Electoral Commissioner of the Australian Electoral Commission v Futter

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 29 July 2021
• Neutral Citation: [2021] FCA 876
• Date: 29 July 2021

Federal Court of Australia

Electoral Commissioner of the Australian Electoral Commission v Futter [2021] FCA 876

File number(s):	NSD 1303 of 2020
Judgment of:	GRIFFITHS J
Date of judgment:	29 July 2021
Catchwords:	STATUTES – civil penalty proceedings brought pursuant to the Commonwealth Electoral Act 1918 (Cth) – where respondent was a candidate in a federal election – where respondent failed to make disclosures as required by s 304(2) and s 309(2) of the Electoral Act – where respondent did not take any active steps in proceeding – penalties imposed
Legislation:	Commonwealth Electoral Act 1918 (Cth) ss 289, 304, 307, 309, 313 Evidence Act 1995 (Cth) s 140 Regulatory Powers (Standard Provisions) Act 2014 (Cth) ss 81, 82
Cases cited:	Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742 L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	26
Date of hearing:	29 July 2021
Counsel for the Applicant:	Mr N Swan
Solicitor for the Applicant:	Maddocks
Counsel for the Respondent:	The respondent did not appear

ORDERS

		NSD 1303 of 2020
BETWEEN:	THE ELECTORAL COMMISSIONER OF THE AUSTRALIAN ELECTORAL COMMISSION Applicant
AND:	BARRY JOHN FUTTER Respondent

order made by:	GRIFFITHS J
DATE OF ORDER:	29 July 2021

THE COURT DECLARES THAT:

1. The respondent failed to make the disclosures by 2 September 2019 required by s 304 of the Commonwealth Electoral Act 1918 (Cth) and thereby contravened s 304 of the Electoral Act.

2. The respondent failed to make the disclosures by 2 September 2019 required by s 309 of the Electoral Act and thereby contravened s 309 of the Electoral Act.

THE COURT ORDERS THAT:

3. Within 30 days of the date of service of this order upon him, the respondent pay to the Commonwealth of Australia, pursuant to s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), the following pecuniary penalties totalling $12,600, which are hereby impressed upon him in respect of the declared contraventions:

   1. in respect of his contravention of s 304 of the Electoral Act - $6,300; and

   2. in respect of his contravention of s 309 of the Electoral Act - $6,300.

4. Payment of the said penalties may be made into such official bank account as is nominated in writing by the applicant or, failing such nomination within 7 days of a written request in that regard by or on behalf of the respondent, as directed by the Court and the receipt by the Commonwealth of Australia (or of the applicant on its behalf) of cleared funds into any such bank account so nominated or directed shall be sufficient discharge of the respondent’s liability to pay the penalties imposed by this order. A certificate under the hand of a proper officer of the Commonwealth of Australia, or as the case may be, of the applicant, certifying to such receipt of funds is to be furnished to the respondent upon its written request. A certificate so furnished is prima facie evidence of the receipt of the penalties and of the related discharge of the obligation to pay them.

5. The respondent pay the applicant’s costs of and incidental to the proceeding, as agreed or taxed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1. By an amended originating application filed with leave on 17 March 2021, the applicant (the Electoral Commissioner of the Australian Electoral Commission) seeks declarations that Mr Barry John Futter has contravened ss 304 and 309 of the Commonwealth Electoral Act 1918 (Cth) and an order that Mr Futter pay to the Commonwealth civil penalties in the amount of $12,600, as well its costs of, and incidental to, this proceeding.

2. As will shortly emerge, Mr Futter has not participated in the proceeding. He failed to attend any case management hearing or the final hearing of the matter on 29 July 2021 nor did he file any material in the proceeding.

Summary of background facts

3. I am satisfied that the following facts are established by the affidavits and documentary material filed by the Electoral Commissioner. The affidavits comprise:

1. an affidavit affirmed by Valeria Feltrin on 30 November 2020;

2. an affidavit sworn by Vanessa Betland on 4 January 2021;

3. an affidavit affirmed by Paul Howard Massing on 11 March 2021;

4. a second affidavit affirmed by Valeria Feltrin on 26 March 2021;

5. a second affidavit sworn by Vanessa Betland on 12 April 2021;

6. a second affidavit affirmed by Paul Howard Massing on 15 April 2021;

7. an affidavit affirmed by Caitlyn Georgeson on 4 June 2021;

8. a third affidavit affirmed by Paul Howard Massing on 19 July 2021;

9. an affidavit affirmed by Eloise Margaret Grace Crompton on 19 July 2021;

10. a fourth affidavit affirmed by Paul Howard Massing affirmed on 27 July 2021;

11. a second affidavit affirmed by Eloise Margaret Grace Crompton on 28 July 2021; and

12. a third affidavit affirmed by Valeria Feltrin on 20 July 2021.

4. On 11 April 2019, the Governor-General issued writs for the election of Members of the House of Representatives of the Parliament of the Commonwealth of Australia. The polling date was fixed as 18 May 2019.

5. On 20 April 2019, Mr Futter completed a nomination as a candidate in the election, in the electoral division of Newcastle in the House of Representatives. Mr Futter was endorsed by The Great Australian Party. The election took place on 18 May 2019, but Mr Futter was not elected.

6. Mr Futter was required by ss 304 and 309 of the Electoral Act to furnish to the Electoral Commissioner, by 2 September 2019, a return setting out the value of gifts and discretionary benefits received, and electoral expenses incurred, by him (Candidate Return).

7. On 5 June 2019, 19 June 2019 and 23 August 2019, letters were sent to Mr Futter in which his obligation to lodge a Candidate Return with the Australian Electoral Commission (AEC) by 2 September 2019 was outlined and instructions on how to lodge a Candidate Return were given. No Candidate Return was lodged by or in relation to Mr Futter on or before 2 September 2019. On 17 September 2019, 28 January 2020, 14 February 2020, 7 July 2020 and 14 August 2020, letters and emails were sent to Mr Futter in which his failure to lodge a Candidate Return was raised, as well as the prospect of seeking a civil penalty order arising from his non-compliance with ss 304 and 309 of the Electoral Act. On 17 April 2020 and 8 May 2020, email correspondence was also sent to Ms Ioanna Culleton, Party Agent of The Great Australian Party, in order to seek her assistance to make contact with Mr Futter. Attempts were also made to contact Mr Futter by telephone on 28 January 2020, 14 February 2020, 29 May 2020 and 7 July 2020. The Electoral Commissioner’s solicitor has unsuccessfully attempted to communicate with Mr Futter several times while this proceeding has been on foot. As at 20 July2021, Mr Futter still had not lodged a Candidate Return with the Electoral Commissioner.

Some procedural matters

8. The proceeding was commenced by way of an originating application filed on 7 December 2020. The evidence establishes that, on 21 December 2020, Mr Futter was personally served (at 97 Hunter Street, Newcastle) with the originating application, a supporting affidavit, a letter from the Electoral Commissioner’s solicitors and correspondence from O’Bryan J’s Chambers. Case management hearings were held by O’Bryan J on 12 February 2021 and on 11 March 2021. Mr Futter failed to appear at either hearing. On...