Alley v Gillespie - [2018] HCA 11

HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
PETER ALLEY PLAINTIFF
AND
DAVID GILLESPIE DEFENDANT
Alley v Gillespie
[2018] HCA 11
21 March 2018
S190/2017
ORDER
1.The questions referred to the Full Court under s 18 of the Judiciary Act 1903 (Cth) be amended and answered as follows:
Question (1)
Can and should the High Court decide in this proceeding whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) ("Common Informers Act")?
Answer
No.
Question (2)
If the answer to question (1) is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff in his attempt to demonstrate that the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of
Representatives for the purposes of section 3 of the Common Informers Act?

Answer
Unnecessary to answer.
2.The plaintiff's proceeding under the Common Informers Act be stayed until the question whether the defendant is incapable of sitting is determined.

Representation
B W Walker SC with J E Mack for the plaintiff (instructed by Maurice Blackburn Lawyers)
G O'L Reynolds SC with D P Hume for the defendant (instructed by Colin Biggers & Paisley Solicitors)
S P Donaghue QC, Solicitor-General of the Commonwealth with C L Lenehan and J D Watson for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

KIEFEL CJ, BELL, KEANE AND EDELMAN JJ. Section 3(1) of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) ("the Common Informers Act") provides that any person who "has sat as a senator or as a member of the House of Representatives while he or she was a person declared by the Constitution to be incapable of so sitting" is liable to pay to any person who sues for it the penalty prescribed. Section 5 of the Common Informers Act provides that original jurisdiction is conferred on the High Court in respect of actions under the Common Informers Act and no other court.
On 20 July 2016 the defendant, Dr David Gillespie, was declared elected as a member of the House of Representatives. On 7 July 2017 the plaintiff, Mr Peter Alley, commenced proceedings in this Court against the defendant under the Common Informers Act claiming the imposition of penalties. In those proceedings, the plaintiff contends that the defendant was incapable of being chosen as a member of the House of Representatives and was and is incapable of sitting as a member of that House because, on about 3 September 2015, a company in which the defendant is a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] HCA 11
Decision Date: 21 March 2018

CaseChat Overview and Summary

In *Alley v Gillespie*, the plaintiff, acting as a common informer, commenced proceedings in the original jurisdiction of the High Court of Australia against the defendant, a Member of the House of Representatives. The dispute concerned the defendant's alleged ineligibility to sit as a Member, which the plaintiff sought to establish through a common informer action under the *Common Informers (Parliamentary Disqualifications) Act 1975* (Cth). The plaintiff's action aimed to recover a statutory penalty on proof of the defendant's breach of parliamentary disqualification provisions.

The High Court was required to determine two principal legal issues. First, whether the High Court possessed the jurisdiction to decide, within the context of a common informer action, whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of the *Common Informers (Parliamentary Disqualifications) Act 1975* (Cth). Second, if the Court had such jurisdiction, whether it should issue subpoenas to assist the plaintiff in proving the defendant's ineligibility.

The Court reasoned that section 46 of the Constitution creates a cause of action for a common informer but does not confer jurisdiction on any court to determine the elements of that cause of action. Instead, the source of jurisdiction must be found elsewhere, either in State or Commonwealth law. In contrast, section 47 of the Constitution specifically addresses the authority to decide questions of a Senator's or Member's qualification, vesting this exclusive power in the respective Houses of Parliament. Therefore, the High Court concluded that it lacked jurisdiction in a common informer action to determine a Member's constitutional ineligibility.

Consequently, the High Court answered the first question in the negative, rendering the second question unnecessary to answer. The Court ordered that the plaintiff's proceeding under the *Common Informers (Parliamentary Disqualifications) Act 1975* (Cth) be stayed until the question of the defendant's eligibility to sit is determined by the appropriate body, namely the House of Representatives.

Orders

Orders of the court

1. The questions referred to the Full Court under s 18 of the Judiciary Act 1903 (Cth) be amended and answered as follows:

Question (1)

Can and should the High Court decide in this proceeding whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) ("Common Informers Act")?

Answer

No.

Question (2)

If the answer to question (1) is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff in his attempt to demonstrate that the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of

Representatives for the purposes of section 3 of the Common Informers Act?

Answer

Unnecessary to answer.

2. The plaintiff's proceeding under the Common Informers Act be stayed until the question whether the defendant is incapable of sitting is determined.

