Halden & Lawrence v Marks

[1995] HCATrans 211

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P20 of 1995

B e t w e e n -

THE HONOURABLE STANLEY JOHN HALDEN MLC

First Applicant

and

THE HONOURABLE CARMEN MARY LAWRENCE MHR

Second Applicant

and

THE HONOURABLE KENNETH MARKS, QC

First Respondent

and

THE STATE OF WESTERN AUSTRALIA

Second Respondent

and

BRIAN MAHON EASTON

Third Respondent

Application for special leave to appeal

DAWSON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 AUGUST 1995, AT 9.32 AM

Copyright in the High Court of Australia

_________________

MR R.V. GYLES, QC:   If your Honours please, I appear with my learned friend, MS C.J. McLURE, for the applicants.  (instructed by Dunhill Madden Butler)

MR R.J. MEADOWS, Solicitor-General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MS C.F. JENKINS, for the second respondent.  (instructed by the Crown Solicitor for Western Australia)

MR P.R. WHITFORD:   May it please the Court, I seek leave to appear on behalf of the President of the Legislative Council of Western Australia to formally make an application that was foreshadowed before Justice Toohey last Monday and outlined in a notice of motion filed on Friday, 11 August.  (instructed by Clayton Utz)

DAWSON J:   Perhaps we can defer that application until we see how the proceedings ‑ ‑ ‑

MR WHITFORD:   If your Honour pleases.

MR GYLES:   I can tell your Honours that counsel for the first respondent has asked me to indicate to the Court that the first respondent will abide the event.

DAWSON J:   Yes.  There is a certificate to that effect from the Senior Registrar.

MR GYLES:   Thank your Honour. Your Honours, also the third respondent has indicated that he will not be represented here, although he was given leave to file submissions.

DAWSON J:   And we have read those submissions. 

MR GYLES:   If your Honours please.

DAWSON J:   Yes, Mr Gyles.

MR GYLES:   Your Honours, so far as parliamentary privilege is concerned it will be clear, I hope, to your Honours that the course of events below leads to a conclusion that so far as Mr Justice Steytler and Mr Justice Heenan are concerned the point is decided in our favour at the interlocutory level.  What happened in the Full Court was that the Full Court stepped in and said even though there is an issued to be tried as to the scope of parliamentary privilege, and even though Mr Justice Heenan said that issue is not in any sense premature, it has happened and therefore I grant an injunction pending appeal, the Full Court said the courts cannot enter this arena.  In other words, on a final basis it has said if not no jurisdiction, at least a settled principle which the courts will follow that we will not intervene.

So that it is the finding of the Full Court on that issue which barred further consideration of the other questions which will arise at an interlocutory level and if the courts below were vindicated on that point, then an injunction would have gone.

DAWSON J:   Except that the court went on to consider balance of convenience and decided that point against your client, did it not?

MR GYLES:   With respect, your Honours, they went on to refer to the balance of convenience but ‑ ‑ ‑

DAWSON J:   Taking into account the matters which they had rejected on the argument, that is true.

MR GYLES:   Having taken a particular view about parliamentary privilege which was not the view of either of the judges below.

McHUGH J:   You attempt to rely on parliamentary privilege as a cause of action.  Is there any case where the courts have allowed parliamentary privilege to be used in effect as a sword, as opposed to a shield or determined the issue.

MR GYLES:   I cannot give your Honours a case precisely in point but, with respect, a moment’s consideration will indicate that precisely that is done every time a court, when it is exercising jurisdiction, for example, refuses to permit evidence to be led because ‑ ‑ ‑

McHUGH J:   With respect, I do not think that is correct, Mr Gyles.  If somebody seeks to rely on parliamentary privilege to defeat a common law right, then of necessity the common law courts have got to determine the question of parliamentary privilege, but that is not this case.  You are seeking to rely on it as a cause of action.

MR GYLES:   Yes, your Honour, we are.

