Corruption and Crime Commission of Western Australia v McCusker AO QC - [2009] WASC 44

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA -v- McCUSKER AO QC [2009] WASC 44

CORAM: MARTIN CJ

HEARD: 29 JANUARY 2009

DELIVERED : 29 JANUARY 2009

PUBLISHED : 4 MARCH 2009

FILE NO/S: CIV 2832 of 2008

BETWEEN: CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA
Plaintiff
AND
MALCOLM McCUSKER AO QC, THE PARLIAMENTARY INSPECTOR OF THE CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Administrative law - Application for declaratory relief - Whether the Parliamentary Inspector of the Corruption and Crime Commission acted within his powers when tabling a report to Parliament - Whether court has jurisdiction to determine matter - Whether justiciable question exists

Practice and procedure - Form of originating process - Whether matter should have been commenced by writ of summons - Application of O 58 r 11

Court of Appeal - Whether matter should be referred to the Court of Appeal - Utility of proceedings

Legislation:

Bill of Rights 1688 (UK), Art 9
Constitution Act 1889 (WA), s 36
Corruption and Crime Commission Act 2003 (WA), s 188(4), s 195, s 199, s 205
Parliamentary Privileges Act 1891 (WA), s 1
Rules of the Supreme Court 1971 (WA), O 2 r 1, O 4 r 1, O 58 r 11
Supreme Court Act 1935 (WA), s 43

Result:

Originating summons to be treated for all purposes as if it were a generally endorsed writ

Category: A

Representation:

Counsel:

Plaintiff: Mr S D Hall SC
Defendant: Mr P W Johnston

Solicitors:

Plaintiff: Corruption and Crime Commission of Western Australia
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Nil

MARTIN CJ:
(This judgment was delivered extemporaneously on 29 January 2009 and has been edited from the transcript.)

