FEDERAL COURT OF AUSTRALIA

Mulholland v Australian Electoral Commission [2014] FCA 916

THE COURT ORDERS THAT:

1.    The time in which the applicant may file and serve an application for leave to appeal from the orders of the Court dated 26 February 2014 is extended to 12 June 2014.

2.    The application for leave to appeal from the orders of the Court dated 26 February 2014 is dismissed.

3.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

1        Underlying the present application is a claim by Mr Mulholland about the decision of the respondent, the Australian Electoral Commission (AEC), in January 2010 to change the register of political parties which it maintains under Part XI of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act) by removing Mr Mulholland’s name as the registered officer of the Democratic Labor Party (DLP) and substituting the name of another person, Mr Zegenhagen.

2        Mr Mulholland challenged that decision on internal review, then in the Administrative Appeals Tribunal and then in the Full Court of this Court. He sought but was refused special leave to appeal to the High Court. Having exhausted those avenues of challenge, he then sought to bring judicial review proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) and the Judiciary Act 1903 (Cth) (Judiciary Act), seeking orders setting aside the same decision, declarations that he is the registered officer of the DLP, and an order requiring the respondent to restore him to that position.

3        On 26 February 2014, the primary judge refused him an extension of time in which to lodge an application under the AD(JR) Act and summarily dismissed his judicial review claim under the Judiciary Act.

4        Mr Mulholland now seeks to challenge the primary judge’s decision. He does so in two alternative ways. First, he submits the primary judge’s orders were final and not interlocutory and therefore he had a right of appeal from them. In those circumstances, since he is out of time he requires an extension of time in which to lodge his appeal. Alternatively he submits that, if the primary judge’s orders are properly characterised as interlocutory, he should be granted leave to appeal from them, although he also requires an extension of time in which to seek leave to appeal.

5        For the following reasons, an extension of time should be granted to Mr Mulholland but his application for leave to appeal should be refused.

FACTUAL BACKGROUND

6        The DLP was registered with the AEC as a political party, pursuant to s 133 of the Electoral Act, on 20 July 1984. From that date, for a period of some 26 years Mr Mulholland was the registered officer for the DLP on the register of political parties maintained by the AEC. He ceased to be the registered officer on 8 January 2010, the event which occasioned this litigation, and the earlier litigation to which I have referred at [2] above. His removal was a consequence of what occurred at a meeting in Brisbane in November 2009.

7        In Brisbane on 28 November 2009, there was a meeting described by those who organised and attended it as a meeting of the DLP. At that meeting, there was a vote carried to appoint a Mr Anthony Zegenhagen as Federal Secretary and as the registered officer of the party for the purposes of the Electoral Act.

8        On 9 December 2009, Mr Zegenhagen, along with three other members of the DLP, applied to the AEC to change the register of political parties by replacing Mr Mulholland with Mr Zegenhagen as registered officer.

The decision of the AEC

9        The AEC performs statutory functions in relation to the maintenance of the register of political parties pursuant to Part XI of the Electoral Act. Section 134 provides for changes to be made to the register. Relevantly, it states:

134 Changes to Register

(1)    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.

…

(3)    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.

…

(5)    Where an application under subsection (1) to substitute the name of a person for the name of the registered officer of a political party is not signed by the registered officer, the Electoral Commission shall:

(a)    give the registered officer written notice of the application for the change and invite the registered officer, if he or she considers that there are reasons why the change should not be made, to submit written particulars of those reasons to the Commission within 7 days after the date on which the notice was given; and

(b)    consider any particulars submitted in response to the invitation referred to in paragraph (a).

(6)    Where the Electoral Commission determines that an application under subsection (1) or (1A) should be granted, it shall:

(a)    change the Register accordingly;

(b)    give the applicant or applicants written notice that it has made the change;

(c)    in the case of a change referred to in paragraph (1)(c), (d) or (e) in respect of which any person or persons submitted particulars in response to the invitation referred to in paragraph 132(2)(b) in its application by virtue of subsection (4)—give written notice to that person or those persons that it has made the change, setting out in the notice to each person the reasons for rejecting the reasons particulars of which were so submitted by the person;

(d)    in the case of an application to substitute the name of a person for the name of the registered officer of the party, being an application in respect of which the registered officer submitted particulars under paragraph (5)(a)—give written notice to that registered officer that it has made the change setting out the reasons for rejecting the reasons particulars of which were so submitted.

10        On 8 January 2010, a delegate of the AEC decided to make the change as requested in the 9 December 2009 application. He substituted for the name of Mr Mulholland the name of Mr Zegenhagen as the registered officer of the DLP.

11        The AEC wrote to Mr Mulholland on the same day, notifying him of the decision to accept the application to change the DLP registered officer, and setting out its reasons for decision as required by s 134(6) of the Electoral Act. The reasons demonstrate that the delegate did not accept Mr Mulholland’s argument against the application that the state branches attending the November 2009 meeting were not validly reconstituted state branches. The reasons state:

Accordingly, in the absence of an explicit provision in the DLP constitution stating acceptance of re-constitution by the Federal Executive as a prerequisite to proper re-constitution of a state branch, it seems contrary to the ‘spirit’ of the constitution to determine that these state branches are not actually state branches, due to an alleged failure to officially communicate their re-constitution to the Federal Executive. This is the case despite the status of the party as a ‘Federation’.

Therefore, on the balance of the evidence provided, the AEC considers that the Federal Conference of the DLP held on 28 November 2009 was a valid Federal Conference as per clause 37 of the DLP constitution, as it was requested and held by a majority of the state branches.

12        The Electoral Act provides for internal and external review of certain decisions under the Act, including the decision to grant an application under s 134(1). Section 141 relevantly provides:

(2)    Where a delegate of the Electoral Commission makes a reviewable decision, a person affected by the decision who is dissatisfied with the decision may, within the period of 28 days after the day on which the decision first comes to the notice of the person, or within such further period as the Commission (either before or after the expiration of that period) allows, make a written application to the Commission for the review of the decision by the Commission, specifying in the application an address of the applicant.

(3)    There shall be set out in the application under subsection (2) the reasons for making the application.

(4)    Upon the receipt of an application under subsection (2) for the review of a reviewable decision, the Electoral Commission shall review that decision and shall make a decision:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and making a decision in substitution for the decision so set aside.

(5)    Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision made by the Electoral Commission or a decision under subsection (2) or (4).

(6)    For the purposes of a review referred to in subsection (5), the Administrative Appeals Tribunal is to be constituted by 3 members, at least one of whom is a Judge of the Federal Court of Australia.

(6A)    Subsection 21(1AA) of the Administrative Appeals Tribunal Act 1975 does not apply in relation to a review referred to in subsection (5) of this section.

(7)    Where the Electoral Commission makes a decision under subsection (4), it shall give written notice of that decision to:

(a)    the person, or each person, to whom written notice of the reviewable decision to which the decision of the Commission relates was given under this Part; and

(b)    the person who made the application for the review of that reviewable decision.

(8)    Where a delegate of the Electoral Commission makes a reviewable decision, a written notice of the decision given to a person or persons under this Part shall include a statement to the effect that:

(a)    a person affected by the decision may, if dissatisfied with the decision, seek a review of the decision by the Commission in accordance with subsection (2); and

(b)    a person whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with a decision made by the Commission upon that review make application to the Administrative Appeals Tribunal for review of the decision made by the Commission.

(9)    Where the Electoral Commission makes a reviewable decision or a decision under subsection (2) or (4), a written notice of the decision given to a person or persons under this Part shall include a statement to the effect that a person whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with the decision, make an application to the Administrative Appeals Tribunal for review of the decision.

(10)    Any failure to comply with the requirement of subsection (8) or (9) in relation to a decision does not affect the validity of the decision.

