Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 2)
[2023] ACTSC 168
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 2) |
Citation: | [2023] ACTSC 168 |
Hearing Date: | 3 July – 5 July 2023 |
DecisionDate: | 6 July 2023 |
Before: | Curtin AJ |
Decision: | Parliamentary Material admitted |
Catchwords: | EVIDENCE – PRIVILEGE – Parliamentary Privilege – whether parliamentary materials cannot be tendered pursuant to s 16(3)(c) of the Parliamentary Privileges Act 1987 – whether the Court would draw or be invited to draw an inference or conclusion from anything forming part of proceedings in Parliament – tender of documents allowed |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth), s 24(3) Australian Consumer Law, ss 4, 18, 29 Parliamentary Privileges Act 1987 (Cth), s 16 |
Cases Cited: | Buchanan v Jennings [2005] 1 AC 115 Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 Cummings v Lewis (1993) 41 FCR 599 Egan v Willis (1998) 195 CLR 424 Leyonhjelm v Hanson-Young (2021) 282 FCR 341 McCloy v Latham [2015] NSWSC 1782 Mundey v Askin [1982] 2 NSWLR 369 Prebble v Television New Zealand Ltd [1995] 1 AC 321 Rann v Olsen (2000) 76 SASR 450 Sykes v Reserve Bank of Australia (1998) 88 FCR 511 Traderight (NSW) Pty Ltd v Bank of Queensland (No 10) [2012] NSWSC 1181 |
Texts Cited: | Miller, Russell V, Miller’s Australian Competition and Consumer Law Annotated (Thomson Reuters, 45th ed, 2023) |
Parties: | Commissioner for Fair Trading ( Plaintiff) Bowes Street Developments Pty Ltd ( First Defendant) Geocon Bowes Street JV Pty Ltd (Second Defendant) Zapari Property Bowes Street Pty Ltd (Third Defendant) GZ Developments Pty Ltd (Fourth Defendant) GRE Sales Pty Ltd (Fifth Defendant) |
Representation: | Counsel N Sharp SC w/ S Speirs & A Osborn Brodie ( Plaintiff) I Percy w/ C Alden ( First and Third Defendant) J Steele SC w/ D Fuller (Second Defendant) P Bindon (Fourth Defendant) WDB Buckland (Fifth Defendant) |
| Solicitors ACT Government Solicitor ( Plaintiff) King & Collins ( First and Third Defendant) Minter Ellison (Second Defendant) MV Law (Fourth Defendant) BAL Lawyers (Fifth Defendant) | |
File Number: | SC 415 of 2019 |
CURTIN AJ:
EX TEMPORE (REVISED)
Background
In these proceedings objection was taken to the tender of various documents which I will refer to collectively as the Parliamentary Material. They consist of:
(a)extracts of Hansard recording statements made by the ACT Legislative Assembly;
(b)Budget Papers tabled in ACT Legislative Assembly;
(c)a report of the Commonwealth Joint Standing Committee on the National Capital and External Territories…dated October 2018 entitled “Commonwealth approvals for ACT light rail”…; and
(d)various submissions made to the Joint Standing Committee for the purposes of preparing the Report…
Objection is taken on the basis of the provisions of s 16 of the Parliamentary Privileges Act 1987 (Cth) which applies in the Australian Capital Territory, not least because of the terms of s 24(3) of the Australian Capital Territory (Self-Government) Act 1988 (Cth). Because the ACT’s Legislative Assembly has not so far legislated to make a law “with respect to its powers”, the Parliamentary Privileges Act applies.
Section 16 of the Parliamentary Privileges Act says:
16Parliamentary privilege in court proceedings
(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
(4)A court or tribunal shall not:
(a)require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or
(b)admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence;
unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.
(Emphasis original)
The focus of the submissions, and the focus of this ex tempore judgment, is on the terms contained within s 16(3). No party submits that the purposes identified in s 16(3)(a) or (b) are applicable in this case. Nor, on the material before me, does it appear that either of those two subsections apply.
The issue before me is concerned with the provisions of s 16(3)(c) and whether I would draw or be invited to draw any inference or conclusion wholly or partly from anything forming part of the proceedings in Parliament (the Parliamentary Material).
Submissions and Legal Principles
In summary, and hopefully without doing too much violence to the eloquence of the plaintiff’s submissions, the plaintiff made five points.
The first submission was to the effect that in no circumstances could a Court have regard to the content of the Parliamentary Material.
The plaintiff submitted (T 173.42-44):
MS SHARP: Now, that evidence can only be relevant if one has regard to the content of what was said. Once one has regard to the content of what was said one is drawing an inference from it and that falls foul of section 16(3).
That submission was followed by the following exchange:
HIS HONOUR: So is your submission to the effect that as soon as anybody wants to prove the content it falls within 16(3)?
MS SHARP: (c), yes, your Honour.
The second submission was that this issue fell to be determined as a matter of statutory construction.
The third submission, which was, perhaps, more precisely part of the second, is that s 16(3)(c) goes “beyond” what is provided for in s 16(3)(a) and (b), that it should be construed broadly and that all terms used in the section should be given meaning if at all possible.
The fourth submission, and, perhaps, the central submission of the plaintiff, was that s 16(3)(c) would be infringed in that (T 176.38-40):
MS SHARP: Our argument is that the chain of inferences that the defendants rely upon necessarily relies the court [sic] to draw inferences and a conclusion from what was said in the parliament or the submissions.
The plaintiff developed that submission by saying (T 177.28-31):
MS SHARP: …Your Honour has to firstly determine whether the representator generally formed a belief and then, on the basis of the material considered by the representor at that time and what the representor failed to consider at that time, whether that belief was an objectively reasonable one.
I was helpfully taken by the parties to a number of authorities which have considered s 16 but all of those authorities (mainly being defamation cases) involve different issues to those involved in this case. None of those cases have considered s 16 and the question of 'purposes' in a case such as this, which involves the application of ss 4, 18 and 29 of the Australian Consumer Law. Those other authorities to which I was taken provide some guidance, but that guidance is limited because of the different causes of action and other issues involved in those cases as compared to the present case.
In the present case it is appropriate to first identify what the issues are which relate to the Parliamentary Material so as to identify the purpose or purposes for which the documents are or could be tendered.
The short facts of this case are that the five defendant corporations combined in various ways to develop land at Woden, ACT and constructed a mixed residential and commercial building known as Grand Central Towers. In marketing the approximately 430 residential units constructed when they were offered for sale, it is alleged that one or more of the defendants engaged in misleading conduct and made various misleading representations. The plaintiff alleges there were four misleading representations made via six different forms of media. Only three of the representations are relevant to this judgment.
In summary, the three representations relevant to this judgment are pleaded as follows:
(b)the light rail would be extended to Woden Town Centre, and/or stop at, adjacent to or proximate to the Land…;
(c)the travel time from the Land to Canberra City on the light rail would be under 10 minutes and/or that the light rail service would provide light rail every 5 minutes between Woden Town Centre and Canberra City…;
(d)a purchaser of a unit on the Land would be able to rent out the unit at market and obtain a 7% gross rental yield from a lessee….
Those representations are all alleged to be representations as to a future matter.
The defendants say, putting aside their other defences, that the representor or representors of those representations had reasonable grounds for making the representations within the meaning of s 4 of the Australian Consumer Law.
Section 4 says:
4 Misleading representations with respect to future matters
(1) If:
(a)a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and
(b)the person does not have reasonable grounds for making the representation;
the representation is taken, for the purposes of this Schedule, to be misleading.
(2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or
(b) have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.
(4) Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:
(a) a misleading representation; or
(b) a representation that is misleading in a material particular; or
(c) conduct that is misleading or is likely or liable to mislead;
and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.
The following general principles apply to s 4 in its application to the facts of any particular case. Those general principles are:
(a)For there to be “reasonable grounds” at the time of making the representations the representator had to have had facts sufficient to induce in the mind of a reasonable person a basis for making the representation. This cannot involve hindsight reasoning.
(b)The question whether the representor had “reasonable grounds” is an objective rather than subjective one. A genuine or honest belief on the part of the representor in a representation is not sufficient to show reasonable grounds. However, the courts generally consider the position of the representor, including the representor’s knowledge, experience and expertise, in considering whether the representor had reasonable grounds for making a particular representation.
(c)The representor must have in fact relied upon the identified facts and circumstances that existed at the time of the representation to support the reasonable grounds contention regarding the representation.
In Sykes v Reserve Bank of Australia (1998) 88 FCR 511, Heerey J said at 513:
If there was a representation as to a future matter, s 51A [the forebearer of s 4] requires a representor to show:
· some facts or circumstances
· existing at the time of the representations
· on which the representor in fact relied
· which are objectively reasonable and
· which support the representation made.
The word “belief” does not appear in his Honour's judgment, nor does it appear in s 4. The question of belief is mentioned in some of the authorities but in two different ways which are not relevant to this case. The first is in terms of a belief a consumer may form after receipt of a misleading representation. The second sense in which belief is used in the authorities is the belief that a representor may have when that representor has represented that he or she holds a particular opinion, and in such cases, whether or not the representor believed in that opinion is a relevant issue.
In submissions it was put that one issue in the case is whether the relevant actors in this case did or did not hold particular beliefs but, in my view, that issue is irrelevant.
