Plenty v Attorney-General (SA)

Case •

[2013] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

PLENTY & ANOR v ATTORNEY-GENERAL OF SOUTH AUSTRALIA

[2013] SASC 35

Judgment of The Honourable Justice Stanley

15 March 2013

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY

Plaintiffs have brought action against the Attorney-General for the State of South Australia seeking declaratory orders – the defendant has brought an application for summary judgment or, in the alternative, summary dismissal - the defendant brings the application on four bases – first, that the second statement of claim filed by the plaintiffs fails to disclose a cause of action known at law, which failure is incapable of being remedied by amendment – second, the declaratory relief sought is not directed to the determination of a justiciable legal controversy – third, even if the declaratory relief sought was granted, it would produce no foreseeable consequences for the parties – fourth, the claim is frivolous, vexatious and an abuse of process.

6SCR 232 confers power on the Court to grant summary judgment – summary judgment may be given in favour of the defendant if the Court is satisfied that there is “no reasonable basis for the claim against the applicant”.

6SCR 193 confers power upon the Court to dismiss proceedings if the pleadings disclose no reasonable cause of action, or the proceedings are frivolous, vexations or an abuse of process.

Held: Order made granting summary judgment to the defendant – the proceedings have no prospect of success – at common law there is no absolute right to legal representation – further, the declaration sought is at large, the Attorney-General is not the proper contradictor – the making of the orders sought would have no foreseeable consequences for the parties – the Attorney-General owes no duty to protect individual citizens from injustice, nor is there any duty on the Attorney-General to introduce a bill into Parliament for the protection or advancement of private interests of an individual and in any event, it is not a legitimate role of the courts to exercise any supervisory function over Members of Parliament.

Supreme Court Civil Rules 2006 (SA) r 193, r 232; Supreme Court Act 1935 (SA) s 17, s 31; Federal Court of Australia Act 1976 (Cth) s 31A(2), referred to.
Spencer v The Commonwealth (2010) 241 CLR 118, applied.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Aussie Airlines Ltd v Australian Airlines Ltd (1996) 68 FCR 406; Kleenex (Thailand) Co Ltd & Ors v Corporate IM Pty Ltd & Ors [2012] SASC 71; Little v State of Victoria [1991] VSCA 113; Gouriet v Union of Post Office Workers (1978) AC 435; Giannarelli v Wraith (1988) 165 CLR 543; Australian Conservation Foundation Inc. v The Commonwealth (1980) 146 CLR 493, discussed.
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125; National Mutual Life Association of Australia Ltd v Coffey [1991] 2 Qd R 401; Attorney-General of Duchy Lancaster v London and North Western Railway Co. [1892] 3 Ch 274; Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489; Morton v Arbuckle [1918] VLR 657; Deitrich v The Queen (1992) 177 CLR 292; Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; Prebble v Television New Zealand Ltd [1995] 1 AC 321; Egan v Willis (1998) 195 CLR 424; Westlakes v South Australia (1980) 25 SASR 389; Victoria v The Commonwealth and Connor (1975) 134 CLR 81; Attorney-General (WA) v Marquet (2003) 217 CLR 545; Carter v Roberts [1903] 2 Ch 312; Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1; Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No. 4) (2011) 280 ALR 97; Toll Holdings Ltd v Australian Competition and Consumer Commission (2009) 256 ALR 631; CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524, considered.

PLENTY & ANOR v ATTORNEY-GENERAL OF SOUTH AUSTRALIA
[2013] SASC 35

Civil

STANLEY J:

Introduction

  1. The plaintiffs have brought action against the Attorney-General for the State of South Australia seeking declaratory orders. 

  2. The action has a lengthy background.  Its genesis is a claim the plaintiffs brought over 40 years ago in Western Australia for damages resulting from injuries suffered by the plaintiffs in a motor vehicle accident.  That claim went to trial in the District Court of Western Australia.  The first plaintiff was awarded general damages in the sum of $15,500 plus special damages.  In assessing those damages, the trial judge reduced the damages awarded to the first plaintiff by reason of his failure to mitigate his loss.  The learned trial found the failure to mitigate arose from the first plaintiff’s refusal to undergo a further operation on his knee, which was injured in the collision. 

