Easton v Griffiths [1995] HCA 38; (1995) 130 ALR 306; (1995) 69 ALJR 669 (20 July 1995)

HIGH COURT OF AUSTRALIA

BRIAN MAHON EASTON v CLIVE EDWARD GRIFFITHS AND OTHERS
S. 95/002
Number of pages - 9
[1995] HCA 38; (1995) 130 ALR 306, (1995) 69 ALJR 669

HIGH COURT OF AUSTRALIA
TOOHEY J

CATCHWORDS

HEARING

PERTH, 18 July 1995
20:7:1995

ORDER

Plaintiff's summons for interlocutory injunction dismissed. Plaintiff to pay the costs of the first defendant, the second defendant, the fourth defendant and the fifth defendant.

DECISION

TOOHEY J. The plaintiff has filed a writ in this Court seeking declaratory relief of a wide ranging nature in relation to the proceedings of a Royal Commission ("the Commission") constituted on 9 May 1995 appointing Kenneth Henry Marks QC ("the Commissioner"), the sixth defendant, to inquire into and report on the circumstances surrounding the presentation of a petition to the Legislative Council of the Parliament of Western Australia by John Halden, the third defendant, on behalf of Brian Mahon Easton, the plaintiff.

2. The appointment of the Commission and its terms of reference read as follows:

"To: Kenneth Henry Marks QC:
and consent of the Executive Council, I, the Lieutenant-Governor and deputy of the governor -

(1) Appoint you to be a Royal Commission to inquire and report on whether the circumstances and events preceding and following the presentation of a petition to the Legislative Council of the Parliament of Western Australia on 5 November 1992 by the Honourable John Halden MLC on behalf of Brian Mahon Easton involved conduct that was an improper or inappropriate use of executive power or public office or was motivated by improper or inappropriate considerations, and for that purpose to:

(a) Identify all persons who were at the relevant time -
. Ministers of the Crown;

. members of Parliament;

. staff of such Ministers or members acting on or purporting to

act on behalf of or on the instructions of such Ministers or members; or

. holders of public office,

and who -

(i) were directly or indirectly involved in those circumstances or

events, whether in connection with the preparation of the petition or its presentation or the timing of its presentation or in any other manner, or

(ii) knew of or considered the petition or any of its contents

or proposed contents prior to its presentation to the Legislative Council;
(b) Determine the nature and extent of such involvement, knowledge or consideration and the circumstances in which such knowledge was obtained or such consideration took place;
(c) Determine the motivation for the conduct of those persons in the course of such involvement; and
(d) Determine whether and if so when and to what extent such persons communicated information in respect of the petition or of its contents or proposed contents to members of the news media;

(2) Declare that, should you be unable to obtain information relevant to your inquiry because of the operation of Article 9 of the Bill of Rights 1689 (UK) you are required to present an interim report outlining the nature of the information sought to be obtained, the circumstances in which you have been unable to obtain that information, and the reason why obtaining that information would or might assist you in completing your inquiry and report;

(3) Declare that you are to report within 5 months of the issue of this commission and that you may publish interim reports; and

(4) Declare that, by virtue of this commission, you may in the execution of this commission do all the acts, matters and things and exercise all the powers that a Royal Commission may lawfully do and exercise, whether under the Royal Commissions Act 1968 or otherwise.

GIVEN under my hand and the Public Seal of the State at Perth on 9 May 1995.

By the Command of the Lieutenant-Governor and the deputy of the Governor,

RICHARD COURT, Premier".

3. The writ names as defendants, in addition to those already mentioned, Clive Edward Griffiths, the President of the Legislative Council, as first defendant; Carmen Mary Lawrence who was at material times until February 1993 the Premier of Western Australia, as second defendant; Peter Gilbert da Conceicao Foss who was Chairman of the First and Second Select Committees of the Legislative Council referred to in the statement of claim, as fourth defendant; and Richard Fairfax Court who is and has been since February 1993 Premier of Western Australia, as fifth defendant. Of the defendants, only the fifth defendant took an active part in the present proceedings.

