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Peers v Bennett [2026] NSWSC 536 | Case summary | Zoe

NSWNSWSC

Peers v Bennett

[2026] NSWSC 536

Supreme Court of NSW|2026-05-20|Before: Harrison AJ

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-05-20

Before

Harrison AJ

Catchwords

CIVIL PROCEDURE – parties – interveners – application by Commonwealth to intervene – where plaintiffs challenge decisions of High Court Registrars – whether Commonwealth should be granted leave to intervene as proper contradictor pursuant to the Hardiman principle

Source

Original judgment source is linked above.

Catchwords

CIVIL PROCEDURE – parties – interveners – application by Commonwealth to intervene – where plaintiffs challenge decisions of High Court Registrars – whether Commonwealth should be granted leave to intervene as proper contradictor pursuant to the Hardiman principle

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Peers v Bennett [2026] NSWSC 536

Hearing dates: 13 May 2026

Date of orders: 20 May 2026

Decision date: 20 May 2026

Jurisdiction: Common Law

Before: Harrison AJ

Decision: (1) Grant leave to the Commonwealth of Australia to intervene in the proceedings.
(2) Reserve costs.

Catchwords: CIVIL PROCEDURE – parties – interveners – application by Commonwealth to intervene – where plaintiffs challenge decisions of High Court Registrars – whether Commonwealth should be granted leave to intervene as proper contradictor pursuant to the Hardiman principle

Legislation Cited: Commonwealth Constitution, s 75(v)
High Court of Australia Act 1979 (Cth), ss 4, 17, 18, 19, 26, 30, 45
High Court Rules 2004 (Cth), rr 1.06, 6.07.1, 6.07.2, 6.07.3
Public Interest Disclosure Act 2013 (Cth), s 29
Supreme Court Act 1970 (NSW), s 23
Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27, 13.4(1). 14.28(1)

Cases Cited: Breen v Williams (1994) 35 NSWLR 522
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Marium v Registrar Local Court Blacktown [2022] NSWSC 528
Markisic v Magistrate David Heilpern [2011] NSWSC 410
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377
Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285 R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Rushby v Roberts (1983) 1 NSWLR 350 Shales v Lieschke (1985) 3 NSWLR 65 TXU Electricity Ltd v Office of the Regulator-General (2001) 3 VR 93 United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520

While it was previously thought that the Commonwealth could not intervene in inter partes litigation between private individuals (Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 397-400), subsequent authorities have pointed out that Bradley was decided without reference to s 23 (see, e.g., Rushby v Roberts (1983) 1 NSWLR 350 at 353) and the contemporary authorities have not followed the decision (see, e.g., Breen v Williams (1994) 35 NSWLR 522 at 532-533; Hokit at 381; Shales v Lieschke (1985) 3 NSWLR 65 at 80-81 and 90).
A person who is accepted as an intervener becomes a party to the proceedings with all of the privileges of a party, including the right to tender evidence, argue and appeal: see, e.g., Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285 at [42]; United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 534. It follows that, once an intervener becomes party to proceedings, it may move on a notice of motion such as the draft notice of motion foreshadowed by the Commonwealth and referred to in the affidavit of Ms Audsley affirmed on 26 March 2026.
In the present proceedings, the defendants have filed submitting appearances consistent with the orthodox approach referred to above, in circumstances where an administrative law challenge is brought in respect of an action undertaken by them in their role as Deputy Registrars. In this context, the Commonwealth hopes to ensure that there is a proper contradictor available to assist the Court in determining the plaintiffs’ claims.
In circumstances where s 45 of the Act contemplates that the Commonwealth is the proper party to any judicial or other proceedings relating to matters arising out of the administration of the affairs of the High Court under s 17 of the Act and where the Commonwealth proposes to intervene in order to serve as a contradictor, s 23 of the Supreme Court Act provides the Court with a power to allow its intervention, such that it will be a party to the proceedings with the rights and privileges that ordinarily flow from its position as a party.
Applying the considerations in Hokit, the Commonwealth submits that:
its intervention is apt to assist the Court in deciding the case, because it will result in the presence of a contradictor that is capable of making submissions and taking steps in the proceedings that may assist in the resolution of the dispute;
it is in the parties’ interest to allow the intervention, in circumstances where the Commonwealth’s participation will facilitate the identification of the real issues in dispute and the resolution of those issues;
the intervention will not occupy time unnecessarily and indeed is likely to produce greater efficiency in the resolution of the dispute through the early identification of potential issues with the relief sought and the presentation of submissions in relation to that relief; and
the intervention will not inappropriately add to the costs of the proceedings in circumstances where there is no active contradictor.
The Commonwealth submitted that, for these reasons, leave to intervene ought to be granted.
However, as is evident from the terms of UCPR 6.24, the Court may order that a person be joined as a party to the proceedings if they ought to have been joined as a party.
In the present case, s 45 of the Act relevantly provides that any judicial proceedings relating to matters arising out of the administrative affairs of the High Court under s 17, including proceedings relating to the performance of the functions and exercise of the powers of the Chief Executive and Principal Registrar under the Act may be instituted against the Commonwealth. Having regard to the scheme of ss 17, 19, 26 and 30 of the Act, the seeking of a direction under High Court Rules r 6.07.1 and the asserted application of the Public Interest Disclosure Act to the seeking of such a direction are properly characterised as proceedings “relating to matters arising out of the administrative affairs of the High Court”. In circumstances where the evident intent of s 45 of the Act is to facilitate the bringing of such proceedings against the Commonwealth, the Court may join the Commonwealth as a defendant to the proceedings pursuant to UCPR 6.24.
Finally, in response to the plaintiffs’ motion, the Commonwealth submitted that it is premised upon the Commonwealth lacking “standing”. The concept of standing is inapposite in the present context, in circumstances where the Commonwealth does not seek to bring or maintain the proceedings, which have been commenced by the plaintiffs. That is, it is the plaintiffs who must have standing to bring the proceedings and the concept is extraneous to the determination of what is or may be the proper role for the Commonwealth in the matter.
For those reasons, the Commonwealth submitted that the plaintiffs’ motion should be dismissed, and that I should make the primary or alternative orders sought in the Commonwealth’s motion.

