Re Stephen Joseph Brajkovich; Charles Atkinson and the Western Australian Police Union of Workers v Daniel John O'Dea (Commissioner Appointed Under the Royal Commissions Act 1902 (Commonwealth) Pursuant To Letters Patent Dated [1989] FCA 2; 27 October 1988 and Royal (19 January 1989)

FEDERAL COURT OF AUSTRALIA

Re: STEPHEN JOSEPH BRAJKOVICH; CHARLES ATKINSON and THE WESTERN AUSTRALIAN
POLICE UNION OF WORKERS
And: DANIEL JOHN O'DEA (Commissioner appointed under The Royal Commissions Act
1902 (Commonwealth) pursuant to Letters Patent dated 27 October 1988 and Royal
Commissioner appointed under the Royal Commissions Act 1968 (Western
Australia) pursuant to Letters Patent dated 6 December 1988)
No. WAG 3 of 1989
Crown - Interlocutory Injunctions

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)

CATCHWORDS

Crown - Royal Commission - validity of Letters Patent issued pursuant to powers as Commissioner - whether Commissioner should be restrained from continuing with inquiry power of a Commissioner to summon a person to appear before another Commissioner - nature of commissions - nature of "directions" contained in Letters Patent.

Interlocutory Injunctions - injunction sought to restrain Royal Commissioner - validity of Letters Patent - forceful argument as to invalidity required - consideration of total circumstances of conduct of inquiry - real and appropriate reason required for interference with inquiry - failure to demonstrate particular detriment to be suffered.

Judiciary Act 1903 (Cwth) s.78B

Royal Commissions Act 1902 (Cwth)

Royal Commissions Act 1968 (W.A.)

The State of Victoria v. The Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25

McGuinness v. The Attorney-General of Victoria [1940] HCA 6; (1940) 63 CLR 73

HEARING

PERTH
19:1:1989

Counsel for Applicants: Mr M McCusker, QC with Mr J Quigley

Solicitors for Applicants: Messrs Kott Gunning

Counsel for Respondent: Ms C Bahemia

Solicitor for Respondent: Australian Government Solicitor

Counsel for Intervener, the Attorney-General of the Commonwealth of Australia: Mr E Heenan QC with Ms C Bahemia

Solicitor for Intervener, the Attorney-General of the Commonwealth of Australia: The Australian Government Solicitor

Amicus Counsel: Counsel for relatives of Wayne John Dooler and others: Mr G McIntyre

ORDER

The application be adjourned sine die.

Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

On 19 January 1989, given the urgency of the matter, I gave ex tempore oral reasons for my decision on the interlocutory application brought by the applicants in this matter. I now set out below, in expanded form, those reasons in writing.

2. The applicants in this matter seek the issue of a writ of prohibition against the respondent and an injunction to restrain the respondent from proceeding with the conduct of an inquiry. The applicants also seek, by way of interlocutory relief as a matter of urgency, an injunction, which is the subject matter of this hearing, to restrain the respondent until further order from proceeding with the conduct of an inquiry into the death of Wayne John Dooler ("Dooler") or into any other Aboriginal death in custody in Western Australia.

3. The respondent was represented by counsel at the hearing. Counsel instructed by the Attorney-General of the Commonwealth sought and obtained leave for the Attorney to intervene. In addition I ordered that a copy of the proceedings be served on the Attorney-General for the State of Western Australia and directed that notices be served pursuant to s.78B of the Judiciary Act 1903 (Cwth) the proceedings raising the same issues as ventilated in Boath and Ors. v. Wyvill WAG 184/1988, a matter in which it was considered necessary for such notices to be served.

