Barber v State of Victoria (No 2)
[2013] VSC 71
•27 February 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2012 1487
| GREGORY JOHN BARBER | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2013 | |
DATE OF JUDGMENT: | 27 February 2013 | |
CASE MAY BE CITED AS: | Barber v State of Victoria (No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 71 | |
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PRACTICE AND PROCEDURE – Application for preliminary question to be determined - Proceeding seeking declaration concerning the powers and privileges of the Legislative Council of the Parliament of Victoria – Proposed preliminary question concerning justiciability, standing and whether the declaration sought merely hypothetical or advisory – Supreme Court (General Civil Procedure) Rules 2005 r 47.04 – Application allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms D Mortimer SC | Christopher Bunnett Lawyers |
| For the Defendant | Mr S McLeish SC Dr C Parkinson | Victorian Government Solicitor |
HER HONOUR:
Introduction
By summons dated 4 February 2013, the defendant seeks an order under r 47.04 of the Supreme Court (General Civil Procedure) Rules2005 that the following question be tried before the trial of the proceeding:
Should the Court decline to hear the proceeding on any of the following grounds:
(i)there is no justiciable dispute between the parties;
(ii)a claim for a bare declaration as to the powers of Parliament is not justiciable;
(iii)the proceeding seeks relief that is merely hypothetical or advisory and would not determine any rights between the parties;
(iv)the plaintiff does not have standing to bring the proceeding?
The defendant has identified the factual basis for the determination of the proposed question as follows:
(a)the facts set out in the affidavit of the plaintiff affirmed on 16 March 2012 at [2], [4], [5]-[10] (including Exhibits GB1 and GB2);[1] and
(b)the following facts:
The Legislative Council has not further considered the motion nor the Treasurer’s response. The Legislative Council has not sought to compel production of the Deloitte report on the Myki ticketing system. No member of the Legislative Council, including Mr Barber, has taken any step in the Legislative Council to seek to have it compel the production of the Deloitte report on the Myki ticketing system.
[1]These parts of the plaintiff’s affidavit are summarised in the Court’s earlier judgment in Barber v State of Victoria [2002] VSC 554, [1]-[7].
The defendant gives six reasons why the proposed question should be set down and determined as a preliminary question:
(a)The determination of the proposed question in favour of the defendant will end the litigation;
(b)There are no facts in dispute necessary for the determination of the preliminary question;
(c)There is a clear demarcation (both as to law and facts) between the issues in the proposed question and the substantive question of the public interest immunity status of the Deloitte report which is sought to be raised by the plaintiff;
(d)By its nature, the proposed question is one that ought to be answered in favour of the plaintiff before the Court considers the substantive question raised by the plaintiff;
(e)The subject-matter of the proposed question would, in part, be destroyed if it was not dealt with before trial. Part of the defendant’s argument in relation to the proposed question is that the Court should not entertain the question whether the Deloitte report is subject to public interest immunity at all because the relevant principle is that ‘whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere’;[2]
(f)Determining the proposed question as a preliminary question is the most efficient course for both the Court and the parties because, by its nature, it is a question that should be answered first, it raises serious issues with respect to the whole proceeding and, if determined in favour of the defendant, the Court will not have to hear, and the parties will not have to prepare for or appear at trial.
[2]Blackstone, 1 Com 163 [Emphasis added].
As a further matter, the defendant submits that the determination of the proposed question as a preliminary question will be fair to the plaintiff because, if the Court makes the orders sought in the summons, the defendant will undertake to pay the plaintiff’s costs of the day in Court on its earlier application for the summary dismissal of the proceeding (the ‘summary dismissal application’), as well as the costs of preparing submissions on the law governing the summary dismissal of proceedings.
The plaintiff submits that he will be prejudiced by the splitting of the trial in the manner proposed because, rather than it being a more efficient and expeditious way to proceed, it will impose on the plaintiff delay and additional (unnecessary) costs. Given the nature of the issues in the proposed question, the trial of the proceeding as a whole would not be much longer than the hearing of the trial of the proposed question. The litigation is of narrow compass, and if it proceeds directly to trial, it can be finalised quickly.
As a result, the plaintiff submits that:
(a) this is not an appropriate case for the grant of an application under r 47.04 because it is not a case where the determination of a preliminary question might shorten the trial significantly;
(b) it would be contrary to the Civil Procedure Act 2010 (Vic) to grant the application because it would not minimize delay or result in the timely disposition of the proceeding; and
(c) it would be unfair on the plaintiff to allow a repeat of the arguments that failed on the application for summary dismissal.