4. The statement of claim is complex and repetitive. It attacks various recommendations of the First and Second Select Committees and resolutions of the Legislative Council giving effect to those recommendations. The validity of those recommendations and resolutions does not directly arise on the present application. At most, they provide a background to the issues presented by this application. The relief presently sought is an order restraining the Commissioner, until judgment in the action or further order, from conducting any hearings, whether in public or private, under his terms of appointment and from submitting any report of that inquiry, other than the interim report referred to in par.(2) of his instrument of appointment.

5. There is clearly an urgency about this matter, not least from the point of view of the Commissioner and those involved in the Commission, so that they know where they stand. The urgency is heightened by the fact that an action was brought in the Supreme Court of Western Australia a short time ago by the second and third defendants in which they challenged the validity of the Commission on grounds which would seem inevitably to involve some of the same issues presented to this Court. On 10 July 1995, in the Supreme Court, Steytler J. dismissed a claim for interlocutory injunctive relief(1). The Commission began its substantive hearings on 17 July. On 17 July the plaintiffs in the Supreme Court action (the second and third defendants before this Court) sought an interim injunction against continuance of the Commission pending the hearing of an appeal against the judgment of Steytler J. At the time of the hearing in this Court on 18 July that application was part heard. Early on the morning of 18 July there was a further application in the Supreme Court for an interim injunction to restrain the Commissioner from proceeding. When the hearing before this Court concluded on the afternoon of 18 July, the fate of the two applications in the Supreme Court was unknown to this Court(2).

6. Except in one respect, the fifth defendant has not questioned the original jurisdiction of this Court to determine the various issues presented by the statement of claim. Jurisdiction is claimed on the footing that the action consists of a number of matters arising under and involving the interpretation of the Commonwealth Constitution(3). Once the jurisdiction of the Court is attracted, the Court may determine all matters in controversy between the parties so as to avoid multiplicity of proceedings(4). Clearly it is not enough, in order to attract the jurisdiction of the Court, merely to assert that matters arising under the Constitution are involved. It must appear that the claim is not merely colourable. Some of the matters raised by the statement of claim seem to be beyond the jurisdiction of the Court. But there are matters which prima facie involve the Constitution and its interpretation and I proceed, for present purposes, on the basis that there is jurisdiction to entertain the action(5).

7. If it be accepted that prima facie the jurisdiction of the Court is attracted by the matters raised in the statement of claim, some of the issues raised are important. How far in this regard the plaintiff's case has merit is another matter. But for reasons which will appear it is unnecessary to go very far into the question of merit. There is a further question which is, in part, one of the plaintiff's standing in relation to all the issues raised in this action but more directly relates to his interest in restraining the Commissioner from carrying out his functions. That is something which can only be assessed by reference to the matters pleaded in the statement of claim and I shall refer to it again later in this judgment.

8. The background to the appointment of the Commission was a petition presented by the third defendant to the Legislative Council on behalf of the plaintiff. (In describing this background I draw on the judgment of Steytler J. to which I have already referred.) The petition related to proceedings in the Family Court of Western Australia between the plaintiff's then wife and himself. It is unnecessary to refer to the petition in any detail. It is enough for present purposes that the petition alleged that the plaintiff's wife and her sister had given false evidence in the Family Court proceedings and that documentary evidence of a highly confidential nature had been provided to the plaintiff's wife by the fifth defendant who was then a member of the Legislative Assembly though not yet Premier.

