Taxpayers shelled out more than $650,000 for both sides of a high-stakes court case launched by Premier Chris Minns’ chief of staff, which stripped the parliament’s upper house of its power to compel witnesses to attend hearings.
The case, which James Cullen won, is now subject to a High Court challenge where the NSW parliament is effectively fighting itself, and taxpayers are footing the bill for both sides in a case that is likely to cost well in excess of $1 million and last several months.
Cullen sued the NSW Parliament in October as part of a dramatic bid to avoid attending a hearing examining the leaking of confidential minutes from a report into the now-abandoned proposal to redevelop Rosehill Racecourse for housing.
Cullen had been summonsed by the Privileges Committee over the leak, and when threatened with arrest for refusing it, he filed court action to test whether staffers could be punished for not attending.
When the NSW Court of Appeal struck down the 124-year-old law in December, it stripped the Legislative Council of its power to compel witnesses to attend hearings, a crucial transparency tool.
The decision has led to witnesses refusing to attend a series of high-profile committee matters, including an inquiry into mould and maggot issues at the Calvary Mater Hospital in Newcastle and another into allegations the DPP gave information to 2GB that sparked a negative story about a judge.
The case has become a stand-off between the government and the upper house opposition and crossbench: both sides accuse the other of abusing process. The government will not pass laws restoring the power until the High Court case is resolved.
Meanwhile, The Sydney Morning Herald can reveal the two sides spent a combined $662,517 of taxpayer money on the original case in the Court of Appeal.
Cullen received $219,000 to run the case from the NSW government via a fund designed to provide ex gratia legal assistance to public servants, MPs and officials, budget estimates heard. On the other side, the clerk of the upper house, Steven Reynolds, told a budget estimates hearing in March that parliament had spent $443,517 defending the case.
Guidelines for the fund raised questions about whether Cullen should have been eligible. They state assistance is meant for public officials who are forced to defend legal action, or who appear before coronial inquiries or investigatory bodies, not for cases they initiate.
The funds were approved by Michael Tidball, secretary of the Department of Communities and Justice. During a budget estimates hearing in March, Liberal MP Susan Carter questioned why money had been provided for what she called “an offensive legal action”.
“What we have here is a situation where we are saying that it is entirely appropriate to authorise payment for legal proceedings for people who are setting out … not to comply with a lawful summons,” she said.
Tidball said the case was “extremely rare”, but that he stood by the decision because of the “exceptional” circumstances.
“The consequences of warrants being issued and curtailment of liberty and other things were profound,” he said.
In a statement, a spokesman from Minns’ office said the receipt of ex gratia payments was “within the guidelines and is a long-running practice including under the former government”.
The government has said Cullen’s case was a response to an abuse of power by opposition and crossbench MPs in the upper house.
During an earlier inquiry into the Dural caravan hoax – at which Cullen and four other ministerial staffers had threatened to ignore a summons – the president of the Legislative Council, Ben Franklin, told the staff that he would apply to the NSW Supreme Court to seek the arrest warrants, at the request of the committee, if they did not attend. They ultimately complied.
The government has repeatedly denigrated the role of the committees – Minns regularly refers to them as a “kangaroo court” – and this week, in response to questions about damning findings of an inquiry into a Labor grants scheme, Minns accused upper house members of having “decided that some Labor staffers should go to jail”.
Opposition and crossbench MPs believe Cullen took the court action to stymie the power of the upper house, which has proven to be a frustrating bulwark against the minority Labor government. They point to a string of examples in which ministerial staff appeared before inquiries while Labor was in opposition.
The costs for taxpayers continue to climb. In March, before the High Court had granted leave to appeal, Reynolds said the upper house had spent $77,189. Minns’ office did not say how much had been spent defending the appeal.
The NSW lower house has joined on to the case on Cullen’s side, meaning both houses of parliament are suing each other.
The upper house decision to appeal came despite legal advice from top silk Bret Walker, SC, warning there was “at best … an even chance of success” but that it was “probably more likely that the appeal would be dismissed”.
The advice predicts the outcome of the appeal would probably not be decided until the end of 2026 or early 2027.
Walker’s advice – and the Court of Appeal’s judgment – makes it clear parliament could resolve the issue by passing new laws. The Legislative Council has passed a bill, but the government does not support it and will not bring its own legislation forward.
“The Legislative Council lost their case before the NSW Court of Appeal presided over by the chief justice,” a spokesman for Minns said. “The government will await the outcome of the Legislative Council’s appeal.”
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Disclaimer : This story is auto aggregated by a computer programme and has not been created or edited by DOWNTHENEWS. Publisher: www.smh.com.au
