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 Bill of Right 1688 Constitution Act 1855 (NSW) Constitution Act 1902 (NSW) LEGISLATION CITED: Constitution Act 1855 (Vic) Constitution Statute 1855 (UK) (18 & 19 Vic, c 54) Parliamentary Privileges Act 1987 (Cth) Uniform Civil Procedure Rules 2005 (NSW) CATEGORY: Principal judgment Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Annetts v McCann [1990] HCA 57; 170 CLR 596 Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 Australian Communist Party v Commonwealth [1951] HCA 5; 83 CLR 1 Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 Calveley v Chief Constable of Merseyside [1989] AC 1228 Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 Chapman v Luminis (No 4) [2001] FCA 1106; 123 FCR 62 Chung Teong Toy v Musgrove (1888) 14 VLR 349 Church of Scientology Inc v Woodward [1982] HCA 78; 154 CLR 25 Cooper v The Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 Coutts v The Commonwealth [1985] HCA 40; 157 CLR 91 Duncan v Theodore [1917] HCA 32; 23 CLR 510 Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 Egan v Willis (1996) 40 NSWLR 650 Egan v Willis [1998] HCA 71; 195 CLR 424 FAI Insurances v Winneke [1982] HCA 26; 151 CLR 342 Fisher v Keane (1879) 11 Ch D 353 Hamilton v Al Fayed [1999] 3 All ER 317 Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; 169 CLR 648 Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 137 CLR 487 Hill v Chief Constable of West Yorkshire [1989] AC 53 James v Cowan [1930] HCA 48; 43 CLR 386 Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; 224 CLR 44 Kioa v West [1985] HCA 81; 159 CLR 550 CASES CITED: Leerdam v Noori [2009] NSWCA 90 Marbury v Madison 5 US (1 Cranch) 137 (1803) Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 Minister for Local Government v South Sydney City Council [2002] NSWCA 288; 55 NSWLR 381 Marks v The Commonwealth [1964] HCA 45; 111 CLR 549 Murphyores Incorporated Pty Ltd v The Commnwealth [1976] HCA 20; 136 CLR 1 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3; 126 FCR 354 Prebble v Television New Zealand [1995] 1 AC 321 R v Toohey; Ex parte Northern Land Council [1981] HCA 74; 151 CLR 170 Rao v Secretary of State for India [1937] AC 248 Re Ditfort; Ex parte Deputy Commission of Taxation (1988) 19 FCR 347 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Reedman v Hoare [1959] HCA 50; 102 CLR 177 Ridge v Baldwin [1964] AC 40 Sanders v Snell [1998] HCA 64; 196 CLR 329 Spring v Guardian Assurance Plc [1995] 2 AC 296 State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 State of New South Wales v Spearpoint [2009] NSWCA 233 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Theodore v Duncan [1919] AC 696 Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 Victoria v The Master Builders' Association of Victoria [1995] 2 VR 121 Warringah Council v Edmonson [2001] NSWCA 1 Williams v Attorney-General (NSW) [1913] HCA 33; 16 CLR 404 134 Wood v Woad (1874) 9 LR Ex 190 G Lindell "Responsible Government" in P Finn (Ed), Essays on Law and Government (Law Book Co 1999) Vol 1 G Carney, The Constitutional Systems of the Australian States and Territories (CUP 2006) TEXTS CITED: Hogg "Judicial Review of Action by the Crown Representative" (1969) 43 ALJ 215 M Aronson et at, Judicial Review of Administrative Action (4th Ed Law Book Co) Melbourne and Joyce, Early Constitutional Development in Australia (UQP 1963) Anthony Paul Stewart (Plaintiff) PARTIES: Chris Ronalds (First Defendant) State of New South Wales (Second Defendant) FILE NUMBER(S): CA 40169/09 COUNSEL: J Kelly SC, N Furlan (Plaintiff) B Walker SC, J K Kirk (Defendant) SOLICITORS: Scully Legal (Plaintiff) Crown Solicitor (First and Second Defendants) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): 30026/2009 LOWER COURT JUDICIAL OFFICER: Fullerton J LOWER COURT DATE OF DECISION: 27 May 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Stewart v Ronalds & Anor [2009] NSWSC 455 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40169/09 ALLSOP P HODGSON JA HANDLEY JA Friday 4 September 2009 STEWART v RONALDS Headnote The plaintiff is a member of the Legislative Assembly of the New South Wales Parliament. He was formerly a Minister and member of the Executive Council. While the plaintiff held a Ministerial position a staff member made allegations of misconduct against him. The Premier retained the first defendant, Ms Ronalds, a senior counsel at the private bar, to investigate the allegations and publish a report for tabling in Parliament. The report findings supported the allegations of misconduct and following the investigation the Premier advised the Lieutenant-Governor to withdraw the plaintiff's commissions. The plaintiff commenced proceedings in the Supreme Court of New South Wales alleging that he was denied procedural fairness (including an allegation of bias against the first defendant) in the process that led to the advice of the Premier to the Lieutenant-Governor to withdraw his commissions and asserting that the acts of the Lieutenant-Governor were therefore void and of no effect. The plaintiff also sought damages in tort against the first defendant for her part in the process leading to the withdrawal of his commissions Proceedings were transferred to the Court of Appeal for the determination of the following separate questions of law: 1. Whether the decisions of first defendant, Premier and Lieutenant-Governor could be subject to judicial review? 2. If so, was the plaintiff owed a duty of natural justice by the first defendant, Premier or Lieutenant-Governor? 3. Did the first defendant owe the plaintiff a duty of care at common law? 4. Do the claims 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? Held, dismissing the challenge to the validity of the withdrawal of the plaintiff's commissions and dismissing the proceedings in tort, however standing the matter over in relation to declaratory relief as to the decision of the first defendant (Allsop P, Hodgson JA and Handley AJA): Answer "No" to questions (1) and (2) insofar as they relate to the Premier and Lieutenant-Governor and Premier. (Allsop P, Hodgson JA and Handley JA agreeing) i) The power exercised by the Lieutenant-Governor was pursuant to statute, Constitution Act 1902 (NSW) ss 35C(2) and 35E(2): [41]. ii) The phrase "Governor's pleasure" used in Constitution Act 1902 (NSW) ss 35C(2) and 35E(2) reflects the width of the political considerations attendant upon, and capable of informing the advice of the Premier and decisions taken thereupon: [38]. iii) The question of how the Premier came to the personal view that he should advise the Lieutenant-Governor to withdraw the commissions is essentially a political question and not justiciable: [44]. iv) It is not the function of the Courts to review the fairness of the advice tendered by the Premier to the Lieutenant-Governor or to scutinise the substance of that advice or the process leading up to its formation: [45]. v) The phrase "at pleasure" means that a Minister has no right to be heard before he or she is dismissed, no reasons are necessary and the office is terminable for good and bad reasons: [46] vi) The acceptance by the Lieutenant-Governor of the advice of the Premier is not subject to judicial review and no duty of care is owed in the acceptance of the advice: [46] – [48]. vii) The decision of the Premier to advise the Lieutenant-Governor to withdraw the commissions is not subject to judicial review and no duty of care is owed in making the relevant decision: [46] – [48]. Answer "No" to question (3). (Allsop P, Hodgson JA concurring and Handley AJA agreeing) viii) Ascertaining whether the law will impute a duty of care requires close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor having regard to the salient features of the case: [51] ix) Salient features include coherence with other branches of law and conformance with other legal duties: [51] x) The nature of the retained task – to investigate and to make findings conscientiously and without inhibition from concerns about possible repercussions to herself – and its public significance prvent any duty of care that might have otherwise existed: [55], [97] -[100]. Hill v Chief Constable of West Yorkshire [1989] AC 53; Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 considered. xi) Conformity with other legal principles such as defamation law reinforces the conclusion that no duty of care be imputed in these circumstances: [55] – [58]. No concluded view presently expressed as to the answer to questions (1) and (2) insofar as they relate to the first defendant alone. No concluded view presently expressed as to the answer to question (4): (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] 3 All ER 317, Hamilton v Al Fayed [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]. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40169/09 ALLSOP P HODGSON JA HANDLEY AJA Friday 4 September 2009 STEWART v RONALDS Judgment 1 ALLSOP P: The plaintiff, the Hon Anthony Stewart, is a member of the Legislative Assembly of the Parliament of New South Wales, being the member for Bankstown. The plaintiff has brought an action, by statement of claim filed in the Common Law Division seeking relief against the first defendant, Ms Ronalds, a practising member of the New South Wales Bar and the second defendant, the State of New South Wales. Introduction 2 The proceedings raise important Constitutional questions. The plaintiff challenges the efficacy of the withdrawal by the Lieutenant-Governor of his commissions as a Minister of the New South Wales Government and as a member of the Executive Council of New South Wales. The plaintiff asserts that he was denied procedural fairness in the process (which involved an investigation by the first defendant of some allegations against the plaintiff said to amount to misconduct) that led to the advice of the Premier to the Lieutenant-Governor to withdraw the plaintiff's commissions. The plaintiff asserts that the acts of the Lieutenant-Governor were therefore void and of no effect. The plaintiff also seeks declaratory relief directed to, and damages in tort against, the first defendant for the part played by her in the process that led to the withdrawal of the plaintiff's commissions. 3 After a defence was filed on behalf of both defendants and an exchange of correspondence took place about the provision of particulars, the defendants sought the determination of separate questions (under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 28.2) and the removal of the proceedings to the Court of Appeal (under UCPR, r 1.21). Orders to that effect were made by a Judge of the Common Law Division (Fullerton J) on 27 May 2009, relevantly, as follows: "1. Pursuant to rule 28.2 of the Uniform Civil Procedure Rules order that the following questions be heard and determined separately and before any other questions in the proceedings: (1) Are the plaintiff's claims in paragraphs 16 to 19 of the statement of claim justiciable? (2) If so, was the plaintiff owed a duty of natural justice, as alleged in paragraphs 16 and 19 of the statement of claim? (3) 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? (4) 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? 2. Pursuant to rule 1.21 of the Uniform Civil Procedure Rules order that the proceedings be removed into the Court of Appeal." 4 These questions have been brought forward for resolution by reference to facts that are agreed for the purposes of the proceedings. The agreed facts (which are set out below) are the totality of primary facts agreed as relevant for the disposition of the separate questions. No other evidence has been filed. The hearing before this Court was a trial of the proceedings, presently limited to a hearing of the separate questions. The questions do not precisely reflect the matters argued before the Court. At the hearing of the appeal leave was sought (and was granted) to amend the statement of claim to raise the question of declaratory relief in relation to the first defendant's individual position. 5 The matter was expedited. The date for hearing was set at the request of all parties on a day convenient to all counsel. The Court was prepared to give significantly earlier dates than 12 August 2009. Disposition of the proceedings 6 In my view, for the reasons expressed below, the separate questions should be answered insofar as they relate to the respective positions of the Lieutenant-Governor and the Premier (1): No; and (2): No. 7 These answers would make answering of question (4) unnecessary in relation to the Lieutenant-Governor and the Premier. 8 For the reasons expressed by Hodgson JA, I would not express a final view as yet in relation to the first defendant's position other than as to the lack of any duty of care, in answer to question (3), which I would answer: No. 9 The separate questions being answered thus, the proceedings should be dismissed insofar as they challenge the validity of the withdrawal of the plaintiff's commissions and insofar as they claim damages (including exemplary damages) against the defendants based on the asserted duty of care. I would, however, stand the matter over in order that the parties bring in short minutes to reflect the reasons. The facts 10 The facts agreed for the proceedings were contained in a statement of agreed facts which was Exhibit A in the proceedings and were as follows: 1. The plaintiff is and at all material times has been a member of the Legislative Assembly of the Parliament of the State of New South Wales. 2. The first defendant is a lawyer in private practice at the New South Wales bar who practices in areas of law which include discrimination and employment law. 3. The second defendant is the party against whom any person having or deeming himself to have any just claim or demand against the Crown in right of the State of New South Wales is entitled to bring civil proceedings against the Crown by operation of s 5 of the Crown Proceedings Act 1988. 4. On 8 September 2008, the plaintiff was validly appointed by the Governor of the State of New South Wales as a member of the Executive Council of the State of New South Wales and the Minister for Small Business, Minister for Science and Medical Research and Minister Assisting the Minister for Health (Cancer). 5. On 22 October 2008, the plaintiff attended a fund raising dinner for the Garvan Institute of Medical Research at the Four Seasons Hotel in Sydney accompanied by his then policy advisor for cancer, Ms Tina Sanger. 6. On 3 November 2008, Ms Sanger lodged a complaint of misconduct by the plaintiff (the Complaint) with the Department of the Premier and Cabinet of New South Wales (the Department). 7. Annexed to the statement of agreed facts and marked with the letter "A" was a true copy of the Complaint. 8, The plaintiff denied the allegations of misconduct contained in the Complaint both publicly and to the Premier of New South Wales, Mr Nathan Rees (the Premier). 9. On 3 November 2008 the Premier: a. requested the Department to retain a suitable person to investigate the allegations contained in the Complaint (the Investigation) and prepare a report; b. informed the plaintiff that he had made that request; and c. agreed with the plaintiff that the plaintiff should stand aside pending the outcome of the Investigation. 10. On 4 November 2008, the Department, by its Director General, Mr John Lee (the Director General), retained the first defendant to investigate the allegations contained in the Complaint in the terms set out in the letter dated 4 November 2008, a copy of which was annexed to the statement of agreed facts and marked with the letter "B". 11. The first defendant: a. agreed with the Department that she would investigate the complaint and make findings as requested in the retainer letter; b. conducted the investigation; and c. delivered a report to the Director General dated 10 November 2008 (the Report). 12. During the course of the Investigation, the first defendant interviewed the plaintiff and received written submissions from his legal representatives entitled "Observations Inquiry in Respect of Mr Tony Stewart MP". 13. At the conclusion of the Report, and in that context, the first defendant made findings to the effect that: i. she accepted Ms Sanger's version of events; ii. she did not accept the denials by the plaintiff of the events as recounted by Ms Sanger; iii. at approximately 9.40 pm on 22 October 2008, during the course of a charity dinner, the plaintiff initiated a conversation with Ms Sanger, a Member of his Ministerial staff, in which he advised her that she was "not up to the job" and he wanted to demote her to the position of assistant to the media adviser; iv. this conversation was an inappropriate one to have taken place anywhere other than the office and should not have occurred during a function where both persons were representing the Premier and the Government; v. the Plaintiff had a short second conversation with Ms Sanger and placed his hand on her leg for a few seconds to prevent her from standing up to leave while asking her not to be upset and telling her that she would be happier in the other job; vi. this conversation and the physical touching of Ms Sanger was entirely inappropriate; even though there was no sexual connotation he was restraining her, albeit, for a few seconds only, against her will; and vii. both conversations caused distress to Ms Sanger and she felt humiliated and embarrassed. 14. Annexed to the statement of agreed facts and marked with the letter "C" was a true copy of the Report. 15. On 10 November 2008, the Premier read the Report. 16. On 11 November 2008 the Premier: a. having accepted the findings in the Report wrote to the Lieutenant-Governor of the State of New South Wales (the Lieutenant-Governor), informing him that he no longer had confidence in the plaintiff as a Minister, and recommending that the plaintiff be removed as a Minister by withdrawing his commissions as such and withdrawing his membership of the Executive Council of the State of New South Wales; and b. caused a copy of the Report to be tabled in the Legislative Assembly of the Parliament of New South Wales. 17. The plaintiff was given access to a copy of the first defendant's Report by the Premier, to read, on 11 November 2008 (prior to the Report being tabled in Parliament). The plaintiff received a copy of the Report from the Parliamentary Procedural Office later on that day, after it had been tabled in the Legislative Assembly. 18. On 11 November 2008: a. the Lieutenant-Governor accepted the recommendation of the Premier and withdrew the plaintiff's commissions as a Minister and his membership of the Executive Council with immediate effect; b. the Department, by its General Counsel, requested that the plaintiff return his commissions; and c. the Department initiated a process of annotating the Patents Register to record that the plaintiff's commissions had been withdrawn. 19. On 11 November 2008 the Premier issued a news release relating to the plaintiff's removal from office as a Minister, a true copy of which was annexed to the statement of agreed facts and marked with the letter "D". 20. Annexed to the statement of agreed facts and marked with the letter "E" was a true copy of a letter from the Department to the plaintiff dated 11 November 2008. 21. The salary of the plaintiff as a Minister of the Crown in right of the State of New South Wales, immediately prior to the events of 11 November 2008, was $270,580 per annum, which was comprised of a basic salary of $126,560, a salary of office of $72,139, an expense allowance of $32,906 and an electoral allowance (applicable to the electorate of Bankstown) of $38,975. 22. The salary of the plaintiff as a Member of Parliament after the events of 11 November 2008 is $165,535 per annum, which is comprised of a basic salary of $126,560 and an electoral allowance (applicable to the electorate of Bankstown) of $38,975. 11 It is unnecessary to set out the terms of the Complaint (being annexure A to the statement of agreed facts) in full. Paragraph 6 of the Amended Statement of Claim (the "ASC") distilled its three elements: (a) "the allegation of rudeness" – that the plaintiff was rude, dismissive and belittling towards Ms Sanger when she attempted to speak at the head table where they were seated with other guests; (b) "the allegation of bullying" – that the plaintiff "humiliated, bullied and berated" Ms Sanger in the presence of others saying words to the effect that he did not wish to retain her as his policy adviser because she was "not up to the job", he wanted her to become the assistant to his media advisor and that she was demoted until she could prove she was worthy of a policy advisory position; and (c) "the allegation of assault" – that the plaintiff placed his hand on Ms Sanger's leg and pushed down on it to keep her seated as she tried to stand up. 12 The letter of retainer sent by the Director General to the first defendant (annexure B to the statement of agreed facts) relevantly contained the following: "I refer to your recent discussions with my officers and confirm that the Department of Premier and Cabinet ("DPC") wishes to engage you to investigate certain matters on the following terms. The matters arise from allegations made by Ms Tina Sanger as to the conduct of the Hon A. P. Stewart, MP, Minister for Small Business, Minister for Science and Medical Research, and Minister Assisting the Minister for Health (Cancer) towards her at a charity dinner for the Garvan Institute on 22 October 2008 ("the Allegations"). … Ms Sanger made a formal complaint to DPC on 3 November 2008 concerning the Allegations, of which you already have a copy. I note that the complaint is also expressed to be a protected disclosure. As you may be aware from media reports, Mr Stewart is reported to have denied the Allegations both publicly and to the Premier. DPC wishes you to investigate the Allegations and to make findings of fact as to the accuracy of the Allegations and to report to me on your findings. Your findings will be used for two purposes. First, they will inform the Premier's decisions as to whether the Minister has told him the truth about relevant events at the charity dinner and therefore as to whether the Minister should remain in the Ministry. Second, they will constitute the findings of fact for the purposes of DPC handling Ms Sanger's complaint. Particularly in light of the first proposed use of your findings, I would appreciate receiving your report in a form suitable for tabling in Parliament. The Premier has stood aside Mr Stewart from the Ministry while this matter is investigated. I would, therefore, appreciate receiving your report as soon as practicable, although I understand that your ability to finalise your report may depend upon the availability of persons you wish to interview." 13 The terms of the press release of the Premier (annexure D to the statement of agreed facts) were as follows: "NSW Premier Nathan Rees has today recommended that the Minister for Small Business, Minister for Science and Medical Research, and Minister Assisting the Minister for Health (Cancer), Tony Stewart be removed from office. The Premier recommended that the Lieutenant-Governor remove the minister following a report from Chris Ronalds SC upholding the allegations made by the minister's former staff member Tina Sanger. 'I made my position on this matter very clear. I warned him that he needed to tell me the truth. I made it very plain that if his version of events was established to be incorrect the minister's position would be untenable,' Premier Rees said. 'Based on the findings of Ms Ronalds' investigations I indicated to the Minister that he no longer enjoyed my confidence.' The Premier tabled Ms Ronalds' report in Parliament." 14 The relief sought in the ASC was as follows: "1. A declaration that the first defendant was obliged to afford the plaintiff natural justice before proceeding to make any findings in or for the purpose of the report to the Director General of the Department of Premier and Cabinet entitled 'Report of an Investigation into a Complaint against the Hon A P Stewart MP", dated 10 November 2008. 2. A declaration that the first defendant failed to afford the plaintiff natural justice before proceeding to make the findings contained in the said report. 2A. A declaration that, in the events which happened, the Lieutenant-Governor was obliged to afford the plaintiff natural justice before withdrawing the plaintiff's commissions as the Minister for Small Business, Minister for Science and Medical Research and Minister of Assisting the Minister for Health (Cancer) and as a member of the Executive Council of the State of New South Wales on 11 November 2008. 2B. A declaration that the Lieutenant-Governor failed to afford the plaintiff natural justice before withdrawing the plaintiff's commissions as the Minister for Small Business, Minister for Science and Medical Research and Minister of Assisting the Minister for Health (Cancer) and as a member of the Executive Council of the State of New South Wales on 11 November 2008. 3. A declaration that the withdrawal of the plaintiff's commissions as the Minister for Small Business, Minister for Science and Medical Research and Minister of Assisting the Minister for Health (Cancer) and as a member of the Executive Council of the State of New South Wales by the Lieutenant-Governor on 11 November 2008 and the annotation of the Patents Register by the Department of Premier and Cabinet to record that those Commissions have been withdrawn, are void and of no legal effect by reason of the denial of natural justice to the plaintiff in making the findings in the said report. 4. Further and in the alternative, damages against the first defendant for negligence. 5. Exemplary damages. 6. Interest pursuant to the provisions of section 100 of the Civil Procedure Act 2005. 7. Such further or other declaration or orders as the Court thinks fit. 8. Costs." The bases for the plaintiff's claims and the pleading 15 The essential propositions underlying the plaintiff's claims to this relief were as follows: (a) First, by the process of engaging the first defendant to investigate the complaint and to find the relevant facts, the Premier put in place a procedure that gave rise to a legal obligation to afford the plaintiff procedural fairness in the conduct of the investigation and the production and delivery of the report. (b) Secondly, the same legal obligation to afford procedural fairness arose from the circumstances of the engagement of the first defendant and the reasonable expectations of the plaintiff as to a fair hearing arising therefrom. (c) Thirdly, the first defendant's asserted failure to afford procedural fairness vitiated the legitimacy of the advice of the Premier to the Lieutenant-Governor, thereby making the withdrawal by the Lieutenant-Governor of the commissions of the plaintiff as Minister and as member of the Executive Council void and of no legal effect. (d) Fourthly, if the first defendant was obliged to afford procedural fairness to the plaintiff and if she failed to do so, but if any such failure has no effect upon the advice of the Premier and upon the lawfulness and efficacy of the withdrawal of the commissions by the Lieutenant-Governor, the plaintiff is still entitled to declaratory relief as to the first defendant's failure to afford him procedural fairness. (e) Fifthly, the first defendant owed the plaintiff a duty to exercise reasonable care in and about the discharge of her retainer. (f) Sixthly, the first defendant breached that duty for which breach she was liable in damages (including exemplary damages in the light of some of the circumstances said to amount to breach). 16 Not all of these propositions are embodied in the separate questions. The separate questions do not address the questions of whether the first defendant failed to afford the plaintiff procedural fairness or breached a duty of care. If we were of a different view as to how the separate questions should be decided, it would have been necessary to remit these questions to the Common Law Division for hearing. 17 The ASC pleaded the history of events reflected in the agreed facts. At para 12, the duty of care was pleaded in the following terms: "At all material times between 4 November 2008 and 11 November 2008, during which period the first defendant accepted the retainer, conducted the investigation, prepared the report and made the findings, the relationship between the first defendant and the plaintiff was one of known reliance or dependence in which the first defendant knew or ought to have known from the terms of the retainer that the plaintiff was at risk of suffering loss and damage, including loss of his office as a Minister of the Crown and a member of the Executive Council of the State of New South Wales, in the event that the first defendant failed to exercise reasonable skill, care and diligence in and about the discharge of the retainer, the conduct of the investigation, the preparation of the report and the making [and] publication of any findings, and it was reasonably foreseeable by a person in the position of the first defendant that a person in the position of the plaintiff was at risk of suffering such loss or damage in that event, whereupon the first defendant assumed or alternatively, as a matter of common law, was under a duty of care to the plaintiff to exercise reasonable skill care and diligence in and about the discharge of the retainer, the conduct of the investigation, the preparation of the report and the making and publication of any finding in relation to the allegations." 18 Paragraph 13 pleaded the breach of duty as follows: "In breach of her duty of care to the plaintiff, the first defendant failed to exercise reasonable skill care and diligence in and about the discharge of the retainer, the conduct of the investigation, the preparation of the report and the making and publication of the findings and was negligent." 19 It is unnecessary to recite verbatim the particulars of breach of duty set out under para 13. Various faults were asserted including bias. 20 Paragraph 14 of the ASC pleaded that the Premier informed himself of the findings in the Report and recommended to the Lieutenant-Governor that the plaintiff be removed from his offices. Paragraph 15 pleaded the acceptance of that advice by the Lieutenant-Governor. 21 Paragraph 16 of the ASC then pleaded a legal obligation to provide procedural fairness, in the following terms: "In the circumstance that: a. allegations of serious misconduct in public office had been made against the plaintiff, including an allegation of assault upon a young woman during the course of a public function; b. the Premier had elected to delegate the investigation and determination of the veracity of the allegations to a person appointed by his Department; c. the Department had retained the first defendant to investigate the allegations, make findings of fact as to the accuracy of the allegations and report to the Director General for the purpose of informing the Premier's decision as to whether the plaintiff should remain in the Ministry; d. the Lieutenant-Governor acts on the recommendation of the Premier in making any decision to withdraw the commission of a member of the Executive Council or the Ministry; and e. the rights, interests and legitimate expectations of the plaintiff, including his status as a Minister of State and a member of the Executive Council, his personal [and] professional reputation and his livelihood, were likely to be adversely affected and the Commissions were likely to be withdrawn in the event that the first defendant made any finding to the effect that the alleged assault had taken place, the Lieutenant-Governor, through the Premier, the Department and the first defendant, was obliged to afford the plaintiff natural justice before making any decision to withdraw the Commissions on the basis of the allegations and the first defendant was obliged to afford the plaintiff natural justice in relation to the conduct of the investigation and the making of the findings." 22 The last three lines of para 16 sought to separate the position of the Premier, the Lieutenant-Governor and the validity of the withdrawal of commission, on the one hand, and declaratory relief against the first defendant, on the other, in order to enable the fourth proposition set out at [15 (d)] above to be made good. 23 Paragraphs 17 and 18 pleaded the failure to afford procedural fairness, including an allegation of bias. 24 The particulars to the allegation in para 18 were some, but not all, of the particulars of negligence under para 13. 25 Paragraph 19 pleaded the consequence of the above asserted failure to afford procedural fairness as follows: "By reason of the said denial of natural justice, the findings of the first defendant, the decision of the Lieutenant-Governor to withdraw the Commissions on 11 November 2008 and the annotation of the Patents Register to record that the Commissions had been withdrawn are void and of no legal effect." 26 Paragraph 20 pleaded that the plaintiff has suffered loss and damage "by reason of the negligence of the first defendant". 27 Paragraph 21 contained allegations against the first defendant as the foundation for the claim for exemplary damages. Questions 1 and 2: Justiciability and natural justice insofar as they concern the position of the Lieutenant-Governor and the Premier 28 The withdrawal by the Lieutenant-Governor of the commissions of the plaintiff as a Minister and member of the Executive Council were made under the Constitution Act 1902 (NSW), ss 35C and 35E, which are in the following terms: "35C Members of the Executive Council (1) The Executive Council shall consist of such persons as may be appointed by the Governor, from time to time, as members of the Executive Council. (2) The members of the Executive Council shall hold office during the Governor's pleasure. (3) The Governor may appoint one of the members of the Executive Council as Vice-President of the Executive Council. … 35E Appointment of Ministers (1) The Premier and other Ministers of the Crown for the State shall be appointed by the Governor from among the members of the Executive Council. (2) The Premier and other Ministers of the Crown shall hold office during the Governor's pleasure." 29 These sections are contained in Part 4 of the Constitution Act 1902 dealing with the Executive, introduced after the passing of the Australia Acts in 1986 by the Parliaments of the United Kingdom and the Commonwealth of Australia that severed the remaining constitutional links between Australia and the United Kingdom Parliament, government and judicial system. See the Second Reading of the Attorney-General of New South Wales 29 April 1987 moving the Constitution Amendment Bill (New South Wales Legislative Assembly Parliamentary Debates Vol 196 at 10742). Part 4 was insert by the Constitution (Amendment) Act 1987 (NSW) (Act No 64 of 1987) Schedule 1 (7). 