Halden & Anor v Marks
[1995] HCATrans 205
.D.
TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Western AustraliaLevel 4Law Courts Building1 Victoria AvenuePerth WA 6000GPO Box 9955Perth WA 6001Phone (09) 268 7300Fax (09) 221 4357
HIGH COURT OF AUSTRALIA
TOOHEY J
No P 20 of 1995
HALDEN and LAWRENCE
and
MARKS and OTHERS
PERTH
11.04 AM, FRIDAY, 4 AUGUST 1995
HIS HONOUR: Mr Gyles?
MR R.D. GYLES QC: If your Honour pleases. I appear with my learned friend, MS C. McLURE, for the applicants.
HIS HONOUR: Yes. Thank you. Mr Solicitor?
MR R. MEADOWS: May it please your Honour. I appear with my learned friend, MS C. JENKINS, for the second respondent and so far as the first respondent is concerned, your Honour, I am asked to convey to you that he is prepared to abide by the decision of the court.
HIS HONOUR: Yes. Thank you. Mr Ludlow?
MR J.R. LUDLOW: I appear for the third respondent, your Honour.
HIS HONOUR: Yes. Thank you. Mr Pendlebury?
MR N.G. PENDLEBURY: Your Honour, I appear for the President of the Legislative Council, and when I say "I appear", it may be that I will need to seek leave to appear in that I am not ‑ ‑ ‑
HIS HONOUR: What was the President's position before the Full Court, Mr Pendlebury?
MR PENDLEBURY: The President was granted leave to appear, without submitting to the jurisdiction of the court, to argue on the question of whether the courts have jurisdiction on the question of Parliamentary privilege.
HIS HONOUR: Was he described as an intervener or did that not arise?
MR PENDLEBURY: I think he was described as an amicus, your Honour.
HIS HONOUR: All right. Yes, thank you. Well, we can leave it I think until the question arises on which you might wish to be heard then I can see what the attitude of other counsel is.
MR PENDLEBURY: Thank you, your Honour. Just at this point, your Honour, it might be appropriate to mention that Mr Zelestis of senior counsel does intend to join me.
HIS HONOUR: Yes. Thank you, Mr Pendlebury. Mr Gyles?
MR GYLES: Your Honour, the formalities first. We move a summons dated 3 August ‑ ‑ ‑
MR MEADOWS: Before my learned friend does begin, your Honour, I am sorry to interrupt him but I just wanted to make a point regarding the timing of this application. The papers in this matter were served on the Crown Solicitor at around 9.35 am this morning and needless to say very limited opportunity has been available to us to consider the papers that have been lodged and at this stage I would foreshadow, depending on what my learned friend has to say, we might be seeking some time after he has finished his submissions.
HIS HONOUR: Well, Mr Solicitor, it seemed to me that the first matter that I should deal with is the logistics of the application for special leave to appeal because that is really the background against which the present application is brought, which I take it does not really involve any necessity for time on your part since the applicants have filed their application for special leave to appeal and the only question that arises there is when and where it should be heard.
MR MEADOWS: Quite so, your Honour.
HIS HONOUR: But I will hear from you on that other aspect when we have dealt with that first question, Mr Solicitor.
MR MEADOWS: Thank you, sir.
HIS HONOUR: Mr Gyles, it seems to me, as I have just indicated that before we get to questions of abridgment of time for service of the summons and the need for other parties to have some time to consider the material that I should deal first with the question of when and where the application for special leave to appeal should be heard.
MR GYLES: Yes, your Honour.
HIS HONOUR: What do you wish to say about that matter?
MR GYLES: The information, as we put in our affidavit, your Honour, is from the Registry, is that the 14th of this month in Sydney, that is Monday week, is available and that the court is available to take the matter on that day provided that all parties consent. Learning of that yesterday we communicated both orally and in writing to both of the other parties seeking that consent, we have not had any formal reply and we have had some indication from the Crown that they do not consent but perhaps that can be clarified now, your Honour. If that is not convenient we would simply take - or either ask that your Honour order that the matter be heard on that day or we will go anywhere any time, if I could put it that way, your Honour. I gather Adelaide is the week after and that would not be inconvenient.
HIS HONOUR: You mean not inconvenient to the court or the parties?
MR GYLES: The court has said the 14th is available but the court has not offered yet any other dates. I was told however that the court moves to Adelaide and I do not know the state of the list there, your Honour.HIS HONOUR: But are you saying that absent consent of the parties you would still ask for an order that the application for special leave be heard in Sydney on 14 August?
MR GYLES: Yes, your Honour, we would.
HIS HONOUR: Yes. All right. Well, I had better deal with that, I think. Mr Solicitor?
MR MEADOWS: Your Honour, my instructions are not to consent to that, that is that the matter be heard on 14 August in Sydney; it is not a date which is convenient to counsel who has been engaged in this matter from the outset and indeed any date in the remainder of this month would not be convenient to him. That is the primary basis upon which we would not be prepared to consent to this matter.
HIS HONOUR: I can understand that being a basis for non-consent, it is another question as to how compelling a reason it is for not making an order in the terms sought.
MR MEADOWS: Yes. I understand that, your Honour.
HIS HONOUR: What do you say about that aspect of it?
MR MEADOWS: Well, in our submission, this is a matter where in truth there really is no urgency, and this really starts to bear on the principal application which is before you today in that if one looks at the relief which is being sought that relief could be granted at any time in the future if it was thought that these were matters which required the elucidation of the High Court.
.D.
But there is nothing in the relief sought which demands that the matter be brought on in any sort of a hurry and that the matter should just take its normal course. In our submission it is incumbent on the applicant to demonstrate to you that there is a reason, and a compelling reason, why the normal processes of the Court should be interfered with and the matter should not be dealt with in the normal course.[11.11am]
HIS HONOUR: Well, they are fairly question begging terms, are they not, when you say the ordinary processes of the Court should not be interfered with and it should take its place in the ordinary course. I mean, there is a special leave day in Sydney on 14 August. Apparently time is available to deal with the application.
MR MEADOWS: Yes, but my point is, your Honour, that a matter such as this which has commenced in this registry would normally be dealt with in the other special leave lists that come out of this particular registry.
HIS HONOUR: Well, that is true and some of those applications would be dealt with when the Court is here in October, some would be dealt with on Videolink.
MR MEADOWS: Quite so, your Honour.
HIS HONOUR: Some, as is the case from time to time, are heard in another registry if the matter appears to be of some urgency.
MR MEADOWS: Well, that is my point.
HIS HONOUR: There is nothing that dictates as to particularly when and where it should be heard, the question really is one of the convenience of the parties and the availability of time in the Court and, I accept, whether there is some reason for directing that this matter be heard at a time which would inevitably require some limiting of the time under the rules for filing statements of case and so on. But I accept that it is for Mr Gyles to make good that case so perhaps I should really hear from him on that aspect of it. I really wanted to clarify with you that while the convenience of counsel is a relevant matter it does not seem to me to be of itself a consideration if otherwise the case presents as one which warrants listing in Sydney on 14 August. But I will hear from you, Mr Gyles.
MR GYLES: Yes. I wonder if Mr Ludlow might be able to clarify.
HIS HONOUR: Mr Ludlow?
MR LUDLOW: Yes, your Honour, I would like to clarify my client's position. My client accepts that the matter is urgent and it is in the public interest that it be heard as soon as possible. He is also prepared to consent to the matter being heard in Sydney on the 14th providing that the appellants - applicants - pay the costs of his lawyers travelling to Sydney to attend the hearing.
HIS HONOUR: You have no particular interest in the present, that is, the application for an injunction, do you - that is, in opposing the application?
MR LUDLOW: Yes. Your Honour, my client's stance is the same as that of the Royal Commissioner. My client will submit to whichever order your Honour wishes to make. But I should mention, in the interests of the Court in considering the application, that the stance of my client is very likely to take, in the hearing of the application for special leave to appeal, that the application for special leave should be granted. In other words, he is very likely to support the appellant's argument that special leave should be granted.
HIS HONOUR: I see, all right. But so far as the application for an interim injunction is concerned, do you wish to be heard on that matter?
MR LUDLOW: I only wish to make one observation, your Honour.
HIS HONOUR: Well, I do not want you to go into the substance of it, I just want to know whether you wish to be heard at all on that matter.
MR LUDLOW: I do not wish to make any submissions but I would like to provide the Court with some information which will assist it in deciding the application.
HIS HONOUR: Yes. Well, unless you are looking for leave to withdraw at this stage ‑ ‑ ‑
MR LUDLOW: I will also ask for that as well, your Honour.
HIS HONOUR: Well, I am a bit reluctant to give you leave to withdraw until I have seen what you have got there, because it might be that the other parties have some objection to the material.
MR LUDLOW: The material I wish to hand up to your Honour are copies of my client's notice of contention which was before the Full Court and copies of my client's written submissions which were also before the Full Court. The reason I would like to make those available to your Honour is that I have read the judgment of the Full Court and the way I read it the Full Court has rejected all of those submissions without even mentioning what they were let alone giving any reasons as to why it rejected them. And that being the case there is nothing - on my reading of the judgment there is nothing in the judgment to say what those submissions were and I believe it is my duty to the Court this morning to provide the Court with copies of those submissions so that the Court is aware of all of the submissions that were made to the Full Court.
HIS HONOUR: Well, Mr Ludlow, I think you will have to make up your mind as to whether you wish to be a participant in the summons for an interim injunction assuming that time is abridged and the matter does proceed, but at the moment I am just trying to fasten on to the question of the application for special leave. Now, I take it so far as that matter is concerned you not only have no objection but consent to it being heard in Sydney on 14 August so long as the applicants pay your client's costs. Is that right?
MR LUDLOW: Yes. The condition we would ask the Court make is that the applicants pay the travelling and accommodation costs. We are not asking for the applicants to pay the legal costs.
HIS HONOUR: But you will be asking for those particular costs in any event.
MR LUDLOW: Yes.
HIS HONOUR: That is, additional costs incurred by reason of the matter being heard in Sydney.
MR LUDLOW: That is correct, your Honour.
HIS HONOUR: Yes, thank you.
MR LUDLOW: Otherwise we would exercise our right to insist of a Videolink hearing.
.D.
HIS HONOUR: Well, I do not know that you have any right to insist on a video link hearing, Mr Ludlow, or on anything for that matter. I mean, what do you mean by your right to insist on one?[11.17am]
MR LUDLOW: I understood there was a provision in the rules that any party may request a video link hearing, if that request is made.
HIS HONOUR: Yes, well, there is a fairly significant difference between requesting and insisting, but I understand what you say. Now, Mr Giles, so far as the application for special leave to appeal is concerned, what do you offer by way of reasons for that matter being given some urgency?
MR GYLES: Your Honour, there will be an inevitable overlap between what my answer and the ‑ ‑ ‑
HIS HONOUR: I would like you to keep them as separate as you can at the moment because I am conscious of the solicitor's comments to me about lateness of service and time needed to deal with application and so on and at the moment I have an abridged time for the hearing of the summons for an interim injunction.
MR GYLES: No, it is also by way of being ex parte too, your Honour, but I do not enter that fray at the moment.
HIS HONOUR: No.
MR GYLES: Your Honour, the urgency of the matter is that the Commission is proceeding as we speak to take evidence and the Commissioner has made it clear that he will continue to do so unless and until restrained by order of the Court. If the appellants, or the applicants, contentions are correct and are vindicated in the long run, or the short run I suppose so far as a special leave application is concerned, it will mean that all that is happening day by day in the Commission is a breach not only of the right to reputation and so on, which the plaintiffs have individually, but of the rights of Parliamentary privilege and public interest immunity, which they also vindicate, and as we will be putting to your Honour later in our application this is irremediable damage, you cannot put them back in the position that they were before.
HIS HONOUR: Mr Gyles, what is the state of play in the Commission as of this moment?
MR GYLES: As of this moment, your Honour, what has happened is that one witness - there was argument before the Commissioner as to Parliamentary privilege and he gave a ruling on that.
HIS HONOUR: When?
MR GYLES: The 17th.
HIS HONOUR: And is that contained in the material that is before me?
MR GYLES: Yes, that is in the evidence before your Honour.
HIS HONOUR: I have read the papers that have been filed in support of the application. I say I baulked at reading two lever arch files of documents that came in this morning.
MR GYLES: Yes. Your Honour, that ruling is in the papers, yes, that is the first thing, and if I could summarise it, your Honour, there are two principles, the first is that the Commissioner will be guided by - the first is, the Courts have no role at all and he will continue unless Parliament knocks on his door presumably with a warrant, or by some other process. Secondly, he will be guided in his practical conduct of the matter by a statement by the Legislative Council president. That statement indicates a view of Parliamentary privilege which is much narrower than that for which we contend and much narrower than that which Steytler J held was arguably - raised a serious question to be tried. In particular, although it is not the only point in particular, the Commissioner is to proceed upon the basis that nothing which happened before the actual tabling of the petition in Parliament is covered by article 9 of the Bill of Rights. Now that is a highly controversial matter, as Steytler J held.
The next thing that happened, your Honour, was that counsel assisting opened and indicated the issues she saw as being ventilated and gave an indication of the witnesses that she was proposing to call. It was not an extensive opening but it gave certainly clear indications as to certain areas. It is clear, for example, that there is no executive action or exercise of public office involved in the inquiry so far as we know, save for that by Parliamentarians and Parliamentary officers. That was clear from her opening.
It is also clear that much that went on between Parliamentarians and their staff will be investigated, and also that Cabinet meeting will be in question. Furthermore, that the truth of the contents of the petition will be canvassed, so we now release those things from her opening,
.D.
and then the first witness was called, that first witness, your Honour, was a press officer of the second applicant and the substance, he has completed his evidence-in-chief, as it were, led by the counsel assisting, that was completed yesterday, and this morning he is being cross-examined at the moment by some parties. The Commissioner has said that if there is no injunction we are to cross-examine on Monday. We also gather from ‑ ‑ ‑[11.22am]
HIS HONOUR: Monday morning?
MR GYLES: Monday morning. We gather also that other witnesses may be called today, and there was reference to a Mr Willoughby who was another press officer of the second applicant. Your Honour, the substance of the evidence led from Mr Kovacs who is the first witness - if I could briefly summarise it - was that his first contact with the matter was speaking with this first applicant, Mr Halden who was then a member of Parliament and still is. Mr Halden explained that Mr Easton, Mr Ludlow's client, had approached him with a grievance. The grievance involved, amongst other people, Richard Court the then Leader of the Opposition.
The evidence of Mr Kovacs then traces what happened following that approach from Mr Easton to Mr Halden through what might be called the Parliamentary process, that is consideration with Mr Halden, consideration on his version with Dr Lawrence, consideration with the Clerk of the House - the Upper House - whose task it was to assist constituents with drafting petitions into the immediate reaction after tabling, including his commentary upon answers given by the second applicant in Parliament as to her knowledge of the petition.
HIS HONOUR: You mean his commentary to others?
MR GYLES: Yes, to others, and including her - including her.
HIS HONOUR: Right.
MR GYLES: Then his ultimate departure from her staff in a reasonably short time thereafter. So the course of his evidence covers, if we are correct in our view of article 9, all of that material with some, perhaps, exceptions would by covered by Parliamentary privilege. We also will be submitting, your Honour, that even if not caught by article 9 it is still not a matter of investigation by the Executive Government, and I will have to develop that point later. Your Honour, we would expect that evidence over the next week or two will include, based upon counsel's opening and the evidence given by Mr Kovacs and some things we have been told by counsel assisting, evidence led from two other staff officers of the second applicant, one a press officer and another a political adviser who are involved in the process from Easton's grievance complaint to the first applicant through to the time after the tabling of the petition.It is expected that a number of journalists will be called who will give evidence, amongst other things, of discussions with the first - or the applicants and their staff about the petition ‑ ‑ ‑
HIS HONOUR: But is it suggested that that evidence is subject to Parliamentary privilege?
MR GYLES: Generally speaking not, I would have thought.
HIS HONOUR: What I am really looking at is, in the context of what should be done about special leave applications, what is likely to happen over the next week.
MR GYLES: Yes. Well, I am endeavouring to commence that ‑ ‑ ‑
HIS HONOUR: Yes. I appreciate that but ‑ ‑ ‑
MR GYLES: The journalists will be giving evidence as to, amongst other things, their reaction to the petition and so on and some of that may be caught and some of it not caught by Parliamentary privilege in the strict sense.
.D.
[11.27am]
HIS HONOUR: What of the two staff officers whom you mentioned earlier?
MR GYLES: The evidence of Mr Kovacs indicates Willoughby and Russell.
HIS HONOUR: It was not their identification so much as what you say about the nature of that evidence in terms of parliamentary privilege.
MR GYLES: We imagine that they will be giving evidence - I withdraw that - Mr Kovacs evidence involves them in the chain of discussions and actions which took place after Mr Easton approached Mr Halden, so that they will be giving evidence in the same arena, as it were, the same area, as Mr Kovacs and we imagine that they will be covering almost precisely the same things. Your Honour, apart from the journalists counsel in her opening referred to two parliamentarians who will be called at some stage. One was a - I do not carry the names with me at the moment - one was a member of the National Party and one was an Independent.
HIS HONOUR: Could I just ask you this, Mr Gyles, is there a timetable laid down for next week by the Commissioner?
MR GYLES: No. No, we really do not know who is going to be called. We do know this though, that on Wednesday - part of Wednesday and part of Thursday will be devoted to an argument about public interest immunity.
HIS HONOUR: In other words it is fairly unlikely that it is going to get beyond Mr Kovacs cross-examination, I imagine, re-examination if any and, what, the evidence of the two staff officers.
MR GYLES: Well, your Honour, we are guessing, we do not know what is going to happen. We assume that is probably right. It is a fair estimate from what we know that that is the case but we are not privy to what order witnesses will be called in.
HIS HONOUR: Well, coming more directly to ‑ ‑ ‑
MR GYLES: Could I just say this, your Honour, that at the moment the plan of the Commissioner in considering public interest immunity is to hear himself the relevant evidence from the members of Cabinet. Now, it may be he will be dissuaded from that view but the problem is that the Full Court's decision would give him warrant to do that or may give him warrant to do that. He has indicated he may hear that in camera and then consider the wider position but it is certainly conceivable that next week members of Cabinet will be called - we cannot rule that out at all at the moment - about the knowledge of particularly the second application as to the allegations founding the petition and the intention to present the petition prior to its actual presentation.
HIS HONOUR: I see that. In a sense it does not really answer the question of the hearing of a special leave application except that if special leave were refused then the parties would all know where they stood, if special leave were granted then the matter would proceed to a substantive hearing which would be some time on, and that would presumably raise once again the question of interim injunctive relief. But just trying to focus on to the special leave application itself, what essentially is the argument for listing it in Sydney on 14 August?
MR GYLES: Because, your Honour, the special leave application is or will to a large extent determine what is to happen. As your Honour says, if there is no grant of special leave then that is the end of the road as far as we are concerned. If special leave is granted then the question of injunctive relief for a longer period is then looked at in the light of that circumstance. At the moment your Honour is looking at a closed period. Whether it is next Monday or later is the question and we would submit that the issue for your Honour confronted with an application for injunction and for the parties is much easier to determine if we have a target date. In a sense your Honour understands that provided we have an injunction we do not much mind when the special leave application comes on.HIS HONOUR: No, I can imagine that.
MR GYLES: You see, what we are saying is that we are ready to deal with it. I assure you it is not terribly easy to produce documents overnight but we will do all we can.
HIS HONOUR: Why I asked you to deal with this part of it first is that if I list the matter for hearing in Sydney on 14 August - that is, the application for special leave - well, then that is context in which I will hear from the parties on the claim for injunctive relief. If I am persuaded not to do that then it is a sort of open ended hearing for the special leave application and ‑ ‑ ‑
MR GYLES: For the injunction.
HIS HONOUR: No, for the special leave hearing.
MR GYLES: Sorry, yes.
HIS HONOUR: And then no doubt the parties would address on that footing.
MR GYLES: On that issue, yes. Well, I think I have probably put what I can, your Honour.
HIS HONOUR: Yes. Yes, thank you, Mr Gyles.
.D.
[11.33am]
MR MEADOWS: If it please your Honour, my learned friend's submissions have really made the point that I sought to address to begin with, that the key issues in this case are mainly issues as to what is the correct approach to the issue of Parliamentary privilege and public interest immunity in this context are matters which can be determined at any time in the future, that there is really no pressing requirement that these issues should be determined with haste, and that we have a situation where the Full Court which is the intermediate Court of Appeal in this matter has ruled unanimously as to those matters and the Royal Commission which is currently in progress should be allowed, in our submission, to proceed in accordance with that unanimous decision and that ultimately if it proves that if special leave was to be granted and the matter was to be addressed by the High Court and the decision of the Full Court was found to be in error in some way then the questions of principle would have been corrected. But it does not alter the fact that these matters can be determined in just the ordinary course of time and that the ‑ ‑ ‑
HIS HONOUR: Well, except I suppose that - and I do not want to take it beyond the special leave point of the hearing of the substantive appeal if special leave were granted, but if special leave were refused on 14 August, well, then that really disposes, perhaps technically only, of the Full Court's ruling on the application for interlocutory relief but the Full Court has inevitably expressed wider views, or views that go to the substantive matter, and it may be that that refusal of special leave would let everyone know where they stand. If special leave were granted then the sort of argument that I am about to hear in relation to interim injunction, no doubt, would be urged upon that bench of three.
But I must say I would have thought generally speaking, and not in terms of the application that is to follow so much, although I have spoken of it as setting the background, but if there is a date readily available in a week or so's time for the application for special leave there is much to be said for dealing with that aspect of it and getting it out of the way, one way or the other.
MR MEADOWS: Yes. Well, of course, one of the difficulties with that, and this is something which we would intend to raise in another context, and that is that what the Full Court had to deal with was very much preliminary material coming out of the Commission.
HIS HONOUR: Undoubtedly, and no doubt that would be pressed upon the Court on the application for special leave.
MR MEADOWS: And certainly whether there is a sufficiently clear matrix of factual material upon which the Court could properly deal with those sort of issues is something which would be impressed on the Court at that stage.
HIS HONOUR: I accept, but it is not easy to compartmentalise all these matters but I am trying to do so as much as possible to because I think at least it makes for some sort of clarity as the matter progresses, but looking at the application for special leave to appeal and the question whether it should be given some urgency, from the Crown's point of view what really are the objections? I mean, I can understand the case of a private litigant who might say: well, it is difficult for me financially and otherwise, although the Court could always impose a condition that the applicants pay the costs of a private litigant who has to go elsewhere for the hearing. But what really is the problem with it being listed and disposed of one way or the other on Monday week?
MR MEADOWS: Well, we would put it this way, if the matter is not heard Monday week the Royal Commission would simply proceed and the issues which the applicants would seek to erase in their special leave application would be dealt with in due course.
HIS HONOUR: But that might well happen in any event. I mean, if the application for special leave is refused, clearly it would happen. If the application for special leave were granted, it by no means follows that injunctive relief would be granted any more than it follows that by listing this matter for 14 August injunctive relief would be granted pro tem.
MR MEADOWS: I accept that, your Honour.
.D.
But I think what I am trying to say to you is that either way, from the Crown's point of view, the matter should proceed in the Royal Commission.[11.38am]
HIS HONOUR: Now, you are taking me into stage two are you not, really?
MR MEADOWS: It is very difficult not to be dragged in.
HIS HONOUR: I know that.
MR MEADOWS: And that there really is not any urgency which has been demonstrated by my learned friend as to why this matter should be brought ahead of the pack, that is really the issue we would say.
HIS HONOUR: Well, there is no suggestion that any one is going to lose their place in the queue by reason of the matter being heard on 14 August. I mean it is just that it so happens now there is time available.
MR MEADOWS: I understand what your Honour says. But the point that I make, though, is that unless there is a case for urgency there is no sound basis upon which this matter should be given expedition.
HIS HONOUR: Yes, all right thank you. Mr Ludlow I think I have your views on the matter.
MR LUDLOW: Yes, your Honour.
HIS HONOUR: Mr Zelestis, is this a aspect on which your client wishes to he heard?
MR ZELESTIS: No, your Honour.HIS HONOUR: Well, I do not want to hear from you, Mr Gyles, in reply. It does seem to me that the case has been made out for the listing of the special leave application and that is on 14 August and I say that without in any way prejudging the outcome of the application that has been made for an interim injunction, but the time is available. I would have thought it was in the interests of the parties to have that aspect of the matter cleared up as quickly as possible. If the application is refused then the way is clear for continuation of the Commission. If the application is granted the way is still clear, unless some interim injunctive relief were granted by reason of the grant of special leave and that is a matter, of course, for the bench as constituted at the time. But as I said earlier, there is no suggestion of anyone else being inconvenienced by the listing of this matter on 14 August and essentially it is an argument of importance which seems to me warrants the listing of the matter on that day.
I propose, therefore, to direct that the application for special leave to appeal be heard in Sydney on Monday, 14 August. There are logistical questions that arise in terms of the rules, order 69A laid down a timetable. It seems to me the only matter that needs to be considered is the statement required by order 69A rule 3.
MR GYLES: And I think, your Honour, the application book.
HIS HONOUR: And the application book, yes, under rule 6 and that is to be prepared and settled by the registrar after consultation with the parties. Time is going to be very short for that.
MR GYLES: Yes, we had thought perhaps, your Honour that we could settle an index today perhaps and have it filed Monday, or alternatively index settled on Monday and filed on Tuesday.
HIS HONOUR: Well, I take it you have really complied with rule 3, have you?
MR GYLES: Yes.
HIS HONOUR: At least you would regard yourselves as having complied with it.
MR GYLES: We have done our best, your Honour, yes. I think they have all been dealt with. It is really a matter for the Court, I suppose, because the other parties are well aware of all the issues. We would respectfully ask that your Honour fix Tuesday as the day for the statement and the application book.
HIS HONOUR: It is really the summary of argument is it not, under rule 8?
MR GYLES: Yes, summary of argument, yes.
HIS HONOUR: I mean so far as the settling of the index is concerned that is a matter for the registrar in consultation, as rule 8 provides. It is rule 8 the summary of argument that the parties cannot comply with, simply because the time is not available. But if I was to direct that the applicants file their summary of argument by Monday, that is Monday 7 August, and the respondents file their summary of argument by Thursday 10 August,
.D.
do you have any quarrel with that?[11.43am]
MR GYLES: Could I trespass on your Honour's indulgence to make it Tuesday.
HIS HONOUR: It is not really my indulgence, I am conscious of the respondent's position.
MR GYLES: Yes, but, your Honour, they have ‑ ‑ ‑
HIS HONOUR: It does not really affect the Court all that much at that stage of the week.
MR GYLES: Your Honour, I do understand that, with respect, but my learned friends have participated in three hearings to date in which all of these matters have been adumbrated, that is before Steytler and Heenan JJ in the Full Court. They have our notes of argument before your Honour. They will hear what I have to say, they have all the other documents. I would respectfully submit that to get a document to do justice to the full argument by Monday will ‑ ‑ ‑
HIS HONOUR: Well, it is really perhaps a matter of working backwards. The members of the Court need to have the material to be able to read it before the hearing on Monday and even allowing for the urgency of the matter the members of the Court should have the complete material by, say, the morning of Friday the 11th.
MR GYLES: Yes.
HIS HONOUR: Well, now allowing the respondents an opportunity to come back, you might have to settle for something Friday morning. I mean, if you want Tuesday ‑ ‑ ‑
MR GYLES: Really I am thinking of Tuesday morning, your Honour, and we are happy to receive what they have when they can get it.
HIS HONOUR: I need to give directions. Friday morning?MR GYLES: Yes, your Honour.
HIS HONOUR: Mr Solicitor, do you want to say anything about that?
MR MEADOWS: We have no objection to that, your Honour.
HIS HONOUR: Very well. Then there will be a further direction that the applicants file their summary of argument by 10 am on Tuesday, 8 August, and the respondents file their summary of argument by 10 am on Friday, 11 August. Now, Mr Ludlow, you have asked that the applicants pay the costs of the third respondent, that is those costs incurred by reason of the hearing in Sydney in any event, is that right?
MR LUDLOW: Yes, your Honour.
HIS HONOUR: Yes. Mr Gyles?
MR GYLES: Yes, your Honour, I would submit that is not a condition that ought be imposed. Mr Easton is a party because he sought leave to, as it were, intervene or to be made a party on terms that he would not have to bear costs. Steytler J saw that he had an interest in the proceedings but I would respectfully submit he has no particular interest in attending a special leave application, sufficient to visit his costs upon us. He has intervened in the litigation for his own purposes. I submit that we should not have to subsidise that intervention. He is not a necessary party, your Honour, and indeed he is supporting the application, as my learned junior reminds me.
HIS HONOUR: Well, he is supporting the application ‑ ‑ ‑
MR GYLES: For special leave.
HIS HONOUR: ‑ ‑ ‑ for special leave.
MR GYLES: Yes. So we say: thank you, but we do not need you.
HIS HONOUR: Mr Ludlow?
MR LUDLOW: May I reply to that, your Honour? We will be supporting the application on different grounds.
HIS HONOUR: Well, the applicants have to make good their case. Your client is a respondent. If your client wished to oppose the application then I would fairly readily make it a condition of the hearing in Sydney that the applicants pay your client's costs, but ‑ ‑ ‑
MR LUDLOW: The other alternative, your Honour, is for us to rely on the statement that we file here and ask the Court just to read it.
HIS HONOUR: What, you mean the statement that you file here?
MR LUDLOW: We will be filing a statement as directed by the Court by 10 am Friday, 11 August.
HIS HONOUR: I see. And ask the Court to consider that written statement in the absence of counsel. In the circumstances, given the way in which you came into the matter and your client's position, vis-a-vis the application, that seems to me to be the sensible thing to do.
MR LUDLOW: Very well, your Honour.
HIS HONOUR: Thank you, Mr Ludlow. Mr Ludlow, in the light of that do you now wish leave to withdraw or would you like to be heard later on the question of the summons for interim relief.
MR LUDLOW: I think I might stay a little longer, your Honour.
HIS HONOUR: Yes, very well. Well, you feel free to draw my attention to your position at any stage as the matter proceeds. Very well.
MR GYLES: Your Honour, could I ask that your Honour in the order include an order that the application book be filed by 10 am Tuesday. I cannot put my finger on the rules but my learned junior tells me that we have been informed by the Registrar that that may need to be done.
.D.
I do not know where that comes from, your Honour, I have not been able to identify it myself but it will do no harm if your Honour ‑ ‑ ‑[11.48am]
HIS HONOUR: Well, orders, rule 6 sub‑rule (8) provides:
Within 30 days after the receipt of the index or such further time as a Justice of Registrar may order or direct the applicant shall prepare and file seven copies and supply three copies.
I think the Registrar can deal with that matter when you are before the Registrar, Mr Gyles.
MR GYLES: Thank you, your Honour.
HIS HONOUR: Right. Well, now that brings us to the application for interim relief, and I suppose the first matter I need to deal with is paragraph 1 of the summons which asks that the time for service be abridged.
MR GYLES: Yes, your Honour.HIS HONOUR: I gather from what the solicitor said that there would not be any consent to that from your client's point of view. Do you have anything to say on that aspect, Mr Zelestis?
MR ZELESTIS: No, your Honour. Has my learned friend really said that, your Honour? Has the Solicitor General said he will not consent to abridgment of time? I did not really hear him say that, I thought I heard ‑ ‑ ‑
HIS HONOUR: No. He moved his head in a direction that suggested that.
MR ZELESTIS: I heard him make a muffled complaint, your Honour, but I did not hear him.
MR MEADOWS: Well, my instructions, your Honour, are not to consent, but as I indicated earlier our position is that should the matter proceed that we would reserve our position, after having heard my learned friend's argument, as to whether we would seek time to consider what was said and engage in some further preparation.
HIS HONOUR: Yes. I think that is the appropriate way of dealing with the matter, Mr Solicitor. There will be an order that time for service in the summons be abridged to enable the application to be heard now. Mr Gyles, Mr Solicitor has indicated, not surprisingly, you might want time to consider your argument. I was going to ask that some - or direct if necessary - sort of timetable be laid down so that this matter be disposed of as quickly as possible. How much time are you going to need to present your argument?
MR GYLES: Well, your Honour, I suppose a couple of hours. I mean I have got to be guided really by the time available, I suppose.
HIS HONOUR: You do, yes.
MR GYLES: I would need, I think - I mean, when would your Honour be rising for the luncheon adjournment?
HIS HONOUR: At 1 o'clock.
MR GYLES: Well, if I have not broken the back of it by then I am in a bit of trouble, I think, your Honour. I could not undertake to finish by 1.00 but I think I would ‑ ‑ ‑
HIS HONOUR: No. I do not think, given the fact it is now 10 to 12, that I would expect you to finish by 1.00 but I would expect you to finish fairly shortly after.
MR GYLES: Yes. I think, your Honour, I will be able to.
HIS HONOUR: Now, that was my - not my intention but my expectation, perhaps the timetable could be laid down which would allow you time and the respondents time, but in view of what the solicitor has said it is probably better that we focus on your time at the moment and then see where we go from there.
MR GYLES: Yes. If your Honour pleases.
HIS HONOUR: Yes, very well, Mr Gyles.
MR GYLES: Thank you, your Honour. The summons, your Honour will have noted is 3 August and it is supported by an affidavit of Harold Worksman of 3 August. May I, your Honour, proceed upon the basis that your Honour will have read the affidavit and that I will ‑ ‑ ‑
HIS HONOUR: I have read the material that was filed.
MR GYLES: Yes.
HIS HONOUR: As I said, as opposed to the two volumes, the lever arch volumes and I have read amongst that material the judgment of the Full Court.
MR GYLES: Yes. Thank you, your Honour. Well, your Honour, may I deal with the argument on the footing that your Honour has formally read the affidavit and the exhibits to it and that I will refer your Honour to any exhibits which we wish to particularly draw your Honour's attention.
HIS HONOUR: Perhaps I should say this, Mr Gyles, too is the matter is of some urgency, that so far as the lever arch material is concerned I do not propose to go to that unless I am expressly directed to particular passages either by you or by other counsel.
MR GYLES: If your Honour pleases. Your Honour, a couple of general submissions before I turn to the outline of argument which I hope your Honour received this morning.
HIS HONOUR: Yes.
.D.
[11.53am]
MR GYLES: Your Honour, the - - -
MR LUDLOW: We have not got it.
MR GYLES: Sorry?
MR LUDLOW: We did not get it, I am sorry.
MS McCLURE: Yes, it was served.
MR GYLES: I think you did. If not, we will certainly provide a copy.
MS McCLURE: Yes. Served at 9.10.
MR GYLES: It was served at just shortly after 9 o'clock this morning, your Honour, but we - if there is a difficulty my learned friend's solicitor can speak to mine and we will make provision for it to be supplied.
HIS HONOUR: It came in - it came to me later than the material that was filed in support of the application itself.
MR GYLES: Correct. Yes. I think with the other parties, the reverse might be the case, your Honour, but ‑ ‑ ‑
HIS HONOUR: Well, Mr Gyles, if other counsel do not have it then they should have it immediately and if ‑ ‑ ‑
MR GYLES: Yes, your Honour. We will make sure that is done. I cannot understand ‑ ‑ ‑
HIS HONOUR: Well, yes. If there is any problem with photocopying, I will ask my associate to organise that now.
MR GYLES: thank you, your Honour.
HIS HONOUR: Is there a problem?
MR GYLES: Yes, I have three copies available, your Honour, and ‑ ‑ ‑
HIS HONOUR: If anyone is short of a copy, let my associate know and ask Ms Deo to arrange for a copy to be made available. Yes, Mr Gyles?
MR GYLES: Your Honour, to some extent what I am going to put may appear to go a little beyond, perhaps, the week or so that your Honour is concerned with, but we do submit that they are relevant. Your Honour, the issues which lie at the heart of this involve a number of public interests. In some of the arguments which are being put, and perhaps some of the judgments below, this seems to be perceived as an issue between a recalcitrant politician on the one hand exercising personal rights and the executive representing the public interest on the other with the Royal Commissioner the embodiment of that public interest, as it were, wearing the guernsey of Western Australia.
Now, your Honour, the public interests which are in fact involved are, first of all, the freedom of Members of Parliament to carry out their Parliamentary business free from impeachment or questioning out of Parliament. Whilst it is a privilege of the Member, as we will develop later, its basis is the public interest in the proper workings of Parliament. Secondly, your Honour, there is the public interest in Cabinet confidentiality which is rooted in the proper government of the State. Thirdly, your Honour, there is the scrutiny of the Executive by the courts to ensure that executive power, which affects citizens, is only exercised for proper government purposes, not to be influenced by any improper purposes or extraneous considerations.
Each of those, we submit, is of significant public interest which are vindicated by and protected by these proceedings in which the individuals concerned of course also vindicate their own right to not have their conduct scrutinised and reputation put at risk by an Executive inquiry backed up with statutory power. Your Honour, there is also perhaps some degree of apparent novelty about the case because it is only in relatively recent years that this type of issue has reached the courts, at least the Northern Land Council case brought within the range of the court's scrutiny the actions of the Governor in Council.
A series of cases, from Mahon's case through to Ainsworth case, has rendered, subject to the probity of writs and declaratory procedures, the workings of a Royal Commission which had formerly, under the Testero and Tate doctrine, been thought to have been immune from such scrutiny. But, your Honour, there is no magic in a Royal Commission. It is a prerogative inquiry partly, as my learned friends have put, based upon the prerogative and partly upon the statute the Royal Commissions Act of Western Australia.
.D.
The Government Gazettes of the state, which I looked at the other day as a matter of interest, are full of various instruments executed by the Governor in Council. And the appointment of a Royal Commission and the actions of a Royal Commissioner are no different in principle from many other Executive acts by the Governor in Council and are entitled to no special immunity from scrutiny.[11.58am]
HIS HONOUR: Is there any authority directly in point on that proposition - that the actions or the setting up of a Royal Commission is no more immune from scrutiny by the courts than any other actions of the Executive.
MR GYLES: Any direct authority - I am not sure there is a direct authority upon that, your Honour, no.
HIS HONOUR: Can you give me the closest authority that supports that proposition, from your point of view?
MR GYLES: Well, your Honour, it would be - I mean, one would start with the Northern Land case and go then to Bower then Wyvell, I suppose, would be the closest case. May I bear that question in mind as I approach the argument, your Honour?
HIS HONOUR: Yes.
MR GYLES: Because there does appear to be a strand running through the arguments here that this is a special sort of thing which the Court should be very cautious about. Indeed the Full Court described a Royal Commissioner as a judicial officer - a very strange concept.
HIS HONOUR: You mean in its judgment?
MR GYLES: In its judgment, in its judgment. And that sort of thinking seems to have informed some of the argument and perhaps some of the judgment below that this is a judicial body, part of the administration of justice, which is being attacked; whereas in reality it is purely a person appointment by the Executive to conduct an inquiry. It happens to be in this case, as we know, a Queen's Counsel who has formerly been a judge, but it could as easily have been a layman. Now, your Honour, the outline of argument, if I could ask your Honour to go to that, proceeds first of all to examine the test to be applied, and your Honour will pardon me if I do not spend any time on that.
There are a number of relevant recent authorities upon it including those in which your Honour has been involved and I would submit there would be little argument with the propositions we advance that the first question is the question of damage to the applicants and whether they can be returned to their former position, that is, the irreparable nature of what is taking place. The second issue are the prospects of special leave and perhaps ultimate success in the case, but not to place any barrier beyond a reasonably arguable case is the way we would submit the authorities work. And then, thirdly, although it is very much a peripheral issue, are there any other factors affecting the balance of convenience.