Analysis
Whether the proposed question should be determined as a preliminary question is finely balanced.
The discretion to make an order under r 47.04 must be exercised with great caution, and only in a clear case. In Dunstan v Simmie & Co Pty Ltd - 73#73,[3] Young CJ and Jenkinson J said of the discretion to try issues separately:
… it remains true that it is a power to be exercised with great caution. It is not desirable to circumscribe the exercise of the discretion to make an order under the power … Nevertheless, although every case must depend upon its own facts, it will as a general rule only be appropriate to order that a preliminary issue be isolated for determination before trial where the determination of the issue in favour of the plaintiff or the defendant will put an end to the action or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense.[4]
[3]1998 VR 669.
[4]Ibid 671.
Likewise, in Utiger v Brown and Venteb Pty Ltd,[5] Gillard J said:
As a general proposition, the procedure should not be used except in clear and straightforward cases where a simple question can be identified in relation to facts which are not really disputed and the decision could have a substantial effect upon the outcome of the proceeding.[6]
[5][2002] VSC 306.
[6]Ibid [13]. See also Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd (No 2) [2004] VSC 341.
There are factors that favour the hearing and determination of the proposed question as a preliminary question. Importantly, a positive answer to the proposed question would dispose of the proceeding. Furthermore, the proposed question is one that logically precedes consideration of the substantive issue sought to be agitated by the plaintiff and there is a relatively clear demarcation between the proposed question and the substantive issue.
However, there are also factors that might be said to weigh against following such a course.
The plaintiff submits that the proposed question is far from clear and that the four questions that it encompasses would need to be substantially reframed in order for it to be capable of producing an answer that would dispose of the proceeding. According to the plaintiff, a question commencing ‘should the Court decline to hear …’ does not invite a final answer.
Moreover, there is a dispute as to what facts the Court will need to find in order to answer all of the elements of the proposed question. Although the defendant has identified the facts that it says will be required, there is no agreement to confine the facts in the manner proposed. To the contrary, the plaintiff submits that the defendant has been selective in identifying the relevant facts for the proposed question, and that other evidence is likely to be relevant. The plaintiff refers in particular to evidence relevant to his standing to bring the proceeding, and to evidence about the existence (or non-existence) of rules or procedures in the Legislative Council regulating its power to order the production of documents and dealing with claims of executive privilege.
In Jacobson v Ross,[7] Brooking J emphasised that it was essential to determine what the preliminary question was and by reference to precisely what facts it was to be answered.[8] His Honour said:
Care must be taken to ensure that, in one way or another, all the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable as a result of the order for the preliminary determination, as facts which both sides accept as correct, or as facts which are to be judicially determined. Failure to do this, and in particular failure to perceive that the facts alleged in a pleading are only some of the facts relevant to the determination of the preliminary question, may make the order for preliminary determination unfruitful. [9]
[7][1995] 1 VR 337.
[8]Ibid 340.
[9]Ibid 341.
I am satisfied that the proposed question is sufficiently clear and that a positive answer to the proposed question for any one or more of the five reasons in paragraphs (a) to (e) of the proposed question would lead to the making of orders disposing of the proceeding. In my view, the proposed question is clear and capable of producing of an answer that would dispose of the proceeding. The Court was concerned with what was, in effect, the same or a very similar question when it heard the defendant’s application to summarily dismiss the proceeding. Although the Court did not have to determine the question on that application, there was no doubt as to what the defendant was seeking to achieve and on what basis.
As to the factual basis for determining the proposed question, the Court observed in its decision on the summary dismissal application that the facts appeared ‘to be both relatively simple and relatively settled’.[10] I remain of that view. The questions as to whether there is a justiciable dispute between the parties, whether a claim for a bare declaration as to the powers of Parliament is justiciable and whether the proceeding seeks relief that is merely hypothetical or advisory and would not determine any rights between the parties, require little in the way of facts. They are, in essence, legal questions.
[10]Barber v State of Victoria [2002] VSC 554, [17].
To the extent that the additional limb of the proposed question relating to the plaintiff’s standing might require a broader factual inquiry, the defendant has suggested that the parties seek to agree on which parts of the plaintiff’s affidavit are relevant to standing or, in the absence of agreement, have the Court determine that issue. Alternatively, the question of standing could be removed from the proposed question.
In my view, subject to the parties agreeing on facts relevant to the question of standing, both the form of the proposed question and the factual context in which it will be answered are sufficiently well defined to enable the proposed question to go forward as a preliminary question.
