Practice and procedure - Summary judgment - Action not justiciable - Plaintiffs have no cause of action

Rules of the Supreme Court 1971 WA, O 16 r 1, O 20 r 9

Aboriginal Legal Service of Western Australia v Western Australia (1995) 9 WAR 297

Att-Gen of Duchy of Lancaster v London and North Western Ry [1892] 3 Ch 274

Attorney General for Western Australia (ex rel Burke) v Western Australia [1982] WAR 241

Baron-Hay v Commissioner of Probate Duties [1968] WAR 81

Berdan v Greenwood (1878) 3 Ex D 251

Bride v Stewart [2001] WASCA 407

Briggs v Curtis Quick & Associates, unreported; FCt SCt of WA; Library No 980141; 30 March 1998

Bruce v Odhams Press Pty Ltd [1936] 1 KB 697

Burton v President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76

Charlie Carter Pty Ltd v SDAE of WA (1987) 13 FCR 413

Commonwealth v Amann Aviation [1991] HCA 54; (1991) 174 CLR 64

Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594

Cortis Exhaust Systems Pty Ltd v Kitten Software Pty Ltd [2000] FCA 491

Davy v Garrett (1878) 7 Ch D 473

Del Borello v Friedman and Lurie (A Firm) [2001] WASCA 348

Dibeek Holdings Pty Ltd v Notaras & Anor (1998) 143 FLR 132

Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602

Drabsch v Switzerland General Insurance Co Ltd, unreported; SCt of NSW; BC9604909; 16 October 1996

Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501

Egan v Willis [1998] HCA 71; (1998) 73 ALJR 75

Esanda Finance Corp Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241

Fancourt v Mercantile Credits [1983] HCA 25; (1983) 154 CLR 87

Fashion Warehouse Pty Ltd v Pola [1984] 1 QdR 251

Fasold v Roberts (1997) 70 FCR 489

Halden v Marks (1996) 17 WAR 447

Hayle Holdings Pty Ltd v Australian Technology Group Ltd [2000] FCA 1699

Haynes v Harwood [1935] 1 KB 146

Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465

KA & C Smith Pty Ltd v Ward; KA & C Smith Pty Ltd v Starcar Pty Ltd, unreported; SCt of NSW; BC9703097; 11 July 1997

Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1996

Knowles v Robert (1888) 38 Ch D 263

Laurance v Katter [1996] QCA 471; (1996) 141 ALR 447

Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251

Mako Investments Pty Ltd v Quindo Pty Ltd, unreported; Library No 6838; 28 July 1987

Marks Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360

McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140

Nationwide News Pty Ltd v International Financing and Investment Pty Ltd [1999] WASCA 95

Naxakis v West General Hospital [1999] HCA 22; (1998) 197 CLR 269

Perre v Apand [1999] HCA 36; (1999) 198 CLR 180

Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225

Plimer v Roberts (1970) 150 ALR 235

R v Richards; ex parte Fitzpatrick & Browne [1955] HCA 36; (1955) 92 CLR 157

Rassam v Budge [1893] 1 QB 571

Re Citizen Limbo (1989) 92 ALR 81

Re Dilford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347

Registrar of the Western Australian Industrial Relations Commission v The Communications, Electrical etc Workers Union of Australia (WA Branch) [1999] WASCA 170

Remmington v Scoles [1897] 2 Ch 1

Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472

Sankey v Whitlam (1978) 142 CLR 1

South Australia v Commonwealth (1962) 108 CLR 70

Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211

Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35

The Queen v Jones, Saldaris & Rudolphy [1999] WASCA 194

Vass v Commonwealth of Australia [2000] FCA 47

Victoria v The Commonwealth and Connor [2000] (1975) 1 AC 321

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Western Australia v Watson [1990] WAR 248

Wheatley v Bower [2001] WASCA 293

White v Jones [1995] UKHL 5; [1995] 2 AC 207

Wright and Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416

Young v Holloway [1895] P 87

1 I have two applications before me. The first was filed by the defendant on 8 April 2002 and seeks leave to bring the application and if leave is granted, judgment be entered for the defendant pursuant to O 16 r 1, or alternatively, the statement of claim be struck out pursuant to O 20 r 19.