Unless your Honour wished to go to any of those authorities I would be content to leave the statement of principle where it lies and concentrate on other issues in oral argument. Your Honour, we then proceed to put submissions as to the damage to the applicants. Now, I bear in mind that now the question is the damage now and Monday week, I suppose. When the submissions were written we of course did not know what the position would be, not that I wish to withdraw any of them but they now must be perhaps more focused than earlier.
Now, can I ask your Honour to go, as the backdrop to this, to the terms of reference of the Commission which are set out in the judgment of the Court below at - if you will pardon me a moment -
.D.
page 9.[12.04pm]
HIS HONOUR: Yes. I have that thanks.
MR GYLES: Now, the inquiry and report, your Honour, is on whether the circumstances and events preceding and following the presentation of a petition involved certain things. So that the most fundamental matter of fact to be appreciated is that all that follows in this Commission is tied back to and depends upon connection with the circumstances and events preceding and following the presentation of a petition to the council and, as a matter of construction, of necessity relating to that topic or to those circumstances and events.
Now, when it is appreciated that the first applicant presented the petition, then inevitably he is at the centre of this inquiry and all else comes back to what he did. So far as the second applicant is concerned, the evidence to which I can point briefly later makes clear that the principal matter of controversy which the spokesman for the Government said influenced the inquiry was the question as to the knowledge of the second applicant concerning the petition prior to its presentation so that, on the evidence, she is at the centre of this inquiry also.
So that when we come, your Honour, to the more detailed arguments later as to the prospects it will be appreciated that our contention is that inevitably to investigate, to have the Executive Government investigate, the circumstances and events preceding and following the presentation of a petition to the Legislative Council necessarily involves both the privileges of the first and second applicant, as members of Parliament, and it cannot do anything else but affect them by reason of the fact that they are impeached or questioned in a place out of Parliament; and I will develop the argument later.
HIS HONOUR: I think you will need to develop that argument, Mr Gyles.
MR GYLES: Thank you, your Honour.
HIS HONOUR: It is not self-evident to me.MR GYLES: No. Well, I am putting your Honour propositions in a ‑ ‑ ‑
HIS HONOUR: Yes. I appreciate that.
MR GYLES: ‑ ‑ ‑ argumentative or bald form at the moment so that your Honour can see where we are going. Our contention is that that is the case. Furthermore, and just as importantly, it is our contention that leaving aside all together questions of Parliamentary privilege it is not a legitimate function of Government, the Executive Government, to be concerned with the circumstances and events preceding and following a Parliamentary action and that the whole structure of our Constitution and the way it works points to the fact that the Executive Government have no business meddling in the affairs of Parliamentarians leaving aside all together questions of Parliamentary privilege.
Now, whatever, your Honour, is done under the Commission must inevitably be tied back, in other words, to the preparation and events prior to the presentation of a petition - sorry, the petition. Now, your Honour, the Commissioner, bearing in mind - and the aim is to see whether there is an improper or inappropriate use of executive power of public office or motivation by improper or inappropriate considerations. Now, your Honour, that is all very well but the way the Commissioner is to proceed is then laid down, this is his charter:
He must identify all persons who were at the relevant time Ministers of the Crown -
that one of them is the second applicant -
...Members of Parliament -
both of them -
...staff of such members, etcetera -
that is Mr Kovacs who is giving evidence at the moment and others who are expected to be called in the near future -
...or holders of public office.
.D.
Now, your Honour, the evidence shows, and the opening of counsel assisting shows, that there were no holders of public office in Prospect other than Parliamentarians or the Clerk of the House. And then having identified those persons, including my two clients, you then asked whether they were directly or indirectly involved in those circumstances or events, whether in connection with the preparation of the petition or its presentation or the timing of its presentation or in any other manner. That inevitably means that so far as my two clients are concerned their direct or indirect involvement is a matter for inquiry, or knew of or considered the petition or any of its contents or proposed contents prior to its presentation to the Legislative Council.So, again, matters of inquiry:
To determine the nature and extent of such involvement, knowledge or consideration and the circumstances in which such knowledge was obtained or such consideration took place.
And (c):
Determine the motivation for the conduct of those persons in the course of such involvement.
Now, your Honour, bearing that in mind we say in paragraph 2.1 that the applicants and their conduct are clearly targets of the inquiry in the sense that they fall squarely within the terms of reference and are at the heart of the controversy. Their role in relation to the circumstances and events preceding and following their presentation of the petition including the nature and extent of their involvement in those circumstances and events, their knowledge or consideration of the petition or of its contents or proposed contents prior to the presentation, the circumstances in which such knowledge was obtained or such consideration took place and the motivation for their conduct in the course of such involvement will be the subject of inquiry. And what has happened since the inquiry began bears this out. Now, your Honour, we did provide to your Honour, I hope, a copy of the submissions that we made to the Full Court.
HIS HONOUR: Yes, I have those.
MR GYLES: And, your Honour, in paragraphs 3 to 5 of those submissions there is a short summary of what we say had occurred after the Commission commenced. First of all in paragraph 3 we summarised the Commissioner's ruling on Parliamentary privilege which your Honour will see includes references to the volumes and pages which are those which are before your Honour.
First of all, he would continue to sit and determine matters as he sees fit unless or until he is restrained from doing so ...(reads)... by the views of the President of one House of Parliament, the Upper House at that, who is a political opponent to the plaintiffs.
We are then in paragraph 4:
So the opening of counsel assisting makes clear that -
and again by reference to pages in the book -
matters fundamental to the conduct of Parliamentary business and the conduct of Australian Labor Party parliamentarians in connection with their activities as such will be the subject of inquiry, that the contents of the petition itself will be investigated.
And that is elliptical, the truth of the contents of the petition itself will be investigated, and (c):
There is no suggestion of any improper or inappropriate use of executive power or public office or of motivation by improper or inappropriate considerations ...(reads)... save in relation to parliamentarians acting as such and their staff.
And paragraph 5:
The evidence led from the witness Kovacs concerned a chain of events commencing with the citizen approaching the first plaintiff with a grievance involving, amongst other things, the conduct of Richard Court, the then Parliamentary leader of the Liberal Party ...(reads)... in particular the first and second plaintiffs and their staff in relation thereto.
And again that refers to pages in the book. So, your Honour, that is what we say happened and the evidence shows that - well, Mr Kovacs has been the only witness so far.
.D.
I mean it may be that by now another witness has been called. And it may be that it will be, we expect it will be Mr Willoughby who was a senior press officer working with Mr Kovacs.[12.13pm]
Now your Honour, going back to our submissions before your Honour, the Commissioner has made it plain he will continue with hearings unless and until restrained. Evidence which was expected to be lead today and the next weeks will include cross-examination of the witness Kovacs, a former press officer of the second applicant. Part of his evidence-in-chief is analysed and the submissions to the Full Court and may include the evidence of another more senior press officer of the second applicant, of a senior political adviser to the second applicant, of various journalists as to discussions inter alia with the applicants or their staff, and as to that, your Honour, when one looks at counsel's opening the topic of discussion - there were two effective topics of discussion.
One is the petition, and we say that is either covered by Parliamentary privilege or is Parliamentary business and outside the scope of executive inquiry. There is another topic which they can give evidence about which is not so caught, but ultimately all of this must be relevant to the petition, because that is the central core of this inquiry. Unless it is relevant to the presentation of the petition or the events preceding or following it, it has no relevance at all. So, it all comes back to that same point, it is all one way of impeaching what went on, directly or indirectly.
HIS HONOUR: I am sorry, could I just ask you what you make of paragraph of the petition - I am sorry, the terms of reference - - -
MR GYLES: Yes.
HIS HONOUR: ‑ ‑ ‑ which begins by appointing a Royal Commission to inquire into the circumstances and events preceding and following the presentation of a petition. If it went no further than that one would infer, I suppose, that the present - circumstances surrounding the actual presentation of the petition are excluded.
MR GYLES: That is the actual tabling of the document in the House, yes.
HIS HONOUR: Tabling in Parliament. But then when you go to subparagraph (a)(i)(2) it speaks of the presentation of the petition.
MR GYLES: It does.
HIS HONOUR: And then goes on in subparagraph (b) to require the Commissioner to look at the involvement, knowledge or consideration and the circumstances in which such knowledge was obtained and then to determine motivation for the conduct for those persons in the course of such involvement, which seem - in other words paragraph A or A and those which follow seem to broaden the operation of the opening words of the terms of reference.
MR GYLES: Your Honour, it is almost impossible to - well, the answer is yes, your Honour, in our submission and it is almost impossible to express any view about the conduct of anybody without being aware of the presentation of the petition and what it has. How else is one to judge anything propriety in connection with the petition or breach of the law or something else in relation to the petition without knowing all about its presentation and what it was.
HIS HONOUR: I am not suggesting anything follows from that particularly, I am just interested as to how one reads the terms of reference.
MR GYLES: Yes thank you. Well, your Honour, we do submit that the charter which the Commissioner is following is the charter laid down, of course, as he must, in the document and he must do all of those things. That is his duty and it must be assumed he will carry out his duty.
.D.
Your Honour, going back to paragraph 2.2 I was reciting what we submit as to the likely course of events in the next week or two. I have mentioned journalists and, as I have said, it is certainly arguable that the substance of their petition are covered by parliamentary privilege or are at least outside the role of the Executive.HIS HONOUR: Outside the role of ‑ ‑ ‑
MR GYLES: The Executive Government to inquire into.
[12.18pm]
HIS HONOUR: That is running two arguments together, is it not?
MR GYLES: They are two separate arguments actually. One is - both with the same result.
HIS HONOUR: Right.
MR GYLES: One is: do not because it is parliamentary privilege and you are infringing the Member's privilege. The other is: it is no business of the Executive to inquire into those matters, leaving aside altogether parliamentary privilege. Now, your Honour, also there are two other Members of Parliament who were not members of the Australian Labour Party who are proposed to be called. We do not know whether they are to be called immediately or not. And then there are the Labour Members of Parliament who were Members of Cabinet and, as I have told your Honour, there is to be an argument next week which will or may lead to them being called next week. And of course there are the applicants themselves. We have not been warned to be ready for next week but neither have we been told we will not be called next week. It is unlikely but it is possible. And as we say the nature of the evidence from some of those persons may be affected by argument as to Cabinet confidentiality.
HIS HONOUR: But it would certainly help to know what the likely course of events is next week.
MR GYLES: Yes.
HIS HONOUR: Because it is conceivable that on one view of parliamentary privilege no evidence will be called which impinges ‑ ‑ ‑
MR GYLES: On one view.
HIS HONOUR: ‑ ‑ ‑ or could be said to impinge parliamentary privilege - on one view, yes.
MR GYLES: It would be, your Honour, I think unlikely that evidence would be called next week which would not impinge on our contention which Steytler J held gave rise to a serious question. It is unlikely. Bearing in mind the nature of the terms of reference, your Honour, unless it relates to that petition or the events surrounding it it is not relevant. I mean, it must therefore be a process of investigating that topic. Even though it may appear to be - some of it may appear to be - extraneous, it cannot be extraneous.HIS HONOUR: But so far as the evidence of the present witness before the Commission is concerned, Mr Kovacs, that evidence having been led, what does the injunction do apart from precluding cross-examination?
MR GYLES: What it does, your Honour, is mean that we do not have to cross-examine Mr Kovacs, and that is a very significant matter. And, your Honour, I do not want to spell it out in public very much but your Honour understands that cross-examination is based upon certain fundamentals and it would be, in our respectfully submission - and the Commissioner has made it very clear that there will be no further delay in relation to that unless there is a restraint. Now, I will have to go on Monday morning and cross-examine that witness on instructions and that, your Honour, is to force, as it were, disclosure emanating from the second plaintiff and the first - the second plaintiff, which will inevitably involve her conduct in being questioned. I mean, it is part of a process.
There is no de minimis principle here, either we are right or we are wrong about this. Either this is a gross invasion of our rights and the rights which we represent on behalf of the public or it is not, and if it is then you should not do little bits of it because little bits of it do enormous harm. Mr Worksman in his affidavit gives evidence of the Australia-wide nature of the publicity which ensued the first day Mr Kovacs gave evidence and I am sure your Honour would not have been immune from it because it was all over Australia.
.D.
These things do enormous harm because the antidote never beats the pain, no matter what may happen in X months time that damage can never be repaired. If Mr Willoughby is giving evidence at this moment, as we apprehend he might be, the same problem occurs. If Mr Russell gives evidence next week, we have the innermost political adviser, a senior political adviser to the Leader of the Parliamentary Labor Party will be examined as to his dealings with that person.Your Honour, Humpty‑Dumpty has gone once those things are done and, your Honour, there is no easy way out of this, with respect, there is no nice way out of this, there is no benign evidence. All of this evidence is directed to one thing, it is directed to the knowledge of the second plaintiff - second applicant - as to that petition and that your Honour will see from the evidence which I will be referring to later. Certainly there can be no doubt that the first applicant is at the heart of any inquiry at all. Now, your Honour, we put in 2.3 effectively what I have just put. When I come to the Parliamentary privilege point later your Honour will see that if we are correct in our submission then the very basis for article 9 of the Bill of Rights is being breached.
The basis of that is that members of Parliament and those that go to members of Parliament for redress of grievances should be free to carry on their Parliamentary business, whatever that may be, free of later examination in a place out of Parliament, including a Royal Commission. The fact that the person's conduct is being questioned is the problem not the precise nature of the questioning and it is certainly does not mean that you are protected if you yourself can refuse to answer questions. Heenan J appreciated this. The questioning of impeachment is not by answering questions yourself it is by hearing others and having to cross‑examine others. Now, your Honour, we also claim that the decision to issue the Royal Commission was vitiated by the absence of any legitimate Government purpose to be served by the presence of collateral or improper purposes and by consideration of extraneous and irrelevant considerations.
Now, if those arguments are correct then the whole proceedings are invalid and each day of inquiry constitutes an unlawful invasion of their rights, including reputation, which cannot be repaired. This, your Honour, is a root and branch attack upon this Commission. It is not a case of having a Commission on what might be called a genuine topic like public hospitals or Aboriginal Deaths in Custody or something of that sort which incidentally bumps up against problems of Parliamentary privilege or Cabinet confidentiality where there has got to be some common sense way of quarantining the problem area.
This inquiry is aimed right at the heart of the problem area and we attack the whole of it. Now, either we are right or we are wrong about that and either we have a case or we do not have a case about that, but if we do then the consequence we there put out is correct but that what is happening cannot be repaired if we win ultimately. It will be an empty victory. Once the report is completed relief will be rendered and that is not likely to happen, your Honour, in the immediate future and perhaps what appears in 2.5 is more relevant to the sort of argument which might take place if special leave is granted. They are valid arguments but perhaps not so critical to your Honour's determination today.
Your Honour, the second applicant - this is in 2.6 - also claims that there is a threat that the Commissioner will invade the confidentiality of proceedings in Cabinet over which she presided, including examining those proceedings for himself, and I will have to come back to this, but if this is done then the damage will be done once and for all. If a Royal Commissioner or purported Royal Commissioner looks at the Cabinet documents or hears evidence as to what went on in Cabinet the horse has bolted.
.D.
You cannot say: well, it is only a Royal Commissioner. And if he does it in public, of course, so much the worse. Again, this affects ‑ ‑ ‑[12.28pm]
HIS HONOUR: But if it be the case that the Royal Commission was validly constituted, in other words, if you do not make good your proposition about the circumstances in which it was constituted, what then do you say about the position of the Commissioner so far as Cabinet confidentiality is concerned.
MR GYLES: He cannot intervene. He cannot do the - the Full Court proceeds upon the basis that the Commissioner is like a judge who can weigh up the insistent interests of justice against Cabinet immunity. He is no more a judge than is the police officer in Jacobsen v. Rogers. I mean, it is a complete fallacy to suggest that a person appointed by the Executive can look into the Cabinet documents of a previous government and weigh up for himself whether he thinks the public interest in his inquiry outweighs Cabinet confidentiality. It is no better or worse than the policeman trying to do the same thing. It is the very topic looked at in Jacobsen v. Rogers although by way of dicta and comparison and, indeed ‑ ‑ ‑
HIS HONOUR: What are you saying in particular, Mr Gyles. Are you saying that within the framework of a Royal Commission if a claim is made to confidentiality on the basis that the documents are Cabinet documents ‑ ‑ ‑
MR GYLES: Or - sorry, your Honour, or if it appears that they are.
HIS HONOUR: Or if it appears that they are.
MR GYLES: Yes.
HIS HONOUR: That is the end of the matter so far as the Commissioner is concerned?
MR GYLES: What happens is then what would happen in a search warrant execution. Those documents are, as it were, identified and placed somewhere and then the matter must be determined by the courts, not by the Commissioner. Your Honour, may I then turn to the prospects. I need to do it for two reasons: the first is to establish the requisite degree of arguability, but, secondly, so that your Honour can appreciate perhaps more clearly what I have been putting up to date.
HIS HONOUR: Just before you do that, on that question of Cabinet confidentiality, what did the Full Court say about the submission you have just made.
MR GYLES: They said that the Commissioner can himself do the balancing in the - in other words, the Commissioner will apply the test ‑ ‑ ‑HIS HONOUR: Can you just take me to that part of the judgment?
MR GYLES: Yes. Your Honour, that appears at page - it starts, your Honour at page 33 and at 35.4 it is said:
Such immunity from disclosure of proceedings in Cabinet and their records of Cabinet as is conferred by law is of a purely evidentiary character.
Now, your Honour, that was the view of Brennan J in Jacobsen v. Rogers and that was rejected by the majority. Then, going on, the next full paragraph:
The immunity will be attracted by what is perceived by the court or tribunal being asked to receive the evidence to be the dominant public interest.
In other words, the Royal Commissioner will make that judgment. And, your Honour, that is spelled out, perhaps - perhaps if I go to the foot of that page:
Immunity will not automatically be accorded to such materials and regard would be had to competing claims concerned with the importance in the particular proceedings and in the interests of justice of permitting disclosure.
Which is just a classic statement of the problem which arises in courts. And, as your Honour knows, it is only in the rarest of cases that a court would entertain a balancing exercise of that sort involving Cabinet proceedings.
HIS HONOUR: Now, is there any authority on this point, Mr Gyles, one way or the other.
MR GYLES: Well, Jacobsen v. Rogers, your Honour we submit ‑ ‑ ‑
HIS HONOUR: Yes. But more direct?
.D.
MR GYLES: Baker and Campbell, your Honour, is another in the same line, but takes the matter probably no further than Jacobsen v. Rogers. But may I take your honour just to the last sentence in the middle of 36:The decision is essentially one to be debated before the judicial body which it is desired should receive and act upon the evidence.
Now, I submit, your Honour, that is an heretical view and highly dangerous. The Commissioner has said, and I am not saying it is his final position, but he has said that he may well hear evidence of the proceedings in Cabinet himself. That is the very thing he cannot do if we are right. May I, your Honour, however, turn to, under the heading of, "Prospects", the question of Parliamentary privilege because in a sense it is the easiest to grasp. I am not ranking arguments at all, your Honour, it is just an easier point to grasp from our point of view.
Your Honour, what happened, if I could put it to your Honour in a nutshell, is this. Steytler J agreed that the scope of article 9 and its relationship with the circumstances of this Commission give rise to serious questions as to fundamental issues. "But", he said, "it is premature". Now, we quarrel with that last conclusion but when the - after the first day of hearing, the first day and a little bit, Heenan J examined what had taken place and said, "It is no longer premature", as obviously it was not because if our submissions were correct and Steytler J had said that they were certainly arguable, then what had taken place had seriously impinged upon Parliamentary privilege, the privileges of the Members that we were vindicating.
In the course of that argument the counsel for the Crown put to Heenan J, as he had to Steytler J, an argument that there was no jurisdiction in the court to vindicate the Members privilege. Steytler J noted the argument without commenting upon it particularly and, by implication, at least, we submit, saw it as being a matter for argument. Heenan J, however, had to deal with it because he saw that if our submissions were correct then the only way in which the privilege could be vindicated was by the court making an order and, having heard argument on both sides, he made the other and explained why. So that, when we got to the Full Court, it seemed to us that if you added Steytler J to Heenan J you had the clearest of issues for trial.