  3. The first plaintiff appealed this judgment to the Full Court of the Supreme Court of Western Australia.  The Full Court found that the trial judge had erred in the approach he took to the issue of mitigation.  It felt unable to reassess the first plaintiff’s damages, however, as it concluded the primary facts necessary for an assessment were not sufficiently found by the trial judge, and the Full Court was not in a position to make those findings for itself.  The Court concluded, that if the appellant (first plaintiff) so moved, the judgment of the District Court should be set aside, and there should be a retrial. 

  4. The first plaintiff has never moved for the setting aside of the judgment.  In consequence, there has not been a retrial.  Later the plaintiffs came to live in South Australia.  They have been aggrieved by the decision of the Full Court of the Supreme Court of Western Australia over many years. 

  5. Apparently, the plaintiffs have been unable to find solicitors or counsel who are prepared to act for them in bringing proceedings in the High Court challenging the decision of the Full Court of the Supreme Court of Western Australia. 

  6. The plaintiffs wrote to the Attorney-General on 19 September 2010 setting out the history of the matter in considerable detail, explaining their grievances, and seeking his assistance in terms similar to the relief sought in this action.  Subsequently they sought a meeting with the Attorney-General to discuss their grievances through Mr Geoff Brock MP, acting as their intermediary.  The plaintiffs allege that the Attorney-General agreed to a meeting but subsequently reneged.  The Attorney-General makes no admission with respect to this allegation. 

    Earlier proceedings

  7. In April 1996 the plaintiffs filed a statement of claim in the Supreme Court of South Australia against the Commonwealth of Australia and the State of South Australia.  That claim sought, amongst other things, damages for the failure of the Commonwealth and the State of South Australia to rectify laws they claimed prohibited them from obtaining legal representation for the purposes of challenging the decision of the Full Court of the Supreme Court of Western Australia. 

  8. On 20 September 1996 the plaintiffs filed a notice of discontinuance in relation to the 1996 action.  The Commonwealth sought an order for the costs of that action against the plaintiffs.  On 27 September 1996 that application was heard by Debelle J.  During the course of that hearing, the plaintiffs proffered to the Court an undertaking that thereafter they would not prosecute that action in any shape or form against the Commonwealth or the State of South Australia.  On the basis of those undertakings being proffered by the plaintiffs, the Court declined to make any order as to costs.  The Court noted that should the plaintiffs breach their undertaking, the Commonwealth was at liberty to renew its application for costs. 

    The present action

  9. In the action presently before the Court, the plaintiffs seek the following declarations:

    21.1That as far as the said FC of WA Judgement is concerned, the plaintiff’s have a legal right to be legally represented in the courts of law at a proper fee at the plaintiff’s expense;  and/or,

    21.1.1.That as far as the said FC of WA Judgement is concerned, the plaintiffs have a presumed right to be legally represented in the courts of law at a proper fee at the plaintiff’s expense, and/or,

    21.1.2.That it is in the public interests, and/or, of public importance, that the plaintiffs have a legal right to be legally represented in the courts of law at a proper fee at the plaintiff’s expense, and/or,

    21.1.3That there is a right, and/or, a presumption of right, and/or, a public interest right, and/or, public policy right, for the plaintiffs to be able to be legally represented at a proper fee at the plaintiff’s expense before the Courts of Australia, in both civil and criminal matters in:-

    (a)The State of South Australia Courts, and/or,

    (b)In The Commonwealth Courts;  and/or,

    (c)that it is a denial of natural justice, and/or civil rights to be denied the right to have legal representation before the Courts.

    21.2That the plaintiffs have a legal right to be legally represented in the courts of law at a proper fee at the plaintiff’s expense in the matter of the said FC of WA Judgement;  and/or,

    21.2.1.That as far as the said FC of WA Judgement is concerned, the plaintiffs have a presumed right to be legally represented in the courts of law at a proper fee at the plaintiff’s expense;  and/or,

    22.2.2.That it is in the public interests, and/or, of public importance, that the plaintiffs have a legal right to be legally represented in the courts of law at a proper fee at the plaintiff’s expense in the matter of the said FC of WA Judgement.