McHUGH J:   The issue would be thrown up, for example, if you had sought to restrain the Commissioner from receiving evidence from Mr Kovacs on the ground that it was in breach of a confidential relationship between your client and Mr Kovacs.  First you would say, “I am entitled to do it by virtue of my commission”.  You would then seek to defeat that by saying he was acting unlawfully by intruding into the area of parliamentary privilege.  But again you would be seeking to use it as a sword to defeat some right of his.

MR GYLES:   Of course procedurally what your Honour puts is, with respect, correct, but in substance it is not.  It is very similar to the old issue between common law and equity as to shields and swords and the reality is that ultimately the courts arrived at the position that whilst an equitable defence is only a defence at common law, it founded an injunction in equity because that is the only way the right can be vindicated or the defence can be given effect to.  Assume for a moment, your Honour, that ‑ ‑ ‑

McHUGH J:   I appreciate that, but there you had two aspects of the court system.  Here you are in a different area.  These are the privileges of Parliament and to use the old language, the High Court of Parliament.

MR GYLES:   That is very old language in a statutory context, your Honour; very old language when you are dealing with Western Australian Acts of Parliament.  But be that as it may, the substance of the matter, your Honour, is that if it is correct to say, as all of the authorities, we respectfully submit, do say that the individual member of Parliament has the right ‑ ‑ ‑

McHUGH J:   But is it not a derivative right?

MR GYLES:   With respect not, your Honour.  That is the question.  If it be right to suggest, as do May, Odgers and all the other authorities, and the Constitution of Western Australia and the Parliamentary Privileges Act of Western Australia, they all talk about the rights of the member.  If there is a right in the member, then that right will be vindicated by the courts, no matter how it arises.

McHUGH J:   Not necessarily.  It maaya be a political right.  Well, a right protected or within the jurisdiction of Parliament as opposed to the courts.

MR GYLES:   But, your Honour, that is the question.  Your Honour has come to the answer before looking at the question, with respect.  If it be correct to suggest that an individual member of Parliament has a right of parliamentary privilege which is a statutory right under the laws of Western Australia, then it follows that that right will be vindicated by the courts wherever and whenever it arises.  If it arises in giving evidence it will be given effect to.  If it arises in some other way it will be given effect to.  As the House of Lords said in the Parliamentary Privileges Case in 1958, to which my learned friends refer, the courts will decide the issue whether it arises directly or indirectly.

DAWSON J:   Are we not getting off on a wrong tack, Mr Gyles?  These are question which are to be determined in the action.  We are not dealing with the action at the moment; we are dealing with interlocutory proceedings and this Court has said on more than one occasion it will not interfere in interlocutory proceedings where no final rights are determined.

MR GYLES:   Your Honour, the Court has said on a number of occasions it will not interfere in interlocutory proceedings unless, in substance, rights are affected.

DAWSON J:   No rights are affected in substance or in fact here.

MR GYLES:   Take this case, your Honour.  The judgment below has said finally that the courts will not intervene in this matter.

DAWSON J:   It has not said that finally.

MR GYLES:   With respect, it has, your Honour.

DAWSON J:   No, it has not.  It dealt with a motion for an interlocutory injunction and that settles no rights finally.

MR GYLES:   Your Honour, if the Full Court of Western Australia say that is the law, that is the law for everybody.

DAWSON J:   It only said it for the purpose of determining the interlocutory application.

MR GYLES:   They did not qualify it, your Honour.

DAWSON J:   Mr Gyles, there still is an action on foot which claims declarations and that has to be determined.

MR GYLES:   Your Honour, it will be struck out.  It cannot be determined.

DAWSON J:   It will not be struck out.

McHUGH J:   And if it is, then you may have a right to seek special leave.

MR GYLES:   May I put it another way, your Honour.  By that stage the right will be ‑ ‑ ‑

GUMMOW J:   Nothing was turned by consent into a final hearing, was it?

MR GYLES:   No, no, your Honour.  This Court has, in many cases, looked at the substance - Paringa is a recent example ‑ ‑ ‑

McHUGH J:   But Paringa is a very special case.

DAWSON J:   It is quite different.