An important consideration remains whether there is anything to be gained by hearing the proposed question separately. This question is usually approached by reference to efficiencies that would be achieved were the answer to the preliminary question to dispose of the proceeding, thus avoiding the costs of a lengthy trial. In this case, there is an apparent imbalance between the time and cost involved in preparing and presenting arguments on the proposed question and the time and cost involved in preparing for and arguing the substantive issue. The plaintiff submits that the issues raised by the proposed question are likely to consume more preparation and hearing time than the substantive issue and I accept that submission. So far as I can tell at this stage, the substantive issue is unlikely to involve days of argument or weeks of preparation.[11]
[11]The purpose for which the Deloitte report was prepared and whether or not it was submitted to the Cabinet for consideration is likely to have been fully investigated by the defendant for the purpose of preparing the Treasurer’s response to the motion passed in the Legislative Council and also in order to respond to the request for access to the document made by the plaintiff under the Freedom of Information Act 1980 (Vic) and his application for internal review of the refusal.
The likelihood, therefore, is that most of the Court’s time and most of the parties’ preparation time will be spent on the difficult threshold issues that are raised by the proposed question. As a result, the trial of the proceeding as a whole would not be very much longer than the trial of the proposed question, and the preparation involved for the trial as a whole is not likely to be much greater than the preparation for the proposed question. On this basis, any savings in time as a result of the splitting of the trial would not, in my view, be great. This is not ‘long or complex litigation’[12] where the use of the facility in r 47.04 might expedite the litigation.
[12]Jacobson v Ross [1995] 1 VR 337, 351-352 (Brooking J).
Furthermore, there is a real possibility that splitting the trial may result in delays and additional expense to the parties because of the potential for a multiplicity of appeals. In Tepko v Water Board,[13] Kirby and Callinan JJ observed that the potential for a multiplicity of appeals to which the separation of issues may give rise may be an important consideration militating against the separation of issues.[14] Whatever the Court’s decision on the proposed question, it is likely to attract an appeal, given the complex and difficult issues raised by the proposed question. Having regard to the potential for a multiplicity of appeals if the trial is split, it may well be more expedient and efficient for the preliminary question and the substantive issue to be heard and determined at the same time.
[13](2001) 206 CLR 1.
[14]Ibid 55, [170].
If this were ordinary litigation, I would have no hesitation in dismissing the defendant’s summons and making orders to provide for the hearing and determination of all of the issues without further delay. As Kirby and Callinan said in Tepko v Water Board,[15] single issue trials should only be embarked upon when their utility, economy and fairness to the parties is beyond question.
[15]Ibid.
However, this is no ordinary proceeding. It has been brought by a member of the Parliament, it concerns events that took place in the Parliament and raises, acutely, the very difficult question of how far, if at all, the Court may inquire into the internal affairs of the Parliament.
The defendant submits that the subject-matter of the proposed question would, in part, be destroyed if it was not dealt with before trial, because part of its argument in relation to the proposed question is that the Court should not entertain the substantive issue at all. Matters concerning the Parliament should not be examined or discussed elsewhere. In response, the plaintiff submits that he is in no different position to any litigant who brings a matter to court and faces an argument that the court has no jurisdiction to determine the matter. Whenever a court embarks on a trial and hears challenges to its jurisdiction or to the standing of the plaintiff, it must deal with an argument that the proceeding has no business in the court. Yet questions of jurisdiction and standing are regularly decided at trial. The plaintiff further submits that while there is a particular sensitivity to the proceeding, it is not a sensitivity that has any legal consequence.
I do not accept the plaintiff’s submissions. I am concerned that hearing the substantive issue at the same time as the preliminary issues will destroy the subject matter of the preliminary issue, and I am especially concerned that hearing the substantive issue may involve an impermissible intrusion by the Court into the internal affairs of the Parliament. There is a real possibility that the substantive issue is one that ought not to be entertained by the Court at all. This is the very question that is raised by the proposed question and which would be resolved by its determination as a preliminary question.
In my earlier decision,[16] I referred to the deference that the judicial branch of government has accorded to the legislative branch with respect to its internal affairs and to the statement of Lord Coleridge CJ in Bradlaugh v Gossett,[17] that what is said or done within the walls of Parliament cannot be inquired into in a court of law. This reflects Article 9 of the English 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.
[16]Barber v State of Victoria [2012] VSC 554.
[17](1884) 12 QBD 271, 275.
