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Jackson v Attorney General [2009] WSSC 73 (26 June 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of a claim for Certiorari and Declaratory Orders and
relief under the Constitution of the Independent State of Samoa,
the Judicature Ordinance 1960 and the Declaratory Judgments Act 1988.

BETWEEN:

VAASILIFITI MOELAGI JACKSON, High Chief of Savaii, and
AMARAMO SIALAOA, Economist,
Members of the Committee of People Against Switching Sides for and on behalf of the
Committee of People Against Switching Sides of the Road.
First Applicants

BETWEEN:

CCK TRADING LIMITED,
a company duly incorporated under the Companies Act 1955
with its registered office at Vaigaga.
Second Applicants

AND:

THE ATTORNEY GENERAL,
sued for and on behalf of the Independent State of Samoa
Respondent

Counsels: TRS Toailoa, D Clarke & LR Schuster for the applicants
Aumua M LWai & M Lui for the respondents

Hearing: 29 April 2009
Decision: 26 June 2009

DECISION OF NELSON J.

Firstly I would like to apologise to the parties for the delay in producing a decision. Members of the general public are probably not aware but counsels well know the court has been operating for the last few months under some fairly trying conditions and until more lawyers like you gentlemen at the bar agree to become judges, this will probably continue for some time. I have therefore decided as time is of the essence in this matter to deliver the judgment orally but it will be transcribed and copies will be made available to the parties and anyone interested in due course.

In 2008 Parliament despite strong opposition in particular from a group known as "People Against Switching Sides" (‘PASS’), passed into law the Road Transport Reform Act 2008. The stated main purpose of which was "to provide for transition and change of motor vehicles in Samoa from left hand drive to right hand drive and consequential changes to the required position of all vehicles on the roadway from the right side of the road to the left side".

Pursuant to section 1 of the Act, all sections of the legislation came into force on 21 April 2008 except for sections 4 to 7 which are to come into force on 7 September 2009, a date which famously or infamously is coming to be known as "road switch day." Sections 4 to 7 give effect to the changing of the side of the road that vehicles in this country are to be driven upon from the right side to the left side. It is these sections with which we are primarily concerned although I note the application filed for declaratory orders extends to section 11 of the Act as well.

These proceedings have had a chequered history but the legal framework seems to have been settled by an Amended Notice of Motion dated 16 January 2009 filed by PASS as first applicant and CCK Trading Limited as second applicant against the Attorney General for and on behalf of the Independent State of Samoa. The point was not taken by counsels but I wonder whether the Independent State of Samoa is the appropriate respondent. As the legislation binds the Government of Samoa pursuant to section 3, it would seem the Government and/or the relevant administering ministry or authority would be the proper respondent or respondents. Certainly Parliament cannot be made a respondent for as observed by Lord Cooke in Ah Chong v Legislative Assembly of Samoa [1996] WSCA 2:

"We have reservations about the somewhat novel course of naming a House of the Legislature as a defendant. It is not a body corporate and we doubt whether it can sue or be sued. The orthodox procedure would be to sue Ministers or the Speaker or other officer who might seek to enforce decisions of the house alleged to be invalid."

Of this Kellam J. in SDUP & others v Tolofua Leiataua (unreported) 6 May 2009 at paragraph 18 said:

"The above statement is dicta, but to my mind it is dicta of a most persuasive nature. In my view, the naming of a House of legislature as a defendant is indeed novel. Indeed, in the limited time available to me for research, I was unable to find a case other than Ah Chong, in the jurisprudence of the UK, Australia, New Zealand and Samoa. It appears to me to be clear that, as Lord Cooke stated, the appropriate procedure is to sue Ministers or the Speaker or other officer who might seek to enforce decisions of the House alleged to be invalid."

I say no more on this point because as noted above the matter was not argued before me.

The Amended Notice of Motion seeks declaratory orders striking down sections 4 to 7 and 11 of the Road Transport Reform Act 2008 as contrary to article 5 of the Constitution. Article 14 of the Constitution was also raised in the motion but as I understand applicants counsels this is no longer being pursued.

