Federal Court of Australia

Moses v Commonwealth of Australia [2026] FCA 1607

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 30-36, 42, 43, 45-48, 52, 75, 77, 112, and 113 of the amended statement of claim be struck out.

2.    Leave be granted to the plaintiff to file a further amended statement of claim which recasts her claims in a manner that does not offend s 16(3) of the Parliamentary Privileges Act 1987 (Cth), and to address other pleading defects identified by the defendants in their written submissions.

3.    The interlocutory application filed by the defendants on 12 August 2026 is otherwise dismissed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    By an interlocutory application dated 12 August 2026, the defendants seek to strike out certain paragraphs of the amended statement of claim (ASOC) on the basis that those paragraphs are inconsistent with s 16 of the Parliamentary Privileges Act 1987 (Cth) (PP Act). The defendants had also sought in the interlocutory application to strike out other paragraphs of the ASOC on various grounds including that the paragraphs are vague and embarrassing and contain rolled up allegations. The defendants did not press for any ruling on these objections given the acknowledgement by Ms Moses in her written submissions that she accepted that “certain paragraphs of the ASOC may benefit from further particularity and restructuring”.

2    Relevantly for present purposes, Ms Moses alleges in this proceeding that she disclosed information about the activities of Hillsong, as an eligible whistleblower within the meaning of s 1317AAD of the Corporations Act 2001 (Cth) (Corporations Act), to Mr Andrew Wilkie MP. The purpose of her disclosure was for Mr Wilkie, in turn, to disclose this information in Parliament, so that she could obtain the benefit of parliamentary privilege. She contends that another parliamentarian, the second defendant, the Hon Dr Andrew Leigh MP, engaged in conduct that caused Mr Wilkie not to proceed with that disclosure, and Dr Leigh thereby engaged in detrimental conduct against her within the meaning of s 1317AD of the Corporations Act. Dr Leigh is a member of the House of Representatives, the Minister with portfolio responsibility for charities, and the Minister responsible for oversight of the Australian Charities and Not for Profit Commission (ACNC).

3    The central issue for determination raised by the interlocutory application is whether the transacting of the business of a House of Parliament extends to words spoken or acts done in the course of making a decision as to whether to table a document in Parliament. Relatedly, it is also necessary to determine whether Ms Moses’ allegations are limited to the bare facts of those words or acts or to the repetition and adoption of those words or acts, such that her allegations do not offend parliamentary privilege.

4    For the reasons that follow, I have concluded that the conduct and knowledge of Dr Leigh alleged in paragraphs 30-36, 42, 43, 45-48, 52, 75, 77, 112 and 113 of the ASOC extends to conduct and knowledge that would constitute “proceedings in Parliament” for the purposes of s 16 of the PP Act and the bare facts and repetition and adoption exceptions are not engaged. Those paragraphs therefore must be struck out. I am otherwise satisfied that Ms Moses should be given leave to file a further amended statement of claim to recast her claims in a manner that does not offend s 16 of the PP Act and to address the other pleading defects identified by the defendants in their written submissions.

B.    Background

B.1.    The case advanced by Ms Moses

5    For present purposes, the following summary of the case advanced by Ms Moses is sufficient.

6    Ms Moses was employed by Hillsong CityCare between 26 March 2020 and 28 March 2023. Hillsong CityCare was one of approximately 20 Hillsong entities registered as charities with the Australian Charities and Not for Profit Commission (ACNC).

7    In or about late March 2022, the ACNC commenced an investigation into four of the Hillsong entities. Ms Moses was appointed to manage the response of those Hillsong entities to the investigation and to conduct an internal review of the extent to which all Hillsong entities complied with the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act).

8    In the period between March and June 2022, Ms Moses made disclosures to the Australian Taxation Office (ATO) and the Australian Securities and Investments Commission (ASIC), each of which is an eligible whistleblower recipient under the Taxation Administration Act 1953 (Cth) and the Corporations Act respectively, concerning alleged non-compliance by Hillsong entities with the ACNC Act.

9    On or about 14 June 2022, Ms Moses claims that Hillsong CityCare suspended her employment.

10    On 3 July 2022, Ms Moses made an ACNC specific protected whistleblower disclosure regarding Hillsong entities to the ATO and ASIC, and requested that the details of her disclosure be provided to the ACNC.

11    On 12 August 2022, Ms Moses commenced proceedings NSD629/2022 in this Court against Hillsong CityCare and other Hillsong entities, alleging contraventions of the Fair Work Act 2009 (Cth) and the Corporations Act.

12    In the period between August and December 2022, Hillsong published statements refuting the allegations made by Ms Moses. The allegations made by Ms Moses, and Hillsong’s response to those allegations, were reported in both Australian and international media in late 2022.

13    Ms Moses contends that throughout late July, August, and September 2022, she engaged in discussions with Mr Wilkie’s office about her intention to make a formal public interest whistleblower disclosure concerning the “improper state of affairs at Hillsong” in order to mitigate the “risk of civil proceedings by Hillsong for breach of confidentiality”. As a result of their purported discussions, Mr Wilkie “confirmed his intent to publicly release [Ms Moses’] Hillsong whistleblower documents imminently”.

14    Ms Moses contends, however, that as a result of a telephone call between Mr Wilkie and the second defendant, Dr Leigh, Mr Wilkie was led to believe that Ms Moses had withdrawn her consent for the whistleblower documents to be publicly released.

15    Ms Moses also contends that, by a further conversation between Dr Leigh and the Hon Mr Tony Burke MP on 1 October 2022, Mr Wilkie was led to believe that Australian Labor Party (ALP) parliamentarians had withdrawn their support for the whistleblower documents to be released.

16    Ms Moses contends that Dr Leigh’s conversations with Mr Wilkie and Mr Burke caused Mr Wilkie not to release publicly her Hillsong whistleblower documents until 9 March 2023 and thereby caused her detriment, within the meaning of s 1317ADA(1) of the Corporations Act.

B.2.    Relevant principles

17    Section 16(3) of the PP Act is directed at “proceedings in Parliament”. It provides:

(3)    In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)    questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)    otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)    drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

18    Section 16(3) is drawn in broad terms that do “not in any way narrow the scope of parliamentary privilege” and “its wide and prescriptive language tends, if anything, to extend its reach”: TESA Group Pty Ltd v Mining and Energy Union (2026) 317 FCR 556; [2026] FCAFC 86 at [18] (Bromwich, Kennett and Horan JJ). The phrase “proceedings in Parliament” is defined in s 16(2) in the following terms:

For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a)    the giving of evidence before a House or a committee, and evidence so given;

(b)    the presentation or submission of a document to a House or a committee;

(c)    the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d)    the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

19    Article 9 of the Bill of Rights 1688 (UK) provides:

Freedom of Speech.

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

20    It is well established that the rationale underlying parliamentary privilege is the preservation of free speech in Parliament. The principle was explained by the Privy Council in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332 in the following terms:

In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges ... As Blackstone said in his Commentaries on the Laws of England, 17th ed (1830), vol 1, p163: 'the whole of the law and custom of Parliament has its original from this one maxim,' that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.

21    Their Lordships then identified the following conflicting issues to be considered (at 336):

There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuing that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail.

22    Ultimately, whether words spoken or acts done are “proceedings in Parliament” is a question of fact to be determined at the time that the words are spoken or the acts are done: Leyonhjelm v Hanson-Young (2021) 282 FCR 341; [2021] FCAFC 22 at [52] (Rares J) and [372] (Abraham J).

C.    DID the decision whether to table the disclosuRe FALL WITHIN the business of the House?

C.1.    The contentions of Ms Moses

23    Ms Moses contends that communications about whether a document should be tabled cannot form part of the business of the House where (a) in September 2022, there was no issue before the House on foot concerning Ms Moses’ disclosures or Hillsong, (b) the documents the subject of the proposed disclosures were copies of Hillsong whistleblower disclosures prepared by Ms Moses for her own whistleblower purposes, not “parliamentary work-product”, (c) mixed private and “political-party-specific purposes” of Dr Leigh, her then lawyer, Mr Josh Bornstein, and Mr Burke cannot establish that the impugned communications were proceedings in Parliament, and (d) the objective evidence and contemporaneous conduct of the parties is inconsistent with any characterisation of the impugned communications constituting proceedings in Parliament.

24    Ms Moses placed considerable reliance on what was described by the plurality in Crime and Corruption Commission v Carne (2023) 280 CLR 555; [2023] HCA 28 at [34]-[36] (Kiefel CJ, Gageler and Jagot JJ) as the “functional connection” requirement to determine whether words spoken or acts done were a “proceeding in Parliament”.

