FEDERAL COURT OF AUSTRALIA

Mulholland v Australian Electoral Commission [2014] FCA 136

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to lodge an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) is refused.

2.    The application under s 39B of the Judiciary Act 1903 (Cth) is summarily dismissed.

3.    The Applicant pay the Respondent’s costs.

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

REASONS FOR JUDGMENT

introduction

1    The applicant in this proceeding, John Mulholland, was once the registered officer of the Democratic Labour Party of Australia (“DLP”), a political party registered under Part XI of the Commonwealth Electoral Act 1918 (Cth) (“the Commonwealth Electoral Act”). The respondent, the Australian Electoral Commission (“AEC”), has various statutory functions under the Commonwealth Electoral Act, which include maintenance of the Register of Political Parties under Part XI of that Act (“the Register”).

2    Part XI of the Act includes provision for identification of the individual who is the point of contact between the AEC and a registered political party, called the “registered officer” of the party: see s 126(2)(c). One of the AEC’s functions is to make decisions in relation to applications to change the registered officers of registered political parties: see s 134. The registered officer has some important functions, including nomination of the party’s candidates in elections conducted under the Act, thereby verifying their endorsement by the registered political party: see s 169B.

3    The proceeding revolves around the fact that on 8 January 2010 a delegate of the AEC decided to change the Register pursuant to s 134(6) of the Commonwealth Electoral Act, by substituting Anthony Zegenhagen for Mr Mulholland as the registered officer of the DLP (“the delegate’s decision”). Mr Mulholland sought a review of the delegate’s decision by the AEC pursuant to s 141(2) of the Commonwealth Electoral Act, and the AEC affirmed the delegate’s decision on 28 May 2010 (“the AEC decision”).

4    Mr Mulholland now seeks judicial review of the delegate’s decision under:

(a)    the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”); and

(b)    s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”).

He seeks orders to set aside the decision to replace him as the registered officer of the DLP, declarations that he is the registered officer, and an injunction or an order of mandamus restoring him to that position.

5    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; 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.

6    Having exhausted these rights of appeal, Mr Mulholland now seeks to go back to the start and commence a fresh application for judicial review of the delegate’s decision, this time doing so under the ADJR Act and the Judiciary Act.

7    The proceeding was filed on 12 September 2013. There is no fixed time period for an application for review under the Judiciary Act, but the ADJR Act provides a 28 day time limit within which to lodge an application under that Act. Mr Mulholland seeks to lodge the application about three years and eight months outside that time limit. He seeks leave pursuant to s 11(1)(c) of the ADJR Act and r 31.02 of the Federal Court Rules 2011 (“the Rules”) to extend the period within which to lodge the application. He submits that a decision of the Victorian Court of Appeal has given rise to new circumstances which indicate that the extension of time should be granted: see Mulholland v Victorian Electoral Commissioner & Anor [2012] VSCA 104.

8    The AEC opposes the extension of time sought. It argues, amongst other things, that the fact that the proceeding lacks merit together with the lengthy delay strongly militates against an extension. It also seeks summary dismissal of the application under s 39B of the Judiciary Act, and (if leave to extend time for lodgement of the ADJR application is granted) the exercise of discretion to dismiss that application too.

9    The AEC contends that the application to review the delegate’s decision of 8 January 2010 is misconceived as that decision is no longer operative. It argues that the AEC decision of 28 May 2010 is the operative decision for any review application, yet no review of that decision is sought. Even if the delegate’s decision is operative it argues that no error of law can be established. It also points to discretionary considerations which weigh against granting relief, particularly the potential for interference with the rights of third parties who may have relied on the Register in the period from January 2010.

10    For the reasons set out below, I refuse the application for an extension of time to lodge the application under the ADJR Act and I order summary dismissal of the application under the Judiciary Act.

the Facts and procedural history

Mr Mulholland’s involvement in the DLP

11    From its beginnings in 1955 the DLP has been, and remains, an unincorporated voluntary association governed under its Constitution. It is uncontroversial that Mr Mulholland has been actively involved in the DLP at a senior level for more than three decades. He has a long-standing interest in the party’s origins and development, and engagement with the party’s internal affairs, including by playing a role in the review that produced the current DLP Constitution in 2000. He has stood as a DLP candidate in a number of Federal and State elections.

