FEDERAL COURT OF AUSTRALIA

Mulholland v Australian Electoral Commission [2012] FCAFC 136

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Applicant pay the First Respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACOBSON AND FLICK JJ

1    We have had the opportunity of reading in draft the reasons for judgment of Cowdroy J. We agree that the appeal must be dismissed. Our reasons can be stated quite shortly. This is because, in our opinion, with one possible exception, the applicant has failed to identify any question of law which arises from the decision of the Tribunal.

2    In his application for review in the Tribunal, John Mulholland (‘the applicant’) sought to challenge the decision of the Australian Electoral Commission (‘the Commission’) to substitute the name of Mr Anthony Zegenhagen for his name as the registered officer.

3    The essential question which arose before the Tribunal was whether the substitution of Mr Zegenhagen for the applicant which was effected by the Commission under s 134(1) of the Commonwealth Electoral Act 1918 (Cth) (‘the Act’) was properly made in light of the provisions of cl 34 of the Constitution of the Democratic Labor Party (‘the DLP’).

4    In order to determine that question, the Tribunal had to decide whether a meeting of the Federal Conference of the DLP held on 28 November 2009 (‘the 2009 meeting’) was a properly constituted meeting of the DLP in accordance with cl 34 of the DLP Constitution and whether Mr Zegenhagen was validly appointed as the Federal Secretary of the DLP at that meeting.

5    In order to decide that question, the Tribunal had to decide five issues of fact which it set out at [26] of its reasons. It decided each of those issues adversely to the applicant.

6    In summary, the principle factual issues were, whether the Queensland, New South Wales, South Australia and West Australian branches of the DLP had been reconstituted prior to the 2009 meeting, whether those State branches had requested the Federal Conference of the DLP to convene the meeting and whether notice of the meeting had been given in accordance with the requirements of the DLP Constitution.

7    These factual issues arose because in order for the 2009 meeting to be a valid meeting, it was required by cl 34 of the Constitution to be a meeting of the Federal Conference held:

at the earliest practicable opportunity in the period between each federal election or as otherwise required by the Federal Executive or requested by a majority of the State Branches.

8    The Tribunal determined, at [50], that in accordance with cl 34, (and cl 65 which deals with the manner of calling a meeting) the requirements for calling a meeting are that it be required by the Federal Executive or requested by a majority of the State branches and that four months’ notice of the meeting be given to the State branches.

9    The Tribunal decided, at [38], that the New South Wales, Queensland and West Australia branches had been reconstituted during 2008. It was satisfied, at [42], that those Branches (and the Victorian Branch) which together constituted a majority of the State Branches, requested “by early July 2009” a meeting of the Federal Conference. It found that the South Australian Branch had been reconstituted “during or shortly after July 2009”. The Tribunal also rejected a submission of the applicant, at [52], that upon the proper construction of cl 34, a meeting of the Federal Conference can only be called by the Federal Executive.

10    The Tribunal went on to find, at [58] that all of the State Branches were notified of the meeting in accordance with cl 65 and, at [68] – [69], that Mr Zegenhagen was appointed as Registered Officer at the meeting which was conducted in accordance with all proper procedures, and in accordance with the requirements of the DLP Constitution.

11    As can be seen from the Tribunal’s reasons, the only question which may be said to have been one of law in the Tribunal’s determination in respect to these issues was the question of construction of cl 34.

12    Notwithstanding this, the applicant’s Amended Notice of Appeal from the Tribunal’s decision sets out what are said to be 17 questions of law from the Tribunal’ decision. One of those questions seeks in effect to raise the question of construction of cl 34 on which the applicant failed in the Tribunal. The other purported questions of law 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) (‘the AAT Act’).

13    The Tribunal’s view of the proper construction of cl 34 was plainly correct for the reasons which it gave.

14    There was no evidence to support those “Questions of Law” which were directed to the manner in which the Tribunal proceeded and no evidence to support any conclusion that the Applicant was denied a reasonable opportunity to present his case: cf s 39 of the AAT Act.

15    Nor was there any basis upon which this Court should or could exercise the power conferred by s 44(7) of the AAT Act to make those “findings of fact” set forth in the Amended Notice of Appeal.

16    The application which was made to receive fresh evidence under s 27 of the Federal Court of Australia Act 1976 (Cth) must be rejected, essentially for the reasons given by Cowdroy J in relation to that issue.

17    The authorities which deal with the discretion to receive further evidence under s 27 were reviewed by Conti J in Mandic v Phillis (2005) 225 ALR 760 at [63] – [66]. The effect of the authorities seems to be to dilute, although only slightly, the stringency of the common law test stated by Dixon CJ in Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444, and, earlier in Orr v Holmes (1948) 76 CLR 632 at 642. But what is now required at very least is that, ordinarily, the Court should be satisfied that the further evidence was not available at the trial and that the evidence which is proffered would be likely to have produced a different result if it had been available: see Guss v Johnstone [2000] FCA 1455 at [30].

