Story v Cook Islands Broadcasting and Newspaper Corporation [1979] CKHC 6; 080.1979 (6 December 1979)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
PLAINT 80/1979

BETWEEN

MARGUERITE STORY
PLAINTIFF

AND

COOK ISLANDS BROADCASTING AND NEWSPAPER CORPORATION
FIRST DEFENDANT

AND

THE ADVOCATE GENERAL OF THE COOK ISLANDS
SECOND DEFENDANT

AND

JOSEPH WILLIAMS
THIRD DEFENDANT

Counsel: Advocate-General and Temm Q.C for the Applicants
Ryan to oppose
No appearance for Third Defendant

Date of Hearing: 12 October 1979
Date of Judgment: 6 December 1979

JUDGMENT OF SIR GAVEN DONNE CJ

This is an application by the First and Second Defendants for an Order (inter alia) that this action be struck out as being frivolous, vexatious and an abuse of the process of the court. The grounds upon which the application is made are:

(a) THAT the determination of the Issue arising in this action would necessarily impeach or question the freedom of speech and debates or proceedings in the Legislative Assembly of the Cook Islands contrary both to the common law and to the provisions of Article 9 of the Bill of Rights 1688; and

(b) THAT the High Court has no jurisdiction to hear and determine any action brought in respect of any speech, debates, or proceeding generally in the Legislative Assembly of the Cook Islands or, in particular, in respect of any rulings or conduct of the Plaintiff in her capacity as Speaker of the Legislative Assembly of the Cook Islands.

The action arises out of an alleged libel of the plaintiff published by the First Defendant in its daily newspaper "Cook Islands News" on the 22^nd November 1978. The publication consisted of an article written by the Third Defendant and the cartoon drawn by a person under the nom-de-plume of "Serpico". The second defendant is the Government Printing Office sued through the Advocate-General of the Cook Islands. The article complained of reads as follows:

"Is she biased in her decisions or isn’t she? Is she favouring the C.I.P. opposition or isn’t she? ..... there has been, on occasions, the distinct impression that Madam Speaker may have been favouring her C.I.P. Colleagues."... The writer then states –"the question that is foremost in many people’s mind is this. ‘Is Madam Speaker favouring the Opposition? My answer is simply Yes.’... the writer then continues- ‘she is a human being with the same emotion make up as you and me. However much she tries to retain the unbiased status of the speakership, she cannot wholly forget that she is a staunch of C.I.P. supporter and she is in that position by virtue of her being an out and out C.I.P. What is more she is a woman – and a woman is very much dominated by her emotions. Should she remain in the office of Speaker. My answer simply is No. For the sake of the orderly proceedings of the Legislative Assembly, and in order that Government conducts its legislative business without unnecessary disruptions and without the implications of ministers of the Crown being treated like a bunch of kids, it is best that she vacates the chair."

The cartoon contains the statement:

"Madam Speaker appointed and given $12,000 salary by C.I.P. Is she favouring the C.I.P. Opposition?"

Over the statement is a caricature of the plaintiff seated holding her symbols of office as Speaker. On her right is a figure holding Scales, one tray of which is designated "CIP" and the other, weighing down the former, is marked "$12,000". On her left is a figure with a scythe presumably denoting "Father time". Over the Speaker’s head which is turned towards the figure on her right is a question mark.

The substance of the plaintiff’s complaint is contained in paragraph 9 of her statement of claim which reads as follows:-

"9. THAT the said article written by the Third Defendant with its cartoon and published by the First Defendant and printed by the Second Defendant were understood to mean that the Plaintiff is biased and an unfit person to be the Speaker of the House of Representatives of the Cook Islands."

The First and Second defendants in their defence plead (inter alia) the "rolled up plea" giving particulars as follows:-

"PARTICULARS

(a) The Plaintiff is and was at all material times Speaker of the Legislative Assembly.

(b) On or about Tuesday November 21 1978, a Member of the Legislative Assembly by interjection asserted that the Plaintiff was favouring the opposition Party in the said Assembly.

(c) On the same occasion the Deputy Premier was refused permission to make a Ministerial statement.

(d) At the time of the facts referred to in the said article, and at all material times before and since the Plaintiff has was and is an active supporter of the Opposition party in the Legislative Assembly."