McHUGH J:   And Paringa is dead against you because it states the general principle that this Court will not interfere in interlocutory proceedings.

MR GYLES:   Unless there are special reasons.  Now, your Honours, in this case, if your Honours refuse special leave and say it can go for trial, then the inquiry will be over and the right which we come to Court to vindicate will be lost.  With respect, your Honours, we agree that the proper question before the Full Court was whether there was an appropriately serious question to be tried.  They did not do it that way.  They said - the courts below said, in effect, yes, but they said there is a principle which binds us all that we cannot intervene in this arena.

DAWSON J:   But if there were an appeal to this Court, no rights would be finally determined either.  It would merely be a question of whether the Full Court applied the wrong principle in refusing an interlocutory injunction.  But did they apply the wrong principles relating to the grant or refusal of an interlocutory injunction?

MR GYLES:   Very much so, your Honour.

DAWSON J:   They considered whether there was a serious question to be tried and they considered the balance of convenience.  What is wrong with that?

MR GYLES:   Your Honour, they considered the balance of convenience not as a matter of substance but as an add-on.  So far as the ‑ ‑ ‑

DAWSON J:   They considered it, did they not?

MR GYLES:   Well, your Honour, in my respectful submission, not in an appropriate way because they had already decided against us finally, so far as one reads their judgment, on the question of quasi-jurisdiction.  Now, that being so, it may be not surprising that they came to the view that they did.  In other words, if we go to trial now, we have on three points the Full Court of Western Australia saying you cannot succeed.

DAWSON J:   But it is not a final determination of that issue.

MR GYLES:   Your Honour, in substance it is, with respect.  I mean, in my submission, if the Full Court without reserving to themselves the question of seriousness of the issue say there is no question to be tried, in effect, because the courts will not intervene ‑ ‑ ‑

DAWSON J:   They decided that for a particular purpose: whether or not to grant an interlocutory injunction.  If, when the action is tried and the trial judge decides that he is bound by what was said, then you have an appeal to the Full Court of the Supreme Court of Western Australia.  And if you are not satisfied with that, you have an application for leave to appeal to this Court.

MR GYLES:   And in the meantime, your Honour, the rights will be rendered nugatory.

DAWSON J:   We do not know what the Royal Commission is going to do.

MR GYLES:   But, your Honours, one does not let a Commission continue in circumstances where, we say, that it is in conflict with the three basic principles to which we appeal.  That is a question which the courts will judge, and Mr Justice Heenan was the last that did so and he granted an injunction.

DAWSON J:   Mr Gyles, in Paringa it was said that there would be chaos if this Court attempted to interfere in the procedures of another court; a different thing if rights had been determined and it was said that that was one of the reasons, and a very cogent reason, why this Court will not interfere with the procedures of another court which had been governed by the judges of that court.

MR GYLES:   Your Honour, I do submit that Paringa is a good example of the principle to which we refer, notwithstanding what has been put to me by the Court.  There was not a final disposition of rights in that case.  There was a practical disposition of rights.

DAWSON J:   The Full Court refused to deal with the matter.

MR GYLES:   No, it did not, your Honour, with respect.  If your Honours go to page 459 I respectfully submit that precisely the opposite occurred.  That is 165 CLR, your Honours and in that case, you see, your Honours, there is no element of discretion in the judgment below at all on this issue, on the parliamentary privilege issue.  There is no element of discretion to be exercised:

Although Mr Justice Lego exercised a discretion it is at least arguable that the refusal of an interlocutory injunction would allow NFM to implement its three-part proposal and might thereby preclude the grant by the Court of the substantive relief sought by Paringa if it should be found entitled to the relief claimed at the conclusion of the trial.  In this respect it is at least arguable that the refusal of interlocutory relief amounted to something more than a decision on a mere matter of practice and procedure.

GUMMOW J:   Yes, but the problem in Paringa was that the South Australian courts did not really apply the concepts involved with an injunction in aid of a right of appeal as a separate concept from an application in first instance.