30 Prior to 1987, the appointment and removal of Ministers was dealt with in the Constitution Act 1902, s 47 which was (and remains) in the following terms: "Subject to the provisions of the Public Service Act 1902 and of all other enactments relating to the appointment of officers and being in force at the passing of this Act, the appointment of all public offices under the Government, whether such offices are salaried or not, shall be vested in the Governor with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds , which appointments shall be vested in the Governor alone : Provided that this enactment shall not extend to minor appointments which by any Act or by order of the Governor and Executive Council are vested in heads of departments or other officers or persons." (emphasis added) 31 The origins of s 47 can be found in the Constitution Act 1855 (NSW), s 37 which was in the following terms: "The Appointment to all Public Offices under the Government of the Colony hereafter to become vacant or to be created, whether such Offices be salaried or not, shall be vested in the Governor, with the Advice of the Executive Council, with the Exception of the Appointments of the Officers liable to retire from Office on political Grounds as herein-after mentioned, which Appointments shall be vested in the Governor alone : Provided always, that this Enactment shall not extend to minor Appointments, which by Act of the Legislature, or by Order of the Governor and Executive Council, may be vested in Heads of Departments, or other Officers or Persons within the Colony." (emphasis added) 32 The question of the amenability of the decisions and acts of the Lieutenant-Governor to judicial review must be examined, just as the Constitution Act 1902 must be read, against the background of responsible government. 33 It is accepted that responsible government came to New South Wales in 1855. It is unnecessary for present purposes to deal with the question of the legal source of the Constitution, whether from the Imperial Act, the Constitution Statute 1855 (UK) (18 & 19 Vic, c 54) or the Constitution Act 1855 (NSW) to which Royal Assent was given under the authority of the Imperial Act. (See A Twomey The Constitution of New South Wales Federation Press 2004 at 18-22.) 34 The phrase "responsible government" was not in 1855, nor is it in 2009, amenable to precise definition. I refer to and adopt the discussion by Spigelman CJ in Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 at 568-573 [15]-[47]. It is "a concept based upon a combination of law, convention and political practice … [and is not] … immutable": Gleeson CJ in Egan v Willis (1996) 40 NSWLR 650 at 660. See also Gaudron, Gummow and Hayne JJ in Egan v Willis [1998] HCA 71; 195 CLR 424 at 451 [41] and G Lindell "Responsible Government" in P Finn (Ed) Essays on Law and Government Law Book Co 1999 vol 1 at 75. 35 The drafters of the Constitution Act 1855 and of the Constitution Act 1902 did not seek, and have not sought, to reduce to statutory form all the law and conventions embodying and constituting the English Constitution (in 1855) and its local adaptation (in 1902 and since). As Higinbotham CJ stated in Chung Teong Toy v Musgrove (1888) 14 VLR 349 at 391, the Constitution Act 1855 (Vic) employed "allusions suggesting inferences rather than by [using] express enacting words". The absence of any reference to responsible government and its principles in the Constitution Act 1855 did not place any doubt in the minds of those in 1855, and since, that responsible government (albeit in 1855, and for some time thereafter, in a legislatively inferior polity to the United Kingdom) had arrived, irrespective of any lack of changes to the Governor's Commission or Royal Instructions: Melbourne and Joyce, Early Constitutional Development in Australia (UQP 1963) at 429-430 and G Carney, The Constitutional Systems of the Australian States and Territories (CUP 2006) at 45. The following statement of Higinbotham CJ, in Toy v Musgrove at 392, though in dissent, can be accepted to the extent that it recognised the constitutional act embodied in the equivalent Victorian Constitution Act 1855 (which was authorised by Imperial Statute passed contemporaneously with the Act authorising the New South Wales Constitution) that created a scheme of intended responsible government: "That it was the intention of the Legislative Council to establish by law a complete system of responsible government as an essential organic part of the self-governing scheme of the Victorian Constitution is a fact about which an historic doubt cannot be entertained ." (emphasis added) 36 An essential attribute of the system of responsible government introduced in 1855 was the responsibility of the Executive to Parliament. Save for reserve powers, no executive power could be exercised without receiving the advice of the government responsible to the legislature: Toy v Musgrove at 393; and by convention recognised by the Courts: Williams v Attorney-General (NSW) [1913] HCA 33; 16 CLR 404 at 457 (per Isaacs J); Australian Communist Party v Commonwealth [1951] HCA 5; 83 CLR 1 at 158 (per Latham CJ); R v Toohey; Ex parte Northern Land Council [1981] HCA 74; 151 CLR 170 at 215 (per Stephen J) and 265 (per Aickin J); FAI Insurances Limited v Winneke [1982] HCA 26; 151 CLR 342 at 349 (per Gibbs CJ), 352-353 (per Stephen J), 365 (per Mason J), 373-374 (per Murphy J), 382 (per Aickin J), 396 and 400 (per Wilson J), 414 (per Brennan J). See generally Twomey op cit at 628-301. 37 Sections 37 and 47 of the Constitution Act 1855 and the Constitution Act 1902, respectively, contained the allusions to responsible government to which Higinbotham CJ referred in Toy v Musgrove and the "oblique reference" to responsible government to which Spigelman CJ referred in Egan v Chadwick at 569 [28]. The phrase "liable to retire from office on political grounds" included Ministers and the "Governor alone" was a phrase understood as requiring, at least in relation to the appointment of Ministers, the advice of the Premier: Twomey op cit at 637. 38 The advice to the Governor for the purposes of ss 35C and 35E, and decisions and steps taken thereunder, are inherently political and at the point of intersection between Parliament and the Executive – the responsibility of the latter to the former. The phrase "Governor's pleasure" used in both ss 35C(2) and 35E(2) reflects the width of the political considerations attendant upon, and capable of informing, any advice of the Premier and decision taken thereupon. 39 Until 1981, the apparently prevailing view was that the exercise of power by a representative of the Crown was not reviewable: Duncan v Theodore [1917] HCA 38; 23 CLR 510 at 544 (per Isaacs and Powers JJ); and on appeal to the Privy Council Theodore v Duncan [1919] UKPCHCA 3 [1989]; AC 696 at 706; James v Cowan [1930] HCA 48; 43 CLR 386 at 411 (per Isaacs J); Australian Communist Party v Commonwealth at 178-179 (per Dixon J); Victorian Stevedoring and General Contracting Co Pty Ltd and v Dignan [1931] HCA 34; 46 CLR 73 at 84-85 (per Gavan Duffy CJ and Starke J), 86 (per Rich J), 104 (per Dixon J); and see the authorities discussed in R v Toohey; Ex parte Northern Land Council at 186-192 (per Gibbs CJ), 204-216 (per Stephen J) 222-223 (per Mason J) and 234-264 (per Aickin J); P W Hogg "Judicial Review of Action by the Crown Representative" (1969) 43 Australian Law Journal 215. By the 1980s, a distinction had arisen between the review of power under statute by Ministers (which were reviewable) and decisions by a Crown representative, acting on the advice of a responsible minister (which were not): see generally Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, Murphyores Incorporated Pty Ltd v The Commnwealth [1976] HCA 20; 136 CLR 1 and the discussion in R v Toohey at 202-216 (per Stephen J). 40 The High Court in R v Toohey and FAI v Winnecke made clear that in some cases the courts could examine the exercise of power under a statute by a representative of the Crown. See also Mason J in R v Toohey at 219-221 and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 concerning the review of the non-statutory prerogative. 41 Whatever may be the debate as to the place of judicial review outside the exercise of statutory power and by the Crown in the exercise of non-statutory executive or prerogative power: see generally M Aronson et at Judicial Review of Administrative Action (4th Ed Law Book Co 2009) at 116-117 and 124-134, the power exercised here by the Lieutenant-Governor was pursuant to statute: the Constitution Act 1902, ss 35C and 35E. 42 Central to the identification of the kinds of decisions amenable to review by the courts is the suitability of the subject for judicial assessment and, in particular here, whether the assessment of the legitimacy or otherwise of the decision depends on legal standards or by reference to political considerations: R v Toohey at 222 (per Mason J); Re Ditfort; Ex parte Deputy Commission of Taxation (1988) 19 FCR 347 at 370 (per Gummow J); Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 279 (per Bowen CJ) and 308 (per Wilcox J); CCSU v Minister at 418 (per Lord Roskill); Marbury v Madison 5 US (1 Cranch) 137 at 170 (1803). 43 It is not necessary or appropriate to attempt a definition of the limits of judicial power by reference to the notion of justiciability. Essential to the task is the identification of the controversy, its limits and character. Often the nature and extent of rights of individuals, whether of a proprietary or other character, as affected by the asserted wrong will bespeak a justiciable controversy. The presence of standards capable of being assessed legally may do likewise. Difficult questions arise if a subject is justiciable, but it is said not to be "appropriate" for the courts to interfere: cf Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3; 126 FCR 354 at 373-374 (Black CJ and Hill J), 379-380 and 429-430 (Beaumont J). In his discussions in Baker v Carr 369 US 186 at 210-217 (1962), Brennan J recognised a degree of lack of coherence in the subject matter of non-justiciability and its treatment. Brennan J in Baker v Carr and Gummow J in Re Ditfort counselled against sweeping generalisations and urged a specific analysis of the particular controversy in issue. 44 Here, the complaint is as to how the Premier came to the personal view that he had lost confidence in the plaintiff to participate in the Government which he led. The subject lay at the heart of the political process. 45 For the Court to question the fairness of the advice tendered by the Premier to the Lieutenant-Governor in respect of the composition of the Ministry would assert an entitlement to scrutinise the substance of that advice and the process leading to its formation. These are quintessentially political questions. This is not a function of the courts. It is the function of Parliament and through it, the people of New South Wales. 46 That this is so is reinforced by the separate, but related, consideration that the plaintiff held his offices "at the Governor's pleasure". The content of this phrase not only assists in recognising that the Governor and the Premier owe no duty of procedural fairness in the making the relevant decision (the Premier in advising and the Governor in acting thereon), but also the phrase reinforces the lack of amenability of the decision to review. Whatever may be the on-going significance of the notion of "at pleasure" relating to servants of the Crown: cf Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; 224 CLR 44, the phrase in this context means that the Minister has no right to be heard before he or she is dismissed; no reasons are needed; the office is terminable for good or bad or no reasons: Rao v Secretary of State for India [1937] AC 248; Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 at 24; Ridge v Baldwin [1964] AC 40 at 65-66; Reedman v Hoare [1959] HCA 50; 102 CLR 177 at 181; Marks v The Commonwealth [1964] HCA 45; 111 CLR 549 at 586; Coutts v The Commonwealth [1985] HCA 40; 157 CLR 91 at 94, 104 and 105. 