Electoral Commissioner of Australian Electoral Commission v Wharton
[2021] FCA 124
•1 February 2021
FEDERAL COURT OF AUSTRALIA
Electoral Commissioner of Australian Electoral Commission v Wharton [2021] FCA 124
File number: QUD 334 of 2020 Judgment of: LOGAN J Date of judgment: 1 February 2021 Legislation: Commonwealth Electoral Act 1918 (Cth) ss 304, 309
Federal Court Rules2011 (Cth) r 10.24
Cases cited: Combis (Trustee) v Spottiswood (2011) 123 ALD 40 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 3 Date of hearing: 1 February 2021 Solicitor for the Applicant: Maddocks Solicitor for the Respondent: The Respondent did not appear ORDERS
QUD 334 of 2020 BETWEEN: THE ELECTORAL COMMISSIONER OF AUSTRALIAN ELECTORAL COMMISSION
Applicant
AND: WAYNE MORRIS WHARTON
Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
1 FEBRUARY 2021
THE COURT ORDERS THAT:
1.Personal service of the originating application addressed to the Respondent be dispensed with.
2.The originating application and supporting affidavit be served on the Respondent as follows:
(a)by posting the following documents (the Documents) by ordinary mail addressed to the Respondent at 161 – 181 Redwood Circuit, Glenlogan QLD 4280 (Address):
(i)a covering letter;
(ii)a copy of the order for substituted service, i.e. this order; and
(iii)a sealed copy of the originating application and affidavit in support.
(b)by sending a text message addressed to the Respondent on mobile number 0408 064 900 stating that an originating application addressed to him has been sent to or left at his Address;
(c)by placing the Documents in an envelope addressed to the Respondent and handing the envelope to a person apparently over the age of 16 years apparently residing at the Address or, in the event that no such person is in attendance, by placing the envelope in the letter box at the Address.
3.Service of the originating application be deemed to be effected by 12 February 2021 if the events referred to in paragraph 2 occur by 11 February 2021.
4.The application be listed for further case management in Brisbane at 10:15am on 3 March 2021. The appearance that day is to be in person in Brisbane, subject to prevailing public health conditions and restrictions, unless otherwise advised to the parties beforehand by a Registrar.
5.The costs of this application be reserved.
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:
The principal proceeding is an application by the Electoral Commissioner of Australian Electoral Commission (Commissioner) in respect of an alleged breach of s 304 and s 309 of the Commonwealth Electoral Act 1918 (Cth) by the respondent, Wayne Morris Wharton. The proceeding was filed in October 2020. Since then, on numerous occasions, a process server engaged by the solicitors for the Commissioner has endeavoured to affect service on the respondent at an address which, on the evidence, is one which can comfortably be concluded as the respondent’s residential address. Endeavours have also been made to contact him via a mobile telephone number. That mobile telephone number is one which has, in the past, been a channel of communication as between the Commissioner and the respondent.
The long and the short of the endeavours is that it has not been possible to affect personal service on the respondent. The application today is for an order for substituted service under r 10.24 of the Federal Court Rules2011 (Cth). On the subject of substituted service, I gave extensive consideration to the requirements of, and to the authorities relating that subject to in my judgment in Combis (Trustee) v Spottiswood (2011) 123 ALD 40, in particular, at [8] and [9]. I do not intend to repeat what is there stated. Suffice it to say that I am well satisfied that it is not practical, in terms of r 10.24, to affect personal service of the originating application and supporting documents on the respondent in a way required by the rules and that this is a case, in respect of which, it is apt to make provision of substituted service, in terms of the orders sought by the Commissioner in the interlocutory application.
Subject to one addition, there will be orders in terms of the interlocutory application. The additional order is that the application will be listed for further case management in Brisbane at 10.15am on 3 March 2021. The appearance that day is, subject to prevailing public health conditions and restrictions to be in Brisbane in person, unless otherwise advised to the parties beforehand by the registrar.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 22 February 2021
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