13        Mr Mulholland sought internal review of the delegate’s decision, pursuant to s 141(2) of the Electoral Act. On 28 May 2010, the AEC affirmed the delegate’s decision to change the register.

Mr Mulholland’s series of challenges to the decision of the AEC

14        Mr Mulholland then sought review of the AEC decision in the Administrative Appeals Tribunal, under s 141(5) of the Electoral Act. He challenged the validity of Mr Zegenhagen’s appointment as Federal Secretary and registered officer, claiming (as he had to the AEC) that the “National Conference” held in Brisbane on 29 November 2009 was not held in accordance with the party’s constitution. The Tribunal held that the November 2009 meeting had been convened validly and in accordance with the DLP’s constitution, and dismissed Mr Mulholland’s application: Mulholland and Australian Electoral Commission [2011] AATA 879. Mr Mulholland’s appeal of this decision to the Full Court of this Court was unsuccessful: Mulholland v Australian Electoral Commission [2012] FCAFC 136.

15        Special leave to appeal the decision of the Full Court to the High Court was refused on 10 April 2013: Mulholland v Australian Electoral Commission [2013] HCASL 43.

The Victorian Court of Appeal and Supreme Court decisions

16        Mr Mulholland also held the position of Victorian State Secretary of the DLP for a long time — approximately 27 years. In September 2008, Mr Mulholland was defeated by Mr Mark Farrell in a contested ballot at the Victorian State Conference of the DLP. The changes in the DLP Victorian executive arising from the 2008 conference were to lead to more litigation.

17        On 17 October 2008, the Victorian Electoral Commission (VEC) refused an application for re-registration of the DLP lodged by Mr Mulholland, on the basis that he was not Victorian State Secretary of the DLP at the time the application was made.

18        On 31 October 2008, Mr Farrell and three other members of the DLP, including Mr Kevin Butler, the then President of the Victorian branch (also elected in September 2008), instituted proceedings in the Supreme Court of Victoria against Mr Mulholland and another member, Mr Crea. In those proceedings Mr Farrell and Mr Butler sought a declaration that they had been duly elected as officebearers of the DLP at the September 2008 elections, and sought injunctions restraining Mr Mulholland from holding himself out as Secretary and undertaking activities as Secretary. Mr Mulholland filed a counterclaim, claiming that the September 2008 vote was invalid and seeking declarations as to the officebearers of the DLP, including himself as Secretary.

19        On 18 December 2008, and while the Supreme Court proceedings were continuing, Mr Farrell’s application to be substituted as the registered officer of the Victorian Branch of the DLP was granted by the VEC, pursuant to s 51 of the Electoral Act 2002 (Vic).

20        Concurrently with the Supreme Court proceedings, Mr Mulholland sought review in the Victorian Civil and Administrative Tribunal (VCAT) of the VEC’s decisions not to accept Mr Mulholland’s application to re-register the DLP and to accept Mr Farrell’s application to be substituted as registered officer. He alleged that two of the delegates who voted in the ballot that elected Mr Farrell were ineligible to vote. VCAT dismissed Mr Mulholland’s claims: Mulholland v Victorian Electoral Commission (Unreported, Victorian Civil and Administrative Tribunal, MacNamara DP, 3 December 2009).

21        On 23 February 2009, at a court-ordered mediation, the parties reached an agreement on the Supreme Court proceedings, and the proceeding was dismissed by consent of the parties, with a right of reinstatement. The settlement agreement collapsed and, on 29 June 2010, Pagone J made orders on a summons filed by Mr Butler, reinstating the proceeding.

22        Mr Mulholland then sought and was granted leave to appeal the VCAT decision to the Supreme Court of Victoria: Mulholland v Victorian Electoral Commission [2010] VSC 130. His appeal was, however, dismissed by the Supreme Court on 18 March 2011: Mulholland v Victorian Electoral Commission (2011) 247 FLR 230; [2011] VSC 89.

23        Leave to appeal the dismissal of his appeal from VCAT was granted by the Victorian Court of Appeal on 13 May 2011: Mulholland v Victorian Electoral Commission [2011] VSCA 129. On 14 June 2012, the Court of Appeal held that the election for the position of Secretary held on 13 September 2008 was void and, therefore, in substituting Mr Farrell for Mr Mulholland on the register, the VEC had acted on an incompetent application, as it could not be said that the application had in fact been signed by the Victorian State Secretary.

24        The Court of Appeal ordered that Mr Mulholland be reinstated as registered officer of the Victorian Branch for the period 18 September 2008 to 2 August 2009: Mulholland v Victorian Electoral Commission (2012) 36 VR 167; [2012] VSCA 104. The explanation for the limited period was that, on 3 August 2009 and 28 October 2009, a series of subsequent changes had been made to the registered officer on the VEC register. These changes had not been disputed by Mr Mulholland before VCAT, the Supreme Court at first instance or on appeal: Mulholland v Victorian Electoral Commission (2012) 36 VR 167; [2012] VSCA 104 at [39], [115]-[116].

25        This left outstanding the proceedings brought by Mr Butler and Mr Farrell. On 2 December 2013, Robson J delivered judgment in the Supreme Court proceeding, which had been reinstated by Pagone J. His Honour recognised he was bound by the approach taken by the Court of Appeal, and made declarations to the effect that Mr Mulholland remained the current Secretary of the Victorian Branch of the DLP. His Honour refused, however, to make the orders sought by Mr Mulholland that the changes to the registered officer made by the VEC on 3 August 2009, 28 October 2009 and, subsequent to the Court of Appeal decision being handed down, on 18 July 2012, were ineffective: Butler v Mulholland (No 2) [2013] VSC 662 at [146]-[147].

This application

26        On 12 September 2013, Mr Mulholland filed an application in this Court under both the AD(JR) Act and s 39B of the Judiciary Act, seeking judicial review of the decision of the delegate on 8 January 2010 to change the register pursuant to s 134 of the Electoral Act. This is the same decision which had been the subject of challenges I have outlined at [15] to [16] above. On 26 February 2014, after an interlocutory application by the AEC, the primary judge refused an extension of time for an application to be made under the AD(JR) Act, and summarily dismissed Mr Mulholland’s application under the Judiciary Act: Mulholland v Australian Electoral Commission (2014) 219 FCR 1; [2014] FCA 136.

Mr Mulholland’s affidavit material in support of his judicial review application

27        Mr Mulholland has sworn an affidavit dated 11 June 2014 in support of his current application. No objection was taken to the contents of that affidavit. In VID 13 of 2012 Mr Mulholland also swore an affidavit dated 18 June 2014 in support of his application in that proceeding. No objection was taken to the contents of that affidavit. Mr Mulholland sought leave to read each affidavit in both of the proceedings and the respondent did not object to that course. I have treated each affidavit as read in both proceedings. Mr Mulholland also submitted I should have regard to his affidavits sworn in support of his application for judicial review and filed in the proceedings before the primary judge. Again, the respondent did not object to the Court having regard to those affidavits. I consider in the circumstances it is appropriate to do so, especially to understand some of the primary judge’s references in his reasons for judgment to the evidence adduced by Mr Mulholland before him. I have had regard to those three affidavits, which I describe below.

28        In support of his application for judicial review before the primary judge, Mr Mulholland relied on three affidavits, sworn by him on 26 August 2013, 12 September 2013 and 21 October 2013. His first affidavit is the most substantive. In it, he describes the purposes of the proceeding in the following way:

I make this affidavit in support of my application(s) for (i) judicial review of conduct and decision(s) of the Australian Electoral Commission (“the AEC”) and/or a delegate of the AEC (“the delegate”), (ii) an extension of time in relation to the application(s) and (iii) relief under section 39B of the Judiciary Act 1903. I make the application(s) as a persona aggrieved in my personal capacity and as a member of the Federal Executive and Federal Secretary of the Democratic Labor Party (DLP) of Australia (“the DLP”). The basis of my grievance is that by the conduct and decision(s) of the AEC and/or the delegate, I was wrongfully replaced, under s.134(6)(d) of the Commonwealth Electoral Act 1918 (“the Act”), as the DLP’s registered officer on the Register of Political Parties (“the Register”) maintained in accordance with s.4C and s.125 of the Act. In this respect, I say that the historical public record has been falsified, and has remained false, since the time of my replacement on 8 January 2010.

