Brooks v Easther (No 4)

[2017] TASSC 59

[2017] TASSC 59

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Brooks v Easther (No 4) [2017] TASSC 59

PARTIES:  BROOKS, Peter Francis Thomas
  v
  EASTHER, Barry Maxwell

MASON, Norma Lynn
GROOM, The Hon Matthew
as Acting Attorney-General for the State of Tasmania

FILE NO:  2753/2017

DELIVERED ON:  4 October 2017
DELIVERED AT:  Launceston
HEARING DATE:  3, 4 October 2017
JUDGMENT OF:  Brett J

EDITED VERSION OF REASONS FOR JUDGMENT DELIVERED ORALLY

CATCHWORDS:

Appeal and New Trial – Procedure – Tasmania – Other matters – Application for interlocutory injunction pending determination of appeal – Restraint sought on members of Board of Inquiry - Balance of convenience – Short time before appeal – Injunctive relief granted.

Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87; Croney v Nand [1999] 2 Qd R 342; Eastland Technology Australia Pty Ltd v Whisson [2003] WASC 54, 28 WAR 308, considered.
Adamson v Pharmacy Board of Tasmania [2004] TASSC 32, cited.
Aust Dig Appeal and New Trial [399.3]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine SC
             Respondents:  P Turner, J Rudolf
Solicitors:
             Applicant:  Shaun McElwaine + Associates
             Respondents:  Solicitor-General

Judgment Number:  [2017] TASSC 59
Number of paragraphs:  15

Serial No 59/2017

File No 2753/2017

PETER FRANCIS THOMAS BROOKS v BARRY MAXWELL EASTHER,
NORMA LYN MASON and The Hon MATTHEW GROOM
as Acting Attorney-General for the State of Tasmania

REASONS FOR JUDGMENT  BRETT J

(DELIVERED ORALLY)  4 October 2017

1. On 11 September 2017, Blow CJ refused an application which sought relief which would have the effect of restraining two members of the Board of Inquiry which had been established to inquire into the governance arrangements and practices of the Glenorchy City Council, from continuing to act in their capacities as members of that Board. His Honour published detailed reasons for that decision: Brooks v Easther (No 3) [2017] TASSC 54.

2. On 26 September 2017, the appellant instituted an appeal from his Honour's decision. The notice of appeal sets out seven grounds of appeal.

3. On 29 September 2017, the appellant filed an interlocutory application seeking injunctive relief. The orders sought would, in effect, prevent the respondents, until the determination of the appeal, from delivering their report or disclosing any draft or final version of the report, or any evidence or other material received or obtained by them in the conduct of the Inquiry, to any other person except for those assisting them in the conduct of the Inquiry. The application is opposed by the third respondent. The first and second respondents filed notices of submission in respect of the proceedings at first instance, and this is still the applicable position in relation to their participation in these proceedings.

4. I record at the outset that as a result of informal approaches made by both parties, the Court has made special arrangements to convene the Full Court urgently to deal with this appeal. This is appropriate because there is clearly a public interest in having the future of the work of the Board of Inquiry settled as quickly as possible. The Inquiry has been constituted under the provisions of the Local Government Act 1993, and concerns the ongoing operation of a governmental body. According to the background described in the primary judgment, the Board was established, and presumably commenced its work, in October 2015. Irrespective of the history of the matter or the amount of time it has taken the Board to arrive at the current position, there can be no reasonable controversy about the need for a prompt determination of this appeal, and both parties have requested an early hearing and will work to an abbreviated procedural timetable to facilitate that hearing. The appeal has been listed for hearing on 25 October 2017.

