Cover v ACT Integrity Commission

1. On 18 September 2025, I dismissed these proceedings and permitted the parties to make submissions in relation to costs. The Commission, which was successful in the proceedings, sought that its costs be paid. Ms Cover, who was unsuccessful in the proceedings, sought that there be no order as to costs.

2. The proceedings had a number of different components: (a) There was an application for an interlocutory injunction before McCallum CJ. Her Honour refused an injunction and ordered that the costs of the application be the defendant’s costs in the cause: In the matter of an application by Leanne Cover [2024] ACTSC 197; In the matter of an application by Leanne Cover (No 2) [2024] ACTSC 251. (b) There was a second application for an interlocutory injunction relating to a report that was different to the report the subject of these proceedings, which I heard and dismissed. I ordered that the costs of that second application be reserved: Cover v ACT Integrity Commission (No 2) [2025] ACTSC 119. (c) There was a hearing on 3 March 2025 in relation to the Speaker of the Legislative Assembly’s application to be heard as amicus curiae in relation to the issue of parliamentary privilege: Cover v ACT Integrity Commission [2025] ACTSC 71. (d) There was the final hearing which occurred on 29 April 2025: Cover v ACT Integrity Commission (No 3) [2025] ACTSC 424. At that hearing, the submissions on parliamentary privilege made by the Speaker, which were largely adopted by the Commission, were not ultimately accepted and the special report was admitted into evidence.

Submissions

3. The Commission submitted that it would not be appropriate to differentiate between issues within the proceedings, and that costs should be awarded in its favour.

4. Ms Cover submitted that part of the determination of the question of costs should be based upon the following: (a) The fact that the court’s judgment clarified the law in relation to the reach and operation of the Integrity Commission Act 2018 (ACT), including what constitutes “serious corrupt conduct”, the role of a Chief Executive Officer of a public authority under the Financial Management Act 1996 (ACT), and acceptable methods and analyses for Commission investigations. (b) The reasoning of Fox J in Kent v Cavanagh (1973) 1 ACTR 43 at 55, where his Honour said: It seems to me undesirable that responsible citizens with a reasonable grievance who wish to challenge Government action should only be able to do so at risk of paying costs to the Government if they fail. (c) Ms Cover’s success in relation to the parliamentary privilege point raised by the Speaker, which she submitted “clarifies a very important aspect of the public law of the Territory”.

5. Ms Cover also submitted that she should have her costs of the parliamentary privilege point upon which the Commissioner and the Speaker failed, which was a severable matter, and which occupied a significant portion of the hearing time and derailed the original hearing date.

Decision

6. There was no application to join the Speaker for the purposes of seeking a costs order against him. While the Court Procedures Rules 2006 (ACT) may be broad enough to empower the making of a costs order against a person who had, up to that point, appeared as amicus (see Jorgensen v Supreme Court of the ACT (No 3) [2023] ACTSC 396 at [10]-[13]), I do not consider that any order against the Speaker would be appropriate. The submissions made by the Speaker were to assist the court on the issue of parliamentary privilege, which was an issue that the parties could not waive: Commonwealth v Vance [2005] ACTCA 35; 224 FLR 243 at [41]-[42]. The submissions were made within the confines of orders designed to limit the impact of a detailed consideration of the issue of parliamentary privilege on the substantive parties. The submissions made by the Speaker were largely adopted by the Commission, which also contended that the report was not admissible. The increase in costs arising from the vacation of an earlier hearing date, and its substitution with a hearing as to whether the Speaker should be heard as amicus, was a result of a consent position of the parties.

7. The plaintiff was generally unsuccessful. That the plaintiff is an individual challenging government action has not been accepted as a basis for routinely departing from the compensatory principle underlying the award of costs in public law proceedings. I do not consider that any clarification of the law or the statement of principle in Kent warrant any departure from the usual rule in relation to costs. It is not unusual in public law cases for there to be determination of significant questions of statutory construction or public law generally: see Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975. That, of itself, does not provide a reason for departing from the usual rule.

8. Although the statement of principle in Kent is an important one, it arose in a particular context, explained in McIver v ACT (No 2) [2025] ACTCA 7 at [24]-[25]. The principle is not applicable in the present case where the proceedings were brought to protect Ms Cover’s private interests.

9. However, the parliamentary privilege point was a point upon which Ms Cover was successful and the Speaker and Commission were unsuccessful. I consider that it is appropriate in this case to make some adjustment to the overall costs order (which will be otherwise in favour of the Commission) to take account of the fact that detailed arguments were required to address the parliamentary privilege issue. I consider that this is best done in a broad brush way so as to make the assessment of costs reasonably practicable by reducing the award in favour of the Commission by a percentage figure.

10. Although the issue was one which required detailed examination of authority, having regard to the overall scope of the proceedings, the success of Ms Cover in resisting the position taken by the Speaker and the Commission can be appropriately reflected by an order that she pay only 85 percent of the Commission’s costs. Because the order made by McCallum CJ was that the costs of the application her Honour heard be the defendant’s costs in the cause, the 85 percent figure will also apply to those costs.

Order

11. The order of the Court is: (1) The plaintiff is to pay 85 percent of the defendant’s costs of the proceedings, including reserved costs.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: