Reported Decision: 259 ALR 86[2009] ALMD 5739[2009] ALMD 5348232 FLR 331[2009] ALMD 5810[2009] ALMD 528176 NSWLR 99
New South Wales
Court of Appeal
CITATION: Stewart v Ronalds [2009] NSWCA 277
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 12 August 2009
JUDGMENT DATE:
4 September 2009JUDGMENT OF: Allsop P at 1; Hodgson JA at 80; Handley AJA at 129 DECISION: 1. As to the Lieutenant-Governor and Premier, answer questions 1 and 2 in the orders of 27 May 2009: “No”.
2. As to question 3 in the said orders answer: “No”.
3. Direct the parties to bring in short minutes of order disposing of the proceedings to the extent possible in the light of 1 and 2 above.
4. Stand the proceedings over to a date to be fixed for:
(a) any argument concerning the form of orders consequent on 1 and 2 above;
(b) any argument as to whether or not Ms Sanger is either a necessary or proper party;
(c) any argument as to whether the plaintiff should have leave to amend to join Ms Sanger as a party; and
(d) any further submissions upon the position of the first defendant and the issue of Parliamentary privilege.
5. Direct the parties to notify Ms Sanger of the orders and reasons of the Court made and published today.CATCHWORDS: CONSTITUTIONAL LAW – New South Wales Constitution – Executive branch –Ministers – Executive Council – withdrawal of commissions – responsible government– commissions at the Governor’s pleasure – Constitution Act 1902 (NSW) – s35C – s35E - ADMINISTRATIVE LAW – judicial review –advice of Premier to Lieutenant-Governor to withdraw commissions of Minister and Executive Council - investigation of alleged misconduct of Minister - Premier established procedure for independent investigation– whether procedure gave rise to obligation of procedural fairness – justiciability – whether political considerations – role of Courts - acts of Lieutenant-Governor not subject to judicial review – advice of Premier to withdraw commissions not subject to judicial review – Lieutenant-Governor had no obligation to afford procedural fairness - Premier had no obligation to afford procedure fairness – advice of Premier to Lieutenant Governor not void - TORTS – duty of care – investigation of alleged misconduct - independent barrister retained by government as investigator and fact finder - report of investigation to inform a political decision of dismissal of a Minister - whether duty of care owed to person under investigation - novel category – salient features – coherence with other legal duties – coherence with other areas of law – interaction with law of defamation - no duty of care in the circumstances - ADMINISTRATIVE LAW – judicial review - natural justice - procedural fairness – source of obligation of procedural fairness - reputation interest attracting protection of rules of natural justice - independent barrister retained by government as investigator and fact finder - report of investigation to inform a political decision of dismissal…
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- AGLC
- Stewart v Ronalds [2009] NSWCA 277
- Case
- [2009] NSWCA 277
- Decision Date
CaseChat Overview and Summary
The case of *Stewart v Ronalds* concerned a challenge brought by a Minister of the Crown against the Lieutenant-Governor and the Premier of New South Wales. The dispute arose from the Premier's advice to the Lieutenant-Governor to withdraw the Minister's commission, following an investigation into alleged misconduct. The Minister sought judicial review of these actions and also raised claims in tort and concerning parliamentary privilege. The matter was heard by the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the Lieutenant-Governor's actions in withdrawing the Minister's commission were subject to judicial review, and whether the Premier's advice to the Lieutenant-Governor to withdraw the commission was similarly reviewable. Relatedly, the court considered whether the Lieutenant-Governor or the Premier owed an obligation of procedural fairness to the Minister, particularly in light of an independent investigation into the alleged misconduct. The court also examined whether a duty of care was owed by the government to the Minister in the conduct of the investigation, and whether Article 9 of the Bill of Rights 1688 had any application.
The Court of Appeal held that the Lieutenant-Governor's acts, in exercising executive power under the *Constitution Act 1902* (NSW), were not subject to judicial review. It reasoned that the withdrawal of a commission from a Minister is an exercise of executive power at the pleasure of the Crown, and such decisions are political in nature and therefore non-justiciable. Consequently, neither the Lieutenant-Governor nor the Premier had an obligation to afford procedural fairness to the Minister in relation to the withdrawal of the commission. The court also found that no duty of care was owed by the government to the Minister in the circumstances of the investigation, deeming it a novel category of claim that lacked coherence with established legal principles.
The Court of Appeal answered "No" to the questions concerning the justiciability of the Lieutenant-Governor's and Premier's actions and the existence of an obligation of procedural fairness. The proceedings were directed to be brought in short minutes of order to dispose of the matter as far as possible, with further argument to be heard on consequential orders, the joinder of a Ms Sanger as a party, and issues of parliamentary privilege.
The primary legal issues before the Court of Appeal were whether the Lieutenant-Governor's actions in withdrawing the Minister's commission were subject to judicial review, and whether the Premier's advice to the Lieutenant-Governor to withdraw the commission was similarly reviewable. Relatedly, the court considered whether the Lieutenant-Governor or the Premier owed an obligation of procedural fairness to the Minister, particularly in light of an independent investigation into the alleged misconduct. The court also examined whether a duty of care was owed by the government to the Minister in the conduct of the investigation, and whether Article 9 of the Bill of Rights 1688 had any application.
The Court of Appeal held that the Lieutenant-Governor's acts, in exercising executive power under the *Constitution Act 1902* (NSW), were not subject to judicial review. It reasoned that the withdrawal of a commission from a Minister is an exercise of executive power at the pleasure of the Crown, and such decisions are political in nature and therefore non-justiciable. Consequently, neither the Lieutenant-Governor nor the Premier had an obligation to afford procedural fairness to the Minister in relation to the withdrawal of the commission. The court also found that no duty of care was owed by the government to the Minister in the circumstances of the investigation, deeming it a novel category of claim that lacked coherence with established legal principles.
The Court of Appeal answered "No" to the questions concerning the justiciability of the Lieutenant-Governor's and Premier's actions and the existence of an obligation of procedural fairness. The proceedings were directed to be brought in short minutes of order to dispose of the matter as far as possible, with further argument to be heard on consequential orders, the joinder of a Ms Sanger as a party, and issues of parliamentary privilege.
Orders
Orders of the court
1. As to the Lieutenant-Governor and Premier, answer questions 1 and 2 in the orders of 27 May 2009: "No". 2. As to question 3 in the said orders answer: "No". 3. Direct the parties to bring in short minutes of order disposing of the proceedings to the extent possible in the light of 1 and 2 above. 4. Stand the proceedings over to a date to be fixed for: (a) any argument concerning the form of orders consequent on 1 and 2 above; (b) any argument as to whether or not Ms Sanger is either a necessary or proper party; (c) any argument as to whether the plaintiff should have leave to amend to join Ms Sanger as a party; and (d) any further submissions upon the position of the first defendant and the issue of Parliamentary privilege. 5. Direct the parties to notify Ms Sanger of the orders and reasons of the Court made and published today.
07/09/2009 - Grammatical error - Paragraph(s) 76
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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