These proceedings have been commenced by the Corruption and Crime Commission of Western Australia (the Commission) against Mr Malcolm James McCusker AO QC who was, at the time these proceedings were commenced on 29 December 2008, the Parliamentary Inspector of the Commission. The proceedings have been commenced by originating summons.
The matter has come before me for directions and at my request the parties have provided submissions on two issues which I suggested should be ventilated. The first issue is whether the form of proceedings utilised by the Commission, that is, commencing by way of originating summons, was appropriate in the circumstances. The second issue is whether notice of the proceedings should be given to the presiding officers of each House of Parliament in order that they could be apprised of the existence of the proceedings and given the opportunity to make submissions with respect to the question of whether these proceedings are within the jurisdiction of the court and, if they are within jurisdiction, whether the court should nevertheless decline to entertain them because of the respective constitutional positions of Parliament and the court.
I will deal with the first issue upon which I invited submissions. That concerns the form of process. Order 4 rule 1 of the Rules of the Supreme Court1971 (WA) (the Rules) provides that 'subject to the provisions, of any Act and of these Rules, every action in the court must be commenced by writ', but 'civil proceedings between parties to be heard in chambers must be commenced by originating summons'.
Order 58 repeats that assertion by rule 1 which provides that 'subject to the provisions of any Act and of the Rules, civil proceedings between parties, which may be heard in chambers, must be commenced by originating summons'. The question of whether or not the proper process was utilised by the Commission turns upon the question of whether these are proceedings that may be heard in chambers.
The Commission relies upon O 58 r 11 for the proposition that these proceedings may be heard in chambers. That rule provides:
Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute, or of a regulation, rule, by-law or instrument made or purporting to be made under a statute, or of the validity of any such regulation, rule, by-law, or instrument, may apply by originating summons for the determination of such a question of construction or validity, and for a declaration as to the right claimed.
Turning then to the originating summons itself, the Commission seeks declarations as to three matters. The declarations are sought on grounds which are specified in the originating summons. Those grounds are what I would generally describe as traditional administrative law review grounds. They are, for example under ground 1, that there was jurisdictional error, errors of law and fact, and that the decision was manifestly unreasonable. The first subheading under that ground is the proposition that the report of the Parliamentary Inspector contains errors of law and fact, and the second subheading involves an assertion that the conclusions at which the Inspector arrived were manifestly unreasonable.
The second ground relied upon is that the Parliamentary Inspector went beyond his power by taking into account irrelevant considerations. The third ground is that the report tabled went beyond the Parliamentary Inspector's statutory functions and powers. The fourth ground asserts a failure to comply with the Corruption and Crime Commission Act 2003 (WA) (CCC Act) and a denial of procedural fairness. The fifth ground asserts a breach of statutory prohibition.
It can be seen from that brief enunciation of the grounds that while some of them do depend upon questions of statutory construction, most particularly the allegation that the Inspector went beyond his statutory powers, that he failed to comply with the CCC Act and that he breached a statutory prohibition upon the material that may be contained within a report, there are other aspects of the case that go well beyond questions of statutory construction and invoke common law principles relating to such things as the denial of procedural fairness, the taking into account of irrelevant considerations, unreasonableness and errors of fact.
I take the view that O 58 r 11, when read in the context of the Rules as a whole, relates only to proceedings in which the primary or overwhelmingly dominant question for determination by the court is the question of construction of the statute. I do not think it can be said that these are proceedings that can be so characterised and therefore in my view they are not proceedings that fall within O 58 r 11. Therefore, they are not proceedings which can be commenced by originating summons.
The distinction between the form of originating process utilised is important for a number of reasons. It is no mere technicality. Those reasons include the extent of public access to the proceedings. For example, where proceedings are commenced by writ, the writ is a public document and is available for inspection by any member of the public. Further, when proceedings are commenced by writ they are, subject to any order of the court, invariably heard in open court, whereas proceedings commenced by originating summons can be heard in chambers.
There is every reason why these proceedings should be conducted in the full gaze of the public. They should be completely transparent. The commission does not submit otherwise. The question of whether the normal processes of the court which follow the issue of a writ, such as pleadings and the like, should be followed in this case are subsidiary questions of case management which can be addressed when the matter proceeds.
Notwithstanding my view as to the defect in the manner of commencing these proceedings, that is no basis for staying or setting aside these proceedings. If there were any doubt about that, O 2 r 1(3) expressly provides that:
The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the grounds that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.
So the Rules specifically require the court to adopt a remedial approach rather than a technical approach to issues such as this one. It seems to me that the defect to which I have referred is best overcome by me issuing a direction to the effect that the originating summons be treated in all respects as if it were a writ generally endorsed and that it be made available for public inspection as if it were a writ.
I will further direct that the proceedings are to continue in all respects as if commenced by a writ, save that I will stay any of the Rules that would require a pleading to be served within any particular time. This is because it seems to me the question of whether this is a case in which pleadings are necessary is best addressed at some later point and in particular after the issue with respect to justiciability or jurisdiction has been resolved.
Turning to the issue of justiciability, as I indicated, I invited the parties to provide submissions on the question of whether the presiding officers of each House of Parliament should be served with notice of these proceedings. I have been advised by counsel for the Commission, and have no reason to doubt, that the clerk of each House of Parliament was served with a copy of the originating process on 6 January 2009 and that solicitors acting on behalf of Mr Lee, who is a person potentially interested in these proceedings, were also given notice of these proceedings at about the same time.
The reason that I raised the question of whether the Houses of Parliament should be given the opportunity to comment is that it seemed to me that the proceedings, by their very nature, raise a question with respect to the capacity of the court to entertain the proceedings and indeed to provide the relief sought. The defendant has foreshadowed an argument and indeed an application to the effect that these proceedings be dismissed on the grounds that the issues are not justiciable for a variety of reasons.