Steytler J had said the scope of article 9 raised serious questions and Heenan J, having heard argument on jurisdiction, made the order and clearly said that too was a controversial question. Now, for reasons which we will put to your Honour in a moment, it is hardly controversial, we would respectfully submit; we submit it is basically our way. But, we got to the Full Court and said: well, here you are, the issue for trial on scope of article 9, issue for trial on jurisdiction, it is really a question of the balance of convenience.
What the Full Court then did was to decide, finally and ultimately, that there was no jurisdiction, using jurisdiction in the loose sense, or, to put it the way they put it, there was a settled principle, whether it was jurisdiction or not, that the courts would not vindicate the rights of a Member in this way
.D.
because of some hands off area of Parliament. Now, your Honour, that, in our submission, recitation of events which we submit is uncontroversial would indicate immediately the strength of the special leave point. They have decided the question of the principle which governs the courts in this area and we submit it is plainly wrong. It has not been the subject of any consideration by the High Court in terms or indeed, in terms, other superior courts.[12.38pm]
HIS HONOUR: But the Full Court recognised, did it not, that it may be necessary for a Court - put aside Tribunal for the moment - to determine some questions relating to Parliamentary privilege where the determination of those questions is necessary in order to reach a conclusion as to the matter which the Court has to adjudicate.
MR GYLES: Well, it had to, your Honour, because there is scores of examples of it.
HIS HONOUR: Yes, I appreciate that, it is where you go from there, I suppose, is the worry.
MR GYLES: Well, it is - well, it is, your Honour. I mean, there are scores of examples which the Crown tried to put under two headings and the Full Court said they were right. It is a very facile way, with respect, of looking at it. The fact is the Court - the substance of what the Full Court has held is, the Courts will decide upon Parliamentary privilege and its scope when the matter arises incidentally but not when it arises directly except perhaps where you are scrutinising a warrant issued by Parliament.
Now, your Honour, whatever else may be correct in this field you cannot draw the line there. What is clear is that the Courts will deal with matters that arise before - if a justiciable issue arises before the Court it will decide it, and indeed this is the very point of the series of 19th century and earlier cases which leave the position thus. If a matter is before the Courts and it requires consideration of Parliamentary privilege, it will decide it, because Parliamentary privilege is part of the law of the land. The fact that Parliament may decide the same question differently is not to the point. The talk of conflict here, your Honour, is totally misplaced. Maybe I can shortcut things, your Honour, by taking your Honour to the outline of submissions on jurisdiction which we gave to the Full Court. Does your Honour have that ‑ ‑ ‑
HIS HONOUR: Yes, I do, just give me a moment to locate it.
MR GYLES: It is headed: Outline of Submissions on Jurisdiction, 27 July 1995.
HIS HONOUR: Yes, I have that.
MR GYLES: Now, your Honour, we point out in paragraph 2 that this is not an answer to - well, 1 and 2, it is not an answer to other arguments and your Honour should note the argument contained in paragraph 2 because it is a very important distinction. One of our arguments is that it is an abuse of the executive power and invalid to establish a royal commission for the real purpose of introducing into the conduct by parliamentarians of Parliamentary business whatever the ostensible scope of the Commission is on its face. Now that argument is not affected by any self-denying ordinance by the Courts.
We then point out, your Honour, the description of the point of jurisdiction is misconceived in the case of a superior court of record and even if used in the loose sense it is misconceived. We mean by that, your Honour, this, this is a case against a representative of the executive government, namely the Royal Commissioner, and the executive government itself and gives rise to no issue of breach of Parliamentary privilege or immunity by the Court. That is, the Court's order will not interfere with any party entitled to Parliamentary immunity or who is exercising any privilege of Parliament.
Your Honour will appreciate that is the point at which there will be a conflict between the Court and the Parliament. If we were asking the Court to affect what a parliamentarian was doing or what Parliament was doing, in other words, to injunct the Master at Arms from doing something, that may give rise, or would give rise to a conflict between the Courts and the Parliament.
.D.
But absent that feature, there is no conflict between the two and to say there is, is to misunderstand the position.[12.43pm]
There is no conflict simply because the court, when its jurisdiction is enlivened, says what Parliamentary privilege is or is not or what its extent or scope is. There are scores of cases doing that. That is our point in paragraph 4 of our submissions on jurisdiction. Your Honour, the argument which is accepted by the Full Court is based and, indeed, was also at the foundation of the Commissioner's view, was based upon Richard's case.
Now, it is our submission that the reliance upon Richards is mistaken. That was a habeas corpus case brought by two persons who had been taken into custody pursuant to warrants issued by the speaker of a Commonwealth House of Representatives. The question whether such a warrant, consistent on its face with a breach of an acknowledged privilege, was conclusive and an affirmative answer was given. It was a case solely concerned with the power of Parliament to punish for contempt as was the case of Glass which was referred to by Dixon CJ.
So, your Honour, in Richards case and in Glass's case and a whole lot of cases of which they were a part, you have Parliament actually exercising a power to punish. The courts have said, in relation to that power, which is Parliament's power, we will not intervene except in a very broad way. Richards case and the cases it follows have nothing to do with other situations where Parliamentary privilege arises and we submitted there and would submit now that that means that the trap has been fallen into of equating the exercise of a power to punish with the existence and extent of a privilege or immunity and we would add with the court's acquired jurisdiction. That trap, your Honour, was referred to by the Clerk of the Senate in a paper he prepared.
We accept, for the purposes of argument, subject to statutory provisions that Parliament has a sole ability to initiate punishment and the courts have accepted a limited role in supervising that power, but that is all. Your Honour, there is no element of punishment for contempt of Parliament in the orders proposed by us, indeed, quite the contrary. And so there is no conflict with Parliament.
HIS HONOUR: Well, the way the Full Court puts it is, I suppose, encapsulated at the foot of page 32 and over to page 33 where they say:
The potential for conflict between the court and Parliament is easy to see by paragraph 14 of the Statement of Claim the appellants plead as a material fact
Then they recite paragraph 14, which is in terms:
The Commission requires the first defendant, the Commissioner, to infringe the said Parliamentary privileges and immunities of each of the plaintiffs
Then the court goes on:
In determining the issue raised by that plea, the court could not avoid the risk that its decision, whatever it might be, will differ from the decision Parliament might come to should the same issue be presented to it
MR GYLES: Yes. Now, that does, in a sense, sum up that view and may I spend a few moments to examine it, your Honour. As the case to which I am about to come in a moment will show, the fact that Parliament may come to have a different view about privileges to the court is neither here nor there. There is no need for them to be the same and they may not be the same at any particular point of time.
.D.
The conflict is only where you get an order of the court affecting Parliament or an order of Parliament affecting the court, as was the case in Bradlaugh and Gossett and Stockdale and Hansard, that sort of case. This is transposing that sort of issue to a quite different context. One must struggle to think of an example or reason why this could ever come before the Parliament.
Let me assume, your Honour, there has been a Parliamentary Committee which has looked into this matter already and it has expressed certain views about Parliamentary privilege and the scope of article 9.
Those views differ from the views of the President of the Legislative Council and they differ from the view we say is inherent in the court's decisions; that is no problem, your Honour, it never has been a problem. Can I take your Honour to the Parliamentary Privilege Act 1770 in (1958) Appeal Cases 331.I mean, your Honour, as my learned junior reminds me in a very recent example Hunt J in Murphy's case took a view of Parliamentary privilege which was quite different to that of many people including Parliamentarians and the Commonwealth Parliament has legislated to reinstate the wider view of what Parliamentary privilege was. I mean the fact that the courts differ from Houses of Parliament or Parliament as a whole is neither here nor there, Parliament has the power to act by legislation and, indeed, in Western Australia only has the power to act by legislation, which I will come to in a moment. In all this very interesting argument your Honour will have noticed that the whole of this judgment proceeds without the slightest reference to the Western Australian Constitution of Legislation; with respect, quite extraordinary.
Your Honour, the passage to which I would wish to make reference is at 353 to 354. I should explain to your Honour that under the Parliamentary Privilege Act it is possible for Parliament to refer to the Judicial Committee of the House of Lords questions of Parliamentary privilege. So your Honour needs to know that that is the background and, indeed, it was related to the construction of similar sorts of questions as arise here. At 353.5 their Lordships say:
Having answered the question their Lordships repeat the answer to this and no other question; it was ...(reads)... introductory paragraph were a proceeding in Parliament -
which is of course the phrase which is in issue here, your Honour -
...a question not discussed before them nor on the question of whether the mere issue of a writ would ...(reads)... and would not prejudice the hearing of any cause in which such a plaintiff sought relief.
Your Honour understands from that that the House of Lords is saying: we are not going to give dicta about this because a citizen may come to us and require an answer, which is precisely what we have done here. As was justly observed by the Select Committee of the House of Commons in Burdett and Abbott:
It appears that in the several instances of actions commenced in breach of the privilege of this House ...(reads)... the decisions of the courts are not accepted as binding by the House in matters of privilege nor the decisions of the House by the courts, thus the old dualism remains unresolved -
and they give examples.
.D.
Now, your Honour, in the face of that which was of course read to the Court it is impossible to understand how it could be said that there is a conflict merely because Parliament may have a different view of privilege than the Court's. If the Court's jurisdiction is enlivened it will answer the question. Now, your Honour, we move from that to the proposition which in a sense lies at the heart of what we are saying here and that is in paragraph 11 of our submission. The privilege involved in article 9 is that of the Member concerned at the time of the conduct sought to be questioned.I am not suggesting, your Honour, that it is a purely personal right, it is a right which the Member has because they are a Member. And if I could ask your Honour to go to Erskine May's 21st edition - does your Honour have access to that?
HIS HONOUR: Yes. I am just trying to identify - when you say paragraph 11 ‑ ‑ ‑
MR GYLES: I am sorry, that is the submissions on jurisdiction, your Honour.
HIS HONOUR: Yes.
MR GYLES: The ones before the Full Court.
HIS HONOUR: Yes, yes, I know the document, I am trying to find the particular passage. Yes, I have that, thank you.
MR GYLES: I am looking at, your Honour - I passed by the Parliamentary Privileges Act case and I am down to paragraph 11, and I am asking your Honour to go to page 69 of May's 21st edition, if your Honour has access to that.
HIS HONOUR: Which edition?
MR GYLES: Twenty first, your Honour.
HIS HONOUR: We are one behind you here, it is the 20th.
MR GYLES: Can I hand up to your Honour the 21st edition. I am not sure that there is a difference, your Honour.
HIS HONOUR: Well, perhaps somebody could tell me if there is. Yes, Mr Gyles.
MR GYLES: If your Honour takes the ‑ ‑ ‑
HIS HONOUR: Perhaps you could just tell me this: which pages ‑ ‑ ‑
MR GYLES: The first paragraphs, page 69.
HIS HONOUR: I will get it photocopied over lunch.
MR GYLES: The first paragraph, your Honour. I thought we may have a photocopy for your Honour.
HIS HONOUR: Well, would pages 69 and 70 be sufficient?
MR GYLES: I have a copy, your Honour. Sixty nine makes the point, your Honour:
Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively ...(reads)... such as freedom from arrest or freedom of speech -
and article 9 is in that category -
belong primarily to individual Members of each House and exist because the House cannot ...(reads)... that the individual privileges are enjoyed by Members.
So, your Honour, what, with respect, is the seminal work on the topic describes the rights, privileges, as privileges of the Members of the House individually at least insofar as this is concerned. Your Honour, the local authority which is widely recognised is the Australian Senate Practice, Odgers. I have the fifth edition, your Honour, I am not sure what edition your Honour has. Your Honour does not have any?
HIS HONOUR: No, at the moment, no.
MR GYLES: Can I hand up to your Honour pages 637 and 638 of the fifth edition of Australian Senate Practice, Odgers. Your Honour will see under Enumeration:
Relying as we do on English authorities, principally May, in the complex question of privilege ...(reads)... enjoyed by the Members of the House of Commons individually include -
"freedom of speech" is number 1, your Honour. And then you will see over the next page:
Privileges belonging to the House of Commons in its corporate capacity are -
and various other rights. So Odgers, the local authority on the point, adopts May's enumeration.
.D.
It is interesting, your Honour, that on 638 under Freedom of Speech there is the rationale laid out:The privilege of freedom of speech enjoyed by members of Parliament -
in this case the privilege of presenting a petition -
is in truth the privilege of their constituents.
And indeed, your Honour, in the case of a petition, more obviously so:
It is secured to members, not for their personal benefit, but to enable them to discharge the functions of their office without fear of prosecutions, civil or criminal.
[12.59pm]
Your Honour, I will come back, if I may after lunch, to some other help on that proposition, but could I very briefly outline to your Honour the statutory basis in Western Australia because it is, in our submission, fundamental to this, and this is reflected in the submissions your Honour has before you but perhaps I can very briefly summarise it before your Honour adjourns.
The Western Australian Constitution provides in section 36 that the privileges of both Houses of Parliament must be dealt with by legislation. They are not a matter for resolutions of either House, let alone the views of any particular officer or member of any House. Secondly, section 36 recognises that the privileges are enjoyed and exercised by the members and by the Houses, so it recognises the dichotomy to which we appeal.
The Constitution says you cannot have privileges going beyond those of the Houses of Parliament. Section 36 is not like section 49 of the Federal Constitution which says that until there is something done about it you do exercise the powers of the Houses of Parliament of Westminster. Following the Constitution Act the Parliamentary Privileges Act 1891 provided that the privileges would be the same as Westminster subject to express provisions of the Act itself, and there are express provisions dealing with punishment which are of some significance.
But, your Honour, there is no question but that the Parliament has spoken about privileges and the privileges of members and of the House by legislation as it had to and a Parliamentary Privileges Act 1891 is simply another Western Australian statute. And the rights which flow from it are statutory rights and assuming we can, either as a matter of individual right or of locus standi, bring the matter before the Court and the Court will deal with it as a piece of legislation.
Now in one sense, your Honour, this goes no further than Erskine May said in that passage referred to in the House of Lords in 1958, but it makes it abundantly clear and indeed, interestingly enough, the Full Court of Western Australia in the Aboriginal Legal Service case said that - certainly Rowlands J said that precisely and in terms, and I will take your Honour back to that after lunch.
HIS HONOUR: That might be a convenient time to adjourn.
MR LUDLOW: Your Honour, may I ‑ ‑ ‑
HIS HONOUR: Yes, Mr Ludlow?
MR LUDLOW: May I ask now for leave to withdraw?
HIS HONOUR: Yes, thank you, Mr Ludlow.
MR LUDLOW: The only thing I would ask, your Honour, is that I be allowed to hand up to your Honour copies of my written submissions to the Full Court. Mr Gyles has already referred extensively to his own written submissions and therefore it seems appropriate that the Court have before it my written submissions as well.
HIS HONOUR: Well, the difficulty with that is, you say that the Full Court did not address any of your submissions in the judgment ‑ ‑ ‑
MR LUDLOW: Yes, your Honour.
HIS HONOUR: ‑ ‑ ‑ that is being considered at the moment. Those submissions, were they supportive or adverse to the case that is now being put?
MR LUDLOW: They were adverse to the case that is now being put, your Honour.
HIS HONOUR: Presumably adverse, yes. It creates a bit of a difficulty, Mr Ludlow, because those submissions may well turn out - on the face of it, will turn out to be matters which are not commented on by any of the other counsel.
MR LUDLOW: Well, if that is the case, I will not hand them to your Honour. I will just say that I agree with what Mr Gyles has said about Jacobsen and Rogers and I agree with what he said so far about the jurisdiction.
HIS HONOUR: Yes, well, thank you for that, Mr Ludlow, feel free to withdraw. We will adjourn until 2.15.
LUNCHEON ADJOURNMENT
.D.
[2.16pm]
HIS HONOUR: Mr Gyles?
MR GYLES: Yes. Thank you, your Honour. If I could go back to the document which is the outline of submissions on jurisdiction before the Full Court. I had I think taken your Honour to paragraph 11 and taken your Honour to May and Odgers, indicated it is the members privilege. Steytler J in his decision which is to be found in passages commencing at 22 refers to some of the authorities in a way which is sufficient for present purposes, that is your Honour to establish the proposition that the rationale behind article 9 is that of protecting the member from harassment, etcetera.
Now, that is said, as your Honour will see, in the passage from the Canadian case of Roman Corp v Hudsons Bay Oil and Gas, which is to be found at the foot - sorry, it is page 22 of the book, page 14 of Steytler Js judgment, your Honour. About point 6 of the page your Honour will see a reference to article 9. Then a quotation from Roman Corporation:
The object being of protecting a member of Parliament from harassment in and out of the House in his legitimate activities in carrying on the business of the house.
Gibbs J:
A member of Parliament should be able to speak in Parliament with impunity without fear of the consequences.
In Prebble:
Important public interest is to ensure that the member or witness at the time he speaks he is not inhibited ...(reads)... there would subsequently be a challenge to what he is saying therefore he would not have confidence -
etcetera. These, your Honour, all support the proposition that this is a privilege which the member has. If the member cannot vindicate that privilege then the object of it is lost. In other words, if he depended upon the whim of the politicians or Parliamentarians controlling a particular House at a particular time as to whether there was punishment the privilege may go completely unvindicated and the example would be set for all others. If you, the member, do something in the House by way of a question or a speech or presenting a petition which we, the new Government, do not like we will have an inquiry into the consequences which surrounded that.
Your Honour, the fact that it is a personal privilege in that sense is also underlined by the protestation of 16(21) to which his Honour refers at page 16 of the judgment, point 8:
The handling and proceeding of those businesses, every member of the House have and of right order have freedom of speech to propound, treat, reason and bring to conclusion the same and every member of the House have like freedom from all impeachment, imprisonment or molestation ‑ ‑ ‑
HIS HONOUR: There is just a problem with pagination, Mr Gyles.
MR GYLES: I am sorry.
HIS HONOUR: I am working from a loose copy of the judgment ‑ ‑ ‑
MR GYLES: It is page 16, your Honour.
HIS HONOUR: Page 16.
MR GYLES: Point 8 of the page.
HIS HONOUR: Yes. Thank you.
MR GYLES: His Honour is discussing proceedings, which is a slightly different point, but the protestation of 16(21), which is there set out again puts the privilege in terms of the:
...member of the House having the freedom from all impeachment, imprisonment and molestation other than by censure of the House itself for or concerning any speaking, reasoning or declaring of any matter or matters touching the Parliament or Parliament business -
and, your Honour ‑ ‑ ‑
HIS HONOUR: What is meant in article 9 by the words, "questioned in any place out of Parliament"?
MR GYLES: Yes. "Impeached or questioned".HIS HONOUR: Yes. I know, but I was fastening onto the word "Questioned".
MR GYLES: I am sorry, your Honour, yes.
HIS HONOUR: What is meant by it?
MR GYLES: Your Honour, it means any direct or indirect questioning of it, any scrutiny of it.
.D.
HIS HONOUR: What, by newspaper?MR GYLES: No. A place out of Parliament, your Honour, is the key to that, and the place out of Parliament is not the press.
HIS HONOUR: What is it?
MR GYLES: It includes at least a royal commission, that is what the Courts below have held.
HIS HONOUR: Well, you tell me what it is not but is it ‑ ‑ ‑
MR GYLES: No, it is a royal commission, that is what I am telling your Honour.
HIS HONOUR: Yes, I know.
MR GYLES: I am sorry, I am submitting, your Honour, that it is a royal commission so held.
HIS HONOUR: I was really looking at the breadth of the expression: questioned in any place out of Parliament. I know you say it includes a royal commission. My inquiry was a bit more general than that. What is meant by the expression?
MR GYLES: A place out of Parliament, your Honour?
HIS HONOUR: Questioned in any place out of Parliament.
MR GYLES: Well, there are two elements to that. First of all, you have got to know what the place out of Parliament is. That will include courts - it is basically courts.
