Easton v Griffiths

[1995] HCATrans 200

.D.

TRANSCRIPT
OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 4Law Courts Building1 Victoria AvenuePerth WA 6000GPO Box 9955Perth WA 6001Phone [phone]Fax [phone]

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 19 of 1995

BRIAN MAHON EASTON

and

CLIVE EDWARD GRIFFITHS and OTHERS

PERTH

10.09 AM, TUESDAY, 18 JULY 1995

HIS HONOUR:   Now, Mr Ludlow?

MR J.R. LUDLOW:   Your Honour, I appear with MR M. McAULIFFE for the plaintiff.

HIS HONOUR:   Yes, thank you.  Mr Pendlebury?

MR M. PENDLEBURY:   Your Honour, I appear for the first defendant.  I also have instructions to appear for the fourth defendant and we will be in the process of filing a notice of change of solicitors to reflect those instructions.

HIS HONOUR:   And will that be the subject of any separate submission, Mr Pendlebury, or will you be simply making submissions on behalf of both the first and the fourth defendants?

MR PENDLEBURY:   Your Honour, neither the first nor the fourth defendants are actively opposing the application.  So I think it is more of a  matter of record only.

HIS HONOUR:   I will hear from you in due course on that matter.  Thank you.  Now, for the second respondent or the second defendant?

MS M. RANKIN:   Yes.  My name is Meredith Rankin. 

HIS HONOUR:   Yes, Ms Rankin?

MS RANKIN:   I appear for the second defendant.

HIS HONOUR:   Yes, thank you.  And for the fifth defendant?

MR M. MITCHELL:   Your Honour, my name is Mitchell.  I appear for the fifth defendant.

HIS HONOUR:   Thank you, Mr Mitchell.  And the sixth defendant, the Commissioner:  there has been no appearance filed on behalf of the Commissioner.  Has the Commissioner been served with these papers?

MR LUDLOW:   The Commissioner was served with the faxed version which was faxed over to us by the Canberra Registry.  He has not yet been served with the original which I received only this morning, your Honour.

HIS HONOUR:   Has there been any response from the Commissioner?

MR LUDLOW:   No, other than an acknowledgment of service.

HIS HONOUR:   All right.  Yes.  Well, Mr Ludlow, before I hear from you I suppose the first thing is that you need an abridgment of time to have this matter dealt with this morning. 

MR LUDLOW:   Yes.

HIS HONOUR:   Perhaps the quickest way of sorting that out is to ask whether there is any opposition to an abridgment of time. 

MR PENDLEBURY:   Not from the point of view of the parties that I represent, your Honour. 

HIS HONOUR:   Yes, thank you.

MS RANKIN:   Your Honour, neither from the second defendant. 

HIS HONOUR:   Mr Mitchell?

MR MITCHELL:   No, nor from the fifth defendant though perhaps the main concern should be whether the sixth defendant has had sufficient time. 
MR LUDLOW:   And I think the fact that the sixth defendant is not represented today indicates that the sixth defendant does not object to the order of abridging time.

HIS HONOUR:   And when was the faxed copy of the papers served on the sixth defendant?

MR LUDLOW:   It was the day that the fax was sent to us.  I think it was Friday, your Honour.

HIS HONOUR:   All right.  Well, I will leave that.  If in fact there is no appearance during the day by the sixth defendant I will need an affidavit, Mr Ludlow, just verifying that the papers were served last Friday.

MR LUDLOW:   Yes, I can provide you with that affidavit.

HIS HONOUR:   Very well.  Well, on that basis it seems to me that there should be an abridgment of time.  Really this is a matter that needs to be dealt with as soon as possible.  Now, again before I call on you, Mr Ludlow, if I could just get from counsel an indication of where they stand in relation to the application whether by way of support, opposition or it may be complete neutrality.  Mr Pendlebury?

MR PENDLEBURY:   Your Honour, the position of the first and fourth defendants is one of neutrality. 

HIS HONOUR:   All right.  Thank you.  Ms Rankin?
MS RANKIN:   Your Honour, the second defendant will submit whatever order or orders this court makes save as to costs.  We would wish to be heard on that issue should orders be sought against us.

HIS HONOUR:   And if orders are not sought against you?

MS RANKIN:   Then there is no need for us to ‑ ‑ ‑ 

HIS HONOUR:   Well, there might be.  You might want costs.

MS RANKIN:   We will not be seeking any orders as to costs in our favour, although I would seek leave to withdraw on the basis that we are submitting to whatever orders this court makes.

MR LUDLOW:   Your Honour, perhaps I could deal with that.  I am willing to have the proposed order as to costs amended simply to be costs reserved and the costs can then be dealt with at a later date.  And that would allow the other parties to withdraw if they wish to do so.

HIS HONOUR:   Yes.

MS RANKIN:   Your Honour, perhaps if I could add one further thing by way second thoughts.

HIS HONOUR:   Yes.

MS RANKIN:   If possible I would like to seek instructions later today as to whether we wish to pursue costs against the plaintiffs. 

HIS HONOUR:   Yes.  What is the position with the third respondent, Mr Halden?

MR LUDLOW:   Your Honour, we have not been able to serve him yet.  We understood that the solicitors who were acting for the second defendant in the Supreme Court proceedings were also acting for the third defendant in the Supreme Court proceedings.  But we have been informed by them that they are not authorised to accept service of process on behalf of the third defendant.  So action - the application - neither the original nor the application has been served on the third defendant at all.  In fact, we are not even sure whether he is in the jurisdiction.  As you may be aware the Parliament is in recess at the moment and there are a number of Parliamentary international trips and so forth.

HIS HONOUR:   Well, where does that leave us?

.D.
MR LUDLOW:   Well, at the moment we are seeking only an order against the sixth defendant and, presumably, if the third defendant wished to oppose that he would make himself available today.  There has been a great deal ‑ ‑ ‑ 

HIS HONOUR:   Well, assuming he is aware of the proceedings.

MR LUDLOW:   Yes, I assume he is aware of it.

HIS HONOUR:   No, I said assuming he is aware of the proceedings.

MR LUDLOW:   Sorry.  Assuming, yes, your Honour.

HIS HONOUR:   If he is outside the jurisdiction, he may not be.

MR LUDLOW:   I think the fact that he has been involved in litigation in the Supreme Court against the plaintiff leaves it reasonably open to anyone to infer that he is aware of this application, but, as I said, we have not been able to serve it on him yet.

HIS HONOUR:   Has Mr Halden played any part in the proceedings in the Supreme Court.

MR LUDLOW:   We understand that he was one of the persons who applied for the injunction, although that was not my understanding at the time that I wrote these submissions.

HIS HONOUR:   Ms Rankin, can you assist us in relation to Mr Halden?

