BDR21 v Australian Broadcasting Corporation

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 29 June 2023
• Neutral Citation: [2023] FCAFC 101
• Date: 29 June 2023

Federal Court of Australia

BDR21 v Australian Broadcasting Corporation [2023] FCAFC 101

File number:	NSD 896 of 2021
Judgment of:	RANGIAH, BROMWICH AND CHEESEMAN JJ
Date of judgment:	29 June 2023
Catchwords:	PRACTICE AND PROCEDURE – Appeal from interlocutory orders to strike out parts of the appellant’s amended statement of claim – where summary judgment was given in favour of the respondent in respect of the causes of action arising from those paragraphs – whether the primary judge erred in striking out the impugned paragraphs – whether the primary judge erred in giving summary judgment in respect of causes of action to which the impugned paragraphs relate – whether it is unlawful to present evidence related to disclosures of public interest in respect of proceedings in Parliament, as outlined in section 16(3) of the Parliamentary Privileges Act 1987 (Cth) (PP Act) – whether a conflict exists between s 16(3) of the PP Act and s 24 of the Public Interest Disclosure Act 2013 (Cth) (PID Act) – whether s 24 of the PID Act excludes the operation of s 16(3) of the PP Act – Held: appeal dismissed with no order as to costs; summary judgment order to be reformulated
Legislation:	Constitution ss 49, 50, 51, 51(xxxvi), 51(xxxix), 128 Auditor-General Act 1997 (Cth) s 37(3) Evidence Act 1995 (Cth) Judiciary Act 1903 (Cth) s 78B Parliamentary Privileges Act 1987 (Cth) ss 5, 16(1), 16(2), 16(3) Public Interest Disclosure Act 2013 (Cth) Pt 2, Division 1, Subdivision B, ss 6(c), 10, 13, 13(1), 13(2), 14, 15, 16, 18, 21(2)(b), 24, 26, 26(1), 29, 80 Royal Commissions Act 1902 (Cth) Constitution Act 1867 (Qld) Acts Interpretation Act 1954–1977 (Qld) s 38(3) Criminal Justice Act 1989 (Qld) s 118ZA Parliamentary Papers Act 1992 (Qld) s 3 18 & 19 Vic. c. 55 (Imperial Act of Parliament) 1854 (Imp) s 35 Parliamentary Privileges Bill 1987 (Cth) item 3(c) Public Interest Disclosure Bill 2013 (Cth) cl 24 Explanatory Memorandum, Auditor-General Bill 1996 (Cth) Explanatory Memorandum, Parliamentary Privileges Bill 1987 (Cth) Bill of Rights 1688 (UK) Art 9
Cases cited:	Aboriginal Legal Service of Western Australia v Western Australia (1993) 9 WAR 297 BDR21 v Australian Broadcasting Corporation [2021] FCA 960 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; 195 FCR 123 CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; 277 FCR 201 Coco v The Queen [1994] HCA 15; 179 CLR 427 Crane v Gething [2000] FCA 45; 97 FCR 9 Criminal Justice Commission v Parliamentary Criminal Justice Commission [2001] QCA 218; [2002] 2 Qd R 8 Dill v Murphy (1864) 1 Moo PC (NS) 487; 15 ER 784 Fairfax v Commissioner of Taxation (1965) 114 CLR 1 Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188 Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2021] NSWCA 154 Knight v Victoria [2017] HCA 29; 261 CLR 306 Lambert v Weichelt (1954) 28 ALJR 282 LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18; 95 ALJR 490 Price v J F Thompson (Qld) Pty Ltd (1990) 1 Qd R 278 Project Blue Sky v Australian Broadcasting Authority (1998) HCA 28; 194 CLR 335 R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; 92 CLR 157 Rann v Olsen [2000] SASC 83; 76 SASR 450 Sellars v Coleman [2000] QCA 465; (2001) 2 Qd R 565 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 Herzfeld P and Prince T, Interpretation (2nd ed, Thomson Reuters, 2020)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	127
Date of last submissions:	31 March 2023
Dates of hearing:	4 May 2022, 22 March 2023
Counsel for the Applicant:	Mr B Lim and Mr S Horne (direct access)
Counsel for the Respondent:	Mr C Lenehan SC (22 May 2023 only), Ms Z Heger and Mr J Wherrett
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 896 of 2021
BETWEEN:	BDR21 Applicant
AND:	AUSTRALIAN BROADCASTING CORPORATION ABN 52 429 278 345 Respondent

order made by:	RANGIAH, BROMWICH AND CHEESEMAN JJ
DATE OF ORDER:	29 June 2023

THE COURT ORDERS THAT:

1. The interlocutory application to adduce further evidence on the appeal dated 18 February 2022 be dismissed.

2. The parties confer and, within 14 days or such further time as is allowed, submit agreed or competing draft orders to give effect to the conclusion of the Full Court that there should be summary judgment in respect of the claim advanced in the amended statement of claim that impermissibly relied upon the December 2018 letter as a public interest disclosure, and impermissibly relied on the contents of that letter as a “PID belief” for the purposes of s 13(1)(b) of the Public Interest Disclosure Act 2013 (Cth).

3. The appeal otherwise be dismissed with no order as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. This is an appeal by leave from interlocutory orders made by a judge of this Court striking out paragraphs of the appellant’s amended statement of claim (ASOC), and giving summary judgment in favour of the respondent (the ABC) in respect of the causes of action based on those paragraphs: BDR21 v Australian Broadcasting Corporation [2021] FCA 960 (primary judgment or PJ). The appeal was heard in two tranches as a result of notices being served under s 78B of the Judiciary Act 1903 (Cth) upon all of the attorneys-general of the Commonwealth, the states and the territories, none of whom intervened. Leave to appeal was granted during the second hearing during oral argument on 22 March 2023, the Court being satisfied of the importance of the issues raised, and recognising that an arguable case was advanced by the appellant. Accordingly, the appellant was directed to file the notice of appeal.

2. In this appeal and the proceedings below, the appellant is referred to by the pseudonym BDR21 for the reason that the appellant claims to have made certain public interest disclosures (PIDs) under the Public Interest Disclosure Act 2013 (Cth) (PID Act) in respect of which the appellant’s identity ought be protected. An object of the PID Act is to ensure that public officials who make PIDs are protected from adverse consequences relating to such disclosures, including from reprisal action: s 6(c) and Part 2, Division 1, Subdivision B of the PID Act.

3. In the ASOC, the appellant relevantly sought relief under ss 14 and 15 of the PID Act arising from alleged reprisal action taken by the ABC against the appellant in respect of complaints the appellant made. The appellant...