Attorney General of Western Australia v President of the Legislative Council of Western Australia
[2020] WASC 399
•6 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ATTORNEY GENERAL OF WESTERN AUSTRALIA -v- PRESIDENT OF THE LEGISLATIVE COUNCIL OF WESTERN AUSTRALIA [2020] WASC 399
CORAM: ALLANSON J
HEARD: 27 FEBRUARY 2020
DELIVERED : 6 NOVEMBER 2020
FILE NO/S: CIV 2716 of 2019
BETWEEN: ATTORNEY GENERAL OF WESTERN AUSTRALIA
Plaintiff
AND
PRESIDENT OF THE LEGISLATIVE COUNCIL OF WESTERN AUSTRALIA
First Defendant
CLERK OF THE LEGISLATIVE COUNCIL OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Practice and procedure - Application for declaratory relief - Where plaintiff's case based on question of law - Where defence pleads factual context in which questions of law to be determined
Practice and procedure - Strike out application - Where plaintiff applies to strike out part of defence - Where defendant has not filed a counterclaim - Whether reasonable defence to action - Turns on own facts
Practice and procedure - Strike out application - Whether pleadings state the case sufficiently clearly to allow the other party a fair opportunity to meet it - Whether pleadings may prejudice, embarrass or delay the fair trial of the action - Turns on own facts
Practice and procedure - Discovery - Whether documents sought relate to a matter in question in the action - Whether documents sought are reasonably required for the fair and just determination of the issues - Turns on own facts
Practice and procedure - Non-party discovery - Whether reasonable grounds for believing non-party had, has or is likely to have had possession of documents relating to the matter in question - Turns on own facts
Practice and procedure - Request for further and better particulars - Whether matters pleaded with sufficient particularity to establish nature of case to be met - Turns on own facts
Legislation:
Bill of Rights 1689, Art 9
Corruption, Crime and Misconduct Act 2003 (WA), s 3, s 4, s 9, s 18, s 95, s 98
Criminal Code (WA), s 1
Parliamentary Privileges Act 1891 (WA), s 1, s 4
Property Law Act 1969 (WA), s 9
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 20 r 13, O 20 r 19, O 21 r 3, O 26 r 4, O 26A r 5
Result:
Plaintiff's applications to strike out dismissed
Defendants' applications for discovery granted
Defendants' application for further and better particulars dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | J Thomson SC & G Stockton |
| First Defendant | : | P Cahill SC & R O'Brien |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | State Solicitor for Western Australia |
| First Defendant | : | Corrs Chambers Westgarth |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Armidale Regional Council v Vorhauer [2019] NSWSC 1153
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121
Co-operative Bulk Handling Ltd v Brookfield Rail Pty Ltd [2014] WASC 31
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Dean v Lloyd (1991) 3 WAR 235
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
EB 9 & 10 Pty Ltd v Owners Strata Plan 934 [2018] NSWCA 288; (2018) 98 NSWLR 889
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Gunns Ltd v Marr [2005] VSC 251
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)
Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 128 ALR 149
Lonsdale Investments Pty Ltd v OM (Manganese) Ltd [No 2] [2009] WASC 253
Nyoni v Patterson [2012] WASCA 171
Science Research Council v Nasse [1979] UKHL 9; [1980] AC 1028
Shelton v National Roads & Motorists Association Ltd (2004) 51 ACSR 278
Sims v Wran [1984] 1 NSWLR 317
Tchenguiz v Thornton UK LLP [2015] EWHC 405 (Comm)
University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1
Weeks v Nationwide News Pty Ltd [No 2] [2019] WASC 44
Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 4] [2009] WASC 17
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
ALLANSON J:
The plaintiff is the Attorney General of Western Australia. The two defendants are the President of the Legislative Council of Western Australia and the Clerk of the Legislative Council.
This action was commenced by writ filed 27 September 2019. The statement of claim has been amended twice, and the current version was filed 18 February 2020. The President filed a defence, amended 7 February 2010.
The Clerk of the Legislative Council has filed notice of intention to abide the decision of the court, leaving the Attorney General and the President as the active parties. The Corruption and Crime Commission is not a party; nor is the Director General of the Department of Premier and Cabinet.
The action raises issues about the scope of parliamentary privilege and, in particular, the interaction between parliamentary privilege and coercive process issued by the Corruption and Crime Commission pursuant to the Corruption, Crime and Misconduct Act 2003 (WA) for the production of records and information. The present reasons are concerned solely with procedural questions.
Legislative context
The Parliamentary Privileges Act 1891 (WA)
The Parliamentary Privileges Act is, by its long title, 'An Act for defining the privileges, immunities, and powers of the Legislative Council and Legislative Assembly of Western Australia, respectively'.
By s 1:
The Legislative Council and Legislative Assembly of Western Australia, and their members and committees, have and may exercise ‑
(a)the privileges, immunities and powers set out in this Act; and
(b) to the extent that they are not inconsistent with this Act, the privileges, immunities and powers by custom, statute or otherwise of the Commons House of Parliament of the United Kingdom and its members and committees as at 1 January 1989.
In considering the privileges, immunities and powers of a House of Parliament, it is necessary to have regard also to Art 9 of the Bill of Rights 1689, which provides:
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament.
Section 4 of the Parliamentary Privileges Act confers a specific power on each House of the Parliament, and any Committee of either House, duly authorised by the House to send for persons and papers, to order any person to attend and to produce to the House or Committee any paper, book, record, or other document in the possession or power of that person.
Corruption, Crime and Misconduct Act
The Corruption and Crime Commission is established under s 8 of the Corruption, Crime and Misconduct Act. The Commission is a body corporate with perpetual succession. By s 9, there is to be a Commissioner who, in the name of the Commission, is to perform the functions of the Commission under the Act and any other written law.
The general functions of the Commission are set out in pt 2, div 2 of the Act, with functions in relation to particular matters set out in succeeding parts. The general functions of the Commission include 'to ensure that an allegation about, or information or matter involving, serious misconduct is dealt with in an appropriate way'.[1]
[1] Corruption, Crime and Misconduct Act s 18.
Serious misconduct is defined to include misconduct by a 'public officer'.[2] A 'public officer' includes a member of either House of Parliament.[3]
[2] Corruption, Crime and Misconduct Act s 3 and s 4.
[3] Corruption, Crime and Misconduct Act s 3, by reference to the Criminal Code s 1.
Part 6 sets out the powers of the Commission. Relevantly, by s 95:
(1)The Commission may, by written notice served on a person, require the person ‑
(a)to attend, at a time and place specified in the notice, before the Commission or an officer of the Commission as specified in the notice; and
(b)to produce at that time and place to the person so specified a record or other thing specified in the notice.
(2)The notice ‑
(a)may provide that the requirement may be satisfied by some other person acting on behalf of the person on whom it was imposed; and
(b)may specify the person or class of persons who may so act.
By s 98:
(1)The Commission or a person authorised in writing by the Commission may ‑
(a)inspect any document or other thing produced before the Commission or an officer of the Commission; and
(b)retain the document or other thing for a reasonable period; and
(c)take photographs or copies of, or extracts or notes from, anything relevant to the investigation.