MS RANKIN:   Unfortunately, no, your Honour.  I appear solely for Dr Lawrence and have no instructions to appear on behalf of Mr Halden.

HIS HONOUR:   Yes.  All right.  Mr Mitchell, what is your attitude generally to the application?

MR MITCHELL:   Sir, the fifth defendant's attitude is that an injunction ought not issue to restrain the Royal Commission from proceeding and, essentially, we say that for two reasons.  Firstly, we say there is not a serious question to be tried, at least on any matter ‑ ‑ ‑ 

HIS HONOUR:   Well, I do not want to hear you ‑ ‑ ‑ 

MR MITCHELL:   Yes.

HIS HONOUR:   ‑ ‑ ‑ on the detail for the moment ‑ ‑ ‑ 

MR MITCHELL:   Certainly.

HIS HONOUR:   ‑ ‑ ‑ but just to know what your stand is.

MR MITCHELL:   Certainly, we do oppose that application.  Yes.

HIS HONOUR:   Well, is there any counsel who is seeking leave to withdraw at this stage?  You are, Ms Rankin, I take it.

MS RANKIN:   Yes, I am, your Honour, yes.

HIS HONOUR:   And you are withdrawing on the basis that the second - we are using the terms respondent and defendant but strictly it is defendant - the second defendant submits to any order the court may make save as to any order for costs that might be sought against your client.  And do you say that you may want to make a submission in regard to costs ‑ ‑ ‑ 

MS RANKIN:   In favour of our client.

HIS HONOUR:   ‑ ‑ ‑ in favour of your client.

MS RANKIN:   Yes, your Honour.

HIS HONOUR:   If that occasion arises then you can be heard on that.

MS RANKIN:   Thank you, your Honour.

HIS HONOUR:   And leave to withdraw is given.  Now, anybody else wish to withdraw?

MR PENDLEBURY:   Your Honour, the second - sorry, the first and the fourth defendants position, as I have said, is one of neutrality.  In the circumstances, it may be appropriate for the first and fourth defendants to adopt a similar position to that adopted by the second defendant.  We are prepared to abide by the outcome of this particular injunction application but we may ‑ ‑ ‑ 

HIS HONOUR:   Very well, Mr Pendlebury, I take it then you are saying that the first and fourth defendants are prepared to submit to any order the court may make save as to costs against either of those defendants and you would wish to be given opportunity of it arises to be heard on the question of costs in favour of those defendants.

MR PENDLEBURY:   That is correct, your Honour, in so far as this application for an injunction is concerned.

HIS HONOUR:   Yes.  Yes.  All right.  Leave to withdraw on that basis.

MR PENDLEBURY:   If it please the court.

HIS HONOUR:   Yes.

MR LUDLOW:   Before that happens, your Honour, I wonder whether I might seek leave to amend the writ of summons in terms of a minute of proposed amended writ of summons which I have here.

HIS HONOUR:   Well, now, when you say, "before that happens", do you mean it may have some bearing upon the attitude of counsel who sought leave to withdraw.

MR LUDLOW:   Yes, counsel may wish to make submissions on whether the writ should be amended.  The purpose of the proposed amendment is to bring the writ of summons in line with the statement of claim which has already been filed.  At the moment the writ of summons is not quite as broad as the statement of claim and so we would like to have the writ amended to broaden it and make ‑ ‑ ‑ 

HIS HONOUR:   What is it that you are seeking by way of amendment?

MR LUDLOW:   Simply to - more or less to make the orders sought in the writ of summons the same as in the statement of claim.  At the moment they are not quite as broad.

HIS HONOUR:   Well, why should I not regard the statement of claim as the operative document.

MR LUDLOW:   Well, I understand that you may if you wish to do that, but it might be ‑ ‑ ‑ 

HIS HONOUR:   Well, I think it is probably more sensible to approach it that way at the moment, particularly as not all parties are presently before the court.

MR LUDLOW:   All right.  Yes.

HIS HONOUR:   All right.  Well, that still leave us, Mr Ludlow, with the situation in which Mr Halden named as the third defendant has not been served.  The sixth defendant has been served, but there is no indicate of the attitude that the sixth defendant is taking.  What was the approach taken by the Commissioner before - in the Supreme Court proceedings brought initially, that is the application for interlocutory injunction heard by Steytler J ‑ ‑ ‑ 

MR LUDLOW:   The Commissioner instructed his junior counsel assisting to inform the court that he adopted the submissions by counsel for the Crown and would submit to any order made by the Supreme Court.

HIS HONOUR:   And what of the proceedings before Heeney J yesterday?

.D.
MR LUDLOW:   That was an application for an interlocutory injunction pending an appeal by Mr Halden and Dr Lawrence against Steytler Js refusal of an injunction last week.  I understand that that application is still going.

HIS HONOUR:   Yes.  But I was asking you specifically about the attitude or the approach taken by the Commissioner to those proceedings.

MR LUDLOW:   I understand that that particular application has not been served on the Commissioner and the Commissioner was not in court yesterday.  I think there was a mistake made by counsel for Dr Lawrence and Mr Halden, they served it on Crown counsel assuming that Crown counsel acted for both the Crown and the Commissioner when, in fact, the Commissioner had not instructed anyone to act for him other than his counsel assisting.

HIS HONOUR:   And what is the position with - what stage has that matter reached in the Supreme Court.

MR LUDLOW:   Based on newspaper reports this morning I understand it has not been completed yet.

MS RANKIN:   Your Honour, perhaps ‑ ‑ ‑ 

MR MITCHELL:   Perhaps I can assist in that matter?

HIS HONOUR:   Well, I will take information from anyone who can give it to me.

MR MITCHELL:   Sir, I appeared as junior counsel in those proceedings.  Yesterday, Mr Giles for the Dr Lawrence and Mr Halden made submissions as to one injunction pending appeal ought to be made.  He had not completed those submissions and that matter was adjourned through to 12 o'clock today and there the matter rests.  In addition ‑ ‑ ‑ 

HIS HONOUR:   Well, was there an application for leave to appeal concurrently with the application for an injunction?

MR MITCHELL:   No.  Leave is not required to appeal from a refusal to grant an interlocutory injunction in the Supreme Court and so the question of leave to appeal did not arise.

HIS HONOUR:   So what is being sought then I take it, is an injunction pending the hearing of the appeal against the refusal of interlocutory relief by Steytler J?

MR MITCHELL:   That is correct, sir.  And perhaps also to bring you up to date, this morning commencing at 8.30 again before Heenan J, the second and third defendants in this action applied for a further interim injunction based on what occurred in the Commission yesterday. 

HIS HONOUR:   And is that matter progressing at the moment?

MR MITCHELL:   That matter was progressing when I left at 20 to 10 and I do not know how far it has progressed beyond the plaintiffs in that action having made their submission.

