Federal Court of Australia

Electoral Commissioner of Australian Electoral Commission v Wharton (No 2) [2021] FCA 390

ORDERS

THE COURT ORDERS THAT:

1.    The address for service of the respondent be 161-181 Redwood Circuit, Glenlogan Qld 4280 with his telephone contact being 0408 064 900.

2.    The need for the filing by the respondent of an address for service be dispensed with and the address specified in order 1 stand for the purposes of this proceeding as the respondent’s address for service.

3.    The applicant file and serve a statement of claim and his affidavit evidence in chief not later than close of business on 24 March 2021.

4.    The respondent file and serve a defence and such affidavits in chief if any as he may be advised by close of business on 23 April 2021.

5.    The applicant file and serve any reply and such affidavits if any in reply by 7 May 2021.

6.    The objection of the respondent to the Court’s jurisdiction to hear the application on the basis that his a Kooma man be noted.

7.    The applicant file and serve an outline of submissions of not more than 7 pages together with an indexed and tabulated book of authorities by close of business 21 May 2021.

8.    The respondent file and serve such outline of submissions in reply as he may be advised of not more than 7 pages by close of business on 28 May 2021.

9.    Subject to any application as a result of the service of notices under s 78B of the Judiciary Act 1903 (Cth) as provided for in this order, the proceeding be listed for trial for 2 days commencing on 1 June 2021 at 10.15am.

10.    The Registrar prepare and send to each of the Attorneys-General for the several States and self-governing Territories a notice under s 78B of the Judiciary Act 1903 (Cth) notifying that the following constitutional issue has bene raised in this proceeding on the basis that the respondent is a Kooma man:

(a)    It is beyond the legislative competence of the Parliament to apply the Commonwealth Electoral Act 1918 (Cth) to him either at all or at least in a way that would subject him to the penalties claimed by the applicant; and

(b)    The Court has no jurisdiction to entertain the proceeding.

11.    The applicant have leave to amend the originating application in terms of the draft annexed to the affidavit of Caitlyn Georgeson filed 2 March 2021. In so far as the same may otherwise be required by the rules, the time for the filing and service of the application to amend the originating application be dispensed with.

12.    The originating application as amended be filed forthwith with service thereof being dispensed with in light of the respondent’s signification today that service of that document is not required given the prior notification to him of the proposed amendment.

13.    There be no order for costs of and incidental to the application to amend the originating application. Save as aforesaid, cost reserved.

14.    Liberty to apply.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The Australian Electoral Commissioner (Commissioner) has instituted civil proceedings in this Court against the respondent under the Commonwealth Electoral Act 1918 (Cth) (the Act). In essence, the nature of the case alleged by the Commissioner is that the respondent, Mr Wharton, as a candidate for the Senate in the 2019 federal election failed to make disclosures, including those concerning donations received and electoral expenditure incurred by or with his authority to the Australian Electoral Commission as required under Pt XX of the Act. This is alleged to constitute a contravention of s 304 and s 309 of the Act.

2    The nature of the allegations made by the Commissioner was apparent enough on the face of the originating application. However, that application was deficient in that it did not claim in the prayers for relief and declarations to give both legal and practical recognition to the contraventions alleged if found proven. The Commissioner upon realising this deficiency made a prompt application to amend the originating application in terms of a draft annexed to an affidavit filed in support of the interlocutory application.

3    Mr Wharton appeared today as a matter, as he put it, of courtesy to the Court. The reason for his expressing his appearance in this way was an objection, emphatically expressed by him in an oral submission, to the jurisdiction of the Court to entertain the proceeding. As further elaborated, the nature of that objection was to the legislative competence of the Commonwealth Parliament to enact the Act at least in a way that had any application to him in terms of subjecting him to penalties.

4    Flowing from that, there was an objection to the jurisdiction of the Court to entertain the penalty proceeding. The essence of the objection, as Mr Wharton stated, was that he was and is a “Kooma man”. By that I understood the objection to be that he was a member of a particular Aboriginal clan, a Kooma clan, and by virtue of his being a Kooma man, in other words a member of that clan, he was not amenable to the application of the Act in a way that would expose him to a penalty or, related to that, to the Court’s jurisdiction.

5    The attendance of Mr Wharton was responsive to an earlier order made for substituted service. His attendance was not, with respect, merely a courtesy but also greatly assisted the administration of justice. Indeed, his stance this morning while maintaining the objection was with respect, cooperative. By that I mean that Mr Wharton had been given short notice of the amendment as proposed, and could have relied upon the short service of the application to amend, he did not do this. That with respect, that was both pragmatic and also of assistance in the administration of justice.

6    The amendment is of a formal nature and to cure what is an obvious slip in the pleading of the originating application. The Court has power under r 8.21 of the Federal Court Rules 2011 (Cth) to grant leave to amend an originating application. In respect of an application of the present kind; the granting of leave to amend ought to follow almost as a matter of course so as to correct the obvious slip and to make manifest, or at least to confirm, the real issue at large in the proceeding between the parties.

7    The terms of r 8.21 follow a form which has long been prevalent. The attitude which I have voiced to the granting of leave to amend has also long been prevalent: see as to this, Dwyer v O’Mullen (1887) 13 VLR 933 and GL Baker Ltd v Melway Building and Supplies Ltd [1958] 1 WLR 1216. For these reasons, I grant leave to amend and, related to that dispense with the requirement in the rules, insofar as a particular time has been required for the service in advance of the application and of the hearing of the application.

8    The courtesy of Mr Wharton’s appearance also made it convenient to make provision for the fixing of a trial date and belated interlocutory directions. The nature of Mr Wharton’s objection is such that, in my view, the giving of a notice under s 78B of the Judiciary Act 1903 (Cth) is required. I have therefore made provision for the giving of such notice in the orders.

9    It seems to me that the interests of justice are best served if the Registrar gives that notice on behalf of Mr Wharton, rather than putting him to the burden of so doing. The issue is one which, in any event, having been raised, a court of its own motion could direct the giving of such a notice. The terms of the notice as to the constitutional issue were proposed to each of the parties in court. It was agreed that the terms as proposed accurately summarised the issue which Mr Wharton has raised and wishes to maintain.

10    In my view, the giving of the notice by the Registrar forthwith with the trial date fixed, 1 June 2021, will allow sufficient time to elapse for the Attorneys-General or one or more therefore to decide whether or not to intervene or to seek the removal of the constitutional issue directly into the High Court.

11    At one stage in the course of the case management hearing, it was foreshadowed on behalf of the Commissioner that an application for summary judgment might be made. Of course, that is a matter for the Commissioner to decide whether to bring in such an application. However, it seems to me that the hearing of such an application would occupy very little less time, if any, than it would take substantively to hear the proceeding. Especially that is so, given that, to secure summary judgment, the Commissioner would have to file evidence sufficient to prove the claim in any event. If there is to be such an application, and I certainly do not encourage the same, it could be brought under liberty to apply, on notice, of course, to Mr Wharton.

12    As to the giving of notice to Mr Wharton or other communications or service of documents relating to the proceeding, Mr Wharton has signified in open court that a particular address employed for the purposes of substituted service is satisfactory to him, and further, that a telephone number specified in earlier orders is a satisfactory means of communication by telephone with him if necessary. For these reasons I have made provision in the orders today for the giving of that address and phone number to be used respectively for service and telephone communication.

13    It is desirable that the case proceed on pleadings given that certain penalties are sought by the Commissioner. The allegation of contraventions should be made with precision by a pleading of material facts. I have also made provision for the filing of such a defence, if any, as Mr Wharton may be advised. However, and in any event, I have noted the objection voiced by him today in the Court’s orders. The other directions made today are directed to the end of the trial occurring on 1 June 2021.

Associate:    

Dated:    19 April 2021