meeting of the Federal Conference of the DLP held in Sydney on 23 July 2011 and if so, was any decision made relevant for the registration of Mr Zegenhagen as the registered officer of the party for the purposes of the Act?**

**28 In its decision on 12 December 2011, the AAT answered all of the questions in the affirmative and found that State Branches other than Victoria and New South Wales had come into existence, as described in [16] above.

29 After the Federal Conference of 28 November 2009 and the subsequent conference on 23 July 2011 (referred to in the third question posed by the AAT), further Federal Conferences were held on 28 July 2012 (Corio), 20-21 April 2013 (Hobart) and 6 December 2014 (Sydney). Mr Funnell was elected Federal President at the Corio meeting in 2012, and re-elected at the Hobart meeting in April 2013. He was not re-elected at the December meeting in 2014. In his place, Rosemary Lorrimar was elected the new Federal President.

30 Similarly, other office bearers were elected to other positions at each conference, including the office of Secretary. In April 2013 Mark Farrell was elected Secretary and in December 2014 Michael Byrne was elected to that office.**

Should summary judgment be ordered in favour of Mr Funnell?

31 Mr Funnell relied upon two sources of power for the Court to order summary judgment in his favour. The first was under rule 23.03 of the Supreme Court Rules[11] which provides:

23.03 On application by a defendant who has filed an appearance, the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits.

**32 Under such a rule, the defendant carries the burden of showing that there is no triable issue,[12] and the defendant will be entitled to judgment if, but only if, it is inevitable that after a full hearing at trial, the Court would find for the defendant.[13]

33 Alternatively, Mr Funnell relied upon s 62 of the Civil Procedure Act 2010 (Vic) ('the Civil Procedure Act') which provides:**

A defendant in a civil proceeding may apply to the Court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.

**34 Under s 63 of the Civil Procedure Act, a court may give summary judgment if satisfied that a claim or part of the claim has no real prospect of success. Nevertheless, s 64 provides that despite there being no prospect of success a court may order that a civil proceeding proceed to trial if satisfied that it is not in the interests of justice to dispose of it summarily or that the dispute is of such a nature that only a full hearing on the merits is appropriate.

35 It is important to note that in exercising any of the powers under the Civil Procedure Act, a court must seek to give effect to the overarching purpose of the Act, namely, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[14]

36 In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[15] the Court of Appeal considered the meaning and scope of the power to order summary judgment under s 63 of the Civil Procedure Act, comparing it with the jurisdiction of the court to order summary judgment on the basis of the claim not disclosing a cause of action.[16] I consider that the summary of the Court of Appeal's decision set out in Williams' reliably expresses what the Court of Appeal held, that is:**

(a) The test for summary judgment under section 63 is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success;

(b) The test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail" test as expressed in General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 ... ;

(c) The test is to some degree a more liberal test than in the General Steel and permits the possibility that there may be cases where a respondent's case is not hopeless or bound to fail but does not have a real prospect of success; and

(d) The power of summary dismissal is to be exercised with caution unless it is clear that there is no question to be tried regardless of whether the application for summary judgment is made on the basis that the pleadings failed to disclose a reasonable cause of action (which cannot be cured by amendment) or on the basis that the action is frivolous, vexatious or an abuse of process or where the application is supported by evidence.[17]

37 Before addressing the issues, it is necessary to explain the way Mr Mulholland has put his case.

38 In his statement of claim, Mr Mulholland pleads that:

**(a) The defendant was at no relevant time a member of the DLP or the Federal President and member of the Federal Executive of the DLP (paragraph 2).

(b) Mr Mulholland has been Federal Secretary of the DLP continuously since 1984 until 2007 (in accordance with clause 148 of the rules) and, since 2007, 'there has been no Federal Conference of the DLP, under the Rules, and so [Mr Mulholland] has remained in the position of Federal Secretary' (paragraph 7).

(c) The other members of the Federal Executive are:**

**_(i) Patrick Keelan (President) elected in 2007 and not replaced under the Rules.

(ii) David Bennett (Acting First Vice President) appointed to fill a casual vacancy at a Federal Executive meeting on 4 February 2011.

(iii) Ms F Murphy (Second Vice President) elected in 2007 and not replaced under the Rules.

(iv) Mr P Crea (Assistant Secretary) elected in 2007 and not replaced under the Rules.

(v) Mr G Flood (Acting Treasurer) appointed to fill a casual vacancy by the Federal Executive on 4 February 2011.

(vi) Mr M O'Donohue, State Secretary of the New South Wales Branch and ex officio member of the Federal Executive. (paragraph 8)_**

(d) The purported Victorian State Conference on 9 July 2014 (i.e. the Scoresby meeting) was invalid, void or of no effect under the Rules as it was invalidly convened and chaired by Mr Funnell purporting to be the Federal President of the DLP (when he was not) (paragraphs 9-13).

39 On the basis of those allegations Mr Mulholland sought the following declarations:

1. A declaration that the Plaintiff is, and has been since or before 1 July 2007, the Federal Secretary of the DLP.
2. A declaration that the following persons are, and have been since or before 1 July 2007, members of the Federal Executive of the DLP:

(a) Patrick Keelan (as President);

(b) Frances Murphy (as Second Vice-president)

(c) John Mulholland (as Secretary);

(d) Patrick Crea (as Assistant Secretary);

1. A declaration that the following persons were appointed to vacancies, casual or otherwise, on the Federal Executive of the DLP and are, and have been since 4 February 2011, members of that Federal Executive.

(a) David Bennett (Acting First Vice-president);

(b) Gerard Flood (Acting Treasurer).

1. A declaration that Michael O'Donohue is, and has been since 26 July 2008, Secretary of the NSW Branch of the DLP, and in that capacity is, and has been since that date, an ex officio member of the Federal Executive of the DLP.
2. A declaration that the Defendant had and has had no authority under the Rules, to describe himself, represent himself or hold himself out to be a DLP member and/or a member of the DLP Federal Executive and/or the Federal Executive.
3. A declaration that any conference purporting to be a Victorian State Conference of the DLP, or any part of such conference, arranged and/or conducted directly by the Defendant, or through any proxy, stand-in, or agent of the Defendant, or in any way howsoever, at St. Jude's Parish Hall, 49 George Street, Scoresby, Victoria, or elsewhere, on 19 July 2014, was not a DLP conference in accordance with the Rules and was invalid and/or void and/or of no effect.
4. A declaration that any election purporting to be an election of Victorian Executive office-bearers of the DLP at the said conference was, for all intents and purposes under the Rules, invalid and/or void and/or of no effect.
5. A declaration that any decision and/or resolution passed or carried at the said conference was for all purposes, under the Rules, invalid, and/or void and/or of no effect.

**40 The essential reasoning behind Mr Mulholland's submission that the Scoresby meeting was not a legitimate Victorian State Conference ultimately begins with the proposition that there was no legitimate Federal Conference held on 28 November 2009. He says that conference could not have been legitimate because most of the State Branches which allegedly called it did not exist. And if that is so, Mr Mulholland contends, equally there could have been no legitimate Federal Conferences in 2011, 2012 or 2013. And, so the argument goes, that being the case, it would follow that Mr Funnell could not have been elected President of the Federal Executive in 2012 or 2013, nor could his executive have existed at all in May 2014, so it could not have legitimately convened the alleged Victorian State Conference on 19 July 2014 at which the then Victorian office bearers' positions were vacated and new Victorian office bearers elected.

41 If all of that is 'unwound', according to Mr Mulholland it leaves in place those referred to in paragraphs B, C and D of the claimed relief as the true Federal Executive. It also means that none of the purported resolutions replacing the Victorian Executive could have been valid: see paragraphs F, G and H of the claimed relief.**

Does Mr Mulholland's claim have a real prospect of success?

42 In my view, as currently constituted and for a combination of reasons, Mr Mulholland's case has no real prospect of success. The combination of reasons to which I refer are:

**(a) Despite the fact that the fundamental proposition upon which Mr Mulholland's case turns is the invalidity of the 28 November 2009 Federal Conference, neither by his pleadings nor by the evidence does he descend to identify any defect in the process of calling that conference or the conduct of it, nor does he seek to address or challenge the existence of other State Branches in 2009;

(b) Given the findings of the AAT on the existence of other State Branches and the convening of the 2009 Federal Conference, after hearing full evidence on the subject, there is no reason to suppose that Mr Mulholland would succeed on those essential questions of fact;

(c) Mr Mulholland has failed to join a proper contradictor thereby depriving persons whose interests would be affected by the relief he seeks to the opportunity to be heard and depriving any orders that he might obtain, if successful, of any utility.**

A. No pleaded or evidentiary support for his fundamental proposition

**44 Since it is for Mr Mulholland to plead and prove the necessary propositions to make good his case, I consider that it is for him to prove his implicit assertion that the purported Federal Conference that took place in Queensland in November 2009 had some specific defect to render it invalid.[18] In my view, the onus squarely rests upon him to prove that implied assertion to make good his pleaded, negative proposition that no Federal Conference has taken place since 2007.

45 Other than the oblique reference to there having been no Federal Conference since 2007,[19] Mr Mulholland's pleading does not put the existence of other State Branches or the validity of the 2009 Federal conference in issue. As for his evidence, there is a reference to the Queensland conference at paragraphs 21 and 22 of his affidavit sworn 15 July 2014 in which he states that he declined an invitation to attend it because he considered it to be invalid. And, he says, on 24 November 2009 a meeting of his own Federal Executive declared the proposed Queensland conference to be 'bogus'.

46 Otherwise, his proposed evidence only contains several bald and conclusionary statements or arguments, made by himself and Mr O'Donohue, to the effect that**

**(a) no State Branch other than Victoria or NSW had constituted itself since 26 July 2008,

(b) the Federal Executive since 2007 has remained the Victorian Executive plus Mr O'Donohue after NSW constituted itself, and

(c) no other Federal Executive is legitimate, nor any conference arranged by such other executive.[20]**

**47 In answering the first of the questions it posed for itself (see [27] above), the AAT in Mulholland v Australian Electora[21]Commission21 referred to evidence of the existence of other State Branches by 2009. That evidence included: returns that were filed with the Commonwealth Electoral Commission on behalf of states other than NSW and Victoria; appointments of specific individuals to office-bearing positions in those other states; contemporaneous emails and correspondence from Mr Mulholland appearing to recognise the existence of those other State Branches; and correspondence by office-bearers of branches in Queensland, Western Australia and South Australia with the Electoral Commission. Evidence was given before the tribunal both by affidavit and by oral testimony, including evidence given by Mr Zegenhagen and Mr Mulholland.

48 None of Mr Mulholland's evidence deals with what one might have expected him to deal with, particularly when one compares the state of the pleadings and evidence in this case with the facts traversed in Mulholland v Australian Electoral Commission[22]. It is necessary for Mr Mulholland to acknowledge and deal head on with the AAT's findings, at the very least because they amount to contrary findings of fact made in support of a decision with ongoing public effect - that is, a decision to uphold the consequential registration of the Commonwealth registered officer for the party. Instead, it appears that Mr Mulholland's case here is an exercise in avoidance.

49 Mr Funnell has at least placed before the Court the minutes of each Federal Conference since 2012, addressing the proposition put against him that he was not the elected Federal President at relevant times. Those minutes are detailed as to what resolutions were put and what the outcome of each resolution was. It appears that, so far as he is concerned, Mr Funnell takes as his starting point the proposition that the 2009 Federal Conference was validly held, as found by the AAT. I consider that he is entitled to do so unless something specific is identified that would require him to meet it.

50 I pointed out to Mr Mulholland that his pleading of the critical issue, and evidence upon it, appeared to be inadequate. He did not seek to make any amendment to his pleading to identify the basis of any invalidity of the 2009 Federal Conference, or to put in issue the existence of the various 'other' State Branches in 2009. Nor did he seek any adjournment to improve his evidence.

51 So, Mr Mulholland will not discharge the onus merely by making assertions, without any evidentiary support, and without identifying the defect that he claims undermines the validity of the foundational Federal Conference; otherwise he has no prospect of proving the 'negative' that he asserts.**

B. The effect or significance of the AAT decision

52 In other litigation, Mr Mulholland exhaustively pursued his argument that the registration of Mr Zegenhagen as registered officer of the party federally was invalid. His efforts are described by Murphy J in the Federal Court where he sought, on another tack, to obtain judicial review of the AEC delegate's decision after failing in his pursuit of the administrative review remedy. In dismissing his application for an extension of time to apply for judicial review Murphy J set out the history:[23]

This proceeding is part of a succession of legal proceedings which has stretched over more than four years since the delegate's decision. It is significant to my decision that Mr Mulholland:

(a) first, applied for an internal review of the delegate's decision by the AEC, leading to the AEC decision to which I have referred;

(b) next, sought review of the AEC decision by the Administrative Appeals Tribunal ("the AAT") which affirmed the AEC decision on 12 December 2011 ("the AAT decision"): Mulholland v Australian Electoral Commission and Zegenhagen [2011] AATA 879;

(c) then, appealed the AAT decision to the Full Federal Court which dismissed the appeal on 19 September 2012: Mulholland v Australian Electoral Commission and Zegenhagen [2012] FCAFC 136 per Jacobson, Cowdroy and Flick JJ ["the Full Court decision"]; and

(d) then, made an application for special leave to appeal to the High Court which was refused on 10 April 2013: Mulholland v Australian Electoral Commission & Anor [2013] HCASL 43.

**53 The Full Federal Court set out what the AAT determined, which included that the meeting of the Federal Conference of the DLP held on 28 November 2009 was a properly constituted meeting of the DLP in accordance with rule 34 of the DLP Rules. The Full Federal Court rejected Mr Mulholland's 17 'questions of law', saying only one was a question of law and the rest 'either do not arise from the Tribunal's decision, or amount to questions of fact on which no appeal lies to this court under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)'.[24]

54 Mr Mulholland appealed Murphy J's decision. Mortimer J handed down Mulholland v Australian Electoral Commission[25] on 1 September 2014, granting an extension of time for leave to appeal but dismissing the application for leave to appeal.