C.2.    The functional connection in Carne is engaged

25    The High Court in Carne was addressing an analogous provision of the Parliament of Queensland Act 2001 (Qld) (POQ Act). The defined term “proceedings in the Assembly” in s 9 of the POQ Act was in substantially similar terms to the defined term “proceedings in Parliament” in s 16(2) of the PP Act. A central issue for determination in Carne was whether the preparation and presentation of a Report of the Crime and Corruption Commission to the Parliamentary Crime and Corruption Committee, a committee of the Legislative Assembly of Queensland, were “proceedings in the Assembly” for the purposes of s 8(1) of the POQ Act (given the definition of that term in s 9).

26    The plurality in Carne stated that the relevant question was whether “what was done was actually for the purposes of doing the business” of the Assembly or a Committee and this was largely a question of fact (at [34]). Their Honours observed that the “mere preparation of a document…or presentation of a document” to a Committee by a third party will not be sufficient to give rise to parliamentary privilege if “there is no other connection” to the work of the Committee at the time the document was prepared (at [36]). Their Honours found that the Committee had not authorised, and could not be taken to have authorised, the preparation of the Report. Their Honours, however, noted that the position may have been different had the Committee directed the Commission to investigate the complaint against the Public Trustee (at [38]).

27    The plurality concluded that the Report “was prepared and presented to the Committee for the purpose of it being made public (by having it tabled in the Legislative Assembly)” and that was a purpose of the Commission, not of the Committee (at [39]). Their Honours acknowledged that, at the request of the Commission, the Committee had been asked to consider giving a direction requiring that the Commission investigate the complaint. The Committee, however, ultimately agreed not to make any such direction until the proceedings brought by Carne had been completed. Their Honours considered that had the Committee commenced to consider whether such a direction should be made, the Report might “have been the subject of its business, but that point was not reached” (at [39]).

28    The facts in this case are readily distinguishable from the facts in Carne. I accept that there are some parallels between the position of the Commission in Carne and Ms Moses in this case. Both prepared a document that they requested be tabled in Parliament and, in both cases, they prepared the document independently of any Parliamentary request. The fundamental difference, however, is that Ms Moses is challenging the application of parliamentary privilege to deliberations between members of Parliament, while the relevant privilege in Carne was asserted in respect of a third party who prepared and requested that a document be tabled in Parliament.

29    Contrary to submissions made by Ms Moses, Carne does not “refuse” or otherwise suggest that communications between members of Parliament concerning an “anticipated act that had not been taken up as business of the House” could not be privileged. Rather, Carne was directed at whether a document prepared by a third party for its own purposes was privileged. The issue in this case is different. It is whether the communications between members of Parliament were privileged, not whether the documents comprising the alleged whistleblower complaints of Ms Moses were privileged. Having regard to this distinction, I turn now to consider whether those communications are subject to s 16(2) of the PP Act.

C.3.    The tabling of a document forms part of the business of a House

30    The tabling of documents in Parliament is an integral and well-established practice that can readily be understood to constitute and form part of the “transacting of the business of a House or a committee” for the purposes of s 16(2) of the PP Act. Indeed, so much is expressly provided by s 16(2)(b) of the PP Act. It must follow that words spoken or acts done by members of Parliament directed at the question of whether or not to table a document in Parliament are encompassed by the definition of “proceedings in Parliament” for the purposes of s 16(2), because those words or acts were spoken or done “in the course of, or for purposes of or incidental to, the transacting of the business of a House or a committee”.

31    There may have been no existing issue before the House concerning Ms Moses’ whistleblower disclosures or Hillsong at the time of the relevant communications between parliamentarians. However, this does not establish or otherwise suggest that consideration of whether to table the documents comprising the whistleblower disclosures did not form part of the transaction of the business of a House or a committee. That is because the business of a House or a committee is not limited to existing matters that have been placed before them. It would be antithetical to the well-established underlying rationale of free speech in Parliament for the operation of parliamentary privilege to be limited to consideration of current matters before a House or a committee. There is no principled reason why the privilege should not equally extend to considerations of new matters, including by the tabling of documents.

32    Further, the subjective motivations of members of Parliament in considering whether to table or oppose the tabling of documents in a House or a committee cannot relevantly inform or determine whether parliamentary privilege is engaged. As explained by the plurality in Carne, it is the objectively considered functional connection – relevantly in this case, between the words spoken or the acts done and the House – that is determinative. In this case, the words spoken, as to whether the documents comprising the whistleblower allegations of Ms Moses should be tabled, had a direct connection to the business of the House. Critically, the defendants are claiming parliamentary privilege over communications about whether to table the documents comprising the whistleblower allegations, not the documents themselves.

