Medium Neutral Citation: Ward v Hoenig [2025] NSWCA 180
Hearing dates: 07 August 2025
Date of orders: 07 August 2025
Decision date: 07 August 2025
Before: Bell CJ, Mitchelmore JA, Kirk JA
Decision:
(1)   Grant leave to the plaintiff under the Felons (Civil Proceedings) Act 1981 (NSW) to institute the proceedings.
(2)   Vacate order 4 made by the Supreme Court on 4 August 2025.
(3)   Summons dismissed.
(4)   The plaintiff is to pay the defendants’ costs.

Catchwords:
PARLIAMENT – where member of Legislative Assembly convicted in District Court on one count of sexual assault and three counts of assault with act of indecency – where Leader of Government in Legislative Assembly notified convicted member of intention to introduce a motion for his expulsion from the Assembly – where member obtained urgent ex parte injunction – power to expel under the Standing Orders not precluded by s 13A of the Constitution Act 1902 (NSW) - power to expel expressly preserved by s 13A(3) of the Constitution Act – no basis for conclusion that proposed power of expulsion being engaged for punitive purposes - if procedural fairness required, no denial of procedural fairness – representative democracy not impaired by proposed motion – principle in Kable v Director of Public Prosecutions (NSW) neither engaged nor infringed.
INJUNCTIONS – approaching the Court ex parte – limited circumstances where proceeding without notice appropriate – urgency of matter is no excuse for non-notification where to do so would not defeat the purpose of the interlocutory relief sought – obligation to provide meaningful notification of time and place of urgent application and electronic service of documentation to be relied upon.

Legislation Cited:
Commonwealth Constitution ch III
Constitution Act 1902 (NSW) s 13A
Crimes Act 1900 (NSW) ss 61I, 61L
Electoral Act 2017 (NSW) ss 30, 76, 83
Evidence Act 1995 (NSW) ss 4, 91
Felons (Civil Proceedings) Act 1981 (NSW) ss 4, 5
Uniform Civil Procedure Rules 2005 (NSW) r 1.21

Cases Cited:
Armstrong v Budd (1969) 71 SR (NSW) 386
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64
Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576
Eastgate v Rozzoli (1990) 20 NSWLR 188
Egan v Willis (1998) 195 CLR 424; [1998] HCA 71
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
Holmes v Angwin (1906) 4 CLR 297; [1906] HCA 64
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
Kanda v Government of Malaya [1962] AC 322
Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157; [1955] HCA 36
Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730
State of New South Wales v Hamze [2025] NSWCA…

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 Ward v Hoenig

Details

AGLC: Ward v Hoenig [2025] NSWCA 180
Case: [2025] NSWCA 180
Decision Date: 07 August 2025

CaseChat Overview and Summary

The plaintiff, a member of the Legislative Assembly, sought an urgent ex parte injunction to restrain the Leader of the Government in the Legislative Assembly from introducing a motion for his expulsion. This followed the plaintiff's conviction in the District Court for sexual assault and assault with an act of indecency. The defendants were the Leader of the Government and the Speaker of the Legislative Assembly. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the power to expel a member of the Legislative Assembly under the Standing Orders was precluded by section 13A of the *Constitution Act 1902* (NSW), and whether the proposed expulsion motion was being pursued for punitive purposes, thereby engaging principles of procedural fairness or the *Kable* principle. Additionally, the Court considered the circumstances under which an ex parte injunction could be granted, particularly in matters of urgency.

The Court of Appeal held that the power to expel a member under the Standing Orders was not precluded by section 13A of the *Constitution Act 1902* (NSW), as subsection (3) expressly preserved such a power. There was no basis to conclude that the proposed expulsion was for punitive purposes, and even if procedural fairness were required, it had not been denied. The Court found that the principle in *Kable v Director of Public Prosecutions (NSW)* was neither engaged nor infringed by the proposed motion, nor was representative democracy impaired. Regarding the injunction application, the Court reiterated that urgency alone is insufficient to justify proceeding without notice if such a course would defeat the purpose of the relief sought, and that meaningful notification of the time and place of an urgent application, along with electronic service of documents, is generally required.

The Court of Appeal granted leave to the plaintiff under the *Felons (Civil Proceedings) Act 1981* (NSW) to institute the proceedings, vacated an earlier order made by the Supreme Court, dismissed the summons, and ordered the plaintiff to pay the defendants' costs.

Orders

Orders of the court

(1) Grant leave to the plaintiff under the Felons (Civil Proceedings) Act 1981 (NSW) to institute the proceedings.

(2) Vacate order 4 made by the Supreme Court on 4 August 2025.

(3) Summons dismissed.

(4) The plaintiff is to pay the defendants’ costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Ward v Hoenig [2025] NSWCA 180

Most Recent Citation

Jackson v Tamine [2025] NSWSC 1286

Cases Citing This Decision

Jackson v Tamine [2025] NSWSC 1286
Citation 1 (Para 1)

…he ancillary orders should not have been made ex parte . He relied on the following passage from the decision of the Court of Appeal in Ward v Hoenig [2025] NSWCA 180 (at [85]): Urgency absent a risk of defeating the purpose of the relief sought does not relieve a moving party from the obligation of notifying a def…

See all citing cases →

Cases Cited

State of New South Wales v Hamze [2025] NSWCA 22
Citation 1 (Para 47)

…(the “principle of legality”) upon which the plaintiff relied is a principle of statutory construction: note State of New South Wales v Hamze [2025] NSWCA 22 at [58]. It is not apparent that it has any work to do with respect to the scope of that power. The argument seemed to involve not a reading down of any stat…
Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299
Citation 2 (Para 47)

