Casimaty v Hazell Bros Group Pty Ltd
[2023] TASFC 2
•4 May 2023
[2023] TASFC 2
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Casimaty v Hazell Bros Group Pty Ltd [2023] TASFC 2 |
| PARTIES: | CASIMATY, Gregory John |
| v | |
| HAZELL BROS GROUP PTY LTD | |
| ATTORNEY-GENERAL | |
| FILE NO: | FCA 503/2022 |
| JUDGMENT | |
| APPEALED FROM: | Casimaty v Hazell Bros Group Pty Ltd (No 2) [2022] |
| TASSC 9 | |
| DELIVERED ON: | 4 May 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 30 May 2022 |
| JUDGMENT OF: | Pearce J, Brett J, Geason J |
| CATCHWORDS: |
Constitutional Law – The non-judicial organs of Government – The legislature – General matters – Privileges
– Privilege of parliamentary debates and proceedings – States – Report of a parliamentary committee a
precondition of commencement of public works – Whether parliamentary privilege precludes the admission and consideration of the committee's report by a court – Whether the prevention of works in
breach of that statutory requirement creates a justiciable controversy.
Bill of Rights 1688, Article 9.
Public Works Committee Act 1914 (Tas), ss 15, 16.
Huata v Prebble [2004] NZCA 147, applied.
Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1; Egan v Willis [1998] HCA 71, (1998)
195 CLR 424; Cornwall v Rowan [2004] SASC 384, 90 SASR 269; Mangawaro Enterprises Ltd v Attorney-
General [1994] 2 NZLR 451; Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1884) 12 QBD 271; ; Prebble
v Television New Zealand Ltd [1995] 1 AC 321; Bates v Attorney-General of Tasmania [1995] TASSC 28; Mees
v Roads Corporation [2003] FCA 306, Dingle v Associated Newspapers Ltd [1960] 2 QB 405; Victorian Taxi
Families Inc v Taxi Services Commission [2018] 61 VR 91, 121; Amann Aviation Pty Ltd v Commonwealth of
Australia [1988] 19 FCR 223, referred to.
Aust Dig Constitutional Law [161]
REPRESENTATION:
Counsel:
Appellant: B McTaggart SC, G O'Rafferty Second Respondent: S Kay SC, D Osz
Solicitors:
Appellant: Leonard Fernandez Second Respondent: Office of the Solicitor-General
| Judgment Number: | [2023] TASFC 2 |
| Number of paragraphs: | 57 |
Serial No 2/2023
File No FCA 503/2022
GREGORY JOHN CASIMATY v HAZELL BROS GROUP PTY LTD
and ATTORNEY-GENERAL
| REASONS FOR JUDGMENT | FULL COURT PEARCE J BRETT J GEASON J 4 May2023 |
| Orders of the Court: |
1 Appeal allowed.
2 Order that amended statement of claim be struck out and action dismissed set aside.
3 Interlocutory application dismissed.
Serial No 2/2023
File No FCA 503/2022
GREGORY JOHN CASIMATY v HAZELL BROS GROUP PTY LTD
and ATTORNEY-GENERAL
| REASONS FOR JUDGMENT | FULL COURT PEARCE J 4 May 2023 |
1 I agree with Brett J, for the reasons his Honour gives, that the appeal should be allowed. I agree with the orders his Honour proposes.
2 No 2/2022
File No FCA 503/2022
GREGORY JOHN CASIMATY v HAZELL BROS GROUP PTY LTD
and ATTORNEY-GENERAL
| REASONS FOR JUDGMENT | FULL COURT BRETT J 4 May 2023 |
2 This appeal is from a decision of Blow CJ to dismiss an action brought by the appellant on the basis that the action is vexatious, because its conduct would necessarily infringe parliamentary privilege. The nature and history of the proceedings was succinctly summarised by the learned primary judge as follows:
"There is a busy junction on the Tasman Highway near the Hobart Airport. Three roads meet the highway at that junction. They include Holyman Avenue, which leads to the airport, and Cranston Parade. The plaintiff, Gregory Casimaty, claims to have an interest in a piece of land on Cranston Parade. Some years ago the Tasmanian Government's Department of State Growth decided that a new interchange should be developed and constructed at the junction. Plans and drawings were prepared and submitted for consideration by the Parliamentary Standing Committee on Public Works ('the Committee') pursuant to the Public Works Committee Act 1914 ('the PWC Act'). The Committee considered and reported upon the proposal in late 2017. Subsequently the department engaged the first defendant, Hazell Bros Group Pty Ltd, to construct the new interchange. The plaintiff has commenced an action seeking declaratory relief and an injunction restraining Hazell Bros from undertaking the works. He contends that Hazell Bros has been engaged to construct the interchange in accordance with revised plans; and that the works that Hazell Bros has been engaged to undertake are not the same as the works approved by the Committee and have not been considered by the Committee. He has sought a declaration to the effect that Hazell Bros' public works are works to which ss 15 and 16 of the PWC Act apply, as well as the injunction that I have referred to.
The Attorney-General has been joined as a second defendant in this action. The proceeding before me is an interlocutory application by her seeking that this action be dismissed, or alternatively that substantial parts of the plaintiff's amended statement of claim be struck out. She contends that the amended statement of claim does not disclose any reasonable cause of action because it does not disclose any justiciable issue. She also contends that parts of the amended statement of claim offend the principle that parliamentary proceedings are absolutely privileged, and should therefore be struck out for being vexatious. Hazell Bros did not wish to be heard in relation to this application, and was therefore not represented at the hearing."
3 The gravamen of the appellant's action is his claim to have a special interest in the enforcement of relevant provisions of the PWC Act, in particular s 16(1) which provides that no relevant public work shall be commenced "unless it has first been referred to and reported upon by the committee in accordance with this section". The primary judge concluded that the alleged impact of the work on the appellant's property arguably constituted a special interest in the enforcement of the provision. However, his Honour determined that the appellant could only succeed in this action if he could show that the new works were so different from those reported on by the Committee in 2017, that they cannot be lawfully commenced without separate referral to and report by the Committee. His Honour was satisfied that the consideration of this question would necessarily require the Court to examine, discuss and adjudicate upon the 2017 report and this would infringe parliamentary privilege. Hence, his Honour concluded, the action had "no hope of success", and therefore should be dismissed as vexatious.
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4 The grounds of appeal attack various aspects of his Honour's reasoning. However, in essence, the argument is that the appellant's cause of action does not require consideration of or reliance upon the 2017 report. It is argued that the appellant will be entitled to relief if he can demonstrate that the new works have not been the subject of referral and report by the Committee as required by s 16(1), and this will not rely upon comparison with the 2017 report. The appellant submits that, in any event, consideration by the Court of the 2017 report, and whether it does or does not satisfy the requirements of s 16 (1) in respect of the new works, does not offend parliamentary privilege.
5 In response, the Attorney argues that:
(a) The action does not relate to a justiciable controversy, because the PWC Act, including the operation and application of s 16(1) and the activity and responsibility of the Committee thereunder, are matters which relate to the operation of Parliament and, hence, are solely within its jurisdiction. The separation of powers reflected in the principles of parliamentary privilege prevents the Court from interfering in any controversy arising in respect of such questions. This is so irrespective of whether the action requires consideration of the 2017 report. (b) Further and in any event, the primary judge was correct to conclude that the appellant's action would necessarily require the Court to examine, discuss and adjudicate upon the 2017 report, and this infringes parliamentary privilege. The report is subject to the privilege and hence not admissible for the purposes of this action. 6 The critical question upon which this appeal turns, therefore, is whether the essential issues raised in the statement of claim will inevitably involve the determination of questions which are excluded from consideration by the Court because of parliamentary privilege. There is no complaint about the approach adopted by the learned primary judge, which purported to uphold parliamentary privilege by control of the pleadings. While the privilege may also be enforced by exclusion of offending evidence, it is appropriate to exclude issues from the consideration of the court by control of the pleadings where such issues will inevitably infringe parliamentary privilege: Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1. The question for this Court is whether his Honour was correct in his determination concerning the application of parliamentary privilege to the issues which will arise in the conduct of the cause of action.
Justiciability
7 The relationship between justiciability, in the sense of the Court's jurisdiction to determine a dispute which will relate to the process and decisions of Parliament, and the privileges of parliament was the subject of comment by Gaudron, Gummow and Hayne JJ in Egan v Willis [1998] HCA 71, (1998) 195 CLR 424 at[5]:
"Questions respecting the existence of the powers and privileges of a legislative chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law but they should not be entertained in the abstract and apart from a justiciable controversy. Declaratory relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts. This is so even though in the area of public law the ground of equitable intervention has not been limited to the protection of any particular proprietary or legal entitlement of the plaintiff."
8 In this appeal, the Attorney does not challenge the primary judge's conclusion that the appellant would arguably have a special interest in the subject matter of the litigation, and thereby standing to enforce public rights, if the public right arises from the provisions of s 16(1) of the PWC Act. However, the Attorney argues that this does not resolve the question of justiciability. In the proceedings at first instance, the Attorney's argument was put on the basis that the PWC Act did not create rights or interests which were capable of protection or enforcement by the courts. At the most, it created an "expectancy",
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and this is insufficient to give rise to a justiciable claim. The Attorney in this appeal submits that the primary judge's finding about standing relates to a different question, but has not pressed the "mere expectancy" argument on this appeal. However, the argument presented by the Solicitor-General on the Attorney's behalf is that the question of whether the Governor refers works for the consideration of the Committee and the Committee's consideration of and reporting upon those works are matters exclusively within the control of Parliament. It is argued that, accordingly, the PWC Act does not give rise to rights or obligations which can be protected or enforced by the courts and, therefore, the appellant's cause of action does not relate to a justiciable controversy.
Parliamentary Privilege
9 It is uncontroversial that parliamentary privilege as traditionally applied in England and other Australian jurisdictions is applicable in Tasmania. This includes its legislative manifestation in Article 9 of the English Bill of Rights 1689, which provides as follows:
"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."
10 The learned primary judge correctly attributed the application of this provision in Tasmania to English imperial legislation, in particular s 24 of the Australian Courts Act 1828 (Imp). That section provided that statutes in force in England as at 25 July 1828, and which were applicable in the relevant colony by reason of local conditions, and the administrative and judicial machinery then in existence, were to be applied by the courts of that colony. The relevant colonies included Van Diemen's Land (now Tasmania). Article 9 of the Bill of Rights clearly satisfied the conditions of reception, and accordingly, thereby became the law of the colony. There has been no subsequent repeal or abrogation of that law by the Commonwealth or State parliaments, and its effect has not been otherwise affected by subsequent laws dealing with the application of laws of the parliament of the United Kingdom in Australia, such as the Australia Act 1986 (Cwth). Accordingly, Art 9 remains part of Tasmanian law. Further, and in any event, in R v Turnbull (1958) Tas SR 80, Gibson J held that parliamentary privilege as understood in England, including the provisions of Art 9, applied in Tasmania pursuant to the principle of reasonable necessity arising from the nature and function of the institution.
| 11 | The fundamental nature and rationale of parliamentary privilege was discussed by the Full Court of the Supreme Court of South Australia in Cornwall and Others v Rowan (2004) 90 SASR 269, | |
|
"It is necessary then to consider the nature and effect of the privilege. The foundation for consideration of the nature of the privilege rests on the respective constitutional roles of Parliament and the courts. In Prebble v Television New Zealand Ltd, Lord Browne-Wilkinson, delivering the judgment of the Privy Council, said (at 332):
In addition to Art 9 itself, there is a long line of authority which supports a wider principle, of which Art 9 is merely one manifestation, viz that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v Abbot; Bradlaugh v Gossett; British Railways Board v Pickin; Pepper v Hart. As Blackstone said in his Commentaries on the Laws of England (17th ed, 1830), vol 1, p 163: the whole of the law and custom of Parliament has its origin from this one maxim, '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' (citations deleted)."
