[2024] HCA 31
Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
H3/2023
HIGH COURT OF AUSTRALIA
Statutes — Construction — Statutory consequence of non-compliance with statutory condition of exercise of power — Where s 16(1) of Public Works Committee Act 1914 (Tas) (“Act”) stipulates conditions precedent to commencement of public work proposed to be undertaken by Tasmanian Government department or State authority — Conditions precedent that public work referred to and reported upon by Parliamentary Standing Committee on Public Works (“Committee”) — Where Tasmanian Government Department of State Growth proposed new interchange be constructed — Where proposal referred to and reported upon by Committee — Where person with claimed interest in adjacent land brought proceeding against construction company in Supreme Court of Tasmania alleging commencement of road work contravened s 16(1) of Act as different from proposal referred to and reported upon by Committee — Where Attorney-General for Tasmania joined as defendant to proceeding — Where Attorney-General sought order that statement of claim be struck out or proceeding be dismissed because statement of claim failed to disclose cause of action in that no justiciable issue before Court or because adjudication by Court would contravene privilege of Tasmanian Parliament — Whether observance of conditions precedent to commencement of public work stipulated by s 16(1) of Act an obligation enforceable by a court.
Words and phrases — “conditions precedent”, “duty”, “exclusive cognisance of Parliament”, “impeached or questioned”, “intra-mural”, “justiciable controversy”, “non-compliance”, “non-justiciable”, “parliamentary privilege”, “political accountability”, “public obligation”, “public work”, “public works committee”, “referred to and reported upon by”, “responsible government”.
Bill of Rights 1688 (1 W & M sess 2 c 2), Art 9.
Public Works Committee Act 1914 (Tas), ss 15, 16, 17.
S K Kay SC, Solicitor-General for the State of Tasmania, with E A Warner for the appellant (instructed by Office of the Solicitor-General (Tas))
B R McTaggart SC with G M O'Rafferty for the first respondent (instructed by Leonard Fernandez Barristers & Solicitors)
S P Donaghue KC, Solicitor-General of the Commonwealth, with E H I Smith and M-Q T Nguyen for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M J Wait SC, Solicitor-General for the State of South Australia, with J F Metzer for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))
A P Berger KC with P M Bindon for the Attorney-General for the Australian Capital Territory, intervening (instructed by ACT Government Solicitor)
Submitting appearance for the second respondent
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1. Appeal allowed.
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2. Set aside the orders made by the Full Court of the Supreme Court of Tasmania on 4 May 2023 and, in their place, order that the appeal from the orders made by the Supreme Court of Tasmania on 21 February 2022 be dismissed with costs.
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3. The first respondent pay the appellant's costs of the appeal to this Court.
On appeal from the Supreme Court of Tasmania
Gageler CJ, Gordon, Steward, Gleeson, Jagot AND Beech-Jones JJ. Section 16(1) of the Public Works Committee Act 1914 (Tas) (“the Act”) stipulates conditions precedent to the commencement of a public work proposed to be undertaken by a Tasmanian Government department or State authority. The conditions precedent are that the public work has been referred to and reported upon by a Joint Committee of Members of the Legislative Council and House of Assembly known as the “Parliamentary Standing Committee on Public Works” (“the Committee”).
The dispositive question in this appeal is whether observance of those conditions precedent to the commencement of a public work is an obligation that is enforceable by a court. The answer is that it is not.
The Tasmanian Government Department of State Growth (“the Department”) proposed that a new interchange be constructed at a road junction near Hobart Airport where Holyman Avenue and Cranston Parade meet the Tasman Highway. The proposal was referred to and reported upon by the Committee in 2017. The Department subsequently engaged Hazell Bros Group Pty Ltd (“Hazell Bros”) to construct a new interchange at the junction.
