Michael EGAN (Plaintiff) Virginia Anne CHADWICK (Defendant) John Denton EVANS (Second Defendant) Warren Cameron CAHILL (Third Defendant)
JUDGMENT OF:
Spigelman CJ at 1; Priestley JA at 96; Meagher JA at 150
LOWER COURT JURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S) :
ALD 30102/98
LOWER COURT JUDICIAL OFFICER:
COUNSEL:
S J Gageler / M J Leeming (Plaintiff) B W Walker SC / P T Taylor (Defendant)
SOLICITORS:
I V Knight, State Crown Solicitor (Plaintiff) Corrs Chambers Westgarth (Defendant)
CATCHWORDS:
CONSTITUTIONAL LAW; Parliament (NSW); Legislative Council; powers; non-compliance by Member of Legislative Council with order for production; suspension of Member from service of the Council; forcible removal of Member from the House; claim of trespass to person; justification; lawful authority; whether Council can require production of privileged documents; CONSTITUTIONAL LAW; responsible government; nature and operation of; collective ministerial responsibility of Cabinet; "reasonably necessary" for the performance of Council's constitutional functions; Cabinet documents; immunity from production; claim of public interest immunity; legal professional privilege; nature of privileges considered; CONSTITUTIONAL LAW; Judiciary; powers; claim of public interest immunity in respect of Cabinet documents; balancing process; whether a constitutional function of the judiciary
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40828/98 ALD 30102/98
SPIGELMAN CJ PRIESTLEY JA MEAGHER JA
Thursday 10 June 1999
EGAN v CHADWICK & ORS
Held, proceedings dismissed: 1. Power to call for documents Per curiam The Legislative Council’s power to call for documents extends to compel the Executive to produce documents to the Council in respect of which a claim of legal professional privilege or public interest immunity is made.
Per Spigelman CJ, Meagher JA; Priestley JA dissenting It is not reasonably necessary for the proper exercise of the functions of the Legislative Council to call for documents the production of which is inconsistent with responsible government. System of responsible government considered.
Per Priestley JA, No legal right to absolute secrecy is given to any group of men and women in government as part of a truly representative democracy.
2. Legal professional privilege Per Spigelman CJ, Meagher JA agreeing The applicability of the doctrine of legal professional privilege depends upon the relationship between the persons in the context in which the issue of access arises. Where, as here, a special relationship known to the law exists, the determination of the right of one party to the relationship, to documents in the possession of the other party to the relationship, must be determined in accordance with the incidents of the relationship.
In performing its accountability function, the Legislative Council may require access…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Egan v Chadwick [1999] NSWCA 176
Case
[1999] NSWCA 176
Decision Date
CaseChat Overview and Summary
The case of *Egan v Chadwick* concerned a claim of trespass to the person brought by Mr. Egan, a Member of the New South Wales Legislative Council, against Mr. Chadwick, the Serjeant-at-Arms of the Legislative Council. The dispute arose when the Legislative Council ordered Mr. Egan to produce certain documents, which he refused to do on the grounds of privilege. Following his non-compliance, the Council resolved to suspend Mr. Egan from its service and subsequently authorised his forcible removal from the House, which formed the basis of his trespass claim. The matter was heard by Spigelman CJ, Priestley and Meagher JJA.
The central legal issues before the court were whether the Legislative Council possessed the lawful authority to require the production of documents that Mr. Egan claimed were protected by legal professional privilege or public interest immunity, specifically Cabinet documents. The court also had to consider whether the Council's power to suspend and remove a member for non-compliance with such an order was a valid exercise of its constitutional functions, and whether the principles of responsible government and collective ministerial responsibility had any bearing on these powers. Furthermore, the court was asked to determine whether the judiciary had the power to review the Council's claim of privilege and to engage in a balancing process to assess the necessity of producing such documents for the performance of the Council's constitutional functions.
The court reasoned that the Legislative Council, as a House of Parliament, possessed inherent powers to regulate its own proceedings and to enforce its orders, including the power to compel the attendance of its members and the production of documents relevant to its functions. It was held that while legal professional privilege and public interest immunity are important, they are not absolute and can be overridden by the legitimate requirements of Parliament. The court found that the Council's power to suspend and remove a member for contumacious refusal to comply with a lawful order was a necessary incident of its parliamentary authority, essential for the maintenance of its constitutional functions and the principle of responsible government. The court concluded that the claim of privilege by Mr. Egan was not a bar to the Council's exercise of its powers.
Consequently, the proceedings brought by Mr. Egan were dismissed.