Palmer & Anor v The State of Western Australia and Anor

[2021] HCATrans 87

[2021] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B26 of 2020

B e t w e e n -

CLIVE FREDERICK PALMER

First Plaintiff

MINERALOGY PTY LTD ABN 65 010 582 680

Second Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

First Defendant

CHRISTOPHER JOHN DAWSON

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 18 MAY 2021, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 2 September 2020, the first plaintiff in this matter, Mr Palmer, filed a summons for contempt against the Premier and Attorney‑General of the State of Western Australia, Messrs McGowan and Quigley, the respondents.  On 14 January 2021, Mr Palmer filed a notice of discontinuance with respect to the contempt proceeding.  On 19 February 2021, the respondents filed a summons seeking an order that Mr Palmer pay their costs of the contempt proceedings and an order for the costs of the application for that order.

For the reasons that I now publish, I would make the orders sought by the respondents.  I direct that these reasons be incorporated into the transcript.

The orders are:

1.Mr Palmer pay the respondents’ costs of and incidental to the contempt proceedings, including reserved costs if any, up to the date of discontinuance.

2.        Mr Palmer pay the respondents’ costs of this application.

I publish those orders.

By writ of summons filed 25 May 2020, the plaintiffs challenged the validity of the closure by the Executive Government of Western Australia of the State’s borders in response to the COVID‑19 pandemic.

On 2 September 2020 the first plaintiff in the action (“Mr Palmer”) filed a summons for contempt against the Premier and Attorney‑General of the State of Western Australia, Messrs McGowan and Quigley (“the respondents”).  The summons sought an order that the respondents be committed to prison for contempt of court as a result of public comments by them disparaging Mr Palmer for bringing the action challenging the border closure.

On 6 November 2020, this Court gave judgment against the plaintiffs in their challenge to the validity of Western Australia’s closure of its borders[1].

[1]See Palmer v Western Australia (2021) 95 ALJR 229.

On 14 January 2021, the solicitors acting for Mr Palmer filed a notice of discontinuance of the contempt proceedings.

On 27 January 2021, the solicitors for the respondents wrote to Mr Palmer’s solicitors seeking his consent to paying the costs of the respondents in the contempt proceedings.  That request was refused.

On 19 February 2021, the respondents filed a summons seeking an order that Mr Palmer pay their costs of the contempt proceedings and an order for the costs of the application for that order.  It is with the determination of the matter presented by this summons that these reasons are concerned.

Costs and discontinuance of contempt proceedings

Rule 27.10.6 of the High Court Rules 2004 (Cth) (“the Rules”) provides:

“Subject to any contrary order of the Court or a Justice a plaintiff discontinuing a proceeding or withdrawing a claim shall pay the costs of each party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal.”

Similar provision is made by the Rules in relation to the discontinuance of applications for mandamus, prohibition, certiorari, habeas corpus and quo warranto (r 25.10.4), the discontinuance of applications for removal under s 40 of the Judiciary Act 1903 (Cth), the discontinuance of an application for leave or special leave to appeal (r 41.09.2) and the discontinuance of an appeal (r 42.14.2). There is, however, no specific provision made by the Rules in relation to the discontinuance of proceedings for contempt. These proceedings are regulated by Pt 11 of the Rules. In relation to costs, r 11.05 provides:

“The costs of an application for committal shall be in the discretion of the Court whether an order for committal is made or not.”

The respondents contend that r 27.10.6 applies in this case. Mr Palmer rejects that contention. While I am distinctly inclined to prefer the view put forward by Mr Palmer on this point, it is unnecessary to come to a final view because, in this case, it would make no difference as to the result. I am content to assume that the discretion that falls to be exercised is that conferred by r 11.05 of the Rules.

Under r 11.05, the exercise of the power to order costs is very much a matter of an open discretion[2].  In Hinch v Attorney‑General (Vict)[3] a unanimous Court held that because proceedings for contempt are in the civil jurisdiction of the Court, they “attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event”.  The Court went on to say that “[i]n every case, it comes down to a question of discretion”[4].

[2]Hinch v Attorney‑General (Vict) (1987) 164 CLR 15 at 90; Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624.

[3](1987) 164 CLR 15 at 89‑90.

[4](1987) 164 CLR 15 at 90.

In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin[5], McHugh J acknowledged the general rule that a successful party is generally entitled to his or her costs of civil proceedings, but added that the “general rule” ordinarily applies after a hearing on the merits so that “[w]hen there has been no hearing on the merits ... a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order”.

[5](1997) 186 CLR 622 at 624‑625.

McHugh J observed that, in such a case, while “[t]he court cannot try a hypothetical action between the parties”, the court may in some cases “be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs” of the proceeding[6].  His Honour went on to say[7]:

[6]Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624, referring to Australian Securities Commission v Aust‑Home Investments Ltd (1993) 44 FCR 194 at 201.

[7]Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 625.

“If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings.”

I consider that I should follow this approach.  The decisive question then is whether Mr Palmer acted unreasonably in bringing and pursuing the contempt proceedings.

Were the contempt proceedings pursued unreasonably?

