FEDERAL COURT OF AUSTRALIA

Mulholland v Australian Electoral Commission (No 2) [2014] FCA 917

THE COURT ORDERS THAT:

1.    The interlocutory application filed in the appeal on 18 June 2014 be dismissed.

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

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

1        This application arises in the context of a long-running dispute between the applicant Mr Mulholland and others about control of the Democratic Labor Party (DLP) and its executive at state and federal level. The dispute has resulted in litigation in both state and federal jurisdictions. In the course of the federal litigation, Mr Mulholland was unsuccessful in an appeal on questions of law from the Administrative Appeals Tribunal to a Full Court of this Court. In an exercise of the Court’s discretion, a costs order was made against him in favour of the first respondent in the appeal, the Australian Electoral Commission (AEC), and in March this year a certificate of taxation was issued by a Registrar of this Court.

2        On 18 June 2014, Mr Mulholland filed an application, purportedly in the appeal proceeding, to have the costs order of the Full Court and the orders and certificate of taxation of Registrar Burns stayed or set aside, or varied so that the parties are to pay their own costs of the appeal.

3        For the following reasons, and assuming without deciding there is jurisdiction to consider all aspects of Mr Mulholland’s application, it should be refused.

FACTUAL BACKGROUND

4        The long history of the dispute between Mr Mulholland and other members of the DLP is set out in detail in my reasons for judgment in proceeding VID 323 of 2014: see Mulholland v Australian Electoral Commission [2014] FCA 916 at [6]-[26]. In summary, Mr Mulholland’s claims centre around a decision of a delegate of the AEC to change an entry in the register of political parties which it maintains under Part XI of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act), and to substitute the name of the second respondent, Mr Anthony Zegenhagen, for Mr Mulholland’s name as the registered officer for the DLP.

5        Between January 2010 and October 2012, Mr Mulholland pursued the avenues available to him under the Electoral Act, the Administrative Appeals Tribunal Act 1975 (Cth) and the Federal Court of Australia Act 1976 (Cth) to have the AEC’s decision internally and externally reviewed on its merits, and then subject to scrutiny for errors of law in this Court. On 19 September 2012, the Full Court (Jacobson, Cowdroy and Flick JJ) ordered that the appeal be dismissed, and that Mr Mulholland pay the AEC’s costs: Mulholland v Australian Electoral Commission [2012] FCAFC 136. Mr Mulholland then unsuccessfully sought special leave to appeal to the High Court from the Full Court’s orders: Mulholland v Australian Electoral Commission [2013] HCASL 43.

6        After the refusal of special leave to appeal, on 2 September 2013, the AEC filed a bill of costs with the Court, pursuant to rr 40.17 and 40.18 of the Federal Court Rules 2011 (Cth). On 8 October 2013, pursuant to r 40.20 of the Federal Court Rules, Registrar Allaway as taxing officer made and provided to the parties an estimate of the taxed costs at $30,700.

7        Meanwhile, undeterred by his lack of success in the Tribunal, this Court and the High Court, on 13 September 2013, Mr Mulholland instituted judicial review proceedings in this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) and the Judiciary Act 1903 (Cth) (Judiciary Act) seeking orders setting aside the same decision of the AEC delegate that had been subject of the proceedings in the Full Court. The AEC sought summary dismissal of the Judiciary Act claim, and an order refusing to extend time under the AD(JR) Act. That application was heard by the primary judge on 1 November 2013 and, on 26 February 2014, his Honour made orders refusing the application for an extension of time under the AD(JR) Act, and summarily dismissing Mr Mulholland’s application under the Judiciary Act: Mulholland v Australian Electoral Commission (2014) 219 FCR 1; [2014] FCA 136.

8        Shortly before the primary judge heard argument on the first respondent’s application to dismiss those judicial review proceedings, pursuant to rr 40.21 and 40.25 of the Federal Court Rules Mr Mulholland filed an objection to the estimate of costs made by Registrar Allaway in the Full Court proceeding. The objection was filed on 28 October 2013.

9        Pursuant to directions made by Registrar Burns on 7 January 2014, further notices of objection were filed by Mr Mulholland on 20 February 2014 and 24 February 2014, and the first respondent filed a response to those objections on 27 February 2014. In summary, relying on r 40.30 of the Federal Court Rules, Mr Mulholland objected to certain barristers’ fees sought to be recouped by the first respondent, totalling $9,460, involving participation of and consultation with Senior Counsel, and other costs (including solicitors’ costs) he contended were “unnecessary and/or unreasonable and/or incurred out of overcaution”.

10        On 6 March 2014, consistently with the estimate of Registrar Allaway made on 8 October 2013, Registrar Burns made orders that a certificate of taxation be issued in the sum of $30,700. He also ordered that there be no order as to the costs of the taxation.

11        These orders were ultimately made by consent of the parties. There was no evidence in the current application as to how that came to pass. Mr Mulholland accepted in the current application that the orders were made by consent and so, in that sense, the explanation is irrelevant. The final certificate of taxation was issued by Registrar Burns on 6 March 2014.

12        Applications for an extension of time and leave to appeal from the decision of Murphy J dated 26 February 2014 were filed by Mr Mulholland on 12 June 2014, well out of time.

13        On 18 June 2014, Mr Mulholland filed a purported interlocutory application in the Full Court proceeding, seeking the following orders:

1.    That the costs Order of the Full Court made on 19 September 2012, and/or its execution, be set aside or stayed;

2.    That the Order/Certificate of Taxation of Registrar Burns made on 6 March 2014, and/or its execution, be set aside or stayed;

3.    In the alternative to 1 and 2, that the costs Order of the Full Court be varied, by way of an order that the parties carry their own costs;

4.    That there be any other orders as the Court deems appropriate.

MR MULHOLLAND’S EVIDENCE AND ARGUMENTS

14        Filed with the interlocutory application was an affidavit, sworn by Mr Mulholland on 18 June 2014. No objections were taken to that affidavit. Mr Mulholland also swore an affidavit on 11 June 2014 in support of his application in respect of Murphy J’s decision (VID 323 of 2014). During the hearing of this matter, which was heard together with VID 323 of 2014, Mr Mulholland sought leave to read each affidavit in both of his proceedings. The first respondent did not object to this request and I have treated each affidavit as read in both proceedings. None of the evidence was contested, although the relevance of some of it was in issue.

15        In the 18 June 2014 affidavit filed in this proceeding, Mr Mulholland sets out the attempts made by the AEC to recover its costs prior to it filing the bill of costs on 2 September 2013, and recounts the procedural steps leading up to this application, which I have described above.

16        He refers in the affidavit to his application for a fee waiver, which he sought from the Court on 9 January 2012, when filing his notice of appeal from the decision of the Tribunal. He describes his circumstances as an age pensioner with minimal assets and no other source of income. He states:

The waiver was granted on the basis of my being a pensioner and I was informed by the Registry officer attending to me, that my waiver application would be sealed and placed on the Court file to be viewed only by the judges.

17        At the conclusion of the Full Court hearing, in an exchange with the bench, Mr Mulholland deposes that he was invited to make any submissions as to why costs orders should not be made against him, should the appeal be unsuccessful. In response, Mr Mulholland submitted that it would “create considerable financial hardship”. Mr Mulholland deposes (and the first respondent did not contest) that Flick J observed that there was “no evidence” before the Court to support Mr Mulholland’s submission. Mr Mulholland seeks to place considerable weight on this remark by Flick J.

18        Mr Mulholland deposes that, on 8 May 2014, following the certificate of taxation being issued by Registrar Burns, he received from the AEC’s solicitors a letter requesting payment of the taxed costs by 22 May 2014. If payment was not received by 22 May 2014, the letter states, the AEC had instructed its solicitors to issue a bankruptcy notice against Mr Mulholland.

19        He wrote to the AEC’s solicitors on 21 May 2014 and requested that the AEC “delay steps for recovering its costs”. He foreshadowed further proceedings seeking to review further the AEC delegate’s decision, and stated that he will need time to find sufficient funds to cover the taxed costs.

20        Mr Mulholland deposes that on 28 May 2014 he was served with a bankruptcy notice in relation to the debt owed to the AEC. On 18 June 2014, Mr Mulholland instituted proceeding VID 338 of 2014 in this Court seeking to have the bankruptcy notice set aside. Those proceedings were adjourned before Registrar Caporale on 31 July 2014 pending the outcome of this application.

