Stanbridge v the Premier of Queensland
[1995] QSC 201
•25 August 1995
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane APN. No. 466 of 1995
Before the Hon. Justice Mackenzie
[Stanbridge v. The Premier of Queensland]
BETWEEN:
DENNIS STANBRIDGE
Applicant
AND:
WAYNE GOSS, PREMIER OF QUEENSLAND
Respondent
JUDGMENT - MACKENZIE J.
Judgment delivered 25/08/1995
CATCHWORDS: JUDICIAL REVIEW - Justiciability - whether statement made in Parliament can be subject of judicial review - standing - whether applicant is a "person aggrieved".
Counsel:Applicant in person
P. Keane Q.C. S.G. and G. Cooper for respondent
Solicitors:K.M. O'Shea Crown Solicitor for respondent
Hearing date: 17 August 1995
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane APN. No. 466 of 1995
Before the Hon. Justice Mackenzie
[Stanbridge v. The Premier of Queensland]
BETWEEN:
DENNIS STANBRIDGE
Applicant
AND:
WAYNE GOSS, PREMIER OF QUEENSLAND
Respondent
JUDGMENT - MACKENZIE J.
Judgment Delivered 25 August 1995
An application for a statutory order of review was filed on 7 July 1995. The basis of the application is stated in the following way:-
"Application to review the decision of the respondent in Parliament on 25 May 1995 that he would not initiate an investigation into the abortion practices of Dr Grundmann. The decision was made in response to a question put to the Premier by the Leader of the Opposition, the Hon. Robert Borbidge after he had laid the findings of Supreme Court Judge Justice Fryberg before the Premier."
The application then states that the applicant is aggrieved by the decision for a number of reasons which turn upon the proposition that as a citizen of Australia, a resident of Queensland and a committed Bible believing Christian he is concerned over the moral and legal implications of the statement in Parliament. On 28 July 1995 the Crown Solicitor filed a notice of motion on behalf of the respondent seeking dismissal of the application on one or more of the grounds in s.48(1)(b)(c) or (d) of the Judicial Review Act 1991. On 14 August 1995, the applicant filed a notice of motion seeking an order that the notice of motion seeking dismissal of his notice of motion be itself dismissed. A number of grounds are particularised in it, alleging that the notice of motion of 28 July 1995 is improper in various respects, and deserving of sanctions.
In connection with the application for review, the Solicitor General submitted that the first issue was whether an application in respect of a statement made in Parliament by the respondent is justiciable. In reliance on article 9 of the Bill of Rights 1688, s.40A of the Constitution Act 1867, s.5 of the Imperial Acts Application Act 1984 and s.3 of the Parliamentary Papers Act 1992 he argued that what is said in the course of proceedings in Parliament cannot found a claim for relief from a Court. He submitted that there was nothing in the Judicial Review Act abrogating Parliamentary privilege. He submitted that the notice of motion directly referred to what was said in Parliament by the respondent. Therefore the applicant was seeking to obtain the statutory order of review by direct reference to and as a direct consequence of what the respondent said in Parliament on 25 May 1995. It was submitted that what was said in Parliament was within the expression "proceedings in Parliament" in article 9 of the Bill of Rights 1688 and that the matter was not justiciable.
In the Royal Commission into certain Crown Leaseholds 1956 StR Qd. 225, 229 Townley J. said:-"No proceedings either civil or criminal may be taken against a member of Parliament for anything said or done by him in Parliament."
In the recent Court of Appeal decision of Criminal Justice Commission v. Nationwide News Pty Ltd (1994) 74 A. Crim. R. 569, 584 Davies J.A. said:-
"The purpose of article 9 was in my view to ensure that what was said and done in the performance of the functions of Parliament .... was free of sanction by a Court. Otherwise the business of Parliament could not be freely conducted."
In Pepper (Inspector of Taxes) v. Hart (1993) AC 593, 638 Lord Browne-Wilkinson said:-
"... the plain meaning of article 9 ... was to ensure that members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able ... to discuss what they ... chose to have discussed."
Earlier it had been said that article 9 was a provision of the highest constitutional importance which ensured the ability of democratically elected members of Parliament to discuss what they wished (freedom of debate) and to say what they wished (freedom of speech). In Halden & Lawrence v. Marks & Ors (unreported) 2 August 1995, the Full Court of the Supreme Court of Western Australia identified a class of cases where a question of Parliamentary privilege is raised before a Court, as for example where a party seeks to rely on something said or done in Parliament. The judgment of the Court says the following:-
"In the exercise of its general jurisdiction and in the regulation of its own proceedings, a Court will decide whether the relevant action will breach Parliamentary privilege and will refuse to allow the particular matter to be ventilated or the particular evidence to be tendered if the Court concludes that to do so would be a breach of privilege. In regulating its conduct in this way, the Court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech debate or proceedings in Parliament - R. v. Jackson (1987) 8 NSWLR 116; Prebble v. Television New Zealand Ltd (1995) 1 AC 321; ABC v. Chatterton (1986) 46 SASR 1; Grassby (1991) 55 A. Crim. R. 419; NSW Branch of the Australian Medical Assoc v. Minister for Health (1992) 26 NSWLR 114."