33    Finally, contrary to the submissions made by Ms Moses, any contemporaneous and subsequent conduct of parties in failing to claim parliamentary privilege over the relevant communications outside proceedings in a court or tribunal cannot be relevant in determining whether those communications are protected by parliamentary privilege. This is because claims for privilege pursuant to s 16(3) of the PP Act are confined to objections to the tender or receipt of evidence in “any court or tribunal”.

C.4.    The fundamental tension in the contentions advanced by Ms Moses

34    There is a fundamental tension in the contentions sought to be advanced by Ms Moses. Ms Moses contends that Dr Leigh’s conduct is not protected by parliamentary privilege. At the same time, she contends that she made the disclosure to Mr Wilkie so that he could table her whistleblower documents in Parliament to enable her to obtain the benefit of parliamentary privilege. Necessarily, that purpose would be frustrated if her disclosure to Mr Wilkie was not also protected by parliamentary privilege, with the result that Hillsong could commence proceedings against Ms Moses for a breach of confidentiality. The more compelling answer, consistent with the rationale for parliamentary privilege, is that both the disclosure by Ms Moses to Mr Wilkie and the subsequent communications between Mr Wilkie and Dr Leigh are protected by parliamentary privilege. It would create an incoherence in the law of parliamentary privilege for Ms Moses’ disclosure to be protected by parliamentary privilege but for Mr Wilkie and Dr Leigh’s communications not to be so protected.

D.    Are the bare facts of the alleged conduct protected by parliamentary privilege?

D.1.    The contentions of Ms Moses

35    Ms Moses contends that, if the Court is otherwise satisfied that the impugned communications fall within s 16(2) of the PP Act, her claims against Dr Leigh can be determined without impeaching any protected proceeding in Parliament.

36    In support of this proposition, Ms Moses submits that s 16(3) of the PP Act only restricts the use of proceedings in Parliament and does not prohibit proof of “independently existing extra-parliamentary facts” nor the “bare historical occurrence of an event”, provided that the Court is not being asked to question “the truth, motive, intention, or good faith” of a parliamentary proceeding.

D.2.    The proscription on the drawing of inference and conclusions is to be construed broadly

37    Section 16(3)(c) expressly extends the protection of parliamentary privilege to “the drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament”.

38    Although inferences and conclusions are generally of a factual nature, that does not carry with it any implication that the proscription in s 16(3)(c) is confined to the process of finding “actual facts” in the sense of facts as understood in the law of evidence or curial fact-finding: TESA Group at [62]. The proscription on the drawing of inferences and conclusions is to be construed broadly. As the plurality observed at paragraphs [63] to [64]:

The word “inferences” in its ordinary usage facilitates a wide range of matters being established by a process of reasoning. Non-exhaustively, it may be the basis for finding the existence of a particular fact, circumstance, state of mind or result, or even the existence of a relevant connection between several other such things, to name some obvious examples. It plainly extends to things such as the existence of motivations, intentions and associations, or anything else that might explain why something was said or done. Viewed in that way, proscribing the drawing or inviting the drawing of inferences in part or in whole from proceedings in Parliament is a very wide prohibition. That breadth is readily justified by the very foundational interest it is directed to protecting: the freedom of Parliament and its members, extending to those involved in the processes of Parliament such as witnesses, to perform a vital constitutional function without let or hinderance, encompassing any chilling effect resulting from such a use taking place, either now or in the future. This is reflected in the proscription not applying to the establishment of the bare fact that something was said in Parliament, and nothing more, an exception to the operation of parliamentary privilege that is not always easy to apply. In this case, the bare fact of what was said in Parliament by the Deputy President in the Hansard extracts would not have been of any use to the appellant. It plainly went further than that.

The word “conclusions” in its ordinary usage can operate in the same way as “inferences” or differently. It usually connotes the final outcome of something, including by a process of reasoning, rather than something apparent on its face. It, too, gives rise to a very wide prohibition serving the same protective purpose in relation to proceedings in Parliament. While it tends to connote something more than just an inference, it is directed to much the same ends: again, non-exhaustively, finding the existence of matters such as facts, circumstances, states of mind, results and connections. It also plainly extends, as with inferences, to conclusions about the existence of motivations, intentions and associations, or anything else that might explain why something was said or done, or which might have a relevant bearing on a later state of affairs, in this case being (potentially) the requirement for a recusal.