Article 5(1) of the Constitution provides:

"No person shall be deprived of his life intentionally except in execution of a sentence of a court following his conviction of an offence for which this penalty is provided by Act."

Article 5(2) goes on to provide for the sorts of situation where the taking of a life is justified by the laws of this country but it is common ground that article 5(2) does not apply to these proceedings. The applicants are therefore relying solely on the right to life guaranteed by article 5(1).

It is also common ground amongst the parties that the court has jurisdiction to entertain the applicants motion pursuant to article 4 of the Constitution which empowers the Supreme Court "to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part." This Part being Part II of the Constitution concerning fundamental rights.

The argument is that the respondent has a duty to protect life and an obligation to enact laws consistent with that duty. And in enacting sections 4 to 7 and 11 of the Road Transport Reform Act the respondent has breached these duties because the switching of the sides of the road the country must drive on "poses a known risk of a real direct and immediate threat to life". Furthermore, the person or estate affected by the consequences of such a road switch ought to be entitled to seek compensation and damages from the respondent for his/her or its losses. This particular part of the argument appears focused on section 11 and its potential ramifications. Various affidavits in support were filed in support of the applicants Amended Notice of Motion.

In response the respondent has filed an application to strike out the Amended Notice of Motion and the affidavits in support thereof. I do not know that as a matter of procedure, it is necessary to also seek to strike out the supporting affidavits as they are part and parcel of the motion and if the motion falls so do the affidavits. There would also appear to be no separate jurisdiction in the court to strike out supporting affidavits for if they are irrelevant or do not contribute to the argument they are valueless and can be ignored. However the respondent has sought an order striking them out.

The basis for the respondents strike out motion is that the application is frivolous, vexatious and an abuse of process because:

(i) it has no prospect of success; and

(ii) it does not plead the basis in law for the alleged duty to protect life or the content of such a duty.

In respect of the affidavits they should be struck out because:

(i) they do not set out an evidentiary basis for the orders sought by the Amended Notice of Motion; and

(ii) they are irrelevant and contain objectionable hearsay and opinion evidence.

The respondent concedes the court has power to strike down a statutory provision that is found to be inconsistent with any of the provisions of the Constitution. That is because the Constitution is the supreme law of the land and any provision inconsistent with it shall to the extent of such inconsistency be void - article 2 of the Constitution. As succinctly stated by our Court of Appeal on at least one occasion: "when the Constitution speaks it is to be obeyed". But that is the only basis upon which the court can strike down any provision of a statute that has been validly passed by Parliament because the Constitution itself by article 43 delegates the power to make law to Parliament and subject only to the Constitution, that power is to be exercised freely and without restraint by Parliament even if the law so passed is unpopular or "bad" in the eyes of certain sections of the community.

Because of this, senior counsel for the applicants sought to argue that what prevails in this country is a doctrine of constitutional supremacy as opposed to a system of Parliamentary sovereignty. Because Parliament and indeed the courts are subject to the supremacy of the Constitution. That is correct to a certain extent because in the exercise of its legislative mandate, Parliament must abide by the provisions of the Constitution. It has no capacity to pass unconstitutional laws. However Parliament has by article 109(1) the power to amend the Constitution by a vote of not less than two thirds of its number, a power that it has not been reticent to exercise as of late. That is an indication that Parliament is the ultimate legislative authority but it should be recognized that the exercise of such parliamentary sovereignty in relation to the Constitution is also subject to controls external to the constitution document e.g. constitutional conventions.

The essential questions at the core of the litigation before the court are two fold: firstly what is the true intent and meaning of article 5(1) when it states: "No person shall be deprived of his life intentionally..."; and secondly have the respondents, whom I will assume for present purposes to be the Government as represented by the Office of the Attorney General, breached article 5(1) in passing sections 4 to 7 of the Road Transport Reform Act 2008 changing the side of the road we drive on and conferring on themselves by section 11 of that Act immunity for any consequent injury, damage or loss to person or property.