    21.3That the defendant to this action, pursuant to his position stated in paragraph 1., of this Statement of Claim, at all material times, failed in his duty, and/or, his care to the plaintiffs, as permanent citizens of the State of South Australia:-

    21.3.1.to, introduce an appropriate Bill to the Parliament as the plaintiffs has sought as per paragraph 20.3.1. herein of this Statement of Claim;  and/or,

    21.3.2.to have found, and/or, to have worked towards such other appropriate, and/or, just and expedient solution to the plaintiff’s situation, as per 20.3.2. herein of this Statement of Claim.

    21.4That the words, in their natural and ordinary meaning, that the legal profession are Officers of the Court, and that their first duty, and/or,

    21.4.1.their absolute duty, and/or,

    24.4.2.their overriding duty, is to the Court,

    21.4.3.creates a conflict of interest, and/or, is

    21.4.4.capable of creating a conflict of interest between the legal profession and the plaintiffs;  and/or,

    21.5That in view of paragraph 21.4. and subparagraphs, as a matter of general importance, and/or, of public importance, the plaintiffs seek a declaration from this Court that will remove the practice from this Court that causes solicitors and barristers to have their first and overriding duty owing to the Court;  and/or,

    21.5.1.such other expedient, appropriate, just relief, that will restore the independence of the Bar from the Bench.

    21.6That pursuant to paragraphs 20.4 and 9.2 herein, the plaintiffs seek a declaration that the defendant failed in his duty, and/or, a care, to have made further inquiries of the plaintiffs prior to his answer rejecting their request as per paragraph 9.2 herein.

    21.7That in view of all the aforesaid, the plaintiffs seek a further declaration that the above named defendant failed in his:-

    21.7.1.duty, and/or, his responsibility to the plaintiffs, as permanent residents of the State of South Australia to support the plaintiffs to allow them to in good faith, to speak to the defendant, and/or,

    21.7.2.to his Advisor face to face about what assistance he could give to them in regard to the basic legal right to obtaining a retainer with a South Australian solicitor;

    21.7.3.who would in turn retain an appropriate senior counsel at a reasonable fee, to enable them to have access to due process in the High Court of Australia for redress and closure to the plaintiff’s claim of the denial of natural justice, and/or,

    (a)their non-custodial false imprisonment, and/or,

    (b)their perpetual torture of the legal injustice, and

    21.7.4.the “multiplicity of actions” with the “unbroken chain of causation” they have and are suffering and enduring from the published Judgement of Plenty v Argus, (1975) WAR 155;

    21.7.5.from which, the plaintiffs fled in fear from Western Australia in late 1974, to seek sanctuary in South Australia, and/or,

    21.8Alternatively, in view of all of the aforesaid, the plaintiffs seek a further declaration on merciful, and/or, moral, and/or, compassionate, grounds, that the above named defendant does have a duty, and/or,

    21.8.1.a responsibility to the plaintiffs, as permanent residents of the Stat of South Australia to support the plaintiffs to allow them to in good faith, to speak to the defendant, and/or,

    21.8.2.to his Advisor, face to face about what assistance he could give to them in regard to the basic legal right to obtaining a retainer with a South Australian solicitor;

    21.8.3.who would in turn retain an appropriate senior counsel at a reasonable fee, to enable them to have access to due process in the High Court of Australia for redress and closure to the plaintiff’s claim of the denial of natural justice, and/or,

    (a)their non-custodial false imprisonment, and/or,

    (b)their perpetual torture of the legal injustice, and

    21.8.4.the “multiplicity of actions” with the “unbroken chain of causation” they have and are suffering and enduring from the published Judgement of Plenty v. Argus, (1975) WAR 155;

    21.8.5.from which, the plaintiffs fled in fear from Western Australia in late 1974, to seek sanctuary in South Australia.