18    The further evidence which the applicant sought to adduce does not satisfy those requirements for the reasons stated by Cowdroy J.

Associate:

Dated:    19 September 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

COWDROY J

19    John Mulholland (‘the applicant’) appeals from the decision of the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 12 December 2011 (Mulholland v Australian Electoral Commission and Mr Anthony Zegenhagen [2011] AATA 879). The application before the Tribunal concerned the applicant’s challenge to the validity of the election of an official, Mr Anthony Zegenhagen, as Federal Secretary of the Democratic Labor Party of Australia (‘the DLP’) and the registration of that person by the Australian Electoral Commission (‘the Commission’) as the ‘registered officer’ of the DLP pursuant to s 134(1) of the Act.

20    The Commission is established by s 6 of the Act. Its functions and powers are contained in s 7 of the Act and they include a wide range of issues concerning electoral matters and the provision of information and advice on electoral matters to the Parliament, the Government, Departments and authorities of the Commonwealth.

21    Registered officer of a political party is defined in s 4C(1) of the Act as ‘the person shown in the Register of Political Parties as the registered officer of the party’. Although the Act does not state the duties and responsibilities of a registered officer, such person is the person with whom the Commission corresponds as the representative of the registered political party.

22    Significantly the Tribunal found at [7] that the 2009 meeting was valid; that it appointed Mr Zegenhagen as the registered officer of the DLP and that the Commission had correctly made a change in the Register of Political Parties (‘the Register’) by substituting the name of Mr Zegenhagen for that of the applicant as the registered officer of the DLP.

23    In this appeal the applicant maintains that he was correctly elected as Federal Secretary of the DLP and that he, and not Mr Zegenhagen, should be registered as the Federal Secretary of the DLP and that the Commission erred in recording the alteration to the Register to remove his name and to have substituted Mr Zegenhagen.

24    In the proceedings before the Tribunal Mr Zegenhagen was not joined as a party by the applicant. However, as will be referred to hereunder, six days before the hearing commenced the Tribunal ordered that Mr Zegenhagen be joined. Mr Zegenhagen was not made a respondent to this appeal nor did he participate. However, in view of the Court’s findings, this omission is of no consequence.

25    It is necessary to record the relevant background facts and statutory provisions of the the Act and thereafter consider the relevant provisions of the critical clauses of the DLP Constitution to comprehend the submissions of the applicant.

LEGISLATION

26    Part XI of the Act is entitled Registration of Political Parties. Section 123, which is contained within Part XI contains definitions, inter alia, of ‘eligible political party’ and ‘secretary’.

27    Section 124 makes provision for registration of political parties as follows:

Subject to this Part, an eligible political party may be registered under this Part for the purposes of this Act.

28    Section 125 makes provision for the Commission to establish and maintain a register to be known as the Register which contains a list of political parties registered under the Act. There is no dispute that the DLP was so registered.

29    Section 126(2) provides that various information is to be included in an application for registration of an eligible political party. One requirement as provided by s 136(2)(c) is that such party:

Set out the name and address of the person who is to be the registered officer of the party for the purposes of this Act

30    Subsection 134(1) of the Act relevantly provides:

Where a political party is registered under this Part, an application may be made to the Electoral Commission, by:

...

(b) in the case of a political party other than a Parliamentary party – 3 members of the party;

to change the Register by:

...

(g) substituting for the name of the registered officer entered in the Register the name of a person specified in the application.

31    Section 134(3) provides:

Upon receipt of an application under subsection (1) or (1A), the Electoral Commission shall deal with the application in accordance with this Part and determine whether the change requested in the application should be made.

32    On 20 July 1984 on the application of the applicant and others, the DLP was registered as a political party under the Act. Until 8 January 2010 the applicant was recorded by the Commission as the registered officer of the DLP. However, on 9 December 2009 an application was made to the Commission by Mr Zegenhagen and three other members of the DLP to change the Register by substituting Mr Zegenhagen in place of the applicant as the registered officer of the DLP.

33    On 8 January 2010 a delegate of the Commission changed the DLP’s registration and substituted the name of Mr Zegenhagen in place of that of the applicant as the registered officer of the DLP. The Commission duly confirmed the delegate’s decision on 28 May 2010. Such decision was the subject of the applicant’s review before the Tribunal.

FACTS

34    During the mid-1970s the DLP was a political party with up to five senators holding office in the Commonwealth Parliament. However the party waned thereafter in all states except Victoria. The Victorian branch continued to operate at state and federal levels.