The plaintiffs are unrepresented. Their submissions dated 10 May 2026 are as follows.
The plaintiffs have identified three issues of contention by the Commonwealth. First, the plaintiffs perceive that the Commonwealth complains that it cannot “determine” a cause of action. Subject to clarification by the plaintiffs, I understand that to be a reference to the Commonwealth’s concern that the amended statement of claim does not disclose a reasonable cause of action.
Secondly, the plaintiffs correctly perceive that the Commonwealth wishes to be a named defendant in the proceedings.
Thirdly, the Commonwealth asserts it is the proper contradictor to the matter according to the Hardiman principle.
The plaintiffs take issue with all of these contentions.
First, the plaintiffs submit that the Commonwealth is well aware of their cause of action and that so much is apparent from the Commonwealth’s written submissions and correspondence.
Secondly, the plaintiffs submit that the Commonwealth cannot be a named defendant in the proceedings because there is no challenge to the validity of a Commonwealth Act for the Commonwealth to answer to: there is no challenge to the validity of a Commonwealth Act for it to defend. The plaintiffs only seek to enforce s 29 of the Public Interest Disclosure Act against conduct of Commonwealth officers Deputy Registrars Bennett and Griffin.
Thirdly, the plaintiffs submit that “the Commonwealth’s intent or belief that it is the proper contradictor” is not supported by Peacock. In Peacock the Commonwealth refused to be the contradictor and the case was decided in its absence. The plaintiffs submitted, therefore, that “the Commonwealth’s intent to be a proper contradictor is immaterial to the court’s power to force the named defendants to be the proper contradictor consistent with the Hardiman principle”.
Fourthly, the plaintiffs submitted that the Commonwealth could play the role of a**micus c**uriae to assist the Court to understand the purpose of the Public Interest Disclosure Act and whether Commonwealth officers are subject to s 29 of that Act.
Furthermore, the Commonwealth has already attempted to dissuade the plaintiffs from proceeding with the matter by the threat of costs, which supports the notion that the Commonwealth is not interested in the proper administration of justice but rather in having the matter dismissed to protect its officers from being held to account.
The Commonwealth’s intent to be joined to the matter as a defendant is immaterial to the proceedings continuing without it because it is within the power of the Court to direct or order the defendants to act as the proper contradictor as per Peacock at [34] and consistently with the crucial aspect of the Hardiman principle, regardless of their submitting appearances.
The plaintiffs contend that the central point is that there must be a contradictor. However, they maintain that there is a proper contradictor here, namely the current defendants. In Peacock at [31], the Human Rights and Equal Opportunity Commission was forced to take an adversarial role, but the case was still decided in the absence of the Commonwealth. The plaintiffs maintain that that is still consistent with the Hardiman principle. The Commonwealth was there unwilling to be joined or to intervene and the defendant was directed by the Court to be the proper contradictor. The Commonwealth’s absence had no bearing on the Court’s ability to decide the matter.
Counsel for the Commission on the appeal in Peacock submitted that the presence of a contradictor was critical to the Hardiman principle. He referred to Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 681-682 and to TXU Electricity Ltd v Office of the Regulator-General (2001) 3 VR 93 at [40]-[46]. In that case, given the unwillingness of the Commonwealth to be joined, or to intervene, there was no choice other than for the Commission to comply with the Court’s direction.
The plaintiffs submitted that the Commonwealth could play the role of a**micus c**uriae in the present proceedings in order to assist the Court in its understanding of the purpose of the Public Interest Disclosure Act and the interpretation of s 29 and whether it applies to the conduct of the defendants in their public office.
Finally, the plaintiffs submitted that the Commonwealth “does comprehend the cause of action in the matter”.
The plaintiffs characterised their cause of action as the undermining of the public’s confidence in the way the Commonwealth officers administer the High Court Rules. The plaintiffs submitted that the defendants have failed to explain the exercise of their power under High Court Rules r 6.07.1 or to give reasons for having done so. The plaintiffs complain that such conduct is “unreasonable and lacks intelligible justification”.
In a similar vein, the plaintiffs maintain that the manner in which the defendants processed their applications under rr 6.07.2 and 6.07.3 means that the plaintiffs never became aware of the case against them [sic] and were given no opportunity to respond. This was unjust within the meaning of s 29 of the Public Interest Disclosure Act as it automatically imports the rules of natural justice of which procedural fairness is an element. The person subject to action by Commonwealth officers ought to know what the case is against them and be given a reasonable opportunity to respond. The plaintiffs submitted that “rules 6.07.2 and 6.07.3 are [sic] by definition a breach of natural justice or procedural fairness as the plaintiffs are not aware of the case against them and are given no opportunity to respond”: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [40].
In summary, the plaintiffs submitted that Deputy Registrars Bennett and Griffin as the named defendants are the proper contradictors to their claims, and that their position as such does not offend, but is on the contrary consistent with, the Hardiman principle.
The plaintiffs submitted further that it would in the circumstances be sufficient for the Commonwealth to make submissions as amicus curiae without the need to make formal orders either that it be given the right to intervene or be joined as a defendant. In that last respect, it would, according to the plaintiffs, be sufficient for the Commonwealth to provide submissions on what is said by the Commonwealth to be the purpose of the Public Interest Disclosure Act and whether it is the Commonwealth’s opinion that s 29 of that Act operates against Commonwealth officers.