12 Accordingly, an important feature of parliamentary privilege is the protection of parliament's right to self-regulation. This has resulted in courts traditionally refraining from intervention in parliamentary proceedings. This constraint on the power of the courts to interfere in proceedings of
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parliament was recognised in respect of the House of Commons in Breadlaugh v Gossett (1884) 12 QBE 271, a case referred to at some length by the learned primary judge. The principle is summed up in a comment by Stephen J, quoted by the primary judge and which I restate:
"I think that the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable."
13 The protection of parliament's right of self-regulation was applied by the High Court in New Zealand in Mangawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451. As the primary judge noted, in that case, Gallen J held that a statutory provision which required the Attorney-General to bring to the attention of Parliament, inconsistency between legislation and the New Zealand Bill of Rights, was concerned solely with the proceedings of Parliament and, accordingly, excluded from the jurisdiction of the courts by the operation of Art 9. His Honour concluded that the privilege extended to the referral itself, and accordingly precluded judicial review of an omission by the Attorney-General to make a referral.
14 Counsel for the Attorney placed considerable reliance on this case to support the submission that the controversy raised by the appellant's statement of claim is not justiciable. Counsel submits that there are strong parallels between the legislative process considered in Mangawaro and that prescribed by the PWC Act. As I understand the argument, the claim is that all aspects of the process prescribed by the PWC Act are related to the proceedings of Parliament and, accordingly, excluded from intervention by the Court. Further, and in any event, it is submitted that the application of the Act in this case will necessarily involve consideration of the 2017 report, and this will amount to impermissible interference in the proceedings of Parliament.
15 In Huata v Prebble [2004] NZCA 147, the Court of Appeal of New Zealand considered the application of this aspect of parliamentary privilege to legislation concerned with the election of a member of Parliament and whether in particular circumstances, that member's seat became vacant. The court acknowledged that the issue of parliamentary privilege required consideration because the issues arising under the legislation touched "on the functioning of Parliament":
"There is a well settled principle that what is said and done within the walls of a legislative assembly cannot be questioned in the Courts. It is recognised that the respective constitutional roles of the Courts and Parliament normally require the Courts to refrain from intervening in Parliamentary proceedings. Conflicts between the judicial and legislative organs of the state are to be avoided as far as possible. Generally speaking, a body such as the Legislative Assembly of Western Samoa is left free to regulate and determine its own internal procedure from time to time."
16 The majority acknowledged that the principle applied notwithstanding that the parliamentary procedure was prescribed by statute. However, it concluded that the relevant statute could override the provisions of Art 9 "expressly or by implication". The majority concluded that, in the circumstances of the particular case, judicial review was available and accordingly "that the court in these proceedings must ensure that the requirements of the legislation are observed".
17 In this appeal, the Court is not dealing with the availability of judicial review of decisions made under the PWC Act in the sense prescribed by the Judicial Review Act 2000. For example, the Court is not being asked to directly review the refusal or failure of the Governor to refer the works to the Committee. Rather, the appellant is seeking a declaration that the works fit the description of those to which relevant provisions of the Act apply, and an injunction preventing the commencement of the works until there has been compliance with those provisions. In my view, the approach of the Court of Appeal in Huata v Prebble is applicable to the question of the justiciability of the controversy raised by this claim. In particular, I am satisfied that it is a question of statutory construction whether it is within
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the jurisdiction of the Court to "ensure that the requirements of the legislation are observed", or alternatively whether such a role is precluded as a matter of parliamentary privilege. As observed by the Court of Appeal, the application of Art 9 is subject to the provisions of inconsistent legislation, and the inconsistency can arise "expressly or by implication". It is, accordingly, necessary to consider the relevant provisions of the PWC Act in this context.
The PWC Act
18 As is apparent from the long title of the Act, the purpose of the legislation is to establish "a Parliamentary standing committee on public works". The legislation contains detailed provisions concerning the constitution of the Committee and its procedures, including voting and the power to summon witnesses and take evidence on oath. There are protections and privileges for witnesses and provisions dealing with coercive procedures to compel evidence.
19 The provisions most relevant to this case are ss 15 and 16. They are set out hereunder:
"15 Functions of Committee
(1) The Committee shall, subject to the provisions of this Act, consider and report upon every public work that is proposed to be undertaken by a general government sector body, except any public work which hereafter may be withdrawn from the operation of this Act by a resolution withdrawing same adopted by each House of Parliament (and whether such work is a continuation, completion, repair, reconstruction, extension, or new work), in all cases where the estimated cost of completing the work exceeds the relevant monetary threshold in relation to the work.
(2) In considering and reporting on any work, the Committee shall have regard to –
(a) the stated purpose thereof;
(b) the necessity or advisability of carrying it out; and where the work purports to be of a reproductive or revenue producing character, the amount of revenue which it may reasonably be expected to produce; and
(c) the present and prospective public value of the work –
and generally the Committee shall in all cases take such measures and procure such information as may enable them to inform or satisfy Parliament as to the expedience of carrying out the work.
(3) In this section –
general government sector body means –
(a) a Government department within the meaning of the State Service Act
2000 ; and
(b) any State authority classified as an entity within the general government
sector in the Treasurer's annual report;State authority means a body or authority, whether incorporated or not, that is established or constituted under a written law or under the royal prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority, but does not include a Government department within the meaning of the State Service Act 2000 ;
Treasurer's annual report means the annual report prepared by the Treasurer under section 40 of the Financial Management Act 2016 .
