Ward v Hoenig

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.