Carrigan v Honourable Senator Michaelia Cash

Federal Court of Australia|2017-03-17|Before: Robertson J, Heerey AM

The applicant's interlocutory application for discovery, dated 24 February 2017, be dismissed.
The applicant pay the first and third respondents' costs of that interlocutory application, as agreed or assessed.
The applicant provide security for the costs of the first and third respondents of and incidental to the applicant's application for leave to appeal and any appeal in the sum of $10,000 in the form of a bank guarantee from an Australian trading bank, or in such other form as the Court deems fit, to be lodged with the Court in a form satisfactory to the Registrar and a copy of which is to be served on the solicitors for the first and third respondents.
The bank guarantee required by order 3 be lodged with the Court as soon as practicable and in any event no later than 31 March 2017.
The application for leave to appeal and any appeal be stayed if security for the first and third respondents' costs is not provided in accordance with orders 3 and 4 of the Court.
The first and third respondents have liberty to apply on seven days' notice to vary the amount of security for costs required to be provided in accordance with the order of the Court.
The applicant pay the costs of the first and third respondents' interlocutory application, dated 24 February 2017, for security for costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

The draft notice of appeal 11 Ms Carrigan's amended draft notice of appeal contains the following grounds, omitting particulars: 1. His Honour erred in law in summarily dismissing the appellant's suit by failing to follow or misapplying the test in relation to the operation of s 31A of the Federal Court of Australia Act 1976 (Cth) as established by the High Court of Australia in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. 2. His Honour misconstrued the relevant Fair Work Act 2009 provisions and/or failed to consider or properly consider the Appellant's argument, namely, at the time the Minister established the Heerey Inquiry and the purpose for writing the Heerey Report and thereafter its tabling, were all acts and conduct under executive authority including the Minister(s) exercising their statutory functions/powers pursuant to s 641A of the Fair Work Act 2009. 3. His Honour failed to consider, or to fully consider that parliamentary proceedings as set out in s 16(2) Parliamentary Privileges Act 1987 are… all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House… the result of which led His Honour to misdirect himself in the weight given to the expression transacting of the business of the House. In the alternative 4. His Honour failed to consider, or to properly consider the harm and/or unfairness invoked by engaging s 16(3) PPA to the facts of this matter and as a result failed to consider how the harm caused by s 16 (3) may otherwise be ameliorated. 5. His Honour failed to acknowledge the Ministers' breaches of the appellant's privacy, breaches that were inconsistent with privacy laws in general and acts which were inconsistent with the protection due the appellant whether it be under s 641A of the Fair Work Act 2009 and/or s 16 of the Parliamentary Privileges Act 1987. 6. His Honour erred when he accepted the Respondents' argument that the appellant's claim invoked the principle of non-intervention. 7. His Honour erred by impermissibly relying upon aspects of the relief sought by the appellant (such as the correction of certain records) when the appellant had indicated to the Court and to the parties, without objection, that the relief to be sought in its final form should be the subject of separate submissions and argument. 8. His Honour failed to determine the extent of the rights of procedural fairness attaching to the appellant in the circumstances pleaded in relation to the material and adverse impact on the appellant that flowed from the actions of the Executive Government of the Commonwealth and its officers, servants or agents prior to the publication, redaction or tabling of the Heerey Report in the Senate. 9. His Honour failed to acknowledge or find that they had been a long history of complex and quite separate parliamentary processes found within both State and the Federal parliaments with respect to the removal of Judges from office, all of which mitigated against the weight given to the Heerey Report. 12 I note that these proposed grounds are different to the grounds in the applicant's original draft notice of appeal dated 21 December 2016. 