Plaintiff v Defendant

1 The plaintiff, Mr Gregory Barber, is a member of the Legislative Council of the Parliament of Victoria.

2 On 31 August 2011, Mr Barber moved the following motion in the Legislative Council:

That this House requires the Leader of the Government to table in the Legislative Council by 12 noon on Tuesday, 14 September 2011, a copy of all reviews commissioned by the Government of the myki ticketing system undertaken by Deloitte.[1]

3 The motion was passed by a majority of the Legislative Council.[2]

4 On 11 October 2011, the Treasurer, Mr Kim Wells MP, wrote to the Clerk of the Legislative Council in response to the motion. Referring to a report that fell within the description in the motion, Mr Wells wrote:

The report sought by the Council's order was prepared for the purpose of submission for consideration by a committee of Cabinet. As such, the Council does not have the power to require the production of this document.

The Government has carefully considered this matter and determined that it is not appropriate to provide the report to the Council.

5 The report in question is a report prepared by consultants Deloitte on the future of the myki ticketing system upon which the Government apparently based its decision to pursue the implementation of the system (the 'Deloitte report'). The Deloitte report is of interest to the plaintiff as a member of Public Accounts and Estimates Committee and the Select Committee into Train Services.

6 On 20 December 2011, Mr Barber's solicitor wrote to the Treasurer stating that Mr Barber did not believe that the refusal to produce the Deloitte report to the Legislative Council was 'legally sound' and that unless the Deloitte report was provided to the Clerk of the Legislative Council by 20 January 2012, Mr Barber intended to initiate proceedings in this court.[3]

7 To date, Mr Barber has not received a response to his solicitor's letter[4] and the Legislative Council has not taken any further steps to examine the basis for the Treasurer's claim for privilege or to compel production of the Deloitte report.

8 By originating motion dated 19 March 2012, Mr Barber instituted proceedings seeking the following:

(a) A declaration that the Legislative Council of the Parliament of Victoria has power to order production of documents prepared outside Cabinet and considered by Cabinet; or

(b) A declaration that the Legislative Council of the Parliament of Victoria has power to order production of a report prepared by an independent contractor and considered by Cabinet.

9 In this way, Mr Barber seeks to have the Court adjudicate on the lawfulness of the Treasurer's action.

10 By summons filed on 15 June 2012, the State of Victoria has applied to have the proceeding dismissed or permanently stayed pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (the 'Rules') or, alternatively, to have summary judgment entered in its favour pursuant to ss 62 and 63(1) of the Civil Procedure Act 2010 (Vic).

11 For the reasons that follow, I have concluded that the proceeding should not be summarily dismissed and that Mr Barber's application should be allowed to proceed to a full hearing or to a hearing on a preliminary question at which the issues raised by the defendant can be fully argued and considered.

12 The defendant relies upon r 23.01(1)(a) of the Rules to submit that the present case 'does not disclose a cause of action' and r 23.01(1)(c) to characterise the proceeding as 'an abuse of the process of the Court'. The test to be applied when a defendant seeks relief under r 23.01(1)(a) is strict and the Court must form a 'certain and concluded determination that a proceeding would necessarily fail.'[5] Section 63 of the Civil Procedure Act provides that a court may give summary judgment in a civil proceeding if satisfied that a claim has 'no real prospect of success'.

13 The summary judgment provisions of the Civil Procedure Act have been recently considered in this court by J Forrest J in Matthews v SPI Electricity Pty Ltd,[6] by Dixon J in Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd[7] and most recently by Croft J in JBS Southern Australia Pty Ltd v Westcity Group Holdings Pty Ltd.[8] Not surprisingly, each of their Honours paid careful attention to the decision of the High Court in Spencer v the Commonwealth,[9] which concerned the operation of s 31A of the Federal Court of Australia Act 1976 (Cth). Section 31A is similar, although not identical to s 63 of the Civil Procedure Act: it provides for summary judgment to be given if a claim has 'no reasonable prospect of success' rather than 'no real prospect of success'. In Spencer, the High Court held that s 31A was to be understood as requiring a different inquiry from the inquiries that had been made under earlier procedural regimes. Certainty of failure need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action.[10]

