BDR21 v Australian Broadcasting Corporation

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 17 August 2021
• Neutral Citation: [2021] FCA 960
• Date: 17 August 2021

Federal Court of Australia

BDR21 v Australian Broadcasting Corporation [2021] FCA 960

File number:	NSD 290 of 2021
Judgment of:	HALLEY J
Date of judgment:	17 August 2021
Catchwords:	PRACTICE AND PROCEDURE – application pursuant to rr 16.21 and 26.01 of the Federal Court Rules 2011 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth) to strike out and/or give summary judgment in relation to parts of amended statement of claim – whether reasonable cause of action disclosed – whether any reasonable prospect of success – where applicant alleges reprisal action pursuant to s 13 of the Public Interest Disclosures Act 2013 (Cth) (PID Act) – whether allegations in document subject to parliamentary privilege can be relied upon as disclosable conduct for purposes of whistleblower protections in the PID Act – whether unlawful to adduce evidence of material facts of alleged public interest disclosures by reason of s 16(3) of the Parliamentary Privileges Act 1987 (Cth) – whether document prepared for purposes of or incidental to the transacting of the business of a parliamentary committee – whether material facts require evidence, questions or submissions concerning proceedings in Parliament – whether Parliament intended s 24 of the PID Act to abrogate or modify parliamentary privilege – application granted
Legislation:	Federal Court of Australia Act 1976 (Cth) s 31A Parliamentary Privileges Act 1987 (Cth) ss 3, 16 Public Interest Disclosure Act 2013 (Cth) ss 6, 13, 24, 26, 29, 80 Federal Court Rules 2011 (Cth) rr 16.21, 26.01 Australia, House of Representatives, Parliamentary Privileges Bill 1987, Explanatory Memorandum, item 3(c) Bill of Rights 1688 (UK) Art 9
Cases cited:	Amann Aviation Pty Limited v Commonwealth of Australia (1988) 19 FCR 223; [1988] FCA 435 Barilaro v Shanks-Markovina (No 2) [2021] FCA 950 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123; [2011] FCAFC 107 Carrigan v Cash [2017] FCAFC 86 Christou v Stantons International Pty Ltd [2010] FCA 1150 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 Coleman v Sellars (2000) 181 ALR 120; [2000] QCA 465 Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2002] 2 Qd R 8; [2001] QCA 218 Hammond v The Commonwealth of Australia (1982) 152 CLR 188; [1982] HCA 42 J C Techforce Pty Ltd v Pearce (1996) 138 ALR 522; [1996] FCA 599 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83 Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	116
Date of last submissions:	16 August 2021
Date of hearing:	15 July 2021
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms Z Heger
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 290 of 2021
BETWEEN:	BDR21 Applicant
AND:	AUSTRALIAN BROADCASTING CORPORATION; ABN 52 429 278 345 Respondent

order made by:	HALLEY J
DATE OF ORDER:	17 August 2021

THE COURT ORDERS THAT:

1. Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), paragraphs 45-124, 129-135.1, 144-145, 149-183, 194-198.1, 208-212.1, 223-227.1, 238-242, 246-246.1, 251, 255 (the words “A PID Belief as described in paragraph 121 above”), 259 (the words “A PID Belief as described in paragraph 121 above”), 278, 279.1, 311 (the words “and the … December 2018 PID”), 312-312.1 and 322-330 of the amended statement of claim filed by the applicant on 15 June 2021 (ASOC) be struck out.

2. Pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth), summary judgment be given for the respondent with respect to the causes of action advanced in paragraphs 45-124, 129-135.1, 144-145, 149-183, 194-198.1, 208-212.1, 223-227.1, 238-242, 246-246.1, 251, 255 (the words “A PID Belief as described in paragraph 121 above”), 259 (the words “A PID Belief as described in paragraph 121 above”), 278, 279.1, 311 (the words “and the … December 2018 PID”), 312-312.1 and 322-330 of the ASOC.

3. Subject to any consent position with respect to the payment of the costs of the proceeding:

1. the respondent is to file and serve written submissions on costs limited to three pages and any supporting evidence by 4.30 pm on Friday, 27 August 2021;

2. the applicant is to file and serve written submissions on costs limited to three pages and any supporting evidence by 4.30 pm on Friday, 3 September 2021;

3. the respondent is to file and serve any submissions in reply on costs limited to one page and any supporting evidence by 4.30pm on Friday, 10 September 2021; and

4. the issue of costs be determined on the papers unless either party seeks an oral hearing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

Introduction

1. This is an application by the respondent to strike out and further, or in the alternative, seek summary dismissal of numerous paragraphs of the amended statement of claim filed by the applicant on 15 June 2021 (ASOC).

2. By an amended interlocutory application dated 25 June 2021 (Amended Interlocutory Application), the respondent seeks orders pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (FCR) that paragraphs 45-124, 129-135.1, 144-145, 149-183, 194-198.1, 208-212.1, 223-227.1, 238-242, 246-246.1, 250-259, 278, 279.1, 311 (the words “and the … December 2018 PID”), 312-312.2 and 322-330 of the ASOC (together and as amended in accordance with [4] below, the Impugned Paragraphs) be struck out on the grounds that they:

(a) are likely to cause prejudice, embarrassment or delay in the proceeding;

(b) fail to disclose a reasonable cause of action;

(c) are otherwise an abuse of process; or

(d) are not lawful by reason of s 16 of the Parliamentary Privileges Act 1987 (Cth) (PP Act) and would require the respondent to plead to allegations which may involve a further breach of s 16 of the PP Act.

3. Further, or in the alternative, the respondent seeks an order in the Amended Interlocutory Application that the Court give summary judgment for the respondent in relation to the Impugned Paragraphs pursuant to r 26.01 of the FCR or s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on the grounds that:

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding;

(b) no reasonable cause of action is disclosed; or

(c) the proceeding is an abuse of the process of the Court.

4. The respondent confirmed at the outset of the hearing of the Amended Interlocutory Application that it no longer seeks orders relating to paragraphs 250 to 259 of the ASOC in full. Rather, it only...