Federal Court of Australia Electoral Commissioner of Australian Electoral Commission v Anning [2021] FCA 115 File number(s): QUD 353 of 2020 Judgment of: GREENWOOD J Date of judgment: 18 February 2021 Catchwords: HIGH COURT AND FEDERAL COURT – consideration of a request from the solicitors for an applicant for a response from the Federal Court of Australia in relation to a particular matter Legislation: Commonwealth Electoral Act 1918 (Cth), s 314AB Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 12 Date of hearing: 17 February 2021 Solicitor for the Applicant: Maddocks ORDERS QUD 353 of 2020 BETWEEN: THE ELECTORAL COMMISSIONER OF AUSTRALIAN ELECTORAL COMMISSION Applicant AND: WILLIAM FRASER ANNING Respondent order made by: GREENWOOD J DATE OF ORDER: 18 FEBRUARY 2021 THE COURT ORDERS THAT: 1. No response is made to the request of the solicitors for the applicant other than in terms of the reasons published today. 2. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: 1 These reasons for judgment are concerned with responding to a request which has been made of the Court by the solicitors for the applicant in the proceeding. 2 The background to the matter is this. 3 On 13 November 2020, the applicant styled as "The Electoral Commissioner of Australian Electoral Commission" (the "AEC") commenced proceedings against Mr William Fraser Anning raising a number of claims. The AEC contended that Mr Anning as agent for "Fraser Anning's Conservative National Party" failed to make disclosures to the AEC required under Part XX of the Commonwealth Electoral Act 1918 (Cth) (the "Act") in contravention of s 314AB(1) of the Act. By para 2 of the application, the AEC sets out the matters an agent of a political party is required to disclose within 16 weeks after the end of the relevant financial year as required by provisions of the Act. By para 3, the AEC asserts that a failure to lodge a declaration of such matters is a contravention of s 314AB(1) of the Act. By para 4, the AEC asserts that Mr Anning did not make the disclosures required by s 314AB by the lodgement date of 21 October 2019. The originating application sets out other claims. It is not necessary to set all of those matters out in these reasons. 4 The originating application was supported by the affidavit of Valeria Feltrin affirmed on 12 November 2020. 5 On 8 February 2021, the solicitors for the AEC filed an affidavit of David Ian Page sworn 7 December 2020 in which Mr Page deposes to various attempts made to serve Mr Anning with the originating application and supporting affidavit. 6 On 16 February 2021, the solicitors for the AEC sent an email to the Court in which they said this: In November 2020 we informed the Court that the [AEC] had been notified that the Respondent was residing overseas. We also informed the Court that we anticipated some difficulties with locating the Respondent and effecting service of the Originating Application and the Affidavit of Valeria Feltrin in support. As set out in the Affidavit of Attempt of David Ian Page of 7 December 2020, we have been unable to effect service on the Respondent. This is despite a number of attempts by Mr Page to contact the Respondent at his given home address, as well as via his mobile phone number and email address. The Respondent cannot be located and the AEC has not uncovered further information about his whereabouts. In light of the above, we are instructed to apply to discontinue this proceeding with leave of the Court, with a right of reinstatement of the proceeding within 6 years of the alleged contravention on 21 October 2019. This is so that the AEC may choose to reinstate proceedings if the Respondent returns to Australia or further information is gained about his whereabouts. This is also so that the AEC does not incur unnecessary costs in the meantime. We attach a draft Notice of Discontinuance (Form 48) for the Court's consideration prior to the case management hearing on 17 February. 7 In light of the email from the solicitors for the AEC, the case management hearing on 17 February 2021 did not proceed and the Court made an order on 16 February 2021 in the following terms: "Leave is granted to discontinue the proceedings". 8 On 16 February 2021, the solicitors for the AEC sent an email to the Court asking this question: "Could you please confirm whether [the order confers] on our client a right of reinstatement of the proceeding within 6 years of the alleged contravention on 21 October 2019". On 17 February 2021, the Court responded in these terms: "The Order granting leave to discontinue is confined in its scope to the present proceedings only and does not operate as a bar to any subsequent proceeding filed within time and otherwise competently instituted" [emphasis added]. 9 On 17 February 2021, the solicitors for the AEC responded in these terms: … Could you please confirm whether the AEC will be permitted to file fresh proceedings in relation to the same alleged contravention of Mr William Fraser Anning (so long as those proceedings are competently instituted) within 6 years of the alleged contravention. Relevantly, could you please confirm that the discontinuance of this proceeding will not preclude our client from bringing a fresh proceeding in relation to the same alleged conduct of Mr Anning. If, due to the discontinuance of this proceeding, our client will be precluded from bringing a fresh proceeding in relation to the same alleged conduct, we will file an affidavit as you suggested and request that this be [sic] proceeding be discontinued with a right of reinstatement within 6 years of the alleged contravention. 10 Accordingly, it is necessary to respond to this second request of the solicitors for the applicant which, in effect, amounts to a request for advice from the Court about the subject matter described above. 11 It is not a matter for the Court to provide advice or advisory opinions to a party about a "matter" relating to a proceeding instituted in the Court or in relation to a future or prospective proceeding that may be instituted. The role of the Court is to make procedural orders and other substantive orders in a relevant matter and to provide judgment in the resolution of controversies the subject of proceedings. In proceeding QUD 353 of 2020, the applicant sought leave to discontinue the proceeding for the particular reasons identified above. In the light of those matters, the Court made an order granting the applicant leave to discontinue the proceedings. It can be seen from that order that no judgment has been made or published by the Court quelling any aspect of the controversy reflected in the originating proceeding. No judgment has been made or published by the Court in relation to any "issue" in controversy in the proceeding. On the face of the order granting leave to discontinue the proceedings, it may be observed that no question of res judicata arises and nor does any question of an issue estoppel arise. 12 However, ultimately any such question or the proper operation of the order sought, is entirely a matter for the applicant and its advisers. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate: Dated: 18 February 2021