Carrigan v Honourable Senator Michaelia Cash - [2017] FCAFC 86

FEDERAL COURT OF AUSTRALIA
Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86

Appeal from: Application for leave to appeal: Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466

File number: NTD 63 of 2016

Judges: DOWSETT, BESANKO AND ROBERTSON JJ

Date of judgment: 31 May 2017

Catchwords:
CONSTITUTIONAL LAW – originating application for judicial review of a report provided to the Minister of Employment – redacted copy of report tabled in Parliament – whether conduct of the author of the report and the Minister constituted “acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House [of the Australian Parliament]” within s 16(2) of the Parliamentary Privileges Act 1987 (Cth) – whether the report was prepared “for purposes of or incidental to the transacting of any [business of a House of the Australian Parliament]” within s 16(2)(c) of that Act

PRACTICE AND PROCEDURE – appeal from orders of primary judge striking out statement of claim and entering summary judgment for the respondents – originating application for judicial review of a report provided to the Minister of Employment – redacted copy of report tabled in Parliament – whether conduct of the author of the report and the Minister constituted “acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House [of the Australian Parliament]” within s 16(2) of the Parliamentary Privileges Act 1987 (Cth) – whether the report was prepared “for purposes of or incidental to the transacting of any [business of a House of the Australian Parliament]” within s 16(2)(c) of that Act

Legislation:
Fair Work Act 2009 (Cth) s 641A

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 18

Federal Court of Australia Act 1976 (Cth) ss 24, 31A

Parliamentary Privileges Act 1987 (Cth) ss 16, 17

Workplace Relations Act 1996 (Cth) s 82

Cases cited:
Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; 19 FCR 223

Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397

Prebble v Television New Zealand Limited [1995] 1 AC 321

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

Date of hearing: 22 May 2017

Registry: Northern Territory

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 48

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First and Third Respondents: Mr T Begbie

Solicitor for the Respondents: Australian Government Solicitor

Counsel for the Second Respondent: The Second Respondent submitted save as to costs

ORDERS

NTD 63 of 2016

BETWEEN:
JANE CARRIGAN

Applicant

AND:
THE HONOURABLE SENATOR MICHAELIA CASH IN HER CAPACITY AS MINISTER FOR EMPLOYMENT

First Respondent

PETER HEEREY

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

JUDGES:

DOWSETT, BESANKO AND ROBERTSON JJ

DATE OF ORDER:

31 MAY 2017

THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCAFC 86
Decision Date: 31 May 2017

CaseChat Overview and Summary

The applicant, Carrigan, sought judicial review of a report provided to the Minister for Employment, Honourable Senator Michaelia Cash, and two other respondents. The report, which was tabled in Parliament, was prepared by a former public servant, Mr. Campbell. The case was heard in the Federal Court of Australia. Carrigan argued that the conduct of the report's author and the Minister constituted acts done in the course of, or for purposes of, or incidental to, the transacting of the business of a House of the Australian Parliament under section 16(2) of the Parliamentary Privileges Act 1987 (Cth), and that the report was prepared for purposes of, or incidental to, the transacting of any business of a House of the Australian Parliament under section 16(2)(c) of that Act.

The court examined whether the report's preparation and subsequent actions by the respondents were protected under parliamentary privilege. The court considered whether the report's preparation and the Minister's use of it in her role constituted acts done in the course of, or for purposes of, or incidental to, the transacting of the business of a House of the Australian Parliament. The court also assessed whether the report was prepared for purposes of, or incidental to, the transacting of any business of a House of the Australian Parliament. The court found that the actions of the respondents were protected by parliamentary privilege and that the report was prepared for purposes of, or incidental to, the transacting of any business of a House of the Australian Parliament.

The court dismissed the application for leave to appeal, holding that the report's author and the Minister's conduct were protected by parliamentary privilege. The court also held that the report was prepared for purposes of, or incidental to, the transacting of any business of a House of the Australian Parliament. Consequently, the applicant was ordered to pay the costs of the first and third respondents, as agreed or taxed.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

2. The applicant pay the costs of the first and third respondents, as agreed or taxed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Application for leave to appeal: Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466
File number:	NTD 63 of 2016
Judges:	DOWSETT, BESANKO AND ROBERTSON JJ
Date of judgment:	31 May 2017
Catchwords:	CONSTITUTIONAL LAW – originating application for judicial review of a report provided to the Minister of Employment – redacted copy of report tabled in Parliament – whether conduct of the author of the report and the Minister constituted “acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House [of the Australian Parliament]” within s 16(2) of the Parliamentary Privileges Act 1987 (Cth) – whether the report was prepared “for purposes of or incidental to the transacting of any [business of a House of the Australian Parliament]” within s 16(2)(c) of that Act PRACTICE AND PROCEDURE – appeal from orders of primary judge striking out statement of claim and entering summary judgment for the respondents – originating application for judicial review of a report provided to the Minister of Employment – redacted copy of report tabled in Parliament – whether conduct of the author of the report and the Minister constituted “acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House [of the Australian Parliament]” within s 16(2) of the Parliamentary Privileges Act 1987 (Cth) – whether the report was prepared “for purposes of or incidental to the transacting of any [business of a House of the Australian Parliament]” within s 16(2)(c) of that Act
Legislation:	Fair Work Act 2009 (Cth) s 641A Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 18 Federal Court of Australia Act 1976 (Cth) ss 24, 31A Parliamentary Privileges Act 1987 (Cth) ss 16, 17 Workplace Relations Act 1996 (Cth) s 82
Cases cited:	Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; 19 FCR 223 Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397 Prebble v Television New Zealand Limited [1995] 1 AC 321 Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118
Date of hearing:	22 May 2017
Registry:	Northern Territory
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	48
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First and Third Respondents:	Mr T Begbie
Solicitor for the Respondents:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs

JUDGES:	DOWSETT, BESANKO AND ROBERTSON JJ
DATE OF ORDER:	31 MAY 2017