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16 Conditions precedent to commencing public works
(1) No public work to which section fifteen applies (except such works as have already been authorized by Parliament or hereafter may be withdrawn from the operation of this Act by a resolution withdrawing same adopted by each House of Parliament), the estimated cost of completing which exceeds the relevant monetary threshold in relation to such work, and whether such work is a continuation, completion, repair, reconstruction, extension, or new work, shall be commenced unless it has first been referred to and reported upon by the Committee in accordance with this section.
(2) The Governor shall by writing under his hand addressed to the Committee refer every proposed public work that exceeds the relevant monetary threshold in relation to such work to the Committee for their report thereon.
(3) With every such reference to the Committee there shall be furnished to the Committee an estimate of the cost of such work when completed, together with such plans and specifications or other descriptions as the Minister administering the Public Works Construction Act 1880 for the time being deems proper, together with the prescribed reports on the probable cost of construction and maintenance, and an estimate of the probable revenue, if any, to be derived therefrom. Such estimates, plans, specifications, descriptions, and reports to be authenticated or verified in the prescribed manner.
(4) The Committee shall, with all convenient dispatch, deal with the matter and shall as soon as conveniently practicable, regard being had to the nature and importance of the proposed work, report to the House of Assembly, if the House of Assembly is then in session, and, if not, to the Governor, the result of their inquiries.
(5) If in a report under subsection (4) of this section, the Committee does not recommend the carrying out of the work to which the report relates, that work shall not be commenced unless and until it has been authorized by an Act."
20 It is apparent from these provisions that the exclusive function of the Committee is to examine public works of the defined value, and provide Parliament with sufficient information to enable it to determine "the expedience of carrying out the work". This is clearly intended to facilitate and ensure parliamentary oversight of the conduct of such work by government. There can be no real question that in carrying out its functions as prescribed under s 15, the Committee is engaged in parliamentary work, and parliamentary privilege will apply to it. There is ample authority that parliamentary privilege applies to the proceedings and determinations of a parliamentary committee. See Cornwall v Rowan.
21 However, this case is primarily concerned with a particular aspect of the operation of s 16. As is clear from the heading of that section, s 16(1) makes the referral and report of a proposed public work, a condition precedent of the commencement of that work. The referral necessary to satisfy the condition precedent is prescribed by s 16(2). That section requires the Governor to "refer every proposed public work" of the relevant value to the Committee for report. Relying on the reasoning of Gallen J in Mangawaro Enterprises, the Attorney argues that the referral by the Governor to the Committee under that provision is part of the parliamentary process and, accordingly, it comes under the ambit of parliamentary privilege. Hence, it is argued, the courts cannot enforce compliance with the apparently mandatory requirement that every proposed public work be referred to the Committee. That is a matter solely within the power and responsibility of Parliament.
22 I am in partial agreement with this submission. The question of whether or not the Governor refers a proposed work to the Committee under s 16(2) is not a matter that can be reviewed or enforced by the courts. However, there is an important distinction between the legislation in this case, and that in Mangawaro Enterprises. In the latter case, the purpose of the referral was solely relevant to the work of Parliament. Once made, then the purpose of the legislative requirement to refer is fulfilled, in that the inconsistency has been brought to the attention of the Parliament, which can then deal with the
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inconsistency as it sees fit. The referral has no further purpose, in particular it is not related to nor affects
the conduct of any person or body outside Parliament.23 In contrast, the statutory purpose and significance of a referral by the Governor under the PWC Act extends beyond the facilitation of review of public works by the Committee. Under s 15, the Committee is charged with reviewing and reporting on all relevant public work. There is no requirement in that section limiting that power and responsibility to works which have been referred to it by the Governor under s 16(2). It is important, in my view, that the mandatory requirement of referral by the Governor is not contained in that section, but rather in the provision dealing with the condition precedent for the commencement of public works. Section 16(1) takes the PWC legislation a step further than merely facilitating parliamentary review of public work. It prohibits the commencement of public work unless and until there has been such scrutiny, that is there has been referral under s 16(2) and consequent report by the Committee. This prohibition does not fall upon Parliament, but rather binds those who would perform the public work, which clearly must be executive government and those who contract with it. The referral by the Governor is an essential component of the condition precedent contained in s 16(1). Hence, the work cannot lawfully be commenced until it comes within the consideration of the Committee by the prescribed mechanism.
24 In my view, these provisions of s 16 create public obligations which fall outside the scope of the parliamentary process, and hence the ambit of parliamentary privilege. The prohibition on the commencement of work without the prescribed parliamentary scrutiny is intended to apply to persons and organisations outside Parliament. This prohibition is a critical aspect of the legislative scheme. Despite this, there is nothing in the legislation which suggests that enforcement of the prohibition is a matter for Parliament. On the contrary, it is clear from the legislative scheme and the legislative text, that the enforcement of this prohibition is not a matter that falls within the parliamentary process, but rather is intended to be a public obligation enforceable under the general law. As such, as with any public obligation, it is intended to be enforced by the courts.