HIS HONOUR:   So, from what you say, the situation is that the second and third defendants before this court have together pursued a further application for interim relief in the Supreme Court.

MR MITCHELL:   That is correct, sir.

HIS HONOUR:   But it appears that I cannot assume that the second and third defendants - indeed, I must not assume in view of what I have been told, that they are necessarily linked for the purposes of this application?

MR MITCHELL:   That would appear to be the case.

HIS HONOUR:   Yes.  Mr Mitchell, I am not sure that you told me, what was the position of the Commissioner in yesterday's proceedings in the Supreme Court?

MR MITCHELL:   The position of the Commissioner yesterday was simply not to appear.  The position of the Commissioner generally ‑ ‑ ‑ 

HIS HONOUR:   Could I just stop you there?  I rather gather from what Mr Ludlow that the Commissioner was not a party to that application, is that so?

MR MITCHELL:   No, the Commissioner is joined as a second - I am sorry, as a first defendant to the action in the Supreme Court.

HIS HONOUR:   It would be surprising if he were not, I suppose?

MR MITCHELL:   His attitude was to adopt the submissions of the State of Western Australia in relation to questions of jurisdiction and otherwise to abide by the decision of that court in the proceedings before Steytler J.  And the Commissioner was made aware, I am instructed, of the applications for further interim relief but has not taken any further part in those proceedings.

HIS HONOUR:   And what about the proceedings that were launched this morning?

MR MITCHELL:   Again, I think ‑ ‑ ‑ 
MR LUDLOW:   Your Honour, I might be able to assist there.

HIS HONOUR:   Well, just a moment, Mr Ludlow.

MR MITCHELL:   My understanding is that the Commissioner was not, in fact, served with the proceedings this morning - was not made aware of them though attempts were being endeavoured to achieve that.

MS RANKIN:   That is not quite correct.

HIS HONOUR:   Well, just a moment.  Not only do I not want to be confused but I do not want the transcript to become confused.  Just tell me what you understand the position to be, Mr Mitchell, and then I will hear from other counsel.

MR MITCHELL:   My understanding of the position, from what was said in the proceedings this morning, is that the second and third defendants in this action had some difficulty in contacting the Commission and that the Commission may not have been aware of the proceedings this morning.

.D.
HIS HONOUR:   But are you saying that nonetheless that matter has proceeded, or is proceeding?

MR MITCHELL:   Nonetheless the matter has proceeded and the orders being sought are essentially orders for an injunction until such time as the Commission can be given an opportunity at least to attend.

HIS HONOUR:   So in truth it is an application, as you describe it, for interim relief rather than for interlocutory relief.

MR MITCHELL:   Yes, that is correct, sir.

HIS HONOUR:   Yes, thank you.  Now, Ms Rankin, do you want to say something about Mr Mitchell's understanding of the position?

MS RANKIN:   Yes, I would.  Your Honour, this morning the Commission was advised as to the proceedings before Heenan J.

HIS HONOUR:   That is this morning's proceedings?

MS RANKIN:   This morning's, they were advised prior to sittings commencing.  They were also advised during the period in which argument was under way and I actually made the telephone call myself and asked whether they would be appearing before his Honour, and no response one way or the other was given.  They simply did not know they were taking advice, but they certainly did know about the proceedings.

HIS HONOUR:   Yes, thank you.
MS RANKIN:   I might add that I have just been advised that his Honour has granted an injunction until 2.15 this afternoon.  Further details, I am afraid, I am not aware of.

HIS HONOUR:   That is an injunction which however it is framed would preclude the Commission from conducting a hearing this morning.

MS RANKIN:   Correct, an interim injunction, correct.

HIS HONOUR:   All right.  Did you want to say anything on this aspect, Mr Ludlow?

MR LUDLOW:   Mr McAuliffe may be able to tell you a little bit more about the injunction.

HIS HONOUR:   Well, what more do I need to be told?

MR McAULIFFE:   There is not much more I can add, your Honour, I have only just received the information from our client.  Mr Eastman has just come from the Commission simply advising that it has risen until 2.15 on the base of telephone advice from the Supreme Court.  As soon as we have the terms of that injunction we will appraise your Honour of it.

HIS HONOUR:   Yes, all right.  Well, in terms of service the only - or the one difficulty is the fact that Mr Halden has not been served.  Now how should I approach the matter in the light of that, Mr Ludlow?

MR LUDLOW:   I submit that the matter should be approached on the basis that we are not seeking any orders against Mr Halden.  I will withdraw the application for costs and will simply reserve the costs and if Mr Halden would like to make submissions at a later date on costs he can do so.  The only other orders that have been sought ‑ ‑ ‑ 

HIS HONOUR:   Would he remain a party to the ‑ ‑ ‑ 

MR LUDLOW:   Yes.  We joined him as a party because we felt that he had an interest in the outcome of the proceedings and it was proper that he be a party.

HIS HONOUR:   Now when you say the outcome of the proceedings, you mean the substantive proceedings?

MR LUDLOW:   Yes, your Honour.

HIS HONOUR:   Right.  Is any relief sought against him other than by way of costs in the statement of claim?

MR LUDLOW:   No, we are only seeking declarations and costs.
HIS HONOUR:   Well, relief sought by way of a declaratory nature presumably.

MR LUDLOW:   Yes, we are seeking declarations - I understand Mr Halden is concerned that his parliamentary privilege will be breached by the Royal Commission and we are seeking, in paragraph 8 on page 36 of the statement of claim, we are seeking a declaration on the effect of article 9 of the Bill of Rights on the Royal Commissioner's deliberations.  That will certainly be something that will be of interest to Mr Halden.

HIS HONOUR:   But you are speaking now of the substantive relief sought, are you?

MR LUDLOW:   Yes, your Honour.

HIS HONOUR:   But so far as the present application is concerned ‑ ‑ ‑ 

MR LUDLOW:   At the present application we are seeking an injunction against the Royal Commissioner and, as I said, I am prepared to withdraw the orders sought as to costs and simply seek an order that costs be reserved.

HIS HONOUR:   And what if Mr Halden wished to be heard on the application for an interlocutory injunction?

MR LUDLOW:   I am not able to say, the fact that Mr Halden is seeking an injunction.

HIS HONOUR:   I am not asking you - my question was, what if he wishes to be heard on those matters, or on that particular matter?

MR LUDLOW:   I do not know, your Honour, but the fact that Mr Halden is seeking an injunction from the Supreme Court suggests that he would not oppose an application for an injunction from this court.

HIS HONOUR:   Well, that may be.  I propose to proceed with the matter but it may be that finality cannot be achieved until something more is known as to Mr Halden's position, and that may involve for instance making a copy of transcript available to him.

MR LUDLOW:   Yes, your Honour.