MR GYLES:   That is right, your Honour, with respect, but that case, no more than this, decided substantive rights in the sense Mr Justice Dawson was putting to me.  It was a practice and procedure matter but the majority said in this case, in truth there is a substantial decision here because, absent the relief, the scheme might be perfected.  So here, your Honours.  And your Honours should not be deciding whether there is a serious question to be tried for special leave purposes by, in effect, jumping to the decision about the injunction to be granted or not, pending trial.  If, as we respectfully submit, there is a serious question as to how the Full Court approached the matter, then that will determine special leave.

GUMMOW J:   But then you would need an injunction as well.

MR GYLES:   That is so, your Honour, but that is a separate question;  separate, but very much related, of course.  But Mr Justice Heenan, in a precisely similar situation below, granted the injunction pending appeal.  Why?  Because if he had not, rights would have been rendered nugatory day by day.  Damage was being done which cannot be repaired.

McHUGH J:   Not necessarily.  It may not be a question of whether or not the application is premature.  It would be different if your client was before the Commission and some question had arisen and then you sought an injunction to restrain the Commission, there would be something concrete.

MR GYLES:   But, your Honour, with respect, that is, as Mr Justice Heenan correctly put it, Article 9 of the Bill of Rights which prevents impeachment in a place out of Parliament of what goes on in Parliament, does not depend upon impeachment by asking questions of the member, it is what other people say about it.  That is the very point here, your Honour.

McHUGH J:   I understand the way you put it, but you have to rely on your client’s own privilege to ground your application for an injunction and at the moment she has no greater right than any other member of Parliament and, perhaps, any other member of the community.

MR GYLES:   Your Honour, I appear for Mr Halden who presented the petition.

GUMMOW J:   I appreciate that.

MR GYLES:   And, your Honour, he presented the petition and his conduct is at the heart of the Commission. 

GUMMOW J:   But his privileges, even on your version, may never be inquired into.

MR GYLES:   No, your Honour, with respect.  The Commissioner requires it to be done and it may be done by getting evidence from others.  You see, your Honour, in comparable situations ‑  well, perhaps, go back a step. 

Mr Justice Steytler examined this question and said there is a serious question to be tried.  That is, whether what is proposed will breach parliamentary privilege properly understood.  Justice Heenan agrees.  The Full Court did not deal with it, your Honour.  The case which my learned friends refer to of Pickin is an excellent example of why what is being proposed will be struck down. 

If the courts were given ‑ let me assume that any court were granted, on the pleadings, the task of doing what the Commissioner is to do or something very close to it and assume there is no question, at that stage, of calling evidence from either the parliamentarians involved, the court would be obliged not to go ahead because it would be questioning or impeaching what went on in Parliament and Pickin’s case explains why that is so.  You cannot have a collateral inquiry into parliamentary business.  And, if that is a correct principle, your Honour, we come within it.  You do not wait until the damage is done;  you do not wait for all the evidence to be given because it cannot be recalled.  There is no remedy once it has been led.

What your Honours are putting to me would be an answer similarly to the other issues, no doubt, which arise and it, perhaps, does not repay the time involved to take your Honours to those issues.  We do submit that the limits between executive power and parliamentary affairs is, itself, a question requiring or warranting the intervention of this Court in this case.  Because, contrary to what is being put to me,  it is the very issue of the Commission which attacks that dividing line, leaving aside questions of parliamentary privilege altogether.  So, your Honours, the practical result of the decision below is clearer than Paringa in deciding substantive rights, in my respectful submission and that your Honours will not, on that procedural basis, shut us out from arguing the only way in which we can vindicate these rights without irreparable damage having been done.

DAWSON J:   Yes, Mr Meadows?

MR MEADOWS:   May it please, your Honours.  May I take your Honours first of all to what the Full Court said at page 89 of the application book in relation to parliamentary privilege and take up a point which was taken up by the court where you can see there that all that the court has held is that - and this is at line 38:

As regards parliamentary privilege, we are not persuaded there is a triable issue.

And that is all that has been determined by the Full Court in this case.  It would not preclude the applicants from maintaining at the trial that parliamentary privilege could be considered by the court and as to what the scope and extent of it might be.