9. The First Select Committee, established to consider whether there had been any "breach of the privilege of the House in the preparation, presentation, use and promotion of the petition", reported that the petition had been misleading in several respects which, again, it is unnecessary to detail. The Legislative Council, accepting the recommendations of the First Select Committee, resolved that the plaintiff be adjudged guilty of a breach of the privilege of the Legislative Council and that he unreservedly apologise in writing to the Legislative Council for having petitioned it in a misleading manner. The plaintiff having failed to comply with the resolution of the Legislative Council, a Second Select Committee was established. The recommendation of that committee led to further resolutions of the Legislative Council, culminating in the issue of a warrant committing the plaintiff for a serious breach of privilege and requiring him to be held at the pleasure of the Legislative Council.

10. Subsequently, and in the light of events within and without Parliament, the Commission was established. Essentially the Commissioner is instructed to inquire and report whether the circumstances and events surrounding, but not including the presentation of, the petition involved an improper or inappropriate use of executive power or public office or was motivated by improper or inappropriate considerations. For that purpose the Commissioner is required to identify the persons involved in those circumstances or events, but only so far as they are ministers of the Crown, members of Parliament, staff of ministers or members, or holders of public office. The plaintiff was Public Service Commissioner but had ceased to hold that position at the time of the proceedings in the Family Court. It is clear that he was not the holder of a public office "at the relevant time" as mentioned in the terms of reference.

11. Nevertheless, the plaintiff submits that, in relation to the circumstances and events preceding and following the presentation of the petition, conduct that was "motivated by improper or inappropriate considerations" is conduct into which the Commissioner must inquire even if it be conduct by a person not answering any of the descriptions in par.(1)(a) of the terms of reference. He further submits that in so far as his conduct in relation to the petition has been impugned by the Legislative Council, the Commissioner should inquire into that conduct. He goes further and says that in meeting his obligations under the terms of reference, the Commissioner must inquire into the conduct of members of the Legislative Council, including conduct relating to the resolutions against him. The fifth defendant contends that sub-par.(a) of par.(1) of the terms of reference must be read conjunctively with what precedes it so that the conduct of a person not answering one of the descriptions in sub-par.(a) is only a relevant matter for inquiry if it bears on the conduct of a person answering one of those descriptions. Furthermore, the defendant argues, the actions of the Legislative Council were too late in time to be regarded as events following the presentation of the petition. And, in relation to persons to whom the terms of reference relate, the fifth defendant submits that any inquiry is subject to Art.9 of the Bill of Rights 1689 (U.K.). I shall say more about Art.9 later; at this point I am concerned to say something as to the scope of the inquiry so far as it relates to the conduct of the plaintiff.

12. It may seem curious that the plaintiff contends for a construction of the terms of reference that could involve his own conduct. That, I gather from his counsel, is because he wishes to vindicate his own actions before the Commission and thereby restore the damage which he says has been done to his reputation by the resolutions of the Legislative Council and the publicity surrounding them. It is for the Commissioner to determine the scope of his inquiry, subject to any decision on the matter by a court of competent jurisdiction. All that need be said at this stage is that the plaintiff's submission as to the scope of the terms of reference is fairly arguable. Since his standing generally in the action was not challenged, he has a sufficient interest to bring the present application.

13. Several paragraphs of the statement of claim relate to Art.9 of the Bill of Rights which is incorporated, though not in express terms, in s.1 of the Parliamentary Privileges Act 1891 (W.A.). Article 9 reads:

"That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament."

Recognising that Art.9 may present an obstacle to the obtaining of information relevant to the inquiry, par.(2) of the terms of reference requires the Commissioner to report, by way of interim report, any inability to obtain such information by reason of the provision.

14. The plaintiff contends that the Commission is not "any Court or Place out of Parliament" within the meaning of Art.9 and that the Commissioner is not prevented thereby from inquiring into the conduct of those members of the Legislative Council who resolved that he was in breach of parliamentary privilege and dealt with him accordingly. He reinforces that contention by emphasising that a Royal Commission is not a court, that the Commissioner has been appointed pursuant to the provisions of the Royal Commission Act 1968 (W.A.) to inquire into such matters as are contained within his terms of reference and that, in any event, the freedom of communication in respect of political matters derived from the Commonwealth Constitution(6) overrides any limitation imposed by Art.9.

