Carne v Crime and Corruption Commission No 2 [2021] QSC 241

SUPREME COURT OF QUEENSLAND CITATION: Carne v Crime and Corruption Commission No 2 [2021] QSC 241 PARTIES: PETER DAMIEN CARNE (applicant) v CRIME AND CORRUPTION COMMISSION (respondent) FILE NO/S: BS No 10786 of 2020 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 29 September 2021 DELIVERED AT: Brisbane HEARING DATE: The matter was decided on written submissions without oral hearing JUDGE: Davis J ORDER: There be no order as to the costs of the application. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the applicant brought proceedings for declarations concerning a report prepared by the respondent – where the complaints of the applicant were held to be non-justiciable – where parliamentary privilege rendered the applicant’s complaints non-justiciable – where the respondent sought costs of the application – where privilege was found on grounds different than initially argued by the respondent – where there is public interest in having the construction of the Crime and Corruption Act 2001 decided – whether costs should follow the event – whether there are exceptional reasons why they ought not Crime and Corruption Act 2001, s 69 Uniform Civil Procedure Rules 1999, r 681 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, followed Annetts v McCann (1990) 170 CLR 596, followed Barron River Foods Pty Ltd v National Australia Bank Ltd [2005] QSC 138, cited Carne v Crime and Corruption Commission [2021] QSC 228, related -- 1 of 7 -- 2 CJC & Ors v Dick [2000] QSC 272, cited Criminal Justice Commission v Parliamentary Criminal Justice Commissioner (2002) 2 Qd R 8, followed Deeson Heavy Haulage Pty Ltd v Cox (No 2) [2009] QSC 348, cited Donald Campbell & Co Ltd v Pollak [1927] AC 732, followed NJF Holdings Pty Ltd v De Pasquale Bros Pty Ltd [1999] QSC 328, cited Oshlack v Richmond River Council (1998) 193 CLR 72, followed Rivlin v Bilainkin (1953) 1 QB 485, cited Rowley v O’Chee [2000] 1 Qd R 207, cited COUNSEL: The matter was decided on written submissions without oral hearing SOLICITORS: Gilshenan & Luton for the applicant Crime and Corruption Commission for the respondent [1] On 10 September 2021 I dismissed an application brought by Peter Damien Carne seeking declarations concerning a report into his conduct prepared by the Crime and Corruption Commission (the CCC).1 Background [2] Mr Carne was the Public Trustee of Queensland2 from March 2009 to March 2014 and then again from March 2016 to 31 July 2020 when he resigned. [3] In September 2018, the CCC commenced an investigation into Mr Carne. By October 2020, a draft report had been prepared and there had been communications between the CCC and solicitors acting for Mr Carne, Gilshenan & Luton. [4] Gilshenan & Luton advised the CCC that there would be a challenge to the report. The CCC then delivered the report to the Parliamentary Crime and Corruption Commission (the PCCC). The report was said to be delivered pursuant to s 69 of the Crime and Corruption Act 2001 (the CC Act) which provides: “69 Commission reports to be tabled (1) This section applies to the following commission reports— (a) a report on a public hearing; (b) a research report or other report that the parliamentary committee directs be given to the Speaker. (2) However, this section does not apply to the commission’s annual report, or a report under section 49 or 65, or a report to which section 66 applies. 1 Carne v Crime and Corruption Commission [2021] QSC 228. 2 Public Trustee Act 1978. -- 2 of 7 -- 3 (3) A commission report, signed by the chairperson, must be given to— (a) the chairperson of the parliamentary committee; and (b) the Speaker; and (c) the Minister. (4) The Speaker must table the report in the Legislative Assembly on the next sitting day after the Speaker receives the report. (5) If the Speaker receives the report when the Legislative Assembly is not sitting, the Speaker must deliver the report and any accompanying document to the clerk of the Parliament. (6) The clerk must authorise the report and any accompanying document to be published. (7) A report published under subsection (6) is taken, for all purposes, to have been tabled in and published by order of the Legislative Assembly and is to be granted all the immunities and privileges of a report so tabled and published. (8) The commission, before giving a report under subsection (1), may— (a) publish or give a copy of the report to the publisher