12    Prior to the mid-1970s the DLP was a party with up to five Senators in the Australian Parliament. But in the mid-1970s the organisation of the party collapsed in all states except Victoria, and from that time the Victorian Branch of the DLP organised and stood candidates in Federal and Victorian State elections.

13    In 1984 Mr Mulholland was both Victorian State Secretary and Federal Secretary of the DLP. On 20 July 1984, the DLP was registered with the AEC as a political party pursuant to s 133 of the Commonwealth Electoral Act. As Federal Secretary Mr Mulholland became the registered officer under that Act as recorded in the Register. Mr Mulholland remained the registered officer until the delegate’s decision of 8 January 2010 to which this proceeding relates.

The decision of the Victorian Electoral Commission

14    At the Victorian State Conference of the DLP held on 13 September 2008 Mr Mulholland was defeated by Mark Farrell in a contested ballot for the position of Victorian State Secretary. On 17 October 2008 the Victorian Electoral Commission (“VEC”) recognised Mr Farrell as Victorian State Secretary. On 18 December 2008 the VEC also recognised him as the registered officer of the Victorian Branch under the Electoral Act 2002 (Vic) (“the State Electoral Act”).

15    Mr Mulholland challenged each of these decisions in the Victorian Civil and Administrative Tribunal (“VCAT”) on the basis that two delegates who voted in the ballot were ineligible to do so. VCAT dismissed these applications: Mulholland v Victorian Electoral Commission (Unreported, Victorian Civil and Administrative Tribunal, Macnamara DP, 3 December 2009).

16    Mr Mulholland sought and was granted leave to appeal VCAT’s decision to the Victorian Supreme Court: Mulholland v Victorian Electoral Commission & Anor [2010] VSC 130 per Forrest J. The Supreme Court affirmed VCAT’s decision: Mulholland v Victorian Electoral Commission & Anor [2011] VSC 89 per Williams J.

17    The applicant then sought and obtained leave to appeal to the Victorian Court of Appeal: Mulholland v Victorian Electoral Commission & Anor [2011] VSCA 129. On 19 September 2012 the Court of Appeal per Hansen JA, with whom Redlich JA and Kyrou AJA agreed, held (at [113]) that the election of office bearers for the Victorian branch of the DLP on 13 September 2008 was invalid to replace Mr Mulholland as Victorian State Secretary. The Court held (at [114]) that as the process to replace the registered officer on the register maintained by the VEC was required to be signed by Mr Mulholland as the Victorian State Secretary, the application to change the register was incompetent. Mr Mulholland was reinstated as the registered officer of the Victorian Branch under the State Electoral Act, but only for the period between 18 September 2008 and 2 August 2009. He was also treated as continuing as the Victorian State Secretary for that period: Mulholland v Victorian Electoral Commissioner & Anor [2012] VSCA 104.

18    In its decision the Court of Appeal construed clause 4 of the DLP Constitution which deals with membership of the DLP and eligibility to vote in its elections. Mr Mulholland contends that the Court of Appeal’s construction of clause 4 is a new circumstance which justifies the present proceeding, where he might otherwise be seen to be rearguing matters already dealt with.

The delegate’s decision

19    Although Mr Mulholland disputes its legitimacy as he claims it was convened without proper authority, the Federal Conference of the DLP was held on 28 November 2009. At this meeting Mr Mulholland was defeated by Mr Zegenhagen in a contested ballot for the position of Federal Secretary of the DLP. Mr Zegenhagen then applied to the AEC pursuant to s 134(6) of the Commonwealth Electoral Act to be substituted for Mr Mulholland as registered officer of the DLP under that Act. As I have said, the delegate decided to change the Register on 8 January 2010.

20    Mr Mulholland sought review of the delegate’s decision by the AEC under s 141(2) of the Commonwealth Electoral Act, and the AEC affirmed the delegate’s decision on 28 May 2010. Mr Mulholland then made the series of unsuccessful appeals which I have set out at [5] above.

The application for an extension of time under the ADJR Act

21    Mr Mulholland seeks an extension of time to lodge the proposed application under the ADJR Act. The extension that he seeks is lengthy as the 28 day time limit provided by s 11(3) of the ADJR Act would need to be extended by three years and eight months for the application to be within time.