15. There is a difference in the approach taken by the Australian and English courts to the operation of Art.9(7). But the plaintiff was unable to offer any authority which went so far as to hold that the inquiry of a Royal Commission was not affected by Art.9. Counsel for the plaintiff drew attention to McGuinness v. Attorney-General (Vict.) (8) as authority for the proposition that a Royal Commission can investigate whether there has been a breach of parliamentary privilege. But on my reading of the judgments in that case, it does not assist the plaintiff's argument.

16. But even if the plaintiff has an arguable case in this regard, it does not justify the injunctive relief which he seeks. Much was made by the plaintiff of the judgment of Steytler J. which, it was said, bound the parties to the litigation in the Supreme Court, including the Commissioner, to the proposition that Art.9 was an impediment to the inquiry. Certainly Steytler J. canvassed the scope and operation of Art.9, though in a context where the plaintiffs (that is, the second and third defendants in this Court) were relying upon the provision as a limitation on the Commissioner's inquiry. But his Honour was hearing, as this Court is hearing, a claim for interlocutory relief. He was not reaching a concluded view on the matter as is apparent from the following passage in his judgment(9):

"It will be plain from what I have already said that the issues sought to be raised on behalf of the plaintiff under this head pose fundamental constitutional issues of considerable difficulty which are entirely unsuitable for resolution in the course of urgent interlocutory proceedings."

17. For the purposes of the present proceedings the focus must necessarily be on the conduct of the Commission, bearing in mind the course of the proceedings in the Supreme Court and the likely course of proceedings in this Court. It is against that background that any decision may be made which will prevent the exercise of substantially all of the Commissioner's functions until the determination of the issues presented by the statement of claim. Although the present application seeks to prevent the Commissioner from conducting any hearings, the plaintiff's real complaint seems to be that the Commissioner may be unduly hampered in conducting those hearings by Art.9 of the Bill of Rights and that he should be free to adduce evidence from any relevant source, including Parliamentary proceedings. In that event questions immediately arise. Why should this Court restrain the Commissioner from continuing his inquiry? Is what the plaintiff seeks really a direction as to how the Commissioner should conduct his inquiry? If the Commissioner proceeds on a basis which is later held to be unnecessarily limited, is this a matter for the Court at this stage, particularly when regard is had to par.(2) of the appointment which contemplates that very possibility?

18. The Commissioner may decide that Art.9 is not an obstacle to obtaining the information necessary to his inquiry. In that case the injunction would only serve to prevent him reaching that decision. He may, on the other hand, decide that Art.9 does prevent him from obtaining all necessary information. In that event he will, no doubt, report in accordance with par.(2) of his appointment. It may be said that his inquiry will accordingly be unduly limited. That may be so and that very possibility is recognised in the terms of his appointment. It is not for the Court to prescribe the Commissioner's terms of reference; this, in effect, is what the plaintiff is asking.

19. I do not overlook that the statement of claim seeks to have declared void the proceedings of the First and Second Select Committees and the Legislative Council in so far as they relate to the plaintiff. That aspect may raise a question as to the respective roles of Parliament and the courts. The plaintiff also relies upon immunities said to be derived from the Commonwealth Constitution and having the effect of rendering those proceedings void. But these matters are not germane to the interlocutory injunctive relief presently sought which is aimed directly at the proceedings of the Commission.

20. In so far as the plaintiff challenges the action brought in the Supreme Court by the second and third defendants as constituting an abuse of the process of the Supreme Court(10), this is a matter for the Supreme Court, subject of course to any application for special leave to appeal to this Court from a judgment of that Court. In any event, it cannot be relied upon by the plaintiff in support of the application for an interlocutory injunction. In particular, it is not a matter which gives the plaintiff any standing in the action in this Court. These comments apply with equal force to the plaintiff's attempt in the statement of claim(11) to have this Court deal with a claim said to have been made by the second defendant that proceedings in Cabinet may not be the subject of inquiry by the Commissioner, a claim which is before the Supreme Court.