13 Section 641A of the Fair Work Act 2009 (Cth) provides: 641A Minister may handle complaints about FWC Members The Minister may handle a complaint about the performance by an FWC Member of his or her duties: (a) for the purpose of considering whether each House of the Parliament should consider whether to present to the Governor-General an address praying for the termination of the appointment of the FWC Member; and (b) for the purpose of considering whether to advise the Governor-General to suspend the FWC Member. Note 1: The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor-General. Note 2: The FWC Member may be suspended under section 642. Note 3: The complaint is a complaint about an FWC Member (see section 12). Note 4: For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B. 14 The primary judge held that it was s 82 of the Workplace Relations Act 1996 (Cth) which governed the question of Vice President Lawler's removal from office. The primary judge said, at [22]: It seems that Ms Carrigan was mistaken in thinking that s 641A applied in the case of Vice President Lawler, because he had been appointed to the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth) (the WR Act). On the commencement of the FW Act on 1 July 2009, Vice President Lawler had become a member of the FWC pursuant to Sch 18 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act). The Respondents took the view that his existing terms and conditions of appointment had been preserved by that Schedule. This meant that it was s 82 of the WR Act which governed his removal from office. I understood that on the present hearing, Ms Carrigan accepted that was so. Section 82 provided: The Governor-General may remove a Presidential Member from office on an address praying for removal on the grounds of proved misbehaviour or incapacity being presented to the Governor-General by both Houses of the Parliament in the same session. 15 The first and third respondents, the Minister and the Commonwealth (the respondents), have filed a notice of contention dated 10 March 2017. 16 Before me are two interlocutory applications.

Security for costs 17 The first interlocutory application is dated 24 February 2017 and is an application for security for costs filed by the respondents. The application seeks an order that the applicant provide security for the respondents' costs of the application for leave to appeal and of the appeal by payment of the sum of $25,000 to the Federal Court Registry by 4 PM on 24 March 2017. The respondents seek a consequential order that if the applicant fails to provide security as so claimed the proceeding thereupon be dismissed. 18 This application is supported by an affidavit affirmed on 24 February 2017 by Sarah Rosanne Wright, a Senior Executive Lawyer with the primary carriage of the proceedings for the respondents. 19 The respondents filed submissions in support of that application, dated 24 February 2017. Ms Carrigan, the applicant, has filed submissions dated 10 March 2017 in response to the respondents' application for security for costs. 20 In relation to the costs of the first instance proceedings, Ms Wright deposed that the respondents' total costs and disbursements exceeded $189,000. She gave examples of the work and how it contributed to the overall total costs. Her affidavit included her estimates of the fees and disbursements involved. She referred to work relating to constitutional issues, work involved in dealing with discovery issues which, she says, were then abandoned by the applicant, and work involved in managing issues arising, she says, from the applicant's approach to pleadings, evidence, costs and other issues. Ms Wright referred to a letter to the applicant that a conservative estimate of the costs payable by her under the first instance costs order was $127,000. That letter raised the respondents' concern to establish the applicant's capacity to satisfy the first instance costs order, and any orders which might result from the appeal. 21 Ms Wright deposed that no agreement had been reached as to the amount to be paid by the applicant in relation to the first instance costs and the applicant had not provided any information to indicate that she was in a position to meet any part of those costs. 22 Ms Wright referred to a later letter, one of two dated 31 January 2017, setting out the estimated amount of at least $45,000 payable by the applicant on a party/party basis under a costs order in the appeal proceedings and requested that the applicant advise whether she had the capacity to pay an amount of $172,000 if ordered to do so and, if so, requesting supporting documentation. That letter foreshadowed an application for security for costs in the appeal proceedings. 23 Ms Wright referred to, and annexed, other correspondence, including a letter dated 6 February 2017 reiterating the respondents' intention to apply for orders for security for costs absent a satisfactory response to the letters of 31 January 2017. 24 The balance of the affidavit included detail of Ms Wright's estimates of legal costs likely to be incurred by the respondents in responding to the application for leave to appeal and the substantive appeal. She estimated that the likely minimum party/party costs which will be incurred by the respondents up to and including the hearing of the applicant's application for leave to appeal and substantive appeal will be $56,800. 