29        In the remainder of his first affidavit Mr Mulholland sets out the history of the DLP, including his own long history with the party and his ongoing participation in its political activities, covering a period of more than three decades. He states that “I have been Secretary of the Victorian Branch, continuously since about 1984” and that he has been “repeatedly (re-)elected pursuant to decisions of State Conferences of the Victorian Branch, under the rules”.

30        He states in his affidavit that he believes the last Federal Conference of the DLP was the Victorian State Conference in 2007. He describes the process by which he believes the DLP became a federation in 2008, comprising branches in Victoria and New South Wales.

31        He describes the attempts that were made throughout 2009 to substitute his name for another as registered officer on the register. He sets out his objections to the November 2009 meeting in Queensland, and his view as to why the conference was not a valid “Federal Conference” for the purposes of the party’s constitution and rules. He also sets out briefly details of the Victorian proceedings, which I describe in more detail at [16]-[22] above.

32        Mr Mulholland alleges AEC staff engaged in improper actions relating to the DLP. He alleges:

… as to a foreshadowed “Federal Conference”, and on the basis of the apparent AEC- suggested steps that would facilitate making the decision that replaced me as registered officer, I say that AEC personnel acted improperly and to my detriment. The AEC presumed that my critics spoke for the DLP, as per the erroneous AEC view “that the DLP has firm plans for a federal conference of the party in late November 2009”. On the basis that I was, and remain, the Federal Secretary and a member of the Federal Executive, I say that representations made to the AEC in regard to those “firm plans” by DLP members were unauthorised, and untrue. Further, I contend that the AEC had no legal authority to engage with DLP members in that fashion, nor to hypothesise and advise about when “a [purported] Federal Conference of the DLP takes place … and a decision is made to elect a replacement [Federal Secretary] who will also be the “registered officer” for the purposes of the Electoral Act”.Further to the preceding paragraph, I contend that the AEC was, in effect, “coaching” my DLP critics and, thereby, encroaching upon matters that were internal to the DLP and not, in any rightful, sense their concern. In so far as these matters may have pertained to my role as registered officer or to a subsisting application for my replacement on the Register, I contend that no-one but me as the recognised registered officer, had lawful authority to represent the DLP in the circumstances. The AEC had conferred that authority on me, under s.133(1)(a)(iii) of the Act (or an equivalent provision), in 1984. I am aware of no provision of the Act that may allow anyone other than the registered officer (under s.134(5) of the Act), to make such representations.

…

I say that the granting by the delegate, on 8 January 2010, of the application to replace me as registered officer under s.134 of the Act was based, wrongly, on the AEC’s anticipation, relative to the Queensland conference, of being “… able to act confidently on the results of that federal conference when lodged with it” (paragraph 16), and relative to my remaining Federal Secretary “… until such time as a Federal Conference of the DLP takes place in accordance with the constitution and rules decision is made to elect a replacement who will also be the “registered officer” for the purposes of the Electoral Act” (paragraph 17). I contend and believe that by its failure to construe or properly construe the Rules, the AEC was led to anticipate and rely upon a bogus conference and bogus election and, apparently, to have predetermined their decision under s.134 of the Act.

33        Mr Mulholland sets out in his first affidavit in detail the events leading up to, and his views about, the Queensland conference in November 2009:

39. I refer to and exhibit as Exhibit “JVM 19” a true copy of the minutes of the purportedly DLP, Queensland conference (as filed in the AAT proceedings referred to in paragraph 32). Those minutes contain the names of 17 person who were shown as attending in person and 7 other by proxy, being 24 in total. The minutes also show that Anthony (“Tony”) Zegenhagen was declared elected as the (purported) Federal Secretary of the DLP. I maintain my contention that the Queensland conference was not a DLP Federal Conference and I contend, also, that the purported election of Tony Zegenhagen was null and void.

40. Around early May 2009, as DLP Federal Secretary in the lead-up to a contemplated DLP Federal Conference before the 2010 Federal election, I compiled a document showing (for at least the previous two years) financial contributions from DLP members in various States. The document showed the names of DLP members who may have been eligible to attend a Federal Conference, as individual financial members from States where DLP State Branches had not yet reconstituted under the Rules. By clause 48 of the Rules, delegates to a Federal Conference are required to be financial. At around the same time, I prepared a second membership document. The second document was a DLP federal mailing list showing the names of all who were DLP members, by clause 4 of the Rules, and whose approximate numbers in each State were, Victoria (1100), NSW (90), Queensland (70), Tasmania (13), Western Australia (13), South Australia (6). I refer to and exhibit as “JVM 20” and “JVM 21”, a true copy of each of the respective membership documents.

41. I dispute that there was any valid factual and legal basis for the assumptions made by the AEC that Queensland conference was authorised in accordance with the Rules and that those who attended were delegates representing State Branches of the DLP, also in accordance with the Rules. I have checked the DLP federal list (referred to in paragraph 40) and say that of the 24 purported delegates or proxy holders in attendance at the Queensland conference, 12 were DLP members in accordance with clause 4 of the Rules. The twelve were, Andrew Jackson, Dr Noel Jackson, Peter Kavanagh, Tony Zegenhagen, Laurie Addison, Dave McCabe, Steve Campbell, John Madigan and Kevin Butler and additionally as a purported proxy holder for one other DLP member, Peter Kavanagh (for Mark Farrell), Steve Campbell (for Maryse Usher) and Kevin Butler (for Greg Byrne). Other purported proxy holders named in the minutes were either not DLP members, and financial, or were holding a purpoted proxy for another person who was not a DLP member.

42. Further to paragraphs 39 and 41, I say that the twelve purported delegates attending in person, or by purported proxy, did not comprise a majority of the 24. In consequence, I say that the Queensland conference was not a DLP conference at all. Furthermore, if it had been a DLP Federal Conference (which it was not) several of that group of twelve, which comprised 7 purported delegates from Victoria, 4 from Queensland and 1 from South Australia, would have been in contravention of representation entitlements under clause 35 of the Rules. Additional to that, I say that the purported proxy arrangements would have been in contravention of clause 50 of the Rules, in not having had the prior approval of the Federal Executive and, with respect to the purported Victorian delegates, in not having been authorised by a valid DLP Victorian Executive.

34        Mr Mulholland’s two remaining affidavits before the primary judge were in part responsive to matters put by the AEC, especially in terms of Mr Mulholland’s identification of what he asserted was new or different about the judicial review proceeding from the previous set of proceedings. Most of the affidavit material is better characterised as submissions, and I have attempted to summarise it in [35] to [38] below, together with a summary of Mr Mulholland’s written submissions.

MR MULHOLLAND’S CONTENTIONS

35        On his application for leave to appeal from the primary judge, Mr Mulholland contends first that the judgment was final and so he had a right of appeal and needs only an extension of time in which to exercise it. He bases that contention on the Full Court decision in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101.

36        Alternatively he contends that he should be granted leave to appeal, and an extension of time in which to bring that application for leave to appeal.

37        He makes these contentions in respect of the primary judge’s orders under the AD(JR) Act and the Judiciary Act. As I understood his submissions, he relied on the same discretionary factors in respect of the extension of time application and the leave application (if leave was required).

The grounds of the application and the proposed grounds of appeal

38        Mr Mulholland set out 15 grounds in both his application for extension of time and leave to appeal and in his proposed draft notice of appeal. They were as follows.

