Rowley v O'Chee

[1998] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B66 of 1997

B e t w e e n -

MICHAEL HEBBRON ROWLEY

Applicant

and

WILLIAM GEORGE O’CHEE

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 20 NOVEMBER 1998, AT 3.57 PM

Copyright in the High Court of Australia

MR P.J. FAVELL:   If your Honours please, I appear on behalf of the applicant.  (instructed by Messrs Bottoms English)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.A. LOGAN, on behalf of the respondent.  (instructed by Messrs Shand Taylor)

MR FAVELL:   The applicant contends that the important questions which are raised by this application for special leave are set out on page 57 of the application book. A brief statement of the argument is set out on page 61. The questions posed as special leave questions are encompassed by two general areas, namely, assuming section 16 of the Parliamentary Privileges Act 1987 is valid, then what is the extent of its terms of operation properly construed, and whether section 16 of the Parliamentary Privileges Act 1987 is constitutionally valid in full or in part.

The application arises because the Court of Appeal concluded that an order for disclosure, in circumstances where disclosure was ‑ ‑ ‑

GUMMOW J:   Just a minute.  We have to get down to specifics here.  What order would you seek?  The order you seek at page 56 does not seem to take anyone anywhere.

MR FAVELL:   No.  Your Honour, the order ‑ ‑ ‑

GUMMOW J:   This arises in an interlocutory proceeding, and the question arises of discovery, would you not seek relief here in the nature and to the effect of what the President would have given you in the Court of Appeal which appears ‑ ‑ ‑

MR FAVELL:   Indeed, your Honour.

GUMMOW J:    ‑ ‑ ‑which appears in his dissenting judgment, I think it is, at page 26?  His view was it had to go back with a further affidavit to be sworn and filed by Mr Jackson’s client.  Do you agree that would be the outcome?

MR FAVELL:   Your Honour, that would be the outcome.

GUMMOW J:   All right.

MR FAVELL:   Except – I am sorry, I was too hasty in saying that - your Honour, the submission the applicant seeks to make is that, leaving aside the questions of whether or not the claim was properly made out in the first instance in the Supreme Court, there are, nevertheless, questions as to the ambit of section 16 of the Parliamentary Privileges Act which apply in general.  The majority of the Court of Appeal found that production should not be ordered, and the majority judgment found that the primary argument on behalf of Senator O’Chee really had some ‑ ‑ ‑

GUMMOW J:   Just a minute.  Do you say production should be ordered full stop?

MR FAVELL:   I say production should be ordered full stop ‑ ‑ ‑

KIRBY J:   Of all the documents?

MR FAVELL:   Of all the documents.

KIRBY J:   Including those which are related to the Senator’s activity within the chamber?  That would seem to run against about 400 years of parliamentary privilege.

MR FAVELL:   Your Honour, in the lower court the ‑ ‑ ‑

GUMMOW J:   What I am trying to get at it, when you are answering Mr Justice Kirby, it is my concern too, you want more than the President would have given you, do you not?  Is that right?

MR FAVELL:   No, your Honour.  Can I put it this way:  the applicant is concerned that if ‑ ‑ ‑

GUMMOW J:   The President would not have given you that relief.

MR FAVELL:   Your Honour, the concern that the applicant has is that if the matter was sent back to the judge at first instance, then that judge would be bound by the comments of the majority in the Court of Appeal.  That being so, all of the matters which were sought for production would not be ordered.  That is, that if Senator O’Chee, in his affidavit when the matter returns to the Supreme Court, sitting at first instance, makes out the grounds for his claim, then that is the end of it because if ‑ ‑ ‑

KIRBY J:   We understand that you do not like the reasoning of the majority, and we understand that you want to have that set aside, but what we have to get clear in our mind is exactly what relief you would be asking this Court to give in the light of the complaints you make about the decision of the majority in the Court of Appeal. 

MR FAVELL:   Well, I would ask this Court to set aside the decision of the Court of Appeal and remit the matter back to the Supreme Court in the first instance. 

GUMMOW J:   To do what?

MR FAVELL:   Well, to determine it according to the restrictive ‑ ‑ ‑

GUMMOW J:   To determine what?

