LibertyWorks Inc v Commonwealth of Australia

[2022] HCATrans 220

[2022] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S10 of 2020

B e t w e e n -

LIBERTYWORKS INC

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Judgment

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 DECEMBER 2022, AT 9.48 AM

Copyright in the High Court of Australia

KIEFEL CJ:   On 16 June 2021, a Court constituted by Justices Gageler, Keane, Gordon, Edelman, Steward, Gleeson and I answered questions of law stated in an Amended Special Case in this matter.

By application filed on 9 November 2022, the defendant seeks orders finalising this matter and further orders as to costs.

Having considered the application, the defendant’s submissions, and the supporting affidavits, and noting that the plaintiff did not make any submissions, Justices Gageler, Gordon, Edelman, Steward, Gleeson and I would make the orders sought.  I publish our joint reasons.

The orders of the Court are:

1.The plaintiff’s writ of summons filed on 7 February 2020 be dismissed.

2.The plaintiff pay the defendant’s costs of the proceeding to be taxed if not agreed.

3.The plaintiff pay the defendant’s costs of and incidental to the application filed on 9 November 2022.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

On 16 June 2021, this Court answered the questions of law stated in an Amended Special Case which had been agreed between the parties as follows:

1.Is the Foreign Influence Transparency Scheme Act 2018 (Cth) invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it impinges the implied freedom of political communication?

Answer: No.

2.In light of the answer to question 1, what relief, if any, should issue?

Answer:None.

3.Who should pay the costs of and incidental to this special case?

Answer:The plaintiff should pay the defendant’s costs.

The defendant now seeks orders that the plaintiff’s originating Writ of Summons be dismissed; that the plaintiff pay the defendant’s costs of the proceeding to be taxed if not agreed; and that the plaintiff pay the defendant’s costs of this application.

The answers given to the questions in the Amended Special Case dealt with all that remained of the plaintiff’s case after it had abandoned other arguments for invalidity.  It follows that the first order sought is appropriate.

The defendant seeks costs of the whole proceeding, not just the Amended Special Case for which orders were pronounced.  Having abandoned the other issues, the plaintiff should pay for the costs associated with them.

This application is necessitated by the plaintiff not agreeing to orders disposing of the proceeding to which the defendant was prima facie entitled.  It has failed to respond on a number of occasions to correspondence from the defendant in this regard.  The plaintiff’s solicitors no longer appear to have instructions with respect to this matter, although they have been unable to obtain instructions to have themselves removed from the record.  The plaintiff has been personally served with the application and has not taken the opportunity to respond by written submissions to it.  The defendant should have its costs of and incidental to the application.

There should be orders in the terms sought by the defendant.

AT 9.50 AM THE MATTER WAS CONCLUDED