1.    His Honour proceeded with an preconceived view that the Appellant “was defeated by Mr Zegenhagen in a contested ballot for the position of Federal Secretary of the DLP” before the latter applied to replace the Appellant as Registered Officer of the DLP under s.134 of the Commonwealth Electoral Act 1918 , at[19].

2.    His Honour failed to give adequate weight to the concession made by the Respondent as to having suffered no prejudice as a result of the Appellant’s delay, at [22].

3.    His Honour erred in finding that the Appellant had failed to provide an adequate explanation for his delay, at [23-25].

4.    His Honour erred in finding, or was misled (by a mistaken submission of Senior Counsel) in his finding that the Respondent, between 10 April 2013 and 12 September 2013, “was entitled to consider that the matter was finalised”, at [26].

5.    His Honour’s relied on speculation or conjecture in place of evidence for his finding or conclusion as to prejudice to the DLP and other third parties if an extension of time were to be granted, at [27-29].

6.    His Honour failed to distinguish the case of Re Wakim (per Gummow and Hayne JJ at 592-593) from the Appellant’s new case with respect to potential prejudice to the DLP and other third parties, at [27-29].

7.    His Honour failed to apply the correct principle of law (per Brennan J in Re Brian Lawler Automotive Pty Ltd as cited in Shi v MARA [2008] 235 CLR 236 at [100] by Justices Hayne and Heydon), in relation to whether the AEC delegate’s decision (of 8 January 2010) remains “intact”, “operative” and “real” at [33-44].

8.    His Honour failed to take into account that the relief sought by the Appellant, under the ADJR Act (if his application for an extension of time was granted) and under the Judiciary Act, was based upon factual and legal questions different to those considered by the AEC delegate, by the Full AEC and by the AAT relating to the decision of the delegate on 8 January 2010 to change the Register was correct at [45-46].

9.    Further to Ground 8, his Honour could not have taken into account relevant new material from the judgment in Butler v Mulholland (No.2) [2013] VSC 662 (given after his Honour’s hearing of the Appellant’s applications), which material, in conjunction with Mulholland v VEC & Butler [2012] VSCA 104, demonstrably falsifies findings of the AEC delegate, the Full AEC and the AAT relating to the decision of the delegate on 8 January 2010 to change the Register at [45-46].

10.    His Honour failed to comprehend the substance of the Appellant’s argument as to the interpretation in Mulholland v VEC & Butler [2012] VSCA 104, of clause 4 of the DLP Constitution and Rules at [47].

11.    His Honour erred in finding that the Appellant did not establish from two DLP membership lists he relied upon, as new evidence, how certain people attending a said Federal Conference, were not members within the Constitution at [48].

12.    His Honour failed to comprehend the nature of the new circumstances relied upon by the Appellant, which led his Honour to conclude, in error, that the Appellant was seeking to undermine earlier factual findings, with evidence that was available at the earlier time [47-49].

13.    His Honour erred in relying upon the Appellant’s lack of success in earlier administrative review processes, in other forums, as the basis for refusing an extension of time for the hearing of a new and different application for judicial review that raised new questions of fact and law and mixed fact and law at [50-52].

14.    His Honour wrongly grounded his discretion to summarily dismiss the Appellant's application for relief under s.39B of the Judiciary Act upon an erroneous view that the application raised no significant question of fact or law or mixed fact and law, that it lacked merit and that the decision sought to be challenged was no longer operative [56-59].

15.    His Honour erred in the exercise of his discretion to dismiss the Appellant’s ADJR Act application by giving inadequate or secondary consideration to the substantive matters of the Appellant’s principal case relative to procedural technicalities [60-62].

CONSIDERATION

Does Mr Mulholland require leave to appeal?

39        In accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), if a judgment is interlocutory, leave to appeal is required. The primary judge’s orders dismissed the judicial review proceedings on two different bases. As to the AD(JR) Act claim, no extension of time was granted. Under the Judiciary Act, the application was summarily dismissed pursuant to s 31A of the Federal Court Act.

40        An order pursuant to s 31A is deemed to be an interlocutory judgment by reason of s 24(1D) of the Federal Court Act. Leave is required to bring an appeal in respect of that order.

41        An order refusing to grant an extension of time is interlocutory in character. In Egglishaw v Australian Crime Commission (2007) 164 FCR 224; [2007] FCAFC 183 at [38]-[45], the Court held that characterisation of the nature of an order for the purposes of deciding whether leave to appeal is required will depend on whether or not the judgment from which an appeal is sought finally determines the parties’ rights. The refusal to extend time in which to bring a proceeding under the AD(JR) Act does not finally determine any right or interest of Mr Mulholland’s. It simply precludes him from using the AD(JR)Act as a means of reviewing the decision of the delegate of the AEC in January 2010.

42        The respondent initially submitted there is no right to appeal at all, even with leave, from the order refusing to grant an extension of time. Reliance was placed on ss 24(1)(a) and (1AA)(a), read with s 20(3). On a first reading of the provisions, that would seem to be the case. The Full Court has decided otherwise, in a case to which Mr Mulholland referred: Cement Australia 187 FCR 261; [2010] FCAFC 101 at [13]-[19]. In that case, the Full Court held that s 24(1AA) is concerned to preclude appeals from orders made by a single judge in matters in which the original jurisdiction of the Court is to be exercised by a Full Court by reason of ss 20(1A) or (2). In other words, the Full Court construed s 20(3) as having a more limited operation than by reading it as applying only to ss 20(1A) and (2), rather than as reading it as applying also to s 20(1).

43        With respect to the Full Court, why such a limit should be implied is not apparent. I do not read the extrinsic material to which the Full Court refers at [18] as supporting that limited construction: rather, if anything, the extrinsic material appears to support the proposition that s 20(3) was intended to apply to the exercise of original jurisdiction by a single judge.

44        Nevertheless, this aspect of the Full Court decision formed part of the ratio of the case (see Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 at [148]) and is binding on a single judge. At the hearing of this matter, the respondent properly accepted this was the case.

45        Accordingly, it is clear that the primary’s judge’s decision and orders on both the AD(JR) Act extension of time application and the s 31A summary dismissal are properly characterised as interlocutory, and leave to appeal is required.

Should an extension of time be granted in which to file the leave application?

46        An application for leave to appeal from the decision of the primary judge was required to have been filed 14 days after the date on which judgment was pronounced: see Federal Court Rules 2011 (Cth) r 35.13. That period ended on 12 March 2014. This application was filed on 12 June 2014, a delay of some three months. In his affidavit sworn 11 June 2014, Mr Mulholland explained the delay by reference to his several attempts to file documents at the Registry, until the correct ones were filed and accepted. I accept his evidence that he made diligent attempts to put together and file the correct documents, although there was some confusion on his part about whether he needed leave or not because the orders seemed to him to be final ones disposing of his proceeding, and therefore it was not clear to him what documents were required. The respondent accepted there was a reasonable explanation for the delay.

47        The presence of a reasonable explanation is, however, but one factor to be considered in the exercise of the Court’s discretion. The discretion given to courts to extend time is given for the purpose of enabling the court to do justice between the parties, so that an applicant must demonstrate how it would work an injustice to require compliance with the rules imposing a time limit: Gallo v Dawson (1990) 93 ALR 479 at 480 per McHugh J.

48        No substantial argument was put by the respondent that there was any particular prejudice to be suffered by it if an extension of time were granted. Mr Mulholland, on the other hand, submits that the prejudice to him is his inability, unless he can successfully appeal from the decision of the primary judge, to ventilate what he describes as his new arguments based in part on what he sees as judgments supporting his position from the Victorian Supreme Court and Court of Appeal. I take into account that what occurred, so far as Mr Mulholland was concerned, is that his entire proceeding was brought to an end by the primary judge’s orders. Although an order under s 31A is deemed to be interlocutory, it is understandable at a lay level why Mr Mulholland said, as he did, that he considered it was a final order. This feature of the nature of the decision he seeks to appeal, together with the finding that he has a reasonable explanation for the delay, are sufficient to conclude that the time in which Mr Mulholland is able to seek leave to appeal should be extended. Given the two applications were heard together, the merits of the arguments he seeks to make are appropriately considered at the next stage: namely, whether leave to appeal should be granted.