The applicants say "yes" and point to the affidavits of Leiataua Tom Tinai and Graeme J. Williams as showing that the road switch will result in a substantial increase in accidents and inevitably injury and death. These affidavits as well as the pleadings are of course as a matter of law presumed for present purposes to be true and correct. See the strike out judgment in Enosa v Samoa Observer Co. Ltd. [2005] WSSC 6 where Sapolu CJ said:

"the factual allegations in support of the claim are assumed to be true."

This authority was recently cited and applied by Kellam J. in Asiata v Attorney General (unreported) 8 May 2009. See also the judgment of the New Zealand Court of Appeal in Johns v Johns & Holloway [2004] NZCA 42 where it was said:

"As the case is one involving strike out, the facts upon which the court must act are those alleged in the plaintiffs pleadings, which must for present purposes be taken as capable of proof."

The end result is the pleadings which in this case comprise the amended notice of motion and the supporting affidavits, are presumed capable of proof and are presumed to be true and correct for the purposes of consideration of the strike out motion.

I have accordingly carefully examined the two relevant affidavits that of Williams and Tinai. Mr Williams is a self employed traffic crash officer with extensive experience in traffic management, enforcement, crash investigation and analysis. A study he performed in 2008 showed that "potentially the population of Samoa will be at a much greater risk of being involved in a traffic crash where serious injury or loss of life would be involved". His conclusion was such risk would "prevail for a number of years and will only slowly diminish as the current left hand drive vehicle fleet is replaced and the population becomes accustomed to the change". The affidavit of Tinai is of a different character and nature and focuses more on the engineering and redesign aspects a change will require as well as its financial cost. These are mostly irrelevant to the issue of right to life and this affidavit is therefore of limited use to the applicants except for the one point that it forcefully does make which is to emphasize that by road switch day, the number of vehicles driving on a side of the road they were not designed for would in all likelihood still greatly exceed the number of vehicles driving on the side they were designed for thus leading to an increased risk of road related and motor vehicle accidents as well as increased risk of personal injury or death. The details as to the basis of the conclusions of these deponents are provided in reports annexed to their respective affidavits.

The applicants further say that the legislation itself recognizes the reality of these risks. Hence section 11 confers immunity on the government for any injury, damage or loss caused by the switch and section 10 provides for the issuing by the police for the first three months of the road switch of warnings instead of prosecuting persons driving on the wrong side of the road.

In respect of article 5(1) itself, the applicants argue and promote a broad and liberal interpretation as opposed to the narrow reading urged by the respondents. They cite the European Court of Human Rights decision in Makaratzis v Greece number 50385/99 a judgment dated 20 December 2004 where the European Court of Human Rights was asked to consider article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 2(1) of that Convention is almost identical to our article 5(1) except for the opening words which are not found in our article 5(1):

"2(1) Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."

Makaratzis was a case involving an applicant who had been shot while fleeing the Greek police. He survived and the police officers concerned were acquitted on charges of criminal misconduct, so the applicant brought suit against the officers claiming inter alia breach of his rights under article 2 of the European Convention. He argued that article 2(1) imposed a positive duty on states to protect human life and in particular that national law must strictly control and limit the circumstances in which a person may be deprived of his life by agents of the State. The State must also give appropriate training and instructions to its agents who carry weapons and use force. The governments argument was that article 2(1) did not apply because the applicant had been shot but survived and admittedly the chasing police officers used their weapons but they did not intend to kill him only to stop and arrest him.

I do not propose for the purposes of an interlocutory application to canvas the full judgment of the court but the decision relevantly provides that even though the police did not intend to kill the applicant, their conduct by its very nature "put his life at risk." It is argued here by the applicants that like article 2(1) of the European Convention, article 5(1) of our Constitution does not require an explicit intention to deprive a person of his life before it can be operative. This is notwithstanding the fact that the article, like article 2(1) uses the words "deprived of his life intentionally". The applicants say the Makaratzis decision shows that they have an arguable case as to the meaning of article 5(1) of the Constitution and their amended notice of motion should therefore not be struck out at this preliminary stage.

