First Applicant v Respondent

First Applicant v Respondent - [2018] VSC 594 - VSC 2018 case summary — Zoe

[101]

(a) the onus is on the applicants to make it appear to the Court that, having made reasonable inquiries, they are unable to obtain sufficient information to decide whether or not to commence proceedings;[90]

(b) that the applicant first make all reasonable inquiries prescribes an objective assessment of whether an applicant has reasonably exhausted alternative sources of information and having done so demonstrates that they have insufficient information to enable a decision to be made to commence a proceeding. The applicant must disclose what information they already have to make a decision whether to commence a proceeding in court and identify what information is lacking;[91]

(c) unless the applicant is lacking something reasonably necessary to make a decision whether to institute proceedings, it is not entitled to preliminary discovery;[92]

(d) the requirement is primarily concerned with whether, as an objective fact, an applicant has sufficient information to determine whether to commence proceedings.[93] The fact that an applicant for preliminary discovery already has enough evidence to establish a prima facie case against the respondent does not mean that the applicant has sufficient information to enable it to decide whether to commence a proceeding.[94] An applicant in that position may nevertheless 'need information to know whether the cost and risk of litigation is worthwhile'.[95] For example, an applicant with sufficient information to plead a prima facie case may prudently wish to obtain preliminary discovery about 'what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award';[96]

(e) it is for the Court to determine whether an applicant has sufficient information available to it; the applicant's own assertion that it does not is neither determinative nor strictly necessary;[97]

(f) accordingly, an application cannot succeed if the applicant has sufficient information (objectively assessed) but is unable to determine whether to commence proceedings due to subjective factors, for example, an overly cautious nature;[98]

(g) courts have, however, approved litigants taking a cautious, conservative or prudent approach by applying for preliminary discovery under the rule.[99] This approach is consistent with the policy underlying the rule.[100] It is also consistent with the policy underlying the Civil Procedure Act 2010 (Vic) ('CPA') generally, and the 'proper basis certification' requirements in s 42 of the CPA in particular;[101]

(h) if there is evidence that an applicant has in fact decided to commence proceedings, the application must fail.[102] In determining whether an applicant has in fact already decided to commence a proceeding, irrespective of the outcome of the application, the Court should not give too much weight to posturing in correspondence prior to the making of the application, particularly correspondence alleging the existence of a strong case but nevertheless seeking preliminary discovery by letter prior to making a formal application to the Court;[103] and

(i) what constitutes 'reasonable inquiries' is a question of fact, to be considered in all the circumstances of the particular case.[104]

[113]

(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 means all words spoken and acts done in the course of, or for 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:

(a) the giving of evidence before a House or a committee, and evidence so given;

(b) the presentation or submission of a document to a House or a 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 document so formulated, made or published.

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

(4) A court or tribunal shall not:

(a) require to be produced, or admit into 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

(b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence;

unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.

(5) In relation to proceedings in a court or tribunal so far as they relate to:

(a) a question arising under section 57 of the Constitution; or

(b) the interpretation of an Act;

neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record.

(6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates.

(7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act.[110]

[121]

It appears to have been established that a court is able to receive evidence, by way of the tender of the records of parliamentary proceedings in Hansard, that a particular member addressed the House on a particular date at a particular time, because this is nothing other than historical record. At one time, there was a controversy as to whether the court could receive evidence of the words spoken, as distinct from evidence that something was said, but this appears to have been resolved in favour of the view that the words spoken can be tendered in evidence. See Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 451 - 453 and Buchanan v Jennings [2002] NZCA 363; [2002] 3 NZLR 145 at 158 - 159. The English courts do not appear to have found it difficult to examine the content of a statement to parliament in one circumstance. That is where the statement contains a minister's reasons for a decision of which judicial review is sought. Apparently, examination of the content of such a statement, even for the purpose of considering whether the decision is so unreasonable that no reasonable decision-maker could have made it, is not considered to be impeaching or questioning the statement. See R v Secretary of State for the Home Department; Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696. With this exception, it seems that any form of critical examination of the content of what has been said to parliament will not be undertaken by a court. It is certainly not permissible to tender the content of a statement to parliament for the purpose of proving that it was false or misleading. See Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223, a case decided under the Parliamentary Privileges Act 1987 (Cth), and Hamilton v Al Fayed [2000] UKHL 18; [2001] 1 AC 395 at 403 per Lord Browne-Wilkinson, with whom the other members of the House of Lords agreed.

