Category Archives: s. 010

Stewart v Ronalds [2009] NSWCA 277 (4 September 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/277.html

CONSTITUTIONAL LAW – New South Wales Constitution – Executive branch –Ministers – Executive Council – withdrawal of commissions – responsible government– commissions at the Governor’s pleasure – Constitution Act 1902 (NSW) – s35C – s35E
ADMINISTRATIVE LAW – judicial review –advice of Premier to Lieutenant-Governor to withdraw commissions of Minister and Executive Council – investigation of alleged misconduct of Minister – Premier established procedure for independent investigation– whether procedure gave rise to obligation of procedural fairness – justiciability – whether political considerations – role of Courts – acts of Lieutenant-Governor not subject to judicial review – advice of Premier to withdraw commissions not subject to judicial review – Lieutenant-Governor had no obligation to afford procedural fairness – Premier had no obligation to afford procedure fairness – advice of Premier to Lieutenant Governor not void
TORT – duty of care – investigation of alleged misconduct – independent barrister retained by government as investigator and fact finder – report of investigation to inform a political decision of dismissal of a Minister – whether duty of care owed to person under investigation – novel category – salient features – coherence with other legal duties – coherence with other areas of law – interaction with law of defamation – no duty of care in the circumstances
ADMINISTRATIVE LAW – judicial review – natural justice – procedural fairness – source of obligation of procedural fairness – reputation interest attracting protection of rules of natural justice – independent barrister retained by government as investigator and fact finder – report of investigation to inform a political decision of dismissal of a Minister – reputation interest attracting protection of rules of natural justice – question of whether obligation in this case not decided
PARLIAMENTARY PRIVILEGE – Bill of Rights 1688 (Imp) Article 9 – independent barrister retained by government as investigator and fact finder- report to be tabled in Parliament – question not decided
Constitution Act 1902 (NSW) – s35C – s35E
Bill of Rights 1688 (Imp) Article 9

Headnote

(Hodgson JA, Handley AJA)

xii) Parliamentary privilege protects from criticism in courts anything said or done in the course of Parliamentary proceedings, and arguably it does not protect things said or done outside such proceedings merely because they may by repeated in the course of Parliamentary proceedings: [119] Hamilton v Al Fayed [1999] EWCA Civ 1111; [1999] 3 All ER 317, Hamilton v Al Fayed [2000] UKHL 18; [2001] 1 AC 395 considered.

xiii) Whilst the preparation of a report directed by Parliament or a committee of Parliament, and produced to Parliament or a committee, would clearly be protected by the privilege, it is uncertain whether the privilege extends to an inquiry commissioned by the Executive, with the result to be reported to the Executive, and subsequently tabled in Parliament: [121].

Mees v Roads Corporation [2003] FCA 306 (8 April 2003)

[2003] FCA 306

ENVIRONMENT LAW – environment protection – approval of proposals by Minister for the Environment – referral of proposals for approval – requirement for provision of information – information to be provided includes whether action is related to other actions or proposals in the region – statutory offences of recklessly or negligently providing false or misleading information – power to restrain by injunction offence or contravention of Act – referral of proposal to build freeway – failure to refer to further freeway link that would result in complete ring road – whether secret plan to construct further link – whether construction of proposed freeway would lead inevitably to construction of link – whether failure to inform Minister for the Environment of strong chance of construction of future link misleading – context of statements about absence of proposal for link – whether in context silence can be misleading

PARLIAMENTARY PRIVILEGE – statements made to parliament – tender to court of Hansard records of statements – what constitutes breach of parliamentary privilege – application of State parliamentary privilege to Federal Court proceeding – whether court can receive evidence of statement – whether maker of statement can rely on its truth – whether other party can contest its truth – whether court can examine statement’s clarity

WORDS AND PHRASES – “actions or proposals”

Evidence Act 1995 (Cth) s 10(1)

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 (9 November 1978)

[1978] HCA 43

Criminal Law – Conspiracy to effect a purpose that is unlawful under a law of the Commonwealth – Proposed borrowing in contravention of Financial Agreement 1927 – The Constitution (63 & 64 Vict. c. 12), ss. 57, 61, 105A, 128 – Constitution Alteration (State Debts) 1928 – Financial Agreement 1927, cll. 3, 4, 6 – Financial Agreement Act 1928 (Cth), s. 2 – Financial Agreement Validation Act 1929 (Cth) – Financial Agreement Act 1944 (Cth), s. 3 – Crimes Act 1914 (Cth), s. 86.

Evidence – Subpoena duces tecum – Claim of privilege by Crown and individual litigant – Scope of privilege – Cabinet documents and similar papers – Prior publication by tabling in Parliament and otherwise – Disclosure of proceedings of Parliament without leave – Private prosecution – Difficulty of proving charges without production of documents – Form of affidavits claiming privilege – Balance of competing interests – Justices Act, 1902 (N.S.W.), s. 26.

Declaration – Jurisdiction in relation to criminal proceedings – Commital proceedings – Claim for declaration by informant – Exercise of discretion – Supreme Court Act, 1970 (N.S.W.), s. 75 – High Court Rules, O. 26, r. 19.