BDR21 v Australian Broadcasting Corporation

Case [2021] FCA 960

FEDERAL COURT OF AUSTRALIA

BDR21 v Australian Broadcasting Corporation [2021] FCA 960

File number: NSD 290 of 2021
Judgment of: HALLEY J
Date of judgment: 17 August 2021
Catchwords: PRACTICE AND PROCEDURE – application pursuant to rr 16.21 and 26.01 of the Federal Court Rules 2011 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth) to strike out and/or give summary judgment in relation to parts of amended statement of claim – whether reasonable cause of action disclosed – whether any reasonable prospect of success – where applicant alleges reprisal action pursuant to s 13 of the Public Interest Disclosures Act 2013 (Cth) (PID Act) – whether allegations in document subject to parliamentary privilege can be relied upon as disclosable conduct for purposes of whistleblower protections in the PID Act – whether unlawful to adduce evidence of material facts of alleged public interest disclosures by reason of s 16(3) of the Parliamentary Privileges Act 1987 (Cth) – whether document prepared for purposes of or incidental to the transacting of the business of a parliamentary committee – whether material facts require evidence, questions or submissions concerning proceedings in Parliament – whether Parliament intended s 24 of the PID Act to abrogate or modify parliamentary privilege – application granted
Legislation:

Federal Court of Australia Act 1976 (Cth) s 31A

Parliamentary Privileges Act 1987 (Cth) ss 3, 16

Public Interest Disclosure Act 2013 (Cth) ss 6, 13, 24, 26, 29, 80

Federal Court Rules 2011 (Cth) rr 16.21, 26.01

Australia, House of Representatives, Parliamentary Privileges Bill 1987, Explanatory Memorandum, item 3(c)

Bill of Rights 1688(UK) Art 9
Cases cited:

Amann Aviation Pty Limited v Commonwealth of Australia (1988) 19 FCR 223; [1988] FCA 435

Barilaro v Shanks-Markovina (No 2) [2021] FCA 950

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27

British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123; [2011] FCAFC 107

Carrigan v Cash [2017] FCAFC 86

Christou v Stantons International Pty Ltd [2010] FCA 1150

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Coleman v Sellars (2000) 181 ALR 120; [2000] QCA 465

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

Hammond v The Commonwealth of Australia (1982) 152 CLR 188; [1982] HCA 42

J C Techforce Pty Ltd v Pearce (1996) 138 ALR 522; [1996] FCA 599

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60

Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83

Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 116
Date of last…

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AGLC
BDR21 v Australian Broadcasting Corporation [2021] FCA 960
Case
[2021] FCA 960
Decision Date

CaseChat Overview and Summary

The Federal Court was asked to decide whether certain parts of an amended statement of claim should be struck out and whether summary judgment should be given in relation to parts of the amended statement of claim. The applicant, identified as BDR21, alleged reprisal action by the Australian Broadcasting Corporation (ABC) under the Public Interest Disclosures Act 2013 (Cth) (PID Act) following an alleged false response provided by ABC to a question on notice after the managing director of ABC gave evidence at a Senate Estimates Hearing. The court was asked to determine whether allegations in a document subject to parliamentary privilege could be relied upon as disclosable conduct for whistleblower protections in the PID Act, and whether it was unlawful to adduce evidence of the material facts of the alleged public interest disclosures by reason of s 16(3) of the Parliamentary Privileges Act 1987 (Cth). The court also needed to decide whether the document was prepared for purposes of or incidental to the transacting of the business of a parliamentary committee, whether the material facts required evidence, questions or submissions concerning proceedings in Parliament, and whether Parliament intended s 24 of the PID Act to abrogate or modify parliamentary privilege.

The court found that the allegations in the amended statement of claim were not sufficient to establish a reasonable prospect of success. The court noted that the power to dismiss an action summarily is not to be exercised lightly but that the evident legislative purpose would be defeated if its application was read as being confined to cases of a kind that fell within earlier, different, procedural regimes governing the summary dismissal of proceedings. The court found that the applicant had not pointed to specific factual or evidentiary disputes that made a hearing necessary. The court also found that it was not lawful to adduce evidence of the material facts of the alleged public interest disclosures by reason of s 16(3) of the Parliamentary Privileges Act 1987 (Cth), as the evidence concerned proceedings in Parliament and would be for the purpose of questioning or establishing credibility, motive, intention or good faith of any person. The court further found that the document was prepared for purposes of or incidental to the transacting of the business of a parliamentary committee and that the material facts required evidence, questions or submissions concerning proceedings in Parliament. The court concluded that Parliament did not intend s 24 of the PID Act to abrogate or modify parliamentary privilege.

The court granted the application and ordered that certain parts of the amended statement of claim be struck out and that summary judgment be given for the respondent with respect to the causes of action advanced in those parts. The court also ordered that the parties file and serve written submissions on costs and that the issue of costs be determined on the papers unless either party sought an oral hearing.

Orders

Orders of the court

1. Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), paragraphs 45-124, 129-135.1, 144-145, 149-183, 194-198.1, 208-212.1, 223-227.1, 238-242, 246-246.1, 251, 255 (the words “A PID Belief as described in paragraph 121 above”), 259 (the words “A PID Belief as described in paragraph 121 above”), 278, 279.1, 311 (the words “and the … December 2018 PID”), 312-312.1 and 322-330 of the amended statement of claim filed by the applicant on 15 June 2021 (ASOC) be struck out.

2. Pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth), summary judgment be given for the respondent with respect to the causes of action advanced in paragraphs 45-124, 129-135.1, 144-145, 149-183, 194-198.1, 208-212.1, 223-227.1, 238-242, 246-246.1, 251, 255 (the words “A PID Belief as described in paragraph 121 above”), 259 (the words “A PID Belief as described in paragraph 121 above”), 278, 279.1, 311 (the words “and the … December 2018 PID”), 312-312.1 and 322-330 of the ASOC.

3. Subject to any consent position with respect to the payment of the costs of the proceeding:

a. the respondent is to file and serve written submissions on costs limited to three pages and any supporting evidence by 4.30 pm on Friday, 27 August 2021;

b. the applicant is to file and serve written submissions on costs limited to three pages and any supporting evidence by 4.30 pm on Friday, 3 September 2021;

c. the respondent is to file and serve any submissions in reply on costs limited to one page and any supporting evidence by 4.30pm on Friday, 10 September 2021; and

d. the issue of costs be determined on the papers unless either party seeks an oral hearing.

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

Background

Background to the litigation

Given the suppression orders that I made in these proceedings on 5 May 2021 and the allocation of a pseudonym to the applicant, these reasons for judgment are necessarily set forth in comparatively general terms, particularly with respect to the relevant factual background. I also note that I have not used any gender specific pronouns referrable to the applicant. Rather, when it has been necessary to use a pronoun to refer to the applicant I have used “they”, “their” or “them”, as is apparent from the preceding paragraph. BACKGROUND The managing director of the respondent appeared before the Senate Standing Committee on Environment and Communications to give evidence at a budget estimates hearing (Senate Estimates Hearing). He provided an oral response to a question that he was asked in the course of the Senate Estimates Hearing that related to the applicant. Shortly after the Senate Estimates Hearing, the respondent was issued with a document in the form of a question on notice, which asked for further details of when a particular discussion took place, with whom and what was said (Question on Notice). The respondent provided a written response to the Question on Notice (Response). In December 2018, the applicant sent a letter to the managing director of the respondent alleging that the Response was “in very material ways … both untrue and misleading” (December 2018 letter). In December 2019, the applicant sent a written report to a whistleblower email address of the respondent (PID 17A Disclosure). Later in December 2019, the applicant sent a further written report to the respondent’s whistleblower email address (PID 17B Disclosure). In January 2020, the applicant made a verbal disclosure (PID 17C Disclosure) to a delegate of the respondent (Delegate). In March 2021, the Delegate completed a report in response to the PID 17C Disclosure (PID 17C Report). The Delegate made a finding in the PID 17C Report that the applicant’s allegation that the Response was false or “untrue in substance” was partially substantiated. The Delegate found that the allegation by the applicant that one or more persons who contributed to the preparation and delivery of the Response were motivated by improper motives was not substantiated. The applicant alleges in the ASOC that:(a)the statements made in the Response were false and misleading and constituted “Disclosable Conduct” within the meaning of s 29 of the PID Act;(b)the December 2018 letter constituted a “public interest disclosure” (PID) within the meaning of s 26 of the PID Act and the applicant seeks a declaration to that effect; and(c)the respondent took reprisal action against the applicant within the meaning of s 13 of the PID Act in response to the alleged public interest disclosure and the applicant seeks declarations to that effect. The applicant seeks orders requiring the respondent to pay compensation, issue an apology and to engage the applicant on particular terms to present a program for the respondent. The applicant also seeks orders restraining the respondent from taking any reprisal action against them and requiring the respondent to take reasonable precautions to protect the applicant from reprisal action.LEGISLATIVE PROVISIONSStrike out / summary dismissal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent also relies on the Court’s power to dismiss proceedings under s 31A of the FCA Act, which is distinct and separate from the power to strike out a pleading. Section 31A relevantly provides:31A Summary judgment…(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success. It is not possible to adopt any paraphrase of the expression “no reasonable prospect of success” as a sufficient explanation of its operation or to define its content. It is necessary to give full weight to the expression as a whole, recognising that the power to dismiss an action summarily is not to be exercised lightly but also the evident legislative purpose, as revealed by the text of the provision, would be defeated if its application was read as being confined to cases of a kind that fell within earlier, different, procedural regimes governing the summary dismissal of proceedings: Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [58]-[60] (Hayne, Crennan, Kiefel and Bell JJ). The moving party bears the onus of establishing that the other party has no reasonable prospect of success but once a prima facie case to that effect has been established, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a hearing necessary. The use of the word “may” in s 31A of the FCA Act is to be read as an empowering word, not for the purpose of conferring a discretion on the Court. If the Court is satisfied that a cause of action has no reasonable prospect of success, it “must” be exercised. The exercise of the power turns not on the discretion of the Court, but rather upon proof that the cause of action has no reasonable prospect of success: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [128]-[129] (Gordon J).Parliamentary Privileges Act Section 16(1) of the PP Act provides that the provisions of article 9 of the Bill of Rights 1688 (UK) apply in relation to the Parliament of the Commonwealth of Australia. Article 9 states “[t]hat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. Section 16(3) of the PP Act provides:(3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:(a)questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;(b) otherwise questioning or establishing credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

Ratio Decidendi

Legal Principle Established

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