D.3.    The bare facts exception is not engaged

39    Bare facts typically only have relevance if they can otherwise establish a cause of action because of inferences that can be drawn from them. The states of mind that Ms Moses alleges that Dr Leigh had in engaging in detrimental conduct towards her within the meaning of s 1317AD of the Corporations Act could only be established by drawing inferences from those bare facts. In drawing inferences from bare facts, the Court would necessarily be asked to determine “the truth, motive, intention or good faith” of a parliamentary proceeding.

40    Moreover, it is well established that parliamentary privilege extends both to reports in Hansard and in extra parliamentary material. In Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223, Beaumont J refused a tender not only of the Hansard report of what Senator Gareth Evans had stated in Parliament, but also the tender of an article that had appeared in the Sydney Morning Herald reporting on what Senator Evans had stated in Parliament. His Honour rejected the tender of the article on the grounds that (a) the purpose of the tender was “just as much a proscribed purpose as the tender of Hansard itself” and thus unlawful pursuant to s 16(3) of the PP Act, and (b) inadmissible under the law of evidence, as it was hearsay in that it was tendered to prove that a statement was made by Senator Evans in Parliament (at 232-233).

41    The rationale for parliamentary privilege would be significantly circumscribed if inferences could be drawn from extra parliamentary statements to establish the truth, motive, intention or good faith of conduct by a parliamentarian in connection with a “parliamentary proceeding” for the purposes of s 16(3) of the PP Act.

E.    Was there a relevant repetition and adoption of the alleged conduct?

E.1.    The contentions of Ms Moses

42    In addition, Ms Moses submits that s 16(2) of the PPA does not prohibit a cause of action founded on a later extra-parliamentary publication or adoption of the same subject matter.

43    The principle sought to be relied upon by Ms Moses, that a later extra-parliamentary publication or adoption of the same subject matter can be relied upon to found a cause of action, does not cure the defects in her pleading. The principle is engaged when a parliamentarian repeats a statement that was made in a “parliamentary proceeding” outside a parliamentary proceeding. For example, a parliamentarian might state on the steps of the House that “I repeat what I have said in the Chamber” or “I stand by what I have said in the Chamber”. The cause of action in those circumstances is directed at what the parliamentarian said outside a “parliamentary proceeding”, and does not rely upon the extra parliamentary statement to pursue a cause of action for what a parliamentarian may have said or done in a parliamentary proceeding.

44    None of the cases on which Ms Moses sought to rely assist her. In Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83, the causes of action were directed at statements made by the then Premier of South Australia in answers he gave to journalists stating the plaintiff had lied to a Committee of the Commonwealth Parliament. Similarly, in Buchanan v Jennings [2005] 1 AC 115; [2004] UKPC 36, the alleged defamatory publication was made by a member of the New Zealand Parliament to a newspaper reporter outside the House of Representatives in which the parliamentarian had stated he “did not resile” from an earlier statement that he had made in the House.

45    In contrast, as I have found at paragraphs 30 to 33 above, the causes of action sought to be advanced by Ms Moses are directed at conduct of Mr Wilkie and Dr Leigh falling within the concept of “proceedings in Parliament” for the purposes of s 16 of the PP Act. These are causes of action which impugn a discussion between parliamentarians about whether to table documents in Parliament. It is not the repetition and adoption of the conduct which is in issue; it is that conduct simpliciter.

F.    Which paragraphs of the ASOC offend parliamentary privilege?

F.1.    Paragraphs 30 to 36

46    It is alleged in paragraphs 30 to 36 of the ASOC that:

30     Later that evening, Leigh sent a text message to Wilkie seeking to discuss the Plaintiff, whom he described as the “Hillsong whistleblower,” and the ACNC’s Hillsong investigation.

Particulars

(a)    This text message is in the possession of Wilkie and will be obtained during the discovery process.

31    On 10 September 2022, Leigh telephoned Wilkie and stated that the Plaintiff no longer wished to assist Wilkie with Hillsong whistleblower matters and had withdrawn her consent for Wilkie to publicly release her Hillsong whistleblower documents.

32     At all material times, the Plaintiff had not withdrawn her consent for Wilkie to publicly release the documents, nor had she communicated any such intention to Leigh or any other person.

Particulars

(a)    The Plaintiff’s contemporaneous diary entries record her intention to proceed with the disclosure and do not record any change in position or withdrawal of consent.