HIS HONOUR:   And inquiring whether he wishes to be heard in relation to the matter of interlocutory relief.

MR LUDLOW:   I can certainly attempt to contact his office today.

HIS HONOUR:   If that matter could be pursued during the day it might sort itself out, Mr Ludlow.

MR LUDLOW:   Yes, your Honour.

.D.
HIS HONOUR:   All right.  In granting leave to counsel to withdraw it is not - it is simply leave to withdraw.  If counsel wish to remain, of course, they are free to do so.  Yes, all right.  Now, are there any other matters I need be concerned with of a procedural nature before we hear argument?  Right.  Yes, Mr Ludlow?

MR LUDLOW:   Your Honour, I have a few documents I would like to hand up to you now.  Before I do that, I would like - I should ask you whether you have read and are familiar with the documents I have filed already.

HIS HONOUR:   That is a question which I can - I am afraid I have to give a somewhat qualified answer.  I have certainly read the pleadings that have been filed and the affidavit in support and ‑ ‑ ‑ 

MR LUDLOW:   There are two affidavits, one from Mr Easton ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR LUDLOW:   Right. 

HIS HONOUR:   And I have read the judgment of Steytler J.  So far as the detailed submissions are concerned, I have glanced at those and read those parts that seem to me to have any relevance to this morning's application as opposed to those parts that were, so far as I could see, bore upon the ‑ ‑ ‑ 

MR LUDLOW:   Substantive application.

HIS HONOUR:   ‑ ‑ ‑ substantive application.

MR LUDLOW:   Yes.  Late yesterday I filed an amended version of both ‑ ‑ ‑ 

HIS HONOUR:   Yes, I have that.

MR LUDLOW:   You have seen those?  Right.

HIS HONOUR:   I have that.

MR LUDLOW:   I have some more documents.  First of all, I do not know whether your Honour has a copy of the Royal Commission's terms of reference?
HIS HONOUR:   Well, only in so far as they are incorporated in the judgment of Steytler J.

MR LUDLOW:   Right.  Well, in case there is any problem with that, I have a copy.  This is not the version as published in the Government Gazette, which, of course, the court has judicial notice, but it is very similar.  I think it just misses out the first paragraph or so.  If your Honour would like to see the Government Gazette version, I can obtain a copy later today.

HIS HONOUR:   No.  Is there any difference between the terms of reference in the document you have just handed me and those appearing in Steytler Js judgment?

MR LUDLOW:   Not as far as I am aware, your Honour.

HIS HONOUR:   All right.  Thank you.

MR LUDLOW:   The other thing, I filed a draft initial submission to the court which is referred to in the detailed submissions.  I have now produced a final version of it and I hand that up as well.

HIS HONOUR:   Now, what are you speaking of the - what you call your initial submission.

MR LUDLOW:   This is the submission about the Engineer's case.  I have copies for the other counsel, too.

HIS HONOUR:   Well, are you suggesting that is going to arise this morning?

MR LUDLOW:   Well, we will be submitting that this action raises an issue as to whether the Engineer's - or, part of the Engineer's case is inconsistent with the recent cases of Theophanous v. Australian Capital Television and there is therefore a serious question to be tried on that issue amongst other issues.

HIS HONOUR:   Well, Mr Ludlow, I think I should make it very clear to you that we are here to deal with an application for interlocutory relief ‑ ‑ ‑ 

MR LUDLOW:   That is correct, yes.

HIS HONOUR:   ‑ ‑ ‑ and to restrain the Royal Commissioner from proceeding.

MR LUDLOW:   That is correct.

HIS HONOUR:   On its face, the statement of claim, at least in the first 30 paragraphs, on my reading of it, does not give rise to matters that are germane to the claim for injunctive relief pending the hearing of the substantive application, except in so far as it might be part of the background.

MR LUDLOW:   Yes, I agree with that, your Honour.  I will not be relying very heavily on the allegations as to the validity of the resolutions in the Legislative Council.  My main ‑ ‑ ‑ 

HIS HONOUR:   Well, when you say, "very heavily", that is ‑ ‑ ‑ 

MR LUDLOW:   All right, well - sorry, your Honour?

HIS HONOUR:   ‑ ‑ ‑ do you mean at all?

MR LUDLOW:   I infer from what your Honour has said that you do not regard those particular allegations as being matters that I could rely on for an injunction application, so ‑ ‑ ‑ 

HIS HONOUR:   Well, on the face they do not appear particularly relevant.

MR LUDLOW:   All right.

HIS HONOUR:   If you wish to persuade me that they play some part in the claim for injunctive relief, you may do so.

MR LUDLOW:   All right.  Well, I will attempt to do that, your Honour.

HIS HONOUR:   But I do not - I think it is very important, given the urgency with which this has come before the court, that we do not become caught up in discussions of matters that really relate to the substantive hearing of the application.  I mean, what you are seeking to do is to restrain the Commissioner from proceeding any further with his inquiry.

MR LUDLOW:   That is correct.

HIS HONOUR:   Well, now, you need to persuade the court that there is some reason why that - such an order should be made at this stage.

MR LUDLOW:   I will refer you initially, your Honour, to the terms of reference.  I know that having read the submissions, the written submissions of counsel for the fifth defendant, that there will be debate as to whether the plaintiff has an interest in what is being investigated by the Royal Commission.  I would like to make submissions on interpretation of the terms of reference first so as to establish that Mr Easton does have a standing in relation to matters discussed in the Royal Commission.

.D.
HIS HONOUR:   Yes?

MR LUDLOW:   I refer you to paragraph 1 of the terms of reference.  Now the Lieutenant Governor has appointed the sixth defendant to be a Royal Commission to inquire and report on circumstances and events preceding and following presentation of the petition.  The first point to note is that the plaintiff specifically named in that paragraph is the person whose petition it was.

The second point is it is a matter of debate as to when the events preceding the presentation of petition begin and when the events following the presentation of the petition end.  In the Royal Commission at the initial hearing, about 2 or 3 weeks ago, Mr Marks said that he did not wish to pre-empt his inquiry by coming to a conclusion straight away as to when the events began and when they finished.  It is possible to interpret the terms of reference extremely broadly.  They could begin as early as the day Mr and Mrs Easton were married and could still be going today.

HIS HONOUR:   Well, yes, I think I see that but the terms of reference are to inquire and report on whether the circumstances and events preceding and following the presentation of the petition involved conduct that was an improper or inappropriate use of executive power or public office or was motivated by improper or inappropriate considerations.

MR LUDLOW:   Yes, your Honour.  We submit that there are two categories.  First, there is a category of improper or inappropriate use of executive power or public office, and secondly, whether there was conduct that was motivated or by improper or inappropriate considerations.  Now when we appeared at the initial hearing before the Royal Commissioner we submitted that those terms of reference are capable of being interpreted as permitting the Royal Commission, indeed requiring the Royal Commissioner, subject to any laws to the contrary, to inquire into such matters as to whether Mr Easton's involvement in the tabling of the petition was motivated by improper or inappropriate considerations.

