Guerin v State of South Australia No. Scciv-03-1111

[2003] SASC 304

GUERIN v STATE OF SOUTH AUSTRALIA
[2003] SASC 304

Civil

1. PERRY J.  (ex tempore)     I have heard counsel on both sides with respect to the application of the plaintiff filed on 6 August 2003 (court file number document 2) which claims an order, inter alia, that summary judgment be entered in favour of the plaintiff against the defendant in terms of the orders sought in the prayer for relief in the statement of claim.

2. In my view, the case gives rise to several serious issues. These include the construction of the arrangements entered into by the plaintiff with the defendant at the time when he left his position as Permanent Head or Director of the Department of Premier and Cabinet to take up a secondment to Flinders University. The issues that arise with respect to those arrangements also involve questions of construction of relevant statutory provisions.

3. During the course of addresses I indicated that, in the circumstances, the defendant should make clear how much, if any, amount of money it conceded was due on the basis of the arguments which it was advancing. In the result, the defendant has undertaken to pay a substantial sum of money to the plaintiff, representing the amount which the defendant concedes to be due on its construction of the arrangements and statutory provisions.

4. It has been made clear by the Solicitor-General who appeared for the defendant that this payment is to be without prejudice to the plaintiff’s ability to contend at the trial of the action that the payment does not satisfy his entitlement.

5. A question has arisen as to the status of a ministerial statement made on 14 July 2003 by the Deputy Premier, the Honourable Kevin Foley. A copy of that statement was sent to Mr Short of the firm of solicitors acting for the plaintiff, and he has brought it into court as an annexure to an affidavit filed in support of the application for summary disposal of the proceedings.

6. Initially, the Solicitor-General took no objection to references made to it by Mr Whitington QC of counsel for the plaintiff, during the course of Mr Whitington QC’s submissions. Relevantly, those submissions were to the effect that the statement contained admissions which virtually concluded in favour of the plaintiff the evidentiary basis in support of his claim.

7. Subsequently, the Solicitor-General offered further evidence to the Court from which it appears that the statement had in fact been read in the House of Assembly on 14 July 2003. The Solicitor-General then foreshadowed arguments that any reliance upon it in these proceedings would be in breach of parliamentary privilege.

8. At that stage I informed both counsel that I was disinclined to embark upon the process of entertaining argument as to whether or not the claim for privilege could be sustained. It seems to me that however the matter is approached, the statement, if it could be relied on having regard to the terms in which it is expressed, could not in any event be regarded as conclusively determining the issues between the parties.

9. Mr Whitington QC contended that it was nonetheless necessary for me to rule on the question of privilege in view of the fact that some use had been made of the statement. In my view, despite the arguments which he put to that end, it is unnecessary to rule on those arguments at this stage. It seems to me that it is enough for that question to be held over for consideration by the trial judge, if at the trial there is any endeavour to utilise the ministerial statement as an item of evidence in support of the plaintiff’s claim.

10. I do not regard the situation that has arisen so far as even potentially giving rise to any possible breach of parliamentary privilege. It is always open for a court to receive evidence that might be the subject of such privilege in order to entertain submissions as to whether or not in fact the privilege attaches.

11. As for the plaintiff’s application for summary judgment, it seems to me that the case gives rise to quite complex issues associated, in the first place, with the question whether or not in the circumstances the arrangements struck with Mr Guerin entitled him to ongoing salary payments equal to the salary paid to his successors in office, or on the other hand, as the defendant contends, only the salary which he would have received had he remained in the office. That is a serious issue which, in my view, should go to trial. It is inappropriate to address it by way of an application for summary judgment.

12. There is also, in my view, a serious issue as to the effect to be given to the restructuring of the Department of Premier and Cabinet in the intervening years between Mr Guerin’s departure from it and the present time, on the arguments relevant to the central issue, namely the plaintiff’s entitlement vis-a-vis the defendant.

13. There are also issues as to superannuation payments.

14. It follows that the action must proceed to trial. The application for summary judgment is dismissed.

15. I will, however, facilitate the early trial of the action to the extent that it seems necessary or desirable.

    [AFTER HEARING COUNSEL AS TO COSTS]

16. PERRY J.               Mr Whitington QC of counsel for the plaintiff has applied for costs in favour of the plaintiff with respect to the application for immediate relief. In the circumstances, it is appropriate to refer that issue to the trial judge.

17. It may well be that the ultimate resolution of issues between the parties will have a bearing on the reasonableness of the claim for costs of this phase of the proceedings.