33    The Plaintiff alleges that Leigh’s telephone statement to Wilkie on 10 September 2022, to the effect that the Plaintiff had withdrawn her consent, caused Wilkie to not proceed at that time with the planned October 2022 public release of the Plaintiff’s Hillsong whistleblower documents.

Particulars

(a)    The Plaintiff relies on the timing and sequence of events pleaded in paragraphs 29-32.

(b)    The Plaintiff relies on the fact that she had not in fact withdrawn her consent, as pleaded in paragraph 28 & 32.

(c)    The Plaintiff further relies on the absence of any contemporaneous communications from the Plaintiff to Leigh or Wilkie withdrawing consent, and her diary entries confirming consent.

34     On 1 October 2022, Burke informed Wilkie that the ALP had changed its position and would now oppose the public release of the Plaintiff’s Hillsong whistleblower documents and directed Wilkie to give the Plaintiff’s whistleblower documents to the ACNC instead. Burke did not provide a reason for his change in position.

Particulars

(a)    The Plaintiff was informed of this conversation by Wilkie’s office on 2 October 2022 and subsequently by Wilkie in person and recorded in her contemporaneous diary entries.

35    The Plaintiff alleges that Leigh caused the change in position by Burke and/or the ALP as communicated by Burke to Wilkie on 1 October 2022.

Particulars

(a)    The Plaintiff relies on the timing and sequence of events pleaded in paragraphs 27-34.

(b)    The Plaintiff relies on the fact that the ALP had previously confirmed that it would not prevent Wilkie's proposed public disclosure, as pleaded in paragraph 27.

(c)    The Plaintiff relies on the absence of any contemporaneous explanation by the ALP for its changed position.

(d)    The Plaintiff relies on the fact that Burke directed Wilkie to give the Plaintiff’s whistleblower documents to the ACNC – the very commission Leigh has direct ministerial oversight of, and that Burke had not previously referred to the ACNC in his meeting with Wilkie on 6 September 2022.

(e)    The Plaintiff further relies on Leigh’s text message to Wilkie on 9 September 2022 and subsequent phone call the next day in which Leigh referred to the ACNC.

(f)    The Plaintiff will rely on discovery and contemporaneous communications to establish the precise route by which Leigh's conduct influenced the ALP’s change in position.

36    As a result of Leigh's statement to Wilkie and the ALP's change in position, Wilkie did not publicly release the Plaintiff's Hillsong whistleblower documents until his next available opportunity which was 9 March 2023.

47    I accept, as alleged by the defendants, that the allegation made in the ASOC at paragraph 36 seeks to “question, rely on or establish Mr Wilkie’s motives and intentions in deciding not to say something in Parliament”. It does so by seeking to draw inferences from the communications alleged in the ASOC at paragraphs 30, 31, and 34, each of which I am satisfied can relevantly be characterised as proceedings in Parliament because each communication was conducted for the purpose of, or incidental to the question of whether the documents comprising Ms Moses’ whistleblower allegations would be tendered in the House. The allegations in paragraphs 32 and 33 are directed at the alleged conduct in paragraphs 30 and 31 and the inference sought to be drawn in paragraph 36. They lack any necessary context if those surrounding paragraphs are removed.

48    Similarly, I am satisfied that paragraph 35 offends parliamentary privilege. That is for two reasons. First, the paragraph makes an allegation about the motives of Mr Burke and the ALP in their conduct of proceedings in Parliament, namely the reasons why they withdrew their support for the tabling of Ms Moses’ whistleblower disclosure. Second, the particulars to paragraph 35 disclose that the plaintiff invites an inference from the facts alleged in [27]-[34] of the ASOC. I am satisfied that paragraphs 30, 31, and 34 of the ASOC can relevantly be characterised as proceedings in Parliaments for the reasons given above.

49    Each of these paragraphs should therefore be struck out.

F.2.    Paragraphs 42 and 43

50    It is alleged in paragraphs 42 and 43 of the ASOC that by reason of Dr Leigh’s conduct pleaded in Section D1 of the ASOC, Dr Leigh engaged in detrimental conduct within the meaning of 1317AD(1) of the Corporations Act, and Ms Moses suffered detriment within the meaning of s 1317ADA(1) of the Corporations Act. The conduct of Dr Leigh alleged in Section D1 of the ASOC is limited to sending a text message to Mr Wilkie (at [30]) and making a telephone call to Mr Wilkie (at [31]). Given both those paragraphs are to be struck out on the basis that each offends parliamentary privilege, there is no factual foundation for the allegations in paragraphs 42 and 43 of the ASOC. They must therefore also be struck out.

