Inglis, Kathleen Isobel v Moore, Andrew Leslie

[1979] FCA 64

CATCHWORDS

Costs - Commonwealth employees being sued personally

represented by Commonwealth Crown Solicitor - Whether

costs recoverable against unsuccessful plaintiff.

Constitutional law - Commonwealth powers - Validity of

provision vesting discretion in Crown Solicitor to act as a solicitor - Limits of discretion - Extent of appropriate Commonwealth interests.

The Constltutlon; Judiciary Act 1903 ss.55E, 78B.

Kathleen Isobel Inglis v. Andrew Leslie Moore

Mlchael Rayner Thwaites

Maurice Bray

B e t t y n

Sylvia Rowlands

No. G47 of 1977.

Coram : St.John. Brennan & Davies JJ.

Date :. 29 June 1979

I N THE FEDERAL COURT OF AUSTRALIA )

)

PRINCIPAL REGISTRY	)	A p p .	No.	G 4 7 of	1 9 7 7
)

GENERAL D I V I S I O N )

ON APPEAL FROM A SINGLE JUDGE OF THE

SUPREME COURT OF THE AUSTRALIAN

CAP1 TAL TERRITORY

BETWEEN : KATHLEEN ISOBEL I N G L I S

A p p e l l a n t ( P 1 a i n t i f f )

O R D E R

JUDGES MAKING ORDER : S t . J o h n , B r e n n a n & D a v i e s JJ.

DATE OF ORDER : 29 June 1979

WHERE MADE : S y d n e y .

THE COURT ORDERS THAT :

1. T h e appeal be dismissed.

2 . T h e appe l l an t pay t o t h e respondents t h e i r costs of

t h e appeal t o be taxed.

I N THE FEDERAL COURT OF AUSTRALIA)

)

PRINCIPAL REGISTRY	)	App. NO. G47 o f 1977
GENERAL DIVISION	1

ON APPEAL FROM A SINGLE JUDGE OF THE

SUPREME COURT OF THE AUSTRALIAN

CAP1 TAL TERRITORY

BETWEEN : KATHLEEN ISOBEL INGLIS

Appel lant ( P l a i n t i f f )

-- CORAM : ST.JOHN, BRENNAN & DAVIES JJ.

t h e 29th day o f June 1979

ST.JOHN & BRENNAN JJ.

The a p p e l l a n t i s t h e p l a i n t i f f i n t h l s a c t l o n . She

appears f o r h e r s e l f , and s h e has drawn h e r own Statements of

Claim. One of h e r amended Sta tements o f Claim was s t r u c k o u t

w i t h c o s t s by Connor J. i n t h e Supreme Court of t h e

Australian C a p l t a l T e r r i t o r y on 5 August 1975. The

defendants ' s o l i c l t o r is t h e Commonwealth Crown Solicitor and

he d e l i v e r e d a b l l l of c o s t s f o r t a x a t i o n . The R e g i s t r a r ,

who i s t h e t a x l n g o f f i c e r of t h e Cour t , t axed t h e b l l l . M r s .

I n g l l s c a r r i e d i n o b j e c t i o n s , some t o t h e b i l l a s a whole,and

some t o p a r t i c u l a r i t e m s whlch had been al lowed on t h e

t a x a t i o n . The o b j e c t i o n s w e r e disallowed. M r s . I n g l s s ,

be lng d s , s s a t ~ s f i e d , a p p l l e d t o Connor J. f o r an o r d e r t o

review t h e t a x a t l o n . Connor J. revlewed t h e t a x a t l o n and

al lowed some o f t h e ~ b j e C t l ~ n S , b u t he ordered " t h a t t h e

o b j e c t i o n t o t h e b i l l of c o s t s a s a whole be dismissed" .

The d i s m s s e d o b j e c t i o n occupied t h r e e foo l scap pages of

t ypewr i t i ng b u t , f o r t h e purposes o f t h i s appea l , it may be

reduced t o t h e submission t h a t p r o f e s s i o n a l c o s t s should n o t

be al lowed t o t h e defendants i n r e s p e c t of t h e s e r v i c e s o f

t h e Commonwealth Crown S o l i c i t o r , t o whom they were under

no pe r sona l liability f o r c o s t s . M r s . I n g l i s appea l s t o

t h i s Court a g a i n s t t h e p a r t of h i s Honour's o r d e r whichwe

have quoted.

A s i m i l a r q u e s t i o n was argued b e f o r e t h e Court

o f Appeal, i n s i m i l a r proceedings brought consequent upon a

t a x a t i o n of c o s t s , i n Rex. v. Archbishop o f Canterbury

[l9031 1 K.B.289. There, t h e Crown had appointed t h e

Treasury S o l i c i t o r t o look a f t e r t h e i n t e r e s t s o f t h e

Archbishop, and t h e Treasury S o l i c i t o r became t h e

Archbishop's s o l i c i t o r on t h e record . A f t e r t h e Archbishop

succeeded i n t h e l i t i g a t i o n and c o s t s were ordered i n h l s

favour , t h e c o s t s were t axed and an o b j e c t i o n was taken ,

a s C o l l i n s M.R. expressed it a t p.292, "because t h e c o s t s

s a i d t o have been i n c u r r e d by him were r e a l l y i n c u r r e d on

beha l f of t h e Crown, o r e l s e t h a t t h e archbishop had appeared

by a s o l i c i t o r who was n o t e n t i t l e d t o a c t f o r him, namely,

t h e s o l i c i t o r o f t h e Treasury" . Both of t h e s e grounds o f

o b j e c t i o n f a i l e d .	A s	t o t h e former	ground,	Romer	L . J .
s a i d a t p.295:

I T The c a s e cannot , t o my mind, be

substantially d i f f e r e n t i a t e d from t h a t o f an

o rd ina ry defendant who 1s I n some such p o s i t i o n

a s t h a t o f a master who is be ing sued by a s e r v a n t

where t h e master i s l n s u r e d a g a l n s t liability ...