14 This court has described the test applicable under s 63 as 'less stringent' than the test under the Rules[11] and as involving liberalisation of that test.[12] In Ottedin, Dixon J very usefully set out six principles for summary dismissal under s 63 of the Civil Procedure Act, including, most relevantly, that s 63 does not direct an inquiry into whether a certain and concluded determination can be made that the proceeding will necessarily fail. What is required is a practical judgment by the court as to whether a claim has more than a 'fanciful' prospect of success.[13]

15 His Honour grounded his analysis in the important observation that the Court's discretion as to whether to exercise the power of summary dismissal is very wide. Section 64 makes plain that the power is based on a consideration of the interests of justice. The discretion is to be exercised to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties. The Court may be satisfied, on an interlocutory application, that there is no real prospect of success in a civil proceeding but nevertheless consider the dispute to be of such a nature that only a full hearing on the merits is appropriate. Whether a full hearing on the merits is appropriate is a relevant discretionary consideration in the circumstances of each proceeding.[14]

16 Justice J Forrest, in formulating a similar set of principles to those of Dixon J, also made reference to 'fancifulness': a court may dismiss a claim where it determines that the claim has no real prospect of success in the sense that such prospects are fanciful rather than realistic. The less complex the issue in a case, then the easier it is for a court to take the view that the proceeding is capable of being determined on summary judgment. However, whatever the test to be applied, the power to order summary dismissal of a claim must be exercised with care. This is particularly so where a case may involve issues of contested fact, or where its consequences may affect a large number of persons.[15]

17 In this case, the facts appear to be both relatively simple and relatively settled. The heart of the dispute lies in the competing analyses of the law. Having regard to the legal issues raised by the defendant, the Court is required to make a practical judgment as to whether Mr Barber's application for declarations about the scope of the relevant privilege of the Legislative Council has more than a fanciful prospect of success. The complexity and the importance of the issues will bear upon the Court's ability to take the view that the proceeding is capable of being determined on summary judgment. Importantly, the Court must keep its ear attuned to the interests of justice: it must consider whether the dispute is of such a nature that summary dismissal is appropriate in the circumstances.

18 The defendant's application raises difficult questions about the role and jurisdiction of the courts in the resolution of disputes concerning the exercise of privileges by the Houses of the Parliament.

19 Under s 19(1) of the Constitution Act 1975 (Vic), the Council and the Legislative Assembly hold, enjoy and may exercise the privileges, immunities and powers that were held, enjoyed and exercised by the House of Commons of Great Britain and Ireland as at 21 July 1855 insofar as they are not inconsistent with any Act of the Parliament of Victoria. It is uncontroversial that one of the privileges of the Council is to call for the production of documents held by the Government. Mr Barber contends that he seeks to have the Court identify the limits of that power by adjudicating on the lawfulness of the Treasurer's claim that he is not required to produce the Deloitte report to the Council because it was prepared for consideration by a committee of the Cabinet.

20 The defendant has advanced five principles that it says govern the relationship between the courts and the Parliament in relation to the resolution of disputes about parliamentary privileges:

(a) The courts may determine the existence of a parliamentary privilege only when necessary for determination of a justiciable dispute between the parties.[16] Conversely, the determination of the existence of a parliamentary privilege is only justiciable where it is necessary to determine the legal rights of the parties;[17]

(b) Once it has been established that a House of the Parliament has an undoubted privilege, the courts will not review the occasion or manner of its exercise;[18]

(c) Each House of Parliament has exclusive cognisance, or jurisdiction, over its internal proceedings;[19]

(d) A claim for a bare declaration about the validity of a resolution of the House or the existence of parliamentary privilege is ordinarily not justiciable.[20] A bare declaration as to the validity of a resolution of the House is indistinguishable in all relevant respects from a bare declaration as to the existence of a power or privilege of the House: both intrude into the role of the Parliament;

(e) A claim for a bare declaration as to the validity or invalidity of a resolution of the House or the existence or non-existence of a privilege of the House should not be entertained in the abstract apart from a justiciable controversy. Moreover, declaratory relief ought not to be granted where the proceeding seeks relief that is merely hypothetical or advisory and would not determine any rights, liabilities or interests between the parties.[21]