25 This construction of the legislation can be tested in this way. Putting aside the facts of this case for a moment, in a situation where there is no suggestion of any prior referral of relevant work to the Committee, there is nothing prescribed in the legislation which would empower the Parliament to identify or require the referral of work to it under s 16(2). Counsel for the respondent submitted that the obligation of referral in such a case is a matter of executive or ministerial responsibility to Parliament and, for this reason, falls within the ambit of parliamentary privilege. There may be force in this argument if the legislative requirement in s 16 included only that contained in subs (2) and omitted subs (1). In that situation, the legislative scheme would be comparable to that applicable in the Mangawaro Enterprises case, and the question of compliance of the executive with the obligation of referral contained in s 16(2) would be a matter falling within the parliamentary process. However, it seems to me that s 16(1) extends the application and operation of the legislation in a critical way. The existence of the prohibition in that section supports the conclusion that the legislative scheme extends beyond parliamentary process and review by imposing a restraint on the conduct of persons outside Parliament, where that review has not taken place. In other words, if the appropriate referral has not been made, and work is being commenced, then not only is the relevant member of the executive in breach of its obligations to the Parliament, it is in breach of the public duty imposed by statute. In practical terms, it will be carrying out work in circumstances which are prohibited by the legislation, because the appropriate parliamentary scrutiny has not taken place. It is clear that this is intended to mandate such scrutiny of relevant public works. Such a scheme will only have efficacy if it can be a lawfully enforced on applicable persons outside Parliament. Having regard to the extensive prescription and regulation of the powers and procedure of the Committee once a referral is made, it is inconceivable that if Parliament had intended that it be part of the legislative scheme that it be solely responsible for enforcing compliance with the condition precedent on the performance of public works, that it would not have included in that scheme powers and procedures for such enforcement. It has not done so, and,
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accordingly, I am satisfied that the legislation, by implication, envisages that this public obligation will
be subject to the protection and enforcement of the courts.26 Of course, this conclusion does not affect the application of parliamentary privilege to the work of the Committee once a referral has been made to it. It is clear, I think, and not in issue in this case, that parliamentary privilege will apply in the normal way to the proceedings and determination of the Committee. Further, the Court has no role in directly reviewing a decision of the Governor to refer or not refer works to the Committee. However, parliamentary privilege will not prevent the courts from restraining the commencement of public works in breach of the legislation. It follows that it is within the authority of the courts to determine the facts necessary to establish whether the condition precedent contained in s 16 (1) is applicable and has been met in a particular case.
The primary judge's decision
27 This conclusion does not necessarily deal with the basis of the decision reached by the primary judge. His Honour's decision was specifically concerned with the 2017 report, and the inevitability of the examination of that report by the Court in the course of determining this action. His Honour's critical reasoning is set out in the following paragraphs:
"[30] It is clear from Cornwall v Rowan and the cases that preceded it that the proceedings of a parliamentary committee are proceedings in Parliament for the purposes of the Bill of Rights. In this action, the plaintiff is seeking to have a report of a parliamentary committee examined, discussed, and adjudicated upon for the purpose of determining whether or not the Hazell Bros works are so different from those reported upon in 2017 that the process of referral and reporting needs to be repeated. If this Court undertakes that adjudication, it is conceivable that, whatever conclusion it reaches, the Committee could subsequently consider the same question and reach the opposite conclusion. Parliamentary privilege exists so that such situations cannot arise.
[31] If this Court were to adjudicate upon a dispute as to whether the PWC Act requires a fresh referral by the Governor and a fresh report by the Committee in respect of the Hazell Bros works, the same situation could arise. In asserting that obligations imposed by the PWC Act on the Governor and the Committee have not been complied with, the plaintiff is seeking to impugn Parliament's supervision and control of the Executive through the Committee, and that infringes parliamentary privilege.
[32] The plaintiff's action cannot succeed without this Court adjudicating upon the 2017 report of the Committee, and the response of the Governor and the Committee to the obligations imposed upon them by the PWC Act. Adjudicating upon those matters would contravene Article 9 of the Bill of Rights and is therefore not permitted. The plaintiff's action therefore has no hope of success."
28 I agree with the learned primary judge that for the purpose of determining whether parliamentary privilege applies to and affects the proposed proceedings, the Court should proceed on the basis that the conduct of the appellant's case on the pleaded cause of action will inevitably require consideration of the 2017 report. This deals, I think, with the argument raised by ground 1 of the appeal. Counsel for the appellant submitted that this was an error on the part of the primary judge because all that is required to establish the appellant's case as a matter of law is that the subject works have not been the subject of referral and report as required by s 16(1). Taken in the abstract, this submission is correct. However, the question of whether this litigation is vexatious because it will inevitably infringe upon parliamentary privilege, requires a realistic approach in the circumstances of this case. There is no question that comparison between the work now proposed and that which was the subject of the 2017 report will arise. The existence of that report and the difference between the respective works, are matters which were pleaded in the statement of claim, and apparently, therefore, relied upon by the appellant as part of his case. The comparison is a circumstance which directly relates to the lawfulness of the proposed work and, hence, is relevant to the Court's discretion to grant injunctive relief. The
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primary judge's decision was based on the conclusion that the consideration of that report for that
purpose would infringe parliamentary privilege. I now turn to consider that conclusion.29 Before discussing the relevant principles, I observe that there would appear to be little decided authority on this question, in respect of this provision. A number of other jurisdictions have comparable legislation, but I can locate no case outside Tasmania dealing with a similar question arising under such legislation. The only similar case is in fact a Tasmanian authority, Bates v Attorney-General of Tasmania [1995] TASSC 28. In that case, Cox J (as he then was) dealt with an action which sought declaratory relief and injunctions in respect of public work, the commencement of which was said to be unlawful having regard to the provisions of s 16 (1) of the PWC Act. The issue was identical to that in this case, that is whether the public work in question had been the subject of an earlier referral and report. His Honour considered the claim on its merits, made the relevant comparison, and determined that the work was not so different in character as to require a fresh referral and report. The question of parliamentary privilege does not appear to have been raised or considered by the judge. Of course, the failure by the parties to raise, or the judge to consider, the question of parliamentary privilege in that case does not resolve the question in this case.