MR FAVELL:   To determine whether or not there should be production according to the more restrictive interpretation of section 16.

KIRBY J:   In essence, you want to argue the more restricted interpretation, and you would be asking that the order be that – would you be asking that the order of the Court of Appeal be set aside, because they were sending it back to the trial judge?  It is the reasons you want to attack, not the order.

MR FAVELL:   Indeed, it is the reasons, your Honour.

GUMMOW J:   Yes, that is what is worrying me, yes.

KIRBY J:   Because we normally strike at orders, not at reasons.  If the order is right, I suppose you can say that if the matter goes back, then the primary judge would be duty bound to conform to the broader view which was adopted by the majority.

MR FAVELL:   The broader view that was adopted.

KIRBY J:   And that, therefore, the trial would proceed on a false footing.

MR FAVELL:   Indeed.

KIRBY J:   So that until that view is dealt with, if it be arguably faulty, the matter will go ahead on an incorrect basis, and it is not the sort of matter that could be left to the end of the trial.

MR FAVELL:   That is right, your Honour, that is the submission we make.  It would be a waste of time and money for everyone if that occurred ‑ ‑ ‑

GUMMOW J:   Yes, we understand that.

MR FAVELL:   The second submission that is made is that the question that is raised in respect of section 16, whether or not it is constitutionally

valid in full or in part, it is correct that it was not raised by way of oral submissions in the Court of Appeal, but that was in circumstances where the applicant had the benefit ‑ ‑ ‑

GUMMOW J:   Why is it said to be invalid?

MR FAVELL:   For three reasons, and they were the reasons which were canvassed in the leave for appeal in Lawrence v Katter for which special leave was given, that is a conflict with the implied freedom of speech, an interference with the functioning of the courts, and a question of whether it was reasonably proportional to legitimate legislative process.

GUMMOW J:   I see.  It is not said to be beyond the powers in, is it, section 49 of the Constitution?

MR FAVELL:   Section 49 gives the power to the legislature to declare the privileges of Parliament.  It is said to be ‑ ‑ ‑

GUMMOW J:   Yes.

KIRBY J:   But I suppose your argument is that that has to be done within the context of the entire Constitution, including the other purposes that the Constitution secures.

MR FAVELL:   Indeed, that is so, your Honour.  And that was raised, as I said ‑ ‑ ‑

KIRBY J:   The Katter Case was settled, was it?  I think I read that the Katter Case was settled, so we are not going to get that matter.

MR FAVELL:   It was settled.  Yes, it was.  My learned friend, Mr Jackson, was on ‑ ‑ ‑

GUMMOW J:   Leave had been granted, had it not?

MR FAVELL:   It had.

GUMMOW J:   Yes.  We would like to hear from Mr Jackson at this stage, Mr Favell.

MR FAVELL:   Thank you, your Honours.

MR JACKSON:   Your Honours, the first point we would make is that whatever might be the importance of or ultimate merits on the questions of the ambit of parliamentary privilege, this case is, at least at this point, a rather unsatisfactory vehicle for the resolution of them.

KIRBY J:   It may be, but the constitutional point could be brought up here directly.

MR JACKSON:   Well, it could be, your Honour, but could I just say in relation to that - perhaps, I ought to say two things about it.  The first is – and if I could stay with the first point I was seeking to make – that the proceedings in the Court of Appeal were such that it was the unsatisfactory state of the material that led to the comments made by the President and by Justice Moynihan, to which I will take your Honours in a moment, that led to the form of order that was made, because what had happened had been that the way in which the claim for parliamentary privilege was made by our side of it was, in effect, to pick up the words of the enactment, and to put those in the affidavit. 

Now that was not, in effect, challenged when the matter was before the primary judge.  But it is for that reason that although the court in the Court of Appeal expressed views about the ambit of parliamentary privilege, the order that was, in fact, made was that the matter go back to a primary judge so that an affidavit setting out the underlying facts could be filed, and the issue then decided by the primary judge.  Your Honours will see that in the reasons of the President at page 18, the first paragraph, and in particular the third line.  He said he did:

not agree that Mr Rowley’s summons for discovery should be dismissed.  In my opinion, the summons should be adjourned to the Chamber Judge to enable Senator O’Chee to file a further affidavit concerning the circumstances on which his claim to privilege is based and/or for the Chamber Judge to inspect the documents.