I n such a ca se , i f t h e defendant i s awarded c o s t s ,

t h o s e c o s t s would be recoverab le by him, and, i n

e s t i m a t i n g what t h e amount o f t h o s e c o s t s are,

he would n a t u r a l l y and p rope r ly i nc lude among h i s

c o s t s t h o s e o f t h e s o l i c i t o r who a c t e d f o r hrm i n

t h a t ca se , a l though , a s between him and t h e

insurance company, t h e s o l l c l t o r was t h e s o l i c i t o r

f o r t h e Insurance company, and t h e insurance

company had t o see t h a t t h e c o s t s were provided by

them i f t h e defendant d l d n o t succeed. "

It has long been t h e r u l e t h a t a s u c c e s s f u l p a r t y who

1s rep re sen ted by t h e Crown S o l l c l t o r i n l i t i g a t i o n i n which

t h e Crown has an i n t e r e s t i s n o t d i s e n t l t l e d t o c o s t s from an

unsuccess fu l p a r t y merely because he i s n o t under a pe r sona l

l i a b i l i t y t o t h e Crown S o l l c l t o r f o r c o s t s : c a se s whlch d e f i n e

o r i l l u s t r a t e t h e r u l e i nc lude I r v i n g v. Gag l i a rd i (1895)

6 Q.L.J.R.200; McLaurin v. H a l l (1913) S.R. (N.S.W.) 1 1 4 ;

L e n t h a l l v. H l l l s o n (1933) S.A.S.R.31 a t pp.35 e t seq ;

Ex p a r t e W.A. Grubb Pty .Ltd. , Re Johnston (1949) 66 w.N . (N . s .w . )

224; Nolan v. George [l9591 Qd.R.315; and B l a c k a l l v. T r o t t e r

(No.1)	[l9691 V.R.939.	I n t h e c a s e l a s t mentioned	t h e F u l l
--

Court of t h e Supreme Court of V l c t o r i a s a i d a t p.941:

I n o u r op ln lon , n e i t h e r i n t h a t c a s e nor

i n L e n t h a l l v. H i l l s o n d i d t h e Court base i t s

d e c i s l o n on t h e qround t h a t t h e r e was any

liability of t h e - ~ a r t ~ r ep re sen ted t o t h e

Crown-employed solicitor f o r c o s t s . Both c a s e s ,

i n o u r op ln lon , decided t h a t i n t h e c i rcumstances

t h e Crown by v l r t u e of i t s i n t e r e s t i n t h e sub jec t -

m a t t e r of t h e litigation was e n t i t l e d t o make i t s

s o l i c i t o r a v a i l a b l e t o a c t f o r t h e p a r t y on t h e

r eco rd , and t h a t a s t h e Crown i n c u r r e d t h e expense

o f h l s employment t h e p a r t y he r ep re sen ted was

e n t l t l e d t o recover t h e c o s t s awarded t o him.

Since expense was i n c u r r e d , a l b e i t n o t by

t h e p a r t y on t h e r eco rd , i n t h e employment

of t h e s o l i c l t o r , t h e d e c l s l o n s a r e

d i s t i n g u i s h a b l e from c a s e s such a s Gundrey v.

Sainsbury, [l9101 1 K.B.645. .., where no

expense a t a l l was i n c u r r e d i n t h e

employment of t h e s o l i c i t o r . "

Next it was argued, echolng t h e argument i n t h e

Archbishop o f Cante rbury ' s ca se , supra , w i t h r e s p e c t t o t h e

Treasury s o l i c i t o r , t h a t t h e Crown S o l i c l t o r was n o t e n t i t l e d

t o appear f o r t h e defendants . Why no t? The Crown S o l i c i t o r

has traditionally a c t e d f o r persons o t h e r t han t h e Crown i n

c a s e s i n whlch t h e Crown has an i n t e r e s t i n t h e s u b j e c t

ma t t e r o f t h e litigation, though t h e a p p e l l a n t den ie s t h a t

t h e Crown has such an i n t e r e s t i n t h i s c a s e . The b a s l s o f

t h e Crown S o l i c i t o r ' s entitlement t o a c t i s t h e Crown's

l n t e r e s t i n t h e s u b j e c t ma t t e r of t h e l l t l g a t l o n , a s t h e Court

he ld i n B l a c k a l l v. T r o t t e r (No . l ) , supra . I n Brownsea Haven

P r o p e r t i e s Ltd. v. Poole Corporat ion 119581 1 Ch.574, t h e

Court of Appeal he ld t h a t it should determine whether, i n a

g iven c a s e , t h e Crown had an i n t e r e s t a p p r o p r i a t e t o a l low

t h e Treasury Solicitor t o a c t , and t h a t t h e i p s e d i x l t of a

Min i s t e r was n o t conc lus ive (see p e r Romer L . J . a t p .607) ,

b u t t h e e x i s t e n c e of an a p p r o p r i a t e Crown i n t e r e s t was

c l e a r l y he ld	t o a u t h o r i z e	t h e intervention	of	t h e Treasury
S o l i c i t o r .

I n none of t h e c a s e s c i t e d was t h e r e any

argument based upon constitutional l i m i t a t i o n s on t h e powers

o f t h e Crown whose S o l i c i t o r had a c t e d f o r a p a r t y o t h e r t h a n

the Crown. The common law entitlement of the Crown upon the Crown's interest in the litigation, rather than

the extent of the Crown's powers. The limits upon

Commonwealth interests in litigation, but where the

Commonwealth has an interest, there is no reason why the

Commonwealth power may circumscribe the range of posslble to that litigation.

Did the Commonwealth have an appropriate interest

in the litigation instituted against the defendants? The employed in the Parliamentary Library. The plaintiff was

defendants were, and were alleged in the plaintiff's

also employed there. It was alleged that the defendants

had tortiously lnjured the plaintiff by acts done while

they were working in the Library, affecting the plaintiff

In her employment and her reputation. In substance

(though the Statement of Clalm was drawn much more

expansively), the plaintiff's allegations were that she had been badly treated at work by other publlc servants

including her superior officer.

The Commonwealth has an interest in protecting

its employees against claims brought against them in

respect of acts done within the scope of their employment.

The Commonwealth has an i n t e r e s t i n litigation of t h a t

k ind , n o t on ly t o p r o t e c t t h e Commonwealth from c l a i m s

made a g a i n s t it on t h e f o o t i n g o f i t s vicarious l i a b i l i t y

f o r t h e a c t s o r t o r t s o f i t s employees ( c f . Musgrave v.

The Commonwealth (1937) 57 C.L.R.514), b u t a l s o t o p r o t e c t

employees i n performing t h e functions o f t h e i r employment

from t h e r i s k of a pe r sona l l i a b i l i t y f o r c o s t s , i f t hey

should be sued i n r e s p e c t o f what t hey have done, o r a r e

a l l e g e d t o have done, i n performing t h o s e f u n c t i o n s . I n

t h e p r e s e n t c a s e , t h e Commonwealth had such an i n t e r e s t

i n t h e l i t i g a t i o n t h a t it was e n t i t l e d , w i thou t s t a t u t o r y

authority, t o make a v a i l a b l e t o t h e defendants t h e services

o f t h e Crown Solicitor.

However, i f it were n o t f o r t h e e n t i t l e m e n t t o

p r a c t l s e con fe r r ed on t h e Crown S o l l c l t o r by t h e J u d i c i a r y

A c t ,	1903 he would b e	s u b j e c t t o t h e r e l e v a n t	legislative
-

c o n t r o l s governing p r o f e s s i o n a l p r a c t i c e : i n t h e Australian

C a p i t a l T e r r i t o r y t h o s e c o n t r o l s a r e t o be found p r i n c i p a l l y

I n t h e Legal P r a c t i t i o n e r s Ordinance, 1970. U n t l l 1966,

s.50 of t h e Judiciary Act con fe r r ed on t h e Crown S o l i c l t o r

an e n t i t l e m e n t t o p r a c t i s e " i n r e s p e c t of h i s o f f i c e " .

Sec t ion 50 d l d n o t r e f e r t o t h e persons f o r whom o r t h e

ma t t e r s i n which t h e Crown S o l i c i t o r was e n t i t l e d t o a c t -

t h a t was l e f t t o t h e g e n e r a l law. I n 1966, s.50 was

r epea l ed , and s.55E was enacted. Sec t ion 55E confe r r ed a

l i k e e n t i t l e m e n t t o p r a c t i s e i n t h e ca ses t o which i t s

p rov i s ions app l i ed . I t confe r s t h e Crown S o l i c i t o r ' s

e n t i t l e m e n t t o a c t f o r t h e defendants i n t h e p r e s e n t ca se

w l thou t h i s be ing s u b j e c t t o t h e Legal Practitioners Ordinance,

provided	t h e p r e s e n t	c a s e	f a l l s w i t h i n	i t s	terms.	Sec t ion	55E
reads :

The Crown S o l i c i t o r may, i n h l s o f f l c l a l capacity,

a c t a s s o l i c i t o r f o r -

( a ) t h e Crown i n r l g h t o f t h e Commonwealth;

(b )	t h e Commonwealth;
( C )	a person s u i n g o r be ing sued on beha l f

of t h e Commonwealth;

(d ) a Min i s t e r ;

(e) a body e s t a b l i s h e d by an Act o r a law

o f a T e r r i t o r y ;

(f)	an officer of, or a person employed by -
(i) t h e Commonwealth; o r
(ii) a body established by an Act o r a

law o f a T e r r i t o r y ;

(g) a person ho ld lng o f f l c e under an Act o r

a law o f a T e r r i t o r y ;

(h ) a member of t h e Defence Force; o r

(1) any o t h e r person o r body f o r whom t h e

Attorney-General r e q u e s t s him t o a c t ,

and i s , f o r t h e purpose of s o a c t i n g , e n t l t l e d t o

p r a c t i s e a s a solicitor i n any c o u r t and e n t i t l e d

t o a l l t h e r l g h t s and privileges of a s o l l c l t o r i n

each S t a t e o r ~ e r r i t o r y whether o r n o t he is , a p a r t

from t h i s s e c t l o n , e n t l t l e d t o p r a c t i s e a s a

s o l i c i t o r i n any S t a t e o r T e r r i t o r y . "

Paragraph (f) (i) of S. 55E in terms covers the

present case, though the applicant contended that that and the requisite notice under s.78B of the Judiciary Act was given to the Attorneys-General of the Commonwealth and of New South Wales. The Attorney-General of the Commonwealth intervened to support the validity of s.55E; the Attorney-

paragraph could not have entitled the Crown Solicitor to act.

General of New South Wales dld not wish to intervene.