In the contempt proceedings Mr Palmer sought an order for the imprisonment of the respondents on the basis of statements made by them in the course of debate about an issue of intense public interest in which Mr Palmer’s challenge to the border closure was itself an aspect of that debate.  The contempt proceedings thus raised most serious issues.  It behoved both sides to pursue the contempt proceedings with all due diligence and efficiency.  Mr Palmer’s pursuit of the contempt proceedings was far from diligent or efficient.  It was characterised from its commencement by a need for reformulation and further particularisation of the bases on which he sought to have the respondents committed to prison.  Indeed, the deficiencies in the articulation of Mr Palmer’s case which made reformulation and further particularisation necessary had not been remedied even by the time Mr Palmer gave notice of discontinuance.

Mr Palmer’s conduct of the contempt proceedings exhibited a glaring want of diligence in the articulation of the case that he sought to bring against the respondents.  The contempt proceedings were pursued by Mr Palmer in an unreasonably desultory and inefficient manner, as a result of which the respondents were put to expense to which they should not have been put.  In this regard it is necessary to refer to some of the detail of the course of the contempt proceedings.

The course of the proceedings

On 11 September 2020, Mr Palmer filed an urgent application seeking an order that Mr McGowan be restrained from making any public statement about or relating to the proceeding commenced by Mr Palmer, and that Mr McGowan pay the costs of that application.  In support of that application, Mr Palmer relied upon (among other things) an affidavit in which he deposed to the circumstance that he was not intimidated by the public criticism made of him by Mr McGowan.

On 14 September 2020, Mr Palmer’s solicitors wrote to the Court indicating that he wished to discontinue his application for an injunction.  No reason was given for this change of heart on Mr Palmer’s part.  The parties agreed by consent that Mr Palmer’s application be dismissed with no order as to costs.

On 15 September 2020, at a directions hearing in respect of the contempt proceedings, it was proposed on behalf of Mr Palmer that he file and serve an amended summons and an amended charge sheet, and that he be granted leave to issue a subpoena in respect of documents.  It was ordered that these proposals be stood over for further directions on a date to be fixed.

On 12 November 2020, Mr Palmer notified the respondents that he had decided not to proceed with any amendment to the charge sheet in the contempt proceedings.  Once again, no reason was given for this change of heart.

On 30 November 2020, the solicitors for Mr Palmer served on the respondents a notice to admit facts relating to aspects of the contempt proceedings.  On 7 December 2020, the solicitors for the respondents declined on their behalf to respond to the notice to admit facts and requested that Mr Palmer amend the charge sheet to include sufficient detail to enable them to understand the case sought to be made against them.  On 9 December 2020, Mr Palmer’s solicitors responded, declining to amend the charge sheet.

On 11 December 2020, at a further directions hearing, counsel for Mr Palmer did not seek leave to issue the subpoena for documents that he had been earlier foreshadowed.  Further, Mr Palmer’s counsel did not press for a response to the notice to admit facts.  Nor did Mr Palmer, by his counsel, dispute the need to amend the charge sheet to articulate the case sought to be made against the respondents by Mr Palmer. It was ordered that the charge sheet be amended.

Conclusion

It is apparent from this summary of the course of proceedings that, between the commencement of the contempt proceedings and the time the contempt proceedings were discontinued by Mr Palmer, his claim against the respondents had not been formulated or particularised sufficiently to enable the matter to proceed.  It is simply not correct to say, as was submitted on behalf of Mr Palmer that his “mis‑steps ... do not rise above the level of usual and expected procedural ‘frictions’”.  No good reason is offered by way of explanation for this state of affairs; and it is difficult to imagine that a satisfactory explanation is available.

Indeed, given the acknowledgment of the insufficiency of the formulation of the charge of contempt implicit in the proposal at the directions hearings of 15 September and 11 December 2020 that Mr Palmer file and serve an amended charge sheet, it is evident that Mr Palmer or those advising him appreciated, at an early stage of the contempt proceedings, that Mr Palmer’s case was not ready to proceed.  That Mr Palmer, or those advising him, failed to act promptly upon that appreciation to remedy the evident deficiencies in the articulation of Mr Palmer’s case, was distinctly unreasonable.

The respondents should not have been put to the expense of dealing with Mr Palmer’s desultory and inefficient pursuit of the contempt proceedings.  That expense was, to a substantial extent, wasted expenditure, and that was the case whether or not the contempt proceedings could have been prosecuted to a successful conclusion by Mr Palmer.  In these circumstances, it is not necessary to try a hypothetical action between the parties to be able to conclude that justice requires that the respondents should recover the costs to which they were unreasonably put.  It would be quite unjust to deny the respondents such recompense as an order for costs would afford them in respect of the expense to which they were put as a result of the manner in which Mr Palmer’s proceedings against them were conducted.

Orders

1.Mr Palmer pay the respondents’ costs of and incidental to the contempt proceedings, including reserved costs if any, up to the date of discontinuance.

2.        Mr Palmer must pay the respondents’ costs of this application.

AT 9.31 THE MATTER WAS ADJOURNED