4. By Letters Patent dated 27 October 1988 ("the Commonwealth Letters Patent") the respondent was appointed pursuant to the Royal Commissions Act 1902 (Cwth) to be a Commissioner to inquire into deaths and any subsequent action taken in respect of such deaths, of Aboriginals and Torres Strait Islanders since 1 January 1988 whilst, inter alia, in police custody as may have occurred or do occur in the State of Western Australia. The respondent was also commissioned to inquire into particular deaths elsewhere in Australia where requested to do so by the Hon. James Henry Muirhead ("Commissioner Muirhead") pursuant to the original Commission issued to Commissioner Muirhead by the Governor-General on 16 October 1987. The respondent was required to provide a report on each death to Commissioner Muirhead for delivery by him to the Governor-General.

5. By Letters Patent dated 6 December 1988 ("the State Letters Patent") the respondent was appointed to be a Royal Commissioner pursuant to the Royal Commissions Act 1968 (W.A.) in terms almost identical to those outlined with respect to the Commonwealth Letters Patent above but with the significant distinction that the respondent was required to report directly to the Governor and not submit his report to Commissioner Muirhead for delivery by him to the Governor pursuant to the original Commission issued to Commissioner Muirhead by the Governor on 21 June 1988. In neither case is the respondent obliged to consult with Commissioner Muirhead on the preparation of the respondent's report, but he is directed to consult with Commissioner Muirhead in relation to the preparation of Commissioner Muirhead's report under the original Commissions.

6. On 16 January 1989 the respondent commenced an inquiry into the death of Dooler who died at Carnarvon Police Station, Western Australia on 19 June 1980 whilst in police custody.

7. In the statement of claim it is alleged that the respondent, in proceeding with the inquiry and in purported exercise of coercive powers conferred on a Commissioner by the Royal Commissions Act 1902 (Cwth) and the Royal Commissions Act 1968 (W.A.), has issued subpoenas to the first and second named applicants requiring each of them to attend and give evidence before the respondent on matters pertaining to the inquiry into the death of Dooler.

8. The applicants argue that the respondent has not been validly appointed as a Commissioner under the Commonwealth Letters Patent or State Letters Patent and that accordingly a writ of prohibition should issue against him or an injunction should be granted to restrain the respondent from proceeding further with the conduct of the inquiry and from exercising or purporting to exercise coercive powers pursuant to either the Royal Commissions Act 1902 (Cwth) or the Royal Commissions Act 1968 (W.A.) or both of them. The affidavit of Paul Damian Price, sworn 18 January 1989, deposes to the fact that the first and second applicants would be compelled to give evidence before the inquiry either today or tomorrow. It appears that, in fact, the first applicant has already given evidence before the inquiry and that it is only in respect of the second applicant that this afternoon's interlocutory hearing has any significance.

9. It should be noted that the subpoena directed to the first applicant, which is exhibited to the affidavit of Mr Price, in fact was issued by another Commissioner, L.F. Wyvill, QC, on 18 November 1988. The subpoena directed to the second applicant was not placed in evidence before me, however, the affidavit of Mr Price deposed to his belief that the subpoena was "in similar terms to that received by the first applicant".

10. The form of subpoena raises an issue as to the power of a Commissioner to summon a person to appear before another Commissioner. By the subpoena directed to the first applicant, Commissioner Wyvill purports as "a member of the Commission under Letters Patent" to summon the first applicant to appear before "the Commission". Although the Letters Patent appointing Commissioner Wyvill were not placed before me, it may be assumed that they are in similar terms to those appointing the respondent. A perusal of both the Commonwealth Letters Patent and State Letters Patent indicates that the respondent has been appointed a Commissioner or as a single member Commission to conduct an inquiry into Aboriginal deaths in custody in Western Australia and into particular deaths of that type occurring elsewhere in Australia if requested to do so by Commissioner Muirhead "under the original Commission". The scope of the inquiry, in so far as it is concerned with deaths outside Western Australia, is delineated by the extent to which the respondent is requested to inquire into particular deaths outside Western Australia by Commissioner Muirhead exercising his powers under the original Commission. The respondent is obliged to consult with Commissioner Muirhead as to the methods and procedures to be used in the respondent's inquiry and to use such methods and procedures as may be recommended by Commissioner Muirhead.