The appellant submitted (if we understood her

aright) that the section is an exercise of the judicial power of the Commonwealth, and that it cannot go beyond the subject matters of jurisdiction listed in Chapter 111 of the

Constitution. The submissions are misconceived. The enactment of s.55E is an exercise of legislative, not

judicial, power. Its validity is referable to the legislative

powers of the Parliament, which may be found in the express conjunction with other powers, and in the powers implied from the existence of the Commonwealth and its character as a polity (Victoria v. The Commonwealth and Hayden (1975) 134 C.L.R.338 at p.397 per Mason J.).

Section 55E vests a discretion in the Crown

Solicitor whether or not to act for the persons mentioned in the lettered paragraphs, limits his discretion under paragraph (1) to persons in respect of whom the Attorney- General makes a request, and confers upon him an entitlement

t o p r a c t i s e i n ca ses where he e x e r c i s e s h i s d i s c r e t i o n

t o a c t . The v a l i d i t y o f t h e s e c t i o n i s determined by

i t s ope ra t ion . The s e c t l o n i s f a c u l t a t i v e , p e r m i t t i n g

t h e Crown S o l i c l t o r t o a c t f o r t h e persons mentioned

b u t n o t r e q u i r i n g him t o do so . So f a r a s it permi t s

t h e Crown S o l i c i t o r t o a c t i n c a s e s where it would

have been l awfu l f o r him t o a c t a p a r t from t h e s e c t l o n ,

it does n o t p u r p o r t t o a u t h o r i z e anyth ing which would

o therwise b e unlawful o r i n e f f e c t u a l : lt simply con fe r s

l e g i s l a t i v e a u t h o r i t y t o perform a d m i n i s t r a t i v e a c t s

which might be performed l a w f u l l y i n any even t , though

it v e s t s a discretion t o perform them i n t h e Crown

S o l i c i t o r w i thou t r e q u e s t from o r direction by t h e

Commonwealth. To t h a t e x t e n t a t l e a s t , t h e s e c t i o n

is v a l i d .

There i n h e r e s i n t h e a p p e l l a n t ' s cha l l enge

t o t h e v a l i d i t y o f s.55E t h e p r o p o s i t i o n t h a t it has

a f u r t h e r i n v a l i d and i n s e p a r a b l e o p e r a t i o n , and

t h a t t h e terms i n which t h e d i s c r e t i o n i s con fe r r ed

perml t t h e Crown S o l i c i t o r t o a c t i n c a s e s i n which

t h e Commonwealth has no i n t e r e s t . She submit ted t h a t

t h e width of t h e d i s c r e t i o n was t h e f e a t u r e which

worked t h e c o n s t i t u t i o n a l invalidity of t h e s e c t i o n ,

encompassing cases t o which t h e powers of t h e Commonwealth

cou ld n o t extend (though t h e reasons why t h e powers could

n o t extend t o t h e c a s e s i n s t anced were n o t c l e a r l y s t a t e d ) .

Despite the evident concern of the learned Solicitor- General to appreciate the arguments put by the appellant, and to equip us with both her argument and his reply, we remain uncertain whether we correctly apprehend the submission which the appellant wished to

make. However, the answer to her submission, as we

vesting a discretion to perform administrative acts of

a kind which may be done within the legitimate ambit of

understand it, is that s.55E is a facultative provision invalid merely because the discretion is vested in terms

which, if broadly construed, might encompass the doing

of acts which are not within the legitimate ambit of

Commonwealth administrative activity.

The conferring on the Crown Solicitor of an

entitlement to practise when acting for a party mentioned litigation where the Commonwealth has an interest in the

in s.55E is an undeniably valid provision if the Crown

subject matter of the litigation. But the question is

whether the discretion purports to authorize the Crown constitutional administrative power would be exceeded l£ the Commonwealth Crown Solicitor acted. We do not think it does purport to authorize unlawful acts. The discretion which s.55E vests in the Crown Solicitor is a

discretion to be lawfully exercised, and the lawfulness of the exercise requires that it be confined within the limits of Commonwealth constitutional powers. One may

allow that "[tlhere is nothing unreal in the possibility that the degree of connection constitutionally necessary might be misconceived and misapplied administratively", and that that possibility was perceived by Dixon J. In

Australian Communist Party v. The Commonwealth (1951)

83 C.L.R.l at p.185 to be an obstacle to the validity of

the provision conferring an administrative discretlon upon

the Governor-General in that case. In that case, however,

the exercise of the administrative dlscretion was not

examinable. But where a dlscretlon, though granted in

general terms, can lawfully be exercised only if certain

limits are observed, the grant of the discretionary power

is construed as confining the exercise of the discretlon

within those limits. If the exerclse of the discretion

so qualified lies within constitutional power and is

judicially examinable, the provision conferring the

dlscretlon is valid.

Thus In - Shrimpton v. The Commonwealth (1945) 69

C.L.R.613, it was argued that a regulatlon, enacted under s.5 of the Natlonal Security Act 1939, was invalld because lt purported to vest in the Treasurer an absolute dlscretion

to grant or refuse consent to purchase land. The argument

failed because the regulatlon was held to vest a discretion

so qualified as to brlng it withln the regulation-making

power. Latham C.J. said at p.619:

"It i s urged f o r t h e p l a i n t i f f t h a t t h l s p r o v i s i o n

is i n v a l i d , because under it t h e Treasu re r cou ld

g i v e o r wi thhold consent upon any ground whatever -

pe r sona l , s o c i a l , p o l i t i c a l , financial, r e l i g i o u s ,

r a c i a l o r o t h e r - and t h a t f a i l u r e t o comply wi th

any such c o n d l t i o n would then become an o f f ence

( r e g . 9 ( 3 ) ) . I f t h e words ' i n h l s a b s o l u t e

d i s c r e t i o n ' and t h e words ' s u b j e c t t o such conditions

as he t h i n k s f i t ' a r e s o i n t e r p r e t e d , t hen t h e

T reasu re r may Impose a s a c o n d i t i o n of h i s consent

any c o n d l t i o n whatever, even though it has no

r e l a t i o n t o m a t t e r s a f f e c t i n g t h e defence of t h e

country or t h e p rosecu t ion of t h e war. I f t h e

r e g u l a t i o n i s t o b e s o i n t e r p r e t e d , it exceeds t h e

l l m i t s of t h e a u t h o r i t y c r e a t e d by t h e Nat iona l

S e c u r i t y A c t .

But, i f t h e r e g u l a t i o n can reasonably be s o

cons t rued - u t r e s magis v a l e a t quam p e r e a t . The

r e q u l a t i o n c% be h e l d t o be v a l l d i f , i n s p i t e of

t h e words appa ren t ly g i v i n g an arbitrary and

un l imi t ed d i s c r e t i o n t o t h e T reasu re r , it can be

h e l d t h a t t h e on ly cond i t i ons which t h e T reasu re r

can impose a s a c o n d l t l o n of g r a n t l n g h l s consen t

a r e cond i t i ons r e l a t e d t o t h e o b j e c t and purpose of

t h e Regulat ions , and t h a t t h e o b j e c t and purpose of

t h e Regulat ions a r e such a s t o have a r e a l connect ion

w i t h defence o r t h e p rosecu t ion of t h e war. "

I n t h e Communist P a r t y c a s e , t h e d i s c r e t i o n t o which

Dixon J. r e f e r r e d i n t h e passage c i t e d above was an unexaminable

discretion ves t ed i n t h e Governor-General, and t h e considerations

which l e d t h e Court t o uphold t h e r e g u l a t i o n i n Shrimpton's c a s e

d i d n o t suppor t t h e cha l lenged p rov i s ion i n t h e Communist P a r t y

ca se , a s Dixon J. po in t ed o u t ( a t 83 C.L.R. p.186):

"Unlike t h e power con fe r r ed by s . 5 of t h e Nat iona l

S e c u r i t y A c t 1939-1943, t h e p r e s e n t power i s

a d m l n l s t r a t i v e and n o t legislative, it i s n o t

d i r e c t e d t o t h e conduct of an e x l s t l n g war, and

~ t s e x e r c i s e 1s n o t examinable and i s n o t

s u s c e p t i b l e of t e s t i n g by r e f e r e n c e t o t h e

c o n s t i t u t i o n a l power above which it cannot

v a l i d l y rlse.

The d i s c r e t i o n v e s t e d by s.55E i s s u s c e p t i b l e of t e s t i n g ,

and an a t tempt t o e x e r c i s e t h e d i s c r e t i o n unlawful ly

might be r e s t r a i n e d a t t h e s u i t o f a person having t h e

necessary locus s t a n d i (see V i c t o r i a v. The Commonwealth

and Hayden, sup ra , a t p .401) . I f a p a r t y t o l i t i g a t i o n

should wish t o cha l lenge t h e e n t i t l e m e n t of t h e Crown

S o l i c i t o r t o a c t f o r t h e opposing p a r t y , t h e c o u r t w i l l

e n t e r t a i n t h e a p p l i c a t i o n a s t h e c a s e s fo l lowing t h e

Archbishop o f Cante rbury ' s ca se , sup ra , show (and see a l s o

Rakusen v. E l l i s Munday and Clarke [l9121 1 Ch.831).

I n t h e p r e s e n t c a s e , it is n o t necessary t o c h a r t

t h e l i m i t s of t h e d i s c r e t i o n which may be e x e r c i s e d under

s.55E; it i s s u f f i c i e n t t o say t h a t t h i s c a s e l ies w i t h i n

t h o s e l i m i t s . I t i s w i t h i n c o n s t i t u t i o n a l l i m l t s because

t h e Commonwealth had an i n t e r e s t s u f f i c i e n t t o e n t i t l e

t h e Crown S o l i c i t o r t o a c t f o r t h e Crown's employees i n

an a c t i o n a r i s i n g o u t o f t h e performance of t h e i r

f u n c t i o n s a s p u b l i c s e r v a n t s .

The appea l should t h e r e f o r e be dismissed wi th

c o s t s .

-...-

CLI----

1 c e r t l f y t h d t t h l 3 and the Ii?

precedlngpazes a r e o t r u e copy o f t h e

Reasons f o r JuG~mcnt i e r e ~ n of %%v~onoufi

M r . Jus t lcC S I Sii,. 5 L&$rrce

Assoclate

Dated : [email protected] -Q-p,

IN THE FEDERAL COURT OF AUSTRALIA )

)

PRINCIPAL REGISTRY	)	No. G47 of 1977
1
GENERAL DlVISION	1

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY IN ACTION N0.624 OF 1975.

BETWEEN : KATIlLEEN ISOBEL INGLIS

Appellant (Plalntif f)

Respondents (Defendants)

COMM : ST. JOHN, BRENNAN, UAVIES JJ

29 June 1979.

REASONS FOR JUDGllENT

DAVIES J : On 5 August 1975, Connor J ordered that an

amended statement of clam, delivered 17 July 1475 ln action

No.624 of 1975 in the Supreme Court of the Australian Capltal

Territory, be struck out and that the plaintiff, Nrs. 1C.I.

