The Attorney-General v Leigh

• Jurisdiction: New Zealand
• Judge: Tipping J
• Judgment Date: 16 September 2011
• Neutral Citation: [2011] NZSC 106
• Court: Supreme Court
• Docket Number: SC 11/2011
• Date: 16 September 2011

BETWEEN

The Attorney-General

First Appellant

And

Lindsay Gow

Second Appellant

and

Erin Alice Leigh

Respondent

[2011] NZSC 106

Court:

Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ

SC 11/2011

IN THE SUPREME COURT OF NEW ZEALAND

Appeal from a Court of Appeal decision refusing a strike out application on the grounds that public officials assisting Ministers to answer Parliamentary questions were protected by qualified privilege rather than absolute privilege under s13 Defamation Act 1992 (absolute privilege in relation to Parliamentary proceedings) against claims for defamation — whether the appropriate test for determining whether the communication was part of a parliamentary proceeding and warranted absolute privilege was reasonable incidentality or necessity.

Counsel:

J W Tizard and A J Connor for Appellants

J G Miles QC and S E Trafford for Respondent

J C Pike and P J Gunn for Speaker of the House of Representatives as Intervener

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

(Given by Tipping J)

Introduction

1 In November 2007 the then Minister for the Environment, the Hon Trevor Mallard, was asked a written question for oral answer in the House of Representatives. To enable him to answer the question the Minister asked the Chief Executive of the Ministry for a briefing on the circumstances which had given rise to the question. The Chief Executive delegated that task to the second appellant, Mr Gow, a Deputy Secretary. Mr Gow briefed the Minister both orally and in writing and the Minister used the information supplied to him to answer the parliamentary question. The respondent, Ms Leigh, issued proceedings in the High Court claiming on two causes of action that Mr Gow had defamed her both in what he had told the Minister orally and in what he had written in his briefing note. Mr Gow contended that his written and oral communications with the Minister had taken place on an occasion of absolute privilege and that the claim against him should on that account be struck out. Both the High Court 1 and the Court of Appeal 2 held that the occasion in question was an occasion of qualified rather than absolute privilege and that the claim could not therefore be struck out as barred by absolute privilege. The Attorney-General and Mr Gow appeal to this Court from the conclusion that the occasion on which Mr Gow communicated with the Minister was not one of absolute privilege. We would dismiss the appeal and uphold the decision of the Court of Appeal for the reasons which follow.

Absolute privilege

2 Section 13(1) of the Defamation Act 1992 provides that proceedings in the House of Representatives are protected by absolute privilege. 3 This provision is consistent with art 9 of the Bill of Rights Act 1688, and the exclusive cognisance or jurisdiction rule which is largely the opposite side of the art 9 coin. 4 As Binnie J said, when writing for the Supreme Court of Canada in Canada (House of Commons) v Vaid, 5 the purpose of parliamentary privilege is to recognise Parliament's exclusive jurisdiction to deal with complaints within its privileged sphere of activity.

3 Article 9 provides that “[t]he freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament”. It is the words that are common to both art 9 and s 13 – “proceedings in Parliament/the House of Representatives” – that fall to be interpreted and applied in this case. Was the occasion on which Mr Gow communicated with the Minister such that it can validly be described as part of proceedings in Parliament”

4 Things said for the purpose of conducting parliamentary business “within the walls of the House itself”, as Lord Coleridge CJ put it in Bradlaugh v Gosset, 6 are said on an occasion of absolute privilege for the purposes of the law of defamation. But there can be occasions of absolute privilege in respect of matters that do not take place literally within the walls of the House of Representatives. The recent decision of the House of Lords in Chaytor 7 reflects the point. In that case members of the House of Commons and a member of the House of Lords were being prosecuted for submitting false expenses claims. They contended that either under art 9 or under the exclusive cognisance or jurisdiction rule they had absolute privilege and could not be prosecuted in the ordinary courts. In the course of his judgment rejecting that contention Lord Phillips PSC put the matter in this way: 8

[47] The jurisprudence to which I have referred is sparse and does not bear directly on the facts of these appeals. It supports the proposition, however, that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.

5 In Vaid the Supreme Court of Canada encapsulated the same general approach under what Binnie J described as the doctrine of necessity; that is, whether it is necessary for the proper and efficient conduct of the business of the House for the occasion in question to be classified as one of absolute privilege. As the Vaid

Court observed, it is appropriate to test a claim for absolute privilege against “the doctrine of necessity, which is the foundation of all parliamentary privilege?. 9

6 It was established as long ago as 1839, when Stockdale v Hansard 10 was decided, that necessity is the rationale which underpins absolute privilege in respect of Parliamentary proceedings. In that case Patteson J said: 11

Where then is the necessity for this power? Privilege, that is, immunities and safeguards, are necessary for the protection of the House of Commons, in the exercise of its high functions. All the subjects of this realm have derived, are deriving, and I trust and believe will continue to derive, the greatest benefits from the exercise of those functions. All persons ought to be very tender in preserving to the House all privileges which may be necessary for their exercise, and to place the most implicit confidence in their representatives as to the due exercise of those privileges. But power, and especially the power of invading the rights of others, is a very different thing: it is to be regarded, not with tenderness, but with jealousy; and, unless the legality of it be most clearly established, those who act under it must be answerable for the consequences.

7 This statement is also an early recognition of the need to balance claims for absolute privilege against the importance of preserving the ability of citizens to resort to the courts for redress, if their rights (here to reputation) are said to have been infringed. Where the claim for absolute privilege would result, if successful, in depriving citizens of their common law rights, the courts will be astute to ensure that the claimed absolute privilege is truly necessary for the proper and effective functioning of Parliament. In such circumstances the privilege must be necessary in the sense of essential, as McLachlin J put it in New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly). 12 And, as the leading text Erskine May says, 13 absolute privilege exists when, without it, Parliament and its individual members could not discharge their functions.

8 The question in this case is therefore whether it is necessary for the proper and efficient functioning of the House of Representatives that the occasion on which Mr Gow communicated with the Minister be regarded as an occasion of absolute privilege. Has Mr Gow shown that without this kind of occasion being regarded as absolutely privileged the House could not discharge its functions properly?

9 Mr Tizard, for the Attorney-General and Mr Gow, sought to place the principal emphasis on the closeness of the connection between the occasion in issue and the parliamentary proceeding to which it related. He emphasised that the Minister had an obligation to the House to respond to the question asked of him fully and with honesty and candour. He could only do so by obtaining the necessary information from the Ministry. He contended that on account of the closeness of this connection the occasion should be regarded as part of a proceeding in Parliament in which the question addressed to the Minister was asked and fell to be answered. While the closeness of the connection may well be relevant to the question of necessity it does not answer that question. As the earlier discussion has demonstrated, what matters is whether the asserted privilege is necessary for the proper and efficient functioning of the House and its members. Unless the necessity test is met there will be insufficient connection.

10 Mr Pike, for the Speaker, submitted that the proper test was whether the occasion in question was reasonably incidental to the discharge of the business of the House. Mr Pike derived the concept of “reasonably incidental” from the language of s 16(2)(c) of the Parliamentary Privileges Act 1987 (Cth). That Act does not of course apply in New Zealand. In Prebble v Television New Zealand Ltd 14 Lord Browne-Wilkinson, writing for the Privy Council, said that s 16(3) of the Australian Act contained the true principle to be applied in that case. 15 His...