[8]
Following those interlocutory proceedings an amended Originating Motion was filed together with a Statement of Claim in which the Northern Territory of Australia was joined as Second Defendant. The defendants filed Defences in which it was claimed that the Statement of Claim did not disclose any arguable or justiciable cause of action against them. On 2 June 2000 the second defendant filed a Summons seeking summary judgment or alternatively that the Statement of Claim be struck out. This application, which was supported by the first defendant, came on for hearing before Olney J, who delivered judgment on 13 June 2000 ordering that there should be summary judgment for both defendants. It was made clear in the course of his reasons that his decision was arrived at on the basis of the application having been made under rule 23.01 of the Supreme Court Rules, on the ground that the plaintiff's claim did not disclose any cause of action. On that basis, apparently, the view was taken that the defendants had shown a good defence on the merits and summary judgment was given pursuant to rule 23.03.
[9]
Rule 23.01 is a rule which has counterparts in many jurisdictions and there are many authoritative pronouncements of what an applicant under it must show in order to obtain judgment. Olney J referred to a decision in this jurisdiction in which Kearney J said: "Order 23 is intended as a means for dealing with actions which are absolutely hopeless, those so obviously frivolous or unsustainable or untenable that it is plain and beyond rational debate that they cannot succeed. The power under O 23 is to be exercised by courts with great caution; an applicant bears a heavy burden. If the plaintiff shows an arguable case, one which is not unworthy of serious discussion and of evidence being led, a case not hopeless beyond argument, an application under O 23 should be dismissed." (Wilson v Union Insurance Company [1992] NTSC 107; 112 FLR 166 at 181.)
[10]
Olney J accepted that statement by Kearney J as a correct statement of the way rule 23.01 had to be applied. It has not been criticised in argument before us. Olney J also accepted that the defendants succeeded in fulfilling the requirements stated by Kearney J and held that the plaintiff's case was not arguable. He did this on the footing that the facts alleged in the plaintiff's Statement of Claim must be accepted as correct for the purposes of the application. The only other facts for him to take into consideration in deciding whether the plaintiff had an arguable cause of action were those in an affidavit filed by the second defendant setting out formal facts relating to the appointment of the first defendant. No evidence was put before Olney J disputing the facts alleged by the plaintiff in the Statement of Claim. Thus, it is quite clear that the proceedings before Olney J were conducted on the basis that the defendants were arguing, accepting as true for the purposes of the argument the facts alleged in the Statement of Claim, that the plaintiff could never make out a cause of action.
[11]
There was no dispute about this in this appeal. The second defendant in its written submissions recorded that the order sought from Olney J had been one "striking out the Statement of Claim on the ground that it does not disclose a cause of action known to the law and summary judgment on the ground that there is a defence on the merits no matter how the matter might be pleaded".
[12]
The plaintiff appealed to this Court against the order made by Olney J. It is important to understand that what the plaintiff was arguing in this Court was, not that it must succeed at a trial of its claims against the defendants, but that on the facts alleged in the Statement of Claim it had an arguable case, one that might succeed at trial if the alleged facts were all proved. The defendants, for the purposes of the argument only, had to accept that the facts alleged against them were true, although if the matter were to come to a trial they would be contesting the facts which, for the purposes of this application, they were in effect admitting. On the basis of the facts thus accepted, it was for the defendants to show that the plaintiff's case was hopeless.
[13]
Before Olney J, the plaintiff had argued that the appointment of Mr Bradley was invalid because not authorised by the Magistrates Act pursuant to which the appointment had purportedly been made. It was further argued that the appointment was invalid because it had been made for an improper purpose. Stated very briefly, the reasons for Olney J's decision were that in his view the appointment had been authorised by the terms of the Magistrates Act, as he interpreted it, and that the question of the purpose of the appointment was not justiciable.