In Cummings v Lewis (1993) 41 FCR 599, Sheppard and Neaves JJ said at 565:
…For the moment, it is important to note that s 41 is of significance for two reasons. Subsection (1) provides that a representation with respect to any future matter shall be taken to be misleading if the person making it does not have reasonable grounds for doing so. The second matter to note is that the onus of establishing that a person had reasonable grounds for making a representation with respect to a future matter is on the person making it.
Their Honours then said at 565:
…Genuine or honest belief is not what s 41 of the Act refers to. It refers to the person making a representation not having reasonable grounds for making it. The distinction is perhaps a fine one, but the fact that a person may honestly believe in a particular state of affairs does not necessarily mean that he has reasonable grounds for his belief that the statement he makes is correct.
The s 41 referred to by their Honours was s 41 of the Fair Trading Act 1987 (NSW). It was in the following terms:
(1) For the purposes of this Part [Part 5 in which s 42 also appears], where a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the person does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2)The onus of establishing that a person had reasonable grounds for making a representation referred to in subsection (1) is on the person.
(3) Subsection (1) shall not be taken to limit by implication the meaning of a reference in this Part to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.
In Miller's Australian Competition and Consumer Law Annotated 2023, 45th edition, the learned authors say at paragraph [ACL.4.80], “The fact that a person may believe in a particular state of affairs does not necessarily mean that there are reasonable grounds for that belief,” and cite Cummings v Lewis.
Cummings v Lewis was also cited with approval in Traderight (NSW) Pty Ltd v Bank of Queensland (No 10) [2012] NSWSC 1181, wherein Ball J said at [48]:
…The question whether there are reasonable grounds for making a particular representation is an objective not a subjective question. A genuine or honest belief on the part of the representor in a representation is not sufficient to show reasonable grounds: Cummings v Lewis (1993) 41 FCR 559 at 565.
Returning to Sykes, the five matters to be considered in a case such are this, are: (1) to identify the particular facts or circumstances relied on, (2) which existed at the time of the representations, (3) on which the representor in fact relied, (4) which are objectively reasonable and (5) which support the representations made.
The plaintiff submitted that, in relation to reasonable belief, that I will be asked to draw an inference or inferences from the Parliamentary Material. I do not agree.
It is sufficient for the purpose of this ex tempore judgment to refer to the case of Leyonhjelm v Hanson-Young (2021) 282 FCR 341. In that case, Rares J was in dissent but on the following point regarding parliamentary privilege his Honour, in substance, took the same view as Wigney and Abraham JJ, albeit their Honours expressed themselves differently.
Rares J said at 361; [43]:
Importantly, s 16(3)(c), in the way in which it is expressed, reflects that the Parliament was concerned to prohibit the use of something that formed part of proceedings in Parliament to draw, or invite the drawing of, inferences or conclusions from that thing.
(Emphasis original)
His Honour then said at 362; [47]:
However, the fact that a person said or did something under Parliamentary privilege has a public and freestanding existence ... Such a fact can be proved if the purpose of the tender is only to establish the existence of that fact (eg for the purpose of defences of fair report of proceedings in Parliament ..., honest opinion about the conduct of the plaintiff described in a Parliamentary debate ... or qualified privilege). But it cannot be proven if the purpose of the tender is to impugn the truth of the statement made in Parliament or motives of the person when saying it there.
Wigney J said at 400; [225]–[226]:
225. It was essentially common ground that it was necessary for the primary judge to determine whether the words that were spoken by Senator Hanson-Young in the interjection constituted such a claim. That was because Mr Leyonhjelm’s justification defence relied on him proving that Senator Hanson-Young made such a claim. The critical question, therefore, is whether any of that evidence was adduced or received, or any of the questions that were asked, or any of the statements, submissions or comments that were made, in respect of that issue, were adduced or received, or asked or made, for one of the impugned purposes; that is, for one of the purposes referred to in s 16(3)(a), (b) or (c) of the Privileges Act.
226. The short answer to that question is “no” and the primary judge was correct in effectively so finding.
His Honour also said at 402; [236]:
The more significant point is that the difference between the approach taken in Amann Aviation and Carrigan and the approach taken by the primary judge in this case is immaterial. What is clear is that the purpose for which the primary judge received the evidence in the first instance was limited to the purpose of determining whether what was said by Senator Hanson-Young in the interjection amounted to, or was tantamount to, a claim that all men are responsible for sexual assault or that all men are rapists. That limited purpose for receiving the evidence did not infringe s 16(3) of the Privileges Act because it did not amount to any of the purposes referred to in s 16(3)(a), (b) or (c). The primary judge made it clear in the Interlocutory Judgment that if he was to find that such a claim was made, consideration would then be given to whether any further use of the evidence would infringe s 16(3) of the Privileges Act. As events transpired, that occasion did not arise.