  10. The declaratory relief sought by the plaintiffs in this action falls into three categories.  First, a declaration that the plaintiffs have a right to be legally represented for the purposes of challenging the judgment of the Full Court of the Supreme Court of Western Australia.  Second, a declaration that the Attorney-General has a duty of care with respect to the plaintiffs, and has breached that duty by failing either to introduce an appropriate bill in the Parliament regarding legal representation for the plaintiffs to challenge the judgment of the Full Court of the Supreme Court of Western Australia in the High Court of Australia, or to have found a solution to the plaintiff’s concerns regarding that judgment.  Third, a declaration to the effect that a legal practitioner does not owe a primary or overriding duty to the Court. 

  11. The Attorney-General brings an application for summary judgment pursuant to 6SCR 232 or, in the alternative, summary dismissal of the proceedings pursuant to 6SCR 193.

  12. The Attorney does so on four bases.  First, that the second statement of claim filed by the plaintiffs fails to disclose a cause of action known at law, which failure is incapable of being remedied by amendment.  Second, the declaratory relief sought is not directed to the determination of a justiciable legal controversy.  Third, even if the declaratory relief sought was granted, it would produce no foreseeable consequences for the parties.  Fourth, the claim is frivolous, vexatious and an abuse of process. 

    Declaratory relief

  13. The Supreme Court’s jurisdiction to grant declaratory relief is conferred by s 17 of the Supreme Court Act 1935 (SA). Section 31 confers a broad power on the Court. The power to grant a declaration is a discretionary remedy, however, it is to be exercised judicially. In other words, it is confined to the exercise of judicial power. Courts cannot make declarations at large. In Ainsworth v Criminal Justice Commission[1] Mason CJ, Dawson, Toohey and Gaudron JJ said:[2]

    It is now accepted that superior courts have an inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if “the Court's declaration will produce no foreseeable consequences for the parties”.

    (Footnotes omitted).

    [1] (1992) 175 CLR 564.

    [2] (1992) 175 CLR 564 at 581 – 582.

  14. In Aussie Airlines Pty Ltd v Australian Airlines Ltd[3] Lockhart J summarised the principles which govern the exercise of the Court’s discretion in relation to the grant of declaratory relief.  His Honour identified four conditions that must be satisfied:[4]

    (1)The proceedings must involve the determination of a question that is not abstract or hypothetical;

    (2)Relief will not be granted in relation to future circumstances that may never happen or in circumstances where a declaration will produce no foreseeable consequence for the parties;

    (3)The parties seeking declaratory relief must have a real interest, that is, sufficient standing; and

    (4)There must be a proper contradictor.

    [3] (1996) 68 FCR 406.

    [4] (1996) 68 FCR 406 at 414.

    Summary judgment

  15. 6SCR 232 confers power upon the Court to grant summary judgment. Summary judgment may be given in favour of the defendant if the Court is satisfied that “there is no reasonable basis for the claim against the applicant”.

  16. In Kleentex (Thailand) Co Ltd & Ors v Corporate IM Pty Ltd & Ors[5] White J summarised the principles applicable to the exercise of the Court’s power in light of the High Court’s reasons in Spencer v The Commonwealth,[6] as follows:[7]

    1.Summary judgment on a plaintiff’s application may be given if, and only if, the Court is positively satisfied that there is “no reasonable basis for defending the [plaintiff’s] claim”.[8]

    2.The expression “no real basis for defending the [plaintiff’s] claim” requires that there be disclosed in the material before the Court a basis for defence which is more than fanciful.[9]  That basis may relate to the underlying merits of the entitlement asserted by the plaintiff and involve issues of fact or of law or of combined fact and law.  Alternatively, the basis may relate to the form of relief sought by the plaintiff in relation to a claim which is otherwise meritorious.  As Debelle J observed in Ceneavenue, “the word ‘real’ is intended to distinguish a bona fide defence from one that is fanciful or spurious or an abuse of process seeking to delay and defeat the plaintiff’s just claim”.[10]

    3.The Court is not required to be satisfied that the defence proffered by the defendant is “hopeless” or “bound to fail”.[11] However, if the defence is characterised in that way, the r 232(2)(a) criterion will be satisfied.

    4.On the other hand, provided that there are relevant factual or legal issues in dispute, the Court’s opinion that a defence is unlikely to succeed is not sufficient for a grant of summary judgment on a plaintiff’s claim.  A plaintiff’s entitlement to summary judgment does not turn simply on the Court’s prediction as to the likely ultimate outcome.

    5.The power to enter summary judgment under r 232 should be exercised with caution.[12]  In particular, if the determination of whether a defendant has a reasonable basis for defending a claim requires consideration of apparently complex questions of fact or of law and fact, considerable caution is required.[13]

    6.The onus of establishing that summary judgment should be granted lies on a plaintiff,[14] but in considering whether the onus has been discharged, the Court will of course have regard to the cogency of any defence raised by the defendant.[15]

    [5] [2012] SASC 71.

    [6] (2010) 241 CLR 118.

    [7] [2012] SASC 71 at [19].

    [8]    Supreme Court Civil Rules 2006, r 232(2)(a).

    [9]    Spencer v The Commonwealth [2010] HCA 28 at [25]; (2010) 241 CLR 118 at 132.

    [10]   Ceneavenue Pty Ltd v Martin [2008] SASC 158 at [78]; (2008) 106 SASR 1 at 20.

    [11]   Spencer at [17], [52]-[53], [56].

    [12]   Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Spencer at [24], [60].

    [13]   Spencer at [26].

    [14]   Ceneavenue at [78].

    [15] Ibid.

  1. In Kleentex, White J considered an application for summary judgment by a plaintiff rather than a defendant.  Nevertheless, I consider that the principles identified by White J are readily adaptable to the determination of an application for summary judgment by a defendant. 

  2. As French CJ and Gummow J said in Spencer v The Commonwealth, considering the analogous provision to 6SCR 232, namely, s 31A(2) of the Federal Court of Australia Act 1976 (Cth):[16]

    Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

    [16] (2010) 241 CLR 118 at 132.

  3. That the plaintiffs seek discretionary relief by way of declarations is no bar to a grant of summary judgment.  The Court may enter judgment in favour of the Attorney-General if satisfied there is no reasonable prospect that, if the matter went to trial, the trial judge would exercise the discretion to grant declaratory relief.

    Summary dismissal

  4. 6SCR 193 confers power upon the Court to dismiss proceedings if the pleadings disclose no reasonable cause of action, or the proceedings are frivolous, vexatious, or an abuse of the process of the Court. The power to dismiss will only be used with great caution and in clear and obvious cases.[17]  An action should not be struck out if there is a real question of fact or law to be determined.[18]  A claim will be dismissed on the basis that the pleadings disclose no reasonable cause of action only where the claim is obviously unsustainable,[19] such that the defect cannot be cured by amendment to the pleadings.[20]

    [17]   General Steel Industries Inc v Commissioner for Railways (NSW) (1969) 112 CLR 125.

    [18]   National Mutual Life Association of Australia Ltd v Coffey [1991] 2 Qd R 401.

    [19]   Attorney-General of Duchy of Lancaster v London and North Western Railway Co. [1892] 3 Ch 274.

    [20]   Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 496; Morton v Arbuckle [1918] VLR 657.

    Consideration

  5. In my view, the defendant is entitled to summary judgment. 

  6. The proceedings have no prospect of success.  There is no reasonable prospect that the Court would grant the declaratory orders sought by the plaintiffs.  The proceedings are without merit.  I reach this conclusion for the following reasons. 

  7. There is no reasonable prospect of the Court making a declaration that the plaintiffs have a right to be legally represented for a proper fee at the plaintiffs’ expense for the purposes of challenging the judgment of the Full Court of the Supreme Court of Western Australia.    This is an instance of the observation by French CJ and Gummow J in Spencer v The Commonwealth[21] that where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court, the court hearing the application for summary judgment could justifiably conclude that the proceedings had no reasonable prospect of success.  At common law, there is not an absolute right to legal representation.[22]  Further, the declaration sought is at large.  The Attorney-General is not the proper contradictor.  He does not have a real interest in the declaration sought because the question for determination is abstract.  The making of a declaration in the terms sought would have no foreseeable consequence for the parties.  It would not require any particular solicitor or counsel to act for the plaintiffs.  It is not the role or responsibility of the Attorney-General to procure solicitors or counsel who are prepared to act for the plaintiffs.  There is no justiciable legal controversy between the plaintiffs and the Attorney-General.  There are no proceedings before this Court which depend upon the resolution of the issues raised by the plaintiffs. 