Those reasons include the proposition that the proceedings would interfere with the internal workings of Parliament. As I would understand the argument, the particular workings are said to be the relationship between Parliament and one of its officers. This is because s 188(4) of the CCC Act specifically designates the Parliamentary Inspector to be an officer of Parliament.
The defendant draws attention to Article 9 of the Bill of Rights 1688 (UK) which was of course enacted after a rather turbulent period in our history, in which the roles of the various constitutional organs including Parliament, the monarch and the courts were contentious. Article 9 of the Bill of Rights provides:
[t]hat 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 defendant proposes to submit in due course that Article 9 applies as part of the privileges of the Houses of Parliament of Western Australia as a consequence of s 1 of the Parliamentary Privileges Act 1891 (WA) which was enacted pursuant to s 36 of the Constitution Act 1889 (WA).
The defendant also foreshadows reliance upon a wider principle based upon the respective constitutional roles of Parliament and the courts. Those submissions should be viewed in the light of the declaratory relief that is sought in the originating process to which I have referred. In the originating summons, the Commission seeks declarations:
[t]hat it was unlawful and outside the functions and powers of the Parliamentary Inspector of the Corruption and Crime Commission, for the Parliamentary Inspector to table his report entitled 'Report On The Corruption And Crime Commission's Report dated 26 September 2008 concerning Mr Stephen Lee' in Parliament on 24 December 2008,
which is hereafter defined as 'the Parliamentary Inspector's report'.
The second declaration sought is that the tabling of the Parliamentary Inspector's report on 24 December 2008 involved a breach of s 200 of the CCC Act and 'a denial of procedural fairness such that the report was outside the statutory functions and powers of the Parliamentary Inspector, and a nullity'.
The third declaration sought is that the tabling of the Parliamentary Inspector's report on 24 December 2008 involved a breach of s 205 of the CCC Act and is not a report that could be tabled under s 195 and s 199 of the CCC Act.
It can therefore be seen that each of the declarations sought focuses primarily upon the act of the tabling of the report by the Parliamentary Inspector in Parliament on 24 December 2008. It seems to me that there is plainly a seriously arguable case as to whether these proceedings are within the jurisdiction of the court, as to whether they are justiciable and indeed even if they are within jurisdiction and justiciable, whether there is not some wider basis upon which the court should decline to exercise jurisdiction because of the respective constitutional positions of the court and Parliament.
It seems to me that opportunity should be provided for Parliament to provide submissions to the court on those issues if it chooses to do so. What I therefore propose to do is to direct that the clerks or presiding officers of each of the Houses of Parliament have until 20 February 2009 to give notice to the court on the question of whether they wish to be heard in relation to the issues that I have just mentioned.
It also appears from the nature of these proceedings that Mr Lee who was the subject of the report of the Commission, which was in turn the subject of the Parliamentary Inspector's report, is a person who may be interested in these proceedings, so I will give the same opportunity to Mr Lee to give notice to the court on the question of whether he wishes to be heard in relation to those issues. That is to say, Mr Lee is to give notice to the court not later than 20 February 2009.
The other matter raised by the Commission today is the forum in which the preliminary issue with respect to justiciability and jurisdiction should be determined. The Commission submits that I should refer that question to the Court of Appeal for its determination pursuant to s 43 of the Supreme Court Act 1935 (WA) on the basis that that course would expedite the meaningful determination of the issues between these parties and also that the significance of these issues merits their determination by the Court of Appeal. Those are I think weighty considerations in favour of the course proposed; but it seems to me that there are also considerations against that course.
There is an uncertain question at the moment as to the real utility of these proceedings. The Parliamentary Inspector's report was published to Parliament on 24 December 2008 and its contents have been made publicly available since then and have been the subject of many media reports. There is nothing that the court could ever do that will change those historic facts.
The Parliamentary Inspector, who is the defendant to these proceedings, left office on 31 December 2008 and another Parliamentary Inspector assumes office on 1 February 2009. There is no assertion in these proceedings to the effect that the next Parliamentary Inspector will take the same view of the scope of the Parliamentary Inspector's powers as his predecessor, so the extent to which there is any future utility in these proceedings remains uncertain and depends upon the position that might be adopted by the Parliamentary Inspector who is about to take up office.
There is further uncertainty provided by the possibility that Parliament itself may seek to clarify the precise scope of the Parliamentary Inspector's role. That is something that one simply does not know and from which one might hear from either the Government or the respective officers of the Houses of Parliament. So it seems to me that the practical utility of these proceedings is not immediately demonstrable.
That is not to say that they are futile. I can understand the position adopted by the Commission, but from my perspective, in terms of balancing the efficient utilisation of the limited resources of the court and in determining whether it is appropriate to consume the time of the Court of Appeal, I must take into account what presently seems to me to be significant uncertainty with respect to the utility of these proceedings.
It seems to me that the best position to adopt in relation to the question of forum is to wait and see whether the Houses of Parliament or Mr Lee wish to be heard in relation to the preliminary issue. If any of those groups or Mr Lee wish to be heard, they may have a view on the appropriate forum. I think I should hear from them before making a determination as to whether the preliminary issue to which I have referred should be resolved by a single judge or the Court of Appeal, so I will leave that question open.
On the question of the steps that need to be taken in order to prepare the preliminary issue for determination, counsel for the former Parliamentary Inspector has foreshadowed that it may be desirable for the Commission to particularise its assertions with respect to one aspect of the case relating to the act of tabling in parliament, but that otherwise it is unnecessary at this stage to direct that a statement of claim be prepared for the purposes of determination of the preliminary issue.
I will make the following orders:
1.The originating summons be treated for all purposes as if it was a generally endorsed writ, and any member of the public be permitted to inspect the originating summons.
2.The proceedings continue as if commenced by a writ, and any Rules of the Court requiring the filing of pleadings be stayed until further order.
3.The Clerks or Presiding Officers of each House of Parliament have until 20 February 2009 to give notice to the court on the question of whether they wish to be heard in these proceedings.
4.Mr Stephen Lee have until 20 February 2009 to give notice to the court on the question of whether he wishes to be heard in these proceedings.
5.The defendant serve any request for particulars pertinent to the issue of justiciability by 13 February 2009 and the plaintiff provide the particulars or any objections by 24 February 2009.
6.The costs of today's proceedings be in the cause.
7.The matter be adjourned to 6 March 2009 at 9.15 am.