Solicitor for the fourth Defendant: Australian Government Solicitor

GIBBS C.J., MASON, WILSON, BRENNAN, DEANE AND DAWSON JJ.: Before the Court is an application for an interlocutory injunction directed to Sir George Lush, Sir Richard Blackburn and the Honourable Andrew Wells, three retired judges who have been appointed pursuant to the Parliamentary Commission of Inquiry Act 1986 (Cth) ("the Act"), as a parliamentary commission of inquiry to inquire and advise the Parliament whether any conduct of the plaintiff, Mr Justice Murphy, a member of this Court, has been such as to amount in its opinion to proved misbehaviour within the meaning of s.72 of the Constitution. Ordinarily an application for an interlocutory injunction would be heard by a single justice but because of the gravity and importance of the matter it was deemed proper to constitute a Court of six justices to hear it. The constitution of the Court in this way does not mean that it was appropriate at this stage to advance full argument as though this were the occasion for the final determination of the issues raised by the case, with the result that other cases would have been displaced from the list and other parties disadvantaged. There was no reason why the Court should, in this case, depart from the ordinary procedure when an interlocutory injunction is sought, and that means that except in relation to one of the arguments advanced on behalf of the plaintiff, it will be sufficient to inquire whether there is a triable issue and, if so, whether the balance of convenience favours the grant of an injunction.

2. By s.5(2) of the Act it is provided that in carrying out its inquiry the Commission shall consider only specific allegations made in precise terms. The Commission is to report to the President of the Senate and the Speaker of the House of Representatives its findings of fact and whether any conduct of the plaintiff has been such as to amount, in its opinion, to proved misbehaviour within the meaning of s.72 of the Constitution. The report is to be made on or before 30 September 1986 unless that date is extended by a resolution of each House of the Parliament and the Commission is to submit with its report a record of so much of the evidence before the Commission as the Commission thinks necessary to substantiate its findings of fact and its conclusions: see s.8. The Commission is given compulsive powers to summon witnesses, take evidence, conduct searches and obtain material: ss.11, 12 and 13. For the purposes of its inquiry the Commission may hold hearings (s.14(1)) and at a hearing before the Commission the plaintiff is entitled to appear and to be represented by a legal practitioner at any time during the hearing (s.14(4)). By s.15, the Commission may appoint a legal practitioner to assist the Commission as counsel. Mr Charles, Q.C., has been so appointed.

3. The Commission has expressed the view that the operation described by the word "inquire" may be divided into (a) the collection of information and (b) the consideration of allegations. It has been indicated that it may appoint persons, including policemen, to assist it in its inquiry. The information which is being considered by counsel for the Commission falls into two categories: (a) allegations relating to the plaintiff's conduct in judicial office and (b) allegations relating to the plaintiff's conduct otherwise than pertaining to judicial office. None of the information supplied includes any allegation that the plaintiff has been convicted of any offence. The information contained in category (b) relates both to allegations of breaches of the general law and other matters not constituting breaches of the general law which, if proved, would (it is said) arguably constitute misconduct sufficient to justify removal from office. In each case the allegations cover periods of time commencing both before and after the date of the plaintiff's appointment to the bench.

4. In the course of the proceedings before the Commission, Mr Charles explained what counsel assisting the Commission proposed to do in the process of collecting information, as follows:

"All we are doing is looking at a very substantial volume of material which has been put to us and then sifting or filtering that material, where it is not clear to us whether an allegation is made at all or where it is imprecise or where it has, let us say, not a date attached to it, we are then making inquiries, or propose rather to make inquiries of persons outside for the purpose of seeing if that allegation has definition." "The Commission's view is that it is entitled to gather information, examine it and conduct investigations, if necessary with the assistance of investigators, including members of the police forces if made available, based upon the information to ascertain with what precision is possible exactly what the relevant point, if any, of the information is; and that it is its duty and specifically the duty of counsel assisting, to formulate the specific allegations which emerge from materials received. It considers that this is no more than a realistic interpretation of the various provisions of the Act. In particular it rejects the submission of counsel that the terms of section 5(2) confine the consideration of the Commission to allegations in the required form originating outside the Commission's activities. If confirmation of this view were required, it may be found in the statements of the Minister in charge of the Bill in the Senate in the course of the second reading."

5. Counsel for the plaintiff, in support of the argument that an injunction should be granted, relied on three broad arguments: (1) that the Act is invalid, (2) assuming that the Act is valid, it does not authorize investigations of the kind proposed to be made, and (3) that one of the Commissioners, Mr Wells, is disqualified from taking part in the inquiry.

6. Having heard such argument as was necessary to indicate the contentions on which the plaintiff wishes to rely in relation to the first and second of these arguments we accept that there are, in the sense used in the well-known authorities, serious questions to be determined which, if determined in favour of the plaintiff, would require the grant of an injunction in one form or another. With regard to the third argument, it is not possible to dispose of the matter in that way. It would be wrong to allow the inquiry to proceed before a Commissioner who might prove to be disqualified, even if the balance of convenience appeared otherwise to favour that course. We must therefore decide now whether Mr Wells is disqualified.