30 An important aspect of parliamentary privilege is the protection of freedom of speech during parliamentary proceedings. Hence, those involved in parliamentary proceedings will have the protection of absolute privilege for all that is said and done in Parliament. For example, in Tasmania, this privilege is applied expressly by statute: see s 27(2)(a) of the Defamation Act 2005; ss 196(2) and (3) of the Criminal Code. Further, parliamentary privilege will prevent evidence of parliamentary proceedings being admitted in court for the purpose of attacking the validity of what is done in Parliament or bringing into question, for evidentiary purposes, the truth of parliamentary statements. However, the privilege will not prevent proof of parliamentary proceedings, where the fact of the occurrence of those proceedings is relevant in the litigation. The distinction has been explained in a number of cases. For example, in Egan v Willis, Kirby J said:
"As the Privy Council pointed out in Prebble v Television New Zealand Limited, it is important to avoid confusion between the right to prove the occurrence of parliamentary events and the prohibition on questioning their propriety, as for example, suggesting that a member had misled the House or acted wrongly or from improper motives."
31 His Honour was referring to the following passage from the speech of Lord Browne-Wilkinson
delivering the judgment of the Privy Council in Prebble:
"For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception such as exists in New Zealand in relation to perjury under section 108 of the Crimes Act 1961.
However, their Lordships wish to make it clear that this principle does not exclude all references in court proceedings to what has taken place in the House. In the past, Parliament used to assert a right, separate from the privilege of freedom of speech enshrined in Article 9, to restrain publication of its proceedings. Formerly the procedure was to petition the House for leave to produce Hansard in court. Since 1980 this right has no longer been generally asserted by the United Kingdom Parliament and their Lordships understood from the Attorney General that in practice the House of Representatives in New Zealand no longer asserts the right. A number of the authorities on the scope of Article 9 betray some confusion between the right to prove the occurrence of parliamentary events and the embargo on questioning their propriety. In particular, it is questionable whether Rost v Edwards [1990] 2 QB 460 was rightly decided.
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Since there can no longer be any objection to the production of Hansard, the Attorney General accepted (in their Lordships' view rightly) that there could be no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history. Similarly, he accepted that the fact that a statute had been passed is admissible in court proceedings. Thus, in the present action, there cannot be any objection to it being proved what the plaintiff or the Prime Minister said in the House (particulars 8.2.10 and 8.2.14) or that the State-Owned Enterprises Act 1986 was passed (particulars 8.4-1). It will be for the trial judge to ensure that the proof of these historical facts is not used to suggest that the words were improperly spoken or the statute passed to achieve an improper purpose."
32 There is also authority for the proposition that parliamentary privilege will prevent the admission of statements made in Parliament for the purpose of proving the truth of the facts asserted in those statements. In Mees v Roads Corporation [2003] FCA 306, Gray J confirmed that it is permissible for a court to receive evidence "by way of the tender of the records of parliamentary proceedings in Hansard, that a particular member addressed the House on a particular date at a particular time, because this is nothing other than historical record". His Honour confirmed that it was permissible to provide evidence of "the words spoken" rather than simply describing the effect of what was done. His Honour pointed out, however, that this cannot be done for the purpose of establishing that the statement was "false or misleading" and provided compelling reasoning supporting the proposition that the purpose of admitting evidence of what is said and done in parliament should not be to establish the truth of the asserted facts. His Honour noted that if this were permitted, then it would distort the effect of the evidence because the other party would not be permitted to challenge the truth of the statement.
33 In this case, the application of these authorities and the principles discussed in them must lead to the conclusion that there is no prohibition against admission of the 2017 report, or the statements and evidence relevant to that report, in order to establish the fact and content of the report. It must also be permissible to admit the documents referred to in the report for the purpose of establishing the scope of the work which is the subject of the report. These facts are sufficient to enable the Court to determine whether the work now proposed has been the subject of a referral and report sufficient to satisfy the condition precedent to the commencement of work contained in s 16(1). This determination simply requires a direct comparison between the relevant works, in the nature of that undertaken by Cox J in Bates v Attorney-General. I do not agree with the learned primary judge that proving the report and underlying documents referred to in the report for this purpose will involve the Court examining, discussing and adjudicating upon the report, in the sense prohibited by parliamentary privilege. Nor does it involve using the report or the documents referred to in it to establish the truth of any facts asserted in them. Those matters are simply not issues raised by the appellant's action. The comparison does not involve impugning the validity of the report nor questioning its accuracy. The Court will not need to consider whether the statements made to the Committee are true or accurate, nor make any judgement about the correctness or validity of the Committee's recommendations. In my view, proof of the report and underlying documents for the purpose of the comparison does not infringe parliamentary privilege.
34 I also disagree with the conclusion reached by the primary judge that the Court's adjudication of the difference between the 2017 work and the new work infringes parliamentary privilege because "the committee could subsequently consider that same question and reach the opposite conclusion". In my view, this is not a relevant consideration. As I have already concluded, the Court has jurisdiction to determine whether the commencement of the work is unlawful because of a failure to meet the condition precedent in s 16(1). The fact that the Governor and the Committee may have a different view does not detract from the jurisdiction of the Court to grant injunctive relief to enforce the provisions of s 16(1). In practical terms, if the appellant is successful in his action because of such a determination, then at the most, the relief which will be available will be an injunction preventing the commencement of the new work unless and until there has been a further referral and report in respect of that work. It will be a matter for the Governor as to whether such a referral is made. However, unless and until such referral is made then the commencement of the new work will be unlawful, and any restraint imposed by the
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Court will continue. If a referral is made then, irrespective of the view reached by the Court in granting the relief, one of the possible outcomes is that the Committee concludes that there is little significant difference in respect of the relevant work and so reports to the Parliament, presumably reiterating its earlier recommendation. Such a conclusion and report would not be open to challenge before the courts and any attempt at such challenge would be appropriately met by a claim of parliamentary privilege. However, by that report, the condition precedent under s 16(1) will have been satisfied, and its purpose, that is, to mandate the scrutiny of Parliament before the work commences, will have been fulfilled.