McHUGH J:   But Mr Gyles’ point is that by that time the horse is out of the stable, it is all over.

MR MEADOWS:   With respect, your Honour, it is not all over because the issue of parliamentary privilege is one which is squarely before the Royal Commissioner and that as and when matters arise which are said to be in breach of parliamentary privilege, counsel for the applicants can take objection to it and the Royal Commissioner can rule upon it.  It should not be presumed that the Royal Commissioner will not have proper regard to parliamentary privilege.  If you have regard to what he has already said in that respect, which you can see at page 143 of the application book at line 37, he says of parliamentary privilege:

I do not question its existence and will not permit its breach.

And further on at page 145 where he says at about line 37, again:

However, it can be said I think with some safety at this stage that I am disposed to be guided by what parliament itself has said in relation to this very commission to the extent that it can be said to have spoken through the leader of the upper house.

And so on.  But, effectively, what the Royal Commissioner has said is that he will have regard to parliamentary privilege and that he will rule on it from time to time as that issue arises.  So, the applicants are not without any redress before the Royal Commissioner in that respect.  Furthermore, as we point out in our outline of submissions, the remedy of the applicants is to go to the Parliament, to appeal to the Parliament to have their rights in relation to parliamentary privilege upheld.

McHUGH J:   Well, except Mr Gyles insists that his client has a statutory right under the Parliamentary Privileges Act 1891 and that the court will enforce that right. What is your answer to that?

MR MEADOWS:   In our submission, whilst the privileges of parliament are enshrined through statute because the Constitution of Western Australia
required that that should happen, the way in which it has been enshrined is to confer upon the Parliament of Western Australia the same rights and privileges as the House of Commons has and by doing that, of course, not only do the rights and privileges which are there conferred - are they conferred on the court but, in addition to that, the remedy which is inherent in those privileges, the power to actually enforce them is also conferred on the Parliament.

McHUGH J:   But is there a difference between privilege arising under the common law of Parliament and parliamentary privilege arising under the statute?

MR MEADOWS:   With respect, we would say not and that has been recognised in the cases in that Western Australia is not the only jurisdiction in which the privilege of Parliament is, in fact, conferred by statute.  Indeed, one could say that the Commonwealth Parliament’s parliamentary privilege is conferred by statute.

McHUGH J:   Well, that is under the recent Act, the 1987 Act.

GUMMOW J:   That is legislation under section 49.

MR MEADOWS:   It is, indeed. But then again, of course, section 49 itself is legislation and no one would suggest, we would say, that the privileges of the Commonwealth Parliament were in any way confined by virtue of the fact that it was statutorily conferred.  So, our contention is that the applicants really have to turn to the Parliament in order to protect whatever privileges they say they might be personally entitled to have.   Your Honours will note in our outline of submissions - - -

McHUGH J:   Just so I understand you, Mr Solicitor:  is your submission that the rights conferred by the Parliamentary Privileges Act are enforceable only in what I earlier called the High Court of Parliament?

MR MEADOWS:   In terms of enforcement, yes, but only the Parliament can enforce those privileges and that whilst it might be argued that the courts have jurisdiction to consider or entertain a question of parliamentary privilege, once it comes to the point where it has been dealt with other than incidentally to a matter which is within its jurisdiction, that it will not take the next step of dealing with the enforcement of those privileges.

McHUGH J:   I would have thought it was settled ever since Stockdale v Hansard in 1840 that the courts will determine the issue of parliamentary privilege when it arises in their own proceedings.

MR MEADOWS:   Yes, quite so.

DAWSON J:   That is what you are saying, is it not?

MR MEADOWS:   You have a matter falling within the jurisdiction of the court where it arises incidentally.

McHUGH J:   Well, just let me test it this way:  supposing, in this particular case, Mr Gyles tried to commence proceedings to restrain the Commissioner from receiving evidence from Mr Kovacs on the ground that it was an implied term of employment, that what passed between them was confidential and perhaps would not be in breach of parliamentary privilege and he sought to restrain the Commissioner from receiving that evidence.  Could the court then determine that issue?

