Love v The Attorney-General for New South Wales & Anor; Peters & Anor v The Attorney-General for New South Wales

In the High Court of Australia, Mason CJ presided over two applications for special leave to appeal: *Love v The Attorney-General for New South Wales & Anor* and *Peters & Anor v The Attorney-General for New South Wales*. The applicants, represented by Mr Handley QC and Mr Hutley, sought to challenge ex parte orders made by the Supreme Court of New South Wales and the subsequent decision of the Court of Appeal. The respondents, the Attorney-General and the Director of Public Prosecutions for New South Wales, were represented by the Solicitor-General, Mr Mason QC.

The central legal issues before the High Court concerned the validity of ex parte orders made by the Supreme Court of New South Wales, particularly in light of potential inconsistencies with federal legislation. The applicants argued that these orders, which were prejudicial to them, should have been set aside by the Supreme Court once the applicants drew attention to the conflict between State and federal statutes. They contended that such a conflict, under section 109 of the Constitution, would entitle them to have the orders set aside *ex debito justitiae*. Alternatively, they argued that even if section 109 partially invalidated the orders, the orders were not severable and therefore should have been wholly set aside.

The applicants presented two grounds of attack. The first was that the ex parte orders, having been made without notice and later challenged on grounds of statutory inconsistency, were required to be set aside by the court. This, they argued, would invalidate the warrants issued under those orders. The second ground, aligning with the view of McHugh J, was that section 109 of the Constitution directly operated to invalidate the orders, and as they were not severable, they were wholly invalid. The Solicitor-General for New South Wales contended that the warrant itself constituted the order of the Supreme Court.