35    The applicant testified before the Tribunal that on 1 July 2007 a meeting of the Victorian State Conference was held; that such meeting was also a meeting of the Federal Conference; and that at the meeting he was elected as the Victorian and Federal Secretary of the DLP. A document entitled Resolutions of Victorian/Federal Conference of the DLP 2007 (‘the resolutions’) was tendered by the applicant.

36    From 2008 Mr Mulholland has instituted various proceedings in the Supreme Court of Victoria and in the Victorian Civil and Administrative Tribunal concerning the applicant’s claim to be recognised as the Secretary of the Victorian Branch of the DLP. These proceedings are not relevant for the determination of any issue before us.

37    The Tribunal noted that the resolutions relied upon by the applicant were undated and unsigned and made no reference to the election of the applicant to any position within the party. Further, the Tribunal observed that there were no minutes of a meeting on 1 July 2007, being the date which the applicant claims at which he was appointed Federal Secretary. The minute book which recorded the minutes of a meeting of the Victorian Branch of the DLP held on 6 July 2007 was produced to the Tribunal. However those minutes also contained no record of the election of the applicant either as Victorian Secretary or as Federal Secretary.

TRIBUNAL FINDINGS

38    Before the Tribunal the applicant submitted that since the minutes recorded the fact that he delivered the Executive Report, the Tribunal should infer that he was elected Federal Secretary. The Tribunal rejected such submission. The Tribunal found that there was no evidence before it to establish that the applicant was elected Federal Secretary at the DLP on or about 1 July 2007, nor that he had been elected to this position at any time after this date.

39    The Tribunal made the following essential findings, namely that the New South Wales branch of the DLP had been formed on 26 July 2008; that the Queensland and Western Australian branches were reconstituted no later than 8 October 2008; and that the South Australian Branch was reconstituted during or shortly after July 2009. It also found that a meeting of the Federal Conference was validly requested under the DLP Constitution by the State Branches of Queensland, New South Wales, Victoria and Western Australia (‘the State Branches’) which were the only branches in existence at the time the meeting was called.

40    Although the applicant challenged the status of the participation of the Victorian Branch in the arrangements for the 2009 meeting as “bogus”, the Tribunal rejected such contention and found that the request by other State Branches, even assuming that such contention had merit, would still have been made by the requisite number of three State Branches.

41    The Tribunal found that reasonable steps were taken to notify members of the proposed 2009 meeting; that while not all members might have received notification there was no requirement that all members of the DLP receive notice; and that Mr Zegenhagen and others who were organising the meeting took all reasonable steps to publicise the meeting and went beyond the requirements for notice as contained in the DLP Constitution.

42    Further, the Tribunal found that a meeting of the Federal Conference of the DLP was held in Sydney on 23 July 2011 and was attended by representatives of all State Branches; that at such meeting Mr Zegenhagen was elected unopposed as Federal Secretary of the DLP; and implicitly that the Federal Conference accepted at such meeting that Mr Zegenhagen had continued in the role of registered officer of the party since the 2009 meeting.

FRESH EVIDENCE

43    At the commencement of the hearing before us, the applicant sought to rely upon two affidavits as constituting fresh evidence. In his affidavit sworn on 8 May 2012 Mr Michael Patrick Markham O’Donohue, the Secretary of the New South Wales Branch of the DLP, challenges the truth of testimony given by Mr Zegenhagen concerning the arrangements for the 2009 meeting. Mr Zegenhagen testified before the Tribunal:

We check with each State Secretary, they agreed on it, then they had to do a location, which they agreed on Brisbane.

44    Mr O’Donohue states that he received no communication concerning such matter; and makes other challenges to the testimony of Mr Zegenhagen.

45    In his affidavit sworn on 20 May 2012 Mr Patrick Pasquale Crea testified that a meeting of the DLP Federal Executive held on 24 November 2009 declared the 2009 meeting which was scheduled to be held in Brisbane four days later was a “bogus” meeting.

46    The Court indicated to the applicant that it would receive such evidence and would consider it in light of the applicant’s claim that he was not afforded a fair opportunity of presenting his case fully to the Tribunal. The Court would then determine whether such evidence should be admitted or rejected.

GROUNDS OF APPEAL

47    By his Amended Notice of Appeal the applicant raises 17 issues. It will be convenient to consider collectively some of such issues as they are inextricably linked to one another. However, it is apparent that the Amended Notice of Appeal has been drafted by a layperson, and that several ‘grounds’ do not raise an issue of law arising fro the Tribunal’s decision. Section 44 of the AAT Act provides that an appeal lies to this Court ‘on a question of law, from any decision of the Tribunal’. Since each stated ground of appeal is verbose, the Court will summarise the essence of the ground relied upon.