Inglls, pay the taxed costs of the defendants of the application

to strlke out the pleading. Subsequently, the defendants

presented a bill of costs for taxation. On 31 March 1977,

the Registrar issued hls certificate allowing costs at

$1,612.36. On 14 April 1977, the plaintiff lodged notice of

objectlon to the whole of the defendants' bill of costs and

objected, alternatively. to certain specified ltems in the

bill. On 5 May 1977, the Registrar disallowed the plaintlff's

objections. On appeal, Connor J allowed certain of the

plaintiff's particular objections, ordered that the defendants'

costs be taxed at $1,401.70, reserving the right to the

defendants to tax items 9 and 10 of the bill at the conclusion

of the actlon. but dismissed the plaintlff's objection to the

bill of costs as a whole. The plaintiff has appealed to this

court for an order that her objection to the blll of costs as

a whole be upheld.

In brief substance, the appellant's objectlon to the blll 01 costs as a whole contends that the respondents' solicitor is the Commonwealth Crown Solicitor. that the bill of costs sought

costs should not have been allowed either because the

respondents were not personally liable to meet the fees of the

Commonwealth Crown Solicitor or because the Con~monwealth Crown

to recover the proflt costs of that solicitor and that such the respondents.

I adopt Connor J's summary of the issues raised in the

statement of claim which was struck out :

"The statement of claim contained 367 paragraphs and

consisted of 50 foolscap pages. It alleged that the

plaintiff was employed by the Commonwealth in the

Australian Parliamentary Library at Parliament House,

Canberra, and that all the defendants were employed

by the Commonwealth, the first defendant being the

Parliamentary Librarian; the second defendant, the

Assistant Parliamentary L~brarian; the third defendant.

the Administrative Officer of the library in control 01

the registry; the fourth defendant; a clerical

assistant in the registry; and the flfth defendant,

the personal secretary of the first defendant. Amongst

other thlngs, the statement of claim alleged that in November 1973 the plaintiff was transferred from one position in the library to another position in the

llbrary in breach of the Public Servlce Act.	It alleged
that the flrst and second defendants sub~ected	the

plaintiff to arbitrary and discriminatory treatment by

abuse of their administrative power over the plaintiff. It

alleged that all the defendants conspired for the purpose

of in-jurlng the plalntiff, and that a considerable amount

of material defamatory of the plaintiff 1s in minutes on

files in the records of the parliamentary library.	It
alleged in particular that defamatory material is

contalned in d~rections to the plaintiff written on

official files of the library by the flrst defendant.

It alleged that the first defendant falsely and

maliciously lnduced the Presid~ng Officers of the

Parliament to recommend the creatlon of a new posltion

In the library so that the first defendant could transfer

the plalntiff to that position. It alleged that the

first defendant defamed the plaintiff in a minute

addressed to her in which he expressed his vlew that the

plaintiff's bad worklng relationships with other members

of the staff were mainly attributable to her and that

these bad relationships were seriously affecting the

efficiency of the department as a whole. It alleged

that defamatory material was contained in a notice of

12 November 1973 addressed to all Senators and Members

of the Rouse of Representatives concerning the transfer

of the plaintiff to the position in question. It

alleged that the plaintiff was defamed in mlnutes of

March 1974 written to the pla~ntlff on official flles

alleging that the progress of her work was slow. It

further alleged that the plaintiff was defamed by an

instruction of July 1974 of the second defendant to the

plaintiff to discontinue distribution of papers which she

was wrlting in the course of her duty. It further

alleged that she was defamed by an lnstructlon of the

second defendant contalned in a departmental flle to the

effect that she was wrltlng and distributing unauthorised

papers. It further alleged that she was defamed by

Instructions written by the first defendant on 30 July

1974 regarding the distribution of papers prepared by her

in the course of her dutles. It further alleged that

the first. second and third defendants wrongfully om~tted plaintiff's group and the relationships of the flrst and

the plaintiff's name from certain official publications.

second defendant with that subordinate which, the

plaintlff alleged, undermined her authority. It also

complained that the first defendant wrongfully accused

her of harassing an officer who was a subordinate in

her group. It also complained of treatment accorded

to a typlst in her group by the first, second and third

defendants.

Paragraph 366 of the statement of claim reads as follows :

The plaintiff is apprehensive that the defendants will repeat the acts and thlngs herein complained of unless they are restrained by this Honourable Court.

The statement of claim clalmed general damages of $1,550,000 as well as special damages of $750 and exemplary damages of $200,000. The statement of claim

asserted that the general damages of $1,550,000 were

made up of $700,000 for defamation; $300,000 for

conspiracy; $100,000 for each of the follow~ng :

dishonesty, fraud, malicious falsehood, injurious

falsehood, intimidation and abuse of administrat~ve

power; and $50,000 for breach of statutory duty.".

For the purpose of these reasons, I also accept the contention set out in paragraph 3 of the notice of appeal that

"3. . . . the statement of claim did not allege that in

November 1973 the plaintlff was transferred from one position in the library to another position in the

llbrary in breach of the Public Service Act. The fact

is that the appellant claims that the appellant was

legally transferred by order of the Presiding Officers

of the Parliament from one position in the llbrary to

another position in the llbrary on the 6th day of

November 1973 but that this order was not made untll

after the proceeding the injunctive protective proceeding

No.1028 of 1973 had been commenced on the 1st day of

November 1973 by a solicltor Walter S. Palmer of Canberra

In the Supreme Court of the Australian Capital Territory

on behalf of the appellant to restraln the first named

defendant from purporting to transfer the appellant

illegally in the tkrms of a minute dated the-26th day of

October 1973 and whlch minute was handed to the appellant

on the afternoon of Friday the 26th dav of October. 1973,

by the first named defendant in the presence of the

second named defendant and whlch minute stated the

purported transfer was to take effect on and from iqonday

the 29th day of October, 1973, until such time as the

requirements of the Public Service Act had been complied

with by the first named defendant.".

The events which gave rise to this actlon occurred in

the functioning of the Commonwealth Public Service.

The appellant and each of the respondents were members of the Public Service employed In a post havlng a relationship

to the Parliamentary Library, Canberra. The respondents

were not sued as offlcers or employees of the Commonwealth.

They were sued personally but In relatlon to orders, mlnutes,

lnstructlons and llke acts which occurred within the Publlc

Service, albelt their acts were, In the vlew of the appellant,

wrongful, malicious and not made in the due performance of

the dutles imposed upon the respondents.

In the actlon, the Commonwealth Crown Solicitor has acted as

solicitor for the respondents. Section 55E of the Judiciary

Act 1903 prescribes the persons, bodies and authorities for

whom the Co~nmonwealth Crown Solicitor may act. Paragraph

(f)(i) of the section provides that

"The Crown solicitor may, in his oflicial capacity,

act as sollc~tor	for
. . . . . . .

(f) an offlcer of, or a person employed by - (i) the Commonwealth

and is, for the purpose of so acting, entltled to this section, entitled to practlse as a sollcltor In any State or Territory.".

practlse as a sollcltor in any court and entltled to

all the rights and privileges of a sollcltor in each

The prlnclpal questlon whlch arlses in thls appeal 1s the

meaning and val~dity of that provision. The appellant

submitted that the section does not authorise the Con~monwealth

Crown Solicitor to act for a person sued in his prlvate capacity ln relation to a subject matter in which the

Commonwealth has no interest. She subn~ltted that, if the

provislon purports to authorise the Commonwealth Crown outside the legislative authority of the Parliament of Australia. The Solicitor-General, Mr. Byers, QC, who appeared on behalf of the Commonwealth to present arguments wlth respect to the constitutional lssues ralsed in thls appeal, submitted that, on its widest interpretation, the provislon authorises the Commonwealth Crown Sollcltor to

act as sol~cltor for any officer or person employed by the

Commonwealth whether or not the subject matter of the litigation

concerns his status as officer or employee and whether or

not the Commonwealth has any interest in the subject matter

of the litigation. Other subsidiary and alternative

arguments were put by both the appellant and Mr. Byers but

I need not, in these reasons, outllne them.

In my vlew, s.55E(f)(i) should be read as authorising the

Commonwealth Crown Sollcltor to act on behalf of an officer or employee of the Con~monwealth whenever the legitimate and valid interests of the Commonwealth of Australia or of the

Crown in right of the Commonwealth of Australia justlfy his

so acting. I adopt the approach of Gibbs J in v.

Illrector-General of Soclal Welfare (ex parte Henry) (1975)

133 CLR 369 at p.374 where His Honour sald :

"In Ex parte Walsh and Johnson; In re Yates (1925)

37 CLK 36 at p.127, Rich J. said : 'An Act of

Parliament rnust always be read as wlthln the the general principle that an Instrument should, if possible, be construed so as to render it valld rather

Constitution unless its language makes that ~mposslble.'

than to make it void. Conformably wlth that principle,

Knox C.J. and Starke J. in Ex parte Walsh and johnson; In re Yates construed the section under consideration in that case as not extendine to oersons who had made their homes In Australia and-become part of its people

(pp.61-62 and p.138). In my opinlon the provisions in

s.6 also should, if possible, be glven a construction

that will preserve their validity. This can be done,

if necessary wlth the aid of s.15A of the Acts

Interpretation Act 1901 (Cth), as amended, because the

whole tenor of the Act shows that it 1s lntended to

refer to lmmlgrants .".

I see no difficulty in slmllarly reading s.55E(f)(l) ut res

magis valeat quam pereat. It confers an authority upon the Commonwealth Crown Sollcltor to act In hls capaclty as such.

I would not accept that Parliament lntended such authority to

be exercised otherwise than in the legitimate Interests of

the Commonwealth of Australia or of the Crown ln rlght of the

Commonwealth.

So read, s.55E(f)(i) is a valid provision. It 1s unnecessary

to identify the precise head of power. The Sollcltor-General

alleged an inherent authority in the Commonwealth as a body

politic to maintain a Public Service and to pass leglslatlon

with respect to that Public Servlce. He relled also upon

the speclflc provisions of s.67 of the Constitution, paragraph

(xxxix) of s.51 of the Constltutlon, paragraph (xxxvl) of

s.51 of the Constitution and s.15A of the Acts Interpretation

The appellant next contended that neither the Commonwealth ranged over a wide area, it is necessary that I draw attention to the nature of the proceedings In respect of whlch this submission is made.

of Australia nor the Crown in right of the Commonwealth has

any interest in the actlon which justifled the Commonwealth

Crown Solicitor in acting as solicitor for the respondents

If it is deslred to challenge the retainer or authority of a solicltor, the proper procedure is to make an appropriate

substantive application to the Court. In Kichmond v. Branson

& Son (1914) 1 Ch 968, Warrington J held that a defendant

may not in his defence or at the trial dlspute the authority

of the solicitors for the plaintiff. His Lordship sald at

"But the real question is the authority of the solicitor.

Is that a question which can be raised as a relevant

issue in the action and at the trial? No authority

has been clted in support of the affirmative of such a

proposition and, in my opinion, it is ~mpossible,

according to the ordinary practice and procedure of the

Court, to justify that proposition. The business of

thls Court could not be carrled on if one were not

entltled to assume the authority of the sollc~tor unless

and until that authority has been dlsputed and shewn

not to exist in the proper form of proceeding, namely

a substantive application on the part of the parties

concerned to stay the proceedings on the ground of want

of authority.".