2 The second application was filed by the plaintiffs on 22 April 2002 seeking leave to amend their substituted statement of claim in accordance with a minute filed on 22 April 2002.

(1) The plaintiffs were owners of quotas for the production of milk under the Dairy Industry Act 1973 ("the Act").

(2) Prior to the repeal of the Act the defendant was involved in negotiations with the executive government of Western Australia on the question of deregulating the dairy industry, including the repeal of the Act.

(3) The defendant knew or ought to have known that parliament would not deregulate, or there was a significant chance it would not deregulate, unless the dairy farming industry of Western Australia was in favour and that if the industry was so in favour the executive government would propose legislation.

(4) The defendant made representations to the Minister for Primary Industry as to the views of the dairy farming industry.

(5) The representations could not reasonably be made or were misleading.

(6) The Act was repealed and the plaintiffs suffered loss and damage.

The defendants summary judgment application Leave

4 The defendant's application for leave is supported by an affidavit of Margaret Elizabeth McNelly sworn on 8 March 2002. It is clear from that affidavit that this is a complex matter and the parties sensibly have spent some time trying to resolve the issues. On what is before me I am satisfied that leave should be granted, noting that the plaintiffs do not oppose the application.

5 I accept the submission by the plaintiffs that it is trite law that summary judgment should not be entered where there is any real dispute of law or fact and that summary judgment should not be granted unless it is clear that there is no real question to be tried. The plaintiffs also argue that in an area of apparently developing law, even more care than usual should be taken to ensure that litigation is not stifled.

6 Counsel for the defendant has conveniently divided the matter into two issues. The first is whether or not this matter is justiciable before the Court, and secondly, various pleading issues.

7 The defendant argues that there are three grounds, albeit inter-related upon which this matter does not fall to the Courts to be determined, they being:

(1) An Act cannot be impugned in legal proceedings.

(2) Inevitable contravention of Article 9 of the Bill of Rights of 1688.

(3) Non-justiciability generally since it involves:

(a) a matter likely to engender conflict between the judicial and legislative arms of government that is accordingly inappropriate for legal proceedings; and

(b) a political matter which by its nature is reserved under the constitution of Western Australia to the parliament for resolution.

8 I accept that the three grounds are inter-related and will deal with this matter globally. Counsel for the defendant argues that the case of British Railways Board v Pickin [1974] UKHL 1; [1974] AC 765 ("Pickin") is directly on point and should be followed. The relevant facts of that case are conveniently summarised in the headnote as follows:

"By section 259 of a private Act of Parliament of 1836 setting up a railway line it was provided that, if a line should be abandoned, the lands acquired for the track should vest in the owners for the time being of the adjoining lands. The section was incorporated in another private Act of Parliament of 1845 under which further lands were acquired for a branch line. Subsequently the lines became vested in the British Railways Board, who promoted an unopposed Bill which became the British Railways Act 1968, a private Act. The effect of section 18 of the Act of 1968 was to cancel the effect of section 259 of the Act of 1836 and to vest in the board the lands over which the abandoned track of lines, one of which was that laid under the Act of 1845, passed.

The plaintiff, who had purchased from the owner of a piece of land adjoining that track all his estate and interest in the railway land and the track, brought an action against the board claiming that by virtue of section 259 he was the owner of that land to mid-track. The board claimed that under section 18 of the Act of 1968 the land had vested in the board and that the claim was invalid. By his reply the plaintiff pleaded in paragraphs 3 and 4 that the board had misled Parliament by means of a false recital in the preamble to the Act of 1968 in reference to the deposit of requisite documents, and in obtaining the passage of the Bill as unopposed; and that the board could not rely on section 18 which was ineffective to deprive him of his title.