21. There is an additional claim by the plaintiff that he will be denied procedural fairness by the Commission unless he receives financial assistance for his legal costs associated with his appearing at hearings of the Commission(12). Why this should justify an injunction to prevent the Commissioner from proceeding in any way with his inquiry is hard to see. Much, indeed most it would seem, of the Commissioner's inquiry will not touch the plaintiff at all. No doubt the Commissioner is required to accord procedural fairness to the witnesses before his inquiry(13). But the submission that this requires funding for legal representation for those witnesses is at odds with the decision of this Court in New South Wales v. Canellis (14). The plaintiff sought to distinguish this decision on the ground that he relied upon a constitutional implication which was not before the Court. But, in my view, the language of the judgments in Canellis is strongly against the plaintiff's claim that he will be denied procedural fairness if he is not provided with the funds for legal representation. Submissions made by the plaintiff as to procedural fairness deriving from contract and tort lack substance. Nor does the plaintiff's reliance upon international treaties in this regard advance his case.

22. Counsel for the plaintiff urged upon the Court the need for an interlocutory injunction because, it was said, the Commissioner has only five months from the date of his appointment in which to report (the grant of any extension being a matter for the executive) and that if the plaintiff is unable to obtain a decision on all the matters raised in the statement of claim he will lose the opportunity to vindicate his reputation. This submission misunderstands the nature of the judicial proceedings invoked by the plaintiff and the nature of the Commissioner's inquiry. The validity of the recommendations of the First and Second Select Committees and of the resolutions of the Legislative Council is challenged in this Court. That is not a matter within the Commissioner's terms of reference. And, as I have already noted, there is a real question as to just how far, if at all, the inquiry will touch the conduct of the plaintiff. But that is something for the Commissioner to determine as the inquiry progresses in accordance with its terms of reference. The matters upon which the plaintiff relies in the action in this Court cannot prevent the Commissioner from conducting hearings that are properly within his terms of reference. The plaintiff does not challenge the validity of the Commission. The balance of convenience is therefore strongly against bringing the hearings of the Commission to a halt at this stage.

23. I am not persuaded that the plaintiff has made good any case for this Court to grant the interlocutory relief sought. The application will be dismissed. I shall hear from the parties on the question of costs.

Footnotes
1 Halden v. Marks unreported, Supreme Court of Western Australia, 10 July 1995. 2 Media reports indicate that on 19 July the Supreme Court enjoined the Commissioner from proceeding with the inquiry until the hearing of the appeal against the judgment of Steytler J. 3 See Judiciary Act 1903 (Cth), s.30(a). 4 ibid., s.32. 5 See Attorney-General (N.S.W.) v. Commonwealth Savings Bank [1986] HCA 22; (1986) 160 CLR 315 at 326-327. 6 See Nationwide News Pty. Ltd. v. Wills (1992) 177 CLR 1; Australian Capital Television Pty. Ltd. v. The Commonwealth (1992) 177 CLR 106; Theophanous v. Herald and Weekly Times Ltd. [1994] HCA 46; (1994) 68 ALJR 713; 124 ALR 1. 7 cf. Reg. v. Murphy (1986) 64 ALR 498 and Prebble v. Television New Zealand Ltd. [1994] UKPC 4; (1995) 1 AC 321. 8 [1940] HCA 6; (1940) 63 CLR 73. 9 Halden v. Marks at 20. 10 statement of claim, par.38. 11 pars 43-45. 12 See par.11 of the claim for relief on p.36 of the statement of claim. 13 See Annetts v. McCann [1990] HCA 57; (1990) 170 CLR 596. 14 [1994] HCA 51; (1994) 181 CLR 309.