GROUND 1 & 2

48    The applicant claims that Mr Zegenhagen should not have been joined by the Tribunal into proceedings (see John Mulholland v Australian Electoral Commission and Anthony Zegenhagen [2011] AATA 717) that such joinder should not be made. The applicant claims that as a result of such joinder at short notice he was denied the opportunity to question Mr Zegenhagen effectively, and denied the opportunity to present evidence to rebut Mr Zegenhagen’s testimony.

49    In its decision to join Mr Zegenhagen in the application before it, the Tribunal referred to and adopted the decision of the High Court of Australia in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (“Shi”). The applicant claims that the Tribunal erred in relying on such decision.

Did the Tribunal err in adopting Shi?

50    The issue raised by the first ground of appeal is a matter which falls within s 44 of the AAT Act since a question of law is raised.

51    In reaching its decision to join Mr Zegenhagen, the Tribunal referred to Shi. That decision held that in determining whether a person was a fit and proper person to give immigration assistance, it was necessary that the Tribunal, at the time of its decision, have the benefit of current information. Kirby J stated at [41] of that decision:

When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make "a decision in substitution for the decision so set aside", as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.

52    The Tribunal President considered that up-to-date assistance was necessary for the Tribunal to make a fully informed decision, and in this context referred to Shi. The President also observed that since Mr Zegenhagen was directly involved in the dispute, he could assist the Tribunal by providing up-to-date information. The President also observed that the applicant was not “particularly opposed” to such joinder.

53    The Court finds that there is nothing exceptional concerning the decision in Shi, nor is there any error in the Tribunal’s adoption of such principle in making its decision to join Mr Zegenhagen.

Prejudice resulting from joinder

54    The applicant claims that he was not aware of the evidence which Mr Zegenhagen would give to the Tribunal in relation to the activities of the DLP in branches other than the Victorian Branch.

55    The applicant must have been aware prior to the Tribunal hearing that the events leading to the calling of the 2009 meeting were of pivotal significance. This can be seen from the evidence. On 15 October 2011 Mr Zegenhagen had sworn an affidavit in which he specifically deposed to the issue upon which the applicant now relies to adduce the fresh evidence. Paragraphs 11-13 inclusive of that affidavit testified as follows:

11.     Prior to the Applicant’s defeat at the Victoria State Conference, the most recent federal election was held on 24 November 2007 Federal Election. By mid-2009, the Applicant had not been Victorian State Secretary for almost a year, a Federal Conference was overdue, and the Applicant was reluctant to co-operate with his Victoria and interstate colleagues.

12.    As a result, discussion between the State Secretaries of all active state branches. By agreement between the state branches, a Federal Conference was convened for Brisbane for 28 November 2009, at which only the New South Wales Sate Branch was unrepresented, having given only 48 hours notice of their dissension.

13.     As Federal Secretary (and, in the absence of a Federal Conference, recognised as the DLP’s (Federal) Registered Officer by the AEC), the Applicant was invited to attend, with his transport ad accommodation costs to be met. Further offers included a Queensland proposal of Life Membership of the DLP, each of which was declined.

56    The two critical issues were clearly identified by Mr Zegenhagen’s affidavit; namely whether the State Branches were empowered to call such meeting, and secondly whether the agreement had been called with the agreement of all State Branches. The standing of the State Branches to call such meeting and of the notification to all members was directly raised.

57    The joinder of Mr Zegenhagen was ordered on 17 October 2011 and the hearing before the Tribunal commenced on 21 October 2011, namely six days after Mr Zegenhagen swore his affidavit. The Court assumes that the affidavit was duly served upon all parties including the applicant prior to the Tribunal hearing. It was therefore open to the applicant to call Mr O’Donohue to testify on these critical issues if he wished to rebut Mr Zegenhagen’s affidavit. In fact Mr Crea was called and testified as to his receiving no notice of the 2009 meeting, and that he refused to attend because it was a “bogus conference”.

58    The transcript of the hearing before the Tribunal on 21 October 2011 records that the applicant cross-examined Mr Zegenhagen. No questions were put by the applicant to Mr Zegenhagen concerning any alleged lack of contact by him with the Secretary of the New South Wales Branch of the DLP as is now testified to by Mr O’Donohue. Nor were any questions put to Mr Zegenhagen concerning the withdrawal of the New South Wales Branch from the 2009 meeting; nor of the validity of the 2009 meeting.As already referred to, applicant could have called Mr O’Donohue to challenge Mr Zegenhagen’s affidavit evidence but chose not to do so.

Fresh evidence

59    We have considered the “fresh evidence” but find that it was evidence which was available to be called prior to the hearing before the Tribunal. As such, it does not qualify for the definition of “fresh evidence”. To qualify as “fresh evidence” the evidence must be such as it was not available for use at the trial and there must be a high degree of probability that the result of the proceedings below would have been different had it been received at the trial: see Shedden v Patrick (1869) LR 1 HL Sc 470; Turnbull v Durval [1902] AC 429; McDonald v McDonald (1960) 113 CLR 529. For this reason the Court will not admit the affidavits of Mr Crea sworn on 20 May 2012 and of Mr O’Donohue sworn on 18 May 2012 into evidence.

