Stewart v Ronalds [2009] NSWCA 277

Reported Decision: 259 ALR 86[2009] ALMD 5739[2009] ALMD 5348232 FLR 331[2009] ALMD 5810[2009] ALMD 528176 NSWLR 99

New South Wales Court of Appeal

CITATION: Stewart v Ronalds [2009] NSWCA 277 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 August 2009

JUDGMENT DATE: 4 September 2009

JUDGMENT OF: Allsop P at 1; Hodgson JA at 80; Handley AJA at 129

1. As to the Lieutenant-Governor and Premier, answer questions 1 and 2 in the orders of 27 May 2009: "No". 2. As to question 3 in the said orders answer: "No". 3. Direct the parties to bring in short minutes of order disposing of the proceedings to the extent possible in the light of 1 and 2 above. 4. Stand the proceedings over to a date to be fixed for: DECISION: (a) any argument concerning the form of orders consequent on 1 and 2 above; (b) any argument as to whether or not Ms Sanger is either a necessary or proper party; (c) any argument as to whether the plaintiff should have leave to amend to join Ms Sanger as a party; and (d) any further submissions upon the position of the first defendant and the issue of Parliamentary privilege. 5. Direct the parties to notify Ms Sanger of the orders and reasons of the Court made and published today.

CATCHWORDS: 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 - TORTS – 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