The thrust of Mr. Temm’s argument on behalf of the defendants is that if the Court adjudicated upon this action it would involve a breach of the privileges of the Legislative Assembly of the Cook Islands since the issue which arises, namely, the unfitness of the plaintiff to hold office as Speaker of the Assembly, would necessarily involve an investigation and questioning of parliamentary proceedings presided over by her. He contends that the Legislative Assembly alone posses the sole right to adjudicate on such a matter, it being established in law that proceedings in the Parliament ought to be examined, discussed and adjudged in parliament alone and what is said and done within its walls, cannot be inquired into elsewhere. He further submits that in any case the court in defamation proceedings cannot receive evidence of parliamentary proceedings to adjudicate thereon and since this claim involves such evidence it must fail. For the plaintiff, Mr Ryan based his argument on two main submissions. Firstly he contends that parliamentary privilege extends only to those who are members of the Legislative Assembly, and that as the defendants are not members, they cannot benefit from such a defence. Secondly he submits that although the article complained of refers to the capacity of the plaintiff as Speaker of the Legislative Assembly, as far as she is concerned she does not have to rely on or have recourse to parliament proceedings to press her claim. He suggests that all that is required is for her to contend that she is fit and unless the defendants cannot, without recourse to evidence of proceedings in the Legislative Assembly, answer her, then she must succeed.

The Legislative Assembly of the Cook Islands derives its powers and privileges entirely from statute. Firstly, there is Article 36 of the Constitution the relevant sub articles of which are:

"36. Privileges of Legislative Assembly and of its members–

(1) The validity of any proceedings in the Legislative Assembly or in any committee thereof shall not be questioned in any Court.

(5) Subject to the provisions of this Article, the privileges of the Legislative Assembly and of the committees thereof, and the privileges of members and the Speaker of the Assembly and of the persons entitled to speak therein may be determined by Act:

Provided that no such privilege of the Assembly or of any committee thereof may extend to the imposition of a fine or to committal to prison for contempt or otherwise, unless provision is made by enactment for the trial and punishment of the person concerned by the High Court."

Secondly, there is Article 9 of the Bill of Rights 1688 which forms part of the law of the Cook Islands by virtue of section 615 of the Cook Islands Act 1915. This reads:

"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."

Thirdly, acting under the power given by Article 36(5) the Legislative Assembly passed in 1967 the Legislative Assembly Powers and Privileges Act 1967 which in section 4(a) defined the privileges of the Assembly. This section was amended by section 2 of the Legislative Powers and Privileges Amendment Act 1979 and now reads as follows:

"4 (a). Privileges of Assembly- Subject to the provisions of the Constitution, the Assembly and the Committees and Members thereof shall have, hold, enjoy and exercise the like privileges, immunities and powers as are held enjoyed and exercised by the House of Commons of the Parliament of Great Britain and Northern Ireland and by the Committees and Members thereof whether such privileges, immunities and powers are held possessed or enjoyed by custom, statute or otherwise, and the Leaders of the House may at any time give such instructions as may be necessary to ensure the orderly progress of parliamentary business and which are authorised or ratified by the Assembly."

This enactment confers on the Legislative Assembly the same privileges and powers of the House of Commons at Westminster subject to the proviso in Article 36(5) which limits the powers of punishment for "contempt or otherwise". This proviso has no relevance in the instant case. There is also a distinction between Article 9 of the Bill of Rights 1688 and Article 36(i) of the Constitution in that the former provision protects "freedom of speech and debates or proceedings", while in the latter it is the "validity of any proceedings" which cannot be questioned. This distinction is, I consider, not material in that it is clear that the aim of both provisions is to save the proceedings and anything done in the course of those proceedings from judicial questioning.

I now turn to the defendant’s contention that the forum with the sole jurisdiction to adjudicate in this matter is the Legislative Assembly. In cases affecting parliamentary privilege the tracing of a boundary between the competence of the courts and the exclusive jurisdiction of parliament is a difficult question of constitutional law. In 28 Halsbury (3^rd edn) paras. 917, 918 at page 467 the position is stated thus:

"Subsect. (3) The Courts of Law and the Privileges of the Houses

917. The position of the courts of law. Each House claims to be the sole and exclusive judge of its own privilege and of the extent of that privilege. In opposition to this claim the courts of law, while allowing the existence of privileges essential to the discharge of the functions of the two Houses, assert that they have judicial knowledge of the extent of privilege and that they are not bound by resolutions of either House declaratory of privilege and they have maintained mainly in relation to the Commons that they are bound to decide questions coming before them which involve a contravention of the law of the land, even if privilege is concerned.

