Rowley v O'Chee

[1997] QSC 58

IN THE SUPREME COURT

OF QUEENSLAND

No 111 of 1995

Brisbane

Before the Hon. Justice Williams

[Rowley v. O'Chee]

BETWEEN:

MICHAEL HEBBRON ROWLEY
  Plaintiff

AND:

WILLIAM GEORGE O'CHEE
  Defendant

JUDGMENT - WILLIAMS J

Judgment delivered 18/04/1997

CATCHWORDS: PRACTICE - disclosure and inspection of documents - defamation action - documents in possession of defendant who is a senator - claim of parliamentary privilege rejected - Parliamentary Privileges Act 1987 considered.

Counsel:Favell for applicant

J Logan for respondent

Solicitors:Hemming and Hart T/A for Bottoms English for applicant

Hill and Taylor for respondent

Hearing Date:   15 April 1997

IN THE SUPREME COURT

OF QUEENSLAND

No 111 of 1995

Cairns District Registry

[Rowley v. O'Chee]

BETWEEN:

MICHAEL HEBBRON ROWLEY
  Plaintiff

AND:

WILLIAM GEORGE O'CHEE
  Defendant

JUDGMENT - WILLIAMS J

Judgment delivered 18/04/1997

This is an application by the plaintiff for an order that the respondent-defendant produce for inspection the documents set out in Section B of the respondent's affidavit of documents filed 4 June 1996.
           In the action the plaintiff is suing the defendant for damages for defamation.  In the statement of claim it is alleged that on or about 16 June 1995 the respondent made statements in a radio interview which were defamatory of the applicant.  The broad topic of the interview was commercial fishing in protected marlin fishing fields.  The statement of claim goes so far as to allege that the matter complained of was published "with an absence of good faith and in contumelious disregard of the plaintiff's rights."  In consequence compensatory, aggravated, punitive, and exemplary damages are claimed.
           By his defence the defendant "does not admit" either the publication of the words complained of or the allegation that those words were published of an concerning the plaintiff.  There is then a denial of the other material allegations contained in the statement of claim, in particular that the words conveyed a defamatory meaning, that the plaintiff was thereby injured in his personal or business reputation, and that the words in question were published with an absence of good faith and in contumelious disregard of the plaintiff's rights.  It is of some significance for present purposes that the defence does not contend (for example) that the publication was a report of a matter of public interest or that it was fair comment published in good faith for the information of the public or that the publication was made in good faith for the purpose of discussion of some subject of public interest.
           Though it is not alleged in the pleadings there is no dispute that the respondent is a senator of the Parliament of the Commonwealth of Australia.  There is also no doubt that on 8 June 1995 he asked a question in the Senate on the topic of long line fishing off the coast of North Queensland.  Further, on 19 June 1995 the respondent made a speech in the Senate on that same topic.  That is, on either side of the date on which the alleged defamatory material was published the respondent spoke on the same subject matter in the Senate.  In the respondent's affidavit of documents the following assertion is made

"2.I object to producing the documents set forth in the schedule hereto on the following grounds:

(a)...

(b)In respect of the documents set forth in Section B of the schedule hereto, that such documents were created, prepared, brought into existence or came into my possession for the purposes of or incidental to the transacting of the business of the Senate in the Parliament of Australia."

There are then set out in Section B particulars of forty-three documents.  Some are undated, but of those which are it can be said that some precede the date of publication of the alleged defamatory matter and some come later.  The latest documents are those dated September 1995.
           The duty to disclose documents is established by O.35r.4, and the obligation is to disclose to the other party the documents that are "directly relevant to an allegation in issue in the cause".  By specifically referring to the forty-three documents the respondent has clearly admitted that each of them is directly relevant to the allegation that he published matter defamatory of the applicant.
           A consideration of the description of the forty-three documents in the affidavit indicates broadly as follows:

(i)Some are letters addressed to the respondent;

(ii)Some are documents or reports prepared by persons or bodies probably interested in the problem of long line tuna fishing in marlin waters and forwarded to other persons or bodies having a similar interest;

(iii)One at least is a diary note by the respondent of an "attendance on constituent";

(iv)Some are letters exchanged between the respondent and another Member of Parliament;

(v)Some are notes of interviews or telephone conversations made by the respondent.

None of the documents in question have been tabled in either House of Parliament or been submitted to any Committee of either House.  There is no material from the respondent establishing that there is any public interest reason for shielding the contents of any of those documents from production to the applicant.
           The question for my determination is whether in the circumstances all or any of the documents specified in section B are protected from inspection by operation of a principle of parliamentary privilege.  At the outset it must be said that it is no part of the applicant's case that anything said by the respondent in the Senate is relevant to the defamation proceedings.  It was also conceded by counsel for the respondent that as a matter of general principle the respondent's status as a senator did not mean that this court had no jurisdiction to entertain a claim for defamation brought in respect of words uttered outside Parliament.
           It having been conceded by the respondent that the documents are relevant, they must be made available for inspection unless are protected by a valid claim of privilege.  In the circumstances there is an onus on the respondent of establishing that contention.
Counsel for the respondent submitted that each of the forty-three documents was created for or came into the possession of the respondent for, a purpose being incidental to the transacting of the business of the Senate. Both counsel agreed that there was no authority directly establishing that such a purpose created a privilege situation.. Counsel for the respondent argued that the immunities conferred by Article 9 of the Bill of Rights 1688 and the Parliamentary Privileges Act 1987 were broad enough to cover the present circumstances.
           Article 9 provides:

"Freedom of Speech - That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament."

