Ferguson v ACT Integrity Commission [2025] ACTSC 375

The plaintiff has advanced claims under s 40B of the Human Rights Act 2004 (ACT) (HR Act) relating to the Commission’s first decision (to issue an examination summons to produce his phone) and third decision (to require him to travel with an investigator to and from his home, to enter his home, and to “take hold of or seize” his phone “purportedly under ss 117, 120, 121 and/or 147 of the Integrity Commission Act 2018 (ACT)”), as set out in his originating application.

The plaintiff had not taken steps to comply with his obligation under s 34 of the HR Act prior to lunchtime on the day of the hearing before me. The command in s 34(2) of the HR Act not to proceed with the proceeding without notice to the Human Rights Commission and the Attorney-General is subject to s 34(4), which permits the Supreme Court to hear and decide a proceeding to the extent that it “relates to the grant of urgent relief of an interlocutory nature, if the court considers it necessary in the interests of justice”.

This proceeding was commenced on 23 July 2025. The application for interlocutory relief was brought before the Chief Justice on 15 August 2025. Her Honour adjourned the application until 22 August 2025, when it was heard before me. Even assuming that the relevant time is only that between 15 and 22 August 2025, I do not consider that the present circumstances involve “the grant of urgent relief of an interlocutory nature”. The purpose of s 34(4) is to ensure that the capacity of the court to deal with a claim for interlocutory relief so urgent that notice, or consideration of that notice, cannot be given is not impeded. It does not address a situation such as here, where there were days available in which notice could have been given and considered in a manner that did not impede the prompt dispatch of the business of the court, and where the Commission had given undertakings to the plaintiff to protect his position until the determination of the interlocutory application. The failure by the plaintiff to give the required notice is a regrettable oversight on the part of his legal representatives.

The failure by the plaintiff’s solicitors to give notice as required by s 34 means that the obligation of the court is to “not allow the proceeding to continue” until a reasonable period of time has passed for the Human Rights Commission and the Attorney-General to decide whether to intervene in the proceeding.

Ms Bindon has this afternoon given as much information as is available about the position of the Attorney-General and the Human Rights Commission. I am not satisfied that a reasonable period of time has passed since notice was given on Friday for the Human Rights Commission and the Attorney-General to decide whether to intervene in the proceeding. It may well be that the Attorney-General and the Human Rights Commission do not want to exercise their capacity to intervene or seek leave to intervene because of the interlocutory nature of the proceedings and the fact that the issues for the court are only whether a serious question to be tried is raised and where the balance of convenience lies. However, there is no general carve-out from s 34 of interlocutory proceedings. Rather, the language of the provision creates a significantly narrower carve-out than that.

There is room for debate as to whether s 34 would permit those aspects of the proceeding not involving questions arising under the HR Act to be determined, notwithstanding the terms of s 34. It is not appropriate to attempt to determine that issue in this case, having regard to the fact that the plaintiff’s claim for an interlocutory injunction involves a series of different claims, all of which are relied upon in combination, as well as individually, in order to demonstrate that there is a serious question to be tried and that the balance of convenience favours the grant of interlocutory relief.

In those circumstances, I will adjourn the proceeding again until 1pm on Tuesday, 26 August 2025, with the intention of either giving my decision in the matter or, alternatively, addressing any application for directions that are sought by the Attorney-General or the Human Rights Commission.

The order of the Court is: (1) Adjourn the proceeding until 26 August 2025 at 1pm. I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: