Adler v Ludlam; Adler v Waters

In the High Court of Australia, Dr Adler, the plaintiff, brought proceedings against Senators Ludlam and Waters, the defendants, under the Common Informers (Parliamentary Disqualifications) Act. The dispute concerned allegations that the defendants sat as senators while being constitutionally incapable of doing so, and the plaintiff sought penalties under the Act. The court was required to determine whether the plaintiff's statement of claim sufficiently particularised the alleged contraventions of the Act and the High Court Rules, and whether the proceedings could proceed in light of a prior penalty ordered in a related matter concerning Senator Barrow.

The legal issues before the court included whether the plaintiff's statement of claim adequately identified the specific provisions of the Common Informers Act relied upon and provided sufficient particulars of the facts giving rise to the alleged liability, as required by the High Court Rules. Further questions arose concerning the application of section 3(1)(a) and (b) of the Act, particularly whether the alleged contraventions occurred within the relevant timeframes and whether the defendants' resignations from the Senate impacted the claims. The court also had to consider the effect of section 3(3) of the Act, which prevents a person from being penalised more than once for the same period or day of sitting, in light of a penalty already imposed in the Barrow matter.

Her Honour raised significant concerns regarding the deficiencies in the plaintiff's statement of claim, noting a lack of specificity regarding the statutory provisions and the dates of alleged sittings, which made it difficult for the defendants to plead. The court also questioned the viability of claims under section 3(1)(b) given the defendants' resignations prior to the service of the originating process. The defendants argued that the proceedings should be stayed or dismissed due to these deficiencies and the operation of section 3(3), contending that allowing the matter to proceed would result in a double penalty. The plaintiff, acknowledging some deficiencies, sought to amend the statement of claim and indicated that the case primarily relied on section 3(1)(a). The court granted the plaintiff seven days to file further submissions addressing the substantive legal issues raised.