918. Limits of agreement regarding jurisdiction. In spite of this dualism of jurisdiction a large measure of agreement on the respective spheres of the two Houses and the courts has been reached, which has, since the mid-nineteenth century, prevented the direct conflicts of earlier years.

Although the House has never directly admitted the claim of the courts of law to adjudicate on matters of privilege, they appear to recognise that neither House is by itself entitled to claim the supremacy which was enjoyed by the undivided High Court Parliament. Furthermore it is admitted by both Houses that neither House can by its of own resolution claim a new privilege. For their part the courts of law acknowledge that the control of each House over its own proceedings is absolute and not subject to judicial jurisdiction; and the courts of law will not interfere with the interpretation of a statute by either House so far as the proceedings of the House are concerned. Neither will the courts of law inquire into the reasons for which a person has been adjudged guilty of contempt and committed by either House, when the order or warrant upon which he has been arrested does not state the causes of his arrest; for in such cases it is presumed that the order or warrant has been duly issued unless the contrary appears upon the face of it."

I have been referred to the case of Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1884) 12 Q.B.D. 271, a case decided by the Divisional Court of the Queen’s Bench. The facts of that case are different from this case. There the Speaker of the House of Commons had declined to allow Mr. Bradlaugh to take the oath and the House resolved that the Serjeant-at-Arms should exclude Mr Bradlaugh from the House until he should engage not further to distribute the proceedings of the House. He brought an action for an injunction to restrain the Serjeant-at-Arms from carrying out the resolution of the House. The decision as stated in the headnote, was that "this being a matter relating to the internal management of the procedure of the House of Commons, the Court of Queen’s Bench had no power to interfere." The principles as to the privilege of Parliament were stated by Stephen J at pp 278 to 279. Having stated that the Court had no power he said:

"I think that the House of Commons is not subject to he control of her Majesty’s Courts in its administration of that part of the statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable.

Many authorities might be cited for this principle; but I will quote two only. The number might be enlarged with ease by reference to several well-known cases. Blackstone I Com 163 says: ‘The whole of the law and custom of Parliament has its original from this one maxim, ‘that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.’ This principle is re-stated nearly in Blackstone’s words by each of the judges in the case of Stockdale v Hansard 9 Ad. and El. As the principal result of that case is to assert in the strongest way the right of the court of Queen’s Bench to ascertain in case of need the extent of the privileges of the House, and to deny emphatically that the Court is bound by a resolution of the House declaring any particular matter to fall within their privilege, these declarations are of the highest authority. Lord Denman at p114 says: ‘Whatever is done within the walls of either assembly must pass without question in any other place.’ Littledale, J, at p 162 says: ‘It is said the House of Commons is the sole judge of its own privileges; and so I admit as far as the proceedings in the House and some other things are concerned.’ Patteson, J, at p.209 said: ‘Beyond all dispute, it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled, that whatever is said or done in either House should not be liable to examination elsewhere.’ And Coleridge, J, at p 233 said: ‘That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity."

(the underlining is mine)

Now, an adjudication of this action would involve not only an examination of proceedings in the Legislative Assembly, since there is in issue the unfitness of the plaintiff as Speaker to preside over its proceedings, but also a finding on the claim of defamation which, if proven, would constitute a breach of privilege or contempt of that body. There is clear authority that accusations of partiality and bias of the Speaker of Parliament constitute breaches of privilege or contempt - Erskine May on Parliamentary Practice (18^th edn) p148. The libel here concerning as it does the partiality of the plaintiff in her capacity as Speaker would constitute "a high violation of the rights and privileges of the House." ibid p.148. In The Speaker of the Legislative Assembly of Victoria v Glass [1871] EngR 7; (1871) L.R. 3 P.C. 560 a case concerning the right of the Victorian Assembly (possessing the same powers and privileges as the House of Commons) to commit for contempt, Lord Cairns, delivering the judgment of the Committee said at p.572:

"Beyond all doubt, one of the privileges and one of the most important privileges of the House of Commons is the privilege of committing for contempt; and incidental to that privilege, it has, as has already been sated, been well established in this Country that the House of Commons have the right to be the judges themselves of what is contempt, and to commit for that contempt by a Warrant, stating that the commitment is for contempt of the House generally, without specifying what the character of the contempt is:"

In Pickin v British Railways Board (1974) AC, a House of Lords decision to which reference will later be made Lord Morris at page 790 said:

"The conclusion which I have reached results, in my view, not only from a settled and sustained line of authority which I see no reason to question and which I think should be endorsed but also from the view that any other conclusion would be constitutionally undesirable and impracticable. It must surely be for Parliament to lay down the procedures which are to be followed before a Bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its Standing Orders and further to decide whether they have been obeyed: it must dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for the Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an inquiry whether in any particular case those procedures were effectively followed."