(2)The Commission may make an order about what is to be done with any document or other thing produced before the Commission or an officer of the Commission, and it may be dealt with in accordance with that order.
(3)The Commission may not order a document to be destroyed except in accord with the State Records Act 2000.
While the Commission has functions in relation to allegations of misconduct by a member of either House of Parliament, s 3(2) provides:
Nothing in this Act affects, or is intended to affect, the operation of the Parliamentary Privileges Act 1891 or the Parliamentary Papers Act 1891 and a power, right or function conferred under this Act is not to be exercised if, or to the extent, that the exercise would relate to a matter determinable by a House of Parliament.
Nothing in the Act qualifies the operation of s 3(2) with regard to the powers or functions conferred on the Commission by s 95 and s 98. Those powers or functions are not to be exercised if, or to the extent, that the exercise would relate to a matter determinable by a House of Parliament.
Agreed facts
The parties produced an agreed statement of facts, which provides a chronological background:
Allowances investigation
9.The Commission is conducting an investigation into whether certain former members of the Legislative Council had engaged in serious misconduct with respect to the use of travel and electorate allowances, and to consider and report on any risk that serious misconduct could occur with respect to the use of those travel and electorate allowances.
Departmental Production Notices
10.The Commission served three notices on the Director General dated 12 April 2019 (First Notice), 11 June 2019 (Second Notice) and 6 August 2019 (Third Notice).
11.The parliamentary term of each of the former members named in the First Notice, Second Notice and Third Notice ended on 21 May 2017.
Production of records in response to the First and Second Notices
12.On 22 July 2019, a Deputy to the State Solicitor produced to the Commission certain records which the Deputy to the State Solicitor advised the Commission he was instructed fell within the terms of the First Notice and Second Notice having regard to a letter from the Commission dated 9 July 2019, and an email from the Commission dated 22 July 2019.
13.As at 22 July 2019, the Legislative Council had not made any determination about any of the records produced by the Deputy to the State Solicitor to the Commission.
Production to the [Committee on Procedure and Privileges]
14.On about 23 and 27 August 2019, the Director General produced records to the [Committee on Procedure and Privileges] in compliance with the requirements of an order made by the Legislative Council made on 15 August 2019.
15.The records produced by the Director General to the [Committee on Procedure and Privileges] likely included documents which relate to 'debates or proceedings in Parliament' as that term is used in article 9 of the Bill of Rights 1689.
Laptop and external hard drive seized by the Commission
16.On 14 August 2019, a Toshiba Laptop (the Laptop) and an external hard drive (the First HDD) issued to Phillip Edman (Edman) by the Department were seized by the Commission from Edman pursuant to a search warrant executed by the Commission.
17.The Laptop and the First HDD each contained emails passing to and from the parliamentary email account of Edman while he was a member of the Legislative Council.
18.On 4 September 2019 the Commission delivered the Laptop and the First HDD to the Clerk.
19.The Laptop and First HDD each likely contain documents which relate to 'debates or proceedings in Parliament' as that term is used in article 9 of the Bill of Rights 1689.
20.The Clerk received and currently holds the Laptop and First HDD.
21.The Laptop and the First HDD are currently held by the Clerk as agent for, and subject to the direction of, the Legislative Council or its delegate the [Committee on Procedure and Privileges].
The [Committee on Procedure and Privileges] Production Notices
22.On 10 September 2019, the Commission served two notices on the Clerk (the Fourth Notice and Fifth Notice).
Non-Production Order
23.On 25 September 2019, the Legislative Council resolved that the Clerk was directed not to comply with the Fourth Notice and Fifth Notice pending:
(a)both the outcome of any proceedings concerning the validity of the First to Fifth Notices, and an assessment of parliamentary privilege by the [Committee on Procedure and Privileges] with respect to those notices; or
(b)further direction from the [Committee on Procedure and Privileges] taking account of legal advice
The pleadings
The Statement of Claim
The First, Second and Third Notices
The Attorney General pleads that for the purposes of an investigation of electoral allowances, the Commission issued three Production Notices pursuant to s 95 of the Corruption, Crime and Misconduct Act, addressed to the Director General of the Department of the Premier and Cabinet. The Notices required the Director General to provide material in relation to parliamentary email accounts of three named former members of the Legislative Council, and named staff members, except for any documents which were the subject of parliamentary privilege.
In August 2019, the Director General produced documents to the Commission. Before complying with the Production Notices, the Director General sought and obtained legal advice from the State Solicitor's Office as to whether any documents which might otherwise be the subject of the notices were subject to parliamentary privilege. The Director General did not include any documents which he was advised were subject to parliamentary privilege.[4]
[4] Statement of claim [11] ‑ [15].
On 15 August 2019, the Legislative Council resolved that the Director General produce to the Committee on Procedure and Privileges in relation to the First Notice and the Second Notice,
(a)all documents that were identified as relevant to the Commission's investigation, together with a list of those documents;
(b)all documents that were identified as being subject to parliamentary privilege, together with a list of those documents; and
(c)all documents that were produced to the Commission in compliance with each of the Departmental Production Notices, together with a list of those documents.[5]
[5] Statement of claim [16].
The Director General complied with the order.[6]
The seizure of the laptop
[6] Statement of claim [17]
On 14 August 2019, pursuant to a search warrant, the Commission seized a laptop and an external hard drive from Mr Philip Edman. The laptop had been issued to Mr Edman by the Department, and contained emails from when Mr Edman was a member of the Legislative Council.[7]
[7] Statement of claim [18] ‑ [19].
On 4 September 2019, after the release of a report of the Committee on Procedure and Privileges, which recommended that the Legislative Council should order the Commission to produce the seized laptop, the Commission delivered the seized laptop and external hard drive to the Clerk.[8] The Legislative Council made the recommended order on 5 September 2019.[9]
The Committee on Procedure and Privileges' Non‑Production Order
[8] Statement of claim [20] ‑ [21].
[9] Statement of claim [22].
On 10 September 2019, the Commission served two Production Notices (the Fourth and Fifth Notices) on the Clerk pursuant to s 95(1) of the Corruption, Crime and Misconduct Act. The Fourth and Fifth Notices required the Clerk to produce specified records and things 'save and except for any content which is determined by the [Committee on Procedure and Privileges] to be subject to parliamentary privilege'. The records or things sought were confidential email data and documents of three former members of the Legislative Council and their staff, and a seized laptop of a former member, Mr Edman, and its external hard drive.[10]
[10] Statement of claim [23].
On 25 September 2019, the Legislative Council resolved that the Clerk was directed not to comply with the Fourth and Fifth Notices pending:
(a)both the outcome of any proceedings concerning the validity of the Departmental or the [Committee on Procedure and Privileges] Production Notices, and an assessment of parliamentary privilege by the [Committee on Procedure and Privileges] with respect to those notices; or
(b)further direction from the [Committee on Procedure and Privileges] taking account of legal advice,
(the 'Non‑Production Order').[11]
[11] Statement of claim [24].