authorised to publish the report; and (b) arrange for the prepublishing by the publisher of copies of the report for this section.” [5] As the report was not the result of a “public hearing”,3 the report was delivered to the PCCC who then, pursuant to s 69(1)(b) of the CC Act, was to decide whether to direct that the report be given to the Speaker of the Legislative Assembly of Queensland. [6] Mr Carne sought declarations on various bases including that he had not been afforded procedural fairness in the preparation of the report. [7] The CCC challenged the justiciability of any challenge to the report on the basis that parliamentary privilege forbade such a challenge.4 [8] The Speaker appeared amicus curiae and supported the CCC’s submission that the report was protected by parliamentary privilege and that Mr Carne’s application was therefore non-justiciable. [9] After considering the matter, I sought further submissions from the parties in relation to the parliamentary privilege claim. Those submissions were provided. 3 Crime and Corruption Act 2001 s 69(1)(a). 4 Parliament of Queensland Act 2001 ss 8 and 9. -- 3 of 7 -- 4 [10] I found that the report was protected by parliamentary privilege and that Mr Carne’s application sought to impeach or question the report.5 Therefore, Mr Carne’s application was not justiciable.6 [11] Upon delivering judgment, I made directions for the exchange of written submissions on costs and the determination of the question without oral hearing unless any party made application to make oral submissions. Written submissions were exchanged. No party made application to make oral submissions. [12] Mr Carne seeks an order that each party bear their own costs. While the CCC does not consent to such an order, it has said that it will make no submissions against the making of the order which Mr Carne seeks. Discussion and disposal of the question of costs [13] Rule 681 of the Uniform Civil Procedure Rules 1999 (the UCPR) provides: “681 General rule about costs (1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise. (2) Subrule (1) applies unless these rules provide otherwise.” [14] The rule reflects the established principles explained by McHugh J in his Honour’s often quoted judgment in Oshlack v Richmond River Council:7 “67 The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. 68 As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an 5 Parliament of Queensland Act 2001 s 8. 6 Carne v Crime and Corruption Commission [2021] QSC 228 at [59]-[142] especially [138]-[142]. 7 (1998) 193 CLR 72 at 97. -- 4 of 7 -- 5 increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.”8 [15] Rule 681 provides a discretion to depart from the usual rule that costs follow the event. There have been many decisions which have considered circumstances where it is appropriate to depart from the usual rule.9 The discretion under r 681, like any judicial discretion, must be exercised judicially and having regard to relevant principles such as those explained by McHugh J in Oshlack. However, the discretion is a wide one to be exercised so as to do justice in the particular case.10 [16] Here, there are good reasons to depart from the general rule. [17] There is no suggestion that Mr Carne brought the application other than bona fide. It is well established that, subject to any relevant statutory regime, where there is a finding as to the conduct of a person which has the potential to damage the person’s reputation: (i) the person named adversely in the report or finding has standing to seek declaratory relief;11 (ii) procedural fairness must usually be afforded to a person adversely named;12 and (iii) a person adversely named who is not afforded procedural fairness may obtain relief by way of declaration to that effect.13 [18] In Criminal Justice Commission v Parliamentary Criminal Justice Commissioner,14 a report was prepared by the Parliamentary Criminal Justice Commissioner who by force of provisions of the Criminal Justice Act 198915 was an officer of the Assembly. That report was challenged by the Criminal Justice Commission.16 Helman J, at first instance, held that parliamentary privilege attached to the report17 and on appeal, all three members of the Court of Appeal18 agreed. Neither Williams JA nor Chesterman J looked at the merits of the complaint. Williams JA held: “… It follows that the reports of the respondent in question are deemed to be ‘proceedings in Parliament’ and, as the reasoning of McPherson J.A. establishes, the appellants seek to challenge such proceedings. Article 9 of the Bill of Rights19 clearly operates to make such a challenge impermissible at law. Given the provisions of the PP Act the proceedings commenced by the appellants clearly involve the 8 Citations omitted. 9 For example, NJF Holdings Pty Ltd v De Pasquale Bros Pty Ltd [1999] QSC 328, Barron River Foods Pty Ltd v National Australia Bank Ltd [2005] QSC 138 and Deeson Heavy Haulage Pty Ltd v Cox (No 2) [2009] QSC 348. 10 Donald Campbell & Co Ltd v Pollak [1927] AC 732 at A11-A12. 11 Annetts v McCann (1990) 170 CLR 596. 12 Annetts v McCann (1990) 170 CLR 596 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. 13 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. 14 (2002) 2 Qd R 8. 15 A legislative predecessor of the Crime and Corruption Act 2001. 16 A predecessor of the Crime and Corruption Commission. 17 CJC & Ors v Dick [2000] QSC 272. 18 McPherson JA, Williams JA and Chesterman J. 19 See the history of the Bill of Rights in Queensland in Carne v Crime and Corruption Commission [2021] QSC 228 at [59]-[72]. -- 5 of 7 -- 6 question of ‘proceedings in Parliament’, and Helman J. was right in refusing the relief sought. The result is that neither Helman J. nor this Court could investigate whether or not there was any breach of procedural fairness in the way the Commissioner performed her task. In my view, given the operation of art. 9 in this case, this Court should refrain from commenting in any way on that issue.”20 (emphasis added) [19] McPherson JA expressed views about the merits before then determining that privilege applied. [20] I took the approach of Williams JA and Chesterman J. In my view, once parliamentary privilege is held to apply, any argument about the report ceases to be the subject of judicial scrutiny and the matter becomes one for the Assembly. [21] As a result, there has been no determination of the complaints raised by Mr Carne about the report. The merits of his arguments have not been determined and certainly have not been determined against him. [22] In the CCC’s initial written submissions on the principal application, parliamentary privilege was said to arise because the report had been delivered to the PCCC. That was also the position taken by the Speaker. However, that then gave rise to consideration of the principles identified in Rivlin v Bilainkin,21 namely that documents prepared by a third party generally do not attract parliamentary privilege unless there is some act by the Parliament or a member to bring the document within the proceedings of the Parliament.22 That issue had not been addressed in the parties’ submissions. [23] I sought further submissions from the parties on that point. Further, and somewhat different submissions from those originally made were received. I then found that the report attracted parliamentary privilege because it was delivered to the PCCC in the context of various provisions of the CC Act.23 [24] Issues concerning the impact of the statutory scheme of the CC Act upon the question of parliamentary privilege arising over a report prepared by the CCC and delivered pursuant to s 69(1)(a) had not been directly considered previously. The CCC has obtained the benefit of a considered judgment on the point. There is no doubt public interest in jurisprudence being developed around important legislation such as the CC Act and important institutions such as the CCC. [25] Given that the complaints about the report made by Mr Carne have not been determined against him, the fact that the arguments which were ultimately successful on the question of parliamentary privilege were not initially raised by either the CCC or the Speaker, and the fact that both the CCC and the public have an interest in questions concerning the relationship between the CCC and the Assembly being judicially considered, this is in my view a case where there should be a departure from the general rule as to costs. 20 At [33]-[34] and see also Chesterman J at [47] and [51]. 21 (1953) 1 QB 485. 22 See also Rowley v O’Chee [2000] 1 Qd R 207 at 221. 23 Carne v Crime and Corruption Commission [2021] QSC 228 at [120]. -- 6 of 7 -- 7 [26] Each party should bear their own costs of the application. That result is best achieved by ordering that there be no order as to costs of Mr Carne’s application. Order [27] There be no order as to the costs of the application. -- 7 of 7 --