Now after we made that submission the Royal Commissioner granted us limited leave to appear.  Similarly when we applied the other day to be joined as a third defendant to the action in the Supreme Court we made the same submissions to Steytler J and he joined the plaintiff as a third defendant to those proceedings, so we submit, and it seems to have been accepted by both the Royal Commissioner and Steytler J that subject to any laws to the contrary the Royal Commissioner is required to inquire into such matters as to whether Mr Easton's involvement in the presentation of the petition was motivated by improper or inappropriate considerations.

HIS HONOUR:   Yes, thank you.  Do you submit that your client falls within any of the categories which the Commissioner is required to identify?
MR LUDLOW:   Well, he was not a Minister of the Crown or Member of Parliament and he was not a staff member or a holder - at the time he was not a holder of public office but again there is scope for debate as to when the events begin and when they finish.  At a time preceding the tabling of the petition Mr Easton was a Public Service Commissioner and that is a public office.  At an earlier time he was managing director of Exim Corporation which was a publicly owned body.  It may not fit within the description of public office but certainly there is scope for argument on that issue. 

He was also involved in the - I think it was the Aboriginal Homes Development Association.  I believe that that was an incorporated association so it may not fall within scope "public office," but certainly the Public Service Commissioner would be a holder of public office and arguably a managing director of Exim Corporation would be as well.

HIS HONOUR:   But just looking at the question of Public Service Commissioner for a moment, when did your client hold that position, in particular on what basis do you say he held that position at the relevant time?

.D.
MR LUDLOW:   Well, we say the relevant time was the events preceding and following the presentation of the petition and that it is not clear at the moment when those events began and when they finished.  I have just been instructed that at the time of the Family Court hearing Mr Easton was a public servant.  He was a holder of a public office. 

HIS HONOUR:   You say he was a Public Service Commissioner at that time.

MR LUDLOW:   I am just taking instructions, your Honour.  I understand that at the time of the Family Court proceedings Mr Easton was a consultant to the Public Service.  And again there is scope for debate as to ‑ ‑ ‑ 

HIS HONOUR:   Well, that would hardly qualify him as the holder of a public office.

MR LUDLOW:   Yes.  But, of course, the debate in the Family Court as to the existence of the alleged $200,000 and other matters concerned Mr Easton's holding of public office, it was alleged in the Family Court that he had told certain persons that he had or would be receiving $200,000 connected with his holding of public office. 

HIS HONOUR:   I am not sure that that answers my question, Mr Ludlow.  If the position of Public Service Commissioner qualifies as the holder of public office, which it would appear to do, why do you say that that position was held at the "relevant time", being the language used in the terms of reference?

MR LUDLOW:   Yes.  Well, again, your Honour, we say that the relevant time was the events preceding and following the presentation of the petition.  There is obviously scope for debate as to what the "relevant time" means. 

HIS HONOUR:   Well, you will have to push it back earlier than the Family Court proceedings, would not you?

MR LUDLOW:   That is right but we say there is a continuum of events starting possibly with Mr Easton's appointment to Exim Corporation and possibly earlier than that.  As you may be aware, the fifth defendant was opposed to Exim Corporation and was involved in asking a great many questions in Parliament about Exim Corporation.  And then the fifth defendant was named in the petition.  Now, arguably, this is a continuum of events.  It appears to have been alleged that Mr Easton's motivation in involving himself in the presentation of petition had something to do with the debate between the fifth defendant and Mr Easton as to Exim Corporation. 

HIS HONOUR:   You are not really answering my question, are you?  You say that your client was at the relevant time the holder of a public office.  And I understand that you seek to give "at the relevant time" as broad an operation as you can. 

MR LUDLOW:   Yes.

HIS HONOUR:   But giving it the broadest possible operation, on what footing do you say that your client was the holder of a public office at the relevant time?

MR LUDLOW:   We say he was a Public Service Commissioner shortly before the Family Court proceedings. 

HIS HONOUR:   That is as far as it goes, is it?

MR LUDLOW:   Well, arguably the managing director of Exim was a holder of a public office as well.

HIS HONOUR:   Were those positions held concurrently or at different times?

MR LUDLOW:   The Exim position was held first and then Public Service Commissioner after that.

HIS HONOUR:   So the Exim position is earlier still in time.
MR LUDLOW:   That is right, yes.

HIS HONOUR:   All right.

MR LUDLOW:   But, arguably, there is scope for debate as to whether Exim was a public office whereas, as your Honour has said already, it is fairly clear that Public Service Commissioner is a public office.  I might add that Mr Easton was a public servant for some time.

HIS HONOUR:   Well, being a public servant is not - is that the same thing?

MR LUDLOW:   Yes, that is right, it is not quite the same as being a Public Service Commissioner.

HIS HONOUR:   Well, no, it is clearly not the same thing as being a Public Service Commissioner but it is also not the same thing as being the holder of a public office.

MR LUDLOW:   That is right, your Honour.

HIS HONOUR:   Right. 

MR LUDLOW:   Again I submit for the purposes of today we merely have to establish that there is a serious question to be tried as to whether the Royal Commission requires the Royal Commissioner to investigate Mr Easton's conduct.  And that seems to have been accepted both by the Royal Commissioner and by Steytler J. 

HIS HONOUR:   Yes, thank you. 

.D.

[10.47am]

MR LUDLOW:   So those are the submissions on the question of standing.  I would now like to very briefly run through the orders Mr Easton is seeking and they are set out in the statement of claim starting at page 35.  The first one concerns - actually we will amend that slightly, the first order sought.  The first one concerns the nature of the Australian constitution.  The submission Mr Easton will be making on that is that rather than being a statute of the imperial parliament as was said in the Engineer's case it is an agreement between the people of Australia and that as a consequence of that it has an implied Bill of Rights protecting all Australian citizens including the plaintiff from abuses of power by parliaments and holders of executive office.

HIS HONOUR:   Well, now how does that relate to the conduct of the Royal Commission as opposed to the relief which your client seeks in the statement of claim by reference to the recommendations of the first select committee of the Legislative Council and the decisions made by the Legislative Council which in these proceedings, being the substantive action in this court, he seeks to have declared void.

MR LUDLOW:   He seeks to have declared void all of the recommendations.  They fall into two categories; there were recommendations that he be adjudged guilty of breach of parliamentary privilege.  Mr Easton says that they should be declared void because he was denied a fair trial and that he is constitutionally entitled to a fair trial.

HIS HONOUR:   Yes, I understand.

MR LUDLOW:   Right, okay.

HIS HONOUR:   But what does that have to do with the conduction of the Royal Commissioner?

MR LUDLOW:  Well, he is asking for declarations from the court that this conduct by the parliament was unlawful.  And then that becomes the question; if it was unlawful then we would submit that the Royal Commissioner really should investigate whether that unlawful conduct was motivated by - was an improper or inappropriate use of executive power or public office or was motivated by improper or inappropriate considerations.

HIS HONOUR:   Would you say that comes within the Commissioner's terms of reference?

MR LUDLOW:   Subject to any laws to the contrary and we are saying that the laws do not prevent him from doing that.  I will make submissions on that in a few minutes.  So we would argue that the declarations of invalidity of the recommendations and the declarations of the unlawfulness of the jailing are really essential pre-conditions to the investigations that the Royal Commissioner has been asked to carry out.  As far as Mr Easton is concerned, he submits and we will submit at the trial that the recommendations and the judgements of guilt were void so that he is not guilty of breach of parliamentary privilege and that does not stop the parliament from trying him again.  The parliament can do that if it wants.

HIS HONOUR:   That is not really the question.  The question is whether those arguments should preclude the Commissioner from proceeding with the inquiry according to the terms of reference.

MR LUDLOW:   I suppose I could concede, your Honour, that those particular declarations are not essential.  We could submit to the Royal Commissioner without those declarations having been made, that that is the legal position, that is the legal status of them that they are void, that the judgements of guilt are void and the jailing was unlawful.  But the trouble is that the Royal Commissioner himself has no power to make a binding declaration on those issues.  He can express an - we say he can express an opinion but the opinion is not binding on anyone.  In the end, there is probably going to be litigation anyway on that issue. If we just submitted them to the Royal Commissioner himself then someone who will be affected by them will go to some court somewhere and seek declarations on precisely those issues.

HIS HONOUR:   Well, that may be but why should I prevent the Royal Commission from carrying out his functions because there is an argument somewhere which may have to be determined at some time in some court that the actions or the recommendations of the first select committee and in particular, the decisions of the Legislative Council are under challenge.

.D.
MR LUDLOW:   The difficulty, your Honour, is that if as is likely, and I will explain to you in a few minutes why we submit that it is likely, the Royal Commissioner rejects our submissions on those issues then he will be very likely, and again I will submit in a moment why, not to investigate the matters that Mr Easton would like him to investigate and alleges he may lawfully investigate and indeed has been instructed to investigate.  I will explain ‑ ‑ ‑ 

HIS HONOUR:   Well, it is only the last component that really carries any weight.  The fact that Mr Easton would like something investigated is really neither here nor there.

MR LUDLOW:   I know that is not relevant, I withdraw that, your Honour.  The relevant point is that we say that the Commissioner has been instructed to investigate them.

HIS HONOUR:   And why do you say that?  Where do you fit that argument into the language of the terms of reference?

MR LUDLOW:   Yes.  We submit that the adjudgment of guilt are void and that the gaoling is unlawful.  We submit that the Royal Commissioner is required, subject to any laws to the contrary, by the terms of reference to investigate whether those void resolutions - the passing of those void resolutions and the unlawful gaoling involved conduct that was an improper or inappropriate use of executive power or public office - this was all done by the Legislative Council, all the Legislative Councillors are holders of public office - or was motivated by improper or inappropriate considerations.

HIS HONOUR:   Well, let us be clear about this, Mr Ludlow.  Are you saying that the terms of reference that require the Royal Commissioner to inquire and report on whether circumstances and events preceding and following the presentation of the petition involve conduct that was an improper or inappropriate use of executive power or public office, or was motivated by improper, inappropriate considerations extends to an examination of the validity of the decisions made by the Legislative Council?

MR LUDLOW:   No, it does not extend quite that far.  It extends far enough to require the Royal Commissioner to investigate whether the passing of the resolutions and the unlawful gaoling was motivated by those improper and inappropriate considerations.

HIS HONOUR:   Do you mean without passing on the legality of what was done.

MR LUDLOW:   Yes.  The Royal Commissioner is not authorised to inquire as to whether there was any illegal conduct, not authorised or required to inquire into that.  It is only impropriety or inappropriate considerations.  But, as I have submitted earlier, if we submit to the Royal Commissioner that these matters were unlawful the Royal Commissioner's likely response, and I can explain to your Honour why we submit this, is to reject those submissions.  The explanation is this.

HIS HONOUR:   Well, to reject them or to say that they do not fall within the terms of reference.

MR LUDLOW:   Well, he may do that as well, yes.  But the reason is that Royal Commissioners are understandably reluctant to engage with politicians in debate over their terms of reference and the lawfulness of what they are doing.

HIS HONOUR:   Well, they do not have to engage in it, but that is a matter for the Royal Commissioner subject to any order that may be made by the court of competent jurisdiction to decide what is the proper construction of the terms of reference and what matters he has permitted or required to inquire into and what matters lie outside the terms of reference.

MR LUDLOW:   And, in a sense, we are asking this court to do that, to interpret the terms of reference and interpret the law.

HIS HONOUR:   Well, why should this court do that?  There is proceedings in the Supreme Court.  I mean, apart from anything else the validity of the Commission is being challenged in the Supreme Court but even that aside, why should this court at this stage determine for the Royal Commissioner, assuming it has jurisdiction to do so, determine how he shall go about conducting his inquiry?

MR LUDLOW:   Well, again as I submitted earlier, the difficulty is that he is not required or authorised to express an opinion as to whether there was any unlawful conduct, so that if we submit that the resolutions were void and the gaoling was unlawful he will probably respond: that is outside my terms of reference.

.D.
HIS HONOUR:   Yes.

MR LUDLOW:   He may also say that, since I am not authorised or required to express an opinion on that issue, it would be inappropriate for me to investigate whether these matters were motivated by improper or inappropriate considerations.

HIS HONOUR:   But it is a matter for the executive to determine what matters the Royal Commission shall inquire into.  Now, someone may complain that the terms of reference are too wide, someone may complain that they are too narrow.  But that, surely is a matter for executives to determine.

MR LUDLOW:   Well, we submit that it is a contract between the Commissioner and the Crown and that really it is up to a court to decide what the terms of reference - in the end it is up to the court to decide what the terms of reference mean, not up to the Crown or to the Royal Commissioner.  The only person who can make a binding decision on that issue is the judge - is a judge or judges.

HIS HONOUR:   Yes, though I did not put it to you in terms of what the terms of reference may mean.  What I put to you was that a decision as to the terms of reference themselves, whether they be thought by someone to be too wide or by someone else to be too narrow, are a matter for the executive.

