Barber v State of Victoria

[2012] VSC 166

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2012 01487

GREGORY JOHN BARBER	Plaintiff
v
THE STATE OF VICTORIA	Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 APRIL 2012
DATE OF JUDGMENT:	3 APRIL 2012
CASE MAY BE CITED AS:	BARBER v STATE OF VICTORIA
MEDIUM NEUTRAL CITATION:	[2012] VSC 166

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Practice and Procedure – Application for declaration that the Legislative Council has the power to order production of documents prepared outside Cabinet and considered by Cabinet – Application that the proceeding be reserved for consideration of the Court of Appeal – Supreme Court Act 1986, s 17B(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K. Foley	Christopher Bunnett Lawyers
For the Defendant	Mr C. Horan	Victorian Government Solicitor’s Office

HIS HONOUR:

1. This proceeding is brought by a member of the Legislative Council of the Parliament of Victoria.  The plaintiff seeks a declaration that the Legislative Council has the power to order production of documents prepared outside Cabinet and considered by Cabinet.  The document in question is said to be a report prepared for the Government by the accounting firm Deloitte Tohmatsu concerning the Myki ticketing system. 

1. The Legislative Council in August last year agreed to a motion moved by the plaintiff requiring the leader of the Government in the Upper House to table that document but the Government has refused to produce the report and says that the Legislative Council does not have the power to require production of the report.

1. That very brief summary of the issue involved in this proceeding indicates that it does raise important and interesting constitutional questions.

1. By a summons filed on behalf of the plaintiff, an order has been sought pursuant to s 17B(2) of the Supreme Court Act 1986 that the proceeding be reserved for consideration of the Court of Appeal or that I make an order directing that it be argued before the Court of Appeal.

1. Ms Foley of counsel, who appeared for the plaintiff, advanced five reasons why, in her submission, it was appropriate that the matter should be dealt with in that way.  The first was the nature of the legal question, which I have already referred to briefly.  Secondly, was the topic, I think one could call it, of the report itself which was said to be a matter of important public interest.  The third ground was the lack of a complex factual substratum.  The fourth was perhaps the reverse of that, that the legal issues raised were complex and, finally, it was said that important issues of the justiciability of this issue were raised.

1. Mr Horan of counsel, who appeared for the State of Victoria, the defendant in the proceeding, did not oppose the reference but neither did he consent to it.  It was indicated by Mr Horan that the defendant saw that there were significant threshold questions and that it probably would be issuing a summons seeking to have the question of the justiciability of this claim determined as a preliminary question.

1. Section 17B(2) of the Supreme Court Act1986 gives no guidance to a judge faced with an application such as this as to why or when it is appropriate to make such a referral.  I was very helpfully referred to a decision of the Full Court sitting in its Appeal Division in Collins v Black,[1] where the Court consisted of Brooking, JD Phillips and Hansen JJ.

   [1][1995] 1 VR 409.

1. Brooking J gave a short judgment of his own in which he concurred with the reasons of the joint judgment of the other two judges and dealt only with the question of the predecessor of s 17B(2), namely s 15(2). I will not read the whole of his Honour's short judgment but it is all relevant to my consideration of this application. Having set out some of the reasons why it might be said that a matter should be referred to the Full Court, or in this case to the Court of Appeal, which mirrored some of the grounds relied on by Ms Foley, his Honour said that they did not necessarily mean that reference was appropriate. His Honour said:

everything depends on the circumstances of the particular case.[2]

[2][1995] 1 VR 409, 410.

1. I will also quote a further passage from his Honour's judgment:

It must always be borne in mind that the Full Court is primarily a court of appeal and that to by-pass the primary judge is to deprive the Full Court of the benefit of his judgment on the question or questions arising.[3]

[3][1995] 1 VR 409, 411.

1. At the end of the joint judgment of JD Phillips and Hansen JJ, reference was made to the same issue.  Their Honours expressed their concurrence with what Brooking J had written about the need for the profession to hesitate before inviting a reference to the Full Court under s 15(2).  Their Honours also referred to the fact that if there was a reference, the Full Court was “immediately deprived of all the advantages of having the case scrutinised at first instance”.  They said that it would deprive the appeal court of the trial judge's “analysis and articulation of the problem, the exposure (and, where appropriate, the remedying) of any procedural difficulties” and the judge's marshalling of the material in support of one side and the other.[4]

   [4][1995] 1 VR 409, 419.

1. That decision was approved by a subsequent Full Court consisting of Tadgell, Nathan and Ashley JJ in the decision Hodgson v State of Victoria.[5] 

   [5][1995] 2 VR 292, 297 (Tadgell J, with whom Nathan and Ashley JJ agreed).

1. On the other hand, I was referred to the reports of the decision in Egan v Willis in the High Court of Australia[6] and in the New South Wales Court of Appeal[7] where, unfortunately, the only statement about the procedure was that the proceeding was removed into the Court of Appeal.  However, I was subsequently told that it had been ascertained that the procedure was similar to what is being sought here, namely that a single judge had made an order referring the matter to the Court of Appeal.  The relevance of that case is that it raised broadly similar issues about the powers of a House of Parliament.

   [6](1998) 195 CLR 424.

   [7](1996) 40 NSWLR 650.

1. I have given this matter anxious consideration and whilst I understand the reasons behind the application, it is my view that the benefits to be obtained by following the normal procedure, namely the matter goes for hearing first before a single judge and then, if one or other of the parties so wishes, on appeal to the Court of Appeal, is the preferable course.

1. Having said that, as a result of discussions with the Principal Judge in the Common Law Division and with the Associate Judge in charge of listing and also with Emerton J, I will make an order referring the further hearing of this matter to Emerton J.  She would have been available to hear it tomorrow, as I have indicated, but the parties are not yet ready.  Her Honour obviously will have other commitments but this matter will be given whatever priority her Honour can give it, as I understand it, so any further timetabling or applications should be made to her Honour and a trial date, in due course, will no doubt be fixed by her. 

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