55 Neither party put to me any argument of substance on the topic of whether the AAT decision might give rise to an issue estoppel between the parties in this proceeding. It appears to me that there are likely to be complex questions arising on that topic that would require careful analysis. Those questions include, first, whether a decision of the AAT can give rise to an issue estoppel at all;[26] and, secondly, whether the parties in the present case can be said to be the privies of the parties to the AAT proceeding.[27] Because it was not argued fully, I do not propose to consider it further. It suffices to say that, in my view, any argument that an issue estoppel would bind the parties in this case, arising from the AAT decision, would encounter real difficulties.

56 So, what is the true relevance in this case, if any, that the critical facts have been previously tried and determined by another tribunal of fact? More particularly, what significance or weight should I attach to the findings of a tribunal which heard tested evidence from both sides about whether the other States had reconstituted themselves and whether a majority of them had requested a Federal Conference, and found against Mr Mulholland on both matters?

57 One does not merely stop at the question of issue estoppel to ascertain whether there may be some significance in those findings for a determination of a summary judgment application in this proceeding. It is relevant to observe that a senior tribunal had engaged in a fact finding exercise, on much fuller evidence from both sides than is to be called this case, and made findings of fact adverse to Mr Mulholland on the central issue in this case.

58 Even if this Court is not bound by those findings, and even if the parties themselves are not bound by them, the tribunal's findings, and it's manifestly sound reasoning for them, are a very powerful practical indicator of any prospect that Mulholland has of successfully persuading this court to a different factual conclusion. That is a matter which, as a matter of logic and common sense, I can and should take into account in evaluating whether there is a real prospect of success in this case.

59 In addition, when considering the statutory imperative to give effect to the purpose of the just, efficient, timely and cost efficient resolution of real issues in dispute, it is relevant to have regard to broader considerations than those that might only apply should the conditions for an issue estoppel exist. In State Bank of New South Wales Ltd v Alexander Stenhouse Ltd[28] Giles CJ addressed the potential for abuse of process where parties seek to re-litigate judicially-determined matters. His Honour focused in particular on cases where a party seeks to re-litigate an issue decided between himself and a third party, concluding that,**

...an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of -

(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.[29]

**60 In my opinion, a consideration of each of the factors enumerated in his Honour's list in that passage highlight the injustice, inefficiency and costliness that is being perpetrated by Mr Mulholland's pursuit of an issue that occurred over 5 years ago, which he is continuing to pursue in another forum in any event, and on which he has previously failed after a full investigation by a tribunal of fact.[30]

61 Along with Mr Mulholland's failure to put the critical facts in issue or lead evidence about them, the result in the AAT case, where the matter was properly litigated, strengthens my view that he has no real prospect of establishing the facts to persuade a court to make the declarations he seeks.

63 To understand why the absence of those members of the Federal Executive whose positions are in issue is so significant to Mr Mulholland's prospects of success, it is convenient to revisit the principles applicable to declaratory orders.

64 Superior courts have both inherent and statutory power to grant declaratory relief. It was said in the High Court in Ainsworth v Criminal Justice Commission:[31]

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible or desirable to fetter ... by laying down rules as to the manner of its exercise'.[32]

65 Section 36 of the Supreme Court Act 1986 (Vic) provides the statutory source of power to grant declaratory judgments:[33]

A proceeding is not open to objection on the ground that a merely declaratory judgment is sought, and the Court may make binding declarations of right without granting consequential relief.

**66 The jurisdiction to grant declaratory relief has regularly been invoked on matters of status, for example by declaring the right of a person to be a member of a club, church, trade union or professional organisation, or that a person's purported expulsion from a body is invalid, or that resolutions purportedly passed by its executive are invalid, or that a person pretending to be such a member is in fact not a member.[34] The declarations sought in this case broadly fall into those categories.

67 Although the circumstances in which a court may make a declaration are not confined, Gibbs J said in Forster v Jododex Australia Pty Ltd[35] that the propositions summarised by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank For Foreign Trade Limited[36] should in general be satisfied before the discretion is exercised in favour of making a declaration. Lord Dunedin had said:**

The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.

Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v Egbuna[37]:

After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.

69 Focusing more particularly on the requirement to have a proper contradictor, Viscount Maugham said in London Passenger Transport Board v Moscrop:[38]

The persons really interested were not before the court. It is true that in their absence they were not strictly bound by the declaration, but the courts have always recognised that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and that, except in very special circumstances, all persons should be made parties, whether by representation orders or otherwise, before a declaration by its terms affecting their legal rights is made.