11. But the inquiry, particularly under the State Letters Patent, remains the inquiry of the respondent personally and he is not appointed as one of several Commissioners commissioned to conduct a single inquiry.

12. Both the State Letters Patent and Commonwealth Letters Patent "direct" the respondent to undertake or not undertake inquiry or further inquiry into particular deaths as so requested by Commissioner Muirhead under the original Commission. It is not clear whether the direction to comply with Commissioner Muirhead's requests is intended to apply to deaths wherever occurring or only to those deaths occurring elsewhere in Australia than Western Australia. If it is the former it would operate as an apparent qualification upon the power to inquire already granted, but if it is the latter it would be a mere corollary to the limited power to inquire into deaths outside Western Australia and an acknowledgement that the power was able to be contracted if Commissioner Muirhead withdrew a request for an inquiry to be undertaken into a particular death elsewhere in Australia. Alternatively, the direction may operate as an instruction to carry out such delegated duties as Commissioner Muirhead may be empowered to distribute under the original Commissions in the same way in which the Letters Patent instruct the respondent to consult with Commissioner Muirhead in relation to the preparation of Commissioner Muirhead's reports and recommendations under the original Commissions. Read in that way the directions would have no impact upon the respondent's power to conduct an inquiry previously granted at the commencement of the Letters Patent. If it is argued that the respondent and Commissioner Wyvill may act as delegates for Commissioner Muirhead in addition to conducting their own commissioned inquiries and that one delegate may issue a subpoena returnable before another delegate, it may be necessary for such a subpoena to be issued on behalf of and in the name of Commissioner Muirhead. The question was not raised or argued before me in this hearing and it is unnecessary for me to say more about it.

13. As a preliminary observation, I would say that to grant an injunction to restrain the conduct of an inquiry commissioned by Letters Patent would be a serious step as a matter of law. It is a task the Court should not undertake lightly if asked to limit the conduct of activities done under the express authorization of the governments of either Western Australia or the Commonwealth or both of them.

14. A number of elements would need to be made out before a Court should grant such an application. There must be a fairly clear argument in respect of the challenge to the validity of the appointment of the Commissioner sought to be restrained from continuing his inquiry pursuant to his Commission. This does not mean that an applicant must show that he is necessarily bound to succeed in his argument, but he must at least have a clearly defined case which has more than plausible support and be able to show that it is one that could be forcefully argued and maintained.

15. It appears to have been conceded during argument in the similar matter of Boath and Ors. v. Wyvill WAG 184/1988 in the course of an application for injunctive relief that there were serious questions to be tried in that matter, however, the Court was not required to proceed to a determination of whether injunctive relief should issue. In Wyvill the Court was informed that the inquiry would not proceed pursuant to the powers of the respective Commissions until there had been a determination by the Full Court of the issues raised in the case stated to it. In my view, however, it is not sufficient to show merely that there is a serious question to be tried to ground an entitlement to an injunction. A forceful argument as to the invalidity of the Letters Patent issued in an exercise of executive power must be shown to justify the need for intervention. The argument that the grant of a Commission to the respondent to inquire into Aboriginal deaths in custody occurring outside the State of Western Australia displays insufficient nexus with matters of concern or relevance to the State of Western Australia, and that the grant is, therefore, invalid for the purpose of the Royal Commission Act 1968 (W.A.), is an argument that is not compelling on its face and in the absence of a circumstance of urgency should be an argument upon which the State of Western Australia should have the opportunity of being heard before a restraining order is directed to the State's appointed Commissioner.

16. However, for the reasons I will now outline, it is unnecessary for me to determine now whether such a forceful argument exists. Before an injunction may be granted there should be consideration of all the relevant circumstances of the particular matter in respect of which injunctive relief is sought. In this case it involves consideration of how the inquiry has been conducted, the likely manner of continuation of its conduct and the risk, if any, of harm or damage that its continuation may present. The latter requirement must be specifically considered in the light of the prospect of the inquiry being held to be invalid.