Should leave to appeal be granted?

49        Section 24(1A) of the Federal Court Act confers on the Court a broad discretion, not expressly qualified, to grant leave to appeal: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. Principal (but not sole) considerations in the exercise of discretion are whether the Court’s decision is attended by sufficient doubt to warrant the grant of leave, and whether substantial prejudice or injustice would result if leave were refused: see Décor Corporation 33 FCR 397 at 399. More recently, in Cement Australia 187 FCR 261; [2010] FCAFC 101 at [20], the Full Court expressed those considerations in the following terms:

Leave to appeal against an interlocutory order will usually be granted only where the applicant is able to show that the order occasions substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

50        In cases such as the present one, there is significant overlap between at least one of the considerations relevant to the exercise of discretion to extend time and one of the considerations relevant to the grant of leave to appeal. In Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802, Lindgren J observed (at [20]) that “[i]n practice, the debate and treatment of the ‘arguable error’ question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself”.

51        Submissions were also made about the merits of the underlying judicial review challenge brought by Mr Mulholland under the AD(JR)Act and the Judiciary Act. To the extent that consideration of those merits is inherent in consideration of whether the judgment and orders of the primary judge are attended with sufficient doubt, and whether as a matter of discretion leave should be granted, those merits must be considered. Beyond that, in my opinion, just as in an extension of time application, the Court should be cautious about undertaking any extensive or definitive consideration of the merits, or likely outcome, of Mr Mulholland’s judicial review application: Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [9] per Brennan CJ and McHugh J.

52        As I observed at the hearing of this application to counsel for the respondent, the way in which the primary judge dealt with the extension of time application under the AD(JR) Act could not be decisive of the outcome of this application for leave, nor any appeal, when there was also a claim under the Judiciary Act. Mr Mulholland did not identify any particular challenge to the delegate’s registration decision which depended upon the terms of the AD(JR) Act as opposed to the Judiciary Act. Nor did he identify any particular relief which could only be obtained under the AD(JR) Act (for example, relief such as that contemplated by the terms of s 16(1)(a) of the AD(JR) Act). Where a decision such as the delegate’s registration decision is open to challenge in exercise of the Court’s jurisdiction under either the AD(JR) Act or the Judiciary Act and no particular distinction is made by the applicant, the unavailability of the AD(JR) Act by reason of the refusal to grant an extension of time will not be dispositive of the applicant’s claims.

53        Grounds 2 to 6, and 15 of the proposed notice of appeal, which are also reproduced in Mr Mulholland’s application for leave, concern his Honour’s approach to the extension of time under the AD(JR) Act. In my opinion, his Honour’s conclusions on the matters referred to in those grounds were open to him and not affected by error. The more substantial issue is whether his Honour’s dismissal of Mr Mulholland’s application under the Judiciary Act is attended with sufficient doubt to warrant the grant of leave to appeal, and whether substantial prejudice or injustice would result if leave were refused.

Whether primary judgment attended by substantial doubt: alleged factual error (ground 1)

54        Mr Mulholland clarified in his oral submissions that, despite the use of the term “preconceived view”, ground 1 did not make an allegation of bias against the primary judge. Rather, the ground identified a wrong factual finding made by the primary judge. The respondent accepted there was a factual error in the finding at [19] of the primary judge’s reasons, in that Mr Mulholland did not attend the November 2009 conference in Queensland and did not participate in a ballot against Mr Zegenhagen. Rather, Mr Zegenhagen was elected by delegates at that conference, in the absence of Mr Mulholland and those DLP members who supported him. I do not consider, on a reading of his Honour’s reasons, that this fact affected in any material way the conclusion his Honour reached. The important factual issue arising from [19] is that Mr Zegenhagen was elected to the position of Federal Secretary by those who attended the 28 November 2009 conference and it was consequent upon that election that he applied to the AEC to replace Mr Mulholland as the registered officer of the DLP.

55        The factual error in [19] of the primary judge’s reasons being immaterial, there is no reasonable argument that the orders should be set aside on the basis of this error.

Whether primary judgment attended by substantial doubt: alleged legal errors (grounds 6, 7, 8, 9, 10, 11, 12, 13 and 14)

56         By ground 6, Mr Mulholland contends the primary judge erred in applying the principles in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [164]-[167]. In that decision Gummow and Hayne JJ held that, in circumstances where third parties may have acquired rights that would be affected by an order for certiorari, a court should exercise its discretion to refuse an application for an extension of time to pursue such relief. Wakim does not apply in this case, Mr Mulholland submits, because the concerns of Gummow and Hayne JJ in Wakim arose because the applicant in that case was seeking to re-agitate exactly the same issues as had been addressed in the earlier proceeding. Mr Mulholland claims he is seeking to agitate different issues before the Court in this proceeding and, therefore, the principles from Wakim do not apply.

57        There are some differences in the way Mr Mulholland seeks to agitate his claim before this Court, which I set out at [99] below. However, as I explain in more detail at [100], although his claims vary in how they are expressed, the substantive issues sought to be agitated by Mr Mulholland are the same. In my opinion, his Honour’s application of the principles in Wakim is not affected by error and this ground would have no merit, were leave to be granted. The alteration of the register by the AEC has been relied on in the conduct of two federal elections. As Gummow and Hayne JJ observed in Wakim 198 CLR 511; [1999] HCA 27 at [165] (and at [3] per Gleeson CJ agreeing, at [26] per Gaudron J agreeing; see also at [81] per McHugh J, at [304] per Callinan J), consideration of the effect on third parties of quashing an impugned decision or order is relevant to the discretion to refuse relief in any judicial review proceeding. Although the exercise of such a discretion does not arise unless and until an applicant has otherwise made out a successful ground of review, it was not an impermissible consideration in the present context for the primary judge.

58        The primary judge found that the delegate’s decision had been superseded by the AEC decision of 28 May 2010, and was no longer “operative”. Therefore, the primary judge found, by seeking review of an inoperative decision the proceeding lacked merit. The finding that the AEC decision was “inoperative” loomed as one of Mr Mulholland’s key grievances with the primary judge’s decision. Ground 7 contends that the primary judge “failed to apply the correct principle of law” in relation to whether the delegate’s decision of 8 January 2010 remained “‘intact’, ‘operative’ and ‘real’”. In particular, Mr Mulholland claims the primary judge failed properly to apply Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [100], which quotes with approval the following passage from Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 178-179:

A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.

59        This passage, Mr Mulholland contended, stands for the proposition that the original decision remains in force, even when subject to subsequent, external review.

60        The respondent contends that Mr Mulholland failed adequately to identify the error in the primary judge’s reasoning, and that Mr Mulholland’s argument relies upon a “literal reading” of that passage of Re Brian Lawlor. The respondent submits that the primary judge was correct to find the decision of the delegate had been superseded by the internal review decision of the AEC and, in support of this submission, relies upon the framework and structure of both the Electoral Act and the Administrative Appeals Tribunal Act 1975 (Cth). The respondent relies on the fact that the January 2010 decision was made under delegation, by a delegate exercising a power delegated to her or him by the AEC. That power, the respondent contends, is still retained by the AEC, despite that delegation and, through the process of internal review, the AEC exercised that power itself pursuant to s 141(4)(a) of the Electoral Act by affirming the delegate’s decision.