It is relevant to note here that decisions of the European Court of Human Rights are finding increasing prominence and acceptance judicially worldwide because of the similarity of the relevant Conventions and national constitutions and because of the universality of the human rights they guard and protect. It would not be novel or unusual for the courts of this country to quote from or rely upon decisions of the European Court of Human Rights. See for example Toailoa Law Office v Duffy [2005] WSSC 7.

The approach to constitutional interpretation has been determined by our Court of Appeal in Attorney General v Saipaia Olomanu [1982] WSSCA 1 where it said:

"we have already indicated our agreement that the Constitution should be interpreted in the spirit counseled by Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319. He speaks of a constitutional instrument such as this as sui generis; in relation to human rights, of a generous interpretation avoiding what has been called the austerity of tabulated legalism; of respect for traditions and usages which have given meaning to the language; and of an approach with an open mind. This involves, we think still giving primary attention to the words used, but being on guard against any tendency to interpret them in a mechanical or pedantic way".

As noted in Vaai v Sivanila & others [2008] WSSC 73 the Constitution is:

"a living breathing entity evolving to meet the dynamics of modern society, the ‘living and evolving thing’ referred to by the Court of Appeal in Pita v Attorney General [1995] WSCA 6 designed in the words of Edmund Burke ‘to preserve by changing’."

A broad and liberal interpretation is required avoiding as Lord Wilberforce famously stated "the austerity of tabulated legalism" and "any tendency to interpret in a mechanical or pedantic way" while still giving "primary attention to the words used".

The applicants have also cited the European Court of Human Rights decision in Osman v UK no. 23452/94, a judgment dated 28 October 1998 where the court said at paragraph 116 in relation to article 2(1) of the European Convention:

"that it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have had knowledge."

But that this was a question to be answered in the light of the circumstances of the particular case. It is to be however noted that the court in that case was concerned with the interpretation of the first part of article 2(1) of the European Convention which is absent from our article 5(1) and it was discussing article 2 in the context of threats to the physical safety and well being of the applicant and his family which were known to the relevant authorities and which eventually resulted in Mr Osman being shot and killed by one of his sons teachers. The observations of the Court of Human Rights in that case are to be read in the light of its particular circumstances.

In addition to these authorities the applicants have also cited reliance on Operation Dismantle v R [1985] SCR 441, a decision of the Supreme Court of Canada dealing with an application to strike out a claim by parties concerned over the Canadian Governments decision to allow the testing of cruise missiles in Canada. The plaintiffs brought proceedings alleging the Canadian Governments decision was in breach of section 7 of the Canadian Charter of Rights and Freedom which provides:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The applicants say that notwithstanding the difference in the wording of s.7 of the Canadian Charter, the statement of general principle to be extracted from that decision is that if the affidavit evidence shows that the actions of the Canadian Government could as opposed to would have caused an infringement of the plaintiffs rights, the court should allow the matter to proceed to trial. The plaintiffs there failed on the facts because the court found the affidavit evidence was too uncertain, speculative and hypothetical to found a cause of action and it accordingly struck the claim out. But it is argued the proposition remains a sound one and should be applied by this court. Here, the affidavit evidence shows the road switch could lead to a deprivation of life contrary to the article 5(1) guarantee and therefore the discretion to strike out should not be exercised.

The applicants also ask the court in support of a broad approach to constitutional interpretation to apply a body of Australian case law that is said to support reading into constitutional provisions certain implied terms. They say such is necessary to protect the integrity of the rights protected by the Constitution and the term to be implied into article 5(1) is that the respondents have a legal duty to take appropriate steps to safeguard the lives of those within its jurisdiction. The corollary of which would be that the respondents have a legal duty under article 5(1) not to take steps that would jeopardize the lives of those within its jurisdiction and such a duty arises where a deprivation of life in the words of the Canadian Supreme Court "could be proven to result from the impugned government act."