The board applied to have paragraphs 3 and 4 struck out under RSC Ord 18, r 19, as frivolous, vexatious and an abuse of the process of the court. Master Elton, whose decision was affirmed by Chapman J, struck them out. The Court of Appeal reversed his decision."

9 Counsel for the plaintiffs submits that the plaintiffs do not seek to challenge an Act of Parliament, but rather they challenge the conduct of a private body in making representations to the executive government. They do not allege that Parliament was misled but rather the executive was misled and one of the natural consequences of that was that an Act of Parliament might follow. It is therefore argued that Pickin is not relevant.

10 The defendant, however, argues that the plaintiffs in order to succeed must establish that Parliament in enacting the repealing Act did so by reason of, or because, it was affected by misleading or deceptive statements or conduct involving the holding of the referendum survey conducted by the defendant. It is suggested that they need to prove as a matter of evidence that the defendant's actions were, at the least in part, an effective cause of harm alleged to be suffered as a result of that enactment. It is submitted that it is not possible for them to formulate a causal sequence without addressing the central factor that the passing of the Bill was in some respect the result of an action that can legally be attributed to the defendant.

11 It was submitted by counsel for the plaintiffs that what the defendant is essentially trying to do is to construct a test of causation based on the "but for test". It was said that since 1991 the but for test has been rejected by the High Court as a test of causation and has been replaced with a test of common sense. Counsel referred me to the decision of Bennett v The Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 and in particular what Gaudron J had to say at 420 - 421 as follows:

"And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury."

12 In the case before me, whether the defendant sought to show that the breach had no effect or would have occurred if the duty had been performed, or the plaintiffs must establish that Parliament, in enacting the repealing Act, did so by reason of or because it was affected by misleading or deceptive statements made by the defendant to the Minister, I am of the view it is likely the Court will be called upon to consider issues such as those listed at par 14 of the written submissions of the defendant dated 8 April 2002 which reads as follows:

"14. To uphold the plaintiff's claim the court would have to canvass and determine such matters as:

• the reasons why each House of Parliament, and each of the members thereof, voted for the Act,

• whether the alleged representations of the defendant, taken in conjunction with all other matters considered by them, including the investigation and report by the Standing Committee on Constitutional Affairs referred to in paragraphs 21 and 24 of the Substituted Statement of Claim, was causally influential in their vote;

• whether other factors such as the scheme proposed in the Commonwealth Dairy Industry Adjustment Bill 2000 referred to in paragraphs 8 and 12.5 of the Substituted Statement of Claim was the dominant and real reason why the Act was passed (that is, whether it would have been passed irrespective of any representations by the defendant); and

13 Whilst I accept that the plaintiffs do not seek to challenge the repealing Act, I do consider the principles applied in Pickin are relevant to the issues in question.

"It is clear that the consequence of allowing the trial to proceed on the basis of the law as stated in the Court of Appeal, would be to require the court to embark on far-reaching inquiries as to the proceedings in Parliament which led to the enactment of the Act of 1968. For this reason it was, exceptionally, necessary for this House to review the matter at the present stage."

"How can we know how Parliament understood the recital - who is 'Parliament' for this purpose - the members of both Houses or of either House - the members of the committee on private Bills - the counsel who advise the chairmen of these committees - the officials whose business it is to look at recitals and at the Bill? We know nothing, and by no process short of summoning some or all of these persons and examining their records can we find out on what view of the facts or on what consideration of policy section 18 was enacted: yet the plaintiff, in undertaking to show that the recital was false, and that Parliament was misled and (presumably) would not have enacted the section had it known the facts and realised what it was doing, must commit the courts to the process described. This analysis of what the plaintiff's contentions involve demonstrates, in my opinion, and validates, the reasons for the court's firm refusal to embark on any inquiry of this kind. To do so involves them both in a potential clash with Parliament and in a series of steps which can lead to no result."

15 I am of the view that if this matter is allowed to proceed to trial the Court would be required to embark upon an inquiry as to the proceedings in Parliament. For the reasons outlined by Lord Wilberforce, I consider the Court should decline to do so.