MR LUDLOW:   That is correct, your Honour.  We are not going to submit to the Royal Commissioner that they are too wide or too narrow.  We are really asking the court to interpret what they mean as they stand at the moment.  And we submit that it is important that the court do that before the Royal Commission go any further because the Royal Commissioner himself cannot make a binding ruling on the issue.  He is not a judge, he is just a - he is a Royal Commissioner.

HIS HONOUR:   But he could act and will, no doubt, act according to the opinion he forms as to the scope of his terms of reference.

MR LUDLOW:   Yes, your Honour.  And if he interprets the terms of reference in a way which is disputed by anyone else with standing to challenge the interpretation, then it is very likely that that person will seek a court order as to the interpretation.

HIS HONOUR:   Well, it may do so.

MR LUDLOW:   Yes.

HIS HONOUR:   They may do so in the fullness of time, but that is why I keep bringing you back to the nature of the present application which is an application to restrain the Commissioner from doing anything further until the hearing by this court of a whole range of matters as pleaded in the statement of claim.  I mean, why should the Commissioner not proceed, or perhaps putting it another way, if the Commission does proceed and proceeds in a manner and on a view of the terms of reference that are challenged by your client or by anyone else, is that not something that can be made the subject of a court application.

MR LUDLOW:   Yes, your Honour.  The trouble is that the Royal Commission has been instructed to report, paragraph 3, to report within 5 months.  Now, once the report is submitted that is the end of the contract;  the contract is at an end.  So any orders made by any court after that moment will have no effect on this Royal Commission, the Royal Commission will just be at an end.  Now, if the court orders are made later then the Commission may never be revived.  So, although the court may say that the Commission was authorised and required to inquire into other matters, the Commission is at an end, it is finished.

HIS HONOUR:   But it if the question is one of the proper construction of the terms of reference, why are you in this court.  Surely that is a matter for the Supreme Court to determine.

MR LUDLOW:   Well, we are not actually asking the court to construct the terms of reference, we would submit that the only relevance of the terms of reference are to the question of standing, standing to bring this action.  If the court is satisfied that there is standing, then we are not asking the court to interpret the terms of reference any further.

HIS HONOUR:   Well, I thought you were.  I thought you were asking from this the court some declaration that the terms of reference in - extend to a consideration of the validity or lawfulness of the decisions made by the Legislative Council.

MR LUDLOW:   Yes, we are asking - well, we are not actually asking for a declaration.  We submit that that is merely a matter concerning standing.  If the court is satisfied that there is a serious question to be tried, or that there is a serious question - we are not asking the court to try the question.  If there is a serious question as to whether the terms of reference authorise and require such an inquiry, then the plaintiff has standing to bring the action. 

.D.
We submit that that is the only relevance of the terms of reference.  It is only relevant to standing.  Once the court is satisfied that the plaintiff has standing, then it is not necessary to interpret the terms of reference any more except obliquely in consideration of some of the other issues. 

HIS HONOUR:   Well, is your submission that it is enough to attract the jurisdiction of this court that the plaintiff has standing by reason of an argument that the terms of reference embrace consideration of the validity of the decisions of the Legislative Council?

MR LUDLOW:   No, your Honour, we are not submitting that.  We are submitting that this court has jurisdiction because the declarations that the plaintiff is seeking raise constitutional issues. 

HIS HONOUR:   All right.  Well, let us look at the claim for relief which is what you were taking me to.

MR LUDLOW:   Yes.

HIS HONOUR:   At what point in that claim for relief do you say that matters are raised which go to the granting of an injunction to preclude the Royal Commissioner from continuing?

MR LUDLOW:   Well, the first five declarations sought are preliminary matters to the matters which we submit today raise questions which should be decided by the court before the Commission proceeds any further. 

HIS HONOUR:   The first five?

MR LUDLOW:   They are preliminary matters.

HIS HONOUR:   Well, what do you mean by that?

MR LUDLOW:   Well, they are preliminary in the sense that we are seeking a declaration from the court that certain conduct by the Legislative Council was void and certain other conduct was unlawful. 

HIS HONOUR:   But how is that relevant to this morning's application?  I mean, I would have thought that the first five really had no bearing on the application for interlocutory relief;  that you really pick up that aspect of the matter somewhere down the track after.

MR LUDLOW:   I am prepared to concede that point, your Honour.

HIS HONOUR:   Well, at what point in the claim for relief is there some relief sought that is relevant to the granting of an injunction against the Commissioner?

MR LUDLOW:   Well, arguably it starts at paragraph 6 on page 36 and we would say certainly it starts with paragraph 8.

HIS HONOUR:   Well, you are not asking this court to determine that the Commission is valid and enforceable, are you?

MR LUDLOW:   Yes, your Honour.  Now, that is a matter that is being disputed in the Supreme Court.

HIS HONOUR:   Well, indeed it is.

MR LUDLOW:   Yes.  We say it is a matter that raises constitutional issues or involves interpretation of the Australian Constitution. 

HIS HONOUR:   But what is there in the statement of claim that justifies a declaration by this court that the Commission is valid and enforceable as opposed to some declaration as to how far the Commission may move into areas that are the subject of Parliamentary privilege?  I must say it had not occurred to me that there was anything in the statement of claim that really led or had as a consequence a claim for a declaration that the Commission was valid and enforceable.

MR LUDLOW:   I refer you to paragraph 37, your Honour, on page 21.  Now, you see the particulars there allege, as I have submitted earlier, that the Commission is a contract between the Lieutenant Governor and the sixth defendant.  Now, it is clear from the judgment of Steytler J in the Supreme Court that Mr Halden and Dr Lawrence do not see it that way.  They submit that there is some constitutional principle which prevents the Commission from being valid. 

HIS HONOUR:   Well, based on what appears in Steytler Js judgment there were various allegations as to the bona fides and so on of the Commission.  But none of those matters are raised by the statement of claim in this court.

MR LUDLOW:   Well, no doubt there will be a defence filed.

HIS HONOUR:   And if there were they might get fairly short shrift because this is the subject of proceedings in the Supreme Court.

MR LUDLOW:   Yes, your Honour.  But we submit that the fact that it is the subject of proceedings in the Supreme Court does not prevent us from litigating them in this court.

HIS HONOUR:   Well, the fact that you raise a constitutional matter - let us assume for a moment that you do by the statement of claim - does not then give this court, which may be possessed of jurisdiction to deal with that matter, some sort of wide-ranging authority to go into a whole variety of questions that are not truly associated with that constitutional claim.

.D.
MR LUDLOW:   We submit that they are, your Honour.  Perhaps I could develop that submission a little further if your Honour would like me to do so.

HIS HONOUR:   Well, I must confess, I just do not even being to follow how the statement of claim coupled with the claim for relief provides any foundation for this court to inquire into the validity of the Commission.  And if it did, I would have to say that my reaction immediately would be that these matters are before the Supreme Court of Western Australia and that is where they should stay subject, of course, to rights of appeal and applications for special leave if those situations arise.