APPLICABLE PRINCIPLES

21        Rule 39.05 of the Federal Court Rules provides for the limited circumstances in which a judgment or order of the Court may be varied or set aside after it has been entered. It provides:

The Court may vary or set aside a judgment or order after it has been entered if:

(a) it was made in the absence of a party; or

(b) it was obtained by fraud; or

(c) it is interlocutory; or

(d) it is an injunction or for the appointment of a receiver; or

(e) it does not reflect the intention of the Court; or

(f) the party in whose favour it was made consents; or

(g) there is a clerical mistake in a judgment or order; or

(h) there is an error arising in a judgment or order from an accidental slip or omission.

22        Aside from the power to stay final orders, the Court’s power to vary or set aside judgments or orders is limited to the prescribed circumstances set out in r 39.05.

23        There may be a question whether r 39.05 applies to orders made in the exercise of the Court’s appellate jurisdiction. In Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326, Gyles J, in considering the previous version of the Federal Court Rules and sitting as the Full Court constituted by a single judge, held (at [6]) that the equivalent rule did not so apply. However that rule contained an introductory clause which provided “where it is not exercising its appellate or related jurisdiction”. Rule 39.05 contains no such qualification. It empowers “the Court” to set aside orders after entry in certain prescribed circumstances. A reference to “the Court” in the Federal Court Rules has been held to include the Full Court: Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 at 428-429 per Carr J. This issue was neither raised nor argued by the parties, in particular by the first respondent. Given the change in language and the construction of the term “the Court”, I am prepared to assume without deciding that r 39.05 confers power exercisable in the Court’s appellate jurisdiction. In Dunstan [2007] FCA 1326, Gyles J doubted (at [7]-[12]) there was an implied power to set aside an order once perfected, although given the approach I am prepared to take I need not consider the various authorities on that question.

24        An order is entered in accordance with the process set out in r 39.35: r 39.32. Relevantly, r 39.35 provides:

(1) An order is authenticated by:

(a) the Court, or a Registrar signing the order; and

(b) the Court, a person at the direction of the Court, or a Registrar, affixing the seal of the Court or the stamp of a District Registry to the order.

…

25        In Dunstan [2007] FCA 1326, Gyles J held (at [4]) that, assuming there was power to vary or set aside an order of a Full Court after entry, that power “would normally be exercised by the Court which made the order”. That was the case in Dunstan. It is not the case here. There is in my opinion a reasonable argument that, even if the powers in r 39.05 are construed as extending to the Court in the exercise of its appellate jurisdiction, they are confined to the Court as constituted when the orders were made. A textual indication of such confinement might be derived from the terms of r 39.05(e), which depends on ascertaining the intention of the Court making the orders.

26        If that argument is correct, a Court constituted by a single, and different, judge would have no power to vary or set aside the costs order which is the subject of this application. Had there otherwise been an argument that Mr Mulholland’s application was within the terms of r 39.05, then I may have considered referring the matter to the Full Court as it was constituted on the appeal, although one of the three judges has now retired and s 14(3) of the Federal Court Act may have had to be relied upon. As I set out below, there is no basis for a conclusion Mr Mulholland’s application falls within the terms of r 39.05, so the question of how the Court should be constituted does not arise.

27        Rules 41.03 and 41.11 provide that a party may apply to the Court for an order that a judgment or order, or execution of a judgment or order, be stayed:

41.03 Application for stay of judgment or order

A party bound by a judgment or order may apply to the Court for an order that the judgment or order be stayed.

41.11 Stay of execution

A party may apply to the Court for a stay of execution of a judgment or order.

28        Applications to stay an order of a Full Court are to be heard and determined by a single judge: see s 25(2)(d) of the Federal Court Act.

29        Although the Court’s discretion to grant a stay on final orders is broad, the Court should not lightly deprive a litigant of the benefit of a judgment. Generally, an applicant must show “special or exceptional circumstances” that warrant the exercise of discretion in her or his favour: see Flight Centre Ltd v Australian Competition and Consumer Commission [2014] FCA 658 at [9] per Rangiah J, and the authorities cited therein.

30        A stay does not operate to impugn the order or judgment itself, but simply prevents or delays its enforcement. As Robson J observed in Re S&D International Pty Ltd (in liq) (No 6) [2011] VSC 119 at [130]:

In my view, the reference to special circumstances is an acknowledgement that prima facie a successful litigant is entitled to the fruits of its litigation. The applicant for a stay bears the onus of establishing that in those circumstances a stay should be granted. The grounds must be relevant to a stay of the enforcement proceedings, rather than grounds which may bear upon the validity or correctness of the judgment.

(Emphasis added.)

CONSIDERATION

31        The Court records show that the orders of the Full Court dated 19 September 2012 were entered and sealed on 15 October 2012, and copies of these orders were sent to Mr Mulholland on that date. I infer this was done in preparation for Mr Mulholland to apply for special leave to appeal the Full Court’s decision to the High Court, which he did on 17 October 2012.

32        Mr Mulholland does not in his submissions make any challenge to the regularity of the order of the Full Court. He does not invoke any of the provisions in r 39.05. Rather, he submits that the Full Court failed to take into consideration his application for a fee waiver, as evidence of his financial situation, and of any hardship that may be faced by him should a costs order be made against him. During the course of the hearing, Mr Mulholland conceded that he did not raise the issue of costs with the High Court in his application for special leave to appeal. It is well established that, even if an application to vary or set aside orders once entered is within the terms of r 39.05, those powers are not exercisable as a form of appeal: see Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [15] per Gordon J, and the authorities there referred to. Mr Mulholland’s submissions amount to a challenge to the correctness of the Full Court’s approach to its exercise of discretion on costs, and are in the nature of an appeal.

33        Even if the Court as constituted has jurisdiction to consider Mr Mulholland’s application to vary or set aside the costs order made by the Full Court (which may be doubtful, for the reasons expressed at [25]-[26] above), its power to do so is limited to the circumstances set out in r 39.05. The grounds of Mr Mulholland’s application are outside r 39.05. His application to vary or set aside the Full Court’s order as to costs should be dismissed.

34        As to the application to stay the Full Court’s cost order, there is both jurisdiction and power to grant a stay but Mr Mulholland has not established any special or exceptional circumstances justifying such an order. His principal challenge is not based in any exceptional circumstance which justifies the Court precluding enforcement of the costs order. Rather, he seeks to impugn the correctness of the Full Court’s costs order, contrary to the observations of Robson J in Re S&D International.

35        Further, there is no legal merit to Mr Mulholland’s contention about the correctness of the costs order. A fee waiver from the Court is an administrative decision made by Registry staff. A party who has received a fee waiver will be exposed to the usual risks of costs orders in a proceeding. The grant of a fee waiver may be a permissible consideration to take into account in the exercise of that discretion, but it is certainly not a mandatory one. The fact that a litigant is a pensioner, and impecunious, is not in and of itself a basis upon which a Court must or should, in the exercise of its discretion, decide not to make the usual order as to costs: AD (deceased) on behalf of the Mirning People v Western Australia [2013] FCA 565 at [21] per McKerracher J.

36        Mr Mulholland also sought to justify the need for a stay by reference to the effect of the enforcement of the costs order on his capacity to bring other proceedings. He submitted that proceedings he anticipates bringing against other members of the DLP are likely to “overlap” with matters that have already been determined in the proceedings before the Full Court. He submitted that, should favourable findings of fact be made in those proceedings contrary to those made in the litigation that culminated in the Full Court proceeding, it would be unfair to have had the costs order made against him and then have to face claims of bankruptcy brought by the AEC.

37        As Mr Mulholland conceded at hearing, there are no other proceedings in existence whose effectiveness could be said to be affected by the enforcement by the AEC of the costs order: cf Re S&D International [2011] VSC 119 at [178]-[179]. To consider proceedings foreshadowed by Mr Mulholland is to engage in nothing more than speculation.

38        The application for a stay of the costs order of the Full Court should be refused.

39        As to Mr Mulholland’s attempt to have the Court interfere with the taxation order of Registrar Burns, that was an order to which Mr Mulholland consented. He did not suggest in evidence or submissions that there were any circumstances attending his consent which vitiated it. Irrespective of whether a single judge of this Court has jurisdiction to interfere with a taxation order made consequent upon an order of a three member Full Court of this Court, the fact Mr Mulholland consented to the order is sufficient basis on which to refuse him any relief in relation to Registrar Burns’ order.

40        These applications were dealt together with the applications in VID 323 of 2014. In that proceeding, the Court refused leave to appeal from the decision of the primary judge, and ordered Mr Mulholland to pay the first respondent’s costs of that application. Insofar as any separate and identifiable costs have been incurred by the first respondent in this proceeding, they are in my opinion minimal. Given Mr Mulholland’s circumstances as disclosed on the evidence, the pending bankruptcy proceedings and the costs orders in VID 323 of 2014, I consider in the exercise of the Court’s discretion it is not appropriate to make any separate order for costs in this proceeding.

Associate:

Dated:    1 September 2014