HIS HONOUR: Well, it does not have to, does it, because any court is already referred to expressly.
MR GYLES: Yes. Or place out of Parliament would be a tribunal-like setting which - I think for present purposes, it is a very difficult question.
HIS HONOUR: Well, that is why I asked it.
MR GYLES: I know, your Honour, and the answer I give is, at least a royal commission. Now your Honour may not think that is ‑ ‑ ‑
HIS HONOUR: Well, I appreciate that is enough for your purposes, Mr Gyles, I do not want to spend too much time on it but if there is anything that you can just refer me to which deals with the question more broadly, then I would be grateful.
MR GYLES: Yes, your Honour. Your Honour, the commentaries, I am sure, do. Sir Charles Lowe looked at the issue in the Brisbane Lyon Royal Commission and his examination of the question is reported in the Australian Law Journal. Reference, your Honour, is made to that in Steytler Js decision - yes, it is 18 ALJ, your Honour, starting at 70.
HIS HONOUR: Well, that will do for my purposes.
MR GYLES: And your Honour can pick it up from there. Your Honour, the Parliamentary Privileges Act 1987 of the Commonwealth Parliament in section 16 subsection (3) says:
In proceedings in any court or tribunal it is not -
et cetera, et cetera, and in Prebble the Privy Council said that that was declaratory. So that is probably the best answer I could give. What is meant by tribunal I would have to look to see what the definition section is. It may mean those with compulsory powers, your Honour, I am not sure. I do not know about that.
HIS HONOUR: Yes, well, that is enough, thank you, Mr Gyles.
MR GYLES: Your Honour will understand this was a matter not in issue in the arguments below. Your Honour, I move on from the point that the member has the privilege to the proposition that if that is correct then for that privilege to have any content it must be a privilege which can be vindicated by the member where appropriate. Now we are used to that in every day thinking. If the member were called and asked questions that are compulsory process he or she might refuse to answer questions on this basis. That is just one way of giving effect to the privilege.
However, where as here the impeachment or questioning is by others in the Tribunal then the only way of vindicating it is by approach to the Court, and that is the point that of course Heenan J relied upon in granting the injunction that he did, and we submit correctly that if it is at all part of the ordinary law of the land and if it is a statutory privilege afforded by the Parliamentary Privileges Act by two applicants then, your Honour, we are properly before the Court and the Court must then deal with it.
.D.
Now, your Honour, we also point out that the idea that Parliament controls all these things is misconceived. Parliament has no quia timet injunctive or preventative power at all. All Parliament may do is to initiate punishment and indeed there is a large question whether under the Parliamentary Privileges Act 1891 Parliament can do more for this type of matter than ask the Attorney General to prosecute. There is a very large question as to whether there is any summary power at all to punish in relation to this sort of situation otherwise than by asking the Attorney General - or directing the Attorney General to prosecute.I have referred you before lunch, your Honour, to the provisions of the Parliamentary Privileges Act and to the Western Australian Constitution and for present purposes I must be content with having pointed that out to your Honour. I do, however, briefly go to the Aboriginal Legal Service in Western Australia (1992) 113 ALR 87.
HIS HONOUR: Yes, thank you.
MR GYLES: Your Honour, at page 94 in the judgment of Nicholson J after referring to a number of treatises and commentaries his Honour at line 45, page 94, said:
These practices must be borne in mind. Although in the end it is the provisions of section 4 of the Privileges Act which must prevail. The primary question is whether each of the resolutions complies with the requirements of section 4.
Now section 4 is a particular section but it shows, your Honour, that the question which was at issue is: what is the meaning of - or the statute prevails. Then at 109, lines 1 to 10, Rowland J - perhaps the foot of the last page:
The extent of the powers, privileges and immunities enjoyed by the House of Commons from time to time are founded on usage, custom and statute ...(reads)... and the manner of their exercise if it be governed by the statute.
And we would add, applying it to this case, to enforce those privileges where it is appropriate - enforce those privileges of the member granted by statute where appropriate. And, your Honour, to a similar effect at 110, line 15:
Irrespective of the power of a comment, however, which is derived from a mixture of usage, practice and statute the power in this State ...(reads)... If it did, it is to be found in Namoi v Attorney General for New South Wales.
So, your Honour, we are, with respect, on very firm and conventional foundation for the submissions we make on this issue. Now one point which did not fall for decision in the Full Court because it was dealt with to the satisfaction of all by Steytler J was the extent of the privilege under section 9. Now I am troubled by the fact that a question from your Honour may have indicated to me that your Honour may require assistance as to how a wider view, or a wide view of article 9 might affect these proceedings.
Steytler J was satisfied that was a question, in effect, a serious question. it does impinge, however, of course on your Honour's assessment as to what might happen in the next week or so and perhaps I should say a few words to your Honour about that on that topic, really on the damage and balance of convenience point rather than special leave point. Steytler J, your Honour, dealt with that commencing at page 15 of the judgment.
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And, your Honour, the principal debate, if I can put it this way, is whether or not proceedings in Parliament include the preparation of the petition and matters incidental to the preparation of the petition as well as the presentation of the petition and whether, for example, discussions between Parliamentary colleagues as to the petition and its contents would be picked up by the privilege. Now, Steytler J starts at 15.3:Whilst there is no dispute as to the proposition of the presentation of a petition to the Legislative Council ...(reads)... proceedings in Parliament were used in article 9 of the Bill of Rights.
[2.31pm]
Then his Honour looks at history a little and then says:
The expression "proceedings in Parliament" is yet to be the subject of an exact and complete definition -
has been used in a number of different senses. Erskine May is referred and then there is the protestation referred to which your Honour sees is in terms of:
...for or concerning any speaking, reasoning or declaring of any matters or matters touching the Parliament or Parliament business.
So that the protestation at the foot of page 16 puts the proposition in the way we would advance it, that is that the privilege attaches to all those things for or concerning any matter or matters touching the Parliament or Parliament business. Now, that is what we submit is the correct definition of Parliamentary privilege and you simply ask that question and you would answer it by saying: well, of course, a Parliamentarian dealing with a constituent or a citizen about a grievance to be presented to Parliament, the discussions between that member of Parliament and his Parliamentary colleagues, that discussions between that Parliamentarian or that citizen and the Clerk of the House about the drafting of the petition are all matters relating to Parliament or Parliament business ‑ ‑ ‑
HIS HONOUR: Did you include in that list discussions between the citizen and the member?
MR GYLES: Yes. Yes. That is our contention, your Honour. A citizen comes to the member with a grievance to be presented to Parliament, we say that ‑ ‑ ‑
HIS HONOUR: Well, can we stop there for a moment; with a grievance?
MR GYLES: Yes, and in this case, your Honour, a grievance involving inter alia another member of Parliament.
HIS HONOUR: Yes. I was trying to keep it on a more general level for the present, but if an elector came to his or her member with a concern which the member thought ought to be aired in Parliament as opposed to being the subject of a petition, are you saying that the conversation between the elector and the member is the subject of privilege?
MR GYLES: We say so. Now, it is an arguable proposition, your Honour, I mean it may or may not be. There are cases - there are defamation cases - which would touch on it which may indicate that it is not the subject of absolute privilege. There is a very persuasive case of Waison, your Honour, which is not quite your Honour's point but where three members of Parliament were charged with conspiring to make false allegations in Parliament - now, conspiracy is complete before the act - held could not be done because of privilege, which is a very close analogy. But your Honour sees the sort of argument that would be at stake. What about discussions between the Parliamentarian and their personal staff as to the petition.
For example, evidence given here that advice was given that a petition is the appropriate way of bringing something before the House;
discussion of, let us say, what might be regarded as base Parliamentary tactics between members surely would be covered by the privilege on the view we put. What your Honour sees in the protestation puts it probably better than I can, those last few lines: concerning any matter or matters touching the Parliament or Parliament business. The select committee, which is referred to at the top page 17, includes everything said or done by a member in the exercise of his functions as a member or a member of committee of either House, as well as everything said or done in either House in the transaction of Parliament business.
Coffin and Coffin is wider: to every other act resulting from the nature and the execution of the office. Bunting: within the scope of his duties and the course of Parliamentary business. Erskine and May is cited. And then, your Honour, on the following page 18 your Honour sees that in the Commonwealth Act: means all words spoken and acts done in the course of or for the purposes of or incidental to the transacting of the business of the House or of a committee without limiting the generality includes (c) the preparation of the documents for purposes of incidental to the transacting of such business.So that your Honour without going further into it, because it is not in a sense a special leave point here, but it is highly relevant to the sort of problem that your Honour is faced with, or we are faced with, in the ensuing week or so. And I hasten to say that Steytler J at page 20.8 said:
It will be plain from what I have already said, that the issues sought to be raised on behalf of the plaintiff ...(reads)... balance of convenience is all their way.
And, I might say, that the counsel on behalf of the Legislative Council President conceded the other day before the Full Court or contended that this was a serious issue which ought not to be decided by the Full Court on that application. That is the jurisdiction point yes, not the scope. So your Honour will see that we are proceeding, with respect, upon a firm foundation here. We have the Parliamentary Privileges Act, the firm foundation in the member having the privilege. We have Steytler J, having had the examination of the relevant texts and cases and so on saying: here there is a very difficult question to be tried as to the extent or definition of proceedings in Parliament for this purpose.
We have: but, he said, it is premature. Heenan J then sees what happened once the dogs were let loose and he said: this is no longer academic, there is a very real prospect that we will succeed on this point. And the Full Court have said: oh no, no jurisdiction would intervene. Now, your Honour, the jurisdictional point really is misconceived, with very great respect to them. It is not jurisdictional in any sense at all.
HIS HONOUR: I think there is another aspect to this which is something I was going to put to you at the end of your submissions, but I put it to you now, not necessarily to address now, you may prefer to leave it till the end. What the applicants are seeking is an injunction which effectively precludes any further steps by the Commissioner until the resolution of at least to the special leave application. And I will no doubt be urged by the solicitor that I should refuse any injunctive relief. Are they the only two options?
MR GYLES: Well, your Honour, may I without inviting the middle course draw your Honour's attention to the fact that Heenan J, after hearing submissions on another day, limited the injunctions to hearings, public or private.
HIS HONOUR: Yes, I am aware of that but that was not really what I was raising with you. For instance, let us assume, just for the purpose of the exercise that there was a range of evidence available to the Commissioner which on no view impinged Parliamentary privilege, neither the inquiring into it nor the adducing of that by way of evidence. .D.
Then you can visualise a possible outcome of this application that the Commissioner be not restrained in those areas.[2.41pm]
MR GYLES: Yes.
HIS HONOUR: However difficult the task might be of defining ‑ ‑ ‑ -
MR GYLES: Yes.
HIS HONOUR: But another view would be that the notion of parliamentary privilege is such a difficult one, that it is not possible, as it were, to isolate it, in the terms of an order of the court.
MR GYLES: Yes.
HIS HONOUR: But what I am putting to you, and as I say I did not want it to be overlooked, but by all means leave it till the end of your submissions, and I will certainly ask the solicitor for submissions on the point. Whether both in theory and in practice, really the only two options available are to grant the application or to refuse it.
MR GYLES: Your Honour, may I answer shortly now, and perhaps come back to pick it up at the end? Our submission will be, there it is not practical in the present case to do that, even if one were disposed to do it. Principally because the circumstances surrounding the presentation of the petition are essential to the inquiry, and indeed, nothing is really within its terms, unless it relates to that issue. As we put it to the Full Court in our submissions, there is no severable - what happened in the Brisbane Lyon Royal Commission is a good example. I will not take your Honour to it now, but your Honour there were four terms of reference.
The first was whether Mr Ward in effect, had told lies in Parliament; the second and third were sneaky ways of getting around that if that were held to be invalid. Lowe J, sitting as a Royal Commissioner, said: I am not going to do one, and I am not going to do two or three; I am not going to do indirectly what I cannot do directly. But term four raised what he considered to be a quite separate matter, that is, whether the custodians of certain records had done certain things with the records. And he said: I will deal with that.
Now, that is the sort of thing I think your Honour has in mind, it just does not work here, because you cannot ‑ ‑ ‑
HIS HONOUR: No, I do not - that is a separate term of reference. Really, what I was putting to you, the possibility that within the terms of reference there was evidence that could be adduced which would not, on any view, offend the matters that you raised by way of complaint. I mean, they might be quite formal matters, for instance.
MR GYLES: Yes, yes. Well, your Honour ‑ ‑ ‑
HIS HONOUR: They could relate to some aspect of the matter that did not involve any conversation with some member of Parliament.
MR GYLES: Yes. Your Honour, the reason for the difficulty in severance here, is that everything that has been led, is being led in order to investigate the circumstances surrounding the petition, the presentation of the petitioner, and all of those concerned in it, and public office holders and so on. Now, let me give your Honour an example. Evidence has been led from Mr Kovacs concerning an allegation that the second applicant had in some way misused her expense - an expense account. Now, on the face of it, one would say well, it is a quite separate matter and go into all that. The question is why is that evidence led?
The evidence is led because it is to be suggested, apparently, that knowing - the second applicant knowing that she was to be the subject of that allegation, which might become public, was therefore inclined to use the Easton allegations as a counterweight. Now, your Honour, that is impeaching what she did. Indeed, it is more serious than that, because the evidence which I will come to in a moment, under the other heading, shows that the real allegation by Mr Court, is that Carmen Lawrence lied in Parliament when she answered questions after the presentation of the petition, as to her knowledge of the petition and its allegations prior to it being presented. And he says she should resign - resign from Federal Parliament, I might add.
Mr Kovacs evidence relates to his reaction to her answers in Parliament and his going to her and discussing that with her.
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Now, when you look at the imprest account of that matrix of facts it is all building up what might be called a prosecution case against the second applicant and it is very damaging to her to have that sort of matter dealt with and it is only relevant to be dealt with at a public hearing because it is tied back to these allegations. She should not now be called upon by the Executive Government to be answerable for these things. It was cleared, she was cleared, there was nothing in it at all, and yet publicly this is raised, not because there is a Royal Commission about it but because there is the allegations about the petition.So there is no blue pencil to be applied here, your Honour, and the practical situation is that all of the witnesses that we know of and all of the matters which the counsel submitting has opened upon would be within the penumbra. The only possible exception would be evidence concerning the history of Mr Easton, going back into his history, and Mr Court's role in leaking documents or giving documents to his wife. Now, that might be a severable part of it. How all that affects the terms of reference is a matter for the Commissioner and counsel assisting to work out, I suppose, but, your Honour, the other difficulty and the one we pointed out below is that the Commissioner is a party.
He has not come here and said: we will co-operate, we will sever off, we propose something. The Crown of course do not know theoretically what the Commissioner is going to do. It is for them to come forward, your Honour, we are not here playing a game of chess with various moves, then we end up saying: ha ha, checkmate, which is what is going on at the moment. Mr Willoughby is now giving evidence, I am instructed. Mr Willoughby, our principal press man at the time, is has given evidence in the Commission as to his dealings with Mr Kovacs and his relationship with the second applicant and I will be forced to cross-examine him on Monday.
Now, your Honour, the reality is this is a Royal Commission about the presentation of a petition. Mr Court says it is and he is to be believed about that. He has drawn the terms of reference in order to achieve that result and he has achieved it and although it is very nice to think that the Court can sort of give a leg up to this Royal Commissioner there is no way we can do it. There is just no area that can be gone into which will not affect parliamentary privilege. If there is, let the Commissioner come forward and let the Crown come forward with a topic which we can examine with your Honour and say: well, yes, the damage there would be very slight, or whatever.
May I come back to that, your Honour, having looked at the question of abuse of Executive power. Now, this is a difficult topic to present because the judgment of the Full Court is extraordinarily hard to grasp; at least, I find it very hard to grasp. And underlying that difficulty lies the difficulty that Steytler Js judgment, with respect, had in it an inherent ambiguity. May I first of all point that out to your Honour and then move on.
Steytler J deals with this topic - or the passage which is most relevant to this topic is at the foot of page 35 of his judgment.What his Honour had done was to refer to some evidence which we had led of material from the press including videos and so on which did two things: first of all, it revealed the public controversy which led to the Commission and, secondly, it contained much verbatim material from Mr Court. Your Honour, at the trial - sorry, at the hearing counsel for the Crown quite properly and inevitably conceded that there was a triable issue, a serious question to be tried, as to Mr Court being a spokesman for the Government on the issue - one would hardly think a large concession.
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Nevertheless, it was made and it was properly made, as it in effect had to be. Now, his Honour having looked at these matters and referred to one interview in detail said this:It might be open to infer from these and other similar extracts resentment on the part of the Premier ...(reads)... to advise the Lieutenant Government to issue the Commission.
The same point appears, your Honour, at the top of the next page, 37:
That being so, I do not consider that the existence of evidence which might at the trial of the evidence ...(reads)... or improper purpose on the part of the Executive Council.
Now, your Honour, we read that as his Honour saying in effect: yes, there is evidence from the Premier which may indicate improper purposes but I do not attribute that the Executive Council. That is one reading of it and we think the preferred reading. The other reading is: I do not read those factors as being vitiating factors at all. Now, that is a very difficult construction but it is a possibility, I suppose.
HIS HONOUR: Well, I suppose the other way you could read it is to draw a distinction between motive and purpose and to say whatever motivated the Commission the purpose in setting it up was a legitimate purpose.
MR GYLES: Yes, but hardly that at a triable issue level, your Honour. I mean, once you obtain evidence, once you have evidence which is capable of being looked at in either side of the mirror that is the very thing that the trial must be about.
HIS HONOUR: It is a very difficult area to get into in the context of an application for an interim injunction, I mean given the fact that both below and at first instance and on appeal the Full Court found insufficient evidence even to constitute a triable issue.
MR GYLES: Your Honour, it is difficult, as an advocate, to put it. If I can overcome that hurdle and expose to your Honour what is really involved - and I submit it is not difficult at all bearing in mind that the task now is to preserve our right to special leave and then to an appeal if we succeed - I must, in order to do that persuade your Honour that there is a triable or arguable question of special leave on this point. I acknowledge it is difficult because on the face of it I have two courts saying: not sufficient evidence, and I should up to the fact Heenan J, who with respect did not have very much time to consider this aspect, saying he was unimpressed by other grounds but was impressed by the parliamentary privilege one.
So I come to your Honour apparently on the basis of attacking just the factual judgment as to whether we have got enough evidence to get up. Your Honour, that is not the situation, for this reason: in the passages to which I have just referred Steytler J acknowledges material or acknowledges findings which on any rational view would, if attributed to a decision-maker, raise a clear issue for trial as to whether they were in the end motivating factors or not.
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You cannot have - put another way, you cannot have, on our argument, a valid purpose if you are motivated by extraneous considerations or influenced by improper purposes.Now of course there is always a question for trial when you have that sort of argument as to whether or not at the end of the day the decision-maker was influenced, or whether or not extraneous considerations were taken into account. But here we have findings by the judge below, and what has happened, your Honour, is that we have been driven from the seat. We have been prevented from having this matter scrutinised. Now we gave to the Full Court numerous examples of whereby analogy Courts look at whether there is a triable issue. You have got strike out applications, you have got taking matters away from juries, and so on. We gave examples of malice and defamation and improper purpose by trustees and so on.
If you had evidence that a decision-maker was motivated by rancour or a desire to achieve party political purposes then plainly, your Honour, there is an issue of a trial as to whether or not the decision-maker, whether those factors in the end did have an influence sufficient to bring down the decision. That is a matter for trial.
HIS HONOUR: Yes, but is that not getting very close to saying: well, there is no evidence to warrant such a conclusion but it may be that at the end of the day through interlocutory process, through evidence, through cross-examination and the like, it can be demonstrated.
MR GYLES: No, your Honour, that is very often the problem the plaintiff has in an improper purpose case. It is usually a circumstantial case.
HIS HONOUR: Well, at the very least here you have to make good a serious issue as to improper purpose on the material that was considered by the Full Court.
MR GYLES: Absolutely, no question, that is what has got to be done and, your Honour, might I venture to say or submit that if it were not for the political overtones of this, and I mean in the broad sense, not the party political overtones, if it were not for the sensitivity of this matter it would not have lasted 5 minutes in argument. If you can show - I mean, how many improper purpose cases do you have where you have the decision-maker spokesman over a period of several weeks making a series of statements as to what is to happen and why it is to happen. One example is in the material which the judge reproduces.
May I take your Honour to some of them, and I will come to some other bits later. At the top of page 34 Yule said:
She should resign over the Easton affair and you are talking about now holding an inquiry. Is that still on the cards? That is, Richard Court had called upon Carmen Lawrence to resign.
And, your Honour, the evidence is that he said this probably on a number of occasions. Well, Carmen Lawrence in Parliament said that she was not aware of the details surrounding this issue before the petition was tabled in Parliament. Now the issue has been raised again by the Labor Party, not by the Liberal Party. A Minister has come out and said: hang on, this matter was discussed at some length in Cabinet, strong ...(indistinct)... not to be used for short term political gain.
Now just stopping there at those few lines we have answers in Parliament, tabling of Parliament, raising by the Labor Party, raised in Cabinet: short term political gain. Then we have later on down the passage:
Carmen Lawrence says the ...(reads)... the matter was discussed in Cabinet. Carmen Lawrence is the driving force, there is only one object to that and that was to discredit me politically before the last election.
Carmen Lawrence in the middle of a major cover up and the Ministers are not backing her. And then, your Honour, this:
If we are going to have an inquiry we believe it will be appropriate to do it in Parliament because in Parliament she told us that she was not aware of the issue before it was tabled in Parliament. That has turned out to be wrong.
Now, your Honour, that, with respect, was the correct view. Mr Court stumbled on the real truth of the matter. We then have:
The Cabinet decision has come through, it was obviously discussed ...(reads)... and the more they cover it up, the worse it is going to get for the Labor Party.
.D.
Now, his Honour described that as the high water mark; we would not agree but it is high enough, your Honour, it is well above the neck, we respectfully submit. Imagine being able to tender that, as we can, before a trial judge. We do not need interrogatories in discovery, although they will be useful. Imagine being able to tender that and then cross‑examine upon or Mr Court, if he chose to give evidence. Your Honour, that, as I say, is only one sample of the material which is available. Let me take your Honour to another which is the press release which was issued by the Government under Mr Court's hand at the time of the announcement of the Commission.[3.01pm]
HIS HONOUR: This is in the judgment of Steytler J?
MR GYLES: Yes. Page 11, your Honour.
HIS HONOUR: Page 11, yes.
MR GYLES: Page 11. Your Honour will be reminded, when I am putting this to your Honour, that our improper purpose case includes the case outlined in paragraph 9 of our submissions, that is that you cannot have a valid purpose of interfering with Parliamentary privilege. Now, may I highlight a few aspects, your Honour, of page 11:
Announced a Royal Commission to investigate the circumstances surrounding the tabling of the Easton petition in State Parliament.
Now, we say that is a pretty fair summary of it; and stated in that form, it only has to be read to understand that it does impinge upon, first of all, Parliamentary privilege but, secondly, it enters an arena which is no concern of the Executive Government, for reasons I will outline in a moment:
There is a great deal of community concerning the conduct of certain member of Parliament and former members of the Crown surrounding the tabling of the petition.
So the only executive - I withdraw that. The only office holders who are referred to are members of Parliament and former Ministers of the Crown in relation to what, in relation to the tabling of the petition. Now, your Honour, all Ministers of the Crown were members of Parliament, members of the Parliamentary Labor Party and the tabling of the petition is a Parliamentary act. He then goes on, missing a lot:
The failure of the Leader of the Opposition and the other former Ministers of the Crown to clarify the events surrounding the presentation of the petition left the Government with no alternative but to question.
In other words again, your Honour, the events surrounding the presentation of the petition:
The Royal Commission will seek to establish the facts surrounding the tabling of the petition. It will also report as to whether there has been any improper or inappropriate use of executive power or public office or whether the conduct was motivated by improper or inappropriate considerations.
Your Honour appreciates that both from this document and from the summary of counsel assisting's opening and from an examination of all of the controversy which erupted, there is no suggestion of any improper or inappropriate use of the executive power or public office save for that which surrounded the tabling of the petition. There is no suggestion that was the executive power in any sense at all, there is no leaking of State documents, there is no use of the police, there is nothing which would indicate - no allegation of anything improperly being done by way of executive power.
What the allegations are, that the senior Labor members of Parliament, including the second plaintiff, had a debate amongst themselves as to what the knowledge was that she had about the petition prior to its presentation and so on. So, your Honour, we tender that which indicates the purpose of it. Then, your Honour, just to give your Honour a selection of the material - unchallenged material - this is not a question, your Honour, of any credit being involved. Mr Court, talking about the resignation of Carmen Lawrence at 176.5, that is in volume 1 of the book ‑ ‑ ‑
HIS HONOUR: Well, given the exigencies of time, Mr Gyles, you can direct my attention to those passages but I think that it would be better if they not be read at length.
MR GYLES: Yes. Well ‑ ‑ ‑
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HIS HONOUR: I am going to raise with you now, I did not hold you to two hours, but I think you have gone beyond the two hours.MR GYLES: Yes, I have your Honour.
HIS HONOUR: I do not know what Solicitor General is going to put to me from his point of view, whether he is going to ask for time over the weekend to consider your argument or not, or whether he is in a position to follow on the completion of your argument. And I will ask Mr Zelestis the same question. Perhaps I should ask those questions now.
MR GYLES: Yes, thank you.
HIS HONOUR: Mr Solicitor?
MR MEADOWS: Your Honour, given the time that has now elapsed I would be seeking the opportunity to have the weekend to put some time into this. I think we could be of greater assistance to you if we did have that opportunity.
HIS HONOUR: Yes.
MR MEADOWS: And I make that observation on the basis that I only came to this thing relatively cold this morning and I have not really had much of an opportunity to get to grips with it.
HIS HONOUR: Yes, thank you. Mr Zelestis, what is your position?
MR ZELESTIS: Our submissions are in fairly short compass and we could proceed this afternoon, although it is preferable for us to follow the Solicitor because what we have to say really supplements him. For me to go now, and I am prepared to, would really be either to require me to open up the subject and then add my little bit or to add my little bit in something of a vacuum.
HIS HONOUR: Part of the practical difficulty, I suppose, is the matter to which Mr Gyles adverted is we do not know how the Commissioner proposes to spend - at least I do not, the next couple of days or the first two or three days, say, of next week. I suppose Mr Gyles as put it to me on the basis that whatever evidence might be adduced is going to infringe Parliamentary privilege as he invites me to construe it. And then that raises a question as to what should be done in the interim interim, as it were, between now and the hearing of your submissions and that is a matter that I have to determine for myself, but I could perhaps be assisted if I knew what the Commissioner's plans were.
MR MEADOWS: Well, I am not in a position to tell what the Commissioner's plans are. I am not here representing him. The information I conveyed to you this morning was simply a matter of information which I was asked to pass on.
HIS HONOUR: Yes. All right, thank you, Mr Solicitor, I will come back to you in due course. Mr Gyles, if I accede to the application to defer the Crown's reply until Monday, I do not want you take that as an open-ended invitation to keep going.
MR GYLES: Your Honour, I will I hope not abuse any privilege that that envisages, your Honour, but what I must do is to get to the point where I ask your Honour for an ex parte injunction, or an interim injunction. I mean, your Honour, we cannot let the opportunity go past without this inquiry being stopped. I am instructed the evidence given by Mr Willoughby today touches on discussions with the first applicant about the draft petition. Now, your Honour, this is - and I will come back to the damage shortly, but your Honour lives in a real world as we all do and your Honour is looking at the destruction of a senior parliamentarian, destruction, no less than that. And your Honour, I must in those circumstances have the opportunity of ‑ ‑ ‑
HIS HONOUR: You have not asked me to grant an interim injunction during ‑ ‑ ‑
MR GYLES: No, I will, your Honour.
HIS HONOUR: No, but you have not asked me during the day.
MR GYLES: No, your Honour, because it would not right - well, perhaps I should have, your Honour, but I did not because I thought it appropriate to have your Honour have a fuller appreciation of the case than was and I am not complaining of what has happened today, your Honour. What has happened has happened. It illustrates what is going to happen for the remainder of the time that the Commission proceeds. The Commissioner, and the evidence shows this, will not stop for anybody until the court injuncts him. That is his stated view, his stated position. And he will not ‑ ‑ ‑
HIS HONOUR: Well, one can understand that, but that is not quite the same thing as it were tailoring material that is available to be adduced over, let us say, the next day or two, that is a day or two of next week, so as to avoid the sort of problems that you submit arise.
MR GYLES: Where is his counsel, your Honour? They are down there cross-examining or examining Mr Willoughby, they are not here giving your Honour the
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courtesy of those views. Why should your Honour be bending over backwards, with respect, to survive the ‑ ‑ ‑HIS HONOUR: Well, I have not bent in any direction at the moment.
MR GYLES: No, but I am asking rhetorically, your Honour, not any other way. Why should anybody bend over backwards to keep a Commission going when the Commissioner not only does give us no leeway, he goes on - and that is fair enough, that is his prerogative ‑ ‑ ‑
HIS HONOUR: Well, maybe the answer, the practical answer to that, particularly if the Solicitor is to make his submissions on Monday, is that we resume early Monday morning or before 10 o'clock or at 10 o'clock and in the meantime some inquiry can be made, if anyone wishes to make it.
MR GYLES: Well, your Honour, it cannot be asked. We put this to the Full Court ‑ ‑ ‑HIS HONOUR: Just a moment, Mr Gyles, I have not finished.
MR GYLES: Sorry, your Honour.
HIS HONOUR: But in the light of whatever response is forthcoming or if no response is forthcoming it may be that then there is justification - and I am not foreshadowing what course I would take - but there may be some justification for an interim injunction at least until the outcome of the respondents submissions.
MR GYLES: Yes, your Honour. Yes. Your Honour appreciates that I have to be in a position on Monday morning to cross-examine probably two major witnesses. I have to have submissions - a statement under the rules of the High Court to be submitted by 10 o'clock on Tuesday morning.
HIS HONOUR: I know, but we are all going to have problems over the weekend, Mr Gyles, are we not?
MR GYLES: Your Honour, I am not complaining about working over the weekend, I am just complaining about having to do three things at once when the answer: is why should this be done; why should this intolerable burden be placed upon anybody when all that is required is for this Royal Commissioner to stop sitting for a few days. Now, your Honour, that is my end submission of course.
HIS HONOUR: Well, let us continue with your more substantive submissions for the moment.
MR GYLES: Resume a more stately progress perhaps, your Honour. So far as the question of abuse of power is concerned the findings by
Steytler J and the reality that Mr Court was the spokesman for the Government and so effectively the decision-maker gave rise to a clear issue to be tried. When the Full Court examined the question they did not deal with the ambiguity to which I have referred and the way in which they did deal with the matter reveals with respect to them fundamental misunderstandings as to the nature of Executive power and the power to call a Royal Commission, which gives rise not only to a special leave point but a very good basis for thinking that their decision is fatally flawed and that the position must be preserved in the meantime. Your Honour, that perhaps mostly appears from the last pages of the judgment below where at page 37 ‑ ‑ ‑HIS HONOUR: You are on to the judgment of the Full Court now, are you?
MR GYLES: Sorry, the Full Court, yes.
HIS HONOUR: Yes.
MR GYLES: Under heading 4:
If the balance of convenience fell to be considered this would be the type of case where the strength of the appellant's argument should be given consideration ‑ ‑ ‑
HIS HONOUR: I am sorry, I am not picking that up.
MR GYLES: Page 37 of the judgment, your Honour.
HIS HONOUR: Yes, thank you.
MR GYLES:
This would be the type of case where the strength of the appellant's argument should be given ...(reads)... for the peace, order and good government of the state.
Now, your Honour, that is a most extraordinary statement and it casts light upon what otherwise was, to say the least, a difficult judgment to understand on this point. If your Honour then goes back to - page 22 is where the judgment on this point starts.
.D.
At the foot of the page their Honours refer to the limits of the executive and they try to establish that the powers of the State Parliament are, in effect, unlimited:The Parliament of Western Australia is responsible for the making of laws for the peace, order and good Government of the State.
It is of course by statute. "The executive", they say, "is mainly a creature of convention". Then your Honour finds a passage from FAI Insurances which with respect to their Honours has nothing to do with the point at all, it is Ministerial responsibility. Now, the statement, "The executive is mainly a creature of convention", is a startling statement. As your Honour knows the Executive Government is the Queen and so on. It is not a convention it is just the fact that is where the source of power comes from. We now have a Parliament and the laws of Parliament are supreme but the Queen's representative still holds the reins and the Executive Government in his or her hands in the respective State.
Indeed, Western Australia has a written Constitution and in the Constitution Act and the Constitution Acts Amendment Act the executive is of course dealt with. It is not a creature of convention at all; it is the power of the King, as it used to be, to administer the country. With the Constitutional arrangements which have been developed over the years which now pertain there is the role of Parliament, which is supreme, by way of legislation, there is the role of the executive which is to execute the laws of Parliament and otherwise to run the State.
Now, I point these things out, your Honour, because one cannot say: well, this is all just typing mistakes. Then, your Honour, another startling proposition is to be found at page - and in a sense it is the conclusion about this - 26.6. Having gone into a great discussion of how plenary that Parliament is, which would hardly have required any great citation of authority:
It is sufficient to conclude that a proper purpose for the appointment of a Commission will be to secure an inquiry into ...(reads)... or nature of persons concerned in the functions of Government, Parliament and public office.
Now, your Honour, what the Full Court said is that the Executive Government are entitled to, and it is entirely appropriate, that they should have a Royal Commission concerning the activities, motivations, nature and quality of Parliamentarians. Your Honour, that, with respect, is Constitutional nonsense, it is no part of the role of the executive to do that at all. The role of the executive was put very neatly in the case to which their Honours had referred of Boath and Wyvill in (1985) ALR page 621. Can I take your Honour to that decision. At page 635 line 8:
No doubt it is true to say of section 5 of the West Australian Act, as of section 1A of the Federal Act, that it ...(reads)... does not extend those common law powers.
In the same case Brennan J said:
A Commission to inquire and report cannot be issued in exercise of the prerogative or the statutory power ...(reads)... absent that purpose and no support for the inquiry can be found either in the prerogative or the statute, given the official purpose -
etcetera. Thus the neat question is, and this is at 638 line 12:
Is there to be found here the necessary purpose of Government.
.D.
And I will say, just as a little sentence which sums up the question, "Is there to be found here the necessary purpose of government", now that is the question which would arise in the present case. Your Honour, we would submit that whilst all we have to do is to make this a triable issue one could be surprised if there were an answer other than: of course not. You cannot have - assuming that the purpose was to investigate Parliamentary behaviour and assuming the purpose was or included damaging political opponents, assuming the purpose was to investigate the circumstances surrounding a petition to Parliament and the role of Parliamentarians and their staff in that, then there is no proper purpose of Government to be served by it and indeed the Executive Government should be well out of that arena.Your Honour, we put in our submissions to the Full Court under this heading a reference, in paragraph 16 page 12, to Clough -v- Leahy, Davis -v- The Commonwealth and The Attorney-General -v- that should be the CSR, but, your Honour, there should be a note beside that to also add Boath -v- Wyvill applying as it does Victoria -v- The BLF. Now, if the task of the Executive Government is to administer the laws of the State, proposed laws and generally protect the State, in other words, to govern Western Australia, it has no role in entering the party political contest either between members of the Labor Party or between the incumbent Government and its opposition in the way that it is arguably doing so here.
First of all, you can say it is not a proper purpose of government, which is our primary submission, or you may say the other purposes are improper, the other considerations are extraneous and therefore, at the very least, at trial one would have to assess the propriety of the endeavour and assess the role of the extraneous considerations or the improper purposes. Your Honour, what has happened here is that we have been driven from the seat, we cannot bring this to the Court, we cannot have the Court scrutinise these actions. Your Honour has said, as all the other judges have said: we are not going to go through all of these things or if we do we are not going to reproduce them all, but together they have found a body of material which justice demands be scrutinised. We have the spokesman for the Government saying time and time again that this is a contest between Labor Party members.
HIS HONOUR: Well, I think that is going over some of the same ground, Mr Gyles.
MR GYLES: Your Honour, the question we submit at the end of the day - of paragraph 16 of our submissions below - was this:
In other words, one of the questions which must be asked and answered at trial is: what is the scope for legitimate Executive action if answers to the questions are given which are unfavourable to the first and second plaintiffs or either of them.
In other words, let it be assumed that Carmen Lawrence knew more about the petition than she said she did in Parliament or let it be assumed that Mr Halden in some way had knowledge of misleading aspects of the petition. The answer is: nothing. And interestingly enough, your Honour, the very question was asked of Mr Court and at 290 of the book. The interviewer say, at the foot of the page about point 9, "Or, now, say you find" - this is after the inquiry had been announced:
Or say you find that Carmen Lawrence did know about it, did discuss it in the Cabinet room, what are you going to do about it? It is not a crime.
Court:
It is not what I do about it, it is what Carmen Lawrence and the Labor Party do about it.
I mean, you simply - what if they say they are not going to do anything about it? Well now, here is the Executive action which is proposed:
Court: I think the public would then make a judgment on the Labor Party.
.D.
Now if your Honour could just imagine your Honour's self back at the Bar with that sort of material to tender. I mean, there is the spokesman for the executive: what would I do? I would do nothing, the Labor Party must do something. If they do not the public will make a judgment. In other words, this is a party political exercise. Now Mr Court may be able to explain all this, your Honour, to the satisfaction of a trial judge. If he does not give evidence, as we point out in paragraph 21, Jones v Dunkel will be applied.HIS HONOUR: Well, that has taken me a long way along the track from what is an application for an interim injunction really.
MR GYLES: No doubt, your Honour, but we have been down the track and so far we ‑ ‑ ‑
HIS HONOUR: Well, I understand it so far as principles are concerned but I think it is unnecessary for me to go into what shape the trial might take, or who might give evidence, or what might be the consequences of not giving evidence.
MR GYLES: But your Honour put to me earlier that it looked to be a situation - we were saying: well, we have not got it yet but we will get it later. Your Honour, I am just point out that is not the case, we have plenty now, more than one usually would have. And I will give your Honour these references to Mr Court calling for the resignation of Carmen Lawrence, 176.5, 181, 184.5, 293, 305, 351 and 560, he referred to the Parliamentary inquiry 181, 302 and 303. What business is it of the Western Australian Government, the executive government of Western Australia?
HIS HONOUR: Well, Mr Gyles, it is one thing to give me the references, it is another thing to read them. I have noted the references and I will read them.
MR GYLES: I am making a submission, your Honour.HIS HONOUR: I am sorry.
MR GYLES: I am sorry, what ‑ ‑ ‑
HIS HONOUR: It had sort of ring about it.
MR GYLES: Rhetorically, your Honour, what business is it of the Western Australian Government, the executive government of Western Australia, not the party political government but the executive government, whether a member of Federal Parliament resigns. Now, your Honour, I will not trouble your Honour by reading the submissions we made under the heading: Misuse of Power, from paragraphs 13 to 24 of the submissions to the Full Court - they outline our point - allied with the way in which the Full Court dealt with the matter indicating, in my respectful submission, that they did not understand the nature of executive power, or its limits. They in some way regarded the executive government as being part of Parliament.
That is the theme that runs through it all. Of course, your Honour, the executive has the role of administering laws and in a rough sense their role is co-extensive with the power to legislate; no question about that. But that does not mean that under our system the executive government has any role in purely Parliamentary matters. So, your Honour, that leaves then the issue of Cabinet confidentiality, and I do not think I really need to expand on that more than I have. We have drawn attention to the critical passages in the judgment below which seem to equate a royal commissioner with a court giving to him the balancing role and the application of the tests laid down by the High Court, or this Court, as to how the matter should be dealt with.