[14]
Prior to the appeal coming on for hearing written submissions were filed on behalf of the parties. The same procedure had been followed before Olney J. Those filed by the first and second defendants in the appeal were in substance the same as had been filed below, suitably adjusted for purposes of the appeal. For the plaintiff however submissions filed, in accordance with directions, only a few days before the commencement of the hearing, as we earlier mentioned, took a different line from those that had been put before Olney J, raising what we have called the Kable argument.
[15]
When the appeal came on for hearing questions were asked of counsel for the plaintiff to ascertain whether the plaintiff was relying solely on the Kable argument in this Court or whether it was relied upon together with the argument put before Olney J. Counsel indicated that the latter course was that which was being taken. At a later stage in the proceedings counsel for the first defendant submitted that the Court should not entertain the Kable argument because it had not been put below and because it was not covered by the Statement of Claim. Counsel agreed however that he was ready to argue the point if necessary, and agreed also that the first defendant suffered no prejudice by the point being raised at this stage of the proceedings. This was because the factual basis upon which the proceedings had been considered below, and must also be considered for appeal purposes, was strictly confined to the facts alleged in the Statement of Claim and the formal facts proved in the affidavit filed by the second defendant. Since the Kable argument raised matters of purely legal argument, there could be no prejudice beyond that of surprise, which the first defendant was not relying on. Nevertheless the submission was still put that it was not appropriate for this Court to consider the argument. Counsel for the second defendant adopted the first defendant's submissions in this respect. We indicated that counsel should deal with the Kable argument. We said that we would, if necessary, give in our reasons for judgment our reasons for deciding whether the argument should be allowed to be put in the appeal. Counsel thereafter put their submissions on the point.
[16]
We will deal with the arguments in the appeal by first considering the argument which Olney J accepted, and which was criticised by the plaintiff in this Court. This requires an examination of the Statement of Claim in order to see what were the facts which, for the purposes of the argument, were taken by the defendants to be true.
[17]
Paragraph 8 of the Statement of Claim alleges that on or before 27 February 1998 members of the Executive Government of the Northern Territory, or persons acting on their behalf, entered into an agreement or arrangement with the first defendant pursuant to which he agreed to accept the office of Chief Magistrate for a period of two years upon certain terms and conditions. The particulars subjoined allege that the plaintiff is unable to say precisely how and when the agreement or arrangement was entered into but that its existence is to be inferred from a number of matters, set out in eight lettered paragraphs. The first of these is the determination made by the Administrator in Council on 27 February 1998. The second is Report No. 1 of 1999 of the Remuneration Tribunal. According to a later paragraph of the Statement of Claim (paragraph 25), this report describes the first defendant's appointment as "a two-year appointment" and as a "short term special appointment". The third matter relied on is "statements made by the Attorney-General in an interview with Mr Murray McLaughlin on 14 March 2000". The terms of the statements are not set out in the pleading and, since they are alleged to be oral statements, assistance cannot be derived from the rule permitting regard to be had to the terms of a document which is referred to in a pleading: Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 at 639; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 941; Galoo Ltd v Bright Grahame Murray [1993] EWCA Civ 3; [1994] 1 WLR 1360 at 1382. The same may be said of the fourth matter referred to, "statements made by Mr Shane Stone, the former Attorney-General, in an interview with Mr Paul Toohey on or about 22 April 2000". The fifth matter relied on is the first defendant's letter to the Law Society of the Northern Territory dated 27 March 2000. The particulars under paragraph 25 of the Statement of Claim set out what purport, as it seems to us, to be excerpts from this letter. Presumably recourse could have been made below to the full terms of this letter, but the letter is not contained in the materials before us and so evidently was not placed before the judge. The sixth matter is "reasons given by the first defendant for refusing to disqualify himself from hearing a case before the Juvenile Court on 28 March 2000". These reasons were given orally and what is presumably alleged to be an excerpt from them is given in the particulars under paragraph 25 of the Statement of Claim. The seventh matter relied on is "statements made by the Attorney-General during a radio interview with Fred McCue on 10 May 2000". What are said to be excerpts from this radio interview are given in the particulars under paragraph 25. Eighthly and finally, the particulars under paragraph 8 rely on the alleged refusal of the defendants to release documents or make them public.