21 The defendant contends that there is no justiciable dispute between the parties and that Mr Barber asks the Court to intrude in the internal affairs of the Legislative Council. It contends variously that the facts relied upon by Mr Barber do not disclose a justiciable controversy between the parties arising under general law; that Mr Barber does not seek a judicial determination of legal rights, liabilities or interests of the parties to the proceeding in relation to any of the identified facts; that the existence of the power of the Legislative Council to compel the production of certain classes or types of documents does not arise for determination in the proceeding; and that the relief sought will not determine any legal rights, liabilities or interests, whether in relation to the Deloitte report or otherwise.

22 The defendant drew the Court's attention to a number of cases involving disputes about parliamentary privileges, but placed particular emphasis on the decision of the plurality High Court in Egan v Willis.[22] In Egan v Willis, the High Court was concerned with an application for a declaration about the validity of a resolution of the New South Wales Legislative Council to expel a member from the House. The member, Mr Egan,[23] brought an action against the Speaker and the Usher of the Black Rod seeking a declaration that the resolution to expel him was invalid and that his removal from the chamber constituted a trespass against the person. The resolution of the Legislative Council was central to the respondent's plea of justification. According to Gaudron, Gummow and Hayne JJ, the action having been brought by Mr Egan, it had to be decided. However, in respect of bare declarations about the validity of resolutions of Houses of the Parliament more generally, their Honours said:

We emphasise that, even if an application for a bare declaration of the nature we have described would have been justiciable (as to which we express no concluded opinion), at least as a matter of discretion, a suit constituted solely to obtain such relief ordinarily ought not to be entertained. Questions respecting the existence of the powers and privileges of a legislative chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law but they should not be entertained in the abstract and apart from justiciable controversy. [24]

23 The defendant submits that unless there is a general law action of a kind that that the courts must entertain, applications for bare declarations about the privileges of the Houses of Parliament are not justiciable. In this case, in contradistinction to Egan v Willis, there is no general law action and no justiciable controversy. As a result, the proceeding has no real prospect of success and should be dismissed under the Civil Procedure Act. Alternatively, it should be dismissed because it does not disclose a cause of action and/or because it constitutes an abuse of the process of the Court.

24 For his part, Mr Barber submits that there is no principle that the courts have no role at all to play in parliamentary matters and that the issue for determination in the present proceeding is the content and scope of the Court's role. According to Mr Barber, the common law of Australia recognises that the courts have a legitimate role in disputes concerning privileges of the Houses of Parliament, namely, to adjudicate upon the existence of a privilege. He relies in particular upon the statement of Dixon CJ in R v Richards; Ex parte Fitzpatrick and Browne:[25]

It is for the courts to judge the existence in either House of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise. [26]

25 On this basis, Mr Barber submits that the Court has jurisdiction to decide whether the Legislative Council's power to order the production of documents extends to documents prepared outside Cabinet by an independent contractor and subsequently considered by Cabinet. In so doing, the Court would be adjudicating upon the existence of a privilege rather than becoming involved in a dispute concerning the particular exercise of a privilege.

26 Mr Barber submits that by virtue of the reason given by the Treasurer for refusing to produce the Deloitte report, a real controversy has arisen concerning the power of the Legislative Council to require production of the Deloitte report. The Treasurer refused production on the asserted basis that the Council had no power to require production. The Court's determination will answer the question at the core of the proceeding - whether or not the Treasurer can lawfully resist the production of the Deloitte report - and will thereby quell the controversy between the parties.

27 Insofar as the form of the proposed declarations creates difficulties because they make no reference to any element of the alleged controversy, Mr Barber's counsel told the Court that, if necessary, he would seek leave to amend the originating motion to include a declaration in the following form:

A declaration that the Legislative Council of the Parliament of Victoria has the power to order production of the review of the ticketing system undertaken by Deloitte.

28 Putting aside for the moment the precise form of relief that is sought, I consider that the proceeding faces a number of difficulties.

