Stewart v Ronalds & Anor

CATCHWORDS : CONSTITUTIONAL LAW - Negligence - Questions for separate determination pursuant to rule 28.2 of the Uniform Civil Procedure Rules - Removal of matter to Court of Appeal pursuant to rule 1.21 of the Uniform Civil Procedure Rules

Civil Procedure Act 2005 LEGISLATION CITED : Constitution Act 1902 Uniform Civil Procedure Rules

Baxter v Obacelo Pty Ltd [2000] NSWCA 69; 48 NSWLR 522 Cross v Barnes Towing and Salvage (Qld) Pty Ltd [2005] NSWCA 273; 65 NSWLR 331 CASES CITED : General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Stewart v Ronalds & Ors (Supreme Court of New South Wales, Adams J, 9 April 2009, unreported) Sullivan v Moody [2001] HCA 59; 207 CLR 562

Anthony Paul Stewart (Plaintiff) PARTIES : Chris Ronalds (1st Defendant) State of NSW (2nd Defendant)

COUNSEL : J Kelly SC/N Furlan (Plaintiff) B Walker SC/ J Kirk (Defendants)

SOLICITORS : Scully Legal (Plaintiff) Crown Solicitor's Office (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/30026 ANTHONY PAUL STEWART v CHRIS RONALDS & ANOR

JUDGMENT 1 HER HONOUR: By notice of motion filed on 14 May 2009 the defendants seek the following orders: (a) that the Court states three questions for separate determination pursuant to rule 28.2 of the Uniform Civil Procedure Rules ("the Rules") and

(b) that the proceedings be referred to the Court of Appeal pursuant to rule 1.21 of the Rules. 2 The questions for separate determination are as follows: (i) Are the plaintiff's claims in paragraphs 16 to 19 of the statement of claim justiciable?

(ii) If so, was the plaintiff owed a duty of natural justice, as alleged in paragraphs 16 and 19 of the statement of claim?

(iii) Was a duty of care at common law owed by the first defendant to the plaintiff as alleged in paragraph 12 of the statement of claim? 3 The plaintiff supports the defendants' application, subject to the inclusion of what is submitted to be a related question raised by the filed defence and which is also said to be appropriate for separate determination by the Court of Appeal in the context of the questions raised by the defendants and of the proceedings generally. 4 That question is as follows: Do the plaintiff's claims in paragraphs 13 and 16 impermissibly seek to call into question the contents of the report of the first defendant in a manner inconsistent with parliamentary privilege and Article 9 of the Bill of Rights 1688? 5 Although the plaintiff's support for the defendants' application is expressed in written submissions to be subject to inclusion of this question as a question for separate determination, I do not understand the plaintiff's position to be that the orders sought by the defendants are opposed unless the referral of the question raised by the defence is included. 6 The substantive proceedings concern the circumstances in which the plaintiff's commissions as a Minister in the New South Wales government and a member of the Executive Council were withdrawn with immediate effect on 11 November 2008 by the Lieutenant-Governor of New South Wales, the Honourable James Spigelman AC, the Premier having informed the Lieutenant-Governor by letter of the same date that he no longer had confidence in the plaintiff as a Minister having regard to allegations of impropriety that were dealt with in a report the first defendant prepared after undertaking an investigation at the request of the Department of Premier and Cabinet. On 11 November 2008 the Premier also caused a copy of the report to be tabled in the Legislative Assembly of the Parliament of New South Wales.