MR MEADOWS:   It could decide whether or not - - -

McHUGH J:   That is, could it determine the question of parliamentary privilege in those proceedings?

MR MEADOWS:   To this extent:  it could take into account whether or not parliamentary privilege might apply to that particular evidence, but having reached that point, it can go no further.  Prebble is authority for this, that whilst you might be able to identify the existence of the privilege, the court cannot go that extra step and do anything in the nature of enforcement.

McHUGH J:   Supposing the court came to the view that for Mr Kovacs to give evidence would be a breach of that contract of employment and restrain him from giving evidence before the Royal Commissioner and restrain the Royal Commissioner from receiving the evidence.  Now, could it lawfully do that?

MR MEADOWS:   In connection with that cause of action which is based on breach of confidentiality which is implied from some contract of employment, I would accept that.  But this is a different question.  This is a question of whether the privilege of the Parliament can be enforced by the courts.

McHUGH J:   So, the question could come before the courts in an appropriate way then?

MR MEADOWS:   With respect, it could come before the courts and it could be the subject of consideration by the court but once you got to the point where you were seeking some relief from the court in relation to parliamentary privilege which was in the nature of the enforcement of that privilege, then the court will not take the next step.  That is, we would submit, clear from the authorities, and Prebble is a classic example of the proposition that we put.

As I say, our main contention in this respect is that it is for the applicants to go to the Parliament in order to seek whatever redress they say they are entitled to.  We would say that irrespective of whether my learned friend’s argument is right, that it is possible for the courts to entertain an action of this nature based on the privilege, the court should not enter into that fray until such time as the applicants have sought relief from the Parliament because without argument that is an arena where they can seek redress.  No one would question that the Parliament had the ability to tell the Royal Commissioner to desist if he was to allow the evidence to encroach into areas which breached the parliamentary privilege.

McHUGH J:   But is this really an issue?  The courts have clashed with Parliament in the past.  I mean, they did in Stockdale v Hansard where Parliament maintained it had a privilege - the House of Commons insisted it had a privilege, the courts denied it and the courts went ahead.  Although, ultimately, when the House of Commons gaoled the Sheriff of Middlesex for enforcing the court’s judgment, the court refused to do anything to release the Sheriff of Middlesex.

MR MEADOWS:   Quite so.  But, of course, in  Hansard the court did not, in fact, deal with the matter where the cause of action was based on the privilege.  This is the problem which the applicants face here; that they are seeking to use the privileges of the Parliament as the basis for their action and we submit that that just patently cannot be done because the courts would not be prepared, either as a matter of convention or as a matter of judicial propriety, to have the temerity to tell the Parliament what its privileges are and then to enforce them.

GUMMOW J:   One of Mr Gyles’ points is that if you look at section 1 of the 1891 Act it talks about the “members thereof” and he says well that is an individual rather than a collective right.

MR MEADOWS:   One then has to take account of the fact that the privileges which are conferred by that statute are those that are enjoyed by the members of the House of Commons or by the House of Commons and its members and it goes without saying, again, that the privileges are the privileges of the Parliament which might well be there for the benefit of its members but it is for the Parliament to enforce those privileges and it is not for an individual member to go outside the Parliament and seek the assistance of the courts in order to enforce those privileges or to restrain a breach of those privileges.  That is the prerogative of the Parliament.

McHUGH J:   Is it a derivative privilege of the members?

MR MEADOWS:   We would submit that it is a derivative privilege but, irrespective of that, it is still one which can only be enforced by the Parliament. 

GUMMOW J:   It comes down in a way to what you mean by “enforce”.

MR MEADOWS:   Well, in this instance we are talking about whether or not the court can be asked to restrain somebody from infringing the privilege.

DAWSON J:   It really comes down to what Justice McHugh said:  you cannot use it as a cause of action as a sword.

MR MEADOWS:   Quite.  As a sword, yes, and that is the short point, we would submit.

GUMMOW J:   Well, the short point for trial.