70 After referring to that passage from Viscount Maugham the learned authors of Zamir & Woolf, The Declaratory Judgment[39] commented:

This is a sensible approach: first, as the court can take into account the interests of anyone who would be affected in reaching its decision as to whether or not to grant a declaration, it is only just that those who may be affected should be given an opportunity to present any argument which they want the court to take into account; secondly, a declaration will only bind the parties to the proceedings. If, therefore, someone who should have been joined as a defendant is not joined, there will be a danger of having to bring fresh proceedings in which he is joined, involving the expense and delay simply to re-determine a question already decided in the previous proceedings and thirdly, it is important that there is someone before the court who will properly contest the issue.[40]

71 To like effect, in his book Declaratory Orders, PW Young QC (later Young CJ In EQ, New South Wales Supreme Court) wrote:

Thus, not only is it necessary to have a defendant who is a proper contradictor ... so that the court will have before it persons who can put before it all the appropriate material necessary for a proper decision to be made, but also unless there is a proper defendant, any res judicata will, except perhaps in a persuasive sense, be valueless to him because there will be no proper person who will be bound as a matter of law to recognise the plaintiff's alleged right.[41]

**72 It is apparent, therefore, that the purpose of having persons joined as proper contradictors to the claim for a declaration is two-fold: first, to ensure that those persons whose interests will be affected have the opportunity to be heard on the matter; secondly, to give utility to the relief because the order otherwise has no effect except by binding the actual parties by issue estoppel or res judicata.

73 As regards the first of those two purposes, a proper contradictor is a person who has an interest to oppose the grant of declaratory relief, whether or not, ultimately, that person chooses to actually oppose the relief sought.[42] However, in ACCC v MSY Technology[43] the Full Federal Court endorsed the following passage from Zamir & Woolf:**

Usually the court will adopt an extremely pragmatic approach to the circumstances of a particular case. It will be reluctant to grant a declaration if a person who could be prejudiced by the grant of that declaration has not been made a party. Equally, however, it will be anxious to protect persons from unnecessarily being joined in proceedings in view of the expense and inconvenience involved. The decision of the court in any particular case will be very much a matter for its discretion and except in those rare cases where some error of principle can be ascertained, an appellate court will not interfere with the decision of the judge at first instance. [44]

74 In Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th edition) the learned authors wrote:

Although the existence of the opposed interests amongst the litigants is sufficient to give the court jurisdiction to make declaratory orders, the presence or absence of argument opposing the plaintiff's interest, and matters such as the extent of that opposing argument, may continue to be relevant whether the court in its discretion ought to grant or refuse declaratory relief.[45]

75 In relation to the second of the two purposes of having a proper contradictor joined to the proceeding - to have relevant parties bound by the declared outcome − the learned authors of Zamir & Woolf, stated:[46]

A declaration by the court is not a mere opinion devoid of legal effect: the controversy between the parties is determined and is res judicata as a result of the declaration being granted. Hence, if the defendant then acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings.

76 To similar effect, in Declaratory Orders, Mr Young summarised the effect of the High Court's decision in Australasian Oil Exploration Limited v Lachberg,[47] saying[48]

It should be remembered, of course, that judgments in declaratory proceedings only bind parties, except where proper representative orders have been made ... so that care should be taken to ensure that all necessary and proper parties are joined.[49]

**77 It is well recognised that one of the important considerations to weigh in the balance in exercising the discretion to grant or not grant a declaration is the utility or practical purpose that may be served by the grant. If it can be shown that a declaration would not serve any practical purpose, this will weigh heavily in the scales against the grant of declaratory relief.[50]

78 As is alluded to in a number of the statements above, where the persons whose interests are affected are numerous, and where those persons have the same interest, those persons may be represented in a proceeding by the making of a representative order such as is provided for by order 18 of the Supreme Court Rules.[51] Although the existence and effect of that rule was drawn to the attention of Mr Mulholland during argument, he did not seek to avail himself of it.

79 In summary, the principles arising from these authorities relevant to deciding this case are as follows. First, the person seeking a declaration needs to secure a proper contradictor, to ensure that the person or persons against whom the declaration is sought are brought before the Court. This enables the proper contradictor to be heard on the matter and to be bound by the declaration, as the determined-controversy is a res judicata as between the parties. Secondly, judgments in declaratory proceedings only bind the parties to the judgment. Thirdly, among the several considerations to weigh in the balance in exercising the discretion to grant or refuse a declaration, are the declaration's utility or practical purpose and the presence or absence of arguments opposing a plaintiff's interest.**

**80 Turning to the current case, and putting to one side the effect of the AAT's findings and lack of evidence as to the invalidity of the 28 November 2009 conference, the Court has not had the benefit of hearing from any other members of the DLP potentially affected by the declarations. Indeed, as mentioned above at [5], Mr Funnell is no longer the Federal President of the DLP and his interest in this matter is only to refute the allegations against him, that he is not and was not ever a DLP member nor the DLP's Federal President. Where there are serious questions as to whether Mr Mulholland has secured a proper contradictor, the Court will be extremely reluctant to make such declarations in the absence of persons who may be prejudiced.

