Rowley -v- Armstrong [2000] QSC 88 (12 April 2000)

Supreme Court of Queensland|2000-04-12|Before: Mr J, Sir J, Jones J

1. Before me are two applications. The first is by the defendant David Armstrong for the striking out of this action for the want of prosecution or, alternatively, on a ground of its being abuse of process. The second is by the plaintiff Michael Rowley for leave to take a fresh step in the action.

2. The plaintiff's action is for damages for defamation, which he alleges arose from two oral publications by the defendant - one to Senator O'Chee on or about 19 June, 1995 and the other to Mr. Trevor Perrott MLA on or about 13 June, 1995.

3. The words alleged to have been used made reference to the plaintiff being involved in illegal commercial fishing activities.

4. By his defence, delivered on 2 October 1995, the defendant denies having published the defamatory matter on either occasions. Alternatively, if found to have done so, the defendant claims the publication was in the public interest, made in respect of a subject matter to a person who had an interest in knowing the truth, and that the publication was fair comment.

5. By his reply, the plaintiff joined issue on these claims. The delivery of the reply on 25 October, 1995 was the last step in the action. As more than three years have now elapsed since that step it is necessary for the plaintiff to seek leave to proceed.

6. The alleged publication to these parliamentary representatives resulted in the topic being raised in the Senate of the Australian Parliament and in the Queensland Legislative Assembly. Some days prior to the publication in the Senate, Senator O'Chee had made comments during a radio broadcast in respect of this same topic. The plaintiff instituted proceedings against Senator O'Chee in respect of the radio broadcast claiming damages for defamation. Senator O'Chee also moved a reference to the Senate Privileges Committee to investigate whether the threat of those proceedings constituted a contempt of the Senate.

7. Meanwhile the defamation action proceeded to a point where there was an order made for the production by Senator O'Chee of documents in respect of which he claimed parliamentary privilege. He appealed to the Court of Appeal against that order and was successful in a particular respect. See Rowley v O'Chee [1].

8. From the decision of the Court of Appeal special leave to appeal in the High Court of Australia was sought but was refused. This decision was given on 20 November, 1998.

9. In the meantime the Privileges Committee of the Senate had considered the referral handing down its findings in September, 1997.

10. Some of the issues relevant to this action were agitated during the course of the appeal in the O'Chee case. Waiting for the outcome of the appellate process was one of the reasons given for the lack of progress in this action. The plaintiff's solicitors had appraised the defendant's solicitors of their intention to await the outcome of the application for special leave to the High Court.

11. Between the High Court decision on 20 November, 1998 and the filing of this application on 10 June, 1999 most of the delay resulted from the illness of counsel who had been retained for the plaintiff. This illness delayed plaintiff's counsel advising on the further interlocutory steps to be taken. The nature of his illness and the frequency of requests by the plaintiff for him to deliver his advice has been set out in the affidavit of the plaintiff's solicitor Mr. Bottoms. This shows that the first request of plaintiff's counsel was made on 1 December, 1998 and thereafter five requests were made before the receipt of counsel's opinion on 2 March, 1999. This explanation of delay for this period is not in any way challenged by the defendant.

12. The application for striking out for the want of prosecution is made pursuant to R.280 of the Uniform Civil Procedure Rules ("UCPR") and the plaintiff's application seeking leave is made pursuant to R.389. As the relevant considerations are basically the same for each application it is most convenient to determine the outcome of both by reference to the plaintiff's application seeking leave to proceed. McPherson JA in Cooper v Hopgood & Ganim [2] noted the effect of O.90 R.9 of the Rules of the Supreme Court, the precursor to R.389(2) of the UCPR in the following terms:-

"O.90 R.9 serves to prevent a step from being taken without an order of the Court or the Judge when 3 years have elapsed from the time when the last proceeding was taken in an action. It is a rule peculiar to Queensland, although, as can be seen from William Crosby Co Pty Ltd v Commonwealth it has or had an analogue in the High Court Rules. It operates without the need for any affirmative step to be taken to have the action dismissed. Having operated in that way the action becomes subject to what is, in effect, an automatic stay unless on application under the rule leave is granted to proceed with the action. If leave is not sought and granted, the action may be struck out in reliance on other provisions in the rules such as O.39 r.15, or O.39 r.30A(8), or, as in this case, O.31 r.4; or under the Court's inherent power to dismiss for want of prosecution. Even without applying to have it dismissed, the action is simply left to expire of its own inanition." [3]

"(2) If no step has been taken in the proceeding before (3) [4] years from the time the last step was taken, a new step may not be taken without the order of the Court, which may be made either with or without notice."

14 The resolution of each of the applications requires the exercise of my discretion which necessarily takes into account all the circumstances of the case, which in this case also includes the fact that the limitation period has not yet expired. However a number of factors which commonly arise in applications such as this were identified by McPherson JA in Cooper's case (supra). He said at p.14:-

"Birkett v James suggests only some of the factors relevant in exercising the discretion, which include matters such as the duration of the time lapse involved; the cogency of any explanation for delay; the probable impact of procrastination on fading recollection; the death or disappearance of critical witnesses or records; costs already or likely in the future to be expended or thrown away; the apparent prospects of success or otherwise at a trial of the action; and the progressively growing problem of effectively hearing and determining questions of fact arising out of events that have taken place many years before. The list is not, and is not intended to be, exhaustive; and it takes no account of another factor that is often likely to be material, which is that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated."

15 In this case the delay, although in excess of three years, is not particularly prejudicial in circumstances where the alleged defamatory matter has been recorded and the nature of the defence depends on circumstances and status of the parties in respect of which there appears to be little conflict. I am satisfied that an explanation for the delay has been given which in one respect was occasioned by an interest in saving costs of these proceedings, had a particular outcome resulted from the appeals in the case of Rowley v O'Chee.

16 The defendant relies particularly on the fact that his career in the navy and particularly his prospects of promotion may be jeopardised by the existence of these proceedings. That assertion has been discounted by the information contained in the affidavit of Mr. Bottoms sworn on 19 July, 1999 exhibiting a letter from the Defence Personnel Executive dated the same date.

17 Considering all these matters it is my view that there has been no want of prosecution of the action such as to give rise to prejudice to the defendant.

18 It remains now to consider the second ground of the application to strike out the action, namely that the action itself is an abuse of process.

19 The basis of this argument is that the communication between the defendant and the parliamentary representatives is protected by parliamentary privilege. It was further argued that the pursuit of the action would amount to a contempt of the Senate. The defendant relied upon the provisions of s.16 of the Parliamentary Privileges Act ("the Act"). Subsections 2 and 3 relevantly provide as follows:-

(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;

(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

20 On behalf of the plaintiff it was conceded that a claim of qualified privilege was available to the defendant but not a claim of parliamentary privilege. It was argued that the issue turns on whether the act extended the general scope of parliamentary privilege and what is the fair construction of the position in particular with respect to the terms proceeding in Parliament.

21 The process of reasoning relied upon by the defendant is that the provision of information to a person in his or her capacity as a parliamentary representative for the purpose of use in parliamentary proceedings extends to that communication the protection of parliamentary privilege. The defendant also relies upon the fact that the Committee of the Senate has already found that a contempt was committed by the commencement of this action and further, on the Court's reluctance to interfere with the activities of the parliamentary and executive areas of governments.

22 This latter point was considered in Criminal Justice Commission v Nationwide News Pty Ltd [5] where Davies JA at p.460 said:-

"If it were necessary to decide this question, and I do not think it is, I would prefer to say that a court will endeavour wherever possible not to intervene in the legislative process, its reluctance stemming from a mutual respect which each branch of government should afford to the performance of its functions by the other. This view accords with what appears to be a reciprocal reluctance of Parliament to intervene in the judicial process... It is consistent with a similar refusal by Courts to intervene in the domestic events of Parliament to enforce a general law of prohibition against an act which Parliament has permitted within its walls: R v Graham-Campbell; ex parte Herbert (1935) 1 KB 594. One could not imagine the same result in that case if Parliament had permitted the sale of prohibited drugs.

Be this as it may, there is basis in law or logic for extending the restraint (or lack of jurisdiction) beyond inference with the conduct by Parliament of its own affairs." [6]

23 The question of the scope of Parliamentary privilege and the effect of the statutory provisions of the Parliamentary Privileges Act (Cwth) and Parliamentary Papers Act (Qld) has been examined in recent decisions of the Court of Appeal in Laurance v Katter [7] and Rowley v O'Chee [8] it is not necessary to re-canvas the issues decided in each of those cases.

24 The position was summed up by Popplewell J in Rost v Edwards [9] where at p.478 he said:-

"There are clearly cases where parliament is to be the sole judge of its affairs. Equally there are clear cases where the Courts are to have exclusive jurisdiction. In a case which may be described as a grey area, a Court, while giving full attention to the necessity for comment between Courts and parliament, should not be astute to find a reason for ousting the jurisdiction of the Court and for limiting or even defeating a proper claim by a party to litigation before it. If parliament wishes to cover a particular area with privilege it has the ability to do so by passing an Act of Parliament giving itself the right to exclusive jurisdiction. Ousting the jurisdiction of the Court has always been regarded as requiring the clearest possible words. Nothing in the authorities, as I have indicated, in any way covers the instant situation. It is true that the Courts over the years enlarge the definition of "proceedings" from the formal speeches in the House to other matters, as appears from the various authorities to which I have been referred.

But... there are plenty of areas which are not covered by "proceedings in parliament". It is clearly not possible to arrive at an exhaustive definition."

25 The view that I take of the present proceedings is that the defendant's act of communicating with the Senator was not "a parliamentary proceeding" as that term is contemplated by the statute and nor do I accept as was suggested by counsel for the applicant that parliamentary privilege extends to protect an informant as it does to the parliamentary representative.

26 The starting point is Article 9 of the Bill of Rights which provides:-

"That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament."

27 The rationale, and the scope, of the protection afforded by this provision has been considered in a number of cases in the United Kingdom [10]. These cases and their findings were further considered by the Court of Appeal of the United Kingdom in Hamilton v Al Fayed [11] where it came to the following conclusion:-

"... The reach of Article 9 goes only to prohibit (a) the attachment by the courts of any form of legal penalty to a Member of Parliament (or, no doubt, any person taking part in proceedings in Parliament) or anything said in Parliament, and (b) direct criticism by the courts of anything said or done in the course of parliamentary proceedings."

28 Sir James Killen, junior counsel on behalf of the plaintiff, asserts that this rule does not protect an informant to a member of parliament. He referred to a passage from Erskine May's "Privileges, Proceedings and Usage of Parliament (21 Ed)" at p.133 as follows:-

"Although both houses extended their protection to witnesses and others who solicitor business in parliament, no such protection is afforded to informants, including constituents of members of the House of Commons who voluntarily and in their personal capacity provide information to members. The question whether such information is subsequently used in proceedings in parliament being immaterial. But while it appears unlikely that any question of an actual or constructive breach of parliamentary privilege could rise in these cases, the special position of a person providing information to a member for the exercise or his parliamentary duties, has been regarded by the Courts as enjoying qualified privilege of law."

29 In Fleming "Law of Torts" (7 Ed) the following passages appears:-

"[A]bsolute immunity is but rarely granted, and only as an aid to the efficient functioning of our governmental institutions: legislative, executive and judicial. Although prevailing even in the teeth of malice and abuse, it is of course not accorded for the sake of shielding mischief-makers who have no claim whatever to the law's sympathy. Rather, so far reaching an immunity can be justified only to protect certain highly placed persons from the harassment of having to meet unjustified charges of malice or abuse (before somewhat unpredictable juries) and to remove the dampening effect such a spectre would inevitably have on the fearless discharge of their official functions."[12]

30 The point of protection for an informant was considered by the Supreme Court of New South Wales in R v Grassby [13] the case in which the defendant is alleged to have supplied a 3 ½ page defamatory document to a state member of Parliament with a request that the document be read into the Parliamentary Hansard.

31 Dealing with the question of whether parliamentary privilege protected such publication Allen J said at p.428:-

"No authority has been cited in support of that proposition which, it is to be noted, is not that the occasion was one of qualified privilege defeasible by malice, but one of absolute privilege. I accept that in the law of defamation the categories of absolute privilege are not necessarily closed any more than are the categories of negligence in the general law of tort. There is no warrant, however, for the creation of the new category of absolute privilege now postulated. To the extent that privilege is appropriate the relevant privilege is qualified privilege - not absolute privilege."

"Thus it is appropriate that a parliamentarian has absolute immunity in respect of what he does in the exercise of his duties and the course of proceedings in the house, there is no warrant to give such an absolute immunity to any person who seeks to persuade him to say something in the house, to the extent that immunity for such person is appropriate and recognised by the law, it is one of qualified privilege. That is privilege defeasible by malice."[14]

"Where the occasion is one of qualified privilege the informant has the right to give the information - no matter how defamatory it may be and notwithstanding that it may turn out to have been quite wrong. Just as those defamed have no redress in respect of defamatory imputations made under absolute privilege they have no redress in respect of publications made under qualified privilege with but one difference namely that qualified privilege is defeated by malice - that is that the dominant motive of the person publishing the defamatory matter was to harm the person defamed or he published the matter for some purpose other than that for which the law gives the protection of privilege. The onus of proving absence of malice does not lie upon the person who makes the publication. It lies upon the person who makes the assertion of malice. The protection afforded by qualified privilege is a high measure of protection."

33 In Rowley v O'Chee (supra) McPherson JA dealt with the very issue at p.224 as follows:-

"In correspondence with the Committee of Privileges and the president of the Senate, which forms part of the material before us, Senator O'Chee claimed that threats of proceedings being taken against his informants had the effect of discouraging them from providing further information about Mr. Rowley's activities, and so of restricting the Senator's ability to pursue the subject in the House. The material is not sworn to, but it was not the subject of objection below, and it conforms with what one would expect in those circumstances. Senator O'Chee could no doubt have avoided some, although perhaps not all, of these consequences by confining his remarks to Parliament and refraining from discussing the subject on public radio. Then Mr. Rowley could not have sued him for defamation. But the privilege he claims belongs not to his informants, nor even solely to the Senator himself, but to Parliament: see Sankey v Whitlam [1978] HCA 43; (1978) 142 C.L.R. 1, 36-37. If it extends to the matters for which it is claimed here, it may be doubted whether an individual member of the House has authority to waive it unilaterally. The privilege under s.16(2) attaches when, but only when, a member of Parliament does some act with respect to documents for purposes of, or incidental to, the transacting of House business."

34 It follows clearly enough from these references that an informant in making a communication to a parliamentary representative is not regarded as participating in `proceedings in Parliament' and therefore the provisions of the Parliamentary Privileges Act do not apply.

35 The fact that the Senate Committee has ruled upon the question raised by Senator O'Chee does not in anyway affect the rights of the plaintiff in this instance to pursue his claim and for the Court to determine the question of liability in circumstances of any claim of privilege which the defendant is entitled to raise.

36 In short, I determine that there is no abuse of process in the plaintiff maintaining these proceedings.

37 Consequently, I dismiss the defendant's application to strike out the action.

38 I grant to the plaintiff leave to proceed with the action.

39 I will hear further submissions on the question of costs.

[2] Unreported decision of the Court of Appeal of Queensland - 2 June, 1998 - APP No.8424/97

[4] Pursuant to sub-rule (4) until 30 January 2000

[10] Prebble v Television New Zealand (1995) 1 AC 321 Pepper v Hart [1992] UKHL 3; (1993) AC 593; British Railways Board v Pickin [1974] UKHL 1; (1974) AC 765.

[11] Court of Appeal unreported Case No.QBNN 98/149

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