16 Lord Simon of Glaisdale at 798 - 799 in Pickin said:

"A second concomitant of the sovereignty of Parliament is that the Houses of Parliament enjoy certain privileges. These are vouchsafed so that Parliament can fulfil its key function in our system of democratic government. To adapt the words of Lord Ellenborough CJ in Burdett v Abbot [1811] EngR 83; (1811) 14 East 1, 152: 'they [the Houses] would sink into utter contempt and inefficiency without [them].' Parliamentary privilege is part of the law of the land (see Erskine May's Parliamentary Practice, 18th ed (1971), ch v). Among the privileges of the Houses of Parliament is the exclusive right to determine the regularity of their own internal proceedings (Erskine May, pp 176, 195, 197).

'What is said or done within the walls of Parliament cannot be enquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject, Burdett v Abbot [1811] EngR 83; (1811) 14 East 1 and Stockdale v Hansard [1839] EngR 139; (1839) 9 Ad & El 1; - are agreed, and are emphatic.' "

17 With respect, I agree with this observation and consider the Court cannot inquire as to what is said or done within the walls of Parliament. This point was further emphasised in The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 where at 225 Mason J, as he then was, said:

"It is incontestable that the courts will not examine the motives which inspire members of Parliament to enact laws."

18 I accept that the plaintiffs' claim is inseparably entangled with events and decisions that form part of the proceedings of Parliament. This is illustrated by the pleas to be found at pars 9.1, 18 and 19 of the substituted statement of claim. I do not consider the amendments sought by the plaintiffs in the minute of proposed amended statement of claim filed on 22 April 2002 ("the minute") would alter this position.

19 I accept the submissions by the defendant that the alterations to pars 10 and 11 to the minute cannot supply a link between the representations pleaded and the loss said to have been suffered by the plaintiffs since the executive government could not guarantee that the repealing Act would be passed by the Parliament.

20 The defendant also raised a number of pleading points which the plaintiffs seek to address in part by amending the pleading in accordance with the minute. As I am of the view the plaintiffs' claim, however pleaded, will be inseparately entangled with the proceedings of the Parliament of Western Australia, I find it unnecessary to address these issues, nor the issues raised in the plaintiff's application.

21 True it is that the cause of action pleaded is not directed against the Parliament of Western Australia but the critical causal element in bringing into existence the repealing Act which it is said has resulted in the plaintiffs' loss was the legislative action of the Parliament.

22 Having reached the conclusion any cause of action the plaintiffs may have would inevitably require the Court to traverse ground which is properly the province of the Parliament of Western Australia, I would order that judgment be entered for the defendant.

23 I am told that on 18 October 2001 the defendant filed and served an application to strike out the statement of claim and for summary judgment. This application is said to have been listed for a special appointment on 18 January 2002. On 11 January 2002 the plaintiffs filed and served a substituted statement of claim. It is said that on 17 January 2002 Master Bredmeyer adjourned the special appointment and reserved the question of costs. The parties have requested I deal with the costs which were reserved on that occasion.

24 Regrettably the folios from the Court file relating to this matter have been misplaced and thus I do not have the benefit of examining the folio on which the learned Master made his order, but I accept that he made the order referred to.

25 The substituted statement of claim was filed by the solicitors for the plaintiffs without any conferral with the solicitors for the defendant and without seeking the leave of the Court. The defendant seeks the costs of that application. To that the plaintiffs argue that the substituted statement of claim merely puts in proper form the amended statement of claim. Even if that was so the substituted statement of claim addresses in part at least, the objections raised in the previous application.

26 I accept that the Court has a discretion to determine by whom and to what extent costs should be paid. The usual course is that costs follow the event. I am of the view that the defendant was justified in bringing the initial application and had made preparations to argue the matter at the special appointment listed for 18 January 2002. The special appointment was aborted by reason of the plaintiffs filing the substituted statement of claim. I am of the view that the defendant is entitled to the costs of that application, including reserved costs and any costs thrown away as a result of the substituted statement of claim being filed.