MR MEADOWS:   At the trial, quite so, your Honour, and we do make the point in our outline of submissions that these matters - and we have to remember that at this stage, the only thing that has been addressed here is whether or not the matter is justiciable.  The actual scope and extent of parliamentary privilege in the particular context of the evidence being given in this Royal Commission could clearly be a matter which would be determined at trial.  It is, we would submit, quite premature for this Court to be asked to consider either the justiciability issue or, indeed, the question of the scope and nature of the privilege in the particular circumstances of this Royal Commission. 

Of course, we also are faced with the situation where, at this stage, the proceedings before the Royal Commission have only just begun and that there will be, during the course of the hearing, we would submit, a number of occasions when the Royal Commissioner would be called upon to adjudicate on parliamentary privilege and that the proper time for this Court or, indeed, any appellate court to be called upon to consider issues of parliamentary privilege is once the evidence is out.

There is, we would submit, a further basis upon which this Court should not entertain the applicants’ application for special leave and that is that this is not a case where you could say that exceptional circumstances have arisen which would justify the Court in granting special leave in the case of what was no more than an interlocutory application and that is that if one regards the issue which was before the Full Court and the other court

below as being whether or not parliamentary privilege is being infringed, no irreparable damage will be done to parliamentary privilege if the matter is left until such time as the hearings of the Royal Commission are concluded and that the proper time for this Court to be considering whether or not parliamentary privilege has been infringed is, as we say, at the end of those hearings.

DAWSON J:   Well, it is when there is an appeal from a final determination of the question.

MR MEADOWS:   Quite so, that once the trial of the action has been completed and the intermediate appellate court has considered it, then it would be an appropriate time for this Court to consider these matters.

Your Honours, we do not have any more to say on the issue of parliamentary privilege, and if I could turn to the other matters which are raised by my learned friends in their application and, in particular, to the issue of improper purposes and irrelevant considerations, we would submit that this does not raise any controversial point of law.

DAWSON J:   We need not trouble you with that, Mr Meadows.

MR MEADOWS:   Thank you, your Honour.

DAWSON J:   Thank you, Mr Solicitor.  Mr Whitford, you merely wish to put written submissions which, in fact, we already have and have already read, is that the case?

MR WHITFORD:   Yes, your Honour.  I am instructed simply to formally seek an order in terms of the notice of motion filed last Friday, that is, for an order that the President have leave to appear on this special leave application for the purpose of putting forward those written submissions for the Court’s consideration on this application.

DAWSON J:   Leave is granted.

MR WHITFORD:   May it please the Court.

DAWSON J:   Thank you, Mr Whitford.  Mr Gyles.

MR GYLES:   Your Honours, first of all, my learned friend said that this matter is premature.  May I remind your Honour that evidence has been led; the Commissioner has given a ruling about his view of the scope of parliamentary privilege; counsel have opened and that both the evidence led in the opening and the ruling infringe the area Mr Justice Steytler said was a serious question to be tried.  It was that fact that led Mr Justice Heenan to grant the injunction.  It would be wrong to suggest that this case is moot in some way; it is not.  The judge below, at page 53 and page 54 of the book, having considered what had actually happened, made the order that he did for the reasons that were outlined on those pages.  So, it is not correct to see this as being an academic matter.

Secondly, your Honours, the question of conflict with Parliament is a furphy.  This is not a case against Parliament.  It is not a case against a parliamentary officer.  It is not a case against anybody who has the privileges of Parliament.  It is a case against the Executive Government.  That is all.

Your Honours, all of the fine statements about conflicts with Parliament are in cases involving those areas where Parliament has the right to enforce in the sense of punish for contempt.  Mr Justice Gummow said that is the question.  There is no authority which says that Parliament has any power beyond punishment for contempt, and that is - - -

McHUGH J:   No, but what you are seeking to do here is to get the courts to enforce the privilege.

MR GYLES   Yes, your Honour.  I appreciate that, of course I am, but what I am putting to the Court - - -

McHUGH J:   And the argument against you is that is no part of the Court’s business.  Where it is necessary to determine private legal rights to determine an issue of parliamentary privilege, the courts will do so, but that is not the way you are doing it.  You are using parliamentary privilege as a cause of action itself.