Abraham J said at 437; [361]:
Section 16 falls to be interpreted by applying ordinary principles of statutory construction.
Her Honour said at 437; [364]–[365]:
364. …Parliamentary privilege does not prevent evidence being tendered to prove, as a fact, what was said in the course of Parliament: see Mundey v Askin [1982] 2 NSWLR 369 at 373; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; Egan v Willis at [133] per Kirby J; McCloy v Latham [2015] NSWSC 1782 at [20].
365. As the primary judge properly concluded “it is not a breach of Parliamentary privilege for a party to prove, as a fact, that certain things were said in Parliament when proof of that fact is relevant to an issue in the proceedings and that proof is not led for one of the purposes proscribed by s 16(3) or its statutory or common law counterparts” at [369], citing inter alia, Mundey v Askin [1982] 2 NSWLR 369 at 373; Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 453; Buchanan v Jennings [2005] 1 AC 115 at [17]-[18]; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; and Rann v Olsen at [73].
Decision
In the present case, I do not accept the plaintiff's submission, as attractively as it was put, that I will be asked to draw inferences or conclusions wholly or partly from the Parliamentary Material.
I now turn to the five factors identified by Heerey J in Sykes and why I do not accept that I will be asked to draw inferences from the Parliamentary Material in relation to any of those issues.
Proof of the Parliamentary Material is relevant for some or all of the defendants to prove (per Abraham J at [365] in Hansen-Young) as a fact that certain things were said. The existence of those facts (what was said) is relevant to an issue in the proceedings, namely, the first of the five matters referred to by Heerey J. The fact of what was said is admissible, and no inferences could be drawn from the Parliamentary Material on that issue.
The second issue referred to by Heerey J was whether or not those facts or circumstances existed at the time of the representation. The tender of these Parliamentary Materials does not require the drawing of any inference or conclusions from those Parliamentary Materials. Their tender simply proves the fact of their existence at certain points in time.
The third issue is whether or not the representor or representors in fact relied upon the Parliamentary Material. That issue depends wholly and solely on examining the state of mind of the representor or representors involved and does not involve the drawing of any inferences wholly or partly from the Parliamentary Material.
The fourth issue is whether or not the Parliamentary Material was objectively reasonable material upon which to rely. Once again, that does not involve the drawing of any inference from the Parliamentary Material. One examines the material and determines whether it was an objectively reasonable basis for the making of the representation.
The Parliamentary Material is tendered to prove a fact. It is then for me to determine whether the purpose of the reliance on that material involves any of the matters set out in s 16(3).
In this case the Parliamentary Material is simply a fact or facts upon which the defendants say they relied in making the alleged representations and they will ask me to make one or more findings to the effect that it was objectively reasonable for one or more of them (putting all their other defences aside) to rely upon that material in making the representations alleged (if they were made). As such, no inference could be sought to be drawn from the Parliamentary Materials.
The fifth matter is whether or not the Parliamentary Material supports the representations made. Again, in my view, no inferences or conclusions of the sort referred to in s 16(3)(c) would be asked to be drawn. As Rares J emphasised in Hanson-Young at [43], the relevant purpose which excludes the material is the purpose of drawing or inviting inferences or conclusions wholly or partly from, and I emphasise the word “from” (as did Rares J), anything forming part of the Parliamentary Material.
Whilst it would be legitimate for the plaintiff, and perhaps the defendants, to invite me to draw inferences or conclusions as to the representors' state of mind in relation to the other matters mentioned by Heerey J, none of those would emanate “from” the Parliamentary Material.
Therefore, I do not accept the plaintiff's submission that after the tender of this material I will be asked to draw the inferences or conclusions prohibited by s 16(3)(c).
For completeness, I do not accept the submission that use of the content of the Parliamentary Material automatically excludes its use under s 16. Firstly, s 16(3) does not say so in its terms. Section 16(3) only says that it is not lawful for evidence to be tendered or received, questions asked or statements, submissions, or comments made concerning the parliamentary material “for the purpose of” the purposes set out in subsections (3)(a) to (c). The question is for what “purpose” the content of the Parliamentary Material is to be used, not whether it can be used at all.
Secondly, the content of parliamentary material has in fact been admitted in some of the authorities. The prime example is the case of Hanson-Young and some other cases were cited in which the content of parliamentary material was admitted.
Thirdly, I do not agree that this is a matter of statutory construction. No submissions were advanced along those lines. That is, there were no submissions to the effect that the words of s 16(3)(c) meant perhaps one thing or perhaps another and that I should prefer one meaning or construction over another.
Rather, this is a case of applying the statute to the facts of this case and whether the Parliamentary Material is tendered for one of the purposes outlined in s 16(3).
In my view, it is not. I admit the Parliamentary Material.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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