7 The relief sought in a statement of claim filed 25 November 2008 includes, inter alia, a declaration that the withdrawal of the plaintiff's commissions are void and of no legal effect by reason of the plaintiff being denied natural justice in the findings made by the first defendant in the aforementioned report. The plaintiff also seeks ordinary and exemplary damages for breach of the claimed common law duty of care said to be owed by the first defendant. 8 What the plaintiff seeks to challenge by bringing the proceedings is a decision which impacts directly on the composition of the Ministry and the Executive Council of the State of New South Wales, a decision which arises in the context of the Constitution Act 1902 (NSW). It is the primary position of the defendants that since Ministers and Members off the Executive Council serve at the Governor's pleasure, with the composition of each body decided on the advice of the Premier, the question raised by the proceedings is political in nature and ought not be resolved by judicial process. 9 Before moving to consider whether in conformity with established principles I am persuaded that it is an appropriate exercise of discretion that I make the orders that are sought, it is important that I acknowledge that on 8 April 2009 the plaintiff moved the Court for the separate determination of questions in substantially the same form as the questions the subject of the proceedings before me and for their removal to the Court of Appeal. On that occasion both defendants supported the plaintiff's application. 10 The matter came before Justice Adams sitting as the Duty Judge. I have been provided with access to a transcript of the oral argument, together with his Honour's brief reasons dismissing the plaintiff's motion (Anthony Paul Stewart v Chris Ronalds & Ors, Supreme Court of New South Wales, 9 April 2009, unreported). All parties in the proceedings before me accepted that it is appropriate that I exercise caution before acceding to an application for similar, if not identical relief, albeit made by a different party to the proceedings. 11 The transcript reveals that whilst his Honour regarded it as understandable that the parties were eager to have the matter removed to the Court of Appeal, he expressed a concern as to the adequacy of the pleadings. It was the agreed position before me that although his Honour was referred to the pleadings in the course of oral submissions, the plaintiff did not rely upon any evidence from a solicitor involved in the litigation identifying the legal and factual issues raised by the proceedings, nor any evidence as to the likely effect and efficiency of a determination of separate questions by the Court of Appeal. In addition, neither of the parties referred his Honour to any of the authorities bearing on either question. I am tempted to the view that the parties may have regarded the application as a fait accompli given that the orders were sought, notionally at least, by consent. 12 As I read the transcript of the oral argument, it appeared to be of crucial significance to his Honour's decision that the plaintiff had failed to identify a feature of the litigation which would justify depriving the Court of Appeal of the assistance of a judgment at first instance where, as his Honour observed, the mere conduct of a debate at that stage often clarifies matters and defines issues thereby permitting the Court of Appeal to give their consideration to what his Honour described as "a distilled and focused factual and legal matrix". 13 In his published reasons his Honour was also satisfied that if the relief sought by the plaintiff is thought to be unavailable for legal reasons there are adequate procedures permitting that question to be decided without an order that the issues be tried separately or removed to the Court of Appeal. Although his Honour does not specify the alternative procedures, I proceed on the assumption that he was referring to an application for summary judgment as provided for in Part 13 of the Rules in accordance with the test provided for in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

14 In the comprehensive written submissions relied upon by the defendants in the proceedings before me, submissions which were developed in oral argument by Mr Walker SC, I am satisfied that his Honour's legitimate concerns have been addressed. In so far as concerns the alternate procedures referred to by his Honour, the judgment of the Court of Appeal in Baxter v Obacelo Pty Ltd [2000] NSWCA 69; 48 NSWLR 522 is instructive. In that case an issue had arisen on an interlocutory basis as to whether or not agreement by the plaintiff to a consent judgment with one tortfeasor would prevent recovery against another tortfeasor. The application had been dealt with by a judge at first instance by application of General Steel principles. At [22]-[23] Giles JA (with whom Mason P and Sheller JA agreed) stated the following: [22] It is unfortunate that recourse to Pt31 r2 was not earlier considered. In the circumstances of this case, in which the relevant facts were not in dispute and the claimant's submissions as to their consequences in the proceedings involved arguments of some complexity, such a course is preferable to determination of an application for summary dismissal. In my opinion it is in the interests of effective administration of justice between the claimant and the opponents, as well as a proper use of the Court's time, that there should be separate decision of the question I have identified. [23] This Court may exercise the power conferred by Pt31 r2 (see s44 of the Supreme Court Act 1970). I consider that it should do so notwithstanding the stated position of the claimant's counsel. Extensive argument may be entertained to demonstrate that a plaintiff's claim is obviously untenable (see General Steel Industries Inc v Commissioner for Railways at 130), but even brief appreciation of the arguments in this case suggests that it will be difficult, if impossible, to rule that the claimant's submissions are manifestly correct. However, if there be a definitive ruling upholding those submissions, albeit not as manifestly correct, the proceedings against the claimant will be effectively at an end; if there be a definitive ruling rejecting the submissions, the parties will be able to evaluate their prospects in the proceedings accordingly. The application for leave to appeal will become redundant, and should be dismissed, but the claimant's submissions in that application and on the substance of the appeal will be fully considered in the decision of the separate question.

15 As the extract from the judgment in Baxter makes clear, in circumstances where, as here, a definitive ruling on discrete questions identified by the parties will efficiently avoid a trial on some, if not all, of the issues raised in the proceedings, thereby disposing of them to that extent, I am satisfied that the appropriate procedure is that provided for in rule 28.2 of the Rules. 16 In addition, I am satisfied that the questions as framed are suitable for separate determination. They each raise significant and difficult questions of law which depend for their resolution upon facts which have been agreed by the parties in a comprehensive Statement of Agreed Facts to which are annexed a discrete but significant set of primary documents. I note that it is the intention of the parties to add a further agreed fact or facts to the filed Statement of Agreed Facts to facilitate disposition of the question relating to parliamentary privilege that the plaintiff urges me to include as a question for separate determination along with the three questions identified by the defendants. Mr Kelly SC submitted that the question whether it is permissible to make an allegation of breach of duty in a manner inconsistent with parliamentary privilege is logically connected with the question whether the plaintiff was owed a duty of care by the first defendant or not, and for that reason it is desirable that the Court called upon to consider the questions of law which bear upon the justiciability of the plaintiff's claim consider all dimensions to the questions of constitutional law which arise in the proceedings. 17 I am also satisfied that the approach urged upon me is consistent with the objectives provided for in sections 56 - 58 of the Civil Procedure Act 2005, in that a trial might be avoided which would otherwise raise complex and controversial factual issues, take significant time, potentially raise procedural controversies impacting adversely on the resources of parties and the Court, and extend the uncertainty created by the litigation contrary to the public interest in stable governance. I note that a category of discovery relating to communications between the Premier and the Lieutenant-Governor, which, it is anticipated, will give rise to an interlocutory dispute of some complexity, will also be avoided in the short term and may be avoided altogether. The parties anticipate that argument directed to resolution of the separate questions will not extend beyond a sitting day. However optimistic such as estimate may be, I am confident that considerable court time will be saved by the approach contended for by the parties. 18 The question that remains is whether the separate determination of the four questions should be referred to the Court of Appeal or dealt with by a judge at first instance. 19 Despite the fact that Rule 1.21 confers power to order that the proceedings be removed into the Court of Appeal if an order is made under Rule 28.2 for the separate determination of a question of law without the need for the Court to be satisfied that special circumstances exist rendering it desirable to make an order for their removal, the defendants concede the need for me to be satisfied that that there at least sufficiently unusual circumstances to warrant their removal. The mere fact that the parties are likely to appeal any determination of the separate questions by a single judge is not in my view persuasive. Neither does the fact that the challenge involves a decision by Lieutenant-Governor Spigelman mandate that the questions be determined by the Court of Appeal and not a judge at first instance. What I do find persuasive however, is that I am informed and accept that the first and second questions raised in this case are not directly governed by any existing authority. Accordingly, the Court of Appeal will be in a position to provide an authoritative resolution of issues of constitutional significance to this State in a manner that is not susceptible to a decision by a single judge of this Court. This approach is not without precedent (see Cross v Barnes Towing and Salvage (Qld) Pty Ltd [2005] NSWCA 273; 65 NSWLR 331). I am also conscious that the third of the defendants' questions concerning whether the first defendant owed the plaintiff a duty of care, raises issues of incompatibility and incoherence of the kind referred to by the High Court in Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [53]-[62]. Orders

Pursuant to rule 28.2 of the Uniform Civil Procedure Rules I order that the following questions be heard and determined separately and before any other question in the proceedings: (i) Are the plaintiff's claims in paragraphs 16 to 19 of the statement of claim justiciable?

(ii) If so, was the plaintiff owed a duty of natural justice, as alleged in paragraphs 16 and 19 of the statement of claim?

(iii) Was a duty of care at common law owed by the first defendant to the plaintiff as alleged in paragraph 12 of the statement of claim? (iv) Do the plaintiff's claims in paragraphs 13 and 16 of the statement of claim impermissibly seek to call into question the contents of the report of the first defendant in a manner inconsistent with parliamentary privilege and Article 9 of the Bill of Rights 1688?

Pursuant to rule 1.21 of the Uniform Civil Procedure Rules I order that the proceedings be removed into the Court of Appeal.

I order that the orders made by Registrar Bradford on 14 May 2009 in accordance with orders 1 to 4 of the plaintiff's proposed short minutes of order of that day be vacated.

I order that the directions hearing in this matter listed in the Administrative Law List of the Common Law Division for 1 July 2009 be vacated.

I order that the costs of the motion be costs in the cause.

I grant leave for these orders to be entered forthwith. **********

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