22    The factors relevant to the exercise of the discretion to allow an extension of time are well established. As Wilcox J said in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349, the factors include:

(a)    whether the applicant can successfully articulate an explanation for the delay;

(b)    whether the applicant has taken any action to continue to make the decision-maker aware that he contests the finality of the decision;

(c)    whether the delay has caused prejudice to the respondent in terms of defending the proceedings;

(d)    the merits of the substantive application;

(e)    whether it would be fair and equitable to extend time; and

(f)    if the application for extension is successful, whether the delay may result in unsettling other people or established practices.

I now deal with these factors apart from prejudice to the respondent, as the AEC concedes that it has suffered no prejudice through Mr Mulholland’s delay.

Explanation for delay

23    Mr Mulholland seeks to explain the delay in deposing that after the High Court refused to grant special leave he was “burned out” by more than four years of legal proceedings. He says that he needed a break before being able to start again and that his fatigue caused him to spend hours drafting and redrafting some parts of the application. He says, and I accept, that he found it difficult as a non-lawyer to deal with the matter.

24    However, in my view Mr Mulholland failed to provide an adequate explanation for his delay. His explanation relates only to the six month period between the High Court’s refusal to grant special leave on 10 April 2013 and the commencement of the present proceeding on 12 September 2013. He provides no explanation for the 39 month delay between 8 January 2010 and 10 April 2013 and given the vigour with which he prosecuted the earlier proceedings there can be no suggestion that he was fatigued during this period.

25    I infer that the delay in commencement of this proceeding arose not because of Mr Mulholland’s fatigue but because he chose a different path to contest the delegate’s decision. He chose to seek internal review through the AEC and then to make an application to the AAT, rather than to make an application under the ADJR Act and/or the Judiciary Act. When unsuccessful he then chose to appeal to the Full Federal Court and to the High Court. The lengthy delay in bringing the present proceeding arose because he pursued a different course.

Action taken by Mr Mulholland to continue to contest the decision

26    Between 8 January 2010 and 10 April 2013 the AEC must have been aware that Mr Mulholland continued to contest the decision to substitute Mr Zegenhagen as the registered officer under the Commonwealth Electoral Act. However, from 10 April 2013 when the High Court refused special leave to appeal until the commencement of the proposed application on 12 September 2013 the AEC was entitled to consider that this matter was finalised. The time period for commencement of proceedings under the ADJR Act is 28 days and, seen in that light, this delay of five months is of significance.

Prejudice to third parties caused by the delay

27    During the period between 8 January 2010 and 12 September 2013 it is likely that the DLP and other third parties relied on the amended Register. In that period there were two federal elections and the DLP’s candidates at those elections were endorsed by the DLP’s registered officer as recorded on the Register.

28    Mr Mulholland argues that because the delegate’s decision was invalid no rights flowed to third parties and consequently no prejudice could be caused to them if the Court were to grant the extension of time sought. Alternatively, he argues that the only third parties who may be prejudiced are those who have benefited from the impugned decision. I do not agree. Over the lengthy period of delay the Register showed a person other than Mr Mulholland to be the registered officer of the DLP, which had real potential for confusion and interference with the rights of innocent third parties who relied on the Register.

29    If Mr Mulholland were to be granted the relief which he seeks there would also be scope for confusion as to the electoral processes that have occurred since the delegate’s decision. To this extent the impugned decision has become interwoven with the rights of innocent third parties so that, at this late stage, the relief that he seeks cannot be justified: Re Wakim; Ex parte McNally (1999) 198 CLR 511, at 592-593 per Gummow and Hayne JJ.

Merits of the substantive application

The proposed application

30    In summary, Mr Mulholland seeks to impugn the delegate’s decision on grounds of denial of natural justice, account being taken of irrelevant considerations, relevant considerations being disregarded, denial of his legitimate expectations, unreasonableness, making factual findings without evidence, and incorrect construction of the Commonwealth Electoral Act.

31    Mr Mulholland seeks orders that would, in effect:

(a)    set aside or declare invalid the delegate’s decision;

(b)    declare that he was and remains the Federal Secretary of the DLP and that the Federal Executive of the DLP includes him;

(c)    declare that the Register has been in error since the date of the delegate’s decision; and

(d)    require the AEC to restore him as the registered officer of the DLP.

32    However, even if it is assumed that Mr Mulholland can make out his grounds for impugning the delegate’s decision, the proceeding lacks merit. This can be seen:

(a)    firstly, because Mr Mulholland challenges the delegate’s decision of 8 January 2010 when that decision has been superseded by the AEC decision of 28 May 2010 and is no longer operative;

(b)    secondly, because even if the delegate’s decision is operative, the evidence indicates that the Court should not amend the Register to replace Mr Mulholland as the party’s registered officer; and

(c)    thirdly, because the matters which he now seeks to raise have been previously considered in several forums and Mr Mulholland was unsuccessful.

