Casimaty v Hazell Bros Group Pty Ltd (No 2)
[2022] TASSC 9
•21 February 2022
[2022] TASSC 9
COURT: SUPREME COURT OF TASMANIA
CITATION: Casimaty v Hazell Bros Group Pty Ltd (No 2) [2022] TASSC 9
PARTIES: CASIMATY, Gregory John
v
HAZELL BROS GROUP PTY LTD
ATTORNEY-GENERAL
FILE NO: 2259/2020
DELIVERED ON: 21 February 2022
DELIVERED AT: Hobart
HEARING DATE: 5 November 2021
JUDGMENT OF: Blow CJ
CATCHWORDS:
Constitutional Law – The non-judicial organs of Government – The legislature – General matters – Privileges – Privilege of parliamentary debates and proceedings – States – Proceedings and omissions of a parliamentary committee – Whether admissible to prove non-compliance with statute requiring public works to be considered and reported upon by parliamentary committee.
Bill of Rights 1688, Article 9.
Public Works Committee Act 1914 (Tas), ss 15, 16.
Stockdale v Hansard (1839) 9 Ad & E 1, 112 ER 1112; Bradlaugh v Gossett (1884) 12 QBD 271; Church of Scientology of California v Johnson-Smith [1972] 1 QB 522; Prebble v Television New Zealand Ltd [1995] 1 AC 321; Dingle v Associated Newspapers Ltd [1960] 1 QB 405; R v Murphy (1986) 5 NSWLR 18; New South Wales Branch of the Australian Medical Association v Minister for Health and Community Services (1992) 26 NSWLR 114; Cornwall v Rowan [2004] SASC 384, 90 SASR 269; Mangawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451, referred to.
Aust Dig Constitutional Law [161]
REPRESENTATION:
Counsel:
Plaintiff: B R McTaggart SC, G O'Rafferty
First Defendant: No Appearance
Second Defendant M E O'Farrell SC, D R Osz
Solicitors:
Plaintiff: Leonard Fernandez Barristers and Solicitors
First Defendant: Shaun McElwaine + Associates
Second Defendant: Solicitor-General
Judgment Number: [2022] TASSC 9
Number of paragraphs: 33
Serial No 9/2022
File No 2259/2020
GREGORY JOHN CASIMATY v HAZELL BROS GROUP PTY LTD
and ATTORNEY-GENERAL (NO 2)
REASONS FOR JUDGMENT BLOW CJ
February 2022
This application concerns the construction of a highway interchange, parliamentary privilege, and a dispute as to whether the plaintiff's action relates to a justiciable controversy.
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.
For the reasons stated below, I am inclined to think that the plaintiff would have an arguable cause of action if no question of parliamentary privilege arose. However I have concluded that evidence as to the proceedings and omissions of the Committee would not be admissible for reasons associated with parliamentary privilege, and that the plaintiff's action cannot possibly succeed without that evidence.
The legislation
The Committee is a joint committee of members of the Legislative Council and the House of Assembly. It is constituted pursuant to s 3(1) of the PWC Act.
Section 15 of that Act describes the functions of the Committee. The relevant provisions in that section read as follows:
"(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 ...".
The following matters can be accepted for present purposes. The work that Hazell Bros has been engaged to undertake is a "public work" for the purpose of the PWC Act. The Department of State Growth is a "general government sector body". The estimated cost of completing the work exceeds the "relevant monetary threshold". The Committee considered and reported upon the proposed interchange works in late 2017, but has not subsequently considered or reported upon any revised plans for the interchange.
Section 16 of the PWC Act makes referral to, and a report by, the Committee a condition precedent to the commencement of public works to which s 15 applies. Section 16 reads as follows:
"(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."
The plaintiff contends that s 16(1) requires the Hazell Bros works not to be commenced because those works are not the same as those previously referred to and reported upon by the Committee.
A justiciable controversy?
The plaintiff has not pleaded that any personal or proprietary right or interest of his has been or will be affected by Hazell Bros carrying out works in accordance with the revised plans. His pleading goes only so far as to assert the following facts:
· He has an interest in land at 51 Cranston Parade.
· The plans considered and reported on by the Committee "provided connections from the westbound on ramp to Cranston Parade that would allow left turn in and left turn out movements only".