61        The decision under review at the Tribunal, and the operative decision, the respondent submits, is the decision of the AEC on internal review, made in May 2010, rather than the original decision by the AEC delegate. In support of its submissions, the respondent also relies on the terms of ss 43(1) and (6) of the AAT Act, which provide:

(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

…

(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with s 44), be deemed to be a decision of that person and, upon coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

62        These provisions, the respondent submits, contemplate that any decision subject to review by the Tribunal needs to have had “effect”. If, as Mr Mulholland contends, the decision of January 2010 remained operative, the respondent submits, the decision of the AEC of May 2010 would have no “effect”. Taking into consideration the requirements of s 43 and in particular subs (6), any such review conducted by the Tribunal of a decision without “effect” would not be competent.

63        The respondent also submitted the primary judge was correct to rely on the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; [2013] HCA 43 at [25], where French CJ, Crennan, Bell, Gageler and Keane JJ said:

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

64        In oral submissions, the respondent’s counsel properly conceded that the difficulty of any inutility of Mr Mulholland’s application could be cured by an amendment to his application to instead review the May 2010 decision of the AEC. However, the respondent contends that certain of the grounds agitated by Mr Mulholland in his application, for example, the allegation of bias made by Mr Mulholland against the individual delegate, would not be available to him.

65        It was not contested by Mr Mulholland that the review process set out in the Electoral Act provides for a sequence of decisions through both internal and external review. However, he expressly disavowed any suggestion of an amendment to the way in which his claim was put. He made it clear in his oral submissions that he was only interested in reviewing the decision of the AEC delegate at first instance. That was the decision, he contended, that had all the faults he had identified.

66        In my opinion, it is arguable the decision of the delegate in this process should not be characterised as “inoperative”. Whether or not a decision under review continues to be “operative” after having been subject to internal review by the AEC and external review by the Tribunal may depend on the nature of the powers exercised upon review. Merits review may, but need not, interfere with the decision under review. That is true of both internal and external merits review. The construction of s 43 of the AAT Act pressed by the respondent may pay insufficient regard to the fact that the power being exercised under subs (1)(a) is to affirm the decision of the AEC.

67        In turn, in the present case, the decision of the AEC pursuant to s 141(4) affirmed the decision of the AEC delegate. It did not vary the delegate’s decision, nor set it aside and substitute a new decision.

68        If, for example, the Tribunal had exercised the power conferred on it by ss 43(1)(b) or (c), then s 43(6) may have had a different application. Section 43(6) is a necessary provision so that any changes made by the Tribunal to the decision under review are given a certain operation. For example, it is important that persons affected can ascertain the date from which the decision, as altered by the Tribunal, is to operate. That being the legislative purpose, it is not a purpose which will be fulfilled in the same way for every statutory scheme that provides for Tribunal review.

69        Section 43(6) must interact, and be reconciled, with the statutory scheme in which the decision under review is located. It may be the case that even where the Tribunal exercises its powers under ss 43(1)(b) or (c), properly construed the effect on the decision under review is not retrospective: see Lesi v Minster for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27; [2003] FCAFC 285 at [30]-[50] per Mansfield, Selway and Bennett JJ.

70        Another authority, to which the Full Court in Lesi referred, illustrates a different approach when s 43(6) interacts with a different statutory scheme. In Collector of Customs v Gaylor Pty Ltd (1995) 35 NSWLR 649, the New South Wales Court of Appeal held that a successful applicant before the Tribunal was entitled to recover interest on any overpayment of duty made to the Collector of Customs from the date on which the decision under review came into effect, in accordance with the terms of s 43(6). Handley JA described (at 655) the effect of the Tribunal’s decision to set aside the decision under review and substitute a new one, under the relevant provisions of the Customs Act 1901 (Cth), read together with s 43(6) of the AAT Act. His Honour found that the decision under review was “retrospectively exposed as unlawful and the payment to obtain release of the goods is recoverable in an action for money had and received or in modern terms, restitution”.

71        Thus, even where the powers in ss 43(1)(b) or (c) are exercised, the authorities demonstrate that the effect of s 43(6) is not uniform and depends on the statutory scheme with which it interacts.

72        More obviously, where the Tribunal affirms a decision, it is arguable that the power it exercises is one of confirmation. The statute does not need to provide for any changes to the manner or scope of operation of the decision under review because it has been determined to be the correct or preferable decision. It continues to operate according to its terms.

73        I accept it is arguable that, in exercising its power to affirm an earlier decision of a delegate, the AEC’s decision does not render the previous decision “inoperative”. Nor, to use the language of the extract from Wingfoot (set out at [63] above), is the delegate’s decision necessarily “spent” or “moot”. The same is true when, at the next stage of review, the Tribunal exercises its power under s 43(1)(a) to affirm the AEC decision. The legal effect of the original decision by the AEC delegate is confirmed. His Honour’s reasoning on this issue at [33] to [44] is in my respectful opinion attended with some doubt.

74        That is not to say that leave to appeal should be granted. If Mr Mulholland’s contention is correct, it would simply confirm this Court’s jurisdiction to review the original decision by the AEC delegate. Other discretionary considerations persuade me, on balance, that leave should be refused, and I refer to these at [93] to [114] below.

75        Ground 8 alleges the primary judge “failed to take into account” the fact the judicial review application was based on different factual and legal questions about why the delegate’s registration decision was unlawful. This contention finds expression in several different ways in other grounds: namely, grounds 9, 10, 11 and 12. It is appropriate to deal with them together, but necessary to attempt to summarise the points Mr Mulholland sought to make in his judicial review application, before the primary judge and in his leave to appeal application, about why the judicial review proceeding raised issues not previously considered by the Tribunal and the Full Court.

76        On the basis of what is set out in his originating application in the judicial review proceeding, Mr Mulholland made the following points:

    The Victorian Court of Appeal decision in Mulholland v Victorian Electoral Commission (2012) 36 VR 167; [2012] VSCA 104, to which I have referred above at [24], and which determined that the election of a Victorian Secretary of the DLP to replace Mr Mulholland was void, meant it would be “unsafe in law to allow the AEC’s decision of 8 January 2010 to stand”.

    This was because the AEC had been given the “wrong information” by the “DLP beneficiary of the decision” (which I take as a reference to Mr Zegenhagen).

    The “special circumstances” of the Court of Appeal decision have completely changed the context in which the “new” DLP federal executive officebearers were purportedly elected at the Queensland conference. The factual basis for this allegation, however, on Mr Mulholland’s affidavit material itself as cross-referenced at [29] of his judicial review application, is not limited to the Court of Appeal’s finding about the meaning of “member” in the DLP constitution by reference to eligibility to vote in Commonwealth elections, but includes whether certain individuals were financial members and whether they held a proxy for a person who was not validly considered a DLP member. Mr Mulholland alleges that these invalidities cumulatively affected 12 out of the 24 “purported delegates or proxy holders” at the Queensland conference.

77        He also made the point, in his grounds on the leave to appeal application, that the primary judge “could not have taken into account the relevant new material” from the judgment of Robson J in Butler v Mulholland (No 2) [2013] VSC 662, to which I referred at [25] above. This new material, Mr Mulholland asserted, “demonstrably falsifies findings of the AEC delegate, the Full AEC and the AAT” regarding the delegate’s registration decision.

78        The Court of Appeal decision was delivered on 14 June 2012. The Full Court appeal had been heard on 23 May 2012 and judgment was delivered on 19 September 2012 without reference to the Court of Appeal decision. Robson J’s decision was delivered on 2 December 2013. The primary judge heard the matter which is the subject of this application on 1 November 2013 and delivered judgment on 26 February 2014.

79        The primary judge dealt with Mr Mulholland’s foreshadowed “new” challenges to the delegate’s registration decision at [45]-[49] of his reasons. He did so on three bases. First (at [46]), by referring to findings made by the Tribunal that all four state branches of the DLP had requested the conference be convened, and all four branches had voted at the ballot so that, even if the Victorian branch’s participation (or rather, those “purporting” to represent the Victorian branch, if Mr Mulholland’s arguments were to be accepted) was not valid, it would have made no difference to the election of Mr Zegenhagen because a majority of branches were in favour. The primary judge said Mr Mulholland “advanced no cogent basis for the Court to interfere with that conclusion”.