…ltimate and central judicial task and responsibility of giving effect to legislative intention”: Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [86]. It is not a tool to defeat a clear statement of legislative intention.…
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Citation 3 (Para 76)

…requirements of procedural fairness in the circumstances of the case: see Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [33] (Kiefel CJ, Bell and Keane JJ). Although the plaintiff submitted in reply that the present case does not involve an administrative hearing, n…
Egan v Willis [1998] HCA 71
Citation 4 (Para 32)

…f the broader powers of the Houses of the State Parliament, which were expressed by Gaudron, Gummow and Hayne JJ in Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 in the following terms (see also McHugh J at [81], Kirby J at [133(3)] and [140], Callinan J at [189]-[190]):…
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24
Citation 5 (Para 5)

…ial in character and would be contrary to the constitutional principle recognised in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.…
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074
Citation 6 (Para 71)

…ed when Parliament resumed and given a reasonable opportunity to address it: see eg Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 591; [1994] FCA 1074. That conclusion is supported by the letter that the plaintiff’s solicitor sent to the defendants on 4 August 2025. Parts of the letter have been ref…
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64
Citation 7 (Para 79)

…ribed as “due process principles” recognised in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64. As it was put in oral submissions, the argument was developed along two pathways:…
Ainsworth v Criminal Justice Commission [1992] HCA 10
Citation 8 (Para 54)

…reasonable grounds” for expulsion, or such like: cf the statutory criterion considered in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125. The parties did not seek to grapple with the extent to which the criterion is justiciable when applied to expel a member of the Assembly. Even working on th…
R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36
Citation 9 (Para 48)

…the House to judge of the occasion and of the manner of its exercise”: R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162; [1955] HCA 36; see also Egan at [27].…
Willis and Christie v Perry [1912] HCA 12
Citation 10 (Para 39)

…3 (Wallace P), 405 (Sugarman JA). That acceptance was consistent with earlier authority. For example, in Willis v Perry (1912) 13 CLR 592 at 599; [1912] HCA 12, Isaacs J said that the Legislative Assembly “has only the common law implication to depend upon and so has no punitive power at all”. In Armstrong it wa…
Holmes v Angwin [1906] HCA 64
Citation 11 (Para 34)

…evant constitutional function here is the House’s regulation of its own membership. As Griffith CJ said in Holmes v Angwin (1906) 4 CLR 297 at 305; [1906] HCA 64:…
[1962] AC 322 [1962] AC 322
Citation 12

…97; [1906] HCA 64 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 Kanda v Government of Malaya [1962] AC 322 Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 R v Richards; Ex parte Fitzpatrick and Brow…

Legislation Cited

Constitution Act 1902 (SA) 13A
3 mentions (from Para 1)
Crimes Act 1900 (ACT) 61I, 61L
3 mentions (from Para 11)
Electoral Act 2017 (NSW) 30, 76, 83
3 mentions (from Para 60)
Evidence Act 1995 (Cth) 4, 91
3 mentions (from Para 63)
Felons (Civil Proceedings) Act 1981 (NSW) 4, 5
3 mentions (from Para 7)
Uniform Civil Procedure Rules 2005 (NSW) 1.21
2 mentions (from Para 27)
Constitution of Australia (Cth)
1 mention (from Para 80)
Criminal Appeal Act 1912 (NSW)
1 mention

Medium Neutral Citation:	Ward v Hoenig [2025] NSWCA 180
Hearing dates:	07 August 2025
Date of orders:	07 August 2025
Decision date:	07 August 2025
Before:	Bell CJ, Mitchelmore JA, Kirk JA
Decision:	(1) Grant leave to the plaintiff under the Felons (Civil Proceedings) Act 1981 (NSW) to institute the proceedings. (2) Vacate order 4 made by the Supreme Court on 4 August 2025. (3) Summons dismissed. (4) The plaintiff is to pay the defendants’ costs.
Catchwords:	PARLIAMENT – where member of Legislative Assembly convicted in District Court on one count of sexual assault and three counts of assault with act of indecency – where Leader of Government in Legislative Assembly notified convicted member of intention to introduce a motion for his expulsion from the Assembly – where member obtained urgent ex parte injunction – power to expel under the Standing Orders not precluded by s 13A of the Constitution Act 1902 (NSW) - power to expel expressly preserved by s 13A(3) of the Constitution Act – no basis for conclusion that proposed power of expulsion being engaged for punitive purposes - if procedural fairness required, no denial of procedural fairness – representative democracy not impaired by proposed motion – principle in Kable v Director of Public Prosecutions (NSW) neither engaged nor infringed. INJUNCTIONS – approaching the Court ex parte – limited circumstances where proceeding without notice appropriate – urgency of matter is no excuse for non-notification where to do so would not defeat the purpose of the interlocutory relief sought – obligation to provide meaningful notification of time and place of urgent application and electronic service of documentation to be relied upon.
Legislation Cited:	Commonwealth Constitution ch III Constitution Act 1902 (NSW) s 13A Crimes Act 1900 (NSW) ss 61I, 61L Electoral Act 2017 (NSW) ss 30, 76, 83 Evidence Act 1995 (NSW) ss 4, 91 Felons (Civil Proceedings) Act 1981 (NSW) ss 4, 5 Uniform Civil Procedure Rules 2005 (NSW) r 1.21
Cases Cited:	Armstrong v Budd (1969) 71 SR (NSW) 386 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64 Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 Eastgate v Rozzoli (1990) 20 NSWLR 188 Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 Holmes v Angwin (1906) 4 CLR 297; [1906] HCA 64 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 Kanda v Government of Malaya [1962] AC 322 Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157; [1955] HCA 36 Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 State of New South Wales v Hamze [2025] NSWCA…