Cover v ACT Integrity Commission

[2025] ACTSC 71

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Cover v ACT Integrity Commission

Citation: 

[2025] 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 ACT Integrity Commission entitled “Special Report – Operation Luna (Part 1)” (Report) which was dated 27 June 2024. The amended originating application filed on 30 August 2024 outlines, with commendable clarity, the grounds upon which the final relief is sought.

2․The Speaker of the Legislative Assembly of the Australian Capital Territory, Mr Mark Parton, has sought, by application in proceeding filed 6 February 2025, orders that he be heard as amicus curiae in relation to the issue of parliamentary privilege, or alternatively, that he be joined as a party to the proceedings so as to allow him to make submissions on that topic. He seeks those orders on the basis that there be no order as to costs for or against him unless the court otherwise orders.

3․The reason that the Speaker seeks those orders is that he contends that the Report constitutes “a proceeding in Parliament” for the purposes of the rules relating to parliamentary privilege and contends that the plaintiff seeks, impermissibly, to question or impeach that Report. He contends that, while the privilege is that of the Legislative Assembly of the ACT, he is an appropriate representative of the Assembly in order to protect its rights and privileges. He submits that he is in a position to draw the court’s attention to all relevant law and arguments on the issue of parliamentary privilege and it is therefore in the interests of justice that he be heard as amicus curiae, or alternatively, joined as a party to the proceeding.

4․It is clear that the preference of the Speaker is to be heard as amicus, although he recognises the possibility of being joined as a party if the court considers that his joinder fell within the scope of the Court Procedures Rules 2006 (ACT) or is otherwise appropriate.

Submissions

5․In written submissions, the Speaker provided the background to the application and the principles applicable to hearing a person as an amicus. He submitted, first, that parliamentary privilege cannot be waived by either party to the proceeding and the Speaker is well-placed to assist the court on the question of parliamentary privilege. He points to a previous decision of this court, In the matter of the Board of Inquiry into Disability Services [2002] ACTSC 28; 167 FLR 262 at [2], and numerous examples in other jurisdictions where the Speaker or equivalent had been granted leave to appear as amicus for the same purpose: Carne v Crime and Corruption Commission [2022] QCA 141; 11 QR 334 at [60]; Flegg v Hallett [2014] QSC 278; [2015] 2 Qd R 483 at [4]-[5]; Queensland Harness Racing Ltd v Racing Queensland Ltd [2011] QSC 125 at [31]; Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2001] QCA 218; [2002] 2 Qd R 8 at 9; CJC v Dick [2000] QSC 272; Criminal Justice Commission v Nationwide News Pty Ltd [1996] 2 Qd R 444 at 445; R v Jackson (1987) 8 NSWLR 116 at 117; R v Murphy (1986) 5 NSWLR 18 at 21; Obeid v R [2015] NSWCCA 309; 91 NSWLR 226 at 229.

6․Second, he submitted that the admissibility of the Report will be a key anterior issue in the proceeding, with neither of the current parties having a particular interest in that issue, and therefore the Speaker may be able to assist the court in a way that the parties would not otherwise do.

7․Third, given the limited scope of the issue, involvement of the Speaker would not add substantially to the cost or length of the hearing.

8․Fourth, it is uncertain as to whether or not there is a proper basis for the Speaker to be joined as a party to the proceedings because the legal rights of the Speaker will not be affected by the relief sought in the proceeding and it is not obvious that the Speaker would satisfy the requirements for joinder under r 220. There is no other express statutory provision permitting the Speaker to intervene in proceedings as there are available under other statutory provisions: Court Procedures Act 2004 (ACT), s 27; Administrative Decisions (Judicial Review) Act 1989 (ACT), s 19; Human Rights Act 2004 (ACT), s 36; Court Procedures Rules, r 3097.

9․Ms Cover did not oppose the application by the Speaker to be joined as a party to the proceedings, but made submissions against the proposition that the Speaker be heard as amicus curiae. The submissions suggested that it is the intention of the Speaker to object to the tender of the Report. She submitted that a relevant factor to take into account when determining whether to hear a person as amicus is whether or not the person would provide assistance that the court would not otherwise receive. She submitted that the Commission would be able to provide any relevant submissions and the Speaker has not identified with particularity what he seeks to add to those submissions. She identified that she has already incurred significant costs due to the Speaker’s application, and would seek to be heard on any additional costs occasioned by the Speaker’s role. Counsel pointed to the reasons of Brennan CJ in Levy v Victoria (1997) 189 CLR 579 at 601 as to the scope of the power to allow interventions in proceedings.