29 It is well settled that the judicial and legislative branches of government have reached an accord whereby the courts will not usually intrude into the affairs of the Houses of Parliament in matters of privilege. As Erskine May explains:

For some three and a half centuries, the boundary between the competence of the law courts and the jurisdiction of either House in matters of privilege has been disputed. A degree of comity has been achieved and some recognition of respective areas of jurisdiction has been arrived at pragmatically over generations through a series of cases ... The courts have recognised the need for an exclusive Parliamentary jurisdiction, as a necessary bulwark of the dignity and efficiency of either House. Neither House by itself maintains the earlier claim to supremacy over the courts of law enjoyed by the undivided High Court of Parliament of medieval England.[27]

30 The authorities upon which the defendant relies - Egan v Willis, Egan v Chadwick,[28] Halden v Marks,[29] and Bradlaugh v Gossett[30] - refer to the deference that the judicial branch of government has accorded to the legislative branch with respect to the latter's internal affairs. In Bradlaugh v Gossett, Lord Coleridge CJ expressed the nature of this deference in the following clear terms:

What is said or done within the walls of Parliament cannot be inquired into in a court of law ... The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.[31]

31 In Egan v Willis, Gaudron, Gummow and Hayne JJ said that there were 'some limits to the extent to which the courts will examine what occurred in the House'.[32] Having referred to the passage from the decision of Dixon CJ in Richards relied upon by Mr Barber, their Honours observed that for the courts to examine the content of a particular exercise of a valid privilege would be to 'trump the exclusive jurisdiction of the legislative body'.[33] For his part, McHugh J was emphatic that the court did not have jurisdiction to make a declaration about the validity of the resolution passed by the Legislative Council:

...the common law courts will not examine the administration of the law - including statute law - within the walls of Parliament when the matters involved relate only to the internal procedure of a House of Parliament. What is said or done within the walls of a parliamentary chamber cannot be examined in a court of law. That was accepted by all the judges in Stockdale. Coleridge J said 'that the House should have excusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules, or derogation from its dignity, stands upon the clearest grounds of necessity'. [34]

32 According to McHugh J, matters affecting the internal administration of the House of Commons were outside the jurisdiction of the common law courts,[35] and a declaration concerning the validity of a resolution of the Parliament was misconceived:

It is one thing for that Court [the Supreme Court of New South Wales], as an incident in determining whether the respondents have committed a trespass against the appellant, to determine whether the resolution was valid. It is another matter altogether to make a formal declaration which is binding on the parties for all purposes including their conduct in the House divorced from the exercise of any rights cognisable in a court of law. [36]

33 Mr Barber submits that, contrary to the defendant's submission, none of the authorities establish a rule that the courts may only determine the existence of a privilege as an incident of a controversy arising under general law and that the two authorities relied upon by the defendant to support its contention that a claim for a bare declaration about the existence of parliamentary privilege is ordinarily not justiciable - Bradlaugh v Gossett and Egan v Willis - do not support any such proposition. He argues that the facts in Bradlaugh v Gossett were quite different and that in Egan v Willis, the High Court explicitly expressed no concluded view on the question of whether an application for a bare declaration would be justiciable.[37] In neither case was the court asked to adjudicate the existence of a parliamentary privilege. Mr Barber contends that there is no Australian case in which a court has been required to determine the question arising in the present proceeding, namely, whether the Court can adjudicate upon the existence of a parliamentary privilege in the absence of a controversy arising under the general law.

34 I agree with Mr Barber that the questions of jurisdiction and justiciability raised by the defendant are complex and that the authorities referred to by the defendant do not provide a clear or complete answer to whether the Court can entertain the proceeding. I could not be satisfied that the proceeding had no real prospect of success, or that it disclosed no cause of action or constituted an abuse of process based simply on the principle of comity and deference, or on the proposition that the courts may only determine the existence of a privilege as an incident of a controversy arising under general law.

36 In my view, the principal difficulty faced by Mr Barber is that, on the facts presently before the Court, there appears to be no dispute between the Legislative Council and the Treasurer about whether the Treasurer was entitled to withhold the Deloitte report from the Council. The Legislative Council has passed a motion calling for the production of documents fitting the description of the Deloitte report; the Treasurer has responded to the Legislative Council by confirming the existence of the Deloitte report but asserting that on grounds of privilege,[38] he is not bound to produce it to the Council as requested; the Legislative Council has taken no action to require the Treasurer to substantiate the claim for privilege or to compel the production of the Deloitte report. It might be inferred that the Legislative Council has accepted the claim for privilege and agreed to let the matter lie.