The Attorney General initially contended that the Legislative Council did not have power or authority to make the Non-Production Order.[12] That plea was later amended to the more hypothetical plea that the Legislative Council lacked power to make 'an order in terms of' the Non-Production Order, and the prayer for relief was amended accordingly. The plea that the Non-Production Order is not legally valid was not changed.[13]
Relief
[12] Statement of claim [25(b)].
[13] Statement of claim [26].
The prayer for relief is not, however, confined to the validity of the Non-Production Order (or an order in those terms). The Attorney General seeks the following declaratory relief regarding the operation of the Parliamentary Privileges Act, the proper construction of s 1(b) of that Act and Art 9 of the Bill of Rights 1689 - in effect reproducing par 25 of the statement of claim:
A.A declaration that the Parliamentary Privileges Act 1891 (WA) does not confer any power or authority upon the Legislative Council of the Parliament of Western Australia to order the Clerk not to produce (at all or for a specified period) a document which is not the subject of parliamentary privilege, in answer to a compulsory process issued pursuant to a statutory authority by an investigative agency investigating serious or criminal misconduct.
AB.A declaration that on a proper construction of section 1(b) of the Parliamentary Privileges Act and article 9 of the Bill of Rights 1689, the Parliamentary Privileges Act does not confer any privilege, immunity or power upon the Legislative Council by which records and information of and related to the transaction of parliamentary business are protected from all coercive production for, relevantly, examination or use outside Parliament, for a purpose for which that coercive production is purportedly required; and / or
AC.A declaration that on a proper construction of section 1(b) of the Parliamentary Privileges Act and article 9 of the Bill of Rights 1689, no proceedings in Parliament are impeached or questioned by a requirement that a member, or other person in possession of documents produce:
(i)any documents required by a search warrant issued by police or similar authority; or
(ii)any documents required by a statutory process issued by the Corruption and Crime Commission pursuant to section 95 of the Corruption, Crime and Misconduct Act; and / or
AD.A declaration that on a proper construction of section 1(b) of the Parliamentary Privileges Act and article 9 of the Bill of Rights 1689, the Parliamentary Privileges Act does not confer any privilege, immunity or power preventing a member, or other person in possession of documents which are 'proceedings in Parliament', from having to produce any non-privileged documents from a set of documents which might contain some privileged and some non-privileged documents unless and until the Legislative Council, its members or its committees have determined which documents are the subject of the Parliamentary Privilege against Investigation; and / or
AE.Alternatively, a declaration that on a proper construction of section 1(b) of the Parliamentary Privileges Act and article 9 of the Bill of Rights 1689, the Parliamentary Privileges Act only confers a privilege, immunity or power preventing a member, or other person in possession of documents which are 'proceedings in Parliament', from having to produce any non-privileged documents from a set of documents which might contain some privileged and some non-privileged documents to the extent that the Legislative Council, its members or its committees requires a reasonable time to determine which documents are the subject of the Parliamentary Privilege against Investigation; and / or
AF.A declaration that the Legislative Council does not have the power to give a direction to an officer of the Legislative Council not to produce at all, alternatively within a reasonable time, a record, or a thing containing a record, to the Corruption and Crime Commission, in response to a notice issued by the Corruption and Crime Commission pursuant to section 95 of the Corruption, Crime and Misconduct Act which excludes records which are the subject of any parliamentary privilege; and / or
B.A declaration that it is outside the power or authority of the Legislative Council and not legally valid for the Legislative Council to make an order which directs the Clerk not to comply with a notice issued by the Corruption and Crime Commission pursuant to section 95 of the Corruption, Crime and Misconduct Act, where:
(a)the notice seeks production of data or documents from the Clerk by a stipulated time; but
(b)the notice excepts from production by the Clerk any content determined by or on behalf of the Legislative Council to be subject to parliamentary privilege, pending an assessment of parliamentary privilege by or on behalf of the Legislative Council or any further direction made by or on behalf of the Council.
Paragraphs A, AF and B are apparently confined to a Non‑Production Order, although not specifically the order of 25 September 2019. The other paragraphs of the prayer for relief are so general as to apply to all notices issued by the Commission, and are not apparently confined to the five Notices set out in the statement of claim. Paragraph AC would extend the declaratory relief to documents obtained on police search warrant.
The Defence
The privileges
The President pleads detailed contentions regarding the privileges, immunities and powers to be held, enjoyed and exercised by the Legislative Council and its members. In particular, the President pleads that on the proper construction of s 1, s 4, and s 5 of the Parliamentary Privileges Act the Legislative Council is empowered to retain possession or custody of any record or thing produced to it pursuant to an order made under s 4 and s 5, 'including … for the preservation and protection of Parliamentary Privilege and determination whether records are the subject of Parliamentary Privilege'.[14]
[14] Defence [6] - [10].
The President further pleads that the Legislative Council has inherent power to manage and control its own affairs, administration and functions, including power to authorise an officer of the Legislative Council, as its agent, to receive and retain custody of a record or thing produced to the Legislative Council and to give directions to such officer with respect to that record or thing, including a direction not to produce it to another person.[15]
Custody of email accounts
[15] Defence [11].
The President denies that the parliamentary email accounts of members of the Parliament have been in the possession of the Department of Premier and Cabinet (and therefore the State), but admits that the email accounts have been managed by the Department and that there are no guidelines, protocols or other arrangements agreed by the members of Parliament and the Director General in respect of the disclosure of material from parliamentary email accounts to the Commissioner or any other investigative body.
In particulars, the President admits that the Department had control of and the means of access to the accounts, subject to the Legislative Council's power and right to determine the control and use of those records as regards matters of parliamentary privilege. The particulars further clarified that the President's contention is that 'the parliamentary email accounts were not capable of being legally possessed because of the nature of the email accounts and the information they contained and that, in any event, the Department had no presently relevant legal right, as against the Legislative Council, with respect to those accounts and records'.[16]
[16] Particulars Response 2.
The President pleads that neither the Department nor the State is empowered or entitled to:
(a)produce to the Commission any record of thing which is the subject of parliamentary privilege,
(b)produce to the Commission any record or thing as to which a determination as to whether they are the subject of parliamentary privilege would first be required; or
(c)purportedly determine or authorise any other person to purportedly determine whether any record or thing is the subject of parliamentary privilege.[17]
Production pursuant to the First, Second and Third Notices
[17] Defence [13].
The President denies that the First, Second, or Third Notice excepted any documents which were the subject of parliamentary privilege.[18]
[18] Defence [17].
The President pleads that classes of documents included in the First, Second and Third Notices included records which were the subject of parliamentary privilege.[19]
[19] Defence [19].
Because of the challenge to par 20 and to the amendment, I will set out pars 20 and 20A (as amended) in full:
20As to paragraphs 13, 14 and 15 of the statement of claim:
(a)the Director General or the State Solicitor's Office produced documents to the Commission on 22 July 2019;
(b)those documents were produced in purported compliance with the First and Second Notices;
(c)it is not admitted that the Director General produced any documents to the Commission in response to the Third Notice;
(d)prior to any records being produced to the Commission, at the request of the Director General, staff of the State Solicitor's Office purportedly determined which of the records specified in three notices were the subject of Parliamentary Privilege and those records were excluded from the records produced to the Commission;
(da)the Commission participated, alternatively, acquiesced in the process pleaded in paragraph 20(d) thereby preventing the Legislative Council from exercising its power, which had been unreservedly acknowledged by the Commission, to determine which of the records specified in the notices were the subject of Parliamentary Privilege, so that those records, as determined by the Legislative Council, were protected from production in purported response to the notices;
(d)Otherwise those paragraphs are denied.
20AThe Commission received the records produced as pleaded in paragraph 20 above, in circumstances where:
(a)the classes of records specified in the First and Second Notices included records which were the subject of Parliamentary Privilege, as pleaded in paragraph 19 above;
(b)it was and is for the Legislative Council to determine whether any records of its former members and their former staff were or are the subject of Parliamentary Privilege as pleaded in paragraph 9(b) above;
(c)no determination as to whether any of the records specified in the First and Second Notices were the subject of Parliamentary Privilege had been made by the Legislative Council and instead a purported determination had been made by staff of the State Solicitor's Office.[20]
[20] The amendments are underlined.
The President admits that the Director General produced documents to the Committee on Procedure and Privileges in August 2019, but pleads that they were copies of the documents produced to the Commission in response to the First and Second Notices. The President pleads that the First and Second Notices were invalid and the documents were produced in circumstances where no determination had been made by the Legislative Council as to which of them were the subject of parliamentary privilege.[21]
Production to the Committee on Procedure and Privileges
[21] Defence [21] - [22].
The President pleads that by its order of 5 September 2019, requiring the Commission to produce the seized laptop and copies of data to the Clerk, the Legislative Council directed and authorised the Clerk to hold those things as agent for and subject to the direction of the Legislative Council.[22]
The Fourth and Fifth Notices
[22] Defence [25].
The President pleads that the Fifth Notice required production of 'some of the records the subject of the First and Second Notices which the Director General had produced to the Committee on Procedure and Privileges on 23 August 2019'.[23] The President further pleads that the documents produced by the Director General on 23 August 2019 'included copies of those documents already produced by the Director General to the Commission, purportedly pursuant to the First and Second Notices and in the circumstances pleaded in paragraph 20 and 20A'.[24] The President contends that the Fourth and Fifth Notices 'included records which were the subject of Parliamentary Privilege'.[25]
[23] Defence [26(c)]. Amendments are underlined.
[24] Defence [26(d)]. Amendments are underlined.
[25] Defence [27].
The amendment to the defence introduced par 38A, which pleads that in receiving records produced by or on behalf of the Director General, the Commission acted in contravention of s 3(2) of the Corruption, Crime and Misconduct Act and the receipt was invalid in that:
(a)those notices purported to require production of specified records which included records which were the subject of Parliamentary Privilege;
(b)a determination as to which of those specified records was or were the subject of Parliamentary Privilege would first be required in order to establish which, if any, of those records the Commission could be empowered to require the Director General and the Clerk to produce;
(c)such a determination could only be lawfully made by the Legislative Council and no such determination had been made; and
(d)it related to matters determinable by a House of Parliament, namely the matters pleaded in paragraph 35 above, in that the records received were records as to which subparagraphs (b) and (c) above applied.
No justiciable issue
The President pleads that:
Paragraph 25(a) of the statement of claim raises no justiciable issue, in that it relates to an unspecified compulsory statutory process, the legal effect, if any, of which with respect to the matters pleaded in paragraphs 6 to 10 above and to records, and things containing records, which are or may be the subject of Parliamentary Privilege, is unspecified.[26]
[26] Defence [28].
The plea is not an allegation of material fact. Other than the contention that par 25(a) raises no justiciable issue, I am not sure that I fully understand what the plea means.
Contentions about parliamentary privilege
In pars 34 ‑ 36, the President pleads a series of contentions regarding parliamentary privilege and the effect of s 3(2) of the Corruption, Crime and Misconduct Act. I have reworded the contentions for clarity, but have attempted to not alter their meaning:
(1)By s 3(2) of the Corruption, Crime and Misconduct Act
a.a power, right or function conferred under the Act is not to be exercised if the exercise would relate to a matter determinable by a House of Parliament;
b.a power, right or function conferred under the Act is not to be exercised to the extent that the exercise would relate to a matter determinable by a House of Parliament.[27]
[27] Defence [34].
(2)The following matters are determinable by a House of Parliament:
a.whether a particular record or information is the subject of parliamentary privilege;
b.the occasion and manner of enforcement of parliamentary privilege in respect of a particular record or information; and
c.whether any coercive production for examination or use of a particular record or information outside Parliament constitutes contempt of Parliament.[28]
[28] Defence [35].
(3)The Commission has no power to require the production of records or information the subject of parliamentary privilege.[29]
[29] Defence [36(b)].
(4)The Commission has no power to require the Legislative Council or any Committee of the Legislative Council to determine whether any record or information is the subject of parliamentary privilege.[30]
[30] Defence [36(c)].
(5)The Commission has no power to authorise or permit any other person to make a determination of parliamentary privilege.[31]
[31] Defence [36(c)].
(6)A notice served by the Commission under s 95 of the Corruption, Crime and Misconduct Act does not have effect to require production of records which are the subject of parliamentary privilege.[32]
(7)The Commission is prohibited from exercising its power under s 95 of the Corruption, Crime and Misconduct Act to require production of records 'which include records which are the subject of Parliamentary Privilege'.[33]
(8)Where a determination must first be made as to whether any of the records is the subject of parliamentary privilege:
a.a notice under s 95 does not have effect to require production;
b.a notice under s 95 purporting to require production is invalid; and
c.the Commission is prohibited from serving a notice under s 95.[34]
(9)The Commission has no power to receive records produced under an invalid notice.[35]
(10)The Commission is prohibited from exercising its powers to receive records produced under an invalid notice. [36]
[32] Defence [36(d)].
[33] Defence [36(e)].
[34] Defence [36(f)], [36(h)].
[35] Defence [36(i)].
[36] Defence [36(i)].
All of the records which were the subject of the First, Second, Third, and Fifth Notices, and some of the records on the device the subject of the Fourth Notice, were from parliamentary email accounts of former members of the Legislative Council and their electorate staff. The Legislative Council had to first determine whether they were privileged before the Commission could require the Director General or the Clerk to produce them.[37]
[37] Defence [37].
Based on those contentions, the President pleads that:
(1)The First, Second, Third, Fourth and Fifth Notices were invalid.[38]
(2)The purported exercise of power by the Commission in serving each Notice was invalid.[39]
(3)The purported exercise of power by the Commission in receiving records produced by or on behalf of the Director General as a result of the First and Second Notices was invalid.[40]
[38] Defence [38] and [39].
[39] Defence [38] and [39].
[40] Defence [38A].
In each case, the invalidity is pleaded to be because:
(1)the notice purported to require production of specified records which included records the subject of parliamentary privilege;
(2)the Legislative Council had to first determine which of those records were the subject of parliamentary privilege;
(3)the exercise of power by the Commission related to matters determinable by a House of Parliament; and
(4)the notice did not confine the specified records to those which the Commission was authorised to require production of.
The President denies the allegation that the Non-Production Order is not legally valid.[41]
The Particulars
[41] Defence [2].
The President does not allege, despite using the expression 'purported determination', that the actions of the State Solicitor's Office had or claimed to have any legal effect in determining whether any documents were the subject of privilege. In response to requests for particulars, filed 18 December 2019, the President stated that the 'purported determination' by staff of the State Solicitor's Office did not have any 'conclusive or binding effect in actually determining whether any documents were the subject of Parliamentary Privilege', but had the effect that:
(a)the Commission obtained production of records, under invalid notices, for examination and use, when it was not entitled to do so; and
(b)the Legislative Council was denied the opportunity to exercise its acknowledged power to determine which of the records specified in the notices were the subject of parliamentary privilege so that those records were protected from production if and when any records were produced in purported response to the invalid notices.[42]
The Reply
[42] Particulars Request 3.
On 1 November 2019, the Attorney General filed a reply. It is largely, although not exclusively, directed to the proper construction of the Parliamentary Privileges Act and the extent of the privileges, powers and immunities of the Parliament.
The Attorney General pleads:
As to paragraphs 13 and 14 of the Defence, the plaintiff:
(a)says that, by the conduct of the Parliament of Western Australia (as alleged in paragraphs 8(a), 8(b) and 9 of the Statement of Claim) in permitting the Department of Premier and Cabinet, and the State:
(i)to manage the parliamentary email system;
(ii)to have custody and possession of parliamentary emails; and / or
(iii)to do these things, without the Parliament agreeing with the Director General any guidelines, protocols or other arrangements in respect of the disclosure of material from parliamentary email accounts to the Commission or any other investigative agency,
the Parliament of Western Australia impliedly consented to the proper officer of the Department of Premier and Cabinet responding to any coercive notice which he or she received to produce documents within the time specified in the notice (including a notice issued by the Commission pursuant to section 95 of the Corruption, Crime and Misconduct Act), without the threat of being in contempt of Parliament or in breach of the notice, subject to taking all reasonable steps to protect any parliamentary privilege in respect of documents sought;
(b)says further that, in circumstances where a House of Parliament is unable to determine the existence of parliamentary privilege in respect of parliamentary emails within the time permitted for the Director-General as the proper officer to respond to a notice issued by the Commission pursuant to section 95, the Director General is entitled to take such advice as the Director General considers necessary to protect any parliamentary privilege which may attach to documents sought by the Commission pursuant to section 95;[43]
[43] Reply [11].
The Attorney General further pleads in reply that the Director General:
(b)…sought the advice of the State Solicitor's Office before [producing documents to the Commission], in circumstances where the Legislative Council was unable to determine the existence of parliamentary privilege in respect of the documents described in the First and Second Notices within the time permitted for the Director-General as the proper officer to respond to these Notices
(c)…was entitled to seek and act upon the advice of the State Solicitor's office…
(d)…reasonably took such steps as he considered were necessary to prevent any documents which might be within the meaning of 'proceedings in Parliament', as that term is used in article 9 of the Bill of Rights, being produced to the Commission,[44]
[44] Reply [14].
The applications
The Attorney General applies to strike out the defence in part
By applications filed on 14 and 18 February 2020, the Attorney General applies to strike out parts of the defence. The combined effect of the applications is that the Attorney General seeks the following orders:
1.Paragraphs 20(d), 20(da), and the words '…and instead a purported determination had been made by staff of the State Solicitor's Office' in paragraph 20A(c), of the [President's] amended defence dated 7 February 2020 are struck out pursuant to Order 21 rule 3 of the Rules of the Supreme Court 1971 for the reasons that they:
a.do not disclose a reasonable defence to the action;
b.are embarrassing and will prejudice the hearing of a fair trial; and
c.are otherwise an abuse of process of the Court.
2.All of the amendments contained in the Amended Defence are struck out pursuant to Order 21 rule 3 the Attorney General of the Rules of the Supreme Court 1971 for the reason that they do not disclose a reasonable defence to the action.
3.Paragraph 39(da) of the Amended Defence is struck out pursuant to Order 21 rule 3 of the Rules of the Supreme Court 1971 for the reasons that it:
a.does not disclose a reasonable defence to the action; and
b.is embarrassing and will prejudice the hearing of a fair trial.
The Attorney General submits that the only substantive relief sought in the proceedings are declarations about the scope of the Legislative Council's powers, immunities and privileges, including the specific declaration that the Non-Production Order made on 29 September 2019 was not legally valid.
Counsel for the Attorney General described some of the declarations sought ‑ as I understand it, those in pars AB to AF of the statement of claim ‑ as 'counter‑declarations' to meet the construction of the Parliamentary Privileges Act advanced by the President.
The substance of the Attorney General's case is that the Non-Production Order was not legally valid because the Legislative Council has no privilege, immunity or power to prevent records and information related to parliamentary business from being produced to the Commission to be used in an investigation (Investigation Privilege); or to prevent the production of non-privileged documents at all, or after a reasonable time, unless and until the Council has determined which documents, within a wider set of documents, contained records and information related to parliamentary business (Determination Privilege).
The President approaches the matter from a different perspective. The Corruption, Crime and Misconduct Act does not affect the privileges of the Legislative Council, and the powers of the Commission are not to be exercised if, or to the extent that exercise would relate to a matter determinable by the Legislative Council. On the President's case, it is necessary to determine, as a question of fact, the manner in which the Commission's powers were exercised (including what was done by the Director General in response to the First, Second and Third Notices) and whether that exercise was valid. In considering whether the powers of the Commission were validly exercised, the President addresses both the issue of the Notices, and the receipt of records produced pursuant to them.
The challenge to pars 20(d), 20(da) and 20A(c)
The challenged paragraphs are, in effect, two sides of the same event or conduct: the production of the records to the Commission and their receipt by the Commission.
In pars 20(d) and 20(da) the President pleads as a material fact that the 'purported determination' of which records were privileged was made by the State Solicitor's Office, before the Director General produced those records to the Commission. Specifically, the President pleads that the purported determination was at the request of the Director General, and that the Commission 'participated, alternatively, acquiesced in the process', thereby preventing the Legislative Council from exercising its power to determine which of the records were protected from production.
The term 'purported determination' is unfortunate. 'Purported' has a common usage in a legal context, consistent with its dictionary definition meaning to profess or claim.[45] It is also commonly used to refer to an instrument or decision that professes to have legal effect but is made without power, or fails to comply with necessary formalities. No party claims that the advice of the State Solicitor's Office had legal effect as a determination of privilege. As I understand the President's pleading, and the argument on this application, the President does not allege that the State Solicitor's Office professed or claimed to make a determination of privilege having any legal effect.
[45] See, Black's Law Dictionary (Garner Ed), 11th Edition; Property Law Act 1969 (WA) s 9(4) and Dean v Lloyd (1991) 3 WAR 235, 252; Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 128 ALR 149, 155.
Paragraph 20A(c) repeats the plea that no determination had first been made in relation to the receipt of the records by the Commission.
The first question on the Attorney General's application is whether pars 20(d), 20(da) and 20A(c) should be struck out as failing to disclose a reasonable defence to the action.
The Attorney General submits that the only issues he raises in the proceedings are legal questions of construction.[46] He makes no allegation about the legal validity of the Notices, whether they are effective, or whether the Director General was obliged to produce documents to the Commission. There is no counterclaim.
[46] The submission apparently overlooks the plea in statement of claim [26] that the Non-Production Order is invalid.
As a result, the Attorney General submits that the matters raised in the challenged paragraphs are irrelevant to any matter raised in the proceedings.
The President submits that the declarations sought by the Attorney General are premised on a valid notice issued by the Commission under s 95 of the Corruption, Crime and Misconduct Act, or some other valid coercive process. The President submits that the allegations pleaded in each of the challenged paragraphs are relevant to the facts which must be found in determining whether the notices issued by the Commission under s 95 were valid.
To ensure a basic requirement of procedural fairness, a pleading must state the case sufficiently clearly to allow the other party a fair opportunity to meet it.[47] Pleadings must define with clarity and precision the issues or questions which are in dispute between the parties and fall to be determined by the court.[48]
[47] Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286 - 287; Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490, 517; Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 [24] ‑ [26].
[48] Nyoni v Patterson [2012] WASCA 171 [36] ‑ [38].
The defence seeks to ground this matter factually. The Attorney General may seek to raise matters of construction only, but that does not mean that those are the only issues which can properly be raised. Declarations of right are in the nature of final relief, are binding on the parties and operate as res judicata or issue estoppel. 'Such declarations can only be made by reference to some concrete situation of controversy defined by facts found by the court or agreed by the parties'.[49]
[49] EB 9 & 10 Pty Ltd v Owners Strata Plan 934 [2018] NSWCA 288; (2018) 98 NSWLR 889 [34]; Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 [48] ‑ [49].
It is not necessary for the President to plead a counterclaim for the defence to be entitled to assert that the declarations sought by the Attorney General should not be made. It is, for example, open to the President to argue that the declaration in par A of the prayer for relief would be of no utility and should not be made because it has not been proved that there was a valid notice issued by the Commission under s 95 of the Corruption, Crime and Misconduct Act.
Further, even on a more general level, the allegations about the 'purported determination' of privilege cannot be divorced from the President's pleaded case in defence par 36, regarding the operation of s 3(2) of the Corruption, Crime and Misconduct Act.
The court will only strike out a defence in a clear case.[50] The challenged paragraphs, in my opinion, give notice of a case which the President is entitled to bring in response to the allegation that the Non‑Production Notice of 25 September 2019 was made outside power.
[50] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 ‑ 130; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91.
The Attorney General applies to strike out on the alternative ground that the pleas may prejudice, embarrass or delay the fair trial of the action, or are otherwise an abuse of process.[51]
[51] See Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(c), (d).
A pleading must put the opposing party properly on notice of the real substance of the claim made against it so that it knows what case it has to meet. A pleading is embarrassing if it fails to serve that function by raising immaterial or irrelevant issues, or failing to confine the issues or state the case of the party in question with reasonable particularity.[52] In particular, a defendant may not plead irrelevant facts, opinions, arguments, reasons or rhetoric under the guise of background facts or narrative. The pleading of such matters may improperly enlarge the ambit and range of discovery and make it difficult to determine the admissible evidence which a party is entitled to adduce at trial.[53]
[52] Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998) 8 ‑ 9. And see Armidale Regional Council v Vorhauer [2019] NSWSC 1153 [29] ‑ [31]; Gunns Ltd v Marr [2005] VSC 251 [14] ‑ [15]; Shelton v National Roads & Motorists Association Ltd (2004) 51 ACSR 278 [18].
[53] Weeks v Nationwide News Pty Ltd [No 2] [2019] WASC 44 [27]; and see Tchenguiz v Thornton UK LLP [2015] EWHC 405 (Comm) [1].
The Attorney General submits that the allegation that the State Solicitor's Office 'purportedly determined' which records were subject to parliamentary privilege is an allegation that the State Solicitor's Office attempted to determine that question in a conclusive or binding way. The Attorney General submits that the pleading is inconsistent with the particulars of the allegation, and embarrassing in the legal sense. The Attorney General submits that the allegation should be struck out and re-pleaded in accordance with the particulars.
As I understand the defence, read with the particulars, any apparent inconsistency has been resolved. The President is not alleging that the advice given by the State Solicitor's Office 'had any conclusive or binding effect in actually determining whether any documents were the subject of parliamentary privilege'.[54] Nor does the President allege that the advice (to use a neutral term) of the State Solicitor's Office claimed or professed to be conclusive or binding. But the President asserts that the effect of the 'purported determination' was that:
(a)the Commission obtained production of records, under invalid notices, for examination and use, when it was not entitled to do so; and
(b)the Legislative Council was denied the opportunity to exercise its acknowledged power to determine which of the records specified in the notices were the subject of parliamentary privilege so that those records were protected from production if and when any records were produced in purported response to the invalid notices.[55]
[54] Particulars Response to Request 3.
[55] Particulars Response to Request 3.
The Attorney General now knows the case he has to meet. If the pleading was ambiguous or its meaning uncertain, because of the use of the expression 'purportedly determined', that has been cured.
The Attorney General further submits that the allegations are the basis for applications for discovery, including non-party discovery, to ascertain factual matters related to the conduct of the State Solicitor's Office. The Attorney General submits that the pleading is being used as a basis for obtaining factual material which is irrelevant and may lead to unnecessary interlocutory processes and factual disputes.
To this there are two answers. First, if the President may properly put in issue whether the issue of the Notices and, in particular, the receipt of records was a valid exercise of power by the Commission, then these pleadings raise matters of fact which will fall for determination.
Second, quite apart from the challenged pleading in the defence, the process followed by the Director General in seeking advice from the State Solicitor' Office has been put in issue.
The Attorney General pleads, in statement of claim pars 14 ‑ 15, the facts relating to the Director General seeking and obtaining advice before producing documents and records to the Commission.
The Attorney General pleads in par 11 of the reply that the Parliament impliedly consented to the Director General responding to a notice from the Commission 'subject to taking all reasonable steps to protect any parliamentary privilege in respect of the documents sought', and that the Director General 'is entitled to take such advice as the Director General considers necessary to protect any parliamentary privilege which may attach to documents sought by the Commission pursuant to section 95'.
In par 14 of the reply, the Attorney General:
(b)says that the Director General sought the advice of the State Solicitor's Office before [producing documents to the Commission], in circumstances where the Legislative Council was unable to determine the existence of parliamentary privilege in respect of the documents described in the First and Second Notices within the time permitted for the Director-General as the proper officer to respond to these Notices;
(c)says that the Director General was entitled to seek and act upon the advice of the State Solicitor's office in the circumstances alleged in subparagraphs 11(a) and 11(b) above;
(d)says that the Director General reasonably took such steps as he considered were necessary to prevent any documents which might be within the meaning of 'proceedings in Parliament', as that term is used in article 9 of the Bill of Rights, being produced to the Commission;
The fact that the Director General sought advice is not in dispute, but the steps taken by the Director General in seeking advice are factually relevant. The defence, read with the particulars, does not improperly enlarge the ambit of either discovery or evidence so as to prejudice or embarrass the fair trial of the proceedings.
That, in my opinion, is a sufficient basis to dismiss the contention that the challenged pars in 20 and 20A of the statement of claim should be struck out.
The challenge to pars 26(d), 38A, and 39(da)
The facts pleaded in pars 20 and 20A are the foundation for the plea in par 26(d) in relation to the validity of the Fourth and Fifth Notices that were served on the Clerk, requiring him to produce the email records and documents which had originally been sought by the First and Second Notices. The President pleads that the documents produced by the Director General to the Committee on Procedure and Privileges on 23 August 2019 included copies of those documents already produced by the Director General to the Commission. In par 27 the President pleads that those records included records which were the subject of parliamentary privilege.
Those facts also found the plea in par 38A that the receipt of the records by the Commission was invalid because no lawful determination had first been made of which records were subject to parliamentary privilege.
Finally, in par 39(da), the President pleads as a ground of invalidity of the Fifth Notice, and the invalidity of the exercise of power in serving that Notice, that it required production of copies of records which had been produced to and received by the Commission when that receipt was invalid.
For essentially the same reasons I have given in relation to pars 20 and 20A, the challenge to pars 26(d), 38A and 39(da) should fail. The power to make a declaration should not be directed to answering hypothetical questions.[56] The President seeks to raise factual matters which, on her pleaded case, should be determined if the court is to make a declaration based on findings as to what has actually occurred.
[56] University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1, 10.
The strike out applications should be dismissed.
The President applies for discovery from the Attorney General
By two applications filed 18 December 2019 and 10 February 2020, the President applies for orders that:
The [Attorney General][57] give discovery on affidavit of
[57] See Rules of the Supreme Court O 26 r 4(4) for discovery by an officer of the State.
1Copies of all communications between 21 April and 22 July 2019, including but not limited to letters, emails, telephone notes and file notes, between any of the following in relation to the First, Second or Third Notices issued by the Corruption and Crime Commission (as defined in the defence):
a.the Attorney-General;
b.the State Solicitor;
c.any staff member of the State Solicitor's Office (including contract or temporary staff);
d.the Commissioner of the Corruption and Crime Commission;
e.any staff member of the Corruption and Crime Commission;
f.the Director General of the Department of Premier and Cabinet; and
g.any staff member of the Department of Premier and Cabinet.
2Documents comprising, recording or referring to:
a.the consideration given by the Director General as to what steps were necessary to take, as pleaded in paragraph 14(d) of the reply.
b.documents or things that were so considered by the Director.
c.the steps in fact taken by the Director General in relation to the First or Second Notices.
d.the advice of the plaintiff, referred to in the letter from the Director General to the President dated 4 July 2019 described in paragraph 4(a) of the particulars of the allegation in paragraph 14(d) of the reply.
e.the advice of the State Solicitor, referred to in the letter from the Director General to the [President] dated 4 July 2019 described in paragraph 4(b) of the particulars of the allegation in paragraph 14(d) of the reply.
3Documents comprising or recording restrictions, in whatever form, formal or informal, placed on access by any person or any particular persons to electronic records of parliamentary email accounts of members or former members of the Legislative Council and their staff or former staff.
To the extent that the first order appears to seek internal records of the Commission, it assumes that documents of the Commission are within the possession, custody or power of the Attorney General. I am not required to determine whether that is correct. Any order made will be expressed as confined to documents that are, or have been, in the possession, custody or power of the Attorney General.
The principles relating to an application for discovery
A party does not have a strict entitlement to an order for discovery.[58] The power to order discovery is discretionary. But discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice.[59] Subject to the rules of privilege, there is a public interest in having available all evidence relevant to the issues in litigation.[60] The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings.[61]
[58] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [6].
[59] Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 321.
[60] Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121, 128.
[61] Science Research Council v Nasse [1979] UKHL 9; [1980] AC 1028, 1065.
Subject to discretionary considerations, including those arising out of case management, the question is whether the documents sought relate to any matter in question in the action. In Co‑operative Bulk Holding Ltd v Brookfield Rail Pty Ltd, Edelman J said:
… It is sufficient if the document would either (i) advance a party's case or damage his or her opponent's case, or (ii) lead to a train of inquiry that would either advance a party's case or damage his or her opponent's case. Alternatively, the documents will relate to a matter in question in the proceedings if they contain information which could affect the manner in which a party may decide to conduct proceedings. The assessment of whether documents relate to a matter in question therefore proceeds by reference to the pleadings, the conduct and admissions of the parties, and the nature of the action.[62]
[62] Co-operative Bulk Handling Ltd v Brookfield Rail Pty Ltd [2014] WASC 31 [18].
The case management considerations set out in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) are relevant to the exercise of the discretion to order discovery. Those considerations expressly embody the notion of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking it, having regard to the value, importance and complexity of the subject matter in dispute and the financial position of the parties. Specifically, the court should have regard to the likely relevance and importance of the documents to the issues in the proceeding as well as (to the extent they can be ascertained) the likely time, cost and inconvenience of searching for and disclosing the documents.[63]
Consideration
[63] Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 4] [2009] WASC 17 [13]; Lonsdale Investments Pty Ltd v OM (Manganese) Ltd [No 2] [2009] WASC 253 [5].
The documents sought are relatively confined in that they relate to communications between a limited number of people, over a period of less than four months. The communications sought are recent and should be readily identifiable.
There is no evidence regarding the likely time, cost and inconvenience of discovery of the categories of documents sought; and no evidence that the costs of the procedure would not be proportionate to the financial position of the parties, all of which are publicly funded bodies. The legal issues in dispute between the Attorney General and the President are complex and important. The factual issues are more confined and relatively straightforward.
The critical factor is whether the discovery sought is reasonably required for the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
The dispute regarding discovery is a further demonstration of the contrary approaches of the Attorney General and the President to this action. The Attorney General seeks declarations as to the proper construction of the Parliamentary Privileges Act. The President contends that the questions to be determined include whether, on the proper construction of the Corruption, Crime and Misconduct Act, the Notices issued by the Commission lawfully required the production of the documents that were produced and whether the documents were received by the Commission in the valid exercise of a power under the Corruption, Crime and Misconduct Act.
The President also refers to the issues raised by pars 11 and 14 of the reply that the Director General reasonably took such steps as he considered were necessary to prevent privileged material being produced to the Commission. If those are material facts, and they are pleaded to be, documents relevant to the steps taken are discoverable.
As I have found in the strike out application, the President should not be shut out from arguing the case she wishes to present. The discovery sought is relevant to that case. It is relevant also to the issue of 'reasonable steps', raised by the Attorney General's reply.
No question has been raised about the reasonableness or proportionality of the scope of discovery sought.
The President applies for non-party discovery from the Director General
The President applies for an order that the Director General give discovery on affidavit of:
1all documents constituting or evidencing communications, or records of communications, between 12 April and 22 July 2019, including but not limited to letters, emails, telephone notes and file notes, between any of the following in relation to the First and Second Notices issued by the Commission: the Director General, any other staff member of the Department of the Premier and Cabinet, the Attorney General, the State Solicitor, any staff member of the State Solicitor's Office (including contract or temporary staff), the Commissioner, and any staff member of the Commission;
2all documents comprising or recording matters or things considered, and steps taken, by the Director General in relation to the arrangements that resulted in production of documents to the Commission by or on behalf of the Director General;
3documents recording restrictions, in whatever form, formal or informal, and whether internal to the Department or external, placed on access by any person or any particular persons to those parliamentary email account records.
Under the Supreme Court Rules O 26A r 5, the President may apply for non-party discovery from the Director General if there are reasonable grounds for believing that the Director General had, has, or is likely to have had, possession of documents that relate to any matter in question in the action.
The application is supported by the affidavit of Kirsty Honor Louise Sutherland, sworn 12 February 2020. I am satisfied that there are reasonable grounds for believing that the Director General has or had possession of documents coming within the terms of the request.
For the reasons given in relation to the general discovery action, the documents sought are relevant and discovery should be ordered.
The President applies for further and better particulars of the statement of claim and reply
The last of the applications before the court is an application by the President for further and better particulars. The President seeks an order that:
The [Attorney General] file and serve the following further and better particulars of the Amended Statement of Claim (ASOC) dated 1 November 2019 and Reply dated 1 November 2019 within 14 days of the date of this Order:
1As to paragraph 14 of the ASOC:
a.the usual particulars of the alleged seeking of legal advice by the Director General.
b.the usual particulars of the legal advice allegedly obtained from the State Solicitor's Office.
2As to paragraph 14(b) of the Reply:
a.the usual particulars of the alleged seeking of legal advice by the Director General.
b.the usual particulars of the legal advice allegedly obtained from the State Solicitor's Office.
3As to paragraph 14(d) of the Reply:
a.the usual details of the Director General's consideration as to what steps were necessary to take.
b.the usual details of the steps allegedly reasonably taken by the Director General.
where:
a.if the plaintiff is required to give the usual particulars of any agreement, transaction, retainer, statement, advice, representation, recommendation, negotiation, communication, report, matter or thing, the plaintiff is required to state whether the same was wholly or partly in writing, oral or to be implied, and:
i.in so far as it was in writing, identify the document or documents constituting it and say in whose possession each such document now is and where and when each such document may be inspected. If the original document or documents have been lost or destroyed, say when and how each such document was lost or destroyed and where a copy may be inspected. If neither the original nor a copy is available for inspection, state why and give the substance of each document;
ii.in so far as it was oral, state the substance of each conversation or conversations constituting it and say where, when and between which persons each such conversation took place and whether it was in person, by telephone or otherwise;
iii.in so far as it was to be implied, state the acts, facts, matters, circumstances and things by reason of which it was to be implied, and the date or dates and the place or places on or at which each occurred; and
iv.in so far as it was constituted wholly or in part by the writing, conversation or act of any person who is not a party to this proceeding, provide full details of the authority of such person or persons to make such writing, engage in such conversation or to do such act; and
b.if the plaintiff is required to give the usual details of any matter or thing, specify (with all relevant dates and places) each and every act, fact, matter, event, happening, occurrence, omission, communication, circumstance or thing relied upon and identify each document relevant to the detail.
Order 20 r 13 of the Supreme Court Rules provides that every pleading must contain the 'necessary particulars' of any claim, defence or other matter pleaded. In Sims v Wran, Hunt J said of particulars:
The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet. The object of particulars is to save expense in preparing to meet a case which may never be put and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing. It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet.[64]
[64] Sims v Wran [1984] 1 NSWLR 317, 321. (Citations omitted)
The comments of Hunt J are consistent with the general function of pleadings, including to furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it.[65]
[65] See Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664.
The first two requests relate to the legal advice sought by the Director General.
The President submits that particulars of the request for legal advice and the advice are 'to enable the [President] to sufficiently understand and meet the [Attorney General's] case that the role of the State Solicitor's Office was to provide legal advice and not to purportedly determine which records were the subject of parliamentary privilege'. I can see no room for doubt that the President sufficiently understands the case that the Director General sought legal advice from the State Solicitor's Office. The issue of whether and how the advice 'purportedly determined' the question of privilege is raised only by the President, not by the Attorney General.
The third request, for particulars of the 'reasonable steps' taken by the Director General, is based on the reply par 14(d). That plea cannot be read out of context. In the statement of claim pars 14 ‑ 15, the Attorney General pleads that the Director General sought and obtained legal advice from the State Solicitor's Office as to whether any documents which might otherwise be the subject of the Notices were subject to privilege, and did not produce to the Commission any documents which he was advised were subject to privilege. In the reply, the Attorney General pleads that the Director General sought the advice of the State Solicitor's Office before producing documents to the Commission, where the Legislative Council could not determine the existence of privilege in the time permitted by the Notices, and that he was entitled to seek and act upon that advice.
The Attorney General pleads, with sufficient particularity, what steps the Director General took.
I would make a further general observation regarding the request, in the light of the general purpose of pleadings and particulars. Requests for particulars of the kind now under consideration are, in my opinion, to be discouraged. In seeking the 'usual particulars' and 'usual details' the request was not directed to understanding the nature of the case that was made by the Attorney General.
The request in pars 1 and 2 is for particulars of the 'alleged seeking of legal advice' and the 'legal advice'. I assume some template has been followed, because there is no other apparent explanation for asking for the 'usual particulars' of any 'any agreement, transaction, retainer, statement, advice, representation, recommendation, negotiation, communication, report, matter or thing.' The Attorney General does not plead anything to require particulars of any request for advice or advice that was 'implied'. Nor does the Attorney General plead anything making it necessary for particulars to be given of the authority of any person, not a party, 'to make such writing, engage in such conversation or to do such act.'
The description of 'usual particulars' with regard to documents, overlaps with and substantially repeats obligations of discovery which require the affidavit of discovery to depose as to any document not then in the party's possession, custody or power when they parted with it and what has become of it.
Conclusion
The Attorney General's applications to strike out paragraphs of the defence, including the amendments most recently made, will be dismissed.
I will allow the President's applications for discovery and non-party discovery.
The President's application for further particulars will be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson6 NOVEMBER 2020
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