The delegate’s decision is no longer operative

33    Notwithstanding the later AEC decision which he obtained, Mr Mulholland contends that the delegate’s decision remains operative. He seeks to rely on a passage from Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (“Shi”) in this regard. In Shi (at 315 [100]) Hayne and Heydon JJ explain the effect of an external merits review on a decision under review by approving the words of Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 (“Re Brian Lawlor Automotive”) at 175-176. Brennan J said:

A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order.

Mr Mulholland submits that, having been affirmed by the AEC decision, the delegate’s decision remains intact and is properly the subject of the proposed review application.

34    I do not agree. Mr Mulholland’s contention fails to recognise that the “original decision” to which Brennan J refers is the decision being reviewed by the AAT, and not the decision-maker’s initial decision when it is followed by a statutory internal review. Shi is authority for the proposition that the affirmation of a decision by an external merits review body such as the AAT leaves the decision under review intact and operative. But, as the AEC contends, it is confined to being an observation about the position of the AAT vis-a-vis a primary repository of power. In the passage cited from Re Brian Lawlor Automotive Brennan J was explaining only that where the AAT affirms the primary repository’s decision that latter decision is left intact. Shi says nothing about the status of a decision upheld upon internal merits review by the primary repository itself, as in the present case.

35    As a matter of first principles, the delegate’s decision of 8 January 2010 must have been superseded by the AEC decision. In an analogous circumstance in Wishart v Fraser (1941) 64 CLR 470 (“Wishart”) the High Court held that a magistrate’s decision could not be impugned once the Court of Quarter Sessions had affirmed it. Wishart was applied in The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation (1981) 147 CLR 471 at 476 per Mason J, and at 489 and 493 Murphy and Aickin JJ agreed. The applicant was required to join the Full Bench of the Australian Conciliation and Arbitration Commission as a party to a proceeding which challenged a decision of a Deputy President of the Commission, where the Full Bench had affirmed that decision.

36    Wishart was also applied in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (“Vitaz”) at [17] where Basten JA dealt with judicial review of a decision of a medical specialist that had been affirmed by a medical appeal panel. I respectfully agree with his Honour’s explanation that:

…the very fact that a [statutory] right of appeal exists in such circumstances implies that the result of the appeal will supersede the original decision. Were it otherwise, the decision of the appellate body would, at best, be contingent upon there being no successful challenge by way of judicial review of the original decision. Such a result should only be the consequence of a clear statutory intention to that effect.

There is nothing in s 141(2) of the Commonwealth Electoral Act to indicate that where a person dissatisfied by the initial decision obtains a review by the AEC which affirms the initial decision, that the AEC decision does not operate to supersede it.

37    To similar effect, as Basten JA explained in Vitaz at [18]:

In respect of procedural fairness, judges have variously held that the existence of a statutory appeal:

(a)    negates the obligation which might otherwise be implied to provide procedural fairness at the initial decision-making stage;

(b)    provides an adequate (or exclusive) remedy for any earlier denial of procedural fairness;

(c)    provides a basis for the supervisory court, in the exercise of its discretion, to refuse relief in respect of the initial decision, and

(d)    precludes a challenge to the first decision, because the aggrieved party has “elected” to treat the first decision is valid, by appealing from it.

I respectfully agree.

38    That the delegate’s decision must have been superseded by the AEC decision can be seen in the fact that the proposed review application is largely based in an allegation that the delegate’s decision was affected by a failure to accord natural justice. Leaving aside whether Mr Mulholland could make out his claims in that regard, he then had the benefit of a merits review by the AEC pursuant to s 141(2) of the Commonwealth Electoral Act and there is no suggestion of a lack of procedural fairness in that review. It would be nonsensical to allow a judicial review of the initial delegate’s decision as if the AEC decision had not been made.

39    An application for judicial review under the ADJR Act may only be made in relation to a decision that is operative. As Mason J explained in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338:

The interpretation of a “decision” which I favour is not as broad as that preferred by the Federal Court in Lamb v Moss. There the Full Court of the Federal Court (Bowen CJ, Sheppard and Fitzgerald JJ), after reviewing the authorities, which the Court said revealed “some inconsistency”, stated:

“In our opinion, there is no limitation, implied or otherwise, which restricts the class of decision which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate and operative effect.”