60    We see no valid basis for the complaint that any denial of natural justice as claimed was suffered by the applicant.

GROUNDS 3 & 4: WHETHER THE TRIBUNAL WAS REQUIRED TO PROVIDE ITS REASONING PROCESS IN RESPECT OF ITS ADOPTION OF MR ZEGENHAGEN’S EVIDENCE, AND WHETHER THE TRIBUNAL “GAVE CONSIDERATION” TO ANY DETRIMENT CAUSED TO THE APPLICANT BY REASON OF SUCH ADOPTION

61    The applicant submits that he suffered detriment because of the finding of the Tribunal that Mr Zegenhagen’s evidence could be relied upon in respect of several issues, where conflicting evidence existed between the evidence of Mr Zegenhagen and witnesses who testified for the applicant.

62    Before deciding the several issues identified by it for determination the Tribunal said:

Mr Zegenhagen filed an affidavit in these proceedings and gave evidence. We are satisfied that he gave his evidence truthfully and to the best of his recollection. Unless otherwise stated, additional findings of fact made in considering the issues are based on his evidence.

63    The Tribunal was entitled to form its own view of the evidence and insofar as Mr Zegenhagen‘s evidence was concerned it found it to be reliable and the preferable version of events. As was held in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, this Court cannot interfere with the Tribunal’s finding unless it can be shown that the Tribunal has failed to use or has palpably misused its advantage in determining credibility of a witness or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. The Court has heard no evidence that warrants the overturning of the Tribunal’s finding as to credibility.

64    The applicant also submitted that the Tribunal did not provide him with an opportunity to make submission in reply “to the detriment caused to himself and to his case”.

65    The applicant called various witnesses in support of his claim but apparently did not consider it sufficiently important to call Mr O’Donohue to attempt to rebut the evidence of Mr Zegenhagen. Further, the transcript of the Tribunal hearing records that the applicant made submissions, and did not indicate that he wished to make any further submissions. In these circumstances the Court rejects the submission that the applicant was not provided with the opportunity to present his case.

66    Lastly, the record shows that the President of the Tribunal clearly understood the applicant’s several claims, namely that the 2009 meeting was unconstitutional because the State Branches were improperly constituted; that the State Branches had not sought the approval of the Victorian State Executives to convene the 2009 meeting; that the absence of such consent resulted in the conclusion that the 2009 meeting was invalid; and that in any event, notification had not been made to all members of the DLP.

67    The Tribunal was invested with jurisdiction under s 43(1) of the AAT Act to make its determination on findings of fact, which are contained in its decision: see s 43(2B) of the AAT Act. The Court finds that there is no basis for the submission that the Tribunal did not understand the applicant’s claims.

GROUND 5: DID THE TRIBUNAL HAVE “JURISDICTION TO DECLARE ITSELF ‘SATISFIED’ ON VARIOUS ISSUES OF FACT”?

68    The applicant claims that the Tribunal’s findings of fact were “based on errors of law, including a failure first to be satisfied that it had jurisdiction to make the findings”.

69    The role of the Tribunal must be borne in mind. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589, Bowen CJ and Deane J said:

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

70    It is apparent that the Tribunal determined the issues before it on the evidence and made its findings of fact accordingly. This Court has no power to evaluate the evidence before the Tribunal: see Brown v Repatriation Commission [2006] FCA 914 at [7] per Branson J.

GROUND 6

71    By this ground the applicant seeks an interpretation of various clauses of the DLP Constitution and seeks a ruling whether a reconstituted State Branch of the DLP must acknowledge the authority of the Federal body and obtain the recognition of the Federal Executive before the State Branch can be reconstituted. The applicant submits that the Queensland, Western Australia and South Australia branches had not been properly reconstituted, unless each branch adopted a motion under the DLP Constitution. The applicant submits that the Tribunal erred in finding that such branches were reconstituted.

72    The provisions of the DLP Constitution relevantly provide:

Clause 34: Federal Conference: The supreme governing body of the Democratic Labor Party (DLP) of Australia shall be the Federal Conference, meeting at the earliest practicable opportunity in the period between each federal election or as otherwise required by the Federal Executive or requested by a majority of the State Branches. The Federal Executive may convene a Federal Conference by way of correspondence or by postal vote in the same manner applicable to a State Conference. Any questions resolved in this manner shall have the full effect of Federal Conference decisions.

Clause 37: Federal Executive: The Federal Executive shall be the ruling authority to administer the Democratic Labor Party, interpret the Constitution and Rules and implement policy, in accordance with decisions of the Federal Conference. It shall meet annually, or at other agreed intervals, and 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.