17. It is not enough to show that there may be inconvenience involved in continuing with the inquiry coupled, of course, with a forceful argument as to its invalidity. The applicants would need to demonstrate some real and appropriate reason other than mere inconvenience to warrant interference by the Court.

18. The Letters Patent appointing the respondent as a Commissioner are of relatively recent origin; the Commonwealth and State Letters Patent are dated 27 October 1988 and 6 December 1988 respectively. However, as outlined above, the respondent's Commissions carries with them some subordination to the original Commissions granted to Commissioner Muirhead on 16 October 1987 and 21 June 1988. The community has an interest in seeing that that inquiry is progressed and determined as speedily as is practically possible.

19. A number of countervailing considerations to be balanced against this public interest were raised by Mr McCusker on behalf of the applicants. Mr McCusker argued that, in giving evidence before the inquiry, the second applicant may expose himself to liability to penalties under State or Commonwealth Acts if he refused to answer questions directed to him notwithstanding that the inquiry may later be found to be invalid. Furthermore, he may not receive the benefit of the statutory privilege in respect of self-incriminating evidence obtained from the applicant during the course of his examination if the inquiry is later held to be invalid. Mr McCusker also raised the prospect of the loss of the statutory protection enjoyed by the first and second applicants with respect to defamation proceedings if the inquiry were held to be invalid. In my view these are significant, live issues and must certainly be seriously considered in assessing the balance of convenience. However, they are not matters to be considered in isolation from the relevant factual background and left to speculation. As the matter now stands before me, I perceive a certain lack of urgency and absence of appropriate material to identify any particular detriment that the second applicant may suffer as a result of a refusal to grant an injunction in the terms requested this afternoon.

20. Firstly, it has been deposed by Ms Jordan, a solicitor assisting the respondent, that the respondent does not intend to require the second applicant to appear before him at Carnarvon upon the subpoena that has been issued against him. It is said that the respondent will call evidence from the second applicant at Perth at a convenient time. Secondly, there is nothing in any of the material before me which warrants any apprehension on the second applicant's part of a specific or peculiar detriment that may befall him if he gives evidence pursuant to the subpoena so as to warrant interference with the conduct of the inquiry.

21. There would be no cause for the grant of an injunction grounded solely on the applicant's ability to show that there was a forceful argument in respect of the invalidity of appointment of the respondent. It is to be remembered that the argument as to invalidity is itself tied to the use of coercive powers. Shorn of the use of such powers, a commission of inquiry remains duly appointed by the exercise of Crown or executive powers. (See The State of Victoria v. The Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 per Gibbs C.J. at p 51; McGuinness v. The Attorney-General of Victoria [1940] HCA 6; (1940) 63 CLR 73 per Dixon J. at pp 98-99.)

22. Bearing in mind that in any event the Court should be reluctant to interfere in matters such as these unless there is a clear need for it, the circumstances of this case,in my view, do not warrant any step to be taken at this time to enjoin the respondent from conducting the inquiry he has embarked upon. However, although not persuaded that the Court should make any order, I do not propose to dismiss this application. The reason for my refusal to grant relief at this stage is that, on the basis of the evidence placed before me this afternoon, there is no present and identifiable threat to the applicants, in particular the second applicant, to warrant interference with the inquiry. That is not to say that at some later time sufficient material could not be produced to this Court. It is, therefore, appropriate to leave the application on foot as an adjourned application in the event that, if the stated intention of the respondent to call the second applicant at a more convenient time is a matter that causes some real or potential detriment to the second applicant identified by appropriate additional material placed before this Court, the Court may consider that material without the need for a fresh application to be filed.

23. Furthermore,I adjourn the application in this matter in the knowledge that it was brought on as a matter of urgency when the applicants did not have the benefit of the knowledge of matters that have now been deposed to in the affidavit of Ms Jordan filed on behalf of the respondent.

24. So, for those reasons, there will be no order on the application as sought. There will be liberty to have the application re-listed subject to a further affidavit in support being filed. I will order that costs be reserved.