Background

Background to the litigation

The plaintiff's construction of the provisions of Ch I Pt IV appears to create something of a division of responsibility with respect to questions concerning whether a person is incapable of sitting. The plaintiff explains that division by reference to constitutional policy and underlying notions of judicial power.The background to s 46 The proceedings for which the Common Informers Act provides are in the nature of the old common informer action, by which a citizen could, for his or her own benefit, sue a person who breached a statute. When the statute allowed such an action to be brought, the citizen suing could recover the prescribed statutory penalty on proof of the breach[6].[6]Tranton v Astor (1917) 33 TLR 383 at 385. The origins of the common informer action lay in the need to provide incentives to citizens to put the processes of the law in train at a time when the State was weak and its laws not always enforced[7]. English statutes gave common informers the right to bring a case to recover penalties for breaches of a wide range of laws including, by way of example, unlawful gaming, unlicensed disorderly houses, depositing of rubbish on the streets and throwing of fireworks[8].[7]Holdsworth, A History of English Law, 3rd ed (1923), vol 2 at 453.[8]Radzinowicz, A History of English Criminal Law and its Administration from 1750, (1956), vol 2 at 140-150. By the mid-19th century it appears that the need for common informers to bring actions had substantially diminished. In the Second Reading Speech for the Common Informers Bill 1951 (UK), it was observed that there had been no new enactment of common informer provisions in the last 100 years[9]. This decline seems to have coincided with the creation of police forces in England and the low regard in which common informers had come to be held[10].[9]United Kingdom, House of Commons, Parliamentary Debates, vol 483 at 2085 (9 February 1951).[10]Radzinowicz, A History of English Criminal Law and its Administration from 1750, (1956), vol 2 at 153-155. The action contemplated by s 46 of the Constitution has its origins in legislation in the United Kingdom dating from the 18th century, as Gaudron J observed in Sue v Hill[11]. The first such provision appears to be the Succession to the Crown Act 1707[12], which set out the circumstances in which a person was disabled or declared incapable by the statute from being elected but nevertheless sits. Such a person was liable to a penalty to be recovered by a person who sued for it. The common informer action in its parliamentary context was transplanted to the Australian Colonies. The Constitution of each Colony contained a section providing for such an action to lie in the case of persons incapable of sitting or voting in the Colony's Parliament[13].[11](1999) 199 CLR 462 at 509 [116]-[117]; [1999] HCA 30.[12]6 Anne c 41, s 28.[13]Constitutional Act 1854 (Tas), 18 Vict No 17, s 28; New South Wales Constitution Act 1855 (Imp), 18 & 19 Vict c 54, Sched 1, s 29; Victoria Constitution Act 1855 (Imp), 18 & 19 Vict c 55, Sched 1, s 26; Constitution Act 1855-6 (SA), Act No 2 of 1855-6, s 18; Constitution Act 1867 (Q), 31 Vict No 38, s 7; Constitution Act 1889 (WA), 52 Vict No 23, s 32 and Constitution Acts Amendment Act 1899 (WA), 63 Vict No 19, s 39.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE AND EDELMAN JJ GAGELER J NETTLE AND GORDON JJ

Properly understood, the place of s 46 in the scheme of Ch I Pt IV is to allow for the imposition and recovery of a penalty in a common informer action. It is the role of the Court to determine the quantum of the penalty under the Common Informers Act. It may do so when the anterior question of liability is determined by the means provided by s 47.Conclusion and orders The questions should be answered:(1) No.(2) Unnecessary to answer. The plaintiff's proceeding under the Common Informers Act should be stayed until the question whether the defendant is incapable of sitting is determined[57]. [57]Stott v Parker [1939] SASR 98. I agree that the questions reserved should be answered in the terms stated by Kiefel CJ, Bell, Keane and Edelman JJ. My reason for considering that the High Court lacks jurisdiction in a common informer action to determine whether a person is constitutionally incapable of sitting as a senator or member of the House of Representatives comes down to an overriding concern to ensure coherence in the operation of ss 46, 47, 76 and 77 of the Constitution. Section 46 of the Constitution does no more than to create a cause of action, which is to exist unless and until the Parliament otherwise provides by a law enacted under s 51(xxxvi) of the Constitution either abolishing the cause of action altogether or substituting another cause of action. The section does not confer upon any court authority to decide any of the elements of that cause of action. The section's reference to suit on the cause of action being brought "in any court of competent jurisdiction" is premised on the jurisdiction of the court – its authority to decide – being found in another source[58]. The source of the jurisdiction of a court of competent jurisdiction might be a State law conferring State jurisdiction on a State court which is then bound in the exercise of that State jurisdiction by the Constitution and any applicable Commonwealth law, as recognised in covering cl 5 of the Constitution. The source of the jurisdiction of a court of competent jurisdiction might alternatively be a Commonwealth law conferring federal jurisdiction on the High Court under s 76(i) or (ii) of the Constitution or on a State court or another federal court under s 77(i) or (iii) of the Constitution. [58]Cf R v Ward (1978) 140 CLR 584 at 588-589; [1978] HCA 27. Section 47 of the Constitution, in contrast, is squarely addressed to authority to decide and to nothing other than authority to decide. The relevant effect of the section is that, unless the Parliament otherwise provides and to the extent that the Parliament does not otherwise provide[59], "any question" which answers the description of a "question respecting the qualification of a senator" can only be determined by the Senate and "any question" which answers the description of a "question respecting the qualification of a ... member" can only be determined by the House of Representatives. As with the prescription in Art I §5 of the Constitution of the United States that "[e]ach House shall be the Judge of the … Qualifications of its own Members", there is in s 47 a "textually demonstrable constitutional commitment" of the determination of the identified questions "to a coordinate political department"[60].[59]See R v Pearson; Ex parte Sipka (1983) 152 CLR 254 at 260-261; [1983] HCA 6; In re Wood (1988) 167 CLR 145 at 157-162; [1988] HCA 22.[60]See Lindell, "The Justiciability of Political Questions: Recent Developments", in Lee and Winterton (eds), Australian Constitutional Perspectives, (1992) 180 at 184, quoting Baker v Carr 369 US 186 at 217 (1962). See also Powell v McCormack 395 US 486 at 548 (1969).

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE AND EDELMAN JJ, GAGELER J, NETTLE AND GORDON JJ

Full text does not contain this section.