Clause 45: With State Executive approval, any member of the party may convene a meeting to form a Local Branch or Support Group, which shall be constituted where the members present adopt a motion to the effect, “That this meeting supports the principles, objectives and platform of the Democratic Labor Party and agrees to establish the ……………….. Branch/Support Group, under the Constitution and Rules”. Nominations shall be then sought and an election conducted for the office-bearers of the Local Branch/Support Group formed.

Clause 148: Until the reconstitution of a Branch of the Democratic Labor Party (DLP) of Australia in a State other than Victoria, decisions of the State Conference and the State Executive of the Victorian Branch shall have respective standing as Federal Conference and Federal Executive decisions, to the extent of their relevance to the federal context. At any time, the effect of this rule shall apply, mutatis mutandis, to any single remaining State Branch.

73    The Tribunal found that the DLP Constitution made provision for the creation of State Branches. The Constitution did not however prescribe any procedure for the creation of a State Branch and as the Tribunal found, the majority of State Branches was empowered to create a Federal Conference.

74    At [31]-[33] the Tribunal found:

31. On 20 October 2008 the Registrar of Political Parties at the Electoral Commission wrote to “Mr O’Donohue DLP NSW” thanking him for his advice of 16 October 2008 “that the NSW State Branch of the Democratic Labor Party (DLP) of Australia has reformed...” The letter referred also to the branch having reformed on 26 July 2008.

32. On 8 October 2008 Mr Mulholland sent an email to Mr Zegenhagen advising him of the need for each State branch to lodge an annual return with the Electoral Commission. The email included the following statement:

As the Queensland branch of the DLP has been formally established or re-established, an Annual Return is required from the Party Agent appointed by the Queensland branch – probably yourself, as Secretary and Agent.[18]

33. Also on 8 October 2008 Mr Mulholland sent emails in similar terms to that referred to in the preceding paragraph to Mr O’Donohue, referring to the New South Wales branch and to Brian Peachey, referring to the Western Australian branch.

75    The Tribunal noted that the applicant admitted sending the emails. However it also noted that the applicant submitted that “they [the emails] do not indicate that the branches had been reconstituted under the Constitution as there had been no acceptance of their reconstitution by the Federal Executive”.

76    The Tribunal rejected the submissions of the applicant and found at [34]:

We do not accept this argument. There is nothing in the Constitution to support the contention that to be reconstituted a State branch must be recognised by the Federal Executive. The three emails are evidence of the reconstitution of each of the State branches by 8 October 2008.

77    There is nothing to indicate that the findings of the Tribunal concerning its interpretation of the DLP Constitution were erroneous. Accordingly the issue raised by ground 6 is rejected.

GROUNDS 7, 8 & 9

78    Each of these grounds of appeal again raise questions of interpretation of the DLP Constitution, and challenge the findings made by the Tribunal relating to the validity of the incorporation of the several State Branches of the DLP. The grounds raise suppositions which were not raised before the Tribunal, and were therefore not considered by it. The findings of the Tribunal concerning the valid reconstitution of the State Branches render such grounds otiose.

79    During the course of oral submissions before us the applicant claimed that the DLP Constitution required four members of the State Executive to pass a valid resolution, and that the resolution to call a meeting of the Federal Executive (the 2009 meeting) was invalid because of the lack of persons so voting. However the applicant conceded that there was no evidence that four persons were not present when resolutions were passed by the State Executive which the applicant sought to challenge.

80    The Tribunal found at [51]–[53]:

51. We have already decided that the meeting was requested by a majority of the State branches.

52. Mr Mulholland argued that the correct interpretation of cl 34 is that a meeting of the Federal Conference can only be called by the Federal Executive and that those who gave notice of the meeting did not constitute the Federal Executive. He contended that, in accordance with cl 148, notice of the meeting had to be given by the Victorian State Executive which was also the Federal Executive for this purpose.

53. We do not agree with this argument. First, by the time the Federal Conference was convened, branches of the DLP had been reconstituted outside Victoria so that the clause no longer operated. Secondly, putting aside the question of who constituted the Victorian State Executive at the time, cl 34 does not mean that only the Federal Executive can issue the notices to call a meeting of the Federal Conference. To determine otherwise would mean that the Federal Executive could negate the request of the State branches which are the divisions of the Conference itself. [Footnotes omitted]

81    The Tribunal’s findings are findings of fact. The Court can only have regard to questions of law and accordingly the finding of fact above cannot be reviewed. In so far as the issues raised by the applicant raise mixed questions of fact and of interpretation of the DLP Constitution, no question of law arises. There appears to be ample evidence to support the Tribunal’s finding and that it was open to the Tribunal to make such findings even though the applicant does not agree with the Tribunal’s decision.