5. The fact that the interlocutory injunction, if granted, will operate for three weeks only, is an important consideration in the determination of this application. I say that the relevant period is three weeks because although it is impossible to know whether the Full Court will reserve its decision and, if so, for how long, it will be in a position to revisit the question of injunctive relief on 25 October. The abbreviated period is significant because of the principles which apply to the determination of an application such as this. Both parties accept that the relevant principles are correctly expressed in the various cases to which I have been referred by both counsel. These include the single judge decisions of Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87; Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCA 1079, and a decision of the Full Court of the Supreme Court of Western Australia in Eastland Technology Australia Pty Ltd v Whisson WASC 54, 28 WAR 308. I have also had regard to Croney v Nand [1999] 2 Qd R 342, a decision of the Court of Appeal of Queensland. It is clear from these decisions that the applicable principles are well settled and non-contentious. However, the cases also demonstrate that their application will depend heavily on the circumstances of the particular case. The principles are, it seems to me, a collection of common sense considerations which respond to the tension which must necessarily exist between the present right of the successful litigant to take advantage of the benefit of the decision at first instance, and the right of the unsuccessful litigant to appeal, and the consequences which may flow if one side of this argument is favoured over the other. Hence, the determination will generally result from the balance of convenience. All that the phrase "balance of convenience" really means in this context, I think, is the result which, having regard to the particular combination of circumstances in the particular case, will best serve the interests of justice. Clearly, the consequences which will flow if the injunctive relief is not granted, and any prejudice which will be suffered by the respondent if it is granted, are of crucial importance in this assessment.

6. It is also clear from the authorities that it will generally be necessary for the court determining an application such as this to make some assessment of the prospects of success of the appeal. Counsel for the third respondent submitted that although the assessment must necessarily be made on a preliminary basis, it is a fundamental requirement that I must determine the appellant's prospects of success before I can grant the injunctive relief sought. I agree that some assessment must be made in this regard. However, in order to understand the nature of the assessment, and how that assessment will inform the exercise of discretion sought by this application, it is necessary to consider the purpose of that assessment. In Croney v Nand, the Court of Appeal, in its joint judgment, said at [38]:

   "The prospects of success of the appeal is not a matter which the Court considering a full stay application should generally speculate about. Making an assessment of whether the appellant has an arguable case is undertaken to ensure the appeal has not been lodged simply to delay execution. This factor is less relevant in this case where the plaintiff has the alternative means of satisfying his judgment." [Footnote omitted.]

7. In my view, there is a great deal of sense in this explanation. It is neither desirable nor appropriate for a judge determining an interlocutory application in respect of what amounts to a stay of an order pending appeal, to effectively conduct a dry run of the appeal. The judge is not likely to be in a position to effectively do so, and any such assessment runs a considerable risk of misapprehending or ignoring relevant considerations and producing an incorrect conclusion. It is reasonable that the Court satisfy itself that the appeal is not simply a manoeuvre employed to achieve delay or some other tactical purpose, but rather it is a legitimate procedural step intended to be seriously argued. The weight to be given to the assessment will therefore depend on other relevant considerations such as questions of prejudice, the extent of delay and the nature of the case. I will say more about the last of these shortly. In general terms, this understanding of the need to assess prospects of success is consistent with the view expressed by French J (as he then was) in Stirling Harbour Services at [15]:

   "It is to be remembered also that the strength of the case and the assessment of where the balance of convenience lies are interdependent."

8. In this case, the expedited hearing of the appeal means that it will only be a very short time before the appeal is determined or, at least, is before the Full Court. The respondent has not suggested that this short delay will cause any prejudice whatsoever to the proper discharge by the Board of its statutory obligations. It is difficult to envisage how any real prejudice could arise from a delay of three weeks, given that it has taken the Board two years to get to the current position. The injunctive relief which is sought will not prevent the Board continuing with the Inquiry. In fact, the orders sought expressly acknowledge the right of the Board to continue with the Inquiry by excluding from the injunctive relief, the capacity of the Board to reveal relevant information to those currently assisting it with the Inquiry. On the other hand, if the injunctive relief is not granted and the Board discloses the draft report and other related material to persons other than those currently assisting it, then there is a real risk that the appeal will be rendered nugatory. I do not intend to go into any significant detail about this. Suffice to say, that conclusion is consistent with the reasons for decision of Blow CJ in Brooks v Easther (No 2) [2017] TASSC 47.

9. Those factors inform the weight to be given to the assessment of the prospects of success of the appeal. On any reasonable view of it, given the imminence of the appeal, any suggestion that the appeal is a delaying tactic, or will not be seriously argued, cannot reasonably arise. In any event, for the reasons which follow, I am satisfied that there is a serious question to be determined on the appeal.

10. Firstly, it is important to note that the nature of the appeal is a rehearing. This means that the appeal court must reconsider and determine the matter for itself on the basis of the material which was before the primary judge but should "exercise appellate powers only if satisfied that there was an error on the part of the primary decision-maker" (see Adamson v Pharmacy Board of Tasmania [2004] TASSC 32).