25 The respondents submitted that two factors relevant to the exercise of the Court's discretion were of primary relevance in the present case: the need to avoid giving an impecunious applicant a "free hit" on appeal and the poor prospects of success. The respondents referred to Clack v Collins (No 1) [2010] FCA 513 per Jagot J at [8]-[13]; and Lim v Comcare [2016] FCA 1346 per Wigney J at [16]-[21]. They submitted that the applicant had already had a full hearing, in respect of which the respondents were wholly successful. The respondents submitted that they were already exposed to a real risk that the significant costs in the first instance proceedings would not be recovered. The applicant had not reached any agreement with the respondents as to reasonable costs of the first instance proceedings. Further, the respondents' party/party costs in relation to the present application were estimated to exceed $50,000. The applicant had not attempted to demonstrate any financial capacity to meet those costs nor had she been prepared to provide any explanation for not doing so. Finally, the respondents submitted, the applicant sought to conduct a free ranging perambulatory challenge rather than an appeal on some clear or limited issue. 26 The respondents submitted that security will be the more readily given where there are poor prospects of success on appeal. The primary judge's reasons revealed a sound basis for the exercise of the discretion to order summary judgment. The judgment revealed the reasons why the application of s 16 of the Parliamentary Privileges Act to the undisputed evidence made such a result unavoidable. The applicant's proposed grounds of appeal did not reveal any error which could be said to have reasonable prospects. The proposed grounds of appeal were replete with deficiencies such as: misconceptions as to the issues and orders below; impermissible generality; alleged failures which, even if made good, would not reveal appellable error; and arguments which were not put below. 27 The respondents submitted that the amount of security sought, $25,000, was less than half of the estimated party/party costs on the present application. This was significant enough to deprive the applicant of a "free hit" and require her to carefully consider whether she wished to proceed with her application for leave to appeal. It was however a relatively modest sum in the context of the costs incurred below, and the likely costs of the present application. 28 The applicant submitted that the matter was only before the Court because of the failure of the first respondent to respect the applicant's privacy in circumstances where it was entirely apposite she should. The initial denial of the applicant's right to her privacy was then further complicated by being denied procedural fairness during the course of the preparation of the Heerey Report. Ms Carrigan expanded on these matters in her oral submissions. She submitted that she has at all times acted in good faith. She said that her normal course of employment was as a sole trader and she was representing herself in difficult circumstances and where she felt she had been left with no other viable remedy to restore her reputation. Conversely, the respondents had the full might and resources of the Commonwealth behind them. She submitted this was not a case where she had had the substantive issues of her originating application fully considered and it could not be said that she was seeking a "free hit" to drag her opponent from one court to another. She actively, albeit unsuccessfully, argued that all matters be heard concurrently by the primary judge. 29 The hearing appealed from was an interlocutory application on a complex technical point for which there was little case law and none that shared similar or a like set of facts. Hearing the parliamentary privilege argument as a separate interlocutory matter constructed an artificial environment devoid of context, particularly in the circumstances where the respondents' sole witness was unavailable for cross-examination. The applicant submitted that she should be entitled to challenge the report on the discrete ground she had nominated. The bona fides and strength of her originating application, the applicant submitted, was sound and was supported by the respondents' draft defence which effectively conceded the applicant's denial of procedural fairness. I note that that draft defence was not before the primary judge. 30 The applicant submitted the application for leave to appeal demonstrated two clear errors of law which had the effect of misdirecting the primary judge in his consideration of the substantive issues. These were the interpretation given to s 641A of the Fair Work Act concomitantly with an overly broad interpretation given to s 16(2) of the Parliamentary Privileges Act. 31 The applicant submitted the application of parliamentary privilege was inherently an important constitutional and public law issue. Its application in this matter was effectively being used to immunise the Executive from judicial review. There is, or should be, a significant public interest in responsible government and relevantly the role of the Executive being subject to judicial review. The applicant submitted her case did not suffer from a lack of merit, it suffered only from the disadvantage incurred by the applicant having to represent herself. 32 As to the quantum of costs, the applicant submitted she had never been served with a bill of costs. The letters of 31 January 2017 could not be regarded as substantive, clear and concise calculations of outstanding costs. In those circumstances it could not be said that she had refused to discuss costs. Nor could an inference be drawn from the applicant's conduct that she was impecunious, particularly in circumstances where the applicant notified the respondents she does not consider herself to be impecunious. The applicant submitted she is not impecunious though contended the Commonwealth's conduct had contributed to a substantive, unwarranted and unfair hit on her reputation which had adversely affected her financial stability. She agreed that she would struggle in order to pay the costs sought by the respondents but submitted that this should be considered in the context of her foreshadowed application to the Finance Minister under s 63 of the Public Governance, Performance and Accountability Act 2013 (Cth) to have any debt to the Commonwealth waived. 33 The applicant submitted that the claimed costs of the first instance hearing were disproportionate to, and did not reconcile with, the respondents' first notice to the applicant, namely that her case was hopeless. 34 The applicant submitted it was open to the Court to order a stay of execution of proceedings of the judgment appealed from. She submitted it was open to the Court to consider the conduct of the respondents in making an application for security for costs as oppressive, with the intent of stifling the appeal. She submitted that it was not to the point whether the application would stifle the appeal, rather it was whether it was the intent of the respondents to stifle a reasonably arguable claim. 35 The applicant submitted it was a matter where it would not be intrinsically unfair or unjust to set aside the respondents' application for security for costs. Therefore both the application for security for costs and any effort to apply for costs thrown away should be dismissed. The Court should proceed to finalise any orders that may be outstanding for the hearing listed for 22 May 2017. For these reasons, including her anguish and the harm to her reputation, Ms Carrigan submitted that in the circumstances it would be perverse to order security for costs.

Consideration 36 Section 56 of the Federal Court of Australia Act 1976 (Cth) provides, so far as relevant: 56 Security (1) The Court or a Judge may order an applicant in a proceeding in the Court… to give security for the payment of costs that may be awarded against him or her. (2) The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs. (3) The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given. (4) If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed. (5) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security. See also r 36.09 of the Federal Court Rules 2011 (Cth). 37 It is important to recall the purpose of security for costs. As explained in Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [52] by Einstein J, it is a protective jurisdiction to ensure that the primary purpose for having costs orders themselves can be achieved. A respondent is protected against the risk that a costs order obtained at the end of the day may turn out to be of no value by reason of the impecuniosity of the applicant. His Honour said the jurisdiction therefore assisted both the compensation purpose as well as the public interest objective. 38 In the present application it is relevant that the applicant accepts that she would struggle to pay the costs sought by the respondents. 39 In my opinion, the application for security turns not so much on the costs of the first instance hearing, but on the estimate of the costs of the application for leave to appeal and the appeal. I would regard the correspondence about the costs of the proceedings at first instance as by way of background or 'indicative'. 40 It is also relevant that in relation to security for costs the position on appeal, or on a proposed appeal, is fundamentally different to the position of a claim at first instance: see Clack v Collins (No 1) [2010] FCA 513 per Jagot J at [8]-[13] and the cases there cited, and Lim v Comcare [2016] FCA 1346. 41 In my opinion, in the circumstances the applicant should provide security for the first and third respondents' costs of the application for leave to appeal and of the appeal in the sum of $10,000. I have also take into account the costs of the two interlocutory applications heard today. 42 The applicant is to pay the first and third respondents' costs of their interlocutory application for security.

Discovery 43 The second interlocutory application is also dated 24 February 2017. It is filed by the applicant and seeks an order that within 14 days the respondents give standard discovery of documents relevant or related to the originating application for judicial review in matter NTD 14/2016. 44 This application was supported by a (draft) affidavit dated 23 February 2017. That affidavit deposes to the course of events before the primary judge. In light of the basis on which the primary judge made the orders which he did, the affidavit does not establish the relevance to the application for leave to appeal or the appeal of "documents relevant or related to the Appellant's Originating Application for Judicial Review". 45 The applicant submitted, in her written submissions dated 24 February 2017, that it was a primary and continual point of her claim that at all relevant times the Minister acted under executive authority, which included the statutory functions and/or powers imposed upon her by the Fair Work Act, specifically s 641A. She said it was arguable that at all relevant times the Minister acted pursuant to s 641A. It would be submitted that the primary judge erred when he dismissed the relevance of s 641A as mistaken thinking on the part of the applicant. It was plausible that the primary purpose of the Heerey Inquiry and the preparation of the Heerey Report and subsequent tabling of the Report were all acts and conduct consistent with s 641A and/or the Minister acting under executive authority. It was arguable parliamentary privilege would not attach to such conduct. The primary purpose of the Inquiry and the preparation of the Report was for the Minister acting under executive authority. The respondents' case could have efficiently and effectively been made out by offering up a s 17 certificate signed by or on behalf of the President of the Senate, the Speaker of the House of Representatives or a chair of the committee. The respondents had resisted availing themselves of that convenience. Mr Lawler's application to the Federal Court for judicial review was, arguably, a document which further supported the applicant's contention that the establishment of the Inquiry and the preparation of the Report were all words spoken or acts done in the course of, or for the purposes of or incidental to the Minister acting at all relevant times under executive authority. The applicant submitted she had consistently raised with the respondents the necessity for discovery. The applicant submitted that the importance of the matter not only to her but also to the wider public interest made it an appropriate occasion on which the Court should give an order for discovery. Important probative value may attach to documents between the Minister(s) office, Mr Heerey and the Department of Employment and ultimately may be material to the outcome of the applicant's application for judicial review. In oral submissions, Ms Carrigan said that the respondents would not be disadvantaged by providing a list of documents. 46 The respondents opposed the application for discovery and submitted, in their written submissions dated 10 March 2017, that there was no serious prospect of the applicant obtaining material of the kind she hoped to find. Much less was there any prospect of making good on appeal the different factual conclusion which she hoped that discovery would support. The respondents referred to an affidavit, read before the primary judge, sworn by Benjamin Ross Davies and dated 22 July 2016. The applicant sought to pursue an impermissible fishing expedition. In any event, the respondents submitted, the overwhelming evidence accepted by the primary judge made it fanciful to suppose that discovered material could establish that the Minister and Mr Heerey had laboured under the misapprehension that they were investigating a complaint under s 641A, for the purposes of possible action under s 641A, rather than possible parliamentary action under s 82. The respondents submitted that the applicant did not pursue discovery or the proposed argument below. Further, the respondents submitted, the applicant ultimately agreed that discovery was not necessary for the summary judgment application: reference was made to the transcript before the primary judge on 22 August 2016 at page 4 lines 19-20. The respondents also submitted that to permit discovery on an application for leave to appeal would be inconsistent with the basic forensic steps for obtaining evidence at trial and would be to shift the arena of dispute from a primary judge to an appellate court. The respondents referred to the question of discovery not having been determined by the primary judge. The respondents accepted that the Full Court, if leave to appeal was granted, would not consider the merits of the applicant's application for judicial review.

Consideration 47 In my opinion the applicant's application for discovery is untenable and should be dismissed. 48 It proceeds on a misconception of the subject matter of the application for leave to appeal and, if reached, the appeal. The question for the Full Court on the appeal itself will not be the merits of the original judicial review application, to which the interlocutory application for discovery is directed, but whether the primary judge erred in his reasons for making the order for summary judgment, founded as they were on the provisions of the Parliamentary Privileges Act. Neither is the interlocutory application for discovery referable to the proposed grounds of appeal which I have set out above. It is also significant to the exercise of the discretion to order discovery that the applicant did not pursue discovery at first instance in relation to the Parliamentary Privileges Act question: see the transcript before the primary judge on 22 August 2016 at page 4 lines 19-20. I have noted the affidavit of Mr Davies but I have not relied on it for present purposes as Ms Carrigan told me she had wanted to cross-examine Mr Davies but he was unwell and not available. Whether the respondents would be disadvantaged by providing a list of documents is not the appropriate perspective. 49 The applicant's interlocutory application is dismissed, with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Workplace Relations Act 1996(Cth)s 82

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