MR LUDLOW:   Well, certainly I could apply on behalf of Mr Easton under the Judiciary Act for an order removing the issue to this court.  This is an alternative way of doing that.

HIS HONOUR:   Well, no comment to make about that.

MR LUDLOW:   It is, of course, open - I could amend the statement of claim ‑ ‑ ‑ 

HIS HONOUR:   The statement of claim, Mr Ludlow, on a fair reading of it and even having regard to your paragraph 37 which rather bluntly asserts that the Commission is valid and enforceable ‑ ‑ ‑ 

MR LUDLOW:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ does not give rise to the sorts of questions that I understand are being canvassed before the Supreme Court.  And even if it did, my answer would be that that is where they should stay for the time being at any rate.

MR LUDLOW:   Well, the submissions set out in the particulars is the submission we made to Steytler J at the hearing.  Steytler J did not have to deal with that submission in his judgment because be merely rejected the submissions of the plaintiffs in that action.

HIS HONOUR:   Well, I am not sure that that is so.  I mean, what he said, as I understand it, was that there was not sufficient justification for precluding the Commissioner from carrying out his functions.

MR LUDLOW:   Well, there is a dispute between the parties in the Supreme Court as to the legal principles applicable to the validity of the Commission.  The plaintiffs submitted that there were three matters; it was improper purpose, a breach of parliamentary privilege and a breach of cabinet privilege or public interest privilege.  And that they alleged on the basis of those things, and they all - we submit, at least are second to raise constitutional issues.  They submitted on the basis of their understanding or submissions as to the law that the Commission was invalid.

HIS HONOUR:   Well, no one has said yet that the Commission is other than valid, has it?
MR LUDLOW:   That is correct, your Honour.  But there is clearly a dispute ‑ ‑ ‑ 

HIS HONOUR:   Why should this court entertain argument as to something about which - I mean, you say the Commission is valid and enforceable?

MR LUDLOW:   Yes.

HIS HONOUR:   And on the face of it, it is.  And while there is a challenge in the Supreme Court to the validity of the Commission that is where it should stay.

MR LUDLOW:   Well, the difficulty from Mr Easton's point of view is that while this challenge is going on, the deliberations and inquiry of the Royal Commission is being interfered with.

HIS HONOUR:   Well, that may be but that is a matter for the Commissioner, that is a matter for the Supreme Court.

MR LUDLOW:   Yes, but again ‑ ‑ ‑ 

HIS HONOUR:   I mean, Mr Easton, assuming that he has the role to play or the interest which you contend for, as I understand the proceedings that have been launched in this court, in truth what is being sought is some sort of declaration that the Commissioner is not only free but is perhaps required to look at matters that are said to be the subject of parliamentary privilege.

MR LUDLOW:   That is correct.

HIS HONOUR:   But your claim for injunctive relief would just bring the proceedings to a halt.

MR LUDLOW:   Temporarily until the legal issues have been resolved and then the Royal Commission would ‑ ‑ ‑ 

HIS HONOUR:   Why should the Commissioner - why should this court issue an injunction to restrain the Commissioner from carrying out functions which you say to some extent hampered by the absence of declaratory relief from this court or perhaps from the Supreme Court.  What you are really complaining about is the limitation which you contend parliamentary privilege places on the scope of the Commissioner's inquiry, is it not?

MR LUDLOW:   Correct.  Some of the defendants allege that parliamentary - the law of parliamentary privilege prevents the Royal Commissioner from investigating matters which Mr Easton says the Royal Commissioner is required to investigate. 
.D.
Now, there has already been a decision of Steytler J on that issue, Steytler J found in favour of the defendants.  We submit that that decision is inconsistent with the decision of this court in McGuinness's case.  So that is now - - -

HIS HONOUR:   But I do not know what view the Commissioner may take of these matters, I do not suppose anybody does at this stage.

MR LUDLOW:   Well, with respect, your Honour, the Commissioner was a party to that decision and he is bound by it, so he is now bound to say that the law is the opposite of what we say, this is the difficulty.

HIS HONOUR:   Well, I must say that is giving a pretty strong significance to an order refusing interlocutory relief.

MR LUDLOW:   Well, yes, your Honour, but the difficulty for Mr Easton is that we submitted to Steytler J that he was bound by the decision in McGuinness's case to say that a Royal Commission may investigate whether there has been a breach of parliamentary privilege.  Steytler J rejected that submission, both the Royal Commissioner and Mr Easton are bound by it.  Now, I suppose it is open to us to appeal against that part of Steytler J judgment, but we submit that another way of resolving the difficulty presented by Steytler J judgment is to seek a declaration directly from this court on the basis that this court has jurisdiction.

HIS HONOUR:   I understand that, I understand that, Mr Ludlow, but what you are asking for today is an order that the Commissioner cease carrying out his functions temporarily.

MR LUDLOW:   Temporarily, yes.

HIS HONOUR:   Until these matters which you raise in the statement of claim are determined and which may take some time before they reach the court.

MR LUDLOW:   That is right.  The difficulty Mr Easton now has is that he is bound by a decision the Royal Commission - and the Royal Commissioner is too - by a decision that the Royal Commissioner cannot investigate these matters.  Now, even if he were to seek an urgent hearing from this court at the earliest possible opportunity for a declaration that Steytler J decision on that issue was incorrect, he has still got the problem that the Royal Commissioner has only 5 months to report.  And by the time this court rules on the issue, which might not be until early next year, the Royal Commission will have ceased, it will have disappeared, no longer be there.

The difference between a public hearing and a private hearing is that a private hearing is in camera.  You have still got the examination procedure, you have someone in a box being asked awkward questions - - -

HIS HONOUR:   I think I appreciate that distinction.k

MR LUDLOW:   All right.  If you understand that distinction then those are the submissions I have in reply, your Honour.

HIS HONOUR:   Yes, thank you, Mr Ludlow.  Is anyone able to bring me up to date on events either before the Royal Commissioner, or in the Supreme Court?

MR MITCHELL:   I understand that the Royal Commissioner has decided not to hold any hearings today, and the proceedings in the Supreme Court were continuing at 2.15 and I do not know what transpired since that time.

HIS HONOUR:   When you say that the Commissioner has decided not to hold any further hearings for today, with the intention of resuming tomorrow?

MR MITCHELL:   I do not know what his intention is beyond today, sir.

HIS HONOUR:   Well, so far as he expressed his intention. 

MR MITCHELL:   And even that is second hand.

HIS HONOUR:   Very well, all right.  Well, there is clearly considerable urgency about this matter.  I propose to give my judgment on Thursday morning at 9.30 in the hope that by then I will have my judgment in printed or at least typed form and available for distribution rather than deliver it orally.

AT 4.02 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 20 JULY 1995