35 It follows that, at least, grounds 3 and 4 of the appellant's Notice of Appeal have been made out. The primary judge erred by concluding that adjudication by the Court upon the difference between the work to which the 2017 report related and the work now proposed, for the purpose of determining whether commencement of that work is lawful having regard to the provisions of s 16(1) of the PWC Act, contravenes Art 9 of the Bill of Rights and that, accordingly, the appellant's action has no hope of success. In my view, the Attorney's interlocutory application was misconceived, and that application ought to have been dismissed. I would allow the appeal, set aside the order of the primary judge and in its place, order that the Attorney's interlocutory application be dismissed.
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File No FCA 503/2022
GREGORY JOHN CASIMATY v HAZELL BROS GROUP PTY LTD
and ATTORNEY-GENERAL
| REASONS FOR JUDGMENT | FULL COURT GEASON J (Dissenting) 4 May 2023 |
36 The factual background to the action giving rise to this appeal is set out in the judgment of the Chief Justice at first instance:
"There is a busy junction on the Tasman Highway near the Hobart Airport. Three roads meet the highway at that junction. They include Holyman Avenue, which leads to the airport, and Cranston Parade. The plaintiff, Gregory Casimaty, claims to have an interest in a piece of land on Cranston Parade. Some years ago the Tasmanian Government's Department of State Growth decided that a new interchange should be developed and constructed at the junction. Plans and drawings were prepared and submitted for consideration by the Parliamentary Standing Committee on Public Works ("the Committee") pursuant to the Public Works Committee Act 1914 ("the PWC Act"). The Committee considered and reported upon the proposal in late 2017. Subsequently the department engaged the first defendant, Hazell Bros Group Pty Ltd, to construct the new interchange. The plaintiff has commenced an action seeking declaratory relief and an injunction restraining Hazell Bros from undertaking the works. He contends that Hazell Bros has been engaged to construct the interchange in accordance with revised plans; and that the works that Hazell Bros has been engaged to undertake are not the same as the works approved by the Committee and have not been considered by the Committee. He has sought a declaration to the effect that Hazell Bros' public works are works to which ss 15 and 16 of the PWC Act apply, as well as the injunction that I have referred to."
37 The legislative provisions in the PWC Act relevant to the action are:
"15 Functions of Committee
(1) The Committee shall, subject to the provisions of this Act, consider and report upon every public work that is proposed to be undertaken by a general government sector body, except any public work which hereafter may be withdrawn from the operation of this Act by a resolution withdrawing same adopted by each House of Parliament (and whether such work is a continuation, completion, repair, reconstruction, extension, or new work), in all cases where the estimated cost of completing the work exceeds the relevant monetary threshold in relation to the work.
(2) In considering and reporting on any work, the Committee shall have regard to –
(a) the stated purpose thereof;
(b) the necessity or advisability of carrying it out; and where the work purports to be of a reproductive or revenue producing character, the amount of revenue which it may reasonably be expected to produce; and
(c) the present and prospective public value of the work –
and generally the Committee shall in all cases take such measures and procure such information as may enable them to inform or satisfy Parliament as to the expedience of carrying out the work.
(3) In this section –
general government sector body means –
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(a) a Government department within the meaning of the State Service Act 2000 ;
and
(b) any State authority classified as an entity within the general government sector
in the Treasurer's annual report;
State authority means a body or authority, whether incorporated or not, that is established or constituted under a written law or under the royal prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority, but does not include a Government department within the meaning of the State Service Act 2000 ;
Treasurer's annual report means the annual report prepared by the Treasurer under section 40 of the Financial Management Act 2016 .
16 Conditions precedent to commencing public works
(1) No public work to which section fifteen applies (except such works as have already been authorized by Parliament or hereafter may be withdrawn from the operation of this Act by a resolution withdrawing same adopted by each House of Parliament), the estimated cost of completing which exceeds the relevant monetary threshold in relation to such work, and whether such work is a continuation, completion, repair, reconstruction, extension, or new work, shall be commenced unless it has first been referred to and reported upon by the Committee in accordance with this section.
(2) The Governor shall by writing under his hand addressed to the Committee refer every proposed public work that exceeds the relevant monetary threshold in relation to such work to the Committee for their report thereon.
(3) With every such reference to the Committee there shall be furnished to the Committee an estimate of the cost of such work when completed, together with such plans and specifications or other descriptions as the Minister administering the Public Works Construction Act 1880 for the time being deems proper, together with the prescribed reports on the probable cost of construction and maintenance, and an estimate of the probable revenue, if any, to be derived therefrom. Such estimates, plans, specifications, descriptions, and reports to be authenticated or verified in the prescribed manner.
(4) The Committee shall, with all convenient dispatch, deal with the matter and shall as soon as conveniently practicable, regard being had to the nature and importance of the proposed work, report to the House of Assembly, if the House of Assembly is then in session, and, if not, to the Governor, the result of their inquiries.
(5) If in a report under subsection (4) of this section, the Committee does not recommend the carrying out of the work to which the report relates, that work shall not be commenced unless and until it has been authorized by an Act."
38 Not in contention are these matters:
i The Hazell Bros works are public works for the purposes of the PWC Act. ii The cost of those works exceeds the monetary threshold necessary to engage the PWC
Act.
iii In 2017 the PWC considered and reported upon the interchange works, but not the Hazell
Bros worksiv The Hazell Bros works included revisions to the plans for the interchange works. 15 No 2/2022
39 The appellant's contention on the action is that the Hazell Bros works, not being the same as those previously referred to and reported upon by the PWC Committee were commenced unlawfully.
40 By interlocutory application the second respondent sought the following orders:
1 Pursuant to r 259A and B the action be dismissed and that there be judgment of the Attorney- General (and Hazell Bros Group Pty Ltd) against the plaintiff with costs, on account of the amended statement of claim not disclosing any reasonable cause of action, in that there is no justiciable issue before the Court;
2 In the alternative to 1, that pursuant to r 259A and B each of paragraphs 2C(c), 3, 5, 6, 7, 8, 14, 15, 16 and 17 be struck out by reason that they are vexatious in that they each offend the principal at Parliamentary proceedings and are absolutely privileged, and that there be judgment for the Attorney-General (and Hazell Bros Group Pty Ltd) against the plaintiff with costs.