GROUND 10

82    This ground asks the question whether the Federal Executive has the power to declare “bogus or unauthorised a foreshadowed meeting of the DLP purporting to be a DLP Federal Conference”.

83    This issue does not arise in view of the Tribunal’s finding that the 2009 meeting was properly requested by a majority of the State Branches under cl 34 of the DLP Constitution: see findings at [51]-[53]. Further, no proper ground of appeal has been identified. There is no error of law as alleged. This ground is accordingly rejected.

GROUND 11: INTERPRETATION OF THE DLP CONSTITUTION

84    This ground raises the rhetorical question whether the Tribunal had the power, “standing in the place of the commission” to determine “if, when and how a Federal Conference of the DLP was required to be held…” and other issues relating to the change of registered officer of the DLP.

85    This ground does not identify any error of law. However it is apparent that the Tribunal found that the 2009 meeting comprised a valid Federal Conference and that Mr Zegenhagen was properly appointed the registered officer of the party at that conference. These matters are findings of fact which cannot fall within the purview of this appeal. There is no apparent challenged to the jurisdiction of the Tribunal to make such findings but if this is the true import of such ground, the factual findings made were matters relevant under s 134(3) of the Act (as set out hereunder). As such, this ground must be rejected.

GROUND 12: DID THE TRIBUNAL STANDING IN THE PLACE OF THE COMMISSION PREDETERMINE THE ISSUE?

86    This ground of appeal refers to a predetermination of the issues to be decided by the Commission. Such words connote bias. Mr Mulholland, in oral submissions, claimed that there was bias on the part of the Commission because it provided some assistance to Mr Zegenhagen in response to his inquiry relating to the process for the holding of the 2009 meeting. Mr Mulholland also submitted that bias on the part of the Tribunal can be established by virtue of the Tribunal’s decision to join Mr Zegenhagen to the proceedings.

87    Before the Tribunal the applicant claimed that the Commission prejudged or pre-determined the issues surrounding Mr Zegenhagen application to change the registered officer to his detriment. The applicant relies upon an email sent by the Commission to Mr Kavanagh on 14 September 2009 reporting upon the dispute as evidence of bias. However this issue was not pursued orally before the Tribunal since it does not appear that any evidence was led by the applicant on this specific issue, nor were any submission made asserting bias.

88    Under s 134 of the Act the Commission was empowered to change the Register. Section 134(3) describes those powers as follows:

Upon receipt of an application under subsection (1) or (1A), the Electoral Commission shall deal with the application in accordance with this Part and determine whether the change requested in the application should be made.

89    An allegation of bias by a decision-maker is a serious matter requiring strict proof: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434. The mere fact that a decision is made which is unfavourable to a party does not result in a finding.

90    The Commission’s statutory function under s 134(3) is to consider and determine the application. Although the applicant claimed that the Commission had “intermeddled” in the determination to change the Register, and had actively assisted Mr Zegenhagen, there is no foundation for such assertion. Correspondence written by the Commission to Mr O’Donohue, and Mr Zegenhagen demonstrates that the Commission did no more than fulfil its statutory obligations. Indeed, an examination of the correspondence commencing in June 2009 and extending to December 2009 passing between the Commission, Mr Mulholland and others having an interest in the dispute shows that the Commission was very cautious not to accede to an initial request to replace Mr Mulholland as the registered officer and to abide the decision of the Federal Conference at the 2009 meeting. The Commission observed in a letter dated 15 October 2009 addressed to the Registrar of Political Parties that a Federal Conference was to be held and the election of office-bearers should resolve the dispute. Only after such conference was held and a report made to the Commission did the Commission determine that the rightful registered officer was Mr Zegenhagen, and not the applicant.

91    It is not part of the Commission’s functions to prefer any person as the registered officer of a political party. In this instance, the Commission ultimately made its decision having satisfied itself that it reflected the resolution of the Federal Executive. No specific fact has been pointed to by the applicant in support of his charge of bias. The email from the Commission to Mr Peter Kavanagh MLC on 14 September 2009 was no more than a report to Mr Kavanagh stating clearly that the Commission did not have sufficient information to enable a decision to be made as to who should be the registered officer. The letter clearly pointed out that the Commission took no role in resolving internal disputes within a political party. Mr Mulholland’s complaint that such notification was not provided to him suggests that he had some right to be included in the correspondence. No such right exists. No possible ground of bias arises from such claim.

92    The applicant did not develop this submission further before us on the appeal and we are satisfied that there is no evidence to support the assertion that the Commission was biased. Further, if it is intended that bias extended to the Tribunal, there is no basis for any claim. Mr Mulholland’s claim that his position as Federal Secretary of the Victorian Branch simultaneously made him the Federal Secretary of the DLP because of the absence of the creation of other branches in other states cannot be sustained in view of the history of the 2009 meeting.