· The Hazell Bros works "do not provide connections from the westbound on ramp to Cranston Parade that will allow left turn in and left turn out movements only" but provide "for two roundabouts providing access to Kennedy Drive and Holman [sic] Avenue", unlike the works considered and reported upon by the Committee.
The Attorney-General's contentions as to the lack of a justiciable controversy are encapsulated in the following passages in the Solicitor-General's written submissions:
"The essence of the plaintiff's action is therefore that the first defendant's works are (in his view) less desirable than the works reflected in the plans submitted to the Committee. Put differently, he is deprived of a perceived benefit to which he, same as any other member of the public, has no legal entitlement.
That benefit is no more than a mere 'expectancy'. Expectancies are not proprietary in character, nor are they an interest protected or enforced in the courts. The plaintiff's claim is, for this reason, not one in respect of which this court will provide relief. Consequently, there is no justiciable controversy before this court. The amended statement of claim must, for this reason alone, be struck out." [Footnote omitted.]
The plaintiff is seeking equitable relief to enforce a public right. He has no statutory right to initiate proceedings to enforce the PWC Act. In that situation, the availability of equitable relief is limited to certain situations. The law is as stated by Prof Dal Pont in Equity and Trusts in Australia, 7th ed, at [37.40]:
"The principle that the Attorney-General is the proper plaintiff in actions that seek to protect or enforce public rights in the courts is subject to three main exceptions: first, where the interference with the public right also involves interference with a private right of the plaintiff; secondly, where, in respect of the public right, the plaintiff suffers special damage peculiar to herself or himself from the interference with the public right; and thirdly, where the plaintiff has a special interest in the subject matter of the proceedings, namely an interest beyond merely that of righting a wrong, upholding a principle or winning a contest."
In my view it is arguable that the plaintiff has a special interest in the subject matter of the proceedings, in that he claims to have an interest in a piece of land in Cranston Parade, and appears to contend that an interchange constructed in accordance with the revised plans will result in less convenient access to or from that property than an interchange constructed in accordance with the plans considered by the Committee.
Gibbs J (as he then was) took the view that a plaintiff with a special interest would have standing to sue in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, in which he said, at 530-531:
"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."
In Onus v Alcoa of Australia Ltd (1982) 149 CLR 27, the High Court held that a group of Aboriginal people had standing to commence an action to restrain another citizen from contravening a statutory provision relating to aboriginal relics on the basis of a claimed special interest in relation to the cultural and spiritual importance of certain relics.
If the statutory provisions on which the plaintiff's claim is based were unrelated to the proceedings of Parliament, I am inclined to think that his interest in convenient access to and from the property in which he claims to have an interest would arguably be sufficient for his action not to be dismissed as frivolous, vexatious or devoid of merit. See Supreme Court Rules 2000, r 59; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130.
Parliamentary privilege
Article 9 of the Bill of Rights 1688 provides as follows:
"... 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."
That provision applies in Tasmania by virtue of s 24 of the Australian Courts Act 1828 (Imp).
The fundamental principles relating to the relationship between Parliament and the courts were discussed in the Court of Queen's Bench in Stockdale v Hansard (1839) 9 Ad & E 1, 112 ER 1112. In that case Lord Denman CJ said, at Ad & E 114, ER 1156, that "whatever is done within the walls of either assembly must pass without question in any other place". Patteson J said, at Ad & E 209, ER 1191, "Beyond all dispute it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled; that whatever is done or said in either House should not be liable to examination elsewhere ...".
In Bradlaugh v Gossett (1884) 12 QBD 271, the plaintiff was a member of the House of Commons who had been ejected by its Serjeant-at-Arms, preventing him from taking his oath as a member and taking his seat. The Serjeant-at-Arms had acted in accordance with a resolution of the House. The plaintiff sought a declaration as to the invalidity of the resolution, and an order restraining the Serjeant-at-Arms from preventing him from entering the House and taking his oath. The Court of Queen's Bench held that it had no power to grant the relief sought. Lord Coleridge CJ, with whom Mathew J concurred, said, at 275:
"What is said or done within the walls of Parliament cannot be inquired into in a court of law."
The third member of the court in that case, Stephen J, said at 278:
"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."