81 Further, here, there are only two parties to the proceeding - Mr Mulholland and Mr Funnell. Making the declarations sought by Mr Mulholland would only bind the two of them, which strongly points to the futility of such declarations. Simply put, the declarations would serve no practical purpose, as the declarations would only bind Mr Mulholland and Mr Funnell, and not all members of the DLP potentially affected by such declarations.**

82 It follows from these principles that, in the absence of at least the current members of the Federal Executive if not also appointed representatives of those State Branches whose existence Mr Mulholland denies,

(b) Persons whose interests would be affected by the declarations will not be heard, and

(c) The declarations, if made, would have no utility.**

**83 Given that the exercise of the court's power to make a declaration is discretionary, I am firmly convinced that in those circumstances there is no real prospect a court would exercise its discretion to make the declarations sought.

84 In my view, this third reason puts beyond doubt the conclusion, reached for either or both of the first two reasons, that Mr Mulholland has no real prospect of success in the action.**

85 In summary, I have determined that Mr Mulholland has no real prospect of success on the basis of the following three, separate reasons:

**(a) The lack of pleaded or evidentiary support for Mr Mulholland's fundamental position, that the Federal Conference in Queensland in November 2009 was invalid;

(b) The effect of the findings of the AAT, upon hearing full evidence, that there was a properly-constituted meeting of the Federal Conference of the DLP held in November 2009, and the injustice, inefficiency and costliness of allowing Mr Mulholland to continue to call these findings into question in another forum; and

(c) Mr Mulholland's failure to secure a proper contradictor, as those persons who may be affected by the declarations Mr Mulholland seeks are not before this Court.**

**86 This then leaves for consideration s 64 of the Civil Procedure Act. That is, whether, despite being satisfied there is no real prospect of success in the proceeding, I should not dispose of the matter summarily either because it is not in the interests of justice to do so or because the dispute is of such a nature that only the full hearing on the merits is appropriate:

87 I am already of the view that there is nothing about the nature of the dispute that means only a full hearing on the merits is appropriate. However, I will consider whether it is not in the interests of justice to summarily dismiss the case in conjunction with addressing the question whether any adjournment should be granted.**

Should Mr Mulholland be allowed an adjournment?

**88 In my view Mr Mulholland should not be allowed an adjournment. In the end, he was equivocal about wanting any adjournment. He had no intention to apply to join any particular individual to the case. He did not advance any proposal as to whom he might invite to consent to being joined. Despite my suggestion that he may consider appointing a representative under Order 18, he took that matter no further. In the end, I was not satisfied that an adjournment would produce anything more than delay and wasted costs for no benefit.

89 On the other hand, Mr Funnell was represented in court by a barrister appearing pro bono. I accept for the purposes of this application what was asserted from the bar table (without objection or demurrer) that the DLP is composed of volunteers, with no paid office-bearers, and that the continual need to resist applications and claims brought by Mr Mulholland is both time consuming and oppressive on those members of the DLP he opposes.

90 Furthermore, I take into consideration that there are two other proceedings currently pending in VCAT which are likely to give rise to the same or similar question of fact as Mr Mulholland seeks to raise in this proceeding, namely that the 19 July 2014 Victorian State Conference was invalid. In turn, I anticipate that allegation will be founded upon the proposition that Mr Funnell and the other members calling themselves the Federal Executive in 2014 were not in fact that executive because their validity depends upon the validity of the 28 November 2009 conference which Mr Mulholland denies.

91 For these reasons, I am not satisfied that it is in the interests of justice to allow any adjournment or to decline to dispose of the matter summarily.**

92 There were several other matters raised by the parties in argument. Ultimately, because of the way I have decided the matter they were not necessary to determine. I will briefly mention only two of them.

**93 Mr Funnell raised questions of jurisdiction. In particular he queried whether this Court has the territorial jurisdiction to make the several of the declarations that Mr Mulholland seeks, especially those concerning the composition of the Federal DLP executive, as well as the declaration as to the Secretary of the New South Wales Branch of the DLP (declarations A, B, C and D, as set out in paragraph 38 above). Further, he queried whether the jurisdiction to make some of the declarations lay only in the exclusive jurisdiction of the Federal Court. Thirdly, Mr Funnell raised the question of whether this Court was the 'proper forum', claiming that this matter was either a special federal matter within the meaning of section 6 of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Vic) that must therefore be transferred to the Federal Court or, if not, at least one that ought to be transferred to that court.