7. It is clear that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at p 294. We are prepared to assume, without deciding, that the same principle applies to a Commissioner appointed under the Act. It is argued on behalf of the plaintiff that it might reasonably be apprehended that Mr Wells would not bring an independent and unprejudiced mind to the inquiry, having regard to a statement which he made in 1984 when he was a judge of the Supreme Court of South Australia. On 23 February 1984, an article appeared in the Adelaide Advertiser which discussed a number of matters arising out of tapes and transcripts of telephone conversations suggested to have been recorded by members of the New South Wales Police. Some of these conversations had a reference to a judge who, it is suggested, is the plaintiff. Part of the article was in the following terms:

"In March 1979, the solicitor and the judge discussed the appointment of a contact of the solicitor to a high position in the New South Wales public service. The position was closely related to the solicitor's activities being investigated by federal police although there is no evidence that the appointee actually did favours for the solicitor.

The solicitor asked the judge to lobby the senior politician who would make the appointment and the judge replied that he would.

Later, he rang the solicitor back to tell him that the solicitor's contact had been appointed to the position by the politician, although it is not made clear whether this was as a result of the judge's intervention.

Interestingly, the chairman of the Australian Law Reform Commission, Mr Justice Michael Kirby, has said this sort of thing goes on all the time in judicial circles. It had simply not been made public knowledge before the publication of the transcripts. He said the intervention of judges in public service appointments was part of the netherworld of the legal arena and explained that it was a practice inherited from Britain."

8. In the Adelaide Advertiser of the following day there appeared some comments by Mr Justice Wells, as he then was, on the remarks attributed in this article to Mr Justice Kirby. The article in the Advertiser reports Mr Justice Wells as referring to those alleged remarks and continues as follows:

"Mr Justice Wells, during an unconnected trial in the Supreme Court yesterday, said that the statements were 'irresponsible' and without the 'slightest foundation'. He said he was speaking on behalf of present and former S.A. judges. The implication of two paragraphs in the article, 'more especially of the emotive word "netherworld" is that judges corruptly and wilfully intermeddle in the appointment of officers of all ranks, presumably up to the highest rank in the public service ...'

'Not only does that impute corruption to us but implies that we are from time to time willing to act in flagrant defiance of constitutional principles governing the separation of powers', Mr Justice Wells said.

He said no judge of his acquaintance 'would ever dream of doing such a thing'.

He comprehensively rejected what had been asserted and stated that it was 'utterly false'.

'On behalf of all S.A. judges, as well as on my own behalf, I express my deep resentment of this calumny. It cannot be too soon or too emphatically denied', he said."

9. We were informed by counsel for the plaintiff that part of the material in vol.2 of the report by Mr Justice Stewart, which has been placed before the Commission for its consideration, contains material from which the inference can be drawn that a solicitor, Mr Morgan Ryan, requested the plaintiff to approach the Premier of New South Wales for the purpose of securing the appointment of Mr Jegerow as Deputy Chairman of the Ethnic Affairs Commission, that the plaintiff did approach the Premier and that the appointment was made. It was submitted that the views of Mr Wells on this sort of alleged behaviour are clear and extreme and represent a public prejudgment on the propriety of the activity alleged against the plaintiff. It should be said immediately that we do not know, and could not know at the present stage of the Commission's inquiries, what significance, if any, counsel assisting the Commission or the Commission itself will attach to that alleged incident.

10. The remarks made by Mr Wells were made long before the inquiry was set up and were not made in reference to the plaintiff or his conduct but to rebut the assertions attributed by the writer of the article in the newspaper to Mr Justice Kirby. We, of course, do not know whether Mr Justice Kirby did make remarks to that effect. However, in our experience, it would not be right to say that judges commonly intervene to influence the making of public service appointments or that there is a practice inherited from Britain whereby judges descend into some shady netherworld of dubious behaviour. The remarks of Mr Wells amount to no more than a denial that judges, to his knowledge, engaged in conduct of the kind allegedly described by Mr Justice Kirby, conduct of a kind which Mr Wells regarded, understandably, as contrary to accepted standards of judicial behaviour. It would be preposterous to hold that the expression by a judge of generally held views as to the standards of judicial propriety should be thought to disqualify him from acting in a judicial capacity.

11. The material before us completely fails to raise the slightest doubt that Mr Wells is able to bring an impartial and unprejudiced mind to the consideration of the matters into which he has to inquire. Neither the parties nor the public could reasonably entertain an apprehension that he might not be impartial or unprejudiced.

12. It remains then to consider whether, accepting that there is a triable issue that the Act is invalid, or that on its proper construction it does not authorize the investigations which the Commission proposes to make, the balance of convenience favours the grant of an injunction. Counsel for the plaintiff submitted that if police or other officers conduct, under the authority of the Commission, inquiries of which the plaintiff is unaware, the plaintiff may suffer irremediable damage and may not even know that it is being caused to him. The likelihood of damage of this kind was, in our opinion, exaggerated. The mere conduct of private inquiries, in what we must assume will be a responsible manner, is not likely to cause any real damage to the plaintiff's reputation. Further, no one requires special authority at law simply to make inquiries. There is no suggestion that the Commission will be considering the holding of a public hearing before this Court is asked finally to determine the issues. On the other hand, the Commission's work is inherently urgent and the Act requires its report to be furnished by 30 September unless the time is extended in the exceptional manner for which the Act provides. To prevent its counsel and officers from collecting information would seriously impair its ability to complete its work by that date. On the whole, we are clearly of the view that the balance of convenience requires that the investigations for the Commission should proceed and that the injunction sought should be refused.

Application for interlocutory injunction dismissed.