The applicants have also referred the court to the Privy Council decision in Reyes v R (unreported) 11 March 2002, an appeal from the Central American country of Belize which has an article 5(1) type provision in its Constitution. The appeal in that matter however was in relation to whether the mandatory death penalty for murder under Belize law violated not the right to life provision which specifically exempts death sentences imposed by a court, but the freedom from inhuman and degrading treatment clause of their Constitution. In finding that it did, the Privy Council at paragraph 26 made certain observations about constitutional interpretation which are of value and which are not inconsistent with those already cited as being applicable by the Samoan Courts. Other than that, the case is not particularly of much use.

The respondents have objected to the court considering this authority as well as the next succeeding authority because they were submitted by memorandum of the applicants post- submissions being heard. Since the respondents however have had an opportunity to consider the submissions and have elected to reply to the memorandum, I will therefore address the matters raised in the interests of a full consideration of the parties arguments. But this is not to condone the practice of post-submission submissions, otherwise there will never be an end to any argument. Such a practice is to be soundly discouraged.

In respect of the first memorandum as noted above Reyes v R is of limited use. The argument advanced that because Samoa is a party to various United Nations Conventions means we are obligated to locally legislate in the strict terms of those Conventions or alternatively obliges the court to construe provisions such as article 5 (1) in accord with obligations under such conventions is in my view without merit. So much so that I have not addressed it for the reason that while I accept such conventions oblige Samoa to enact certain legislation and follow a best practices approach in relation to its international Convention and treaty obligations, unless it can be shown that domestic legislation enacted by the Parliament of this country was the direct result of a specific Convention or Internationl Treaty obligation, such Conventions and Treaties are to a large extent irrelevant to the exercise of ascertaining the true meaning and intent of domestic laws enacted by our Parliament. There is certainly no suggestion from the material before me that article 5 of the Constitution was the product of Samoas obligation under any particular international treaty or convention.

Of more use to the applicants is the final authority submitted, that of Secretary of State for Defence v R (unreported) 18 May 2009 a decision of the United Kingdom Court of Appeal (Civil Division). That case involved again article 2 of the European Convention on Human Rights and a British soldier who had died of heat stroke while based in extreme conditions in Iraq. The issues included whether his death was attributable to defective systems or training or equipment operated by the British Armed Forces in Iraq, whether there was a real and immediate risk of his dying of heat stroke, and if so whether all reasonable steps were taken by the authority to prevent or safeguard against them. After reviewing at length a number of relevant cases on article 2 and the question of jurisdiction, the court held that article 2 did apply to soldiers engaged in active service in Iraq and upheld the principles applied by the European Court of Human Rights in cases such as Osman and Makaratzis above.

These principles were summed up by Lord Bingham in R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182 where he said:

"The European Court of Human Rights has repeatedly interpreted article 2 as imposing on member states substantive obligations not to take life without justification and also to establish a framework of law, precautions, procedures and means of enforcement which will to the greatest extent reasonably practical, protect life."

Probably no better expounding of the jurisprudence of the European Court of Human Rights in this area exists than in the judgment of Lord Bingham.

The respondents main argument in this matter is the applicants have no cause of action to strike down sections 4 to 7 and 11 of the legislation because they may be in breach of article 5 of the Constitution. They say the decision to change the side of the road we drive on, whether it be right or wrong, is constitutional valid and not inconsistent with article 5 and that there is no term to be implied into article 5 as alleged by the applicants. But even if there were the relevant sections do not contravene such an implied term. They say the legislation was a legitimate exercise of Parliaments power to make law under article 43 of the Constitution and the challenge to it ought to be struck out as frivolous, vexatious and an abuse of process because it cannot possibly succeed. Furthermore the affidavits filed do not support the allegations and are irrelevant and contain objectionable hearsay and opinion evidence and likewise should be struck out. It is also alleged the amended notice of motion sets up no basis for the alleged duty to protect life on the part of the respondent.