37 This invites the question as to how Mr Barber, as a single member of the Legislative Council, can challenge the privilege that has been asserted by the Government in response to the call from the Council. Mr Barber submits that declaratory relief which operates to declare invalidity and to restrain the implementation of an invalid exercise of (public) power is available at the suit of a party with a sufficient interest[39] and that he has sufficient interest in the production of the Deloitte report to bring the proceeding. He points out the defendant has not challenged his standing to bring the proceeding.[40] However, where the House itself has not exercised powers to compel the production of a document, there must be a real question about the ability of an individual member to have the Court make declarations that would have the practical effect of securing the production of the document to the House. The principle that any person with a sufficient interest may approach the Court to restrain the invalid exercise of public power, if applied broadly and without regard to the special position of the Parliament, might arguably entitle any person with a special interest in the implementation of the myki system (such as myki's competitors or public transport user associations) to seek declarations of the kind sought by Mr Barber. This would clearly represent a significant incursion into the internal affairs of the Parliament.

38 Having regard to the constraints arising from the deference and comity accorded between the judicial and legislative branches of government, there is a good argument that, as a matter of principle, the Court ought not to adjudicate on questions of parliamentary privilege when the Parliament could have done so itself, but has chosen not to.

39 Although I have not formed a concluded view as to the outcome of the proceeding, I therefore see significant obstacles to Mr Barber obtaining the relief that he seeks.

40 In his written submissions, Mr Barber endeavoured to grapple with the issues of jurisdiction and justiciability identified by the defendant. However, the oral submissions made on his behalf were principally directed to the difficulties associated with successful applications for summary dismissal and with the high bar that has been set if a plaintiff is to be denied a full hearing of its claim, even under the Civil Procedure Act. According to Mr Barber, the Court could not be satisfied to the requisite standard that the proceeding would necessarily fail or that it had no real prospect of success. In this context, it was submitted that the proceeding was novel and of a kind that did not lend itself to an order for summary dismissal, be it under r 23.01 or pursuant to s 63 of the Civil Procedure Act. While the Court might ultimately determine that the principle of deference described in the case law supported the defendant's position, none of the authorities relied upon by the defendant were decided in a summary dismissal application and all required 'lengthy and carefully considered judgments in the usual way in which the judicial process operates.'[41]

41 More particularly, Senior Counsel for Mr Barber submitted that the defendant's submissions bore 'more resemblance to ones that might be made on a preliminary question of law'[42] and that while the defendant could have elected bring the matter on as a preliminary question, it had elected not do so.[43] Senior Counsel stressed that Mr Barber had 'come along today to meet a strike out application' and that he was not prepared to meet an application based on a preliminary question.[44] She submitted:

What is apparent from the Defendant's submissions is that this proceeding raises several important issues concerning jurisdiction and justiciability. What is also clear is that there is no easy answer to any of those issues. This proceeding involves the relationship between a House of Parliament and the Executive, but also the relationship between the Houses of Parliament and the courts. These are difficult areas to navigate, and the task of applying the case law to the facts of the instant proceeding is complex. The difficulty of that task is heightened by the fact that there are features of this proceeding (in particular the fact that bare declaratory relief is sought) that make it novel. For these reasons, it cannot be said that the Plaintiff's case has no real prospects of success.[45]

42 In substance, Mr Barber says that he came along to Court unprepared for full argument on the issues of jurisdiction and justiciability raised by the defendant because he was entitled to respond to the defendant's application by raising doubts about the correctness of the propositions on which the summary dismissal application was based, having regard to the high bar that the defendant was obliged to clear in order to succeed in having the proceeding summarily dismissed.

43 On one view, Mr Barber should have come to Court prepared for full argument on the issues of jurisdiction and justiciability raised by the defendant. These are issues that Mr Barber will have to address and overcome in any event: his application for declaratory relief will not succeed unless the Court can be persuaded that his application for a declarations as to the powers and privileges of the Parliament is justiciable.

