Attorney-General (Tas) v Casimaty

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HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

ATTORNEY-GENERAL FOR THE STATE OF

TASMANIA  APPELLANT

AND

GREGORY JOHN CASIMATY & ANOR  RESPONDENTS

Attorney-General (Tas) v Casimaty

[2024] HCA 31

Date of Hearing: 9 April 2024

Date of Judgment: 11 September 2024

H3/2023

ORDER

1.Appeal allowed.

2.Set aside the orders made by the Full Court of the Supreme Court of Tasmania on 4 May 2023 and, in their place, order that the appeal from the orders made by the Supreme Court of Tasmania on 21 February 2022 be dismissed with costs.

3.The first respondent pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of Tasmania

Representation

S K Kay SC, Solicitor-General for the State of Tasmania, with E A Warner for the appellant (instructed by Office of the Solicitor-General (Tas))

B R McTaggart SC with G M O'Rafferty for the first respondent (instructed by Leonard Fernandez Barristers & Solicitors)

S P Donaghue KC, Solicitor-General of the Commonwealth, with E H I Smith and M‑Q T Nguyen for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M J Wait SC, Solicitor-General for the State of South Australia, with J F Metzer for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

A P Berger KC with P M Bindon for the Attorney-General for the Australian Capital Territory, intervening (instructed by ACT Government Solicitor)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GAGELER CJ, GORDON, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ. Section 16(1) of the Public Works Committee Act 1914 (Tas) ("the Act") stipulates conditions precedent to the commencement of a public work proposed to be undertaken by a Tasmanian Government department or State authority. The conditions precedent are that the public work has been referred to and reported upon by a Joint Committee of Members of the Legislative Council and House of Assembly known as the "Parliamentary Standing Committee on Public Works" ("the Committee").

  2. The dispositive question in this appeal is whether observance of those conditions precedent to the commencement of a public work is an obligation that is enforceable by a court. The answer is that it is not.

    Facts and procedural history

  3. The Tasmanian Government Department of State Growth ("the Department") proposed that a new interchange be constructed at a road junction near Hobart Airport where Holyman Avenue and Cranston Parade meet the Tasman Highway. The proposal was referred to and reported upon by the Committee in 2017. The Department subsequently engaged Hazell Bros Group Pty Ltd ("Hazell Bros") to construct a new interchange at the junction.

  4. Mr Casimaty claims to have an interest in land adjacent to Cranston Parade. By writ and statement of claim filed in the Supreme Court of Tasmania in 2020, apparently at a time before Hazell Bros commenced the construction,…

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Details
Case
[2024] HCA 31
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning a dispute over the construction of a public work in Tasmania. Mr Casimaty, a landowner with an interest in adjacent land, alleged that the Department of State Growth's proposed construction of a new interchange contravened section 16(1) of the *Public Works Committee Act 1914* (Tas). This section mandates that public works be referred to and reported upon by the Parliamentary Standing Committee on Public Works before commencement. Mr Casimaty contended that the interchange Hazell Bros Group Pty Ltd was engaged to construct differed materially from the proposal previously reported on by the Committee. The Attorney-General for Tasmania, joined as a defendant, sought to strike out Mr Casimaty's claim, arguing it disclosed no cause of action as there was no justiciable issue before the court, or that adjudication would infringe upon the privilege of the Tasmanian Parliament.

The central legal issue before the High Court was whether the conditions precedent stipulated by section 16(1) of the Act, requiring referral and reporting by the Parliamentary Standing Committee on Public Works, imposed an obligation enforceable by a court. The court was required to determine if a private litigant could bring proceedings to enforce compliance with these statutory conditions, or if such matters fell within the exclusive cognisance of Parliament. This involved considering the principles of parliamentary privilege, the separation of powers, and the concept of justiciable controversies.

The High Court reasoned that the duty imposed by section 16(1) of the Act was predominantly concerned with the internal affairs of Parliament and the accountability of government to Parliament. The court held that adjudicating on allegations of non-compliance with these conditions would necessarily involve the court assuming authority over core institutional aspects of Parliament, thereby contravening the privilege of Parliament and the principle of separation of powers. The court emphasised that the risk of conflicting decisions between the courts and Parliament, and the potential for inefficiency, were strong justifications for maintaining this separation. Consequently, the court concluded that Mr Casimaty's claim fell within the exclusive cognisance of the Parliament of Tasmania and was not a matter for judicial enforcement.

The High Court allowed the appeal, setting aside the orders of the Full Court of the Supreme Court of Tasmania. In their place, the court ordered that the appeal from the Supreme Court of Tasmania be dismissed with costs, and that Mr Casimaty pay the appellant's costs of the appeal to the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders made by the Full Court of the Supreme Court of Tasmania on 4 May 2023 and, in their place, order that the appeal from the orders made by the Supreme Court of Tasmania on 21 February 2022 be dismissed with costs.

3. The first respondent pay the appellant's costs of the appeal to this Court.

Background

Background to the litigation

The dispositive question in this appeal is whether observance of those conditions precedent to the commencement of a public work is an obligation that is enforceable by a court. The answer is that it is not.Facts and procedural history The Tasmanian Government Department of State Growth ("the Department") proposed that a new interchange be constructed at a road junction near Hobart Airport where Holyman Avenue and Cranston Parade meet the Tasman Highway. The proposal was referred to and reported upon by the Committee in 2017. The Department subsequently engaged Hazell Bros Group Pty Ltd ("Hazell Bros") to construct a new interchange at the junction. Mr Casimaty claims to have an interest in land adjacent to Cranston Parade. By writ and statement of claim filed in the Supreme Court of Tasmania in 2020, apparently at a time before Hazell Bros commenced the construction, Mr Casimaty brought a proceeding against Hazell Bros in which he sought a declaration that construction of the new interchange was a public work and an injunction restraining Hazell Bros from commencing construction until a proposal for that public work had been referred to and reported upon by the Committee. The essence of Mr Casimaty's pleaded case was that commencement of the road work that Hazell Bros had been engaged to undertake contravened s 16(1) of the Act in that the road work was different from the proposed road work that had been referred to and reported upon by the Committee in 2017. The pleaded differences were that the interchange Hazell Bros had been engaged to construct: was to cost $46.4 million rather than between $28.08 million and $29.99 million; was not to have connections from the westbound on-ramp to Cranston Parade that would allow only left turn movements; and was to have two roundabouts providing access to Holyman Avenue and Kennedy Drive. By order under s 58(1)(j) of the Supreme Court Civil Procedure Act 1932 (Tas), the Attorney-General for Tasmania was joined as a defendant to the proceeding. Upon being joined as a defendant, the Attorney-General filed an interlocutory application seeking an order that the statement of claim be struck out or that the proceeding be dismissed either because the statement of claim as then amended failed to disclose a cause of action in that there was "no justiciable issue before the Court" or because adjudication by the Supreme Court of issues of fact raised on the pleadings would "offend the principle that parliamentary proceedings are absolutely privileged". The interlocutory application was heard and determined at first instance by Blow CJ.[1] His Honour was persuaded that for the Supreme Court to adjudicate on the existence and significance of the pleaded differences between the road work that Hazell Bros had been engaged to undertake and the proposed road work that had been referred to and reported upon by the Committee in 2017 would necessarily contravene the privilege of the Tasmanian Parliament.[2] His Honour for that reason struck out the statement of claim and dismissed the proceeding.[1]Casimaty v Hazell Bros Group Pty Ltd [No 2] [2022] TASSC 9.[2][2022] TASSC 9 at [32].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GAGELER CJ, GORDON, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ (dissent) EDELMAN J (dissent)
There are strong justifications for the traditional view in circumstances such as these, where the duty in question is predominantly concerned with the internal affairs of Parliament and where Parliament or a committee of Parliament may have chosen to take, or not to take, action. One justification for the traditional view is the avoidance of conflict, such as by different decisions between the courts and Parliament.[145] Another is inefficiency.[146] But in some circumstances of potential concurrent institutional authority, the risk of conflicting decisions or inefficiency might be tolerated. The strongest justification for the traditional view is the corrosive effect of one branch of government assuming authority over core institutional aspects of another branch of government.[147] In such circumstances, references to "comity", "mutual restraint", "mutuality of respect", and "separation of powers"[148] describe the need for the separation, and segregation, of the exercise of power that falls within the cognisance of Parliament from the authority of the courts to exercise judicial power. As a matter concerning the internal affairs of the Tasmanian Parliament and involving a duty owed to the Parliament, this strongest justification applies to the adjudication of an allegation of breach of s 16(1) of the Public Works Committee Act. Mr Casimaty's claim thus falls within the exclusive cognisance of the Parliament of Tasmania.[145]Pickin v British Railways Board [1974] AC 765 at 788; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 334; Halden v Marks (1995) 17 WAR 447 at 463.[146]Leung Kwok Hung v President of the Legislative Council [No 1] (2014) 17 HKCFAR 689 at 702-703 [30].[147]See Lock, "Parliamentary Privilege and the Courts: The Avoidance of Conflict" [1985] Public Law 64 at 65-66.[148]R v Parliamentary Commissioner for Standards; Ex parte Al Fayed [1998] 1 WLR 669 at 670; Wilson v First County Trust Ltd [No 2] [2004] 1 AC 816 at 840 [55]; Buchanan v Jennings (Attorney General of New Zealand intervening) [2005] 1 AC 115 at 117; Burnett, "Parliamentary Privilege—Liberty and Due Limitation" (2019) 24 Judicial Review 107 at 114 [22]. Conclusion The appeal should be allowed with the first respondent to pay the appellant's costs. Orders should also be made setting aside the orders of the Full Court and, in place of those orders, ordering that the appeal from the orders of the primary judge be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.