Spanswick v The Honourable Robert John Carr, MP

CITATION : Spanswick v The Honourable Robert John Carr, MP [2003] NSWSC 393 HEARING DATE(S) : 01/05/03 JUDGMENT DATE : 13 May 2003

JUDGMENT OF : Shaw J DECISION : Referred to Duty Judge List on Monday 19 May 2003

CATCHWORDS : Pleadings - whether summons should be stayed or dismissed - declaratory orders Crimes Act 1914 (Cth); LEGISLATION CITED : Customs Act 1901 (Cth); Drug Summit Legisative Response Act 1999 (NSW) Judiciary Act 1903 (Cth); Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; Eastern Petroleum Australia Ltd v Horseshoe Lights Gold Pty Ltd (1985) 9 ACLR 980; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Gouriet v Union of Post Office Workers [1978] AC 435; Hospitals Contribution Fund of Australia Ltd v Hunt (1982) 44 ALR 365; CASES CITED : Imperial Tobacco Limited v Attorney General [1981] AC 718; Kings Cross Chamber of Commerce and Tourism Inc v Uniting Church of Australia Property Trust (NSW) and Ors (2001) 160 FLR 300; Onus v Alcoa of Australia Limited (1981) 149 CLR 27 R v Courtney-Smith (1990) 48 A Crim R 49; R v Ludeke and Ors; Ex parte The Customs Officers' Association of Australia Fourth Division (1985) 155 CLR 513; Re Polites; Ex parte Hoyts Corporation Pty Limited (1991) 173 CLR 78; Stockport District Waterworks Co v The Mayor and Corporation of Manchester (1863) 7 LT 545; PARTIES : Robert G Spanswick - Plaintiff The Honourable Robert John Carr, MP - Defendant FILE NUMBER(S) : SC 10783/03 R Spanswick - Plaintiff COUNSEL : P Strickland - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10783 of 2003 Robert G Spanswick (Plaintiff)

JUDGMENT 1 Shaw J: By notice of motion filed on 11 April 2003, the defendant, the Premier of the State of New South Wales, seeks orders to dismiss or stay the summons of the plaintiff, Mr Spanswick, filed on 31 March 2003. 2 Mr Spanswick appeared in person to oppose the motion and support his right to have the summons proceed to a hearing.

The summons 3 The summons claims the following relief: 1. A declaration that the defendant is guilty of acting with a seditious intent and being knowingly concerned in the undertaking of a seditious enterprise. 2. A declaration that the defendant is guilty of acting improperly and in ultra vires [sic] having created the Drug Summit Legislative Response Bill 1999 and passing it into law causing state officers and others to break federal legislative arrangements. 3. A declaration that the defendant is guilty of conspiring with the Governor of New South Wales, the Honourable Gordon J. Samuels, to carry out a seditious enterprise. 4. A declaration that the defendant is guilty of committing continuous, sustained and repeated offences against the Federal Customs Act 1901 - No 6 of 1901 as amended. 5. Orders that the defendant be punished for these offences. 6. Such further orders as the Court may deem fit. 4 The summons then contains the following: STATEMENT OF CHARGES 1. It is alleged that the defendant is guilty of an offence under the Federal Crimes Act 1914 - No 12 of 1914 as amended, to wit: Section 24C (a) in that he engaged in a seditious enterprise. 2. It is alleged that the defendant is guilty of an offence under the Federal Crimes Act 1914 - No 12 of 1994 as amended, to wit: Section 24C (b) in that he conspired with another person to carry out a seditious enterprise. 3. It is alleged that the defendant is guilty of an offence under the Federal Crimes Act 1914 - No 12 of 1994 as amended, to wit: Section 24C (c) in that he advised the carrying out of a seditious enterprise. 4. It is alleged that the defendant I, or about, the period of time seventh May 2001 to seventh November 2001, is guilty of continuous, sustained and repeated offences against The Federal Customs Act 1901 - No 6 of 1901 as amended to wit: Section 33 in that he moved, altered or interfered with goods subject to the control of the Customs without lawful authority of the said Act through section 236 of the Act insofar as whoever aides abets counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly. 5. It is alleged that while the defendant was oversighting and assisting in the construction of the Drug Summit Legislative Response Bill 1999 is guilty of an offence against The Federal Customs Act 1901 - No 6 of 1901 as amended to wit; Section 231 (1) (c) in that all persons to the number of 2 or more assembled for the purposes of preventing the seizure of any prohibited imports shall be guilty of an offence punishable on conviction. 6. It is alleged that the defendant is guilty of continuous, sustained and repeated offences against the Federal Customs Act 1901 - No 6 of 1901 as amended to wit; Section 232 (1) in that Whoever: being an Officer of Customs or Police makes any agreement not to seize goods liable to forfeiture shall be guilty of an indictable offence and shall be liable to imprisonment with or without hard labour for any term not exceeding 5 years; through section 236 of the Act insofar as whoever aides abets counsels or procures or by act or omission is any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly. 7. It is alleged that the defendant is guilty of continuous, sustained and repeated offences against the Federal Customs Act 1901 - No 6 of 1901 as amended to wit; Section 232 A (a), (b) in that whoever before goods have been seized destroys any goods to prevent the seizure thereof or the securing of the same or the proof of any offence or obstructs or endeavours to intimidate any officer, or any person assisting any officer, in the execution of his duty' shall be guilty of an offence and shall be liable, upon summary conviction, to a fine not exceeding $500 or to imprisonment for any period not exceeding 2 years; through section 236 of the Act insofar as whoever aides abets counsels or procures or by act or omission is any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly. 8. It is alleged that the defendant is guilty of continuous, sustained and repeated offences against the Federal Customs Act 1901 - No 6 of 1901 as amended to wit; Section 233B (1)(c), (caa), (ca) in that any person who without reasonable excuse (proof thereof shall lie upon him) has in his possession any prohibited imports or conveys, or attempts to convey any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act or without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which are reasonably suspected of having been imported into Australia in contravention of this Act; shall be guilty of an offence, through section 236 of the Act insofar as whoever aides abets counsels or procures or by act or omission is any way directly or indirectly concerned in the commission of any offence against this Act shall be deemed to have committed such offence and shall be punishable accordingly.