The substance of the plaintiff's claim being clearly a contempt of the Assembly, it would require the "High Court of Justice to embark upon an inquiry concerning the effect or effectiveness of the" Speaker's behaviour "in the High Court of Parliament or an inquiry whether in any particular case" her behaviour was partial or impartial. The libel is not concerned with matters outside the House; it relates to the plaintiff solely in her capacity as Speaker and to the proceedings in the Assembly with which she has been concerned. Her complaint is peculiarly within the province of the Assembly to inquire into and adjudicate thereon. Apart altogether from the fact that it would be required in judging the complaint to "animadvert upon" proceedings in the Assembly in violation of Article 9 of the Bill pf Rights 1688, I consider it would be quite wrong for this Court being satisfied that the matter is one which comes within the purview of the Assembly as constituting a contempt of that House, to hear the action. In my view, to do so would infringe not only the Bill of Rights but also general parliamentary privilege. There could also be a "further practical consideration" to which Lord Simon adverted in Pickin's case (supra) at p. 800:

"A further practical consideration is that if there is evidence that Parliament may have been misled into an enactment, Parliament might well indeed, would be likely to wish to conduct its own inquiry. It would be unthinkable that two inquiries, one parliamentary and the other forensic should proceed concurrently, conceivably arriving at different conclusions; and a parliamentary examination of parliamentary procedures and of the actions and understandings of officers of Parliament would seem to be clearly more satisfactory than one conducted in a court of law quite apart from considerations of parliamentary privilege."

For the above reasons, therefore, I have come to the firm conclusion that this Court has no jurisdiction to hear this action, the complaint therein being one upon which the Legislative Assembly has sole jurisdiction to adjudicate and I so hold.

This finding must result in the granting of the order sought by the defendants. However, I consider I should also deal with their other submission viz., that the Court in defamation proceedings cannot receive evidence of parliamentary proceedings to adjudicate thereon and that since an adjudication here is dependant on such evidence, the claim must fail. The plaintiff replies that parliamentary privilege extends only to Members of Parliament and as the libel arose from publication outside the Assembly by persons who were not members thereof, parliamentary privilege cannot be invoked. This submission I am satisfied, is untenable and contrary to authority. The case of Church of Scientology v Johnson-Smith (1972) 2 Q.B. 522 is directly in point. There the plaintiff church brought an action against the defendant, a Member of Parliament, who published an alleged libel during the course of a television interview. The plaintiff sought to refute a plea of fair comment stating in evidence extracts from "Hansard". The Court excluded such evidence on the grounds that to admit it would infringe on parliamentary privilege and held that the scope of such privilege extended to the examination of proceedings in the House for the purpose of supporting a cause of action even though it arose out of something done outside the House. Browne J, after referring to the judgement of Stephen J. in Bradlaugh v Gossett (supra) said:

"It is quite clear therefore that no action for defamation could be brought in respect of anything said in the House of Commons itself. The Attorney-General says that the privilege goes further and that what is said or done in the House in the course of any proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action, even though the cause of action itself arises out of something done outside the House. The question in this particular case arises primarily on paragraph 4(ix) and (x) of the reply; although it is also suggested that some parts of the defence and one paragraph of the particulars delivered pursuant to R.S.C. Ord. 82, r.7 as to mitigation of damages may also be involved. The defendant in his defence here pleaded fair comment and privilege. Privilege, of course, in the ordinary sense of which that word is used in the law of defamation and not parliamentary privilege. And the purpose of paragraph 4 of the reply is that the plaintiffs are alleging malice in order to defeat those pleas. The particulars under paragraph 4 of the reply, including subparagraphs (ix) and (x), are particulars of the facts on which the plaintiffs intend to rely as establishing that the defendant acted with malice, in other words, that he acted with some sort of improper motive.

In my view sub-paragraphs (ix) and (x) must involve a suggestion that the defendant was, in one way or another, acting improperly or with an improper motive when he did and said in Parliament the things referred to in those sub-paragraphs. I accept the Attorney-General’s argument that the scope of Parliamentary privilege extends beyond excluding any cause of action in respect of what is said or done in the House itself. And I accept his proposition, which I have already tried to quote, that is, that what is said or done in the House in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House. In my view this conclusion is supported by both principle and authority."

