Agarwal v Coutts

Case [2024] ACTSC 71

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Cover v ACT Integrity Commission

Citation: 

[2024] ACTSC 71

Hearing Date: 

3 March 2025

Decision Date: 

3 March 2025

Before:

Mossop J

Decision: 

See [16]

Catchwords: 

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – The legislature – application by Speaker of ACT Legislative Assembly to be heard as amicus or joined as a party – where evidence potentially subject to parliamentary privilege – where parties cannot waive parliamentary privilege – where Speaker submits that parties may not have particular interest in the issue – appropriate to hear Speaker as a representative of the legislature

PRACTICE AND PROCEDURE – AMICUS CURIAE – Application by Speaker of ACT Legislative Assembly to be heard as amicus or joined as a party – where evidence potentially subject to parliamentary privilege – where Speaker wishes to make submissions on the issue of parliamentary privilege – where hearing Speaker will not substantially add to cost or length of hearing – either course available under Court Procedures Rules or within the court’s inherent jurisdiction – more appropriate to hear Speaker as amicus than to join as party

PRACTICE AND PROCEDURE – COSTS – Anticipatory application by Speaker that there be no order as to costs unless the court otherwise considers it appropriate – order not made – inappropriate to make anticipatory cost order

Legislation Cited: 

Administrative Decisions (Judicial Review) Act 1989 (ACT), s 19

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A

Court Procedures Act 2004 (ACT) s 27

Court Procedures Rules 2006 (ACT), rr 220, 3097

Human Rights Act 2004 (ACT), s 36

Supreme Court Act 1933 (ACT), s 20

Cases Cited: 

Carne v Crime and Corruption Commission [2022] QCA 141; 11 QR 334

CJC v Dick [2000] QSC 272

Criminal Justice Commission v Nationwide News Pty Ltd [1996] 2 Qd R 444

Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2001] QCA 218; [2002] 2 Qd R 8

Flegg v Hallett [2014] QSC 278; [2015] 2 Qd R 483

In the matter of the Board of Inquiry into Disability Services [2002] ACTSC 28; 167 FLR 262

Levy v Victoria (1997) 189 CLR 579

Obeid v R [2015] NSWCCA 309; 91 NSWLR 226

Queensland Harness Racing Ltd v Racing Queensland Ltd [2011] QSC 125

R v Jackson (1987) 8 NSWLR 116

R v Murphy (1986) 5 NSWLR 18

R v Will [2017] ACTSC 356

Texts Cited:

ACT Integrity Commission, Special Report – Operation Luna (Part 1) (27 June 2024)

Parties: 

Leanne Cover ( Plaintiff)

ACT Integrity Commission ( Defendant)

Speaker of the Legislative Assembly of the Australian Capital Territory ( Applicant)

Representation: 

Counsel

IJ King (Plaintiff)

B Kaplan (Defendant)

P Bindon (Applicant)

Solicitors

Mills Oakley (Plaintiff)

ACT Integrity Commission (Defendant)

ACT Government Solicitor (Applicant)

File Number:

SC 199 of 2024

MOSSOP J:  

Introduction

1․Leanne Cover, former Chief Executive of the Canberra Institute of Technology, has brought proceedings seeking declarations and prerogative relief in relation to a report prepared by the…

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Agarwal v Coutts [2024] ACTSC 71
Case
[2024] ACTSC 71
Decision Date

CaseChat Overview and Summary

Agarwal v Coutts was a case where the Speaker of the ACT Legislative Assembly sought to be heard as amicus curiae or to be joined as a party in the proceedings. The case involved the interpretation of parliamentary privilege and its potential application to evidence that might be disclosed during the litigation. The dispute arose in the context of a legal action in the ACT Supreme Court, where the Speaker was concerned that the evidence might be subject to parliamentary privilege.

The court was tasked with determining whether the Speaker should be heard as an amicus or joined as a party. This involved considering the implications of parliamentary privilege, the interests of the parties involved, and the potential impact on the proceedings. The court also had to consider the appropriateness of the Speaker making submissions on the issue of parliamentary privilege and the effect of any decision on the costs and length of the hearing.

The court found that it was appropriate to hear the Speaker as an amicus rather than joining him as a party. It was reasoned that this approach would be more effective in addressing the issues of parliamentary privilege without substantially adding to the cost or length of the hearing. The court further held that the parties could not waive parliamentary privilege and that it was appropriate for the Speaker to represent the legislature's interests in this matter. Regarding the Speaker's application for a costs order, the court declined to make an anticipatory order, considering it inappropriate to do so without further consideration of the costs.

The final orders of the court were that the Speaker of the ACT Legislative Assembly would be heard as amicus curiae, and there would be no order as to costs unless the court otherwise considered it appropriate.

Orders

Orders of the court

See [16]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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