In Church of Scientology of California v Johnson-Smith [1972] 1 QB 522, the plaintiff sought unsuccessfully to introduce extracts from Hansard as evidence of malice in a libel action. In refusing to admit the evidence, Browne J said the following, at 530:
"It will be observed, and indeed the Attorney-General said, that the basis on which Blackstone puts it (Blackstone's Commentaries, 17th ed (1830), Vol 1 p 163) is that anything arising concerning the House ought to be examined, discussed, and adjudged in that House and not elsewhere. The House must have complete control over its own proceedings and its own members. I also accept the other basis for this privilege which the Attorney-General suggested, which is, that a member must have a complete right of free speech in the House without any fear that his motives or intentions or reasoning will be questioned or held against him thereafter. So far as the authorities are concerned it will be seen that the words used are very wide. In the Bill of Rights 1688 itself the word is 'questioned': 'freedom of speech, and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.' Blackstone uses the words 'examined, discussed, and adjudges,' they ought not to be examined, discussed or adjudged elsewhere than in the House."
In Prebble v Television New Zealand Ltd [1995] 1 AC 321 Lord Browne-Wilkinson, delivering the judgment of the Privy Council, said, at 332:
"In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 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 (1811) 14 East 1; Stockdale v Hansard (1839) 9 Ad and E 1; Bradlaugh v Gossett (1884) 12 QBD 271; Pick-in v British Railways Board [1974] AC 765; Pepper v. Hart [1993] AC 593. As Blackstone said in his Commentaries (17th ed (1830)), vol 1, p 163:-
'the whole of the law and custom of Parliament has its original 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".'"
It is clear from a number of authorities that Article 9 of the Bill of Rights and parliamentary privilege apply not just to the proceedings of the Houses of Parliament, but also to the proceedings of parliamentary committees. In Dingle v Associated Newspapers Ltd [1960] 1 QB 405, the plaintiff sued the publisher of the Daily Mail for damages for libel in relation to the publication of an extract from a report of a select committee of the House of Commons. The action went to trial, but Pearson J held that it was not open to the plaintiff to impugn the validity of the report because that would be contrary to the Bill of Rights. His Lordship said, at 410, "No such attempts can properly be made outside Parliament."
In R v Murphy (1986) 5 NSWLR 18, it was accepted that evidence given before a select committee of the Australian Senate was inadmissible because the committee's proceedings were proceedings in Parliament for the purposes of the Bill of Rights.
In New South Wales Branch of the Australian Medical Association v Minister for Health and Community Services (1992) 26 NSWLR 114, Hungerford J, sitting as an arbitrator, held that the report of a parliamentary committee ought not to be tendered for the purpose of establishing the facts and conclusions stated in it as that would give rise to a critical examination of its content and the committee's performance, and to the report being "impeached or questioned".
The Full Court of the Supreme Court of South Australia dealt with a question relating to parliamentary privilege in Cornwall v Rowan [2004] SASC 384, 90 SASR 269. That was an appeal against an award of damages for defamation. At trial, the plaintiff had relied upon the evidence of a witness before a parliamentary select committee as evidence of the state of mind of that witness, and as evidence of malice on the part of publishers. At [384]-[397], the court reviewed the authorities and concluded that the evidence of what was said before the parliamentary committee was not admissible because of parliamentary privilege.
There is also authority for the proposition that Article 9 of the Bill of Rights applies not just to proceedings, but also to omissions. In Mangawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451, the plaintiffs asserted that a forestry statute was inconsistent with the New Zealand Bill of Rights Act 1990 (NZ), and that the Attorney-General had failed or neglected to comply with a duty imposed by that Act to bring the inconsistency to the attention of the Parliament. Gallen J upheld the decision of a master to strike out the plaintiff's amended statement of claim on the basis that the effect of the plaintiff's contentions was to seek to have the court question the proceedings of the Parliament in a manner inconsistent with Article 9 of the Bill of Rights. His Honour said, at 456:
"In my view, the obligation imposed upon the Attorney-General and his response or lack of it to that obligation, can properly be described as a part of the proceedings in Parliament and therefore encompassed by art 9 of the Bill of Rights 1688."
In this case the plaintiff cannot succeed without findings of fact being made to the following effect:
· That the works that Hazell Bros has been engaged to undertake are outside the scope of the proposed work that the Committee considered and reported upon in 2017.
· That the Hazell Bros works have not been the subject of a referral by the Governor pursuant to s 16(2) of the PWC Act.
· That the Hazell Bros works have not been reported upon by the Committee pursuant to s 16(4) of the PWC Act.
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.
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.
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.
For these reasons I order that the amended statement of claim be struck out and I dismiss the action.
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