[18]
Thus, of the eight matters relied on, the plaintiff is at large with regard to two - the terms of the statements made by the Attorney-General and by the former Attorney-General to McLaughlin and Stone respectively - since what those statements were is not alleged, and is to some extent at large with regard to two of the others, only excerpts of which are given in the pleading under a different paragraph, and it is possible that the plaintiff intends to rely on additional excerpts for the purposes of paragraph 8.
[19]
Although no criticism was made of the Statement of Claim in this regard below, it is clear that the particulars given under paragraph 8 are not particulars of circumstances from which an actual agreement (or arrangement) is to be inferred from words or other conduct but particulars of the evidence by which the plaintiff wishes to establish the making of the agreement. The dates given in the particulars show this at once. For the agreement is said to have been made on or before 27 February 1998, yet with the exception of the determination (made on that date) all the acts and matters relied on in the particulars post-date the alleged agreement. The pleading does not tie the plaintiff to an agreement that is to be inferred from conduct. The introductory sentence of the particulars, asserting inability to say precisely how and when the agreement was entered into, is consistent with an agreement that is written; or oral; or to be implied or inferred; or "mixed". It is clear from the particulars that they are relied on as words and other conduct of or on behalf of one or other of the defendants containing an express or implied admission that an agreement has been made, not as words or other conduct which give rise to an agreement. (How a report of the Remuneration Tribunal could be relied on successfully as an admission is another question.)
[20]
Of course the evidence by which a party proposes to prove a material fact has no place in a pleading: its insertion is expressly prohibited by rule 13.02. Nevertheless the pleading of evidence may result in the allegation of material facts and in the present case no argument was put either before Olney J or to us pursuant to rule 23.02, either complaining about or seeking the removal of any part of the Statement of Claim on pleading grounds. Although the second defendant's application referred to rule 23.02 as well as rule 23.01 and rule 23.03, neither the argument nor the decision below was concerned with the pleading arguments which might have been raised under rule 23.02.
[21]
As already mentioned, in so far as the defendant's application relied on rule 23.01 the facts alleged in the Statement of Claim had to be treated as accepted: Hubbuck & Sons Ltd v Wilkinson Heywood and Clark [1898] 1 QB 86 at 91; Lonrho Plc v Fayed [1992] 1 AC 448 at 469; Air Services Australia v Zarb (NSW Court of Appeal, 26 August 1998). By virtue of rule 23.04 evidence was admissible on an application under rule 23.01 or rule 23.03. The second defendant, however, only filed the affidavit earlier referred to, dealing with formal facts relating to the appointment of the first defendant. In its written submissions the second defendant conceded that any affidavit should be confined to matters not in dispute or not disputable.
[22]
In these circumstances, one might have expected below a specific submission on behalf of the plaintiff that the case had to be considered on the basis that the plaintiff would or might succeed in proving the agreement or arrangement alleged in paragraph 8 of the Statement of Claim. A curious thing about this case is that, while the plaintiff did not specifically deal with that matter in its submissions to the judge, the second defendant did so.
[23]
Paragraph 12 of the Statement of Claim alleged that the purported appointment of the first defendant was made for an improper purpose or purposes. The improper purposes were to defeat "the principles of judicial independence enshrined in the Magistrates Act"; to give effect to the agreement or arrangement alleged in paragraph 8; to secure a short-term, special appointment to the office of Chief Magistrate; to create what was, in effect, a two-year appointment subject to review at the expiration of that time; to secure the appointment of a person who would at the expiration of two years be dependent on the Executive Government for remuneration and allowances; to subvert the purpose of s 7 of the Magistrates Act, requiring magistrates' appointments to be to the age of 65; and to defeat "a fundamental objective of the Act", namely, that magistrates should enjoy secure tenure to the age of 65 free from the influence and appearance of influence of the Executive Government.