GROUND 13: INTERPRETATION OF DLP CONSTITUTION

93    Ground 13 raises the question of the “proper construction” of cl 148 of the DLP Constitution and cl 137 thereof, and questions whether there was power to reconstitute the State Branch when the Victorian State Executive retained authority as a Federal Executive. The applicant seeks to compare and to ask rhetorically ask whether the Victorian State Executive retained authority as a Federal Executive over the reconstituted State Branches and the election of members.

94    No error of law is raised by this ground, but instead seeks a Court ruling upon the interpretation of two clauses. Again since no error of law by the Tribunal is identified, this ground does not constitute valid ground of appeal.

GROUND 14: INTERPRETATION OF DLP CONSTITUTION

95    The question raised by ground 14 is stated to be “whether the relevant request is required to be made by State Branches as properly construed [sic – constituted] under the Rules for the holding of a Federal Conference and whether such request is required to be made by the State Branches to the Federal Executive”.

96    This again is not a valid ground of appeal since no error of law is identified. Further, this ground merely appears to seek a revisitation of the Tribunal’s findings.

GROUND 15: WHETHER “REQUESTED” IN CLAUSE 34 OF THE DLP CONSTITUTION MEANS A REQUEST OF A VALIDLY CONSTITUTED STATE BRANCH TO HOLD A FEDERAL CONFERENCE TO THE FEDERAL EXECUTIVE

97    This ground seeks an interpretation by this Court of cl 34 of the DLP Constitution. Clause 34 provides:

Federal Conference: The supreme governing body of the Democratic Labor Party (DLP) of Australia shall be the Federal Conference, meeting at the earliest practicable opportunity in the period between each federal election or as otherwise required by the Federal Executive or requested by a majority of the State Branches. The Federal Executive may convene a Federal Conference by way of correspondence or by postal vote in the same manner applicable to a State Conference. Any questions resolved in this manner shall have the full effect of Federal Conference decisions.

98    The Tribunal considered this clause and the applicant’s submissions. The Tribunal found, as reproduced above, that the clause had no operation in view of the fact that the DLP branches had been constituted outside Victoria. Clause 34 does not require a majority of State Branches to obtain the permission of the Federal Executive to hold a Federal Conference; nor does it suggest that a failure to do so renders such conference invalid. This grant seeks to revisit a finding of fact and this ground is accordingly rejected.

GROUND 16: MISUNDERSTANDING OF THE TRIBUNAL

99    Ground 16 raises the question of whether the Tribunal “misapprehended the rationale for the evidence” provided by the applicant in response to Mr Zegenhagen’s claim that all DLP members on a list were notified and whether in consequence the Tribunal’s decision was carried.

100    The Tribunal found that notices for the calling of the 2009 meeting were mailed to all known members in every state using a database kept by the applicant; and that such database was supplemented by the State Branches; and that notices were sent out to members in July 2009 advising of the 2009 meeting. Before the Tribunal Mr Zegenhagen gave evidence of advertisements placed in local newspapers in New South Wales and Queensland providing notification of the 2009 meeting, and of notices sent to known members of the DLP. The Tribunal noted Mr Crea’s evidence that he never received any written notice of a proposed meeting, as did other witnesses called by the applicant. However, the Tribunal found at [65] of its decision:

Having considered the evidence of these witnesses we are satisfied that they all were aware of the proposed meeting to be held in Brisbane. There is no evidence to suggest that anyone was prevented from attending the meeting had he or she wished to do so. We are satisfied that each of the witnesses was a supporter of Mr Mulholland in the dispute within the Victorian branch.

101    If, by this ground of appeal, the applicant maintains that Mr Zegenhagen was untruthful in his evidence, the Court refers to the finding of the Tribunal, being a finding of fact, that Mr Zegenhagen was a witness of truth. Accordingly this ground is rejected.

GROUND 17

102    This ground raises the question whether the Tribunal was “required to consider other evidence before it instead of relying upon an absence of evidence in incomplete minutes of a DLP Victorian executive meeting”.

103    Such ground is incomprehensible. No specific evidence is pointed to. If the applicant is referring to the fact that a finding was made that there was no evidence before the Tribunal that he was elected as Federal Secretary of the DLP on or about 1 June 2007 or at any time after that date, this is a finding of fact that cannot be reviewed. Accordingly this ground of appeal is rejected.

104    It is clear from the grounds of appeal that the applicant’s challenges to the process by which the 2009 meeting was called fail. The State Branches were authorised to call such meeting; no prior permission of the Federal Executive was required; and proper notice was given. At such meeting Mr Zegenhagen was properly appointed as the Federal Secretary, and the Commission acted correctly in recording him as the registered officer pursuant to s 134(3) of the Act.

105    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    19 September 2012