We respectfully submit that Jacobsen's case makes plain that a royal commissioner is not in that position and the problem is that when he comes to consider his situation this coming week, as he said he will, he will of course be guided by the Full Court and presumably decide in accordance with their decision, and indeed if we wish to challenge it we would go before a judge who would be bound to - if we or anybody else wished to challenge it the judge would be bound to follow the Full Court's - so we submit that in itself is a point of principle which is a special leave point.
.D.
Your Honour will have also seen that in the judgment below it is said that in the balance of convenience - this is pages 36 and 37, page 37.8, that the Castlemaine Toohey's barrier, as it were, is to be erected in front of the applicants in this case. Now, we respectfully submit that gives rise to a special leave point. We submit that it is plainly wrong. We submit that at least it is an issue as to whether it should or not. Here we have, as I said, a balance of various public interests and the mere fact that the executive seeks to establish a Royal Commission does not establish that that countervails over anything else.[3.31pm]
HIS HONOUR: I think all the Full Court is saying there, whether it be right or wrong, is that no serious question having been demonstrated then it is unnecessary for it to consider the balance of convenience.
MR GYLES: That is true, but they did - yes. Before reading that judgment, your Honour, may I point to your Honour a curiosity on page 36 under the heading, 1 - and it may also give a clue to where the Full Court went wrong in relation to the executive point:
Even if judicial review is available, the evidence to date falls far short of establishing ...(reads)... improper purposes or irrelevant considerations.
Your Honour, if there is one thing, with respect, that should have been clear to the Full Court, it is that there is no task laid down for a plaintiff in seeking interlocutory injunction that it should establish anything, and certainly since Castlemaine Toohey's there is never a suggestion that you must establish a prima facie case in any sense at all, and perhaps that error is that it reflects the underlying problem that existed in the way the judges below looked at this issue. Your Honour, can I then go back - your Honour will be pleased to hear to our outline of argument before your Honour under the fourth heading, which is balance of convenience.
Now, we remind your Honour, of course, that the balance of convenience is what your Honour described in ...(indistinct)... as a peripheral consideration because to get there you have got to find irreparable damage and you have got find sufficient prospects. In those cases, the case for an injunction is very strong. Even pending special leave application, but we do go on to examine the issue. We have dealt, your Honour, earlier in the submissions with irreparable damage to the applicants and we stress, your Honour, to the principles to which they appeal which involve the public interest.
In the present case there is not the usual complicating factor of damage to the party which succeeded below. If the applicants ultimately fail the inquiry can proceed. The time limit for reporting is solely within the power of the second respondent. There was no evidence before the court of any inherent urgency in the inquiry, it relates to events nearly 3 years ago. There is already been a parliamentary inquiry. Mr Court, I might add, indicated that was the appropriate place for any further inquiry and we agree. He changed his mind subsequently.
There is no evidence of any executive action depending upon the result. Indeed, the evidence is to the contrary. When asked what could result from adverse findings, well your Honour has seen that, and I have also referred to the next part in the evidence itself. Then, your Honour, that can now be firmed up and we point out that if the applicants are correct then the Commissioner and those assisting him will have purported to sit under colour of a lawful commission with the benefit of statutory powers will have caused many persons to act in a way they might not otherwise have acted.
Your Honour, with very great respect, consider the position of some of these people. They have been called before a person, a former judge, surrounded by the trappings of a court room, the court staff, people at the bar table, people up and down bowing and so on and in a situation where if the persons do not cooperate they will be at risk of prosecution. Now, they may be caused to do a lot of things they would not have otherwise done and I submit that where there is a challenge it is a feature of our law that where there is a challenge to the action, where a person knows he is challenged and he goes ahead in the face of it, he loses any protection of acting under colour of office et cetera.
What about the people who are involved in all of this, the witnesses. What about the people who are spoken of by the witnesses.
.D.
If we are correct in our submissions, your Honour, what is happening trenches upon all of those things and one asks where is the evidence of urgency. And we have put: it is a 3-year-old matter. We had one Parliamentary inquiry. There can be no serious suggestion the delay of effectively 5 working days or perhaps 6 is of any significance in the sweep of events at all. The Executive cannot and a Royal Commissioner cannot by imposing deadlines, by proceeding as if we were not here, by proceeding as if there were not an issue cannot bulldoze the courts, I would submit, into permitting that to continue to the disadvantage of public interest and the parties before the court.There is really nothing on the scales on the other side. Usually you have got somebody who has had the fruits of a judgment. Now, your Honour, in saying all of this I am conscious of the fact that on the face of it we are appealing from a refusal of an appeal from an interlocutory - refusal of an interlocutory injunction. And I understand that that poses an apparent difficulty. But in this case that poses a real difficulty no more than it did in Paringa, as one example. I mean, there are many cases where the refusal of an interlocutory injunction has real effects.
And the way in which it is refused or the way in which the appeal is dealt with from that refusal has real effects. Now, as we point out, in the present case it means that what is happening at the moment is happening and should not be happening, if we succeed. And it cannot be repaired, if we succeed. It means that any trial in the court below is rendered nugatory. It means the appeal right is rendered nugatory and it means that the parties are precluded really forever from raising these issues. Now, if we are to have - if we have satisfied, your Honour, the test of arguability as to special leave, we submit that that would follow from the nature of the way in which the Full Court has dealt with the matter.
They have finally closed off Parliamentary privilege. They have dealt with Cabinet immunity in a way which is bound to mislead the Commissioner and lead him into error. And they have dealt with Executive power in a way which is shot with fundamental flaws. That being the case, we are not dealing with a discretionary refusal, if your Honour follows what I mean. It is not a case where they have weighed things up and said: oh, look, it is not just good enough. It is a different case and a case which we would hope to be able to persuade the court is an appropriate one for the grant of special leave.
The interests at stake here are great. And if it is correct, your Honour, if our submissions about improper purpose are correct and if our submissions about Parliamentary privilege are correct, what has actually happened with the establishment of this Royal Commission would be a far greater abuse of power in the real sense than anything done in relation to that petition, if one starts to measure these things. What would have happened is that under cover of an inquiry about Executive power one incumbent government has used the compulsory and prerogative powers which it has to damage and knowingly damage members of the other political party, one of whom is no longer a State politician at all.
And if that were the case, if we establish that case, as we say we would at trial, that would be a gross breach of Executive propriety which, your Honour, should not be shielded from proper scrutiny. Bear this in mind, your Honour. This case started, so it seems, with a member of the public ‑ ‑ ‑
HIS HONOUR: Mr Gyles, this really is getting repetitive.
MR GYLES: Yes, your Honour; if your Honour pleases.
.D.
Yes, now your Honour can I just return to the practical question which I said I would deal with at the end. At the moment I have to be in the Commission on Monday, at 10 o'clock, no more leeway, so the Commissioner told me. I have got to be there at 10 o'clock to cross-examine Mr Kovacs. That means, as your Honour understands, putting to him versions and so on, the equivalent of giving evidence.
I will then presumably have to cross-examine Mr Willoughby who I have not heard and indeed I did not hear the completion of Mr Kovacs nor did anybody - my junior did not hear that. I will have to cross-examine Mr Willoughby who was a close adviser of the press officer to the second plaintiff about events which are central to the parliamentary process and of this petition and its preparation and its presentation. As Mr Court said, circumstances surround the presentation of the petition.
There is no mystery as to what is going to happen next week, your Honour, that is what is going to happen. Now what happens after that we can only guess. We know that amongst the possible range of people are another senior political adviser, parliamentarians, various parties including some cabinet ministers and possibly journalists who were involved in discussions with parliamentarians about parliamentary matters. We have no guidance, your Honour, greater than that we can give to your Honour and we respectfully submit that your Honour should not - we should not be placed in a position where, if we have satisfied your Honour that we have at least an arguable matter which should be met by the other side.
I mean, if your Honour has said: look that is the end, you have done your best, I do not need to hear from anybody, you can all go home, that is one thing. If that is not the case, if I have raised issues, your Honour, which require serious consideration by your Honour and answer by my learned friends, that answer should be given, your Honour, not in an atmosphere of haste and supercharge. It should be done obviously not at great leisure either, it is an urgent matter. But, your Honour, we should not have to be in a situation where I spend the weekend preparing very difficult and sensitive cross-examinations, trying also at the same time to prepare an outline of argument to persuade your Honour's colleagues that special leave should be granted in a matter which is an appeal from a refusal of interlocutory injunction and at the same time be here and taking part in this matter.
Now, of course, this is quite apart from any - and your Honour understands our basis proposition is there is no urgency in what is going on, there is no reason why it should stop. There should be no reason for timorousness on the part of the court about all of this. There is no public interest which is involved in proceeding on Monday as opposed to Monday week or Tuesday week. Nobody has suggested it and this should be a matter of evidence, your Honour, not of speculation. There should be no saying: well, we will give every indulgence to the Royal Commission and we will make the applicants prove everything.
The fact is, they should be here and as they are not here and if there is no evidence led by the Crown to show urgency why should your Honour assume it. How could there be in a 3-year old matter. So, your Honour we submit there is no basis for severing - we gave the authorities for severance in our submissions. There is no basis for severing in practice, no basis for severing in principle, it is all or nothing and it is not a big step to say: Heenan J did it perfectly correctly and on a proper basis. What has suffered? The patience of the Royal Commission apparently, that is all, your Honour.
HIS HONOUR: Thank you, Mr Gyles. Mr Solicitor?
.D.
MR MEADOWS: Your Honour, I would ask for the matter to be stood over until Monday so that we can present our submissions at that time, for the reasons which I have already addressed you on. So far as whether the Royal Commission should be stopped now rather than at some later time if your Honour were satisfied that there was a basis for doing it. We are in the situation where this matter has proceeded for the whole of today effectively and the Commission has been proceeding and, in my submission, it should be allowed to continue to proceed. After all the applicants have not presented any evidence to you as to why they would be prejudiced if the evidence which is being adduced at the moment and would be adduced on Monday was given. There is no suggestion by evidence that the applicants will suffer any detriment by reason of that evidence being given, all that ‑ ‑ ‑HIS HONOUR: I think the argument - and this is no doubt an oversimplification - but I think what was being put to me by Mr Gyles was that the evidence thus far given falls within the description of Parliamentary privilege or is caught by the description "Parliamentary privilege", that in order to cross-examine he effectively has to put the evidence of others which itself, on his submission, is the subject of Parliamentary privilege.
MR MEADOWS: Yes. I understand that, your Honour, but there is no evidence before you as to how that will prejudice the applicants in any real sense. It is not suggested that the evidence that has been given or is being given or will be given will not be true or is not true and if it be the case that the truth as it comes out in that evidence damages the reputation of the applicants then so be it, it is no more than the truth coming out. In the context of an application to restrain a Royal Commission from proceeding on the basis that the evidence which might come out will embarrass or damage the reputation of particular people who might be involved in the subject matter of the terms of reference of the Commission is not a basis, we would submit, for granting injunctive relief because if the reputations are damaged then it is because the truth has come out.
We would submit that in the absence of any evidence at all from the applicants that what is being said is not just damaging or embarrassing but untrue then there really is no basis for an interim injunction. All that you have before you are assertions by my learned friend in the course of argument that the applicants will be embarrassed by this evidence. So, in my submission, at this stage - and I am limiting my submissions to the issue as to whether or not the Commission should be allowed to continue on Monday ‑ ‑ ‑
HIS HONOUR: Well, that in itself, I suppose, has two aspects; one is whether I should today grant an interim injunction which would hold the position, as it were, until I have heard counsel, particularly yourself, on Monday or whether I should just leave the matter open until Monday morning at which time it may be clearer as to what the Commission proposes to do and then consider the position. In other words, there can be an interim injunction to stop the Commission proceeding until the submissions in this matter are concluded, which is one thing; and the other is, having heard the submissions whether I should accede to the substantive application, which is to grant injunctive relief until the special leave application is heard.
.D.
And they do raise somewhat different questions.MR MEADOWS: Well, I agree with that, your Honour, and that is why I limited my submission to that question which I raised because, in my submission, that is the one matter which really is pertinent to whether or not there should be an interim injunction pending the final determination of this particular application which is before you.
HIS HONOUR: Yes, but you have not really addressed the question of the short term interim injunction to allow this matter to be completed, as it were.
MR MEADOWS: Yes, well, I am sorry if I have not made myself clear but I thought I was and I was suggesting that that factor that there is no evidence which would show prejudice on the part of the applicants adduced before you is a compelling reason why you should not grant an interim injunction.
HIS HONOUR: Even at this stage, you mean.
MR MEADOWS: Yes.
HIS HONOUR: Yes, I understand that.
MR MEADOWS: Now if there had been some evidence that showed that there was a prospect of real prejudice then perhaps the case could have been stronger, but at the moment there is none and therefore it should not be allowed to influence the determination as to whether there should be this short term interim injunction.
HIS HONOUR: And on the other hand I suppose it could be said: well, if an injunction is not granted at least until this application is disposed of then the application loses much of its point.
MR MEADOWS: Well, it comes back to what is going to be one of our fundamental points, but if you look at what the true issues are in this action they can be determined at any time in the future. The whole point that is being made by the applicants is that there is a potential for their reputations to be damaged. There is no evidence of that, as I say, but the case is not about that. The case is about relief in respect of Parliamentary privilege, public interest immunity, and so on.
HIS HONOUR: All right. Well, let us say then that I decline to grant an interim injunction this evening or on Monday morning, the Commission proceeded, I heard your submissions, ultimately concluded that, let us say, take one aspect of the applicant's argument that there was a real issue as to the scope of Parliamentary privilege and the place of the courts when it is called upon in circumstances such as this. Does that really remain as a live issue then?MR MEADOWS: It will.
HIS HONOUR: I am sorry, could I take it just a step further and say then the matter went on to application for special leave, special leave were granted, an appeal were heard, and it was ultimately decided that the evidence which had been adduced was subject to Parliamentary privilege and was not available to the Commissioner. Is it too late to do anything about that?
MR MEADOWS: Well, the position will have been clarified but the issue which is central to this particular application is: what damage is being done, what is the prejudice that is being suffered? And, as I say, the applicants have not testified on affidavit as to what damage they are suffering. There needs to be a reason why the proceedings should be stopped at this stage. It has been put in terms of prejudice but there is no evidence of it.
.D.
[3.56pm]
HIS HONOUR: Mr Zelestis, do you have a role in this aspect of the matter?
MR ZELESTIS: No, your Honour, but I was going to suggest that contrary to what I said earlier and bearing in mind that it is late on Friday, it might be preferable in view of the time limits that might exist on Monday if I were to proceed to present my submissions, if I was given leave to appear this afternoon and got that over and done with. I am entirely in your Honour's hands. I am prepared to proceed now. And if your Honour thought that a more convenient course we would - but we have nothing to say about what we might call the "discretionary factors" concerning a stay.
HIS HONOUR: Even as between now and Monday?
MR ZELESTIS: No.
HIS HONOUR: Yes. Just identify for me again your clients.
MR ZELESTIS: We represent the President.
HIS HONOUR: Yes, but his position before the Full Court?
MR ZELESTIS: His position was he sought and obtained leave to appear without submitting to the jurisdiction of the court for the sole purpose of addressing submissions on the power of the courts to decide whether there had been or would be a breach of privilege; what is loosely called the "jurisdictional issue" but which my learned friend, Mr Gyles, heavily criticises for being so labelled. So it is really only on the question of what is the proper role of the court in a dispute of this kind.
HIS HONOUR: It does not sound like he was an intervener so much as almost an amicus curiae.
MR ZELESTIS: Well, there is an arid debate about whether that is a proper use of the amicus role, but we side-step that and ‑ ‑ ‑
HIS HONOUR: Well, perhaps we can from my part - or perhaps I should not say "from my part" till I have heard what counsel have to say. Does anyone object to my hearing submissions from Mr Zelestis?
MR GYLES: Your Honour, we have taken the position below that this is an intervention which is unhelpful. One Member of one House of Parliament should not be lecturing the court or the parties about Parliamentary privilege. That is the position we took below. It is the position we take here. We say there is no occasion. Your Honour will hear argument on Monday from the Crown who propose to put all the arguments. And it looks as if the court is being lectured by Parliament. And I submit it is wrong in principle.
HIS HONOUR: Well, Mr Zelestis?
MR GYLES: Sorry, lectured by a Member of Parliament, I am sorry.
HIS HONOUR: Yes, well, the court is used to being lectured. But I will hear you, Mr Zelestis. I am anxious to have all the assistance I can.
MR ZELESTIS: Yes. Well, I undertake not to lecture your Honour. Your Honour, we did have before the court a six-page submission which - I hesitate to burden your Honour with further paper, but it might be useful if I was to hand your Honour a copy of the submission we had before the Full Court. And I do not address the first five paragraphs which concern the appropriateness of granting leave, other than to point out that in Murphy's case, which is referred to in paragraph 1, Hunt J there recognised that the President of the equivalent House in New South Wales had by virtue of his office an authority to uphold - and indeed a duty to uphold the interests of Parliament with respect to privilege and hence to appear before a court on a proper occasion to do that.
Your Honour, it is important to appreciate that there are really two privileges being raised before the court here. The first is the privilege which the applicants claim somehow personally inures to them - that is the freedom to speak in Parliament without having it questioned in any place out of Parliament. But there is, we would submit, a higher privilege, as it has been described in the cases that it is relevant, and that is the privilege of Parliament to decide for itself whether there has been a breach of privilege and if so what, if anything, to do about it.
HIS HONOUR: When you put it that way are you saying that Parliament has the exclusive power to determine for itself in all circumstances and irrespective of the particular circumstances in which the matter arises?
MR ZELESTIS: One cannot make a submission that is so broad because put so broadly it would encompass those cases in which a matter is already before a court and a court is required to determine for itself in the management of its own proceedings whether some piece of a statement of claim or a defence or some piece of evidence would offend Parliamentary privilege. So one must recognise that there are many circumstances in which a privilege issue will arise before a court and when the court is bound to decide it.
But that is not this case. This is a case in which the sole purpose of the proceeding, in so far as it is based on this issue, is to vindicate in a personal sense this claimed right. And none of the examples which can be pointed to really come near that kind of case. So, in our submission, this is a case at the other end of the spectrum altogether where really all that is being done is an endeavour to mount a cause of action upon the privilege so as to enforce it directly in the courts.
Now, the submission which we made to the Full Court was that over centuries nobody has satisfactorily defined a very precise limit between the role of Parliament and the role of the courts
.D.
with respect to this issue. And what we said and what we repeat before this court, with respect, is that it is too much to expect that there can be a very precise definition of the line. The relationship between the courts and the parliament is the product of an historical struggle, which does not lend itself necessarily to a nice logical limitation. And our submission is that having established that this kind of case is a case which is brought solely for the purpose of trying to vindicate in a personal way a claim to privilege, that that is within the very minimum confines of what Parliament's exclusive role is.[4.01pm]
And the example which we have given in the outline of submissions is worth repeating, and that is this: take the case of the parliamentarian who, fearing emotion in Parliament or a resolution that he or she has breached parliamentary privilege and may be committed, rushes down to the court seeking an urgent injunction or seeks a declaratory order to the effect that no breach of parliamentary privilege has occurred. Now, what the courts have said and what the High Court said in a unanimous judgment in Richards was two things, in our submission. The first and the lesser thing they said was that where a warrant for committal was issued by Parliament in a general form, that is, stating generally that there had been a breach of privilege without condescending to particulars, the court would not look behind the warrant. But secondly, in giving the reason why that was so, the High Court said in terms that it is for Parliament to judge of the occasion and the manner of the exercise of a privilege and accordingly to determine whether a breach of privilege has occurred.
HIS HONOUR: But what if the circumstances are such that Parliament does not have a role or chooses not to exercise a role?