F.3.    Paragraphs 45 to 48

51    It is alleged in paragraphs 45 to 48 of the ASOC that:

45.    At all material times, by reason of the facts pleaded in Section D1 of this Amended Statement of Claim, Leigh knew or suspected that the Plaintiff had made, proposed to make or could make disclosures that qualified for protection under s 1317AA and/or s 1317AAD of the Corporations Act.

46.    Leigh engaged in the conduct pleaded in Section D1 of this Amended Statement of Claim because of that belief, knowledge or suspicion within the meaning of s 1317AD(1) of the Corporations Act, and that knowledge or suspicion was the reason, or part of the reason, for the conduct.

47.    The Plaintiff relies on s 1317AD(2B) of the Corporations Act. The matters pleaded in Section D1 of this Amended Statement of Claim are said to give rise to a reasonable possibility that Leigh engaged in the conduct because of the Plaintiff’s protected disclosure activity. Leigh is put to proof and, to the extent the subsection applies, bears the evidential burden accordingly.

D3. Material Facts – Leigh’s Concealment of Evidence Concerning his Interference with the Plaintiff’s Protected Whistleblower Disclosures

48.    At all material times, Leigh knew the Plaintiff had made protected whistleblower disclosures concerning Hillsong, and that private communications to and from himself concerning his interference in the Plaintiff’s protected whistleblower disclosures were likely to be relevant to any complaint, claim, or proceeding brought by the Plaintiff.

52    Paragraphs 46 and 47 of the ASOC rely on the conduct of Dr Leigh in sending a text message to Mr Wilkie (at [30]) and making a telephone call to Mr Wilkie (at [31]). Given both those paragraphs are to be struck out on the basis that each offends parliamentary privilege, there is no factual foundation for the allegations in paragraphs 46 and 47 of the ASOC. They must therefore also be struck out.

53    Paragraphs 45 and 48 of the ASOC contain allegations concerning Dr Leigh’s state of knowledge. It is not apparent how Dr Leigh’s knowledge of the alleged Hillsong whistleblower disclosures made by Ms Moses can be established independently of material that would otherwise offend parliamentary privilege. I am satisfied, as submitted by the respondents, that the appropriate course is to strike out these paragraphs but permit Ms Moses to replead the allegations in a manner which makes clear that they are made independently of any parliamentary materials.

F.4.    Paragraph 52

54    It is alleged in paragraph 52 of the ASOC that:

52.    The Plaintiff alleges that Leigh’s written response to Drill was inconsistent with the contemporaneous communications and records concerning his interactions with Bornstein and Wilkie as pleaded in Section D1 of this Amended Statement of Claim, and that Leigh did not provide the accurate version of events to Drill because he knew the Plaintiff was a protected whistleblower and he wished to avoid public exposure of his interference in the Plaintiff’s protected disclosures knowing the interference was in contravention of Part 9.4AAA of the Corporations Act.

55    The inconsistency alleged in paragraph 52 of the ASOC depends on a comparison between a written response made by Dr Leigh to Mr Stephen Drill on the one hand, and Dr Leigh’s conduct in a text message to (at [30]) and a telephone call with Mr Wilkie (at [31]) on the other. Given paragraphs 30 and 31 must be struck out (see [47] to [49]), the allegation cannot succeed because the alleged inconsistency cannot be established. Thus, paragraph 52 must also be struck out.

F.5.    Paragraph 75

56    It is alleged in paragraph 75 of the ASOC that:

75.    The Plaintiff alleges that the requisite causal connection under Part 9.4AAA is established because the detriment suffered by the Plaintiff detailed above would not have occurred but for Leigh’s conduct pleaded in Section D3 of this Amended Statement of Claim, and that conduct would not have occurred unless Leigh knew or suspected that the Plaintiff had made, may have made, proposed to make or could make, protected whistleblower disclosures pursuant to Part 9.4AAA of the Corporations Act, and acted accordingly.

57    Paragraph 75 of the ASOC is directed at the conduct of Dr Leigh in Section D3 of the ASOC. That alleged conduct was a refusal to provide a document, identified as “Document 11”, in a series of text messages to and from Dr Leigh that were captured by an FOI request made by Ms Moses. The FOI request made by Ms Moses sought communications to and from Dr Leigh in the period between 7 September 2022 and 30 March 2023 concerning (a) Ms Moses, (b) the “Hillsong whistleblower”, (c) any whistleblower disclosure concerning Hillsong, and (d) Mr Wilkie “in relation to the above matters”.

