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

Federal Court of Australia

Electoral Commissioner of Australian Electoral Commission v Wharton (No 2) [2021] FCA 390 File number: QUD 334 of 2020

Judgment of: LOGAN J

Date of judgment: 3 March 2021

Catchwords: PRACTICE AND PROCEDURE – interlocutory application for leave to amend originating application – where amendment is to cure an obvious error – leave granted – objection by respondent to jurisdiction of the Court and to legislative competence of Commonwealth Parliament – where respondent is a member of a particular Aboriginal clan – where notice required by s 78B Judiciary Act 1903 (Cth)

Legislation: Commonwealth Electoral Act 1918 (Cth) ss 304, 309, Pt XX Judiciary Act 1903 (Cth) s 78B Federal Court Rules 2011 (Cth) r 8.21

Cases cited: Dwyer v O'Mullen (1887) 13 VLR 933 GL Baker Ltd v Melway Building and Supplies Ltd [1958] 1 WLR 1216

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 13

Date of hearing: 3 March 2021

Counsel for the Applicant: Ms SA Amos

Solicitor for the Applicant: Maddocks

Counsel for the Respondent: The respondent appeared in person

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: 3 MARCH 2021

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.