GIBBS C.J., MASON, WILSON, BRENNAN, DEANE AND DAWSON JJ.: Before the Court is an application for an interlocutory injunction directed to Sir George Lush, Sir Richard Blackburn and the Honourable Andrew Wells, three retired judges who have been appointed pursuant to the Parliamentary Commission of Inquiry Act 1986 (Cth) ("the Act"), as a parliamentary commission of inquiry to inquire and advise the Parliament whether any conduct of the plaintiff, Mr Justice Murphy, a member of this Court, has been such as to amount in its opinion to proved misbehaviour within the meaning of s.72 of the Constitution. Ordinarily an application for an interlocutory injunction would be heard by a single justice but because of the gravity and importance of the matter it was deemed proper to constitute a Court of six justices to hear it. The constitution of the Court in this way does not mean that it was appropriate at this stage to advance full argument as though this were the occasion for the final determination of the issues raised by the case, with the result that other cases would have been displaced from the list and other parties disadvantaged. There was no reason why the Court should, in this case, depart from the ordinary procedure when an interlocutory injunction is sought, and that means that except in relation to one of the arguments advanced on behalf of the plaintiff, it will be sufficient to inquire whether there is a triable issue and, if so, whether the balance of convenience favours the grant of an injunction.

2. By s.5(2) of the Act it is provided that in carrying out its inquiry the Commission shall consider only specific allegations made in precise terms. The Commission is to report to the President of the Senate and the Speaker of the House of Representatives its findings of fact and whether any conduct of the plaintiff has been such as to amount, in its opinion, to proved misbehaviour within the meaning of s.72 of the Constitution. The report is to be made on or before 30 September 1986 unless that date is extended by a resolution of each House of the Parliament and the Commission is to submit with its report a record of so much of the evidence before the Commission as the Commission thinks necessary to substantiate its findings of fact and its conclusions: see s.8. The Commission is given compulsive powers to summon witnesses, take evidence, conduct searches and obtain material: ss.11, 12 and 13. For the purposes of its inquiry the Commission may hold hearings (s.14(1)) and at a hearing before the Commission the plaintiff is entitled to appear and to be represented by a legal practitioner at any time during the hearing (s.14(4)). By s.15, the Commission may appoint a legal practitioner to assist the Commission as counsel. Mr Charles,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murphy v Lush

Details

AGLC: Murphy v Lush [1986] HCA 37
Case: [1986] HCA 37
Decision Date: 27 June 1986

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Murphy v Lush*. The dispute concerned the validity of a notice to quit served by the respondent landlord on the appellant tenant under the *Landlord and Tenant (Control of Rents) Act 1942* (NSW). The central question was whether the notice was rendered invalid by a failure to comply with a specific requirement of the Act regarding the particulars to be included in such notices.

The primary legal issue before the Court was whether the notice to quit was validly served, notwithstanding an alleged defect in its content. Specifically, the Court had to determine if the omission of certain prescribed particulars from the notice rendered it a nullity, or if the defect was of a kind that could be cured or overlooked under the relevant statutory provisions and principles of statutory interpretation.

The Court held that the notice to quit was invalid. Applying the principles of statutory construction, the Court found that the requirement to include the specified particulars in the notice was mandatory. The omission of these particulars meant that the notice did not satisfy the statutory requirements for a valid notice to quit. Consequently, the notice was ineffective to terminate the tenancy. The appeal was allowed, and the orders of the lower courts were set aside.

Orders