See also Russian Commercial and Industrial Bank v. Comptoir

D'Escompte de Nulhouse and Others (1925) AC 112. An

example of a motion whlch raised the authority of a solicitor to act for certain defendants may be seen in Porter v. Fraser (1912) 29 TLR 91. At all relevant times ln thls action, the

Commonwealth Crown Solicitor was, and he still is, the

solicitor on the record for the respondents. If a

substantive application had been made to the Supreme Court, respondents or that, in the exercise of its inherent

it may have been open to the appellant to argue that the

jurisdiction, the court should order that he cease to act as

solicitor for the respondents. However, no such substantive

application was made. The subject issue arose and was

considered on an appeal as to costs. On such an appeal,

even if the Issue is considered, it is not for the Commonwealth circumstances in which he came to act as solicitor to the

defendants. He is the solicitor on the record and the

court wlll presume that he is properly on the record untll some matter, of fact or law, 1s put forward which shows or tends to show that he has no authoritv so to act.

The appellant herself called no evidence on t h ~ s point. She

relied upon the submission that the allegations in the Commonwealth has any legitimate interest. In my opinlon, however, the matters raised in the statement of claim are matters of such a nature that the Crown in right of the Commonwealth could have a legitimate interest in them sufficient to justify the Commonwealth Crown Sollcltor in

statement of claim raised no matter in respect of whlch the

actlng for one or more of the partles. There was no or no

sufficient material before Connor J to challenge the bona fldes of the decision of the Commonwealth Crown

Solicitor to act for the respondents. 1 would presume

from hls so actlng that the Crown in rlght of the Commonwealth

has a legitimate interest in thls actlon and I would accept

that the Commonwealth Crown Solicltor was authorised by

s.55E(f)(i) to act for the respondents.

Connor J did not rely upon the presumption but acted upon a

statement from the Bar table that it appeared to the Crown

Sollcltor that virtually every act of the defendants

which was the subject of the action was done in the course

of employment by the Commonwealth and was a proper exercise

of power. On that footing, IIis Honour concluded that the

Crown had an interest to protect the defendants from acts

done ln the course of and within the scope of thelr

employment and that the Crown therefore had such an interest

in the action that the Crown Snlicitor mlght properly act

as solicitor for the defendants. I agree with HIS Honour

that the interest propounded justifies the Crown Solicitor

in acting for the defendants.

The final point made by the appellant was that it was not shown that the respondents were personally liable for the

costs of their solicitor. However, the cases of - R. v.

Archbishop of Canterbury (1903) 1 KB 289 and Blackall v.

Trotter(No.1) (1969) VR 939 establish that if the Crown

Solicitor has authority to act for a defendant in litigation,

it is no answer to the taxation of costs that the partles

for whom the Crown Solicitor acts are not personally liable

for the costs of the Commonwealth Crown Solicitor or that

the Commonwealth Crown Solicitor is a salaried offlcer.

I

adopt the view of Winneke CJ, Little and Menhennitt JJ In

Blackall v. Trotter (No.1) (supra) at p.941,

"In our opinion, neither in that case (R. v. Archbishop

of Canterbury) nor in Lenthall v. ~ l l l G n ((1933) SASR 31)

did the Court base its decision on the ground that there was any liability of the party represented to the Crown-

employed solicitor for costs. Both cases, in our opinion,

decided that in the circumstances the Crown by virtue

of its interest in the subject-matter of the litigation

was entitled to make its sollcltor available to act for

the party on the record. and that as the Crown incurred

the expense of hls employment the party he represented

was entitled to recover the costs awarded to him.	Slnce
expense was incurred, albeit not by the party on the

record, in the employment of the solic~tor, the decisions

are distinguishable from cases such as Gundrey v.

Sainsbury (1910) 1 KB 645, relled upon by Mr. Kaye, where

no expense at all was incurred in the employment of the I I

solicitor. .

"In Nolan v. George (1959) Qd.R. 315. the Full Court of 114, the Full Court of New ~ o u t h m e s reached a like result to that reached in X, v. Archbishop of Canterbury and Lenthall v. Hillson, in cases where the informant in

summarv ~roceedinrrs was re~resented bv a Crown-employed

- - ,

solicitor. Hr. Kaye, however. contended that both these

cases were criminal proceedings. He conceded that in

such proceedlnps costs are recoverable. but he contended

that civil proceedings are distinguishable. As an

informant in summary criminal proceedings 1s not the

crown - see R. v. . . Tween (1965) VR 687. at pp.697-9 - we

-.

see no reason in prlnclple to make any such distinction. It follows, in our view. that the present case cannot be distinguished, and should not be distinguished by any

process of subtle refinement from the above-mentioned

decisions of long standing and of several jurisdictions.

As ln our view such decisions, if we may say so, produce

a s e n s i b l e and j u s t r e s u l t , they s h o u l d , i n our opinio11,

i f a p p l i c a b l e t o t h e	f a c t s of	t h i s c a s e ,	be	fo l lowed	and
a p p l i e d . " .

For t h e s e r e a s o n s I would d i s m i s s t h e a p p e a l .

I c e r t l f y t h a t this and the I \

preceding p->es a-.e a t n e copy of the

Reascns f o r Judgment l lereln o f hls I iol lo~r

:.fr. J u s t l c e D a u ~ e ~

Assoclate

3ated: l q Jwlq7 7