One possibly controversial question is whether it is permissible for a court to rely on the content of a statement to parliament as evidence of the truth of a fact stated. On one view, this would be far removed from impeaching or questioning the statement. It would be accepting the correctness of the statement. The difficulty is that such a use of a statement to Parliament would operate to the disadvantage of the party against whom it was used. That party would be unable to contend for the absence of the truth of the facts stated without impeaching or questioning the statement itself.[124]

[141]

(a) the whole of the law and custom has its origin in this one maxim, 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed and adjudged in the House to which it relates, and not elsewhere';[143]

(b) Article 9 is one manifestation of a wider principle: that the courts and Parliament are astute to recognise their respective constitutional roles. They do not intrude into the spheres of one another except when that is essential to the proper performance of a constitutional role;[144]

(c) where art 9 speaks of 'impeached' it means 'hindered, impeded or impaired' in a court;[145]

(d) the basic principle underlying art 9 is the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness, at the time that they speak, is not inhibited from stating fully and freely what they have to say. If there were any exceptions which permitted their statements to be questioned subsequently, then at the time when they speak in Parliament, they would not know whether or not there would subsequently be a challenge to what they were saying. Therefore, they would not have the confidence the privilege is designed to protect;[146]

(e) the law as to the privileges of Parliament does not include a rule that evidence of the proceedings of Parliament is inadmissible except with the consent of Parliament.[147] There is no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history. But an allegation that what was done or said with an allegation of impropriety or any other questioning is not permitted;[148]

(f) it is not open to a party to tender a statement made to parliament as evidence of the truth of the facts stated.[149] If s 16 of the PPA codifies the effect of art 9 of the Bill of Rights, it is doubly clear that it is not open to a party to tender such a statement as evidence of its truth, because s 16(3)(a) provides:

[343]

(a) the TSC has no duty to charge annual licence fees to holders of taxi-cab licences. It had and has a discretion to take particular action if an annual licence fee is not paid;

(b) the power for the TSC to grant a taxi-cab licence is set out in s 143 of the TCM Act. That power is not conditioned on the payment of a licence fee;

(c) the requirement to pay an annual licence fee is set out in s 147A of the TCM Act. Under s 147A(1), the holder of a commercial passenger vehicle licence must pay the appropriate annual licence fee in respect of every commercial passenger vehicle for which the holder has a licence;

(d) the consequence of a failure to pay the appropriate annual licence fee is set out in s 147A(3), which provides, in substance, that the TSC may suspend or cancel a commercial passenger vehicle licence if the holder of the licence fails to pay any fee required to be paid in respect of the licence or the vehicle by or under the Act. That provision confers a discretion on the TSC regarding whether to take any action if the holder of a taxi-cab licence fails to pay the appropriate annual licence fee. It imposes no duty on the TSC to collect the annual licence fee or to take any action against the holder of a taxi-cab licence who fails to pay the appropriate annual licence fee;

(e) in these circumstances, there is no reasonable cause to believe that the applicants could obtain any relief for breach of a statutory duty against the TSC by reason of the TSC providing a rebate of annual licence fees for taxi-cab licences rather than requiring all fees to be paid;

(f) the TSC also has no duty to take particular compliance or enforcement action against any particular individual. Under s 115F(1) of the TI Act, it is a function of the TSC 'to promote and monitor compliance with any relevant legislation' (s 115F(1)(d)) and 'to monitor, investigate and prosecute breaches of any relevant legislation' (s 115F(1)(db)). The TSC has a range of powers that it can use in exercising those functions, ranging from publishing guidance material, to conducting audits and inspections, to suspending or cancelling licences, or bringing prosecutions for offences under the TCM Act;

(g) in performing its compliance and enforcement functions, and determining which of its powers to exercise, the TSC is guided by its Monitoring, Compliance and Enforcement Policy 2015; and

(h) there is no authority for the proposition that a prosecuting body may owe a duty of care to bring a prosecution in a particular case.[362]

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Judgment (648 paragraphs)

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Legislation Cited (16)

Cases Cited (41)