The application for statutory review specifically seeks "to review the decision of the respondent in Parliament on 25 May 1995." The constitutional principles which have been stated in the numerous cases referred to demonstrate overwhelmingly that a statement in Parliament cannot be the subject of judicial review. Parliament has not indicated in any way in the Judicial Review Act that it intended that the principle enshrined for over 300 years in the Bill of Rights should be departed from. Accordingly the application must be dismissed on the basis that there is no reasonable basis for the application. (s.48(1)(b) Judicial Review Act)
The foregoing discussion has been based on the assumption that there was a "decision" within the meaning of the Act. That proposition is disputed in all probability correctly, by the Solicitor General's submissions but in view of the outcome already foreshadowed it is unnecessary to explore that question further. It is sufficient to say that even if there were a "decision", the express words of the application quoted at the commencement of this judgment refer to a statement in Parliament, which is not justiciable. The Solicitor General also submitted that the applicant had no standing to bring such an application. He relied on the decision of the High Court in Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 CLR 493 where Gibbs J. said the following:-"... an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi."
In Onus v. Alcoa of Australia Ltd (1981) 149 CLR 27 Gibbs CJ. said that a plaintiff has no standing to bring an action to prevent a violation of a public right if he has no interest in the subject matter beyond that of any other member of the public. The Solicitor General also relied on Right to Life Association (NSW) Inc v. Secretary, Department of Human Services & Health 128 ALR 238 where the Full Court of the Federal Court held that the Right to Life Association (NSW) had not demonstrated that it was a "person aggrieved" with standing to challenge a decision not to stop clinical trials of an abortifacient drug. Applying the principles stated by Gibbs CJ. the applicant has not demonstrated that he has standing as a "person aggrieved" or is a person whose "interests are or would be adversely affected in or by the matter to which the application relates." (see ss. 7 and 44 of the Judicial Review Act 1991) The application also fails on that ground.
The Solicitor General asked for costs in the event that he was successful. The applicant submitted that he should not have to pay costs because the respondent was represented by the Crown Solicitor who is a salaried officer and for reasons related to Magna Carta. In Irving v. Gagliardi (1895) 6 QLJR 200 Griffith CJ. applied the principle, which he said was then almost 45 years old, that costs ought to be taxed on the ordinary principle without regard to the fact that the Crown Solicitor was a salaried officer. Another Full Court decision is Nolan v. George (1959) Qd.R. 315. Both of these decisions are binding on a single judge of this Court and plainly establish the proposition that a litigant for whom the Crown Solicitor appears is entitled to have an award of costs on the same basis as in litigation between private citizens. See also Inglis v. Moore & Ors (1979) 25 A.L.R. 453 where St John and Brennan JJ. said:-"It has long been the rule that a successful party who is represented by the Crown Solicitor in litigation in which the Crown has an interest is not disentitled to costs from an unsuccessful party merely because he is not under a personal liability to the Crown Solicitor for costs."
(see also R.v. Archbishop of Canterbury (1903) 1 KB 289).
So far as Magna Carta is concerned, by virtue of s.5 of the Imperial Acts Application Act 1984 Magna Carta has "the same force and effect if any as it had in Queensland immediately prior to the commencement" of the Act. Magna Carta can be displaced by local statutes (Chia Gee v. Martin (1906) 3 CLR 649; R. v. Walker (1989) 2 Qd.R. 79). Section 58 of the Supreme Court Act 1867 gives a general power to the Supreme Court to award costs. If Magna Carta ever had the effect contended for by the applicant, it has been displaced in that regard. The findings made above lead to the following orders:-
The respondent's application to strike out the applicant's application is allowed. The applicant Dennis Stanbridge is ordered to pay the respondent's costs of and incidental to the application to be taxed.
The applicant Dennis Stanbridge's application for a statutory order of review is dismissed pursuant to s.48(1)(b). The applicant Dennis Stanbridge is ordered to pay the respondent's costs of and incidental to the application.
The application to strike out the respondent's application under s.48 is dismissed. The applicant Dennis Stanbridge is ordered to pay the respondent's costs of and incidental to the application to be taxed.
It should be observed that to an extent the lastmentioned notice of motion is based on the proposition that it was improper for the Crown Solicitor to move to dismiss the application under s.48. The application for judicial review was based on the misconception that something said in Parliament could be reviewed. It was therefore appropriate to bring the application under s.48 and the suggestion that it was improper for it to be brought has no justification. Such a proposition, unless based on a genuinely held fundamental misconception of the position, is scurrilous. The application purporting to be under s.686 of the Criminal Code which is based on the same alleged impropriety also fails fo similar reasons. The application is dismissed.
The applicant also served a subpoena upon the Crown Solicitor with a view to cross-examining him, as I understood it, as to why he had brought the application under s.48. As the application for primary relief has been dismissed the subpoena is discharged and the Crown Solicitor discharged from any obligations in respect of it.
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