47 These reasons are directed to the facts and controversy presently before the Court: the acceptance by the Lieutenant-Governor of advice from the Premier (having the confidence of the Legislative Assembly and Parliament) about the composition of the Ministry and of the Executive Council. No issue of reserve power, illegality or want of authority of the Premier arises. 48 These reasons enable the first two separate questions posed to be answered in the negative insofar as the questions were directed to the Lieutenant-Governor and the Premier and to the validity of the withdrawal of the commissions of the plaintiff. 49 These reasons are not sufficient, however, to deal with the separate position of the first defendant as identified in [15(d)] above. I will return to this question after dealing with the duty of care. Question 3: the asserted duty of care 50 I have read the reasons of Hodgson JA. I agree with them generally. His Honour's reasons allow me to express myself shortly on this point. 51 The proper approach to be employed in ascertaining whether in novel circumstances the law imputes a duty to another to exercise reasonable care and, if so, in identifying its scope or content, is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury in the circumstances. See generally the discussion of the relevant High Court authorities in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 at [101]-[106], where the various salient features were set out. These salient features include foreseeability, reliance, vulnerability, control, the nature of the activity, coherence with other branches of the law and conformance with other legal duties. 52 It was no doubt foreseeable that any lack of care by the first defendant in investigating and reporting, as requested, could bring about conclusions of fact that were wrong and that this might, in turn, affect the reputation and standing of one or both of Ms Sanger and Mr Stewart. 53 If any duty were to be owed to Mr Stewart, it would also be owed to Ms Sanger. These duties would be in addition to any duty to the Department as the client who retained the first defendant. 54 The task was a legal one in that it was given to a lawyer. It was also a factual one because the first defendant was required to make factual findings as to what happened on the night in question. 55 Duties to Ms Sanger and Mr Stewart would not sit comfortably with the duty of the first defendant to the Department and, through it, to the State. The first defendant's obligations were to undertake her retainer diligently, competently and with the degree of expedition the subject matter deserved. As practising counsel she would be expected to approach the task even-handedly, but fearlessly. The task required her to confront, assess and evaluate the conflicting versions of events put forward by the participants. To impose a duty of care upon her, owed to the very people whose conflicting testimony was the subject of investigation, would tend to inhibit the first defendant in her task. Her retainer was important. It was one which could be seen to affect the composition of the Ministry. Those retaining the first defendant were entitled to a conscientious and undivided loyalty to task uninhibited by potential liability to others. 56 The duty would also cut across the law of defamation. It may be that the prospect of the tabling of any report in Parliament limited the scope of the law of defamation. Nevertheless, any such privilege, along with qualified privilege, should be seen as part of the scheme of that branch of the law, with which an action for negligence would not cohere. 57 Conformity with other legal duties and coherence in the law require the conclusion that no duty of care is to be imputed here. 58 It is not necessary to decide that negligence and defamation cannot ever occupy co-ordinate fields. Nevertheless, here, the need to avoid inhibition in the task and the existence of a body of common law and statutory rules of defamation (including relevant privileges and protections) dealing with the publication of the results of the investigation make it clear that there was no duty of care in tort. The question of the first defendant and the obligation of procedural fairness 59 The position of the first defendant is not straightforward. 60 A number of factors were emphasised by the defendants in support of the proposition that the first defendant owed no legal duty to afford procedural fairness to the plaintiff. 61 The inquiry and reporting were an investigatory function to inform a decision-maker (the Premier) who owed no duty of procedural fairness. In this sense, the task and responsibilities of the first defendant were, it was submitted, intimately bound up with the essentially political character of the Premier's decision. 62 The inquiry and reporting were not founded on any statutory provision. The first defendant was not exercising statutory or executive power in inquiring and reporting. She was fulfilling a retainer with the Department undertaken as a member of the independent Bar. To the extent that her findings could injure anyone, that would be a consequence of fulfilling the retainer, not a consequence of the exercise of power. Ms Sanger and the plaintiff might feel compelled to participate; but the first defendant was not the repository of any form of compulsory power. 63 The plaintiff held high office, at the Governor's pleasure, in effect subject to his fate in the ebb and flow of politics. Just as he could not complain if the Premier treated him "unfairly" in making his own personal enquiry (say, by just listening to Ms Sanger before advising the Lieutenant-Governor of his loss of confidence in the plaintiff) or by listening to and acting on the advice of "biased" political colleagues, he could not complain about how the first defendant approached her task. 64 Particular emphasis was placed on the lack of any statutory foundation for the first defendant's retainer. This meant, it was submitted, there was no foundation for the operation of the rules of procedural fairness. There was, it was said, no source to give rise to the legal doctrine. 65 Further, it was submitted that there was no factual or legal basis to conclude that any "legitimate" or "reasonable" expectations might give rise to (as opposed to inform the contents of) a duty to afford procedural fairness. Particular reliance was placed on the reasons in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1. 66 It was submitted that to investigate the operation of procedural fairness in the conduct of the inquiry by the first defendant would involve, or risk involving, the Court in the weighing of truly political questions, a process which the Court should avoid, as not part of its function. 67 The first, and basal, proposition of this argument – the necessity for the existence of a statutory provision for the attraction of the principles of procedural fairness was the view expresed by Sir Gerard Brennan on a number of occasions as a Justice and later Chief Justice of the High Court: see FAI v Winneke at 409, Church of Scientology Inc v Woodward [1982] HCA 78; 154 CLR 25 at 70; Coutts at 105; Kioa v West [1985] HCA 81; 159 CLR 550 at 609-611; Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36-37; Annetts v McCann [1990] HCA 57; 170 CLR 596 at 604; Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 583-586. 68 There have, however, been persuasive and binding statements in the High Court to the effect that the source of the duty to afford procedural fairness is the common law: Kioa v West at 576 and 582 (per Mason J); Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; 169 CLR 648 at 653 (per Deane J); Annetts v McCann at 598 (per Mason CJ, Deane and McHugh JJ); Ainsworth at 571-572 and 574-576 (per Mason CJ, Dawson, Toohey and Gaudron JJ). 69 In 1994, the then Appeal Division of the Supreme Court of Victoria expressed the view, having considered High Court authorities, that the source of the principles of procedural fairness was the common law: Victoria v The Master Builders' Association of Victoria [1995] 2 VR 121 at 138-139 (per Tadgell J), 148 (per Ormiston J) and 157-160 (per Eames J). This Court has come to the same view: Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78 at 91-92 (per Spigelman CJ); Warringah Council v Edmonson [2001] NSWCA 1 at [20], approving Vanmeld at 91-92 (per Fitzgerald JA, with whom Meagher JA and Powell JA agreed); and Minister for Local Government v South Sydney City Council [2002] NSWCA 288; 55 NSWLR 381 at 384-386 [6]-[15] per Spigelman CJ with whom Ipp AJA agreed at 445 [296]. 70 I therefore proceed on the basis that the common law is the source of the duty to afford procedural fairness. I should say that this relevant and important question did not receive detailed treatment in the argument before us, no doubt because the issue emerged at a late stage. 71 It may not be capable of dispute in this Court that the reputation of the plaintiff is an interest attracting the protection of the rules of natural justice: Ainsworth at 578 citing the reasons of Sir George Jessell MR in Fisher v Keane (1879) 11 Ch D 353 at 362-363. It may be doubtful whether Fisher v Keane can be limited to a contractual basis. The common law was present to protect the "blasting" of someone's reputation. Nevertheless, the committee in Fisher v Keane was exercising a form of power, rooted in contract or association. Here, the first defendant was fulfilling a "private" retainer, though with potential "public" consequences and involving a relationship with the exercise of public power: the choice of the composition of the Ministry and the handling of the complaint otherwise by the Department. It would, however, be a potentially significant development of the principles of natural justice for them to be imposed on any activity which has the capacity to affect reputation. When dealing with individuals not exercising power (or at least "public" power) that might be thought to be the field, once again, of the law of defamation. 72 The structure employed by the Premier through the Department retaining the first defendant invoked the assistance of a senior member of the independent Bar. No doubt, this was not any intended contrivance. A desired degree of skill, despatch, conscientiousness, detachment and even-handedness would be expected of such a person. These can be inferred to be the qualities to be found in someone "suitable" to be retained from the independent profession for the task at hand. The potential damage to the plaintiff's or Ms Sanger's reputation would be derived, in significant part, from the attendant qualities and skills to be expected of such a fact finder. No clear legal line can be drawn between the appointment of someone such as the first defendant and a request to a "party elder" to inform him or herself of the facts and recommend action. There may, however, be seen to be a qualitative difference. In the former the expected behaviour of the investigator and reporter would be understood from the independent status of the Bar and the task involved. Such expected behaviour may result in a perception of independence and fairness which may significantly affect the interest at stake – the plaintiff's and Ms Sanger's reputations. 73 The assessment of whether the rules of procedural fairness had been breached would be unlikely to trench upon political ground. An independent and skilled practitioner well-used to engaging in factual enquiry was to investigate and report on asserted events. The task of assessing the legitimacy and fairness of the procedures involved in such a task is well-suited to a court. 74 The place of the common law as the source of the principles of procedural fairness and the role of the declaration can provide real protection to individuals against the exercise of functions or powers which have the capacity to injure reputation and standing. Nevertheless, a question arises as to the relationship between the exercise of public and private power, in this case public power and individual capacity and the application of the principles of procedural fairness. More specifically, to what extent should such principles bind a private individual conducting a retainer in the absence of public power or of any contractual or associative obligations between the individual and the person whose reputation could be harmed? 75 Like Hodgson JA, I would presently not express a view on the first defendant's individual position because of Ms Sanger's possible interest. I would also add (without intended disrespect to counsel, whose arguments were otherwise of great assistance) that the submissions did not fully confront the important issues that underly this separate position of the first defendant. The question of Parliamentary privilege and Article 9 of the Bill of Rights 1688 76 I have read the reasons of Hodgson JA. At present I would prefer not to express a view about these matters. It is sufficient to say, if I may respectfully put it this way, that there is significant force in what his Honour has said. 77 I do not propose to deal with the matter in any detail for two reasons. First, it may be that Ms Sanger wishes to put submissions on the topic. Secondly, it is unnecessary to deal with the matter to dispose of the questions concerning the Lieutenant-Governor and the Premier and the question of duty of care. These proceedings were brought on urgently. The question of the plaintiff's position (or lack thereof) as a Minister and member of the Executive Council and the resolution of the arguments put forward by him are urgent and should be dealt with. Orders 78 It may be that in the light of these reasons and the reasons of Hodgson JA the parties (including possibly Ms Sanger) would prefer to put further submissions to the Court. The question of the source of the obligation to afford procedural fairness may, in this case, be important. In any event, for the reasons identified by Hodgson JA, it is not appropriate to express final views upon the position of the first defendant and the relationship of that to Parliamentary privilege until the parties have considered these reasons and the position of Ms Sanger. It is appropriate, however, to deal finally with the questions insofar as they relate to the Lieutenant-Governor, the Premier and to the question of the duty of care. 79 For the above reasons, I would make the following orders: 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 orders 1 and 2 above. 4. Stand the proceedings over to a date to be fixed for: (a) any argument concerning the form of orders consequent on orders 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; (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. 80 HODGSON JA: The judgment of Allsop P sets out the circumstances giving rise to these proceedings and the issues before this Court. I agree with the orders he proposes. 81 I agree with the answers he proposes to questions (1) and (2) in the orders of 27 May 2009, so far as those questions concern the plaintiff's claim against the second defendant; and I agree with his reasons for holding that, in the circumstances of this case, the Court would not entertain a claim that the withdrawal of the plaintiff's commissions was void and of no legal effect, or that the Lieutenant-Governor was obliged to afford the plaintiff natural justice before withdrawing those commissions and failed to do so. 82 I also agree that, in relation to the matters referred to in the previous paragraph, it is unnecessary to answer question (4), and appropriate not to do so. 83 I propose to consider question (3); and then to consider questions (1) and (2) in relation to the plaintiff's claim for declarations 1 and 2 sought by him (see par [14] of Allsop P's judgment), on the basis of the last three lines in par 16 of the Amended Statement of Claim (ASC) (see pars [21] and [22] of Allsop P's judgment) and par 18 of the ASC (par [23] of Allsop P's judgment). 84 I will then consider whether it is necessary and appropriate to address question (4) in relation to any of these matters. Duty of care: Question (3) 85 In the State of New South Wales v Spearpoint [2009] NSWCA 233 at [21]-[22] Allsop ACJ said this: [21] It is clear that in ascertaining whether, in any particular circumstances, a duty of care is to be imputed and in identifying its scope and content, where the circumstances are not covered by an accepted category of liability, the task is to analyse closely the facts bearing on the relationship between the plaintiff and the putative tortfeasor. See for example Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 at [22]. [22] This close examination will involve an assessment of salient features such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and numerous other possible factors. These other factors will include legal policy such as coherence and conformity with other duties or legal obligations. 86 In my opinion, this usefully identifies significant considerations to be taken into account in determining whether a relationship between a defendant and a plaintiff is such as to give rise to a duty of care. I will briefly outline what I see as the position in this case in relation to these considerations, and also in relation to the additional consideration of control. 87 As regards foreseeability, it was plainly foreseeable by the first defendant that a finding adverse to the plaintiff would be highly likely to result in the loss of his ministerial office and considerable damage to his reputation. It was also plainly foreseeable that if the adverse finding was incorrect, this damage would be undeserved and inappropriate. 88 As regards the degree of harm, the loss of ministerial office and damage to reputation would plainly be very substantial both in terms of economic loss and also in terms of reputation; and also relevant would be the lack of any remedy against the State of New South Wales because the ministerial office is held "at pleasure". 89 As regards vulnerability, the letter appointing the first defendant stated that the findings of fact would be used for two purposes, as follows: First, they will inform the Premier's decision as to whether the Minister has told him the truth about relevant events at the charity dinner and therefore as to whether the Minister should remain in the Ministry. Second, they will constitute the findings of fact for the purposes of DPC handling Ms Sanger's complaint. The reference to DPC was of course a reference to the Department of Premier and Cabinet. 90 Looking first at the second purpose, the findings were to "constitute the findings of fact" in relation to the handling, by the Department of Premier and Cabinet, of Ms Sanger's complaint. The letter does not spell out what were the implications of this, and the statement of agreed facts in this case does not elaborate. We were not referred in submissions to any relevant statutory provisions. However, this statement of the second purpose does confirm that the first defendant's findings of fact were not to be treated, by the Department of Premier and Cabinet at least, as merely advisory or tentative. 91 Turning to the first purpose, although it is said that the findings "will inform the Premier's decisions as to whether [the plaintiff] has told him the truth", there is nothing to suggest that the Premier's decisions about this would be informed by anything else, particularly when the findings were, in accordance with the second purpose, to be findings of fact for the handling of Ms Sanger's complaint by the Department. 92 Accordingly, and again having regard to the plaintiff's lack of any remedy against the State of New South Wales, in my opinion the plaintiff was highly vulnerable. 93 As regards reliance, in my opinion reliance by the plaintiff on the first defendant was not a significant feature of the relationship. The agreed statement of facts, which is accepted to constitute the facts relevant to the issues before this Court, do not suggest any reliance, in the sense of any action or inaction by the plaintiff because of reliance on the first defendant, other than ordinary co-operation in the investigation. 94 As regards assumption of responsibility, it is plain that the first defendant did assume a responsibility to investigate and to make findings of fact, which in all the circumstances was a substantial responsibility with potentially devastating consequences for the plaintiff or Ms Sanger, or both of them. 95 As regards control, the whole conduct of the investigation was in the control of the first defendant, and in that regard she was not under any constraints except those arising from her obligations undertaken to the Department by her acceptance of the task. 96 If the matter ended there, I would have been inclined to find that the relationship between the first defendant and the plaintiff was such as to give rise to a duty of care: cf Chapman v Luminis (No 4) [2001] FCA 1106; (2001) 123 FCR 62, at [243]. However, the two other considerations referred to by Allsop ACJ in Spearpoint are relevant; and in my opinion one of them is sufficient in this case to preclude the existence of a duty of care. 97 This consideration is the conformity of a duty of care with other duties or legal obligations owed by the first defendant. In my opinion, in the circumstances of her engagement, the first defendant did have an obligation to investigate and to make findings conscientiously, and not to be inhibited in doing so because of concerns about possible repercussions against herself from either the plaintiff or Ms Sanger. 98 I do not suggest that the mere existence of a contractual obligation of that kind will necessarily or even ordinarily displace a duty of care that might otherwise exist. In this case, however, the task given to the first defendant was one of some public significance. The honesty of Ministers and the confidence of the Premier and Parliament in Ministers is a matter of public importance; and when the Premier and his Department chose to inquire into something bearing on these matters by engaging a senior barrister to investigate allegations against a Minister, there was, in my opinion, a significant public interest in having that investigation conducted conscientiously and without any inhibitory effect from concern about possible liability to persons whose conduct was being investigated. 99 It could be contended that the exercise of reasonable skill and care not to cause harm by making incorrect findings is by no means inconsistent with any obligation the first defendant had to the Premier and the Department, but rather is precisely what that obligation required. However, in my opinion, for the first defendant to work under any threat of possible claims of negligence from the plaintiff or Ms Sanger, in the event of findings adverse to one or other of them, would be undesirably inhibiting. 100 For one thing, a person in the first defendant's position would understand that, if the law permits claims on the basis of negligence, such claims could be made and could cause at least inconvenience and expense, even if they were unsuccessful; and also that such claims could possibly succeed, even if reasonable skill and care has in fact been exercised. The standard of proof in relation to such claims would merely be on the balance of probabilities; so that the possibility of a decision that there has been negligence, when in fact there has not, is not a negligible or illusory possibility. 101 Thus, in my opinion, references such as that in Hill v Chief Constable of West Yorkshire [1989] AC 53 at 63 to a "detrimentally defensive frame of mind" are justified; and see also Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1238; Chapman at [264]; and State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 at [115]. And in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [62], it was said in the joint judgment of Gleeson CJ and Gaudron, McHugh, Hayne and Callinan JJ, in relation to the responsibilities of the respondents in that case to investigate and report upon allegations that children had suffered and were under threat of severe harm, that those functions "require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences to people in the position of the appellants or legal liabilities to such persons". 102 My conclusion that a duty of care is excluded has some confirmation also from the final consideration referred to by Allsop P, namely coherence with other legal principles. 103 In Sullivan at [54], there is the following statement in the joint judgment: [54] The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not. 104 I do not read that passage as altogether ruling out a duty of care in all cases where the law of defamation might apply. In a footnote to that paragraph, the joint judgment referred, without expressing either approval or disapproval, to Spring v Guardian Assurance Plc [1995] 2 AC 296, in which the House of Lords, by a four/one majority, held that an employer giving a reference in respect of a former employee owed that employee a duty to take reasonable care in its preparation. The majority considered that the fact that, in an action for defamation based on an inaccurate reference, the employer would have a defence of qualified privilege, did not bar an action in negligence where no such defence was available. In my opinion, while it is by no means clear that this case would be followed in Australia, it is at least arguable that, because defamation applies irrespective of any particular relationship between a defendant and a plaintiff and irrespective of any particular vulnerability of a plaintiff to injury by defamatory assertions by a defendant, defamation does not necessarily cover the field and exclude a duty of care in cases where there is some particular relationship created by assumption of responsibility by a defendant and where the plaintiff has particular vulnerability to injury from defamatory assertions by the defendant. 105 For that reason, I regard the duty of the first defendant to investigate and make findings conscientiously and without inhibition from concerns about possible repercussions to herself as the principal and effective reason for not finding a duty of care in this case. 106 It is also put for the defendants that there would be lack of coherence in the law in recognising a duty of care in this case, by reason of intersection with the law concerning misfeasance of public office. I accept that the applicability of that tort could be a ground for excluding a duty of care: see Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329. However, it seems clear that the tort cannot apply to a person who does not himself or herself hold a public office, but is merely contracted by a public official to carry out some task: Leerdam v Noori [2009] NSWCA 90. 107 For those reasons, I would answer question (3) No. Did the first defendant owe the plaintiff a duty of natural justice: Questions (1) and (2)? 108 Although I agree with Allsop P that the plaintiff's claim against the second defendant is not justiciable, and that there is no basis on which the Court could find that the second defendant (or the Lieutenant-Governor) owed the plaintiff a duty of natural justice, this is not necessarily the case in relation to the first defendant. As at present advised, I am not able to exclude the existence of a duty in the first defendant to afford natural justice to the plaintiff. 109 There is no doubt that the rights of the plaintiff were very much at risk from adverse findings by the first defendant: these findings were to amount to determination of Ms Sanger's complaint to the Department, and would if adverse almost inevitably result in his removal from the Ministry. I have held that a duty of care is excluded, because of the public nature of the task being undertaken by the first defendant and her associated obligations to the Premier and to the Department; and in these circumstances, it could be seen as unreasonable to withhold from the plaintiff any possibility of remedy. Very commonly, if a duty of care is excluded for reasons such as this, a plaintiff has a remedy on public law principles: cf Chapman at [269]. 110 The circumstance that the only remedy available, consistently with the answers given to questions (1) and (2) concerning the plaintiff's claim against the State of New South Wales, would be declarations 1 and 2, would not necessarily be fatal to the existence of a duty or to the grant of a remedy: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564. 111 The circumstance that the first defendant was not acting pursuant to any statutory authority, or even pursuant to any rules which could be interpreted as requiring natural justice to be afforded, again would not necessarily be fatal to the existence of a duty. In Ainsworth at 578, Mason, Dawson, Toohey and Gaudron JJ referred in this joint judgment, with apparent approval, to Fisher v Keane (1879) 11 Ch D 353. 112 In that case, a member of a club had been purportedly expelled from the club by the committee of the club, without being given notice of its intention to proceed against him or afforded an opportunity to defend himself. Jessel M.R. held that this action was invalid on each of two grounds. The first was failure to comply with the rules of the club. The second was denial of natural justice. On the second matter, in a passage quoted with approval in the joint judgment of Ainsworth, Jessel M.R. said this (at 362-363): according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, [they ought not] to blast a man's reputation for ever – perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct. 113 The passage seems to state a general rule, not dependent on the construction of particular rules under which the body is acting, otherwise than by being subject to exclusion by those rules. Such a view has support from the judgment of Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584, where he speaks of a common law duty to act fairly in the making of administrative decisions which affects rights, subject only to a clear manifestation of a contrary statutory intention. I would add that, if the decision is under rules such as the rules of a club, such a duty would also apply, subject to a clear manifestation of contrary intention in those rules. On that basis, the existence of the duty can arise from the nature of the decision and its potential to affect rights, without the necessity to imply the existence of the duty by some exercise of interpretation of the statutory provisions or rules pursuant to which the decision is made. 114 It will be apparent that I have limited my reasons on these questions to reasons for not excluding the existence of a duty in the first defendant to afford natural justice to the plaintiff; and I have not gone so far as to find that such a duty exists. This is because it seems to me that Ms Sanger may be a proper party, and perhaps even a necessary party, to proceedings by the plaintiff against the first defendant seeking declarations 1 and 2. At present Ms Sanger has the benefit of favourable findings on her complaint to the Department; and if declarations 1 and 2 were made, she could and perhaps would lose that benefit. We have not had submissions on this question as to the position of Ms Sanger, and I am not determining it; but the existence of this question is sufficient in my opinion to make it appropriate to refrain from expressing a final view on the existence of any duty to afford natural justice. I would add that I do not think this consideration stands in the way of negative determination of questions (1) and (2) as regards the State of New South Wales, or a negative decision as to the existence of a duty of care. I do not think Ms Sanger would be a proper party in relation to the plaintiff's action in negligence against the first defendant, and certainly she would not be a necessary party. Parliamentary privilege: Question (4) 115 Article 9 of the Bill of Rights 1688 (Imp) 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. 116 In my opinion, a very helpful discussion of this provision is that of Lord Woolf MR delivering the judgment of the Court of Appeal in Hamilton v Al Fayed [1999] 3 All ER 317. In that case, the defendant was seeking to have an action for defamation struck out or stayed on the basis of Parliamentary privilege. In dealing with a submission of counsel for the defendant, Mr Carman QC, Lord Woolf said this (at 331): … The starting point for an appraisal of Mr Carman's submission is, no doubt, the proposition that article 9 is a provision of high constitutional importance and ought not to be narrowly construed; Lord Browne-Wilkinson so stated in Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42 at 67, [1993] AC 593 at 638. But he at once continued ([1993] 1 All ER 42 at 67–68, [1993] AC 593 at 638): 'It ensures the ability of democratically elected members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech). But, even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word "question" which the Attorney General urges. It must be remembered that art 9 prohibits questioning not only "in any court" but also in any "place out of Parliament". If the Attorney General's submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute "questioning" since all members of Parliament must speak and act taking into account what political commentators and others will say. Plainly art 9 cannot have effect so as to stifle the freedom of all to comment on what is said in Parliament, even though such comment may influence Members in what they say. In my judgment, the plain meaning of art 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament.' This reasoning seems to us, with respect, to indicate that the reach of art 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) for anything said in Parliament, and (b) direct criticism by the courts of anything said or done in the course of parliamentary proceedings. Lord Browne-Wilkinson had occasion to return to art 9 in giving the judgment of the Privy Council in Prebble v Television New Zealand Ltd , in which he said ([1994] 3 All ER 407 at 415, [1995] 1 AC 321 at 333–334): 'Finally, Hunt J [in an earlier case in New South Wales— R v Murphy (1986) 5 NSWLR 18] based himself on a narrow construction of art 9, derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1688 as being, inter alia, the assertion by the King's courts of a right to hold a member of Parliament criminally or legally liable for what he had done or said in Parliament. From this he deduced the principle that art 9 only applies to cases in which a court is being asked to expose the maker of the statement to legal liability for what he has said in Parliament. This view discounts the basic concept underlying art 9, viz the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect. Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.' (Lord Browne-Wilkinson's emphasis.) In our view this confirms that the vice to which art 9 is directed (so far as the courts are concerned) is the inhibition of freedom of speech and debate in Parliament that might flow from any condemnation by the Queen's courts, being themselves an arm of government, of anything there said. The position is quite different when it comes to criticisms by other persons (especially the media) of what is said in Parliament. Lord Browne-Wilkinson himself drew this distinction in the passage we have cited from Pepper v Hart . The courts could only have legitimate occasion to criticise anything said or done in parliamentary proceedings if they were called on to pass judgment on any such proceedings; but that they clearly cannot and must not do. Nor therefore should they issue such criticisms on any occasion, for to do so would be gratuitous. In consequence we think with respect that Popplewell J was wrong to level any assault on the procedures adopted by the PCS; and this conclusion will satisfy the major concerns which have brought the Solicitor General to intervene in the proceedings before us. 117 Lord Woolf then went on to say (at 333) that "this conclusion … provides no answer to the question whether this action for libel constitutes an impermissible collateral attack on proceedings in Parliament"; and he held that (even apart from the effect of a particular statutory provision) it would not. 118 While the House of Lords dismissed an appeal from this decision of the Court of Appeal (see Hamilton v Al Fayed [2001] 1 AC 395), Lord Browne-Wilkinson (with whom the other four Law Lords agreed) at 407 questioned that latter aspect of the Court of Appeal decision, because it did not address the possible prejudice to a fair trial if privilege precluded the court from entertaining evidence, cross-examination or submissions which challenged the veracity or propriety of anything done in the course of Parliamentary proceedings. However, Lord Browne-Wilkinson (at 406) said that the Court of Appeal was clearly correct on the matter dealt with in the passage quoted above. 119 Lord Woolf's discussion suggests that what the privilege protects from criticism in courts is anything said or done in the course of Parliamentary proceedings, and it does not protect things said or done outside such proceedings merely because they may be repeated in the course of Parliamentary proceedings (although the occasion of repetition would be protected). 120 If the preparation of a report is directed by Parliament itself or a committee of Parliament, and the report is produced to Parliament or the committee in the first instance, then it seems clear that the report would be protected. Hamilton v Al Fayed itself concerned an inquiry and report by a commissioner appointed pursuant to the House of Commons' standing orders to investigate complaints against Members, with the report being made to Parliament and/or its committee. 121 As at present advised, I am not able to decide that the same applies to an inquiry commissioned by the Executive, with the result to be reported to the Executive, and only subsequently tabled in Parliament. It is true that the business of Parliament includes holding the Executive to account, and the maintenance of the confidence of Parliament in relation to the composition of the Executive; but this does not necessarily mean that the tabling in Parliament of a report obtained by the Executive for its purposes makes that report, so obtained by the Executive, a proceeding in Parliament. It was submitted for the defendants that it must be so in this case, because the report related not just to any business of the Executive but to the constitution of the Executive itself; but at present I am not able to decide that this does make a difference. 122 I note that in relation to the Commonwealth Parliament, s 16 of the Parliamentary Privileges Act 1987 (Cth) provides: 16 Parliamentary privilege in court proceedings (1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section. (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; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published. (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 (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. (4) A court or tribunal shall not: (a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or (b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence; unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence. (5) In relation to proceedings in a court or tribunal so far as they relate to: (a) a question arising under section 57 of the Constitution ; or (b) the interpretation of an Act; neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record. (6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates. (7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act. 123 At least in relation to s16(3), the Privy Council in Prebble v Television New Zealand [1995] 1 AC 321 held that this provision declared what had previously been regarded as the effect of Article 9. 124 It was submitted for the defendants that the investigation report in this case was within s 16(2)(c) as being the preparation of a document for the purposes of or incidental to the transacting of any business of a House or committee; and that the relevant business here was the Legislative Assembly's role in holding the Executive to account and overseeing its activities and composition, having regard to the need of the Executive to maintain the confidence of the Legislative Assembly. As at present advised, I am not able to hold that this is so: it seems arguable to me that this role of Parliament is not itself business of Parliament or a committee of Parliament, and that the tabling of a report prepared at the request of the Executive and provided to the Executive for the purposes of the Executive is not itself Parliamentary business that makes the report itself immune to criticism in the courts; and that if s 16(2)(c) were to be otherwise construed, it would not reflect the general law and would be irrelevant to the position in relation to the New South Wales Parliament. 125 Again, I have expressed myself tentatively, for the same reasons as before. Conclusions 126 For the reasons I have given, I would join in dismissing the statement of claim in respect of the relief claimed in pars 2A, 2B, 3, 4, 5 and 6. As regards the relief claimed in paragraphs 1 and 2, it seems to me that the following questions are outstanding: (1) Is Ms Sanger a proper or necessary party to those proceedings? (2) If so, does the plaintiff apply to join her? (3) If so, should such an application be granted? (4) If or when the proceedings are found to be properly constituted as regards declarations 1 and 2, what is the final answer to questions (1), (2) and (4) in relation to those issues? 127 I note that the third of the above questions, if it arises, could involve consideration of whether the plaintiff has an arguable case of denial of natural justice, on the basis of pleadings and perhaps on the basis of evidence the plaintiff might choose to lead on such an application. The issues raised in this Court have not concerned whether the plaintiff has such an arguable case. 128 Although it might be thought desirable to resolve the question of proper constitution of the proceedings before giving any judgment, in my opinion the preferable course, in circumstances where the proceedings have been expedited and there is some urgency at least in relation to the claims for relief against the second defendant, to give judgment on the matters as to which the Court can reach a final view, and then to stand the matter over for an application to be made for orders and/or directions as to the procedure to be adopted in relation to the outstanding questions. 129 HANDLEY AJA: In this matter I have had the advantage of reading the reasons for judgment of the President and Hodgson JA in draft. I agree with the President's reasons for answering Questions 1 and 2 in the negative, and with his reasons for deciding that the first defendant did not owe a legal duty of care to the plaintiff. I also agree with the tentative reasons of the President and Hodgson JA on the question of Parliamentary privilege. 130 Although I agree with the President's tentative reasons on the position of Ms Ronalds, and the question of whether she had a duty to afford procedural fairness, I wish to add further reasons of my own. 131 The common law does not recognize any general duty of procedural fairness before publishing material which defames another. The liability for such material is governed by the law of defamation. The position is otherwise where a person or persons has been given a power, by or under statute, or by contract or consensual compact. 132 A common law duty of procedural fairness is annexed by law to a power where its exercise can prejudice "a person's rights, interests or legitimate expectations": Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578. Fisher v Keane (1879) 11 Ch D 353 established that a person's interests for this purpose include his reputation. This basis for recognising such a duty was emphatically reasserted in Ainsworth (above). 133 In the earlier case the power was sourced in private law in the consensual compact in the rules of the Club. In the latter the power was sourced in public law based on the statute creating the Commission. For this purpose nothing turns on the source of the power, and everything turns on its nature. 134 Wood v Woad (1874) 9 LR Ex 190 dealt with the decision of the committee of a mutual insurance society to expel the plaintiff in breach of the rules of procedural fairness. Kelly CB based the duty on the committee's power under the rules of the Society and said at 196: "This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals." 135 Cooper v The Board of Works for the Wandsworth District (1863) 14 C.B. (N.S.) 180 143 ER 414] confirmed the existence of a duty to afford procedural fairness before exercising a statutory power to affect a person's property interests. Byles J said (at 194; 420): "that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature." Erle CJ said (at 187; 417) that: "the powers granted by that statute are subject to a qualification which has been repeatedly recognized" and he made other references to the Board's power. 136 The existence of a power as the basis for the recognition of a duty of procedural fairness was again emphasised in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; 137 CLR 487 where Aickin J, whose judgment was concurred in by Stephen and Mason JJ, referred to the Commission's statutory powers and their relevance to the recognition of a duty of procedural fairness at 499, 509, 510, 511 and 513. The later cases in the High Court have dealt with statutory powers. In Ainsworth the judgment of the plurality contained frequent references to the Commission's statutory powers and their relevance at 573, 574, 575, 576, 577 and 578. 137 I therefore have serious doubts about the existence of any freestanding legal duty to accord procedural fairness where a person has been given the task of investigation and report under a bilateral retainer without any authority in statute, prerogative, or consensual compact and without any legally recognised power. However I recognise that the parties have not been properly heard on this question and there should be an opportunity for further argument if this is desired. 138 I agree with the orders proposed by the President. ********** 07/09/2009 - Grammatical error - Paragraph(s) 76 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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