Electoral Commissioner, Australian Electoral Commission v James

Introduction 1 On 7 December 2020, the Electoral Commissioner of the Australian Electoral Commission (Commissioner) filed an originating application in this proceeding alleging, amongst other things, that the respondent, as a candidate for the House of Representatives in the 2019 Federal election, failed to make disclosures to the Australian Electoral Commission (AEC) required under Part XX of the Commonwealth Electoral Act 1918 (Cth) (Electoral Act) in contravention of ss 304 and 309 of the Electoral Act. The Commissioner seeks civil penalties against the respondent in respect of the contraventions. 2 As explained further below, the Commissioner has been unable to effect personal service of the originating application on the respondent. 3 By interlocutory application filed today, the Commissioner sought orders for substituted service of documents on the respondent under rule 10.24 of the Federal Court Rules 2011 (Cth). In support of that application, the Commissioner relies on an affidavit of Valeria Feltrin affirmed 30 November 2020 and an affidavit of Steven John Woodward sworn 22 January 2021. 4 At an interlocutory hearing today, I made orders for substituted service. These are my reasons for making those orders.

Background 5 The affidavit evidence relied on by the Commissioner establishes the following facts. 6 The respondent, Christopher Ronald James, nominated himself as a candidate for the House of Representatives in the 2019 Federal election by an AEC Nomination Form dated 23 April 2019. In that form, he disclosed the following: (a) his residential address as 1 Cunningham Place, Oakleigh South, Victoria 3167; (b) his email address as chris.james@mjamesholdings.com; and (c) his mobile phone number as 0427 490 190. 7 The Federal election occurred on Saturday, 18 May 2019. 8 From 6 June 2019, the AEC sent letters to the respondent at the residential address stated in his AEC Nomination Form regarding his nomination for the House of Representatives and his requirement to comply with various obligations under the Electoral Act, to which he never responded. Further letters were sent on 20 June 2019, 22 August 2019 and 17 September 2019. 9 On 14 January 2020, the AEC had a conversation with the respondent by telephone using the mobile phone number stated in his AEC Nomination Form. Following that conversation, the AEC sent the respondent an email, using the email address stated in his AEC Nomination Form, attaching the letters previously sent to the respondent. The respondent replied to that email notifying the AEC that he had not been able to access the attachments to the AEC's email. From that date, the AEC sent further emails to the respondent at that email address and made further attempts to contact him by telephone and post. 10 Despite the AEC making multiple communications with him by letter, mobile phone and email, the respondent has not provided the disclosures required by the Electoral Act or responded to the AEC's requests. Finally, on 14 August 2020, the AEC sent a letter before action to the respondent at his residential address stating that, if he continued to not comply with his obligations under the Electoral Act, the AEC may seek the imposition of a civil penalty. Annexed to Ms Feltrin's affidavit was an affidavit of service of Mr Woodward sworn 21 August 2020. Mr Woodward is a process server. In the affidavit, Mr Woodward deposed that he delivered the letter of 14 August 2020 to the Oakleigh South address and spoke to a woman named Yvonne at the address. Mr Woodward asked whether the respondent lived at the address, to which Yvonne replied that he was not in. Mr Woodward asked whether Yvonne lived at the address and whether she was authorised to accept documents on behalf of the respondent, to which Yvonne replied "I can pass it onto him". 11 Having received no reply to the letter dated 14 August 2020, the AEC issued these proceedings and engaged Mr Woodward to effect personal service of the originating application on the respondent. Mr Woodward was not able to effect personal service. He deposed to the following in his affidavit: (a) On Monday, 4 January 2021 at 6:25pm, Mr Woodward attended at the Oakleigh South address in an attempt to serve the documents on the respondent. However, there was no person in attendance. Mr Woodward spoke to a female neighbour who confirmed that the respondent resided at the address but was currently away. (b) On Saturday, 9 January 2021 at 10:47am, Mr Woodward again attended at the South Oakleigh address in an attempt to serve the documents on the respondent. Again there was no person in attendance. (c) On Sunday, 17 January 2021 at 11:50am, Mr Woodward again attended at the South Oakleigh address in an attempt to serve the documents on the respondent. Mr Woodward spoke to a male occupant who claimed not to be the respondent but did confirm that the respondent resided at the address and was not present at the time of the visit. The occupant declined to assist further with enquiries but agreed to take a calling card in an addressed and sealed envelope which requested the respondent to make contact. (d) On Wednesday, 20 January 2021 at 10:40am, Mr Woodward called the respondent's mobile phone number and spoke to him. The respondent confirmed that he resided at the South Oakleigh address but said he was "not interested in accepting service" of the originating application and "will not make himself available". The respondent also said that "the matter was being handled by his legal team due to the fraud and corruption of the electoral commission".

Consideration 12 Rule 10.24 provides as follows: If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order: (a) substituting another method of service; or (b) specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or (c) specifying that the document is taken to have been served: (i) on the happening of a specified event; or (ii) at the end of a specified time. 13 In light of the evidence set out above, I am satisfied that the respondent is refusing to accept service of the originating application in this proceeding and, as a result, it is not practicable to serve the respondent personally. 14 The method of substituted service sought by an applicant should be one which in all reasonable probability, if not certainty, will be effective to bring knowledge of the process to the respondent: Porter v Freudenberg [1915] 1 KB 857 at [889]; ACCC v Yellow Page Marketing BV [2010] FCA 1218 at [35]. 15 I am satisfied on the evidence that the respondent resides at the address 1 Cunningham Place, Oakleigh South, Victoria 3167; uses the email address chris.james@mjamesholdings.com; and uses the mobile phone number 0427 490 190. I am therefore satisfied that service by mailing and hand delivering the originating application to that address, and by notifying the respondent of service by text message to the above mobile phone number and email address, will in all probability be effective to bring knowledge of the proceeding to the respondent. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.