94 Very little argument of substance was advanced on the topics.

95 For the purpose of these applications, I am content to assume that this court has inherent jurisdiction to make declarations relating to controversies between parties, and that the question of territorial jurisdiction is largely resolved by whether the Court's service reaches (or could reach) the defendants or those who should be defendants. The argument that the matter was a 'special federal matter' appeared to have little merit.**

**96 One of Mr Mulholland's arguments, seemingly put in passing, was that Mr Funnell had made a clear error in calling the Victorian State Conference in 2014. Mr Mulholland pointed to a letter sent by Mr Funnell on 7 April 2014,[52] where Mr Funnell stated that the Federal Executive of the DLP could still function with a quorum. Mr Funnell had referred to clause 73 of the Rules. That rule defines quorum as 'not less than one half of the number of office bearers at the respective level, plus one'.

97 Because four out of the six elected members of the Federal executive had resigned since the December 2013 conference, Mr Funnell expressed the view that the remaining two office bearers (himself and Rosemary Lorrimar) still made a quorum. Mr Mulholland said that this view of a quorum was inconsistent with what Robson J had said. However, Robson J did not express a concluded view on whether a quorum is made up of a proportion of the actual, current office bearers or of the full potential number of office bearers.[53]

98 In any event, whether or not Mr Funnell was correct in the 7 April 2014 letter is irrelevant. The calling of the July 2014 meeting by the Federal Executive was not a decision made only by himself and Ms Lorrimar purporting to be the executive. It was made by six people at a meeting convened by teleconference on 11 April 2014, being Mr Funnell, Ms Lorrimar (both in her role as Federal Vice President and State Secretary for Western Australia), three State Secretaries and Mr Madigan, the then-Federal Parliament Senate leader of the DLP.[54] All those present in the teleconference were part of the Federal Executive by virtue of clause 37 of the Rules. I also note that Mulholland did not claim (nor does he do so in his statement of claim) that the July 2014 conference was invalid because of a quorum defect in the convening of it. In the end, it was a red-herring.**

**99 It follows from the foregoing that I find that the plaintiff's case has no real prospect of success. I refuse his application to adjourn the proceeding for the reasons I have given. In my view the dispute is not of such a nature that only a full hearing on the merits is appropriate nor do I consider it is otherwise in the interests of justice to decline to dismiss the case summarily.

100 For those reasons, judgment will be entered in favour of Mr Funnell.**

[1] The spelling of the word 'Labour' in the name of the party is now controversial, having been changed in Victoria on 9 October 2014 by a decision of the Victorian Electoral Commission from 'Labor' upon an application by Mr Michael Murphy.

[2] Mulholland v Australian Electoral Commission (No 2) [2014] FCA 917 (1 September 2014); Mulholland v Australian Electoral Commission [2014] FCA 916 (1 September 2014); Mulholland v Funnell [2014] VSC 349 (18 July 2014); Mulholland v Australian Electoral Commission [2014] FCA 136; (2014) 219 FCR 1; Butler v Mulholland (No 2) [2013] VSC 662 (2 December 2013); Mulholland v Australian Electoral Commission [2013] HCASL 43 (10 April 2013); Mulholland v Australian Electoral Commission [2012] FCAFC 136 (19 September 2012); Mulholland v Victorian Electoral Commission [2012] VSCA 104; (2012) 36 VR 167; Butler v Mulholland [2012] VSC 123 (22 March 2012); Mulholland v Australian Electoral Commission [2011] AATA 879 (12 December 2011); Mulholland v Australian Electoral Commission [2011] AATA 717 (17 October 2011); Mulholland v Victorian Electoral Commission (VEC) [2011] VSCA 129 (13 May 2011); Mulholland v Victorian Electoral Commission (VEC) (Costs) [2011] VSC 161 (29 April 2011); Mulholland v Victorian Electoral Commission (VEC) [2011] VSC 89; (2011) 247 FLR 230; Mulholland v Victorian Electoral Commission [2010] VSC 130 (16 April 2010); Mulholland v Victorian Electoral Commission (Unreported, Victorian and Civil and Administrative Tribunal, MacNamara DP, 3 December 2009); Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181; Mulholland v Australian Electoral Commission [2003] FCAFC 91; (2003) 128 FCR 523; Mulholland v Australian Electoral Commission [2002] FCA 1255; (2002) 76 ALD 354.

[3] [2011] AATA 879 (12 December 2011).

[4] [2012] VSCA 104; (2012) 36 VR 167.

[6] Butler v Mulholland (No 2) [2013] VSC 662 (2 December 2013).