    [21] (2010) 241 CLR 118 at 132.

    [22]   Deitrich v The Queen (1992) 177 CLR 292; Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 at 298 – 299.

  8. Neither is there any reasonable prospect of the Court granting a declaration that the Attorney-General has a duty of care with respect to the plaintiffs, and failed to discharge that duty by failing either to introduce an appropriate bill in Parliament regarding legal representation, or to have found a solution to the concerns of the plaintiff. 

  9. The position taken by the plaintiffs involves a fundamental misconception of the role and responsibilities of the Attorney-General.  The Attorney-General occupies a common law office which dates back to the thirteenth century. The office carries with it common law functions and duties.[23]  But that role and those responsibilities are exercised in the public interest, not in relation to any particular private interests, such as those being pursued by the plaintiffs. 

    [23]   Selway, The Constitution of South Australia (The Federation Press, 1997) at 6.5.

  10. In Little v State of Victoria[24] the Victorian Court of Appeal had to consider whether the Attorney-General of that State owed a common law duty to exercise reasonable care to protect individual citizens of that State from injustice.  The Court concluded that no such duty arose at common law. 

    [24] [1999] VSCA 113.

  11. In reaching that conclusion, the Court of Appeal noted the singular role of the Attorney-General, which is to represent the public interest as distinct from private interests, in the administration of justice.[25]  In exercising the powers of the office, the Attorney-General represents the public.  The rights of the public are vested in the Crown, and the Attorney-General enforces them as an officer of the Crown.  In general, the Attorney-General has no power to interfere with the assertion of private rights.  The corollary of this is that in general, no private citizen has the right of representing the public in the assertion of public rights.  This reflects the fundamental principle that private rights are asserted by individuals but public rights can only be asserted by the Attorney-General as representing the public.

    [25] [1999] VSCA 113 at [18].

  12. Where there is a breach of a public right or liberty, only the Attorney‑General has the right to enforce that public right or liberty, usually by declaration or injunction, unless the private person can show that the breach also involved a breach of a private right or that the private person suffered some special damage.  If the private person cannot show any private right or special damage, then the private person can only bring an action in the name of, and with the fiat of, the Attorney-General.  This is a relator action.  In Gouriet v Union of Post Office Workers[26] Lord Wilberforce said:[27]

    A relator action - a type of action which has existed from the earliest times - is one in which the Attorney-General, on the relation of individuals (who may include local authorities or companies) brings an action to assert a public right. It can properly be said to be a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney-General as representing the public. In terms of constitutional law, the rights of the public are vested in the Crown, and the Attorney-General enforces them as an officer of the Crown. And just as the Attorney-General has in general no power to interfere with the assertion of private rights, so in general no private person has the right of representing the public in the assertion of public rights. If he tries to do so his action can be struck out.

    [26] (1978) AC 435.

    [27] (1978) AC 435 at 477.

  13. The Attorney-General does not owe a duty of care to any private individual which would impose any obligation on the Attorney-General to introduce a bill into the Parliament for the protection or advancement of the private interests of an individual.  In any event, it is not a legitimate role of the courts to exercise any supervisory function over Members of Parliament, or Ministers of the Crown, in respect of bills introduced into the Parliament.  To do so would infringe the privileges of the Parliament in a way incompatible with the Bill of Rights 1689.[28]  The declaration sought by the plaintiffs would represent an impermissible intrusion by the courts into the existing constitutional arrangements concerning the proper role and function of the judiciary vis a vis the executive and the legislature.  These matters are not justiciable.[29]  The courts will only permit inquiry into the legislative process to the extent a law of the South Australian Parliament is subject to challenge on the basis it is beyond constitutional power, or in relation to its manner and form.[30]  The challenge sought to be brought in these proceedings is not of that character.  On the contrary, it seeks a declaration by the Court that the Attorney-General is in breach of a duty he is alleged to owe to the plaintiffs by failing to introduce into the Parliament a bill for a law advancing their private interests. 

    [28]   Prebble v Television New ZealandLtd [1995] 1 AC 321 at 332; Egan v Willis (1998) 195 CLR 424.

    [29]   Westlakes v South Australia (1980) 25 SASR 389 at 393.

    [30]   Victoria v The Commonwealth and Connor (1975) 134 CLR 81; Attorney-General (WA) v Marquet (2003) 217 CLR 545.

  14. Furthermore, there is no reasonable prospect of the Court granting that declaration or a declaration that the Attorney-General has a duty of care with respect to the plaintiffs to find a solution to their concerns, or, for that matter, to meet with them to discuss the same.  Even if the declaratory orders sought by the plaintiffs were capable of being granted, the Court would refrain from doing so as there are no foreseeable consequences for the parties which would follow from the making of such orders.   The introduction of a bill into the Parliament does not guarantee its enactment.  Any meeting between the plaintiffs and the Attorney-General or efforts by the Attorney-General to work towards a solution to the plaintiffs’ grievance, will not guarantee a solution acceptable to the plaintiffs. 

  15. Next, there is no reasonable prospect that the Court would grant a declaration to the effect that a legal practitioner does not owe his first or overriding duty to the Court.

  16. In Giannarelli v Wraith[31] Mason CJ said:[32]

    The peculiar feature of counsel's responsibility is that he owes a duty to the court as well as to his client. His duty to his client is subject to his overriding duty to the court. In the performance of that overriding duty there is a strong element of public interest. So, in Swinfen v. Lord Chelmsford Pollock C.B., after speaking of the discharge of counsel's duty as one in which the court and the public, as well as the client, had an interest said:

    “The conduct and control of the cause are necessarily left to counsel ... A counsel is not subject to an action for calling or not calling a particular witness, or for putting or omitting to put a particular question, or for honestly taking a view of the case which may turn out to be quite erroneous. If he were so liable, counsel would perform their duties under the peril of an action by every disappointed and angry client.”

    …

    The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client's case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal.

    It is not that a barrister's duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice.

    (Footnote omitted)

    [31] (1988) 165 CLR 543.

    [32] (1988) 165 CLR 543 at 555 – 556.

  17. The plaintiffs seek a declaration that would abrogate this conception of a legal practitioner’s overriding duty to the Court.  In my view, this is another instance of the kind contemplated by French CJ and Gummow J in Spencer v The Commonwealth[33]where the Court hearing an application for summary judgment could justifiably conclude that proceedings had no reasonable prospect of success, where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court.

    [33] (2010) 241 CLR 118 at 132.

  18. The legal practitioner’s overriding duty to the Court in the system of administration of justice is so fundamental and entrenched in the common law, that the plaintiffs’ case seeking a declaration to the contrary not only has no reasonable prospect of success, but can be characterised as hopeless.

  19. Finally, to the extent the plaintiffs seek declaratory orders, of a general application, in respect of a right to legal representation or a legal practitioner’s duty to the Court, they lack standing to do so.  In Australian Conservation Foundation Inc v The Commonwealth[34] Gibbs J said:[35]

    The rules as to standing are the same whether the plaintiff seeks a declaration or an injunction.  In Boyce v. Paddington Borough Council,[36] Buckley J. stated the effect of the earlier authorities as follows:

    “A plaintiff can sue without joining the Attorney-General in two cases:  first, where the interference with the public right is such as that some private right of his is at the same time interfered with …; and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.”

