R and M v IBAC (No 2) - [2015] VSCA 280

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…

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.

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Details

Case: [2015] VSCA 280
Decision Date: 14 October 2015

CaseChat Overview and Summary

In the case of R and M v IBAC (No 2), the applicants sought a stay of proceedings pending the determination of their application for special leave to appeal to the High Court. The nature of the dispute involved an application for an injunction and an extension of a suppression order, which were matters to be heard before the Independent Broad-based Anti-corruption Commission (IBAC). The proceedings took place in the Federal Court of Australia, where the applicants were seeking to challenge the jurisdiction and actions of IBAC.

The primary legal issues before the court were whether the application for a stay was necessary to preserve the subject-matter of the application for special leave to the High Court, and if the relief sought could be granted in limited terms to allow the applicants to pursue their appeal without prejudice. The applicants argued that a stay was essential to prevent irreparable harm that could occur if the proceedings continued, while IBAC contended that the application should be dismissed as it did not meet the stringent criteria for a stay.

The court considered the principles and precedents governing applications for stays in cases pending appeals to the High Court. It was held that a stay was not necessary to preserve the subject-matter of the application for special leave, given that the applicants could still make their application to the High Court regardless of the ongoing proceedings. However, the court granted the applicants' requests for an injunction and the extension of a suppression order, but with limited operation to ensure that the High Court application would not be prejudiced. Consequently, the court refused to stay the judgment otherwise, allowing the proceedings to continue under the modified orders.

The final orders of the court were that the application for a stay was dismissed, but the application for an injunction and the extension of the suppression order were granted in limited terms. This decision allowed the applicants to pursue their appeal to the High Court while ensuring that the ongoing proceedings did not unfairly impact their case.

Orders