10․The Commission consented to the joinder of the Speaker and did not oppose the Speaker’s application to appear as amicus curiae. It made the submission that it would be more appropriate for the Speaker to be joined as a party to the proceedings. It submitted that r 220 is applicable, and that the “issues in dispute” referred to in r 220(1)(b) extend to the admissibility of evidence. It pointed to the fact that Ms Cover has a direct interest to deny the applicability of parliamentary privilege in the case and the Commission has at most a mere forensic or tactical interest in dealing with the evidence that falls to be considered. In those circumstances, the Commission submitted that it was “necessary” for the Speaker to be joined to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding. Counsel drew attention to the decision of Refshauge J in R v Will [2017] ACTSC 356 at [166]-[176] as to the scope of the power to permit intervention, and the breadth of the powers of the court under s 20 of the Supreme Court Act 1933 (ACT).

Decision

11․It is clearly appropriate for the Speaker to be heard one way or another as to the proper scope of parliamentary privilege. The question of the admissibility of the Report will clearly be significant to the outcome of the proceedings. I consider that it is likely that the Speaker will be in a position to assist the court, potentially going beyond the submissions that parties might otherwise make. However, there is no need for that question to unduly delay the proceedings or to unduly burden the parties in the conduct of the proceedings.

12․A significant concern of the plaintiff was as to the practical consequences of hearing the Speaker and potential need for two hearings instead of one: one for evidentiary rulings and one, if evidence was admitted, for the substantive review proceedings.

13․I consider that it is appropriate to allow the Speaker to be heard as amicus. That was the course adopted in this court in In the matter of the Board of Inquiry into Disability Services at [2]. It is clear that the Speaker does not fall within the scope of paragraph (a) of r 220(1). I do not consider that he is within the scope of para (b) given that it is not necessary, in order that the proceedings be effective, that the Speaker be bound by the outcome. I accept that the Rules do not necessarily define the full scope of the power of the court, having regard to its role as the superior court of general jurisdiction in the Territory, entrenched by s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) and reflected in s 20 of the Supreme Court Act. However, even if the joinder of the Speaker was technically within the scope of r 220(1)(b), or otherwise within the power of the court, I would nevertheless proceed by way of hearing the Speaker as amicus. That appears to more accurately reflect the role that the Speaker intends to play.

14․I understand the concerns of the plaintiff as to having the issue of parliamentary privilege ventilated in detail, but that issue can be addressed by control of the manner in which the case proceeds. I do not accept the submission made by the plaintiff that the Speaker intends to object to the admission of the Report. If confined to the role of amicus, that is not an entitlement, even if the Speaker makes submissions consistent with the Report not being admissible.

15․I do not propose to make any order, as sought by the Speaker, limiting even on a prima facie basis what the trial judge will do in relation to costs. In my view, any issue relating to costs should be dealt with at the conclusion of the case. That is not to encourage the idea that the Speaker, being heard as amicus, may be an appropriate target for a costs order. Rather, it is simply to recognise that issues of costs should be dealt with at the end of the case, rather than on an anticipatory basis. Costs of the application in proceeding will therefore simply be reserved.

[The parties were heard as to the terms of directions to be made.]

16․The orders of the Court are:

(1)Leave is granted to the Speaker of the Legislative Assembly of the Australian Capital Territory to be heard as amicus curiae in the proceedings for the purposes of making written and oral submissions on the issue of parliamentary privilege in accordance with the directions of the court.

(2)The costs of the application in proceeding dated 6 February 2025 are reserved.

(3)The proceedings are listed for hearing with a 1 day estimate on 29 April 2025 before Justice Mossop.

(4)The Plaintiff is to prepare a court book under r 1312 of the Court Procedures Rules 2006 (ACT) and file and serve it by 4 April 2025, with any annexures or exhibits to affidavits included as a single chronological collection unless there is good reason to do otherwise.

(5)The Speaker is to file and serve written submissions limited to not more than 15 pages on parliamentary privilege by 24 March 2025.

(6)The Plaintiff is to file and serve written submissions limited to not more than 25 pages by 4 April 2025.

(7)The Defendant is to file and serve written submissions limited to not more than 25 pages by 17 April 2025.

(8)The Speaker is to file and serve written submissions in reply limited to not more than 5 pages by 23 April 2025.

(9)The Plaintiff is to file and serve written submissions in reply limited to not more than 10 pages by 24 April 2025.

(10)Subject to any direction of the trial judge, oral submissions of the parties and the Speaker are to be limited as follows:

(a)25 minutes for the Speaker.

(b)2 hours for the Plaintiff.

(c)1.5 hours for the Defendant.

(d)10 minutes for the Speaker in reply.

(e)20 minutes for the Plaintiff in reply.

(11)The Speaker is to file a combined book of authorities on parliamentary privilege by 24 April 2025.

(12)The Plaintiff and Defendant are each to file a book of authorities (not overlapping) by 24 April 2025.

(13)The listing on 11 March 2025 is vacated.

(14)Liberty to have the matter relisted for further directions on 24 hours’ notice which may be exercised by an email sent to the chambers of Justice Mossop.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date:

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Amendments

21 March 2025           On page 1, in the “Citation” section, replace “2024” with “2025”.