My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan when he said that “it may well be that the word ‘decision’ means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person”. However, I would not wish for myself to place emphasis on the words “of itself” in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision on permissible grounds are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.

(Emphasis added. Citations omitted.)

40    Although Mason J’s remarks are expressed in the context of the ADJR Act, the same approach must apply to judicial review under s 39B of the Judiciary Act. It would be futile to allow review of a decision that is no longer operative.

41    Mr Mulholland’s proposed application seeks orders in the nature of certiorari to set aside the changes made to the Register, mandamus, injunctions and declaratory relief. In my view, because the delegate’s decision is not operative these forms of relief are either unavailable or inappropriate.

42    In relation to an order in the nature of certiorari, French CJ, Crennan, Bell, Gageler and Keane JJ explained in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (“Wingfoot”) at [25] that it is unavailable where a decision is not operative. Their Honours said:

The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect”. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.

(Emphasis added. Citation omitted.)

While Wingfoot arose in the context of a common law judicial review, the principle indicates that the orders sought under s 16 of the ADJR Act to set aside the delegate’s decision should be refused.

43    As the delegate’s decision is not operative, it would also be futile to order a writ of mandamus compelling the delegate to re-exercise the power under s 134(6) of the Commonwealth Electoral Act or to order injunctive relief in similar terms. Further, it is not open to the Court to direct a decision-maker to reach a result in favour of Mr Mulholland, which is the order that he in fact seeks: Randall v Northcote (1910) 11 CLR 100 at 105 per Gibbs CJ.

44    For a grant of declaratory relief to be made there must exist a real and not theoretical question and the declarations sought must have utility: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 per Gibbs J, citing Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd (1921) 2 AC 438 at 448; Australian Competition and Consumer Commission v Powerballwin.com.au Pty Ltd [2010] FCA 378 at [41] per Tracey J. Because the delegate’s decision is not operative any consideration of the decision involves only a theoretical question, and a declaration in relation to it will have no utility.

The Register should not be amended in any event

45    Even if the delegate’s decision was operative I would be disinclined to amend the Register as the proposed application seeks. The delegate, the AEC, and the AAT each made the finding that on 28 November 2009 the DLP’s Federal Conference voted for Mr Zegenhagen to replace Mr Mulholland as the party’s Federal Secretary, which led to him becoming the registered officer.

46    As the AAT found (at [43] and [68]), there were four branches of the DLP at the relevant time, all four branches had requested that the Conference be convened, and all four branches had voted in the ballot. As the AAT explained (at [43]), even if Mr Mulholland’s argument that the Victorian branch’s participation was “bogus” was accepted, the Conference was convened by three out of the four State branches which was a majority. In short, even if Mr Mulholland’s claim that he was the Victorian State Secretary at the time the Federal Conference was convened is accepted, it makes no difference to the election of Mr Zegenhagen. Mr Mulholland advances no cogent basis for the Court to interfere with that conclusion and to amend the Register to make him the registered officer.

47    Mr Mulholland contends that the Victorian Court of Appeal’s construction of the DLP’s Constitution is a new circumstance which warrants the Court’s attention. In particular, he relies on the Court of Appeal’s finding that the meaning of “eligible” in clause 4 is to be understood as meaning entitled to vote under the Commonwealth Electoral Act: Mulholland v Victorian Electoral Commissioner & Anor [2012] VSCA 104 at [106]. He argues that this interpretation should have been applied by the delegate when making the decision to remove him as registered officer under the Commonwealth Electoral Act, and that the delegate’s failure to do so constitutes a reviewable error of law.

48    To this end, he seeks to adduce into evidence two DLP membership lists which he asserts demonstrate that there were people who attended the Federal Conference who were not members of the DLP as required by clause 4. He did not establish how these people were not members within the Constitution.

49    Importantly, on an application for judicial review, error of law cannot be demonstrated by resort to fresh evidence of this kind. This evidence was available to Mr Mulholland at the time of the delegate’s consideration and could have been put before the delegate (or indeed the AEC and the AAT). It cannot now be adduced to undermine the factual findings of the delegate and to establish a reviewable error of law. As Nicholson J noted in MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]:

[i]t is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal.