[24]
It seems to us to be a fair reading of paragraphs 8, 9 and 12 taken together, that the allegations of improper purpose include an allegation that the "members of the Executive Government" mentioned in paragraph 8, in agreeing with the first defendant that he should be appointed for a two-year term and in causing him to be appointed, did so in order that he might be subject to the influence of the Executive Government in the exercise of his powers as Chief Magistrate.
[25]
It also seems to us to be a fair reading of these paragraphs that the plaintiff is alleging an appointment made with the purpose of circumventing the statutory provision for tenure to age 65 - subject to resignation or removal pursuant to the Act: see sections 7, 8 and 10 of the Act.
[26]
The second defendant, in its written submissions to this Court, reproducing in this respect what it had put below, dealt at some length with the allegation of an agreement or arrangement made in paragraph 8 of the Statement of Claim. Counsel orally elaborated the same submissions before us. In paragraph 12 of the written submissions on appeal, reference is made to the allegation that the first defendant's appointment was to be only for two years. The submission is that the plaintiff argued that "the Executive had as a result reserved to itself an improper power to control or influence the Chief Magistrate in the discharge of his duties. This, it is argued, diminished judicial independence to such an extent as to render the appointment invalid.".
[27]
In paragraph 13 of the written submissions, and in the oral argument, the second defendant made a number of answers to the plaintiff's case based on this argument, but none of them challenged the sufficiency of the allegation in paragraph 8 of the Statement of Claim of the agreement or arrangement that the appointment should be for two years. The second defendant made two answers to the allegation of improper purpose: first, that the purposes for which an appointment are made are matters that are not justiciable and secondly, that in any event the alleged improper purposes are not in law improper. As to the second contention, it is argued that, for reasons which are given, it cannot be said that by the making of a remuneration determination limited to two years the Executive reserved to itself an improper power to influence the Chief Magistrate.
[28]
The second defendant went on to deal with particularity with the improper purposes alleged in paragraph 12 of the Statement of Claim. It was submitted that the making of the agreement or arrangement alleged in paragraph 8 would have no relevant legal consequences. It was submitted that whatever arrangement may have been made with the first defendant, the appointment that was made was unquestionably an appointment whereby, subject to the Magistrates Act, he would hold office until he attained the age of 65. It was not submitted however that the application, whether based on rule 23.01 or rule 23.03, should not be considered on the basis that there was or may have been an agreement or arrangement that the first defendant would be Chief Magistrate for only two years.
[29]
The plaintiff's written submissions before Olney J do not seem to have relied on an agreement or arrangement that the first defendant should hold office for only two years. Rather, they concerned themselves with the consequences of a remuneration determination which made his remuneration secure only "for the first two years of his appointment". Although the plaintiff asserted that the defendants' application, in so far as it was based on rule 23.01, had to accept that all the allegations of fact in the Statement of Claim were true, plaintiff's counsel did not seem to attempt to draw from this, before Olney J, the proposition that the parties making the application had to accept that the agreement or arrangement alleged in paragraph 8 of the Statement of Claim had been made, and had to accept that the first defendant's appointment was made for the purposes alleged in paragraph 12. Nor did counsel seem to suggest to Olney J that, in so far as the application was made under rule 23.03, there being no affidavit material bearing on the issues raised by those paragraphs of the pleading, the case was to be considered on the basis that the plaintiff might succeed on those issues. The main point made for the plaintiff before Olney J, both in writing and orally, was that the failure of the determination of 27 February 1998 to make provision for remuneration after the initial two-year period was inimical to the Chief Magistrate's independence. This is a point to which a large part of the second defendant's argument below was directed.
[30]
Not surprisingly, in view of the submissions made on behalf of the plaintiff, his Honour did not in his reasons deal with the question whether the application had to be considered on the basis that the agreement or arrangement alleged in paragraph 8 of the Statement of Claim was or may have been made. In dealing with the allegation that the appointment was made for an improper purpose, his Honour expressed his conclusion thus: