R and M v IBAC (No 2)
[2015] VSCA 280
•14 October 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0078
| R | First Applicant |
| and | |
| M | Second Applicant |
| v | |
| INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSIONER (No 2) | Respondent |
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| JUDGES: | PRIEST and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 October 2015 |
| DATE OF JUDGMENT: | 14 October 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 280 |
| JUDGMENT APPEALED FROM: | [2015] VSC 374 (Riordan J) |
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PRACTICE AND PROCEDURE – Application for stay pending hearing and determination of application for special leave – Basis and nature of jurisdiction – Whether stay necessary to preserve subject-matter of the application – Application for injunction – Application to extend suppression order – Injunction and suppression order given limited operation to permit application to High Court – Stay of judgment otherwise refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the First and Second Applicants | Mr D Grace QC with Mr O P Holdenson QC | Tony Hargreaves & Partners |
| For the Respondent | Mr T Woodward SC | Independent Broad-based Anti-corruption Commission |
PRIEST JA
KAYE JA:
Both applicants are members of Victoria Police.
On 1 April 2015, pursuant to power granted by the Independent Broad-based Anti-corruption Commission Act 2011 (‘the IBAC Act’), the respondent issued a witness summons to each of R and M, requiring them to give evidence before IBAC at a public examination in relation to their knowledge of matters the subject of the scope and purpose described in a document attached to their respective witness summonses entitled ‘Preliminary Information and Directions for Public Examinations in Operation Ross’.
By an originating motion filed on 16 April 2015, the applicants sought declarations and remedies in the nature of certiorari and prohibition pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) for the purpose of preventing the respondent from holding an examination of the applicants, or, alternatively, holding an examination of the applicants which is open to the public. On the afternoon of the preceding day, 15 April 2015, Riordan J had before him an application for an interlocutory injunction seeking to restrain the respondent from proceeding with the applicants’ public examinations until the hearing and determination of the originating motion. In the result, the respondent gave an undertaking not to proceed with a public examination until determination of the proceeding seeking judicial review. Riordan J did, however, grant an order suppressing publication. Following a two day hearing, on 7 August 2015 Riordan J refused the relief sought by the applicants.[1]
[1]R & Anor v IBAC [2015] VSC 374.
Three weeks later, on 28 August 2015, Beach and Kyrou JJA made orders continuing the order granted by Riordan J until the determination of the application for leave to appeal to this Court (and, if leave were granted, the appeal).
On 30 September 2015, this Court refused the application for leave to appeal the decision of the primary judge (with costs).[2] The Court ordered, however, that the order made by Riordan J on 15 April 2015 be continued until 4.00pm on 16 October 2015.
[2]R & M v IBAC [2015] VSCA 271 (Priest, Beach and Kaye JJA).
The respondent has since indicated an intention to examine the applicants at a public examination on, or shortly after, 19 October 2015.
By an application for special leave to appeal filed in the Registry of the High Court on 8 October 2015, the applicants seek to set aside this Court’s decision refusing them leave to appeal. In essence, it is contended that this Court was wrong to determine that the power to examine persons under s 115 of the IBAC Act extends to persons who are the subject of a criminal investigation about the subject-matter of that investigation. Pending determination of the application for special leave, the applicants seek an order restraining the respondent from examining the applicants, and a continuation of the suppression order made 15 April 2015, until after the determination of the application for special leave (or, if special leave is granted, the appeal). The applicants submit that, should the Court not grant the orders sought, their proceeding in the High Court would be rendered nugatory. Both parties proceeded on the basis — which we consider to be correct — that the principles that guide the Court in determining whether to grant a stay apply to the present application.[3]
[3]For example, see Minister for Local Government v South Sydney Council (No 3) [2002] NSWCA 327, [10] (‘South Sydney Council’).
The Court has power to stay its orders by virtue of rr 64.39 and 66.16, and pursuant to its inherent jurisdiction.[4] It is for the applicants to demonstrate why a stay is justified. The Court has a wide discretion, which is uncircumscribed by rigid rules.[5] The applicants contend that the exercise of discretion should be guided by the consideration spelled out by Brennan J in Burgundy Royale.[6] In this case, as we have mentioned, the applicants contend that their proceeding in the High Court would be rendered nugatory unless a stay were granted. On the other hand, the respondent contends that weight must be given to the fact that judgment was given permitting the public examination of the applicants; and that, indeed, the applicants’ case was not thought to have sufficient merit to result in the grant of leave to appeal.
[4]Palmer v Permanent Custodians Ltd [2009] VSCA 164, [32]–[54] (‘Palmer’).
[5]Maher v Commonwealth Bank of Australia [2008] VSCA 122, [23].
[6]Jennings Constructions Ltd v Burgundy Royale Pty Ltd (No 1) (1986) 161 CLR 681, 685 (‘Burgundy Royale’).
In Gerah,[7] liquidators commenced proceedings for negligence against partners of a Western Australian accounting firm. A master of the Supreme Court of South Australia made orders that persons involved in the partnership attend for examination by the liquidator. The Full Court of the Supreme Court of South Australia dismissed an appeal from the master’s orders. A stay of the master’s orders was sought pending the hearing of an application for special leave in the High Court. Dawson J refused the application for a stay, observing:[8]
The inherent jurisdiction of this court to order a stay of proceedings pending the determination of an application for special leave is well established. It is an extraordinary jurisdiction which will only be exercised in exceptional circumstances.
Exceptional circumstances may arise where the subject matter of the proposed appeal will be lost without a stay, with the result that the application for special leave and any subsequent appeal will be nugatory. Clearly, in the present case, the subject matter of the litigation — the immunity of the applicants from examination and from the production of documents concerning the matters in contention — will have disappeared before the application for special leave is heard if the application for a stay is refused. Having regard to the date of the proposed examinations, in the absence of a stay the questions will have been asked and answered and the documents produced before the application for special leave is heard.
Notwithstanding this circumstance, the jurisdiction to grant a stay is discretionary and other matters are relevant to the exercise of the discretion.
Importantly, the applicant must establish a substantial prospect that special leave to appeal will be granted. It is, I think, the prospect of success in that application which is significant, although, of course, the prospect of ultimate success in any appeal (if leave is granted) is an important element to be taken into account by the court in deciding whether or not to grant special leave.
[7]Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (1994) 119 ALR 401.
[8]Ibid 403 (footnotes omitted).
In Hammersley,[9] contemnors who had been found guilty of contempt sought an order staying the execution of the payment of fines and costs pending the hearing of an application for special leave in the High Court. After an extensive examination of High Court authority — including Gerah — Ipp J said:[10]
The above examination reflects a uniform approach expressed by different Justices in the High Court over a period of several years. In terms thereof, a stay of execution pending an application for special leave to appeal to the High Court will only be granted in ‘special’ or ‘exceptional’ or ‘extraordinary’ circumstances. Generally speaking, the Court will only stay proceedings when it is necessary to preserve the subject matter or integrity of the litigation, or where refusal of a stay could create practical difficulties in the relief available to the High Court, or where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.
In my opinion, the approach of this Court in determining whether to grant a stay of execution pending an application for special leave to appeal to the High Court should be no different. …
[9]Hammersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 96 (‘Hammersley’). See also Palmer, [56]; Australian Football League v Carlton Football Club (Court of Appeal, unreported, 1 August 1997); Rinehart v Walker (2012) 83 NSWLR 347.
[10]Hammersley, 85.
The issue whether to grant a stay in circumstances such as those that prevail, is a matter which must be approached with considerable caution.[11] For the purposes of this application, while we are prepared to assume that the ground sought to be agitated in the High Court might be arguable, we are not persuaded that the application for special leave enjoys sufficient prospects of success to warrant a stay of the effect of our judgment, or to justify an order further restraining the applicants’ public examination.[12]
[11]Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 266, [21] (‘Sunland’); cf South Sydney Council, [11].
[12]Sunland, [15].
On the other hand, the undertaking given before Riordan J in April of this year, and the order his Honour made, have now bound the respondent for six months. The respondent is not a private litigant seeking to vindicate or protect its own interests. Rather, it is a statutory body, whose charter requires it to pursue important public interests, including the identification, investigation and exposure of police personnel misconduct.[13]
[13]IBAC Act, s 8, s 15.
In these circumstances, we do not consider it appropriate for this Court to grant any stay of the effect of our judgment or the injunction sought. We are, however, prepared to postpone the discharge of the order of 15 April 2015, and to grant an order restraining the public examination of the applicants, until 4.00pm on 21 October 2015, so as to permit the applicants to make an application for a stay to the High Court,[14] and so as to ensure that the applicants’ proceeding in the High Court is not rendered nugatory in the meantime.
[14]See Burgundy Royale, 685; Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1997) 145 ALR 121, 123.
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