80        Second (at [47]-[48]), although recognising that the Victorian Court of Appeal’s interpretation of “eligible” in cl 4 of the DLP constitution had resulted in it finding some people were ineligible to vote in Victorian branch elections, he found that Mr Mulholland’s submissions that sought to apply this finding to lists of DLP members who attended the Queensland conference could not be accepted, because Mr Mulholland had not established how these people were not members within the meaning of the DLP constitution.

81        Third (at [49]), the primary judge found that Mr Mulholland was not able to resort to fresh evidence on judicial review to make an argument of this kind, when the evidence was available to be put before the delegate, and it was sought to be adduced to undermine the factual findings of the delegate.

82        The primary judge’s first and second bases depended on an assessment of the evidence adduced by Mr Mulholland on his judicial review application, and the submissions he put in support of the application. Mr Mulholland’s affidavit evidence, and in particular his affidavit of 26 August 2013, advanced several contentions as to why the vote at the Queensland conference should be found to be invalid.

83        Mr Mulholland’s evidence was that 24 people voted (directly or by proxy) to endorse Mr Zegenhagen at the Queensland conference. Mr Mulholland’s affidavit evidence was that 12 of those were not DLP members within the meaning of the DLP constitution and so there was no majority vote for Mr Zegenhagen. On the basis of that evidence, Mr Mulholland contended the AEC could not lawfully recognise the endorsement of Mr Zegenhagen by the Queensland conference. He advanced several reasons.

84         First, Mr Mulholland was contending that the Court of Appeal decision, together with Robson J’s decision, which restored him as Secretary to the Victorian Branch, affected the validity of the authorisation held by people who asserted they were the Victorian delegates to the Queensland conference, including as I understand it their authorisation to convene the conference.

85        Second, he was suggesting that the construction of “eligible” given by the Court of Appeal — namely, that a person was required to be eligible to vote at Commonwealth elections, which in turn meant that their residential addresses had to be the same as the address recorded on the Commonwealth electoral roll — may disqualify some of the people who had attended the Queensland conference and voted for Mr Zegenhagen.

86        Third, he was contending that 12 of those people (including some who gave proxies) were not financial members of the DLP and were not eligible to vote.

87        In my respectful opinion, it is not clear that these arguments, based as they are on matters of fact, which Mr Mulholland did not have the opportunity to prove in the way he would have had if the matter had proceeded to trial, were so hopeless as to warrant summary dismissal. As I observe at [90] below, how these matters might relate to the task of the AEC under s 134(1) would have required further elaboration and development. Lack of connection between these factual irregularities, even if proven, and the statutory task in s 134(1), may have been fatal to the ultimate success of any judicial review application by Mr Mulholland. Similarly, whether as a matter of discretion relief would have been granted under the Judiciary Act might well have been a significant issue, given the previous series of challenges to the AEC decision. Both those outcomes, however, are quite distinct from summary dismissal of the entire proceeding.

88        Further, with respect, I do not accept the breadth of the proposition set out by the primary judge at [49] of his Honour’s reasons. The migration case to which his Honour refers occurred in a different fact-finding setting and the principles enunciated cannot necessarily be applied in the way suggested.

89        Other authorities are less emphatic, and recognise that the admissibility on judicial review of evidence before the decision-maker depends on the ground of review advanced. Where there are both issues of statutory interpretation and a need to establish the requisite factual situation which will bring the statute into operation, there may be a need to adduce additional material: see McCormack v Commissioner of Taxation (2001) 114 FCR 574; [2001] FCA 1700 at [37]-[40]; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540.

90        In the present case (and unlike the migration case to which the primary judge referred), whether the vote at the Queensland conference to elect Mr Zegenhagen was valid by reason of the eligibility or ineligibility of those who voted for Mr Zegenhagen was not a matter about which the AEC delegate was to be satisfied before altering the register. It was a matter to be answered by reference to evidence and to the proper interpretation of the DLP constitution. There would in that sense be only one correct answer. There was a preliminary question, at least one of mixed fact and law, whether the four members of the DLP who applied under s 134(1)(b) to change the Register, by substituting Mr Zegenhagen’s name for that of Mr Mulholland, were validly authorised by the DLP to make that application. After that would come many questions, including whether s 134(1) required or contemplated that such authorisation was necessary. However for the purposes of the dismissal of Mr Mulholland’s application for judicial review, I am not satisfied, with respect, that the learned primary judge was correct to conclude that the kind of evidence Mr Mulholland sought to adduce was as proscribed as his Honour suggested.

91        For these reasons, there is some doubt about the primary judge’s reasoning at [45]-[49] of the judgment. Together with his approach to whether the AEC decision was “inoperative”, grounds 8, 9, 10, 11 and 12 of the application and proposed notice of appeal are capable of raising doubts weighing in favour of the grant of leave to appeal.

92        As I set out below, however, the discretionary factors relevant to this application, and the factual circumstances in which it is brought, lead to the firm conclusion that there is no substantial injustice to Mr Mulholland and leave should be refused.

Whether substantial injustice would result from the refusal of leave, and other discretionary factors

93        In this application there are factors other than the asserted errors in the approach of the primary judge. They are the discretionary factors to which the primary judge adverted at [27]-[29], [50] and [62], as well as further discretionary factors, some of which were advanced by the respondent in submissions. In my opinion, they are decisive against the grant of leave to appeal because they reveal there is no substantial injustice to Mr Mulholland arising from the refusal of leave. These factors also tend, independently as a matter of discretion, against the grant of leave because of the existence and termination of previous challenges to the same decision by the AEC. Some of these discretionary factors are stronger than others, as I explain below.

94        The first of these factors is the possible prejudice to third parties that may be caused by Mr Mulholland’s delay in seeking review of the delegate’s decision. The AEC accepts that there has been no prejudice to it in Mr Mulholland’s delay, but claims that “many innocent third parties have been acting on the basis that since 8 January 2010 the Register was correct”. The primary judge observes at [27]:

During the period between 8 January 2010 and 12 September 2013 it is likely that the DLP and other third parties relied upon 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.

95        The AEC’s submission is based, in part, on the important role played by the registered officer of a political party in Part XIV of the Electoral Act, in respect of the nomination of candidates for elections: see, eg, ss 166(1)(b)(ii), 169B(1)(a).

96        During oral submissions, Mr Mulholland conceded that the public has participated in elections in reliance on the accuracy of the register, but submitted that any “disturbance” that might be caused by his delay in bringing this proceeding is of secondary importance to ensuring that the respondent, the AEC, complies with its obligations under the Electoral Act.

97        Mr Mulholland’s submission seeks to diminish the effects of the passage of time and the conduct of two federal elections. In my respectful opinion, the primary judge was correct to identify the prejudice which might be suffered by those members of the Australian community who cast their votes on the basis that DLP candidates were endorsed by the Party, as evidenced by the nomination by Mr Zegenhagen as the party’s registered officer. Had Mr Mulholland had no opportunity at all to challenge the AEC decision, the weight to be given to such prejudice might be less, given the Electoral Act itself provides for internal and external merits review and contemplates, by the latter, appeals on questions of law to this Court. The possible prejudice inherent in those processes to voters who rely on the register in the meantime, while those processes are underway, has been subjugated by the statutory scheme to permit the testing of the correctness of the merits of the AEC’s decision, and on appeal the lawfulness of the AAT’s decision on merits review. To take into account the fact that further challenges will continue to undermine the voting public’s reliance on the register is a permissible discretionary factor. It may not be the strongest of factors but it is permissible.