Article 9 has been incorporated into the laws of Australia, both as a matter of common law and by statute. It is the law of Victoria by reason of s 19 of the Constitution Act 1975 (Vic). Responsibility for enforcing Article 9 falls on houses of parliament and on courts of law.[18]
[18]Enid Campbell, Parliamentary Privilege (The Federation Press, 2003) 11.
The proposition that the courts should not entertain proceedings calling into question what is said or done within the walls of the Parliament lies at the heart of the defendant’s submissions and its reason for seeking to have the proposed question determined as a preliminary question.
It is unclear at this stage precisely what will be involved in determining the substantive issue. As things presently stand, the plaintiff seeks a declaration that the Legislative Council has the power to order production of documents prepared outside Cabinet and considered by Cabinet or, alternatively, a report prepared by an independent contractor and considered by Cabinet. During the summary dismissal application, it was submitted that the form of the declaration might be amended to refer specifically to the power of the Legislative Council to order production of the review of the ticketing system undertaken by Deloitte. The final form of the declaration sought by the plaintiff therefore remains somewhat uncertain. In this regard, the plaintiff confronts an exquisite dilemma: on the one hand, the declaration must arguably only refer in general terms to the powers of the Parliament because, while the courts may judge the existence of a privilege of the Parliament, it is for the Parliament to judge the manner of its exercise;[19] on the other, the declaration must be crafted by reference to an actual dispute so that the Court is not asked to grant relief that is merely hypothetical or advisory.
[19]R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, 162 ( Dixon CJ).
It appears to be common ground that the substantive issue will involve determining whether the Deloitte report is protected from disclosure by public interest immunity, presumably on the ground that its release would disclose the deliberations of the Cabinet. That inquiry would seem to be directed squarely to events and actions outside of the Parliament involving how and why the Deloitte report was produced and its trajectory from the consultant to the Cabinet room. Senior Counsel for the plaintiff described the ‘only other issue’ in the proceeding (apart from the issues in the proposed question) to be the provenance of the Deloitte report and whether the claim for public interest immunity was made out. Likewise, the Solicitor-General indicated (albeit only on a tentative basis and without instructions) that the kind of evidence that he envisaged the defendant would need to adduce on the substantive issue would be evidence going to the purpose for which the Deloitte report was produced and whether or not it went to the Cabinet.
Nonetheless, the form of the declaration sought invites inquiry into the powers of the Legislative Council including, potentially, the processes of the Council for requiring the tabling of documents and resolving disputes that may arise as a consequence. Senior Counsel for the plaintiff also submitted that how the motion passed by the Legislative Council requiring the tabling of the Deloitte report came about and what the motion was about would be relevant to the Court’s inquiry. She said:
We submit all those matters are going to be relevant. Now how relevant is a matter that obviously is developed through argument. But the way that judicial determination works … is that one does start at the beginning of the story. One doesn’t just launch in and pick the legal question that might end up being the kernel of the court’s judgment. But one doesn’t just launch in and pick that out and say, well we’ll just craft one or two facts around that. That’s not the way the judicial process works and it doesn’t work like that for a good reason …[20]
[20]Transcript of Proceedings, Barber v State of Victoria (Supreme Court of Victoria, S CI 2012 1487, Emerton J, 14 February 2013) 25-26.
This passage highlights the difficulty for the Court in that, unless the proposed question is heard and determined first, the Court may be invited to conduct a broad-ranging inquiry into events that took place within the walls of the Parliament that calls into question its proceedings. In my view, this would be to tread where the Court should be cautious to tread or should not tread at all.
As a result, I have formed the view that the proposed question should be heard as a preliminary question. Even if the answer to the proposed question does not finally dispose of the proceeding, it will (or should) define the parameters of the Court’s inquiry into the matters raised by the substantive issue. That, in my view, would be a most worthwhile exercise, benefitting both the Court and the parties. Allowing all of the issues to simply proceed to trial to be heard together before the boundaries of the field of inquiry have been identified would, in my view, be to stumble blindly into a potential minefield.
In this case, although the separation of issues may have the effect of extending the time taken to finally dispose of the proceeding and delay the plaintiff’s access to the Deloitte report (were he to be entirely successful), I consider that it is appropriate to order that the proposed question be heard as a preliminary question. I accept the factual basis for the determination of that question is as described by the defendant. However, if the plaintiff wishes to put further evidence before the Court and the defendant will not agree to such a course, I will hear any application the plaintiff wishes to make.
The Court will order under r 47.04 that the proposed question be heard and determined as a preliminary question. In order to minimise delay, an early hearing date for the proposed question will be given.
Subject to anything that the parties may wish to submit, I would propose to reserve the question of the costs of this application.
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