In Dingle v Associated Newspapers Ltd (1960) 2 QB 405 the plaintiff, a Town Clerk, sued the defendant publisher of the "Daily Mail" for an alleged libel published outside of Parliament and tried to question proceedings in Parliament in order to support in certain respects his case. He was held not entitled to do so.

At this stage it would be convenient to refer to two further submissions by the plaintiff. Counsel argued that the issues in this action are not exclusively related to the plaintiff’s conduct in the Assembly. He refers to the cartoon which, he suggests, means not only that she is biased but also that she is motivated by base motive in that she is only interested in the money that she received by way of stipend. This issue, he says, does not require an investigation into her activities in the Assembly. I do not agree. The allegation in which damages are sought is contained in paragraph 9 of the Statement of Claim (supra). It is pleaded that the article with the cartoon were understood to mean the plaintiff is biased and an unfit person to be Speaker of the Assembly. The pleadings have not been drawn in relation to the plaintiff in her personal capacity. They relate to her in her official capacity as Speaker and the issue to be considered is whether the article together with the cartoon mean she is biased and unfit to be Speaker.

Mr Ryan’s second point is that if the plaintiff can, without reference to parliamentary proceedings, show she is fit to be Speaker and the defendants’ defence rests solely on evidence of her performance in the Assembly she is entitled to succeed in her action since, because of privilege, the Court could not receive such a defence. Again I consider this argument to be without substance. When in the course of an action there appears to be a danger that the privileges of parliament may be infringed, the proper approach is for the Court to consider issues raised in the action and if these cannot be fairly tried without infringing the Bill of Rights and the general parliamentary privileges as defined by law, there it must decline jurisdiction to hear the cause. In Pickin’s case (supra) the plaintiff respondent sought in reply to a defence raised by the defendant Board relying on a private Act of Parliament sponsored by it, to plead that Parliament had been misled by the defendant by means of a false recital inserted by it in the Act. The defendant applied to have the pleadings struck out as frivolous, vexatious and an abuse of the process of the Court. It was held that the plaintiff respondent could not raise that issue as it would involve an investigation into the manner which Parliament had exercised its function and this would be an infringement of parliamentary privileges. Lord Reid at pp 787-788 said:

"The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its Standing Orders perform these functions. Any attempt to prove that they were misled by fraud or otherwise would necessarily involve an inquiry into the manner in which they had performed their functions in dealing with the Bill which became the British Railways Act 1968.

In whatever form the respondent’s case is pleaded he must prove not only that the appellants acted fraudulently but also that their fraud caused damage to him by causing the enactment of section 18. He could not prove that without an examination of the manner in which the officers of Parliament dealt with the matter. So the court would, or at least might, have to adjudicate upon that.

For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict, and I would only support it if compelled to do so by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation."

Lord Simon at p.799 said:

"It is well known that in the past there have been dangerous strains between the law courts and Parliament dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other - Parliament, for example, by its sub judice rule, the courts by taking care to exclude evidence which might amount to infringement of parliamentary privilege (for a recent example, see Dingle v Associated Newspapers Ltd. (1960) 2 QB 405). The respondent to the instant appeal claimed that he could discharge the onus of proving the allegations in paragraphs 3 and 4 of the reply merely by reliance on presumptions, so that proceedings in Parliament need not, so far as he was concerned, be forensically questioned. Even if this were so, it would still leave unanswered how the appellant could proceed in rebuttal without calling parliamentary proceedings in question. I am quite clear that the issues would not be fairly tried without infringement of the Bill of Rights and of that general parliamentary privilege which is part of the law of the land."

Now, the issues here are clearly settled on the pleadings. The alleged libel concerns the plaintiff’s conduct in the Legislative Assembly and her fitness to preside over it as Speaker. Indeed that is the issue to be tried. Thus to adjudicate thereon, the Court would be required to receive evidence of proceedings of the Assembly which, of course, for the reasons above stated it cannot lawfully do. Since the issue cannot fairly be tried without such evidence the action must be struck out.

There will be an Order striking out this action as prayed. As to costs, on which no submissions were made by counsel, I reserve the right of the parties to be heard thereon.

SIR GAVEN DONNE
CHIEF JUSTICE

Solicitors for the applicants - Advocate-General, Rarotonga, Cook Islands
Solicitor for the plaintiff - Kevin Ryan, Auckland, New Zealand