It is clear that a strict, literal reading of that provision would not afford protection to the respondent in the present case. As already noted the defamation action has nothing at all to do with anything said or done in the course of a speech or debate in the senate. Over the three centuries since that principle was enshrined in English law there have been many cases in which that Article has been considered, and there has no doubt been a widening of its scope of operation to meet modern circumstances. Because of concerns in Australia about attempts by some courts to limit the scope of operation of the Article the Parliamentary Privileges Act 1987 was enacted. As is suggested by the Explanatory Note, and the President's Second Reading speech thereon, the legislative intent was to ensure that Article 9 was given the broad interpretation which in general it had been given by the courts over the years. The relevant parts of s.16 thereof are the following:

"(1)For the avoidance of doubt, it is hereby declared and enacted that the provisions of Article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2)For the purposes of the provisions of Article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, "proceedings in Parliament" mean all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

...

(b)The presentation or submission of a document to a House or committee;

(c)The preparation of a document for purposes of or incidental to the transacting of any such business; and

(d)The formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a Committee and the documents so formulated, made or published.

...

(4)A court or tribunal shall not:

(a)Require to be produced, or admitting to evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or

..."

There is no suggestion here that any of the forty-three documents in question were prepared for the purpose of submission to the Senate or a committee thereof and so submitted; therefore subsection (4) is of no relevance for present purposes.
           The argument advanced by counsel for the respondent was that all, or at least some, of the documents in question were prepared incidentally to the transacting of the business of the senate.  It was said that subsection (2) was sufficient to establish the protection claimed by the respondent.  However there is nothing to support or establish that any of the documents was prepared for a purpose incidental to the transacting of any business of the Senate.
           Erskine May's Treatise on The Law Privileges, Proceedings and Usage of Parliament has long been regarded as close to a definitive text on the topics.  In the Twenty-first Edition (1989) the learned authors say at 133:

"Although both houses extend their protection to witnesses and others who solicit business in Parliament, no such protection is afforded to informants, including constituents of Members of the House of Commons who voluntarily and in their personal capacity provide information to Members, the question whether such information is subsequently used in proceedings in Parliament being immaterial.  But while it appears unlikely that any question of an actual or constructive breach of parliamentary privilege could arise in these cases, the special position of a person providing information to a member for the exercise of his parliamentary duties has been regarded by the courts as enjoying qualified privilege at law."

One of the leading texts on the topic in Australia is the work by Professor Enid Campbell, Parliamentary Privilege in Australia.  At 34 that learned author says:

"Letters and other communications addressed to individual members of parliament fall into an entirely different category.  They are not the subject of parliamentary privilege and there appears to be little disposition on the part of parliament to claim privilege for them.  The Committee of Privileges of the House of Commons, to cite but one example, has ruled that a person who volunteers information of public interest to a member in a personal capacity is not entitled to parliamentary privilege, even though the information is later used by the member in parliament."

The view in May is also expressed by Browning, House of Representatives Practice, 2nd ed, at 690.  Further, in Odgers' Australian Senate Practice, 7th ed, at 40, the opinion is stated that the Parliamentary Privileges Act 1987 did not extend the immunity of freedom of speech to the correspondence of members.
           The topic is also considered in the English work Parliament Functions:  Practice and Procedures by Griffith and Ryle.  At 88-9 those learned authors point out that there are some "grey areas" when it comes to determining what is encompassed by the expression "parliamentary business".  They suggest, reasonably in my view, that communications between members amounting to consultation about a question or speech should be regarded as "parliamentary business".  But even on their approach it would only be communications between members having a direct connection with, for example, a speech or question that would be privileged; not all communications between members would be privileged.
           One of the authorities referred to in those texts is Rivlin v. Bilainkin (1953) 1 Qd. B. 485.  In that case the plaintiff in a libel action obtained an injunction restraining the defendant from repeating the alleged defamatory material.  Subsequently the defendant took to the House of Commons five letters in which that matter was repeated.  One letter was delivered by hand to a messenger for delivery to a Member of Parliament, and the other four were left at the Post Office in the House for collection by the members to whom they were addressed.  McNair J held that since the communications were in no way connected with any proceedings in Parliament, they were not protected by parliamentary privilege so as to oust the jurisdiction of the court to deal with the defendant for contempt.  It is important to recognise that in that case there was no connection between the letters and any proceedings in parliament.  The case is not authority for the position where there was some connection between the contents of the letter and proceedings in parliament.
           The passage quoted from May was cited with approval by Allen J in delivering his judgment in  AJ Grassby (1991) 55 A. Crim. R. 419 at 430-1. That case was concerned with criminal defamation proceedings against Grassby related to the publication by him of a 3½ page document to a member of the New South Wales Legislative Assembly. The contention was that Grassby requested when delivering the document that the member read it in parliament and that in consequence absolute privilege attached to it. The learned judge, after considering Article 9 and the approach taken by May, held that no such privilege attached. He also said at 428:

"Thus it is appropriate that a parliamentarian has absolute immunity in respect of what he does in the exercise of his duties in the course of proceedings in the House.  There is no warrant to give such an absolute immunity to any person who seeks to persuade him to say something in the House.  To the extent that immunity to such person is appropriate and recognised by the law it is one of qualified privilege - that is privilege defeasible by malice."