58    The inclusion in the FOI request of communications between Dr Leigh and Mr Wilkie concerning Ms Moses, the “Hillsong whistleblower” and any whistleblower disclosure concerning Hillsong would capture material falling within parliamentary privilege for the reasons explained at paragraphs 47 to 49 above. Paragraph 75 must therefore be struck out in its present form because the FOI request encompasses material that would be subject to parliamentary privilege and it is not possible, as the claim is pleaded, to discern whether Document 11 includes material that is covered by parliamentary privilege.

59    Further, to the extent that paragraph 75 contains an allegation about Dr Leigh’s state of mind, it is in the same category as paragraphs 45 and 48 and would also have been liable to have been struck out on that basis.

F.6.    Paragraph 77

60    In paragraph 77 of the ASOC, Ms Moses claims aggravated and exemplary damages against Dr Leigh by reason of his “conduct towards the Plaintiff as a protected whistleblower”. The alleged conduct of Dr Leigh is not expressly identified in paragraph 77, but the only potentially relevant conduct of Dr Leigh otherwise alleged in the ASOC is his text messages to and telephone call with Mr Wilkie, in paragraphs 30 and 31 of the ASOC. Given both these paragraphs of the ASOC are to be struck out, the claim for aggravated and exemplary damages in paragraph 77 must also be struck out.

F.7.    Paragraph 112

61    It is alleged in paragraph 112 of the ASOC that:

112.    At all material times, the Second Defendant, Assistant Minister Andrew Leigh, believed or suspected that the Plaintiff had made, may have made, proposed to make, or could make disclosures that qualified for protection under Part 9.4AAA of the Corporations Act.

62    The state of mind attributed to Dr Leigh in paragraph 112 of the ASOC must also be struck out with liberty to replead on the same basis that paragraphs 45 and 48 of the ASOC are to be struck out. It is not apparent how Dr Leigh’s knowledge or suspicion that Ms Moses had made or proposed to make disclosures that qualified for protection under Part 9.4AAA of the Corporations Act could be established independently of material that would otherwise offend parliamentary privilege.

F.8.    Paragraph 113

63    It is alleged in paragraph 113 of the ASOC that:

113.    In consequence of that belief or suspicion, and because of the making, or proposed making, of those disclosures that qualify for protection under Part 9.4AAA of the Corporations Act, the Second Defendant engaged in conduct that caused detriment to the Plaintiff within the meaning of s 1317AD(1) and s 1317ADA(1) of the Corporations Act including the conduct pleaded in Section D of this Amended Statement of Claim.

64    The conduct of Dr Leigh relied upon is not expressly identified in paragraph 113 of the ASOC. The only potentially relevant conduct of Dr Leigh otherwise alleged in the ASOC in Section D or more generally is the text messages sent by Dr Leigh to Mr Wilkie and his telephone call with Mr Wilkie, alleged in paragraphs 30 and 31 of the ASOC. Given both these paragraphs of the ASOC are to be struck out, the claim in paragraph 113 of the ASOC that Dr Leigh caused detriment to Ms Moses within the meaning of s 1317AD(1) and s 1317ADA(1) of the Corporations Act must also be struck out.

65    Further, to the extent that paragraph 113 contains an allegation about Dr Leigh’s state of mind, it is the same category as paragraphs 45 and 48 and would also have been liable to have been struck out on that basis.

G.    Other alleged pleading defects

66    The other alleged pleading defects were not pressed by the defendants at the interlocutory hearing. Ms Moses proposes to amend her amended statement of claim to resolve some of the issues the defendants have raised. I am satisfied that it is appropriate to grant Ms Moses leave to file and serve a further amended statement of claim.

H.    Disposition

67    For the foregoing reasons, (a) orders are to be made striking out paragraphs 30-36, 42, 43, 45-48, 52, 75, 77, 112 and 113 of the ASOC, and (b) Ms Moses should be granted leave to file a further amended statement of claim which recasts her claims in a manner that does not offend s 16 of the PP Act.

68    The defendants indicated at the hearing that Prayer 2 of the interlocutory application was no longer pressed, on the understanding that there would be no determination on the merits of their complaints. In those circumstances, I otherwise dismiss the interlocutory application.

69    Given the defendants indicated they no longer seek costs from the plaintiff, I do not make any order as to costs.

Associate:

Dated:    28 October 2026