11. It is common ground between the parties and clear from the legislation, in any event, that in conducting the Inquiry, the Board must observe the rules of natural justice and, in particular, as accepted by Blow CJ in the decision at first instance, "afford procedural fairness to any person whose interests are likely to be affected as a result of its report to the Minister". There is no real dispute, and it was accepted by Blow CJ, that the appellant is such a person. The real question at first instance and, in my view, on appeal, is the practical requirements of that obligation in the circumstances of this case. That question brings into sharp focus the nature, purpose and effect of the so-called "Draft Report". Blow CJ effectively found that the draft report was exactly that, something which was in draft, really little more than a convenient compilation of information as a basis for discussion and further Inquiry. The appeal proceeds on the basis that his Honour was wrong in his characterisation and treatment of the report, and his consequential conclusion that the provision to the appellant of an opportunity to respond to criticisms contained in the report adequately complied with the first and second respondent's obligation to afford procedural fairness to the appellant. The appellant argues that the Draft Report, in effect, represents an interim determination, which concludes an important part of the Inquiry. It is further argued that this determination was achieved without the provision of procedural fairness, and that the appellant is now severely disadvantaged, as his only real opportunity to answer the criticisms made against him occurs in the context of a response to the Draft Report. Senior counsel for the appellant relies, in particular, on the legislative obligation to observe the rules of natural justice and provide procedural fairness in respect of the Board's conduct of the Inquiry generally.

12. It is not possible for me on the limited material and opportunity presented in proceedings such as this, nor, as I have already explained, is it necessary or appropriate for me to give detailed consideration to this question. However, I am satisfied that the issue so raised by the appeal constitutes a serious question for determination. The respondent's arguments that there are no prospects of success depend almost entirely on acceptance of Blow CJ's conclusion that the Draft Report is indeed a draft only, and falls within the ambit of the Board's entitlement to flexibility in its discharge of its obligation to afford procedural fairness. However, it must be at least arguable that the requirement to afford procedural fairness applies to every aspect of the Board's function and, accordingly, the preparation of a draft report, and its use in a way analogous to a detailed show cause notice, is unfair and unjust because it is predicated on a preliminary factual assessment reached without the provision of procedural fairness. In those circumstances, I accept that it is reasonably arguable that the process adopted by the Board does not adequately respond to its obligation to comply with the rules of natural justice. If that is the conclusion reached by the Full Court, then error on the part of the learned primary judge will be established, and it will be entitled to substitute its own conclusion and remedy.

13. There is a further aspect of this case which I think distinguishes it factually from the decisions to which I have been referred, and many others, which deal with a stay pending appeal, and which has particular relevance to the exercise of discretion on this application. Those decisions each relate to a judgment obtained in proceedings to enforce a private right. Clearly, there is inherent prejudice to a respondent in such a case, who is wrongly deprived of or held from his or her proper entitlement under a judgment at first instance, by an appeal which is without merit. I think there is a significant difference between such a case and the circumstances of this case. There is no question that the first and second respondents have a legitimate obligation and commensurate right to proceed with their work pursuant to their appointment. As noted before, there is undoubtedly a public interest in the timely completion of the Inquiry. However, there is also a corresponding public interest in ensuring that the Inquiry proceeds lawfully and, in particular, in accordance with the obligations and prescriptions provided by statute. It follows that there is a public interest in ensuring that the appeal process is properly exhausted in respect of any challenge to the lawfulness of the procedure of the Inquiry. This is not a case, therefore, where the ordinary rule referred to in Eastland Technology Australia Pty Ltd v Whisson (above), ie that a successful litigant at first instance is ordinarily entitled to enforce judgment pending the determination of an appeal, should be the predominant consideration. In particular, this is not a case where a private citizen is being held out of money or compensation to which he or she, according to the primary judgment, is entitled. This is a case where the proper process of an Inquiry into a governmental body is in question. The public interest requires careful consideration of this question, and the balance of convenience is in favour of a short delay in the finalisation of the work of the Inquiry pending such consideration.

14. Accordingly, I intend to grant the injunctive relief which is sought. The order which I made yesterday will continue until further order or determination of the appeal, whichever occurs first.

15. Costs are reserved for determination by the Full Court.