41 The Chief Justice made orders in terms of paragraph 2 of the interlocutory application.
42 It is not in issue that a report of the PWC Committee about works falling within the terms of the PWC Act is subject to parliamentary privilege[1].
[1] This Court is unanimous in the view that the Chief Justice was correct when he accepted the second respondent's submission that the
43 The appellant contends that to succeed in its action it need only demonstrate that the Hazell Bros works have not been reported upon by the PWC Committee. It asserts that proof of that fact does not require reliance upon or reference to the 2017 report of the Committee, with the result that the report does not need to be examined, thereby avoiding the consequences of its privileged status. It says the report is relevant only to establish an historical "event or transaction" namely that as a matter of objective fact the Hazell Bros works was not reported upon by the Committee.
44 The appellant submits too that it is unnecessary to consider the 2017 report to determine that the statutory obligations imposed upon the Governor in s 16(2) of the PWC Act have not been invoked or that the obligations on the Governor and the Committee have not been complied with. It says that it is unnecessary to consider or adjudicate upon allegations of impropriety on the part of the Committee or any person who appeared before it or otherwise question what was said before the Committee. The appellant contends that proceedings on the action do not impinge upon the exercise of a person's freedom of speech in the parliament or operate to punish a person for having exercised that right and that there are no legal consequences flowing from the action against a member of Parliament or a witness before the Committee.
45 For these reasons it submits that parliamentary privilege is not impugned.
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Discussion
46 Section 16(1) of the PWC Act articulates a condition precedent to the commencement of public works. It makes that requirement subject to exceptions, including an exception for such works as have already been authorised by Parliament. Such works may be commenced though not specifically the subject of a report. The exception captures works which are contemplated by such a report.
47 The exception falls for consideration in the appellant's action as an integral part of the enquiry into compliance with s 16 of the Act. I have focussed upon it because it exposes the incorrectness of the appellant's claim that the 2017 report need not be examined.
48 The question arising by reason of the exception is whether the Hazell Bros works are "different in character" from the works the subject of the 2017 report? If they are not so "different in character" they will fall within the exception: G M Bates v Attorney-General of Tasmania [1995] TASSC 28, per Cox J as he then was. That result will be a complete answer to the appellant's action.
49 In Bates (above) Cox J was considering an action seeking injunctions and declaratory relief in respect of public works the commencement of which was asserted to have been unlawful because it breached s 16(1) of the PWC Act. The court compared the works the subject of the referral and report of the PWC Committee, and the works the subject of the challenge, and determined that the work was not so different in character as to have required a fresh referral[2]. The exception was engaged, and the challenged works were lawful.
[2] As Brett J notes at [28], the Court does not appear to have considered the question of Parliamentary privilege in Bates, presumably because it was not
50 The approach taken in Bates exposes the enquiry required to identify whether s 16(1) has been
complied with.
51 That enquiry compels a consideration of the PWC report. Such enquiry is impermissible as the PWC report is a "proceeding in parliament" under the terms of Art 9 of the Bill of Rights 1688 (IMP): Cornwall v Rowan (2004) 90 SASR 269, 386 citing Dingle v Associated Newspapers Ltd [1960] 2 QB 405,410 per Pearson J. The substance of what was said or done in Parliament cannot be the subject of inquiry by a court: Victorian Taxi Families Inc v Taxi Services Commission [2018] 61 VR 91, 121 [92] citing Amann Aviation Pty Ltd v Commonwealth of Australia [1988] 19 FCR 223, 231 per Beaumont J.
52 The Chief Justice was correct to hold at [32] that "the plaintiff's action cannot succeed without
this Court adjudicating upon the 2017 report of the committee…".
53 Grounds 1 and 3 must fail.
54 The same considerations inform my conclusion in respect of the second ground of appeal. The question of whether the Governor acted or fail to act in accordance with the PWC Act turns on whether the obligation appearing in s 16(2) of the Act was engaged. If the exception applies it was not. It is confronted by the same problem. It cannot be answered without reference to the 2017 report.
55 Ground 2 fails.
56 Ground 4 asserts that the Chief Justice misapprehended the nature of the interlocutory
application because he concluded "the plaintiff's action… has no hope of success". He was correct.
While in my view orders could have been made under either paragraph of the Attorney's interlocutory application, and even if the more appropriate order was in terms of paragraph 1, the point is academic.
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57 The appeal should be dismissed.
proceedings of a committee are a proceeding in Parliament for the purposes of Article 9 of the Bill of Rights 1688 (IMP). The scope of the privilege can be discerned from s 24 of the Australian Courts Act 1828 (IMP) and Article 9 of the Bill of Rights 1688 (IMP). Article 9 of the Bill provides that:
"The Freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out
of Parlyament." "The Parliamentary Privilege Act 1858 (Tas), by s 12, does not affect any power or privilege possessed by either House
of Parliament before the passing of the Act… The privileges of the Tasmanian Parliament, to the extent that they are not defined by
statute.. accord with the common law. The report of the proceedings of a Parliamentary Committee is a 'proceeding in Parliament' for
the purposes of Article 9 of the Bill or Rights 1688 (IMP).”
In art 9: 'impeached' is interpreted to mean 'impeded, hindered, or prevented' or 'determinately or prejudicially affected or impaired'; and
'questioned' is interpreted to mean 'examined, discussed and adjudged', in Court" (my emphasis).
(References/footnotes omitted).[extracted from the submissions of the Attorney-General]
(The Attorney notes exceptions to the principal relating to the use of Ministerial statements as an aid to the construction of ambiguous
legislation, and exception now enshrined in legislation: Acts Interpretation Act 1931(Tas) ss 8A, 8B.)
raised.
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