Gareth James Ward v Ron Hoenig & Ors

Medium Neutral Citation: Gareth James Ward v Ron Hoenig & Ors [2025] NSWSC 1139

Hearing dates: 04 August 2025

Date of orders: 04 August 2025

Decision date: 04 August 2025

Jurisdiction: Common Law

Before: Sweeney J (As Duty Judge)

Decision: See paragraph [13]

Catchwords: PARLIAMENT – where member of the Legislative Assembly convicted in the District Court of one count of sexual assault and three counts of indecent assault – where the Leader of Government in the Legislative Assembly notified convicted member of intention to introduce a motion for his expulsion from the Assembly – whether the power to expel the convicted member exists where a Notice of Intention to Appeal has been filed – whether the expulsion of the convicted member from the Assembly would be contrary to s 13A of the Constitution Act 1902 (NSW)
INJUNCTIONS – approaching the Court ex parte – application to restrain the Assembly from taking action to expel the convicted member before the question of the Assembly’s power under s 13A of the Constitution Act is determined by the Court – orders made

Legislation Cited: Constitution Act 1902 (NSW) s 13A

Cases Cited: Armstrong v Budd (1969) 71 SR (NSW) 386
­­Egan v Willis (1998) 195 CLR 424; [1998] HCA 71
R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157

Texts Cited: Twomey A, The Constitution of New South Wales (2004, Federation Press)

Category: Principal judgment

Parties: Gareth Ward (Plaintiff)
Ron Hoenig (First Defendant)
Greg Piper (Second Defendant)
Helen Minnican (Third Defendant)

Representation: Counsel:
P King (Plaintiff)
Solicitors:
Ridge Legal (Plaintiff)

File Number(s): 2025/297053

Publication restriction: N/A

JUDGMENT

1. SWEENEY J: Mr King of counsel has approached the Court in the Duty List seeking an urgent interim injunction against three defendants. They are not present. The matter is being heard in the absence of the defendants. They were notified by the applicant’s solicitor of his intention to approach the Court and they do not appear. The defendants are Ron Hoenig MP, the Leader of the Government in the Legislative Assembly, Greg Piper MP, the Speaker of the Legislative Assembly, and Ms Helen Minnican, the Clerk of the Legislative Assembly. Mr King appears on behalf of Gareth Ward. He moves on a notice of motion and relies on an affidavit of Mr Ward’s solicitor, Robert Foster, sworn today, to which Mr Foster has annexed correspondence between Mr Hoenig and Mr Ward, and Mr Foster and Mr Hoenig.

2. Essentially what is sought on behalf of Mr Ward is to restrain the defendants from proceeding to take action to expel Mr Ward from the Parliament of New South Wales. Mr Ward holds a seat in the Parliament of New South Wales. He was convicted after a jury trial of four charges on 26 July 2025. One of those charges is sexual intercourse without consent, and the other three are indecent assaults.

3. Mr Hoenig has, by a letter dated 30 July 2025, notified Mr Gareth Ward that when Parliament resumes tomorrow, Tuesday, 5 August 2025, the Legislative Assembly will be asked whether to consider a motion to expel Mr Ward as the Member for Kiama from the House. The letter goes on to say “Should the House decide to consider such a motion, it would do so for its own self-preservation and the orderly exercise of its functions.”

4. Mr Ward is in custody, having been refused bail by the trial judge as of last week.

5. Mr King has raised several matters which he submits justify this Court taking the step of restraining the three defendants. The first is based on s 13A of the Constitution Act 1902 (NSW) (“Constitution Act”). Section 13A provides:

…

(1) If a Member of either House of Parliament—

…

(e) is convicted of an infamous crime, or of an offence punishable by imprisonment for life or for a term of 5 years or more, and is the subject of the operation of subsection (2),

his seat as a Member of that House shall thereby become vacant.

(2) For the purposes of subsection (1) (e), a Member is the subject of the operation of this subsection if—

(a) the Member has not lodged an appeal against the conviction within the prescribed period, or

(b) the conviction has not been quashed on the determination of an appeal… or

(c) such an appeal has been lodged within the prescribed period but has been withdrawn, or has lapsed…

…

6. Mr King has placed before me a Notice of Intention to Appeal against Mr Ward’s conviction, which has been filed. It is dated today. So Mr King submits that the Assembly cannot take steps to expel Mr Ward from Parliament, because he has lodged an appeal against his conviction, or a Notice of Intention to Appeal against his conviction within the prescribed period of 28 days, and that appeal has not yet been determined against him.

7. Furthermore, Mr King submits that if the Parliament were to proceed with the motion, Mr Ward would be disenfranchised, as would the members of his electorate. Thirdly, Mr King submits that there is no necessity for the Assembly to move against Mr Ward now, because he is unable to sit in Parliament, because he is in custody.

8. He has not yet been sentenced. Mr King submits that for the Assembly to expel Mr Ward from Parliament would amount to extrajudicial punishment in advance of his being sentenced, when punishment is only the province of the Court. And lastly, Mr King submits that if the Assembly were to proceed tomorrow to consider the motion to expel Mr Ward, he would be denied natural justice, because he has not been given an opportunity to be heard on the motion, and because he is in custody in the Hunter Region, there would be no mechanism available for him to be present at the hearing, which is his right, to have natural justice in that regard.

9. Mr King seeks an injunction for a short period of time, until Friday, when he seeks that the matter be heard, to determine whether the Assembly has the power to proceed on the motion, or whether s 13A of the Constitution Act preserves Mr Ward’s appeal rights, and whether the exercise of the power to expel Mr Ward is punishment, which is a power only within the province of the Court.

10. I asked Mr King what power I had to restrain the Members of Parliament. He referred me to ­­Egan v Willis (1998) 195 CLR 424; [1998] HCA 71. I have had recourse to the text by Anne Twomey, The Constitution of New South Wales (2004, Federation Press). In that text, Ms Twomey said on the issue of justiciability at [455]:

“The courts may consider whether a power to expel exists and the nature and extent of that power. It is up to the House to determine whether it is appropriate to exercise that power.”

11. She referred to a decision of the High Court in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 and to ­**Armstrong v Budd (1969) 71 SR (NSW) 386. In that decision, in consideration of a power to expel for unworthy conduct, the Court of Appeal said at [398]:

“… this Court has a jurisdiction to determine whether in a particular case the House has exceeded the powers conferred upon it by the Constitution. In the exercise of that jurisdiction the Court will determine whether the limits upon the power of expulsion enjoyed by the House have been exceeded or not…”

12. The question which seems to me to be raised by Mr Ward for determination is not simply whether a power to expel exists, but whether the power to expel him exists in the present circumstances in which he has been convicted of criminal offences, has indicated a notice of intention to appeal, has filed a Notice of Intention to Appeal with this Court, and his appeal has not been determined. So the question is whether the Legislative Assembly has the power to exercise its power to expel Mr Ward from Parliament, or whether to do so in the present circumstances would be contrary to s 13A of the Constitution Act. I am satisfied that this Court has jurisdiction to consider that question, and I am therefore satisfied that I have the power to restrain the three defendants.

13. The restraint is sought for a short period, until Friday. That is a factor I take into account in deciding whether or not I should restrain the defendants. If the defendants are not restrained, they may move tomorrow. It is not clear how quickly their proceedings would proceed, but in order to preserve the status quo of Mr Ward’s position and prevent the Assembly from taking action to expel him before the question of the Assembly’s power under s 13A of the Constitution Act is determined by the Court, in my view the balance of convenience favours me granting the relief sought by Mr Ward. So I will make orders to restrain the three defendants.

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