Leave to appeal against this decision was refused by the High Court where Hayne J saw “no reason to doubt the correctness of the conclusions reached in the courts below”: MZXHY v Minister for Immigration and Citizenship & Anor [2008] HCA Trans 55.

Mr Mulholland was unsuccessful in other proceedings

50    Before the AEC, the AAT and before the Full Federal Court Mr Mulholland has already argued that the decision to substitute Mr Zegenhagen for him as the registered officer was invalid and should be set aside. He was unsuccessful in doing so. Contrary to Mr Mulholland’s submissions, in substance there is no new circumstance which might justify reaching a different view on that question. This too indicates the lack of merit in the proposed application.

Fair and equitable to extend time

51    The fact that Mr Mulholland has had his grievances dealt with in other forums also militates against an extension of time. This is not a case where he will have been denied access to justice by a refusal to extend the time for lodgement. The fact that his earlier proceedings have been unsuccessful does not alter that position.

52    For these reasons I refuse the extension of time to lodge the proposed ADJR application.

The application for summary judgment

53    In relation to the application under s 39B of the Judiciary Act the AEC seeks summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) and r 26.01 of the Rules.

54    It is well-established that the power to deliver summary judgment should not be exercised lightly. In Spencer v Commonwealth (2010) 241 CLR 118 (“Spencer”) Hayne, Crennan, Kiefel and Bell JJ explained at 141 [60] that:

The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly.

As is clear from both the majority and minority joint judgements in Spencer, a cautious approach is necessary: Australian Securities and Investment Commission v Cassimatis [2013] FCA 641 at [19]-[20] per Reeves J.

55    One factor in deciding whether to exercise the power of summary judgement is whether the case raises important questions of fact or law. In Western Australia v Fazeldean (No 2) [2013] FCAFC 58 at [35] Allsop CJ, Marshall and Mansfield JJ observed that the development of the law should not be stultified through exercise of this power.

56    However, contrary to Mr Mulholland’s submissions, no significant question of fact or law (or mixed fact and law) arises in the present case. While there is a public interest in ensuring that electoral records are properly maintained, the correctness of the Register has already been determined in the AAT decision, as affirmed by the Full Federal Court. As I have said, even if I accepted Mr Mulholland’s argument that he should have been treated as Victorian State Secretary when the Federal Conference was convened, the result of the Conference in electing Mr Zegenhagen is the same.

57    I have already set out my view as to the lack of merit in the proceeding at [30]-[50] above and it is unnecessary to reiterate those views. For essentially the same reasons the application under s 39B of the Judiciary Act should be summarily dismissed. Without rehearsing those matters, Mr Mulholland challenges only the delegate’s decision and that decision is not operative. The relief which he seeks is unavailable. Even if the decision were operative, he is unable to demonstrate a reviewable error of law.

58    The unavailability of the relief sought is a factor which weighs strongly in favour of summary judgment. In Spencer (at 130 [21]) French CJ and Gummow J cited with approval the remarks of Lord Hope in Three Rivers District Council v Governor Company of the Bank of England (No 3) [2003] 2 AC 1 at 260-261. His Lordship said:

The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance.

(Emphasis added.)

I respectfully agree.

59    I am satisfied that Mr Mulholland has no reasonable prospect of making out an entitlement to relief under s 39B of the Judiciary Act.

60    I would take the same view in relation to Mr Mulholland’s ADJR application if (contrary to my view) leave to lodge the application out of time were granted. I would dismiss that application because:

(a)    it too has no reasonable prospect of success and should be summarily dismissed; and/or

(b)    by exercise of my discretion under s 10(2)(b) of the ADJR Act.

61    Section 10(2)(b) relevantly provides:

…

the Federal Court…may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

(i)    that the applicant has sought a review…by another court of that decision, conduct or failure otherwise than under this Act; or

…

62    As Gyles J said in Kamha v Australian Prudential Regulation Authority [2007] FCA 1422 at [9], the existence of a suitable alternative remedy is a well-established basis for the refusal for administrative law relief, whether under the ADJR Act or at common law. In the present case Mr Mulholland has already availed himself of his right to an external merits review in the AAT, and an appeal to the Full Federal Court. I would exercise the discretion to refuse to allow a further application for judicial review.

CONCLUSION

63    For the reasons set out above, I refuse the application for an extension of time within which to lodge the application under the ADJR Act, and I summarily dismiss the application under s 39B of the Judiciary Act.

Associate:

Dated:    26 February 2014