MR GYLES:   Yes, your Honour, of course we are, but I am putting a submission to your Honour that the phrases which are in your Honour’s mind about this are all in a context where there is a conflict with Parliament itself as to Parliament’s power to punish for contempt.  Parliament has no other or greater power than that.  It has control over its own procedures and proceedings, and that is the very right we are vindicating.  So that Parliament has that power - the courts cannot intervene in it - where punishment is at stake.  There is no authority to the contrary of that.  Indeed, that is Richards Case, and all of the others which it follows deal with it in that context.

McHUGH J:   That may be so but, on the other hand, there is no authority that allows you to use parliamentary privilege as a cause of action.

MR GYLES:   But your Honour has the situation arisen earlier where a place out of Parliament has endeavoured to impeach what goes on in parliamentary proceedings and where, when it has been pointed out, they have not stopped.  Arguing from that point of view, I submit, is unhelpful.

Thirdly, your Honours, the individual nature of the right is made clear by the very words of section 36 of the Constitution and section 1 of the Parliamentary Privileges Act.  It is said respectively and, your Honours, that accords with the passages from May and Odgers to which I have referred.  If we are right that this is an individual and not simply a derivative right, then we submit the courts will enforce it whenever it arises directly or indirectly, as the House of Lords said.  We submit it arises directly here and there is no conflict with Parliament and, indeed, the great cases to which reference has been made, ending up with Prebble and so on, all vindicate the right - the underlying principle is that a member, when he acts, and a member of the public who comes to the member of Parliament must be secure in the knowledge that they cannot be impeached later for what they do.  That “later” should not depend upon the whim of those who control, not only Parliament but the Houses of Parliament, at a particular time when it arises thereafter.

In other words, if there is an individual privilege, granted of course for the public good by statute and by the usages of Parliament, then, as Mr Justice Heenan points out, there is no way that that can be vindicated otherwise than by the court stepping in.  In my respectful submission, that is the special leave point here and I submit it is an appropriate special leave point.  To suggest that when a Full Court of a State says no triable issue, that that does not finally determine the fate of the action, I submit is to confuse form with substance.

DAWSON J:   Thank you, Mr Gyles.  The Court will take a short adjournment to consider the course which it will take.

AT 10.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.31 AM:

DAWSON J:   The applicant seeks special leave to appeal from a decision of the Full Court of the Supreme Court of Western Australia which has the effect of denying them an interlocutory injunction to halt the proceedings of the Royal Commission pending the hearing and determination of an action which seeks a declaration that the appointment of the Royal Commission is invalid and void.  This Court is reluctant to grant special leave to appeal from interlocutory decisions, unless there are strong reasons for doing so, where no final rights are determined.

As was said in Paringa Mining and Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452 at page 457:

In the ordinary case, it would be most inappropriate for this Court to entertain an appeal from the refusal of an interlocutory injunction by a court of trial.  Several considerations make it inappropriate.  In the first place, such an appeal would produce a confusing division of judicial control over the proceedings.  Next, the questions whether there is a serious issue to be tried, where the balance of convenience lies and what should be done to preserve the status quo could seldom give rise to a point of principle which would warrant the intervention of this Court.....And, where an interlocutory order does not determine the rights of the parties, the order would usually be an exercise of discretion on a point of practice or procedure.

While we do not necessarily agree with the Full Court that there was no serious question to be tried with regard to parliamentary privilege, we do not think that the court was in error in concluding that this was not a proper case for interlocutory relief at this stage.  The rules governing interlocutory injunctions are not in doubt and the application does not raise a question of principle which would warrant the grant of special leave to appeal.  Special leave is accordingly refused.

MR MEADOWS:   I seek an order for costs, if it please the Court.

DAWSON J:   What do you say as to that, Mr Gyles?

There will be an order for costs in favour of the second respondent.  The Court will now adjourn.

AT 10.33 AM THE MATTER WAS CONCLUDED