98        The second and third factors, addressed at [50] and [62] of the primary judge’s reasons, are to some extent related. At [50], his Honour found that Mr Mulholland’s application lacked merit, on the basis that Mr Mulholland has agitated his claims before the AEC, Tribunal and before the Full Federal Court, and there is “no new circumstance which might justify reaching a different view on that question.” At [62], the primary judge referred to the decision of Gyles J in Kamha v Australian Prudential Regulation Authority (2007) 98 ALD 49; [2007] FCA 1422 at [9], where his Honour said the existence of a suitable alternative remedy is a well-established basis for the refusal for administrative law relief, whether under the AD(JR) Act or at common law. The primary judge found:

…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.

99        Mr Mulholland contends that there are differences in the arguments put before the AEC, AAT and the Full Federal Court, and those he seeks to make on review in this proceeding, so that the principles in cases such as Kamha should not have been applied. He submits that the findings of the Victorian Court of Appeal and the decision of Robson J in the Supreme Court of Victoria gave interpretations of the DLP’s constitution and rules that had not previously been recognised at law. This recognition, Mr Mulholland contends, has enabled him to bring arguments to this Court for which previously he had no legal authority upon which to rely. In particular, he seeks to challenge the validity of the elections held at the Queensland conference. As I have noted at [80]-[81] above, before the primary judge, he sought to adduce into evidence membership lists of the DLP which he claims demonstrate that not all those who attended the Queensland conference and voted at that conference were financial members and, therefore, eligible to vote.

100        I accept Mr Mulholland’s submission that there may be some differences in the way he seeks to present his claims before this Court, and the way they have been presented in previous proceedings. However, it remains the fact that the underlying dispute between Mr Mulholland and the respondent — whether the November 2009 conference had been convened validly and in accordance with the DLP’s constitution so as to authorise Mr Zegenhagen’s nomination as registered officer — has already been determined by an independent merits review tribunal. In turn, the Tribunal’s decision has been reviewed judicially by this Court in relation to errors of law said to have been made by that Tribunal.

101        The connection between the “validity” of the vote at the Queensland conference and the requirement in s 134(1)(b) that an application to substitute the name of the registered officer of a political party be made by members of that party is not clear, in that s 134(1) does not appear to require any particular form of authorisation to have been obtained by those three members. It does not require, for example, evidence of a vote in favour of that person by a majority of the members of a political party. Nor do the terms of cl 34 of the DLP constitution, relied on by Mr Mulholland, deal with such authorisation.

102        The only additional requirement of s 134(1) is the definition of “member of a political party” set out in s 123(3), which states:

A reference in this Part to a member of a political party is a reference to a person who is both:

(a)    a member of the political party or a related political party; and

(b)    an elector.

103        Section 4 of the Electoral Act defines “elector” as “any person whose name appears on a Roll as an elector”. It is not, and never has been as I understand the evidence, any part of Mr Mulholland’s arguments that the three people who made the application pursuant to s 134(1) were not “members of a political party” within the meaning of that term in the Electoral Act. Rather, his arguments centred on the “validity” of the Queensland conference as a meeting of the federal DLP, and on the eligibility of certain people to vote at that conference to elect Mr Zegenhagen.

104         The decision under challenge was made more than four years ago. There is no basis to find that Mr Mulholland was unable to produce evidence, and make arguments, to the Tribunal demonstrating why he submitted some asserted DLP members were not financial members.

105        Nor, as the respondent submits, is there any evidence as to why the judicial review proceedings were commenced by Mr Mulholland more than a year after the Court of Appeal decision, if it is that decision which is said to have provided the new arguments. As I have outlined above, s 134(1), even read with s 123(3) and s 4, does not impose the same requirement as the terms of the DLP constitution considered by the Court of Appeal — namely, that the applicants be “eligible to vote in Commonwealth elections”. In that sense, in addition to the absence of an explanation for the delay, the relevance of the Court of Appeal decision is not immediately apparent.

106        The correctness of the primary judge’s finding, which I have extracted at [100] above, is supported by reference to the terms of the judgment of the Full Court. At [10] and [13], Jacobson and Flick JJ found:

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.

…

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

107        At [104] Cowdroy J found:

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.

108        These passages emphasise the nature of the underlying dispute sought to be agitated by Mr Mulholland in the judicial review proceedings is the same as that in earlier proceedings.

109        In these circumstances, no substantial injustice is occasioned to Mr Mulholland by the refusal of leave. Although the primary judge’s orders under s 31A have the effect of bringing the judicial review proceedings to an end, and precluding a further challenge to the AEC’s decision, Mr Mulholland has had the AEC’s decision examined on its merits by the Tribunal, as well as having a Full Court of this Court examine the lawfulness of the Tribunal’s decision.

110        Even accepting in his favour that Mr Mulholland could have produced evidence at a trial said to support the alleged factual and procedural irregularities with the voting at the 2009 Queensland conference, as I have outlined above at [101] to [103], it is difficult to see the connection between those matters and the statutory requirements in s 134(1). It is also difficult to see how the decisions of the Victorian Court of Appeal and the Supreme Court give rise to any “new” arguments about the unlawfulness of the statutory task performed by the AEC pursuant to s 134(1). Given those difficulties, refusing leave to appeal, and therefore preserving the primary’s judge’s orders dismissing the judicial review under s 31A of the Federal Court Act, does not occasion any substantial injustice to Mr Mulholland.

111        I accept that the decisions of the Victorian courts have had some impact on Mr Mulholland’s thinking about other possible reasons the AEC decision might not have been lawful. It is not uncommon for later judicial decisions to cause litigants to ruminate on what might have been, had different arguments been presented in their cases.

112        Nevertheless, an important objective of the administration of justice is to bring some finality to parties’ disputes, especially in relation to public decision-making where there have been previous unsuccessful challenges. In the current circumstances, I consider this to be a separate, but relevant factor from the finding of no substantial injustice.

113        The importance of the objective of finality of litigation is heightened by the overarching purpose of the Court’s practice and procedure provisions, which is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court Act; see also Luck v University of Southern Queensland (No 4) [2011] FCA 433 at [32] per Bromberg J. There is also a public interest in the finality of litigation: Sobey v Nicol and Davies (2007) 245 ALR 389; [2007] FCAFC 136 at [79]. In SZGPB v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 587 at [62], Rares J made the following observation, in slightly different factual circumstances:

In my opinion there is a public interest in finality of litigation. It is important that litigants know that Courts are here to administer justice fairly and impartially, but once their cases have been heard or the procedures of the law have been put in motion and the litigants have had adequate opportunity to appear and present their cases and do not take the opportunity up for reasons which are not substantial enough, it is wrong to put the other party or parties to further expense by allowing the litigation to proceed.

114        Unlike the litigant in SZPGB, Mr Mulholland took every opportunity to appear and make arguments. With hindsight he may consider he should have made different arguments given the Victorian Court of Appeal and Supreme Court decisions. Even if that is his perspective, given the limited matters made relevant by s 134 of the Electoral Act, there is no objective basis to consider his “new” arguments enjoy any better prospects of success. Considering those limited prospects, the interests of justice are best served by finality being imposed to quell the subject matter of this dispute about the AEC’s decision, especially given Mr Mulholland has had full review on the merits and judicial consideration of his essential complaint. The learned primary judge was correct, in my respectful opinion, to place considerable weight on this factor, as have I.

115        Orders will be made granting an extension of time to the applicant to file and serve an application for leave to appeal from the orders of the primary judge dated 26 February 2014. The application for leave to appeal is dismissed. There is no basis in the evidence to depart from the usual orders as to costs. Just as with other impecunious litigants, Mr Mulholland’s asserted impecuniosity alone is an insufficient reason: see AD (deceased) on behalf of the Mirning People v Western Australia [2013] FCA 565 at [21] per McKerracher J. It will be a matter for the AEC whether, in the face of the existing bankruptcy application, it is appropriate to seek to enforce this costs order as well.

Associate:

Dated:    1 September 2014