[7] Exhibit "JMV 6" to the affidavit of John Mulholland sworn 14 July 2014; Plaintiff's exhibit PX-3 in the plaintiff's Court Book, 115-6 ('CB').

[8] Ie as reflected in the fourth column in the table above.

[9] [2011] AATA 879 (12 December 2011).

[11] Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 23.03 ('the Supreme Court Rules').

[12] Wickstead v Browne (1992) 30 NSWLR 1, 11.

[13] Camberfield Pty Ltd v Klapanis [2004] VSCA 104 (21 May 2004

[14] Civil Procedure Act 2010 (Vic) ss 7, 8.

[15] [2013] VSCA 158 (24 June 2013).

[16] The Supreme Court Rules r 23.01(1)(a).

[17] LexisNexis, Williams' Civil Procedure Victoria, vol 1 (at Service 286), [23.01.15].

[18] In discussion, Mr Mulholland agreed that his argument as to the invalidity of the July 2014 Victorian State Conference held at Scoresby is founded, ultimately, upon the asserted invalidity of the November 2009 Federal Conference and the reasons for that invalidity: Transcript 19, lines 6-7.

[20] Affidavit references: Affidavit of John Mulholland sworn 14 July 2014, [15], [17], [18] (CB 25-26); affidavit of Michael O'Donohue sworn 22 January 2015, [4], [8], [11], [12] (CB 76-78); affidavit of John Mulholland sworn 29 January 2015 [3(b)]; [5(a)] (CB 80, 82).

[21] [2011] AATA 879 (12 December 2011).

[23] Mulholland v Australian Electoral Commission [2014] FCA 136; (2014) 219 FCR 1, 3 [5].

[24] Mulholland v Australian Electoral Commission [2012] FCAFC 136, [12] (Jacobson and Flick JJ).

[25] [2014] FCA 916.

[26] See Commonwealth v Sciacca (1988) 17 FCR 476, 480; Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87, 96-7; Comcare v Grimes [1994] FCA 1054; (1994) 50 FCR 60, 64.

[27] Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, 279; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342, 358. The debate on this topic might be more finely balanced if a party was to be joined to represent the DLP federally as proper contradictor (see more below).

[28] (1997) Aust Torts Reports 81-423.

[30] See Mortimer J to similar effect in Mulholland v Australian Electoral Commission [2014] FCA 916 (1 September 2014) [100], [112], [113].

[31] [1992] HCA 10; (1992) 175 CLR 564, 581-582.

[32] Citing Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 437 (Gibbs J).

[33] Rule 23.05 of the Supreme Court Rules is to the same effect.

[34] Lord Woolf and Jeremy Woolf, Zamir & Woolf: The Declaratory Judgment (Sweet & Maxwell, 4th ed, 2011) 99-100 [3-129] and cases referred to therein; J D Heydon, M J Leeming, P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) 617 [19-085] and cases referred to therein.

[35] [1972] HCA 61; (1972) 127 CLR 421, 437-8, the other members of the Court agreeing on this subject.

[36] [1921] 2 AC 438, 448.

[37] [1964] 1 WLR 219, 225.

[38] [1942] AC 332, 345.

[39] Lord Woolf and Jeremy Woolf, above n 34.

[41] P W Young, Declaratory Orders (Butterworths, 2nd ed, 1984) 16.

[42] Australian Consumer and Competition Commission v MSY Technology [2012] FCAFC 56; (2012) 201 FCR 378, 382-3 [14]-[16].

[44] Lord Woolf and Jeremy Woolf, above n 34, 267 [6-16].

[45] Heydon, Lemming and Turner, above n 34, 633 [19-235].

[46] Lord Woolf and Jeremy Woolf, above n 34, 3 [1-07].

[47] [1958] HCA 51; (1958) 101 CLR 119, 133-4.

[49] This passage was quoted in a paper written extra-judicially by Justice French, when a judge of the Federal Court of Australia (now Chief Justice of the High Court of Australia), titled 'Declarations - Homer Simpson's Remedy - is there anything they cannot do?' (University of Western Australia, Faculty of Law, Perspectives on Declaratory Relief, 30 November 2007) 2-3.

[50] Lord Woolf and Jeremy Woolf, above n 34, 168-9 [4-99]; Young, above n 41, 60-1 [703] and cases cited therein including The Dairy Farmers Cooperative Milk Company Limited v Commonwealth [1946] HCA 49; (1946) 73 CLR 381.

[51] Lord Woolf and Jeremy Woolf, above n 34, 267 [6-17], discussing Civil Procedure Rules 1998 (UK) SI 1998/3132), r 19.6, which resembles to the Supreme Court Rules, O 18.

[53] Butler v Mulholland (No 2) [2013] VSC 662 (2 December 2013) [135].