MR MEADOWS: Your Honour, that is, with respect, a fundamental aspect or element of the very nature of the privilege itself and it is, with respect, a misunderstanding to speak of the privilege being a personal one in the sense that it is personal as ordinary rights known in the law are personal. The primary purpose of the privilege, as Steytler J explained at pages 14 and 15 of his reasons, the primary purpose is to enable parliamentarians to perform their parliamentary duties representing electors without any fear of the consequences. And his Honour sets out several descriptions of the rationale in the bottom half of page 14 and the top third of page 15.
He mentions the citation from Sainkey and Whitlam, the narrower proposition that a member of Parliament should be able to speak with impunity and without any consequences and then cites from Prebble, and I need not read it.
HIS HONOUR: Well, I am not sure how you square that with what you said earlier that if, in the course of determining some issue between the parties to private litigation the court is called upon to say whether conduct is the subject of parliamentary privilege, the court may do so as a step in resolving the litigation.
MR MEADOWS: Well, there are two answers to that, your Honour. The first is that, with respect, it is wrong to try and search for a thoroughly unifying, logical doctrine that will rationalise the whole area. The second answer, and perhaps a more satisfying answer, is that where it is sought outside Parliament, to visit some civil or criminal legal consequence upon a member of Parliament, in a manner which is said to be in breach, then the courts will have to adjudicate on whether it is in breach and the courts will have to decide whether the conduct in question can be visited with a civil or criminal legal consequence.
But that is not what is happening here. There is no suggestion that the Royal Commission will bring about a civil or criminal legal consequence. Now, it is entirely consistent with the nature and rationale of the privilege of free speech that in other respects, with respect to other consequences, not legal consequences, that it is for the Parliament to judge, as their Honours said in Richards, the occasion and the manner of the exercise of the privilege
.D.
because it is a privilege which is always subject to the will of Parliament. The exclusive power the Parliament has to decide whether the privilege has been breached and to punish carries with it an implication - really that is putting it the wrong way round - that exists, that power exists because of the nature of the privilege, that is that it is one which is always subject to the will of the Parliament itself. It is no ‑ ‑ ‑
[4.07pm]
HIS HONOUR: Subject to the will of the Parliament in what sense?
MR ZELESTIS: In the sense that Parliament has the exclusive right to decide whether the privilege has been breached. There is no higher authority to whom Parliament must yield when it decides that there has been a breach.
HIS HONOUR: But say it decides not to decide.
MR ZELESTIS: That is as much within its power as it is within its power to determine positively. In other words, the power to determine negatively that there has been no breach and the power to refrain from investigating it are all comprehended within that exclusive power. As I say, we are not dealing with a case where a civil or criminal legal consequence is said to arise from an alleged infringement of the privilege.
HIS HONOUR: Except to the extent that, as is well-known, the proceedings of Royal Commissions can have a very serious impact on the reputation of people.
MR ZELESTIS: That is then suggesting another question, your Honour. That is then suggesting that the rationale for the privilege is intended to protect members of Parliament from scrutiny of the truth of their statements in Parliament. Now, I am not sure that anyone would say that that is itself a rationale, I mean inquiring into the truth of something merely for the purpose of ascertaining whether it is true, inquiring into the truth for the purposes of visiting some legal consequence is another thing. Now, to suggest, as I say, that the rationale or one of the rationales for the privilege protects all inquiry is really, with respect, unarguable.
Your Honour posed the question: what about in the media, the media can question the accuracy of what was said. That might be a risk if they are wrong but the privilege does not stifle public examination of the correctness of what is said. I mean it is not designed to vindicate the truth of the thing said on each occasion, it does not guarantee them so ‑ ‑ ‑
HIS HONOUR: No. Well, what then if in the course of ordinary litigation the witness is asked a question which the witness contends is immune from scrutiny by reason of Parliamentary privilege, in a sense the court in upholding that - if the court does uphold that contention - is doing, is it not, what you suggested the Royal Commission might be asked to do?
MR ZELESTIS: Well, no, the court is then hearing a claim which requires the court to make a decision and the court is bound either to make a judgment or if it cannot make a judgment some of the techniques that have been used are to impose a stay on proceedings if it is thought that a claim to privilege somehow unfairly prejudices one of the litigants in the proceedings. But to say, your Honour, that there are cases and there have been and always will be many cases in which the courts themselves decide whether some piece of evidence or some plea will offend privilege.
That is not to deny that there is a role and a scope within which Parliament's jurisdiction, if I can use that term, is exclusive. In our submission, the applicants' case, that the only exclusivity is with respect to affirmative decisions which involve punishment of a person is too narrow and wrong. It is not just those cases where Parliament has decided to punish and has issued a general warrant that the courts are constrained from intervening.
HIS HONOUR: Mr Zelestis, can I ask you the question I asked Mr Gyles, what is the authority that, in your submission, comes closest to answering this question.
.D.
MR ZELESTIS: What I am now putting to your Honour, the two authorities are those mentioned in paragraph 6 of our outline. That is Richards and Glass - the Privy Council in Glass.[4.12pm]
HIS HONOUR: And it is in the, what, in the exposition of principle rather than the facts of the case that the answer lies, in your submission.
MR ZELESTIS: Yes. And it is in the language that is used, as we said in the Full Court and the language is put in paragraph 6 of our submission. One does not need even to go to the report. In Richards the Chief Justice put it as, it is for Parliament to determine, or to judge the occasion and the manner of exercise of the privilege. That was a case of course in which men were sought to be brought up on the warrant. Now had the High Court there been intent on saying no more than that, they could not scrutinise the warrant, one would not have expressed the judgment, in our submission, in those terms. That recognises a broader principle, and in Glass it is put in the way in which it is put in the Full Court. They quote from the Privy Council where their Lordships said that:
There is a power in Parliament to decide without review whether there has been a breach.
And that includes no review of the negative decision that there has not been a breach.
HIS HONOUR: Well, you put it even more widely than that. You would say that it includes inaction.
MR ZELESTIS: A decision to refrain.
HIS HONOUR: Well, not even a decision not to do anything ‑ ‑ ‑
MR ZELESTIS: But inaction.
HIS HONOUR: ‑ ‑ ‑ simply inaction which results in no decision being made one way or the other.
MR ZELESTIS: Yes. Now the question of breach of privilege can be brought before the Parliament by a person and if the Parliament chooses not to act, as I say, that is no criticism of the privilege, it is not a statement about the weakness of the privilege; it is merely a recognition of an essential aspect or nature of the privilege, and that is that it is a privilege which is ultimately amenable to Parliamentary control. And neither is it a criticism of the privilege as appears in the applicants submissions to say that: well, if it is subject to Parliamentary control then it is subject to party political control, and that is just an intrinsic feature of the Parliamentary system. In our submission, it is wrong to try and treat the privilege as a privilege which criminal and civil legal consequences apart has some status as a personal right which can grant a cause of action in the Courts.
Now our submission which the Full Court really has accepted is that when what is before the Courts is an action brought for the sole purpose of, if you like, vindicating or protecting the privilege, then that is an issue which the Courts, whether as a matter of jurisdiction or is a matter of constitutional propriety, will refrain from embarking upon and we drew the Court's attention to statements in Picken and in Prebble and in the Full Court they have picked up one of the statements from Picken where the Courts have long recognised that there is, if you like, a need for restraint on both sides with respect to this issue because the dividing line has not been defined and far from that raising, as our learned friends would say, a serious issue for trial, it is a recognition of the impossibility, in our submission, of drawing a rigid dividing line.
Now, your Honour, it is interesting to note that in this case, in the very present case, the risk of conflicting decisions is present. The question of the impact of the Easton Royal Commission on Parliamentary privilege or the impact really of privilege on it has already been raised. It is not to say it has been dealt with definitively but at page 59 of volume 1 of the materials there is an extract from the record of the proceedings of the Legislative Council on 16 May 1995. What happened on that day was that the president gave a response to a point of order which had been raised by the Leader of the Opposition some days earlier
.D.
in which, what appears to have been attempted was the leader of the opposition was endeavouring to clarify the president's view as to the impact of an earlier ruling he had made in 1984 on privilege in the context of a Royal Commission and was seeking to inquire as to the applicability of that ruling, in the president's view, to the Easton Commission.[4.17pm]
And the president went on to express a view, a view which I think the applicants would say is too narrow a view as to the scope of privilege. Now, I do not address the scope of privilege, but I am merely concerned to point out that one can see that already in the house the question of parliamentary privilege and the Royal Commission has been raised and, of course, it can be raised again. One obviously knows that it is a matter of public knowledge and parliamentarians are not immune from that knowledge and it is not inconceivable at all that someone will move for the house to consider the matter further. Now, we do not suggest that what the president said on this occasion represents the view of the house. All that it represents is his comments in relation to what was claimed to be a point of order and what, I think, he decided was not truly a point of order.
I merely use it to illustrate the fact that there has already been some move to see whether the issue might be addressed in some way by the Legislative Council and so it is not impossible that the matter could be raised in the house and the house might take a view - might take an affirmative view, it might take a negative view, it might decide not to intervene. But as long as criminal and civil legal sanctions are not in question, in our submission, the house is the sole judge of whether there has been a breach, whether some action should be taken in consequence of an alleged breach. Those are our submissions, your Honour.
HIS HONOUR: Yes, thank you, Mr Zelestis.
MR ZELESTIS: Your Honour, can I say that we may seek to withdraw on Monday. Can I mention that in advance.
HIS HONOUR: Yes, certainly. Mr Gyles, back to you, I think, on two aspects. One is the request by the solicitor that Crown be allowed to defer its address until Monday morning. Is that a problem for you?
MR GYLES: No, your Honour.HIS HONOUR: All right. The second, and more difficult matter perhaps is what is to happen in the interim. You have invited the court or urged upon the court for reasons which you have advanced that there should be an injunction now precluding the Royal Commission from proceeding at all until determination of the application for special leave.
MR GYLES: Well, sorry, until - no, until your Honour determines this application.
HIS HONOUR: I beg your pardon.
MR GYLES: My basic submission, of course, which will have to be determined on Monday is until special leave. What I am asking your Honour to do this afternoon is to have a holding order staying the Royal Commission until your Honour has determined this application.
HIS HONOUR: Yes. Now, that is an order that could be made now, it could be made Monday morning.
MR GYLES: Yes.
HIS HONOUR: The objection from your point of view to have been made Monday morning is one of convenience and I am not under estimating it when I say - using that term, but the court is put in a difficult position because it may be that there is evidence which the Commission could take over the next working day or so which would not in any way fall within the scope of this application.
MR GYLES: Your Honour, can I deal with what your Honour puts in two ways. The first point is that it is not just convenience to us, it is convenience to everybody, your Honour. There is a Commission which is due to commence again presumably at 10 o'clock on Monday with all arrangements to be made. Your Honour it would be wrong to leave that decision until 10 o'clock Monday when we have to be represented before the Commission if we can. Sundry other people do. It will be much fairer to all if your Honour said there shall be no sitting for a particular time, I mean - or unless this is determined, then there is no ambiguity about what is to happen. It is unfair to us, and everybody else, to leave it in that sort of limbo.
HIS HONOUR: Well, it is not really, or it may not be, and this is the aspect that I do not have the necessary information. It may be that the Commission can usefully proceed with other evidence.
MR GYLES: Your Honour, I have said to your Honour - I do not know if your Honour is not accepting this, that the Commissioner is going to proceed at 10 o'clock on Monday morning to take the cross-examination of Mr Kovacs,
.D.
that is what is to happen.[4.22pm]
HIS HONOUR: Yes, I heard you and I understood what you said but what I am putting to you ‑ ‑ ‑
MR GYLES: Is your Honour doubting that that ‑ ‑ ‑
HIS HONOUR: Well, let me just put this to you, that faced with the fact that this application has not concluded and will not be concluded until sometime on Monday and will then have to be determined, it may be that the Commissioner will then, faced with the possibility that an injunction could be granted on Monday morning to preclude the Commission continuing until a determination of the application, would make other arrangements.
MR GYLES: Your Honour, the evidence before your Honour in the papers shows that that is precisely what he has not done on each occasion so far. He has not diverted himself in one iota from what he was going to do. His position is - and it is not a matter for me to criticise it: I will continue until I am stopped by the Court. Your Honour, we have confronted this on several occasions and each time ‑ ‑ ‑
HIS HONOUR: Yes, I know.
MR GYLES: Your Honour cannot ring him and say: now, do the right thing; he knows this matter is proceeding.
HIS HONOUR: But he may not know what stage it has reached.
MR GYLES: Your Honour, if he wants to he can be here.
HIS HONOUR: Yes, I know that.
MR GYLES: The Chief Executive Officer is in Court. Your Honour, this is, with respect, a game of chess. We have been in three courts now but he has chosen not to be represented except on the very first day to say: we support jurisdictional arguments, and go. The Commissioner has said on the transcript and it is in the papers before your Honour: I will proceed until I am stopped. And he also said: I noticed the courts are not receiving with glee the attempts to stop me. There is no question that the Commissioner, from what he says on the transcript, conceives himself to be getting the support of the courts and that he will proceed until he is stopped. And he is told us, your Honour, we have got to be there at 10 o'clock on Monday morning to cross-examine a particular witness.
Now, your Honour, if that is not the position then he should be here with evidence or the Crown should give evidence to say that is not the case. He has now diverted attention. Your Honour, let us say he does and says: I will now deal with topic X, what are my clients to do? They should be represented, your Honour, before the Commission. They cannot allow - I mean, we have so far not been represented today because we are here. Why is it that an Executive inquiry, simply by saying: I am going to continue on, forces the Court into what your Honour says is a difficult position. There is no difficulty at all, the Court just says: stop, until I can decide this issue.
May I put this to your Honour: the time for that consideration is when your Honour has to decide whether to grant the injunction until Monday or Tuesday or whenever the special leave application is determined. It should be clear to everybody that if the Commissioner wants to propose an interim regime he has every opportunity of doing so in Court so we can deal with it - so we can deal with it so our rights of natural justice are protected - not by some announcement to the Court as to what is going to happen - so that your Honour can decide whether that is an appropriate interim regime with the benefit of our submissions. That can be done on Monday. But, your Honour, what should be done is for everybody to be put out of their misery so far as Monday morning is concerned to enable your Honour to decide this case in a proper manner and for the Commission not to proceed during that argument.
Why should our clients be put in a position of having evidence called on some matter which must inevitably bear upon the circumstances surrounding the petition. Now, your Honour, I fear I am repeating myself but your Honour seems to be making all sorts of assumptions about the Royal Commission which are contrary to the evidence which is before your Honour in the absence of any evidence from him or any counsel saying what he will or will not do. We submit, your Honour, there is only one conclusion on the facts: he will proceed at 10 o'clock on Monday morning to take the evidence of Mr Kovacs which puts us in an impossible position.
HIS HONOUR: Unless restrained by injunction at 9.30, say, on Monday morning.
MR GYLES: Yes, your Honour. But in the meantime we are all ‑ ‑ ‑
HIS HONOUR: Well, we are all inconvenienced.
MR GYLES: Well, it is more than inconvenienced, your Honour. It is virtually impossible for us to be doing justice to being literally prepared to cross-examine at 10 compared to being here at 10. Your Honour, it is not just a matter of convenience, it is a matter of human capacity to handle that situation.
HIS HONOUR: See, the injunction you seek is one from inquiring into - is that meant to cover informal as well as formal inquiry in the sense of evidence?
.D.
[4.28pm]
MR GYLES: Well, your Honour, the ‑ ‑ ‑
HIS HONOUR: So you would bring the Commission's investigations to a halt, at least until this matter is reviewed and ‑ ‑ ‑
MR GYLES: Your Honour, we would be perfectly happy, your Honour, for any interim injunction to be limited to hearings, no private or public hearings. Your Honour, the arguments advanced so far sort of assume we are here only to protect what is called reputation, that is an aspect of it, we are here to prevent being questioned or impeached and that is being done every moment. I mean we will vindicate our reputation, so we think, in 6 months time but, your Honour, you will never erase the damage which is being done now. So, your Honour, in short we say we would be happy with or content with no public or private hearings until your Honour determines this application, giving the Commissioner the opportunity on Monday if he so desires to put before the court an interim regime between then and special leave which your Honour can then scrutinise.
HIS HONOUR: Do you want to say anything more, Mr Solicitor?
MR MEADOWS: No, your Honour.
HIS HONOUR: Mr Gyles' submissions are very persuasive but it does seem to me that in the end to issue an injunction at this point, as opposed to reconsidering the matter Monday morning when the Commissioner is aware of the stage that this application has reached, is to give priority to convenience and, as I said earlier, I do not use that term lightly because I realise that without an injunction the parties to the Commission, those who are represented, will be put to some inconvenience. What I propose to do is not grant any injunctive relief at this stage. I will adjourn the matter until 9.30 on Monday morning; in the light of what I am then told, if I am told anything about the proposal of the Commission during next week, and having in mind that the application stands part heard and has to be concluded and determined by me I will consider what further orders I shall make by way of interim relief. So the matter will stand adjourned until 9.30 on Monday, 7 August.
MR GYLES: Your Honour, without cancelling that ruling at all may I just say this about Monday morning, your Honour, what happened in the Supreme Court was this, our first application for injunction we were told would be before Steytler J who had delivered the judgment below, that is injunction preserving appeal. At the last moment he was not the judge and we had a new judge who we had to spend a day or more taking through the material. That day was spent by the Commission taking evidence. Then the following day there was further delay. The judge started at half past 8 to endeavour to deal with matters. We did not complete that argument until quarter past 10 I think.
The Commission, knowing all that, sat at 10 o'clock and led evidence. Now, your Honour has said 9.30, what I fear, with respect, on the evidence, not anything else but the evidence which is in the papers before your Honour is that there will be those who will come along, there will be time spent in submissions and your Honour will find that we will be into the morning before there is any order of the court now ‑ ‑ ‑
HIS HONOUR: Well, I would not expect any further submissions on the matter except in the light of whatever information I am given as to what the Commission proposes, if anything, to do.
MR GYLES: Yes. Well, your Honour, with respect, could your Honour make it clear that so far as humanly possible your Honour will decide the matter - sorry, our request before the Commission sits so that there should be no business of the Commission sitting while your Honour is still considering not the main application but this request.
.D.
And I am not suggesting a deliberate filibuster, your Honour, but what has happened each time is that there has been a delay past a hearing time in two courts and on each occasion the Commissioner has sat and led evidence which has been very damaging to my client.[4.32pm]
HIS HONOUR: Well, I would certainly contemplate giving a decision before the Crown addresses.
MR GYLES: And, your Honour, before the Commission starts its hearing, because I am just alerting your Honour to the evidence in the case, that twice so far we have been prevented from getting a decision of a court before the hearing time starts and each time damaging evidence has been led.
HIS HONOUR: Well, I would expect to, I mean assuming that I am given some information or that will presumably only take minute or two.
MR GYLES: Well, yes.
HIS HONOUR: If I am not given any then I have had the argument and I can decide. But it does seem to me that there is a difference between - particularly given the weekend - between deciding this afternoon to issue interim relief until the determination in this matter and deciding on Monday morning whether or not to grant such relief in the light of the Commission being apprised of what has taken place and deciding, if it does decide - it is a matter for the Commission - what course it will take during the next few days.
MR GYLES: Your Honour, I am not in any sense canvassing your Honour's ruling, I accept that entirely. I am just ‑ ‑ ‑
HIS HONOUR: You would just like me to make some adjustment would you?
MR GYLES: No, no I am not, your Honour, no I am not, not at all. I am not ‑ ‑ ‑
HIS HONOUR: I appreciate the point you are making and I think I have dealt with it.
MR GYLES: It does not cause me to ask your Honour to change anything at all, I would not do that. I am just alerting your Honour to a problem which may emerge on Monday morning, that is all.
HIS HONOUR: Well, you will just have to hope that I remain in good health over the weekend. The court will adjourn until 9.30 on Monday.
AT 4.34 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 7 AUGUST 1995
Key Legal Topics
Areas of Law
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Civil Procedure
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Negligence & Tort
Legal Concepts
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Appeal
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Causation
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Damages
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Duty of Care
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Negligence
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Reliance
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