    The rule thus stated received the approval of the House of Lords in London Passenger Transport Board v. Moscrop.[37] However, in Attorney-General; Ex rel. McWhirter v. Independent Broadcasting Authority,[38] Lord Denning M.R. suggested that an individual member of the public can apply for a declaration or an injunction “if the Attorney-General refuses leave in a proper case, or improperly or unreasonably delays in giving leave, or his machinery works too slowly”.  In Gouriet v Union of Post Office Workers[39] the House of Lords disapproved of this dictum and, after a full consideration of the authorities, rejected the notion that the question of standing is one that lies within the discretion of the court, and reaffirmed that a private individual has standing to seek a declaration or an injunction to enforce a public right to prevent a public wrong only in the cases mentioned in Boyce v. Paddington Borough Council: see particularly at pp. 483-484, 494-495, 501-502, 513-515, 518. The general principle stated in Gouriet v Union of Postal Workers, that a private person, who is in the same situation as any other member of the public, has no standing to claim either an injunction or a declaration to enforce a public right or duty, has been consistently applied in this Court.

    [34] (1980) 146 CLR 493.

    [35] (1980) 146 CLR 493 at 526 – 527.

    [36] [1903] 1 Ch 109, at p. 114.

    [37] [1942] A.C. 332; esp. at pp. 344 – 345.

    [38] [1973] Q.B. 629, at p. 649.

    [39] [1978] A.C. 435.

  20. The conclusion that there is no reasonable prospect of the Court making the declarations sought is sufficient to allow the application for summary judgment. This renders it unnecessary to consider the alternative relief sought by the defendant, namely, summary dismissal of the proceedings. For the sake of completeness, however, I should indicate that had I not been satisfied that a proper basis exists to grant summary judgment pursuant to 6SCR 232, I would not have been prepared to make an order pursuant to 6SCR 193 to dismiss the proceedings summarily on the basis that they are an abuse of process because of the undertaking given by the plaintiffs to the Court in September 1996.

  21. An allegation that a person has breached an undertaking given to the Court is a serious matter. A breach of undertaking is misconduct which can amount to contempt of court.[40]  A person who breaches an undertaking given to the Court is guilty of contempt in the same way as if he or she had breached an order of the Court.[41]  An undertaking is to be construed as if it was a legislative instrument.[42]  The standard of proof is beyond reasonable doubt.[43] 

    [40]   Carter v Roberts [1903] 2 Ch 312; Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1.

    [41]   Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No. 4) (2011) 280 ALR 97 at 99 [8].

    [42]   Toll Holdings Ltd v Australian Competition and Consumer Commission (2009) 256 ALR 631 at 638 [17].

    [43]   CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 at 532.

  22. The undertaking proffered to the Court by the plaintiffs in 1996 was to the effect that thereafter they would not prosecute an action in any shape or form against the Commonwealth or the State of South Australia which reflected the claim made in the statement of claim filed in this Court by the plaintiffs in April 1996. 

  23. Those proceedings sought, inter alia, a declaration against the State of South Australia that it had failed in its duty of care for the plaintiffs to make laws for the administration of justice, and sought damages. 

  24. While that action arose from the same subject matter, namely, the plaintiffs’ grievance about their inability to obtain what they conceive to be justice through the courts in relation to the first plaintiff’s claim for damages for personal injury arising out of the 1968 motor vehicle accident in Western Australia, the nature of the relief sought in this action differs from the relief sought in the 1996 proceedings, and relief is sought against the Attorney-General rather than the State.  While the action is brought by the plaintiffs against the Attorney-General in his representative capacity, it is also brought against him by reason of what the plaintiffs allege to be his personal failure to do certain things which they submit he was bound to do as a matter of the lawful performance of the duties of his office.

  25. While I consider that that claim is legally untenable, I am not satisfied that there has been a breach of the undertaking, such as would lead to the conclusion that the within proceedings are an abuse of process, justifying an order for the summary dismissal of the proceedings.  Had that been the only basis upon which the interlocutory application was brought by the Attorney-General, I would have dismissed it. 

    Conclusion

  26. I make an order granting the defendant summary judgment pursuant to 6SCR 232. I would hear the party as to the costs of this application and the proceedings generally.


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Cases Cited

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Statutory Material Cited

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Martin v Taylor [2000] FCA 1002
Martin v Taylor [2000] FCA 1002
Kleentex (Thailand) Co Ltd v Corporate IM Pty Ltd [2012] SASC 71