44 However, I have concluded that Mr Barber should have a full opportunity to make his case and, in particular, to respond comprehensively to the issues of jurisdiction and justiciability raised by the defendant. As Mr Barber submits, the proceeding raises novel and difficult questions. It is appropriate that these questions be re-visited at trial or on the hearing of a preliminary question, and for the Court to hear and consider full argument on them.

45 Accordingly, although Mr Barber's prospects of success appear to me to be poor based on the limited argument presented to date, I cannot be satisfied that the proceeding has 'no real prospect of success', let alone that it 'would necessarily fail'. Nor am I persuaded at this stage that the proceeding discloses no cause of action or constitutes an abuse of process. It is appropriate that the issues be fully ventilated. Given the complexity of the issues of jurisdiction and justiciability and the limited context in which they were argued, even if I were satisfied that the proceeding had no real prospect of success, it would not be in the interests of justice to dismiss the proceeding summarily.[46]

47 I will hear from the parties as to whether the proceeding should now move to trial or whether there should be a hearing of a preliminary question.

[1] Victoria, Parliamentary Debates, Legislative Council, 31 August 2011, 2865 (Gregory Barber).

[3] Mr Barber's solicitor also sought clarification that the report referred to in Mr Well's letter was the only document in the Government's possession which fell within the scope of the request.

[4] Affidavit of Gregory John Barber affirmed 16 March 2012, 3 [10].

[5] Matthews v SPI Electricity Pty Ltd (Ruling No 2) [2011] VSC 168, [16]; citing with approval Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118, 139 [53].

[6] [2011] VSC 168 ('Matthews').

[7] [2011] VSC 222 ('Ottedin').

[8] [2011] VSC 476 ('JBS').

[9] [2010] HCA 28; (2010) 241 CLR 118 ('Spencer').

[11] Matthews v SPI Electricity Pty Ltd (Ruling No 2) [2011] VSC 168, [18]; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222, [18].

[12] JBS Southern Australia Pty Ltd v Westcity Group Holdings Pty Ltd [2011] VSC 476, [39].

[13] Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222, [18].

[14] Ibid. Justice Croft in JBS also noted that s 63 is an enabling provision that must be read subject to the discretion of the Court under s 64, which allows a matter to proceed to trial.

[15] Matthews v SPI Electricity Pty Ltd (Ruling No 2) [2011] VSC 168, [22].

[16] Referring to R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157, 162; Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 446 [27], 460 [66], 499 [147].

[17] Referring to Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 438-439, 462; Egan v Chadwick [1999] NSWCA 176; (1999) 46 NSWLR 563, 579.

[18] Referring to R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157, 162; Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 446, 460, 499.

[19] Referring to Bradlaugh v Gossett (1884) 12 QBD 271, 275, 278, 280-281; R v Chaytor; R v Morley; R v Devine [2010] EWCA Crim 371; [2011] 1 AC 684, 712 [63], [67].

[20] Referring to Bradlaugh v Gossett (1884) 12 QBD 271, 282.

[21] Referring to Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581-2.

[22] [1998] HCA 71; (1998) 195 CLR 424.

[23] Mr Egan was the Leader of the Government in the House, the Treasurer, the Minster for Energy, the Minister for State Development and the Minister Assisting the Premier.

[24] Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 438-9 [5].

[25] [1955] HCA 36; (1955) 92 CLR 157 ('Richards').

[27] Malcolm Jack (ed), Erskine May Parliamentary Practice (LexisNexis, 2011, 24th ed) 281.

[28] [1999] NSWCA 176; (1999) 46 NSWLR 563.

[29] (1995) 17 WAR 447.

[30] (1884) 12 QBD 271.

[32] Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 446 [25].

[38] I take the Treasurer's reference to the document having been considered by the Cabinet to involve the assertion of some kind of Cabinet or Crown privilege.

[39] Referring to Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146, 162 [47].

[40] Transcript of Proceedings, Barber v The State of Victoria (Supreme Court of Victoria, S CI 2012 1487, Emerton J, 14 August 2012) 50 ('Transcript').

[45] Plaintiff's Submissions dated 31 July 2012, [50].

[46] Civil Procedure Act 2010 (Vic) s 64.