Mr Casimaty claims to have an interest in land adjacent to Cranston Parade. By writ and statement of claim filed in the Supreme Court of Tasmania in 2020, apparently at a time before Hazell Bros commenced the construction, Mr Casimaty brought a proceeding against Hazell Bros in which he sought a declaration that construction of the new interchange was a public work and an injunction restraining Hazell Bros from commencing construction until a proposal for that public work had been referred to and reported upon by the Committee. The essence of Mr Casimaty's pleaded case was that commencement of the road work that Hazell Bros had been engaged to undertake contravened s 16(1) of the Act in that the road work was different from the proposed road work that had been referred to and reported upon by the Committee in 2017. The pleaded differences were that the interchange Hazell Bros had been engaged to construct: was to cost $46.4 million rather than between $28.08 million and $29.99 million; was not to have connections from the westbound on-ramp to Cranston Parade that would allow only left turn movements; and was to have two roundabouts providing access to Holyman Avenue and Kennedy Drive.
By order under s 58(1)(j) of the Supreme Court Civil Procedure Act 1932 (Tas), the Attorney-General for Tasmania was joined as a defendant to the proceeding. Upon being joined as a defendant, the Attorney-General filed an interlocutory application seeking an order that the statement of claim be struck out or that the proceeding be dismissed either because the statement of claim as then amended failed to disclose a cause of action in that there was “no justiciable issue before the Court” or because adjudication by the Supreme Court of issues of fact raised on the pleadings would “offend the principle that parliamentary proceedings are absolutely privileged”.
The interlocutory application was heard and determined at first instance by Blow CJ. 1 His Honour was persuaded that for the Supreme Court to adjudicate on the existence and significance of the pleaded differences between the road work that Hazell Bros had been engaged to undertake and the proposed road work that had been referred to and reported upon by the Committee in 2017 would necessarily contravene the privilege of the Tasmanian Parliament. 2 His Honour for that reason struck out the statement of claim and dismissed the proceeding.
Mr Casimaty appealed to the Full Court of the Supreme Court. By majority, the Full Court allowed the appeal, set aside the order of the primary judge and in its place ordered dismissal of the Attorney-General's interlocutory application. 3 Brett J, with whom Pearce J agreed, construed s 16(1) of the Act as creating “a public obligation enforceable under the general law”. 4 His Honour accepted that adjudication of Mr Casimaty's pleaded case for the enforcement of that public obligation by injunction would require the Supreme Court to compare the road work that Hazell Bros had been engaged to undertake with the proposed road work that had been referred to and reported upon by the Committee in 2017. 5 Differing from the primary judge, however, his Honour found that making that comparison would not necessarily contravene any privilege of the Tasmanian Parliament. 6 Geason J dissented.
The Tasmanian Attorney-General sought and was granted special leave to appeal from the order of the Full Court. This Court was informed on the hearing of the appeal that construction of the interchange had been completed. On the basis that the effect of the order of the Full Court was to leave the proceeding in the Supreme Court on foot and that it was open to Mr Casimaty to apply to further amend his statement of claim to vary the relief he sought in the proceeding, it was not suggested that completion of the interchange rendered the appeal moot.
Reflecting the terms of the interlocutory application filed in the Supreme Court, the Tasmanian Attorney-General's appeal raises two grounds. The first ground is to the effect that the Full Court was wrong to construe s 16(1) of the Act as creating “a public obligation” enforceable by a court. The second ground is to the effect that the Full Court ought to have concluded that the primary judge was correct to consider that adjudication of the pleaded case would contravene the privilege of proceedings in the Tasmanian Parliament.
Mr Casimaty contested both grounds of appeal. Consistently with its stance before the primary judge and the Full Court, Hazell Bros played no active role in the appeal.
The Attorney-General of the Commonwealth was granted leave to intervene on the hearing of the appeal, as were the Attorneys-General for South Australia and the Australian Capital Territory. The Attorneys-General for South Australia and the Australian Capital Territory each supported the Tasmanian AttorneyGeneral on both grounds of appeal. The Attorney-General of the Commonwealth contested the second ground. In the result, it is unnecessary to address any of the competing arguments on parliamentary privilege.
The appeal can and should be resolved by upholding the first ground, concerning the construction of s 16(1) of the Act, with the consequence that the second ground does not arise for determination.
The Act has its origin...