And then ‑ ‑ ‑

GUMMOW J:   But if the majority decision stands, what would happen procedurally?

MR JACKSON:   Well, what will happen, your Honours, in accordance with the order at page 51, will be that the order that was made by the primary judge that there be disclosure simpliciter, as it were, is set aside.  The matter then goes back before the primary judge, we have leave to put in further material and that judge will then decide the matter based on that, and no doubt, your Honours, the judge will decide in relation to particular documents on the basis of the reasons for decision of the Court of Appeal.

GUMMOW J:   And that will give it greater specificity if it goes anywhere else.

MR JACKSON:   Precisely, your Honour.

GUMMOW J:   Or some specificity, it does not have any.

MR JACKSON:   And, your Honours, the terms of section 16 of the Parliamentary Privileges Act, when read with both the actual words of the article of the Bill of Rights, together with the gloss that has been given to that over the years, are ones where it would be very difficult, in our submission, for the Court ever to come to a view that section 16 was in toto ultra vires section 49. So that any finding would be likely to be one that was based in relation to its application to particular circumstances.

GUMMOW J:   It had to be read down probably, at best.

MR JACKSON:   Oh yes, your Honour, yes.

GUMMOW J:   And one would have to know by what criterion, and then one would not have any evidentiary criterion to assist you.

MR JACKSON:   Well, your Honour, that is why we seek to say if one looks at what was said by the President at that page, and could I just refer your Honours also to page 19, where he said, at the top of page:

In my opinion, it is unsatisfactory for the court to attempt to resolve the complex issues which are potentially involved in the artificial and uncertain situation which has been produced by the parties’ conduct of this interlocutory dispute.

Now, your Honours, if one goes also to Justice Moynihan’s reasons for judgment, at page 50, your Honours will see in the first paragraph of his reasons that he expressed the same view.  And then ‑ ‑ ‑

KIRBY J:   You say that what ought to have happened here, that the applicant, instead of challenging an order with which he would have no proper complaint, was to have that order discharged by a judge at first instance and then, if with the greater specificity of the orders or order made on the particular documents he was still discontented, he could bring his complaints at that stage.

MR JACKSON:   Yes, your Honour, and that does not take one to the stage of a trial.  Now, I do not want to say that we might not object to there being opposed special leave again, of course, but it depends how it would go.  But could I just say, your Honour ‑ ‑ ‑

KIRBY J:   I have never known you to agree to special leave, Mr Jackson.  It has possibly happened.  But what is said in practical terms is that if it goes back with the reasons of the majority, and in particular the reasons of Justice McPherson, that the primary judge will approach the task of assessing particular claims in respect of particular documents in a way that is unduly generous to parliamentary privilege which, if the section of the Act were struck down and/or if a narrower view were taken, would result in different rulings, and that this is the occasion to, as it were, sort out the reasoning.

MR JACKSON:   Your Honour, could I say in relation to that that a very good warning in relation to the difficulties that have already been found in dealing with the case on the broad bases so far is found in the two passages to which I have already referred in two of the reasons in the Court of Appeal.  But also, Justice McPherson, at page 33, saw himself that potential difficulty – although he did not agree with it – and I am referring your Honours to between line 780 and line 785, where he said:

In taking an objection like that, it may not be enough for the deponent, without more, simply to repeat language from the statute.

He went on to say in the next line, if it would be thought to be at fault:

it would no doubt be appropriate, if need be, to afford the defendant an opportunity of filing another affidavit that is more specific in its terms.

And your Honours will see then the remainder of that paragraph, he said the affidavit was in really non-specific terms.

KIRBY J:   But what are we to do where we have an application which is based on a legal, ie constitutional, ground of challenging a matter very important to the Parliament and its privileges which could be brought up tomorrow, under the Constitution, to the Court for a declaration ‑ ‑ ‑

MR JACKSON:   And remitted, your Honour, too.