The situation was clearly different from that where the subject documents had been tabled in Parliament:  see Sankey v. Whitlam (1978) 142 CLR 1 at 35.
           In my view the decision in Grassby indicates a limitation on the breadth of parliamentary privilege which is not affected by the provisions of the Parliamentary Privileges Act 1987.
           It was recognised by the Court of Criminal Appeal in The King v. Rule (1937) 2 K. B. 375 that a written communication addressed to a member of parliament by one of his constituents asking for assistance with respect to a complaint against certain people was made to a person with sufficient interest in the subject matter of the complaint to render the occasion of publication a privileged occasion and that in the absence of malice on the part of the maker of the communication a conviction for criminal libel could not stand.  Such authorities indicate the general approach taken by the courts to communications between constituents and members of parliament, but the issue there is different from that which is currently raised.
           The respondent relies heavily, if not principally, upon an article by the present Clerk of the Senate, Harry Evans:  Protection of Persons who Provide Information to Members.  The article is deserving of careful consideration but the weight which might otherwise be attached to it is lessened because of the fact that the author is therein arguing a particular case rather than stating the present accepted position.  The author concedes that where there is no connection between a document and proceedings in parliament, the issue of parliamentary privilege does not arise.  The question which the author does not specifically address is the extent to which a document created for some other purpose (say a letter passing between two citizens interested in the subject matter) becomes connected with proceedings in parliament merely because it comes into the hands of a parliamentarian who is also interested in that subject matter.  Clearly no privilege would attach to the document or a copy thereof in the hands of either of the two citizens who were a party to the initial communication.  If the Member of Parliament tabled in a House the copy of the document which came into his possession, that copy would be protected from production by order of a court.  But the privilege attaching to that document would not attach to copies of the document still held by the citizens.
Is the situation different where the Member obtains the copy because he is interested in the subject matter addressed therein, and makes a speech on that topic in the Senate? Does that mean that the document becomes privileged? None of the texts or authorities to which I have referred suggest that in those circumstances the document is privileged from production in the hands of the Member. Evans appears to argue that privilege should extend to that situation but the reasons which he gives do not support the breadth of the proposition. His concern appears to be that production of a such a document pursuant to a court order may have the effect or tendency of hindering the senator in the free performance of his duties. If that was established then it may be that some privilege would attach. But interestingly, it would appear that the situation would not be covered by s.16(2) of the Parliamentary Privileges Act.
           The Privy Council in Prebble v. Television New Zealand Ltd (1995) 1 A.C. 321 emphasised the importance of members of parliament having "access to all relevant information". Their Lordships recognised that the "need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information" was the most important consideration (336) but there is nothing in that case which, in my view, is of practical significance for present purposes. I do not see how making the forty-three documents in question here available for inspection is likely to interfere with the respondent's right to access to relevant information for the purpose of carrying out his duties as a senator.
           There was some suggestion in the course of argument, and in other correspondence emanating from the respondent, to the effect that confidentiality of sources of information should be protected.  But that can have no operation here because the identity of the persons who provided information to the respondent is already known; their names are stated in describing the documents in question.
           My attention was also drawn by counsel for the respondent to some United States material on the topic.  The decisions of the United States Circuit Court of Appeals for the District of Colombia Circuit in Brown and Williamson Tobacco Corp v. Williams (unreported 94-5171, 15 August 1995) and Minpeco SA v. Conticommodity Services Inc 844 F 2d 856 (DC Cir 1988) deal with situations where congressional committees had received the subject documents and attempts were made to obtain an order from the courts that such documents be produced by congressmen serving on the committees. That situation is clearly different from that which exists here, and there is nothing in the reasoning which, in my view, is particularly helpful for present purposes. Reference was also made to the American text, Tribe American Constitutional Law (2nd ed) at paragraph 5-18; again nothing therein, in my view, deals directly with the point in issue here.

The material presently before the court does not establish that any of the forty-three documents are covered by a provision of s.16 of the Parliamentary Privileges Act. Nor does the material establish that there is any public interest ground for refusing to make an inspection order. Further, the material does not establish that ordering inspection of the documents in question would constitute an interference with the performance by the respondent of his duties as a senator.
           As already noted it is conceded that the documents are relevant to the defamation proceedings.  In all of the circumstances there is no case made out for the respondent for his claim of privilege.
           There will therefore be orders that the respondent defendant within fourteen days produce for the inspection by the solicitors for the plaintiff each document set out in section B of the affidavit of the respondent sworn 30 May 1996.  Further order that the respondent defendant pay the applicant plaintiff's costs of and incidental to the application to be taxed.