The respondents say article 5(1) is very clear. "No person shall be deprived of his life intentionally..." and the word to be emphasized is "intentionally". It is their submission that there can be no suggestion that Parliament in passing the relevant sections of the legislation thereby "intentionally" deprived anyone of his/her life. Furthermore, that where the words of the Constitution are clear, they must be given effect to by the court. This was the effect of the Court of Appeal decision in AG v Olomalu [1982] WSCA 1 where the court emphasized "the undoubted truth that the function of the court, if the relevant part of the Constitution is clearly expressed, is to give effect to those clear words ... the prime matter is the words used by the framers." This was reiterated by the Court of Appeal in Mulitalo v AG [2001] WSCA 8 where it said in discussing the effect of the Preamble in the Constitution:

"Although the Constitution is the supreme law and although it is to be read generously, the courts do not have the power or ability to go beyond the clear and unequivocal words used."

The respondents argue article 5(1) is clear, intention is a necessary element and the article only covers cases of intentional killing which is not the case here. The applicants argument therefore cannot possibly succeed, it should not be allowed to go any further, their application should be struck out.

It seems to me that the respondents in their haste to effect the change are over-simplifying the situation. There are two determinations that need to be made. The first is, will the switch sought to be effected by sections 4 to 7 and 11 have the actual effect of depriving a person of his/her life and if so is it an intentional deprivation of life? The answer to the first question is obviously we do not know because it has not yet happened. The question then becomes is that the likely effect of the road switch to the extent that article 5(1) would be breached? And because we must assume that Parliament in passing laws does not deliberately intend to kill people, the second question becomes, if so does article 5 (1) cover the unintended consequences of such laws? The answer to the first question requires an examination of the facts and the opinions of both sides to the argument. It also in my view necessitates an examination of the measures being taken and proposed to be taken by the respondent to minimize if not eliminate whatever risks there may be. In short it requires a full and fair hearing of the pros and cons, a full and fair airing of the arguments of the respective parties. Such an exercise cannot and should not be conducted at an interlocutory stage.

The legal basis upon which a court will strike out an action because it is frivolous, vexatious or an abuse of process is well known and established. All counsels have referred to them in their submissions in particular the leading case of Enosa v Samoa Observer [2005] WSSC 6 where it was said –

"a pleading or action is frivolous when it is without substance, groundless, fanciful, wasting the courts time or not capable of reasoned argument. A pleading or action is said to be vexatious when it is lacking in bona fides, hopeless, without foundation, cannot possibly succeed or is oppressive".

As well the observations of the court in Kneubhl v Liugalua [2000] WSSC 27:

"the power to strike out, stay or dismiss under the courts inherent jurisdiction is discretionary. It is a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed, it ought to be exercised sparingly and only in exceptional cases."

A recent instance of the application of these principles is the Asiata Saleimoa Vaai group of cases against the Prime Minister & others dealt with by my brother judge Kellam J.

The applicants case is novel and is not necessarily apparent from a first reading of article 5 (1). But they have in my respectful view demonstrated an arguable case based on the jurisprudence of the European Court of Human Rights in respect of a strikingly similar provision of the European Convention and based on the other authorities they have cited to the court. Furthermore as the jurisdiction is discretionaly, other considerations are relevant. There is no questioning the significance of the debate. It involves the interpretation of one of the most basic if not the most fundamental human right guaranteed by the Samoa Constitution, the right to life. That is arguably the wellspring from which all others emanate and its pre-eminent position as the first of the fundamental rights guaranteed by Part II of the Constitution underscores its importance. The issues being raised by the applicants in this case are also significant. They involve the applicability of decisions of the European Court of Human Rights on similarly worded provisions, they involve the issue of whether as a matter of constitutional interpretation there is room in this jurisdiction for a doctrine of implied terms as argued by the applicants, not to mention the fact that what is potentially at stake may ultimately prove to be the safety and lives of the citizens of this country. These are momentous matters by any measure and it would do well for all concerned to remember that the consequences of the road switch decision will endure long after our bones have turned to dust. It may be that the applicants argument and case fails to establish that the sections in question breach article 5(1) of the Constitution, and/or that the learned Attorney General is quire correct, the words of article 5(1) are in fact clear enough and that the true meaning of article 5(1) is that urged by them. But that is a conclusion better reached after full trial, argument and consideration by the court. They are matters requiring thorough analysis and examination, an exercise not appropriate to an interlocutory strike out application but only after a full hearing of the facts, issues and merits.

I find myself in a position similar to Kellam J. in the SDUP v Tolofua proceedings CP 158 2006 (unreported) 6 May 2009. I am not satisfied the applicants case has no prospect of success or even that it has been insufficiently pleaded to the extent that it does not identify the main issues. In respect of the latter complaint the respondent is of course always free to require further particulars if such be in their view necessary. In the end result the exercise of the inherent power to strike out is discretionary and it is a power to be exercised as the cases show, with great circumspection and only when it is perfectly clear that the claim cannot possibly succeed. A power that is to be used sparingly and only in exceptional cases.

Neither am I satisfied the affidavits in support should be struck out. I agree with the respondent that only two of the affidavits, the ones referred to above are immediately relevant and that there are statements of objectionable hearsay and opinion in some of the affidavits filed. But that is a matter for objection at the hearing and it is not a basis for striking them out if indeed such a power vests in the court.

For these reasons the strike out motion fails and given that conclusion I do not propose to deal in any depth with the other arguments advanced by the respondents. Suffice to say that in respect of the implied Constitutional term matter I am satisfied the applicants also have an arguable case that is not "so hopeless, without substance and groundless" that it cannot succeed: Kellam, J. in SDUP & Vaai. But I am as noted earlier attracted to the respondents argument that in respect of a positive duty, the situation under article 2 of the European Convention is different because of the first sentence in article 2(1) which is not contained in our article 5(1). As well, to the respondents argument as to the true nature of the terms to be implied into the Australian Constitution. These are complicated questions. They are best served by the full and detailed consideration a trial would require and entail.

The Motion however does not completely fail. The applicants have an arguable case in respect of sections 4 to 7 infringing the article 5(1) right but the same cannot be said in respect of section 11 which was very sketchily addressed in the applicants submissions. Section 11 is not integral to the provisions of the legislation switching the side of the road that we drive on. It only deals with the situation of loss, damage or injury occasioned by the decision to switch sides. It confers on Government an immunity thereto in respect of any loss injury or damage, a clause that is found in many other statutes e.g. the Electric Power Corporation Act and the Fire Act. Its connection to the article 5(1) right to life guarantee is more remote and in my view far more nebulous to the extent that I cannot see how the applicants would succeed in an argument striking down the immunity clause because it may infringe the right to life article 5(1) guarantee. The argument is tenuous at best, non-existent at worst. The relevant tests in respect of this challenge are satisfied, the strike out motion succeeds to this extent, the cause of action alleging section 11 of the Road Transport Reform Act 2008 is unconstitutional as being in breach of article 5 of the Constitution is struck out.

The applicants are ordered therefore as follows:

1. within 7 days to file and serve a further amended notice of motion:
   
   • (i) reflecting the terms of this decision; and
     
   • (ii) removing the allegations in relation to article 14 of the Constitution which the applicants have indicated are not being proceeded with.
     

The proceedings will be adjourned to the next mention list on 6 July 2009 to be mentioned before the Chief Justice in courtroom no. 1.

Addendum to judgment:

I overlooked when delivering this judgment that the respondent had also addressed the question of costs. Costs should continue to be reserved pending a final determination of this matter.

JUSTICE NELSON