KIRBY J:    ‑ ‑ ‑and which is placed before us in this case where it cannot really be said that it cannot be raised, because it is a legal question.  It is not a matter where procedural unfairness has been done to you by it not having been litigated below, and where it is undoubtedly, if it is a good point, is one for which the Court would virtually have to provide special leave, even though the factual matters are not yet sorted out.

MR JACKSON:   Well, your Honour, as to the first of those things, your Honour, there is no doubt one could institute proceedings in the Court for a declaration as to the invalidity of the relevant provision.  However, could I say two things about that.  The first is that it would be very surprising if the Court dealt with a statement of claim which simply said, “This provision is invalid because I have been asked to produce documents” ‑ ‑ ‑

KIRBY J:   But that is where this case gives the plaintiff the standing.  He says, “This is something for which I certainly have standing to prosecute this objection on constitutional grounds.”

MR JACKSON:   Your Honour, I am not contesting the question of standing.  What I am seeking to say is that if one went by the alternative procedure of starting an action, an action in this Court –  your Honour there is a reservation about that, with respect – but leaving that aside, the Court would be perfectly entitled to say, “What one needs to see is what is the objection being taken to the production of these documents so that one has some focus in relation to the constitutional issue, because ‑ ‑ ‑”

GUMMOW J:   There might be a refusal of the declarations.

MR JACKSON:   Well, there might be, your Honour, a remittal to another court in order to have ‑ ‑ ‑

KIRBY J:   I think a matter touching the constitutionality of an Act concerned with the privileges of the Parliament is not a matter that the Court would remit, would it?  I would have thought the Court would have to deal, out of respect for the Parliament, with such a matter itself.

MR JACKSON:   Your Honour, I think at one point I was in a case that another Mr Jackson was in this morning, which was a case that was, as I recall it, remitted by Justice Deane in, with respect, a fairly peremptory way, even though it involved a constitutional issue.

GUMMOW J:   Newcrest would be an another example, too.

KIRBY J:   I am talking about a constitutional issue which touches the privileges of the Parliament, as distinct from an enactment or a matter of general application.  I am talking about the privileges of the Parliament.  I would have thought that was a matter which the Court would feel duty bound itself to deal with.  I only express a preliminary view of my own.

MR JACKSON:   Well, could I say, your Honour, in relation to it, that the area is one of importance, broadly speaking in the abstract, of course.  However, it does lie at the interface between the legislature and the judiciary, and it would be unwise, with respect, for the Court to be entertaining a question of validity of the provisions in circumstances where it was not absolutely necessary to do it, or where it was premature for the Court to do it, I mean premature in a practical sense.  And, your Honours, that is really a very significant matter to indicate why, at this point, at least there should not be a grant of special leave in this matter.  The case should take its course, where it will be dealt with by the judge, and then if an application is later brought, the matter goes again to the Court of Appeal, well it can be dealt with in circumstances where there is a concrete issue calling for determination by the Court. 

Your Honours, the other submissions we would seek to make would simply be to say that the decision of the Court of Appeal is not sufficiently attended by doubt in relation to the reasoning.  We have set that out in our written submissions and I do not wish to advance on this.

GUMMOW J:   Yes, we have seen that.  Yes, Mr Favell, do you wish to reply?

MR FAVELL:   Just to make three points, if your Honours please.  If Senator O’Chee were to make out the procedural matters that my learned friend has spoken about, the Court, at first instance, would be constrained, in my submission, not to impeach or question the proceeding in Parliament, and that is really what the majority has found.  So it would be simply – sorry ‑ ‑ ‑

KIRBY J:   Yes, but normally we would not provide special leave to challenge reasoning.  We would provide it to challenge an order, and the order is not one you oppose.  The order was common, and therefore, would we not, for the purpose of considering the issues which you raise – which potentially may at one stage require special leave or permit it – would we not be in a much better position to deal with that where we have particular documents that have been objected to for production and which have been ruled on in the light of an understanding of the requirements of the law?  Then we have concrete decisions.

At the moment, it is just left up on a common order that it go back to be determined at first instance, and we do not have anything really concrete to bite on, that is the problem.

MR FAVELL:   Your Honour, I have made my submissions about that, except that the nature of the documents is in some way set out in the annexure to Justice Fitzgerald’s appendix at page 27 ‑ ‑ ‑

KIRBY J:   We have seen that, and we know it is in some way set out, but the common order was that it go back for rulings, and until those rulings address the particular documents with an understanding of the entitlement or non-entitlement to privilege, it is really left at a very vague level where you are not even attacking the order.  I mean, I have never heard of a special leave grant being made where the order, which is the basis of our jurisdiction, is really not attacked.  And it is not attacked because it has not yet come to concrete formalisation in the ‑ ‑ ‑

GUMMOW J:   Yes, the Americans would say it is unripe to determine these great constitutional questions.

MR FAVELL:   Yes, it would involve, in my submission, simply Senator O’Chee making out his procedural matters and there it would stop, because there would be no further questioning of what he says about that because that would itself be said to go behind what section 16 prohibits, and then it would be back to the Court of Appeal, and then back to your Honours, if indeed the parties were so minded, and it would be through this exercise ‑ ‑ ‑

GUMMOW J:   We are not seeking to encourage any course, but it is always open to seek direct removal here once there was a fully matured controversy in decision at first level in this sort of case.

KIRBY J:   And in particular if you still have a constitutional objection ‑ ‑ ‑

GUMMOW J:   Exactly.

KIRBY J:    ‑ ‑ ‑to the provisions of the Act, because at least theoretically, and the probably not theoretically, you would be entitled to come directly here, anyway, in the original jurisdiction of the Court.  And that fact itself is a matter which is taken into account in deciding whether to provide special leave.

MR FAVELL:   Can I turn to the second matter raised, then, your Honour. That is the question of whether section 16 or part of it is constitutionally valid. In my submission, that is a proper matter as my learned friend has conceded, an important matter to be determined. Any determination of factual issues before a primary judge deciding whether or not there should be production of documents which are admitted to be relevant to the defamation proceedings would not take ‑ ‑ ‑

KIRBY J:   But might not the Court, if you were to jump in with an application then, knowing of the order of the Court of Appeal in this matter, merely postpone the determination of that issue until after the rulings had been made at first instance, pursuant to the order of the Court of Appeal.  That at least is a very real possibility that that is the order this Court would make.  It would not refuse you relief, it would simply stand it over until the matters have been disposed of at first instance, as the Court of Appeal’s order requires.

MR FAVELL:   Well, if your Honours were minded to do that, then there is a question of costs for my client, of course.  And that would be, in my submission, a procedure which would add little to your Honour’s consideration and simply add to the costs of my client pursuing his remedies.  I doubt if I could add ‑ ‑ ‑

KIRBY J:   Well, I have some sympathy for that but then Senator O’Chee has incurred costs, and he says he has incurred them unnecessarily because you were under order to return to a primary judge.  Had you done so, the balance of the specific orders in respect of particular documents may have contented you, and then you would not be troubling us, and then you would not have required him to incur the expenses of coming along here.

MR FAVELL:   Your Honour, this does not really relate to the matters before your Honour, but of course we did not get costs of going to the Court of Appeal when it was Senator O’Chee’s onus to make out his privilege, and that is what they found he has not done.  I doubt if I can add anything else, unless there is something your Honours wish me to deal with.

GUMMOW J:   Thank you.

The issues which the applicant seeks to raise in this Court may well be of general public importance.  However, the application does not challenge the actual order made by the Queensland Court of Appeal.  This order is apt to produce a result at first instance which will show specific rulings upon crystallised issues.  As this litigation now stands the present application does not provide a suitable vehicle for the determination by this Court of the issues of general public importance to which reference is made above.  Accordingly, special leave is refused.

Do you seek costs, Mr Jackson?

MR JACKSON:   Yes, I do, your Honour.

GUMMOW J:   Do you oppose that?

MR FAVELL:   No, your Honour.

GUMMOW J:   Special leave is refused with costs.

AT 4.25 PM THE MATTER WAS CONCLUDED