Basis of plaintiff's claims 5 There follows 'Particulars', which are perhaps better described as submissions in support of the summons, which include the following statements: 1. That the defendant The Honourable Robert John Carr M.P. with others was knowingly concerned in the oversight and construction of a state parliamentary bill being The Drug Summit Legislative Response Bill 1999. The bill subsequently became an Act number 67 of 1999 being passed 18-11-1999 and granted Royal Assent 30-11-1999. The Act's effect is to excite disaffection against the government of The Commonwealth insofar as it allows for the moving, altering and interfering with goods inside the Medically Supervised Injecting Centre to wit; heroin and cocaine, being the property of The (Federal) Crown under the control of The Customs without being authorised by The Customs in accordance with The Federal Customs Act. And further, but not limited to, the act [sic] also allows for the possession of Crown property to wit heroin and cocaine being prohibited imports contrary to and in breach of The Federal Customs Act together with federal government policies as they relate to international conventions to which Australia is a signatory and in particular the single convention on narcotics. In addition such is the Act's construction and application that it highlights an attempt to procure alterations, otherwise than by lawful means, of matters in the Commonwealth established by law of the Commonwealth. Finally that the actions of those involved within the procedures to execute the Royal Assent as it relates to the Act have brought the sovereign into contempt. 2. No duties as such can legally accrue upon the importation of prohibited goods, as they are not entitled to entry, and are ipso facto forfeited (to the Crown) by the mere act of their arrival in Australia and become the property of the Crown. 6 The particulars then note that the Minister for Justice and Customs has not issued a permit for the lawful possession of heroin nor the Federal Police to 'alter their operations' with respect to prohibited drugs. The summons then states: 5. In relation to the activities of the Medically Supervised Injecting Centre, amongst other things, there can be neither a trial nor a program without legal heroin. There is none in Australia and none can be imported or manufactured without Commonwealth license. A state law to the contrary would be constitutionally invalid. It is against Commonwealth policy to provide legal heroin even for medical purposes. There us no purpose in having a 'trial' of something which cannot be done.

7 The summons also makes reference to s 108 of the Constitution. Section 78B of the Judiciary Act 1903 (Cth) states: Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court (emphasis added). 8 Despite this provision, the plaintiff asserted at the hearing that he does not raise a constitutional issue by the summons and, upon that undertaking, I proceeded to hear the defendant's motion. 9 I note that the plaintiff has sought a declaration of Constitutional invalidity in the past and this was denied by Sully J in Kings Cross Chamber of Commerce and Tourism Inc v Uniting Church of Australia Property Trust (NSW) and Ors (2001) 160 FLR 300 at 332. Sully J also rejected at 330-332 submissions made to him by the plaintiff that are similar to those asserted in the summons.

Disqualification 10 Neither the plaintiff nor the defendant made a formal objection to me hearing this application. Counsel for the defendant, Mr Strickland, submitted that I consider whether an independent, fair-minded member of the public would have a reasonable apprehension that I could not bring an impartial mind to the issues. 11 Despite the lack of express or substantive objection to my determining this application, I have given anxious consideration to whether I should deal with the matter or whether the more appropriate course in the interests of justice is for it to be reallocated to another judge of this Court. 12 The defendant drew my attention to the fact that I participated, as a Member of the Legislative Council, in the enactment of an Act of the Parliament of New South Wales -an action that the plaintiff alleges was part of a seditious, or at least unlawful, conspiracy on the part of the defendant.

13 On one view, it could be said that, as a former Member of Parliament who participated in the relevant legislative process, I should not hear a matter as to whether any illegality or criminal offence arises from the enactment. 14 However, in Re Polites; Ex parte Hoyts Corporation Pty Limited (1991) 173 CLR 78 the High Court of Australia unanimously (Brennan, Gaudron and McHugh JJ) said of a Deputy Commissioner of the Australian Industrial Relations Commission: The prior involvement of a Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case…

15 In that case Deputy President Polites excused himself from further hearing a full bench matter relating to the terms and conditions of employment of employees of a former client of his, when a solicitor, prior to his elevation to the Commission. 16 The High Court issued a constitutional writ of mandamus to the Deputy Commissioner, ordering him to hear the matter, drawing a distinction between: first, proceedings in which a former adviser sits to interpret the law, and second, a determination of the lawfulness of previous advice that went beyond an exposition of the law. The Court said (at 88): Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal advisor should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal advisor should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal advisor were to sit in a proceeding in which the quality of his advise is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue.

The stay or dismissal application 17 It seems to me that there is some substance in the submission on behalf of the defendant in this case that the matter should be dismissed in limine.

18 The defendant's motion is to be determined according to law that is well established. Part 13 Rule 5(1) of the Supreme Court Rules 1970 (NSW) states: Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings. 19 Curial interpretations of this and similar provisions establishes that the court may order that proceedings be stayed or dismissed where the case for the plaintiff is futile (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125), though there is a proper distinction to be drawn between futility and novelty (Hospitals Contribution Fund of Australia Ltd v Hunt (1982) 44 ALR 365; Eastern Petroleum Australia Ltd v Horseshoe Lights Gold Pty Ltd (1985) 9 ACLR 980). 20 The Court is invested with power to adjudicate claims in the interests of justice. It is not a contradiction to say that on rare occasions the interests of justice require that certain claims not be heard. Such claims are termed 'frivolous', 'vexatious' or an 'abuse of the processes' of the Court not to demonstrate malice or fecklessness on the part of the plaintiffs that bring those claims but rather to determine that the claim has no legal merit.

21 The obligation of the court is to determine whether the facts pleaded give rise to a possible cause of action: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 90. 22 Clearly, there are reasons of policy for caution before allowing litigants to determine the liability of third parties through a declaratory order when there is no private injury inflicted or special interest vindicated: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; Gouriet v Union of Post Office Workers [1978] AC 435; Stockport District Waterworks Co v The Mayor and Corporation of Manchester (1863) 7 LT 545; cf Onus v Alcoa of Australia Limited (1981) 149 CLR 27 (see also P.W. Young, Declaratory Orders (2nd Ed) Butterworths, Sydney (1984) at 9-20). 23 Further, real questions of utility arise with respect to the relief sought. In Imperial Tobacco Limited v Attorney General [1981] AC 718 it was held that a declaration of criminal liability -or no criminal liability- could not bar subsequent criminal proceedings. The appropriate course of action for criminal liability to be determined is usually through a criminal charge. In my opinion, if a declaration will serve no purpose a court should be hesitant to grant such relief. 24 Also, the prayer that the defendant be 'punished accordingly' for those alleged breaches of federal law is inconsistent with seeking a 'bare' declaration that the defendant has breached that law. 25 Finally, I note that in the Kings Cross Chamber of Commerce case Sully J indicated (at 332): …it is sufficient to say that there is in hand no evidence whatsoever to suggest that it was ever within the contemplation of the Commonwealth Parliament that the Customs Act should in the requisite constitutional sense cover the field so as to be inconsistent with the proposed operation of a medically supervised injecting centre… 26 As I understand his Honour's reasons, the plaintiff's submission that all heroin is imported heroin in violation of the Customs Act must be rejected. In R v Courtney-Smith (1990) 48 A Crim R 49 the NSW Court of Criminal Appeal (Gleeson CJ, Kirby P and Lusher AJ) said at 64: Neither Commonwealth power not the language of the Customs Act will follow the goods once they are imported, without limitation as to time and place. A time will be reached when involvement with them in their passage through the Australian community cannot properly be categorised as knowing concern in their 'importation'. Likewise, innocent transportation of goods after their arrival, although amounting to concern in their importation in once sense, will not have the character of criminality to which the section is addressed. 27 That is, at some point imported goods lose the quality of being 'imported goods' and become, simply, 'goods'. At this point the obligation is upon the State law to also prohibit possession or supply of those prohibited drugs. The co-operation of State and Commonwealth jurisdictions on the issue of drug control is necessary in a Federation that divides power between its actors. 28 Despite these observations I am compelled to give proper consideration to the interests of procedural fairness.

Procedural fairness 29 The fact that I have had professional associations with plaintiff (see for example R v Ludeke and Ors; Ex parte The Customs Officers' Association of Australia Fourth Division (1985) 155 CLR 513) and, over a period of ten years, been a political colleague of the defendant would not ordinarily lead me to the conclusion that I should not determine this application allocated to me by the Court. However, and despite the lack of substantive objection, I am troubled by the fact that I did participate in the debates about the legislation that is at the core of the plaintiff's complaints. 30 It seems to me that in the interests of the appearance and actuality of the fair disposition of litigation in this Court I should not determine this application. I disqualify myself somewhat reluctantly because I do not think the incapacity in the Court as presently constituted to consider the issue objectively is a real question. Nevertheless, it seems to me that it would be preferable that the application made by the defendant for summary disposition of the matter be dealt with by another judge of this Court. 31 Accordingly, I propose to refer the matter to the list of the duty judge in the common law division on Monday 19 May 2003.

Last Modified: 05/14/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.