The plaintiffs’ amended statement of claim appears to be based upon the proposition that the defendants were required to give reasons for their decisions but did not do so. The plaintiffs complain that Deputy Registrars Bennett and Griffin apparently formed the view that the plaintiffs’ applications in the High Court were, on their face, either an abuse of the process of the Court, frivolous or vexatious or fell outside the jurisdiction of the Court. The plaintiffs assert that, as matters presently stand, they have no way of knowing precisely or even generally what view the Registrars formed that inspired their decisions to seek a direction from a Justice.
In filing submitting appearances, the defendants have taken what has become referred to as the orthodox position when decisions of such officers are challenged. This is not a case in which the plaintiffs have described the defendants’ actions in overly critical or pejorative terms but it is reasonably apparent that they are dissatisfied with the conduct of the defendants and that they will probably wish to emphasise the reasons for those criticisms if given the opportunity to do so.
The plaintiffs purport to rely heavily upon the decision of the Full Federal Court in Peacock as supporting the proposition that the court can effectively force the defendants to defend the proceedings or that in a related sense the absence of an independent non-party contradictor, such as the Commonwealth, is not fatal to the legitimacy of any decision reached in the proceedings. The plaintiffs submitted that “the Commonwealth’s intent to be a proper contradictor is immaterial to the court’s power to force the named defendants to be the proper contradictor consistent with the Hardiman principle.”
With the greatest of respect, that submission either misstates or misunderstands both the Hardiman principle itself and the Peacock decision that discussed it. Part of what the Full Federal Court said in Peacock is as follows:

The present case is quite obviously very different. The Commonwealth wishes to take an approach that it chose not to take in Peacock and for which it was sternly rebuked. Peacock does not support the plaintiffs’ argument that I can or should force the defendants to respond to the claim in circumstances where those defendants have considered it to be inappropriate to do so.
The plaintiffs also maintain that the Commonwealth cannot be named as a contradictor, by which I understand the plaintiffs to contend the Commonwealth should not be permitted to intervene or be named as a defendant, “because there is no challenge to the validity of a Commonwealth Act for the Commonwealth to answer to” or to defend. I am uncertain where that proposition comes from but it is not correct. The defendants have on the plaintiffs’ own case each exercised statutory functions as Deputy Registrars of the High Court. The existence of a relevant connection between the subject matter of the plaintiffs’ claims and the Commonwealth of Australia could not be clearer.
The plaintiffs have accepted in terms that the Commonwealth could well play a role as amicus curiae. That perfectly reasonable concession is a tacit recognition that, but for the appointment of some appropriate person or body to respond to the plaintiffs’ claim, the submitting defendants may well be hamstrung by the very matters that inspired the Hardiman principle.
In this context I raised with Mr Culleton the question of whether his suggestion that the Commonwealth should only be recruited to assist me as a friend of the Court was inspired by an understanding on his part that the Commonwealth would as such have no standing or ability to challenge the form or substance of the amended statement of claim. I am prepared to assume from Mr Culleton’s somewhat bemused and quizzical response to my inquiry that such an approach formed no part of his present forensic position.
Section 23 of the Supreme Court Act is as follows: