Ward v Hoenig (2025, NSWCA)

THE COURT: The plaintiff, Mr Gareth Ward MP, is the Member for Kiama in the Legislative Assembly in the New South Wales Parliament. On 25 July 2025 he was convicted in the District Court of one count of sexual intercourse without consent and three counts of assault with act of indecency, following a trial by jury. Shortly thereafter he was remanded in custody pending sentence. The sentencing hearing has been listed for 19 September 2025.

On 30 July 2025 the Leader of the Government in the Legislative Assembly, Mr Ron Hoenig MP (the first defendant), wrote to the plaintiff notifying him that when Parliament resumed on Tuesday 5 August 2025 it would be asked to consider a motion to expel him from the House. On Monday 4 August 2025 the plaintiff brought proceedings in the Supreme Court seeking declaratory and injunctive relief directed to this foreshadowed motion. The second and third defendants are, respectively, the Speaker and the Clerk of the Legislative Assembly. Late on that day the plaintiff sought and was granted an ex parte interlocutory injunction by the Common Law Duty Judge, Sweeney J, restraining the defendants from taking any steps to expel or otherwise resolving to expel the plaintiff.

The following day, Tuesday 5 August 2025, Sweeney J made an order removing the proceedings into the Court of Appeal. At a directions hearing that same day, Ward P made orders listing the plaintiff’s summons for final hearing today, along with the hearing of a motion filed by the defendants to discharge the interlocutory injunction.

The relief sought in the plaintiff’s summons relevantly was (noting that the plaintiff applied to amend prayer 6, as addressed further below):

1. A declaration that the Defendants have no lawful power constituted as the Legislative Assembly of New South Wales to expel the Plaintiff from Parliament in circumstances where, the Plaintiff having been convicted of an offence, under section 13A of the Constitution Act 1902 (NSW) has not been sentenced and has appealed but his appeal under Criminal Appeal Act 1912 (NSW) section 12 is yet to be heard and resolved, or under other constitutional or valid statutory authority.

2. A declaration that any purported resolution by the Legislative Assembly to expel the Plaintiff is ultra vires and void.

​3. A declaration that the Defendants in the premises set out in the letter of the First Defendant to the Plaintiff dated 30 July 2025 have no authority to expel the Plaintiff from the Legislative Assembly of New South Wales.

4. A declaration that the Plaintiff is entitled as a citizen of New South Wales and member of Parliament to natural justice with respect to the proposed resolution by his colleagues in the Legislative Assembly of New South Wales.

5. A writ of prohibition to prevent the Defendants from taking any further steps as threatened by letter of the First Defendant to the Plaintiff dated 30 July 2025.

6. An injunction restraining the Defendants, whether by themselves, their officers or agents, from taking any steps to implement or act upon any resolution or decision to expel the Plaintiff from the Assembly pending the determination of this Honourable Court of the proceedings herein.

The issues raised in the matter by the plaintiff are as follows:

Arguments were also made by both sides as to whether the interlocutory injunction should be maintained. We address these issues in turn below, after first outlining the context in which they arise. In short, none of the plaintiff’s arguments support the declaratory and injunctive relief sought. As a consequence the interlocutory injunction should be lifted and the proceedings dismissed with costs.

We note that given the plaintiff is in custody, having been convicted of a serious indictable offence, he may need leave to proceed pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). A grant of leave was not opposed and such a grant should be made, if necessary, under s 5 of that Act.

The evidence adduced in the hearing was very limited, consisting of two affidavits sworn by the plaintiff’s solicitor and a copy of the plaintiff’s notice of intention to appeal his conviction. The defendants did not adduce any evidence.

The plaintiff was elected as the Member for Kiama in March 2011. He was then a member of the Liberal Party. During his time as a member of the Legislative Assembly he has held a number of governmental offices, including as a Minister.

On 22 March 2022 the plaintiff was charged with a number of criminal offences. The plaintiff was suspended by the Legislative Assembly from 24 March 2022 until the conclusion of that parliamentary term in March 2023. He resigned from the Liberal Party on 2 February 2023 and thereafter sat on the crossbench as an independent. The plaintiff was re-elected as the Member for Kiama in the Legislative Assembly at the State general election held in March 2023. The new Government accepted recommendations from a report completed by the Parliamentary Privileges Committee that the plaintiff should not be suspended from Parliament.

On 25 July 2025 the plaintiff was found guilty by a jury, and then convicted, of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) and three counts of assault with act of indecency contrary to s 61L of the Crimes Act. A few days later the plaintiff was remanded in custody. The plaintiff’s sentencing proceedings are scheduled to occur on 19 September 2025. The plaintiff’s notice of intention to appeal against his convictions was filed in the Court of Criminal Appeal on 4 August 2025.

On Wednesday 30 July 2025 Mr Hoenig wrote to the plaintiff, care of his solicitors (30 July letter). After referring to the plaintiff’s convictions, Mr Hoenig said the following:

When Parliament resumes on Tuesday 5 August 2025, the Legislative Assembly will be asked whether to consider a motion to expel you as the Member for Kiama from the House. 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.

I am sure you would appreciate that in view of the verdict of the jury convicting you of serious criminal offences that the House needs to consider whether your continued membership of the House requires it to act to protect the high standing of the Parliament so it may discharge with the confidence of the community the great responsibility that it bears.

I have been advised today that you are now in custody and will be unable to be present next Tuesday should the House determine that an expulsion motion be considered. Accordingly, I invite you to submit to me yourself or anyone on your behalf any statement or material you would want the House to consider prior to it making any determination by 9 am on Tuesday, 5 August 2025.

[emphasis in original]

The plaintiff’s solicitors sent a letter to the first defendant in response on Monday 4 August 2025, copying in the second and third defendants. The solicitors wrote that “there is no practical or other reasonable necessity nor … other proper reason to move against him now as proposed in the letter”. They outlined various arguments against the motion proceeding, and said:

In light of the above, we submit that the Assembly should:

• Defer or set aside the proposed expulsion motion;

• Allow the judicial process — sentencing and appeal — to proceed in accordance with the rule of law;

• Recognise that any premature expulsion lacks constitutional legitimacy and will be subject to judicial challenge.

The Assembly need not act precipitously. With respect it need only act lawfully.

Should this matter proceed regardless, our client will take all necessary legal action to protect his rights, the rights of his constituents, and the constitutional framework that binds us all.

Please provide your assurance that you will by 2:00pm today Monday, 4 August 2025, otherwise we will commence urgent proceedings in the Supreme Court of NSW without further notice to you

[emphasis in original]

On the afternoon of 4 August 2025 the first defendant responded to that letter, saying simply: “I refer to your letter of 4 August 2025 and advise I propose to give notice to the Legislative Assembly, tomorrow, in accordance with Standing Order 118”. That standing order relevantly notes that various matters, including expulsion of a Member, constitute “Business with Precedence”.

The plaintiff filed a summons in the Common Law Division at approximately 2.15pm on 4 August 2025, along with an affidavit of the plaintiff’s solicitor sworn that day.

The plaintiff also filed a notice of motion at 2.59pm on the same day, seeking, amongst other things, orders pending the final determination of the proceedings or further order, restraining the defendants (or their servants or agents) from:

i Introducing, debating or voting on any motion in the Legislative Assembly to expel the Plaintiff; and/or

ii Resolving to expel the Plaintiff as threatened by letter dated 30 July 2025 from the First Defendant to the Plaintiff; and/or

iii Taking any step to effect or enforce the expulsion of the Plaintiff from the New South Wales Parliament.

The motion also sought leave for short service of the application and the summons, together with expedition of the proceedings.

The matter came before Sweeney J, who was the Common Law Duty Judge, at approximately 4.30pm on 4 August 2025. Counsel appeared for the plaintiff. There was no appearance by the defendants, in circumstances explained below.

According to the transcript of the hearing before her Honour, counsel for the plaintiff said the following regarding notice given to the defendants of the summons being filed and/or the listing of the matter for hearing:

we’ve given notice to the other side, extensive notice that this application will be brought on before the Court today. We’ve responded in detail to the letter. All we’ve received – we indicated we’d move at 2.00pm this afternoon. At 3.10pm, [the plaintiff’s solicitor] received a one-line letter from Mr [Hoenig] basically saying that that he was proceeding tomorrow morning.

Counsel later referred to:

circumstances where we’ve given notice to the other side and they’ve just simply refused to respond to us, except by a very short letter saying that – not from the Crown [S]olicitor’s Office, but from Mr Hoenig’s office, simply saying, “We’ve received your letter and we’re going ahead.”

The following exchange took place between her Honour and the plaintiff’s counsel shortly prior to her Honour delivering judgment: ​

HER HONOUR: …Now, you said that you’d notified Mr Hoenig. Did you also notify the other two defendants?

KING: Yes. They were both notified by Mr Foster.

HER HONOUR: So are those letters, was the same letter sent to all? Is that--

KING: Same letter was sent to all of them.

HER HONOUR: Is that with his affidavit, or no?

KING: That’s referred to, I think, in his affidavit. Just let me check. He says he’s sent a letter on 4 August in reply. As I said, he’s received a letter in reply at 3.10 this afternoon. Bearing in mind the form of the letter, which refers specifically to, well, Mr Hoenig copied the Speaker, and so did Mr Foster, and he also sent it to the clerk of the Legislative Assembly, Ms Minnican.

HER HONOUR: Okay. So that’s in the actual body of the letters?

KING: Yes, it is. Page 1 of the letter, p 12 of the affidavit. Copies to, does your Honour see that at the top of the page, p 12?

HER HONOUR: Page 12?

KING: Of the affidavit, the Ridge Legal letter.

The explanation counsel for the plaintiff gave to Sweeney J for the urgency of the application was as follows:

Your Honour, the urgency of the matter in short is that tomorrow morning at 9.00am the Speaker – sorry, the Leader of the House, the first defendant – has informed the plaintiff that he proposes to move a motion to expel him from his seat in the chamber.

Justice Sweeney subsequently delivered a short ex tempore judgment and made ex parte orders restraining the defendants from “taking any steps to expel or otherwise resolve to expel the Applicant as notified by letter from the First Defendant to the Applicant dated 30 July 2025 up to and including Friday 8 August 2025 at 10am”. In the judgment her Honour noted that:

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.

It is apparent that her Honour had, quite reasonably, understood from what she had been told by the plaintiff’s counsel that the defendants had all been notified of the plaintiff’s intended approach to the Court such that they had had an opportunity to appear. That understanding was in fact incorrect.

Her Honour also said the following in her judgment: ​

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 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.

Her Honour listed the matter for directions at 9.30am on Wednesday, 6 August 2025 and ordered that the relevant documents be served on the defendants by 7pm that evening, i.e. 4 August.

The following day, 5 August 2025, Sweeney J removed the matter into the Court of Appeal pursuant to r 1.21 of the Uniform Civil Procedure Rules 2005 (NSW). President Ward listed the matter for directions in this Court shortly thereafter. At that hearing, counsel for the defendants handed up an unfiled notice of motion seeking to discharge the interlocutory injunction. Her Honour made orders directing that the defendants’ notice of motion be filed that afternoon, together with orders for the filing of submissions and a court book. The defendants’ notice of motion was listed for hearing together with the final hearing of the summons at 9.30am today. The defendants subsequently filed their notice of motion seeking to discharge the injunction referred to at [23] above.

The following exchange took place between Ward P and the plaintiff’s counsel as to whether notice was given to the defendants of the listing of the matter before Sweeney J on 4 August 2025:

WARD P: So were [the defendants] notified that it was listed at 4.30 for hearing?

KING: Well her Honour – there’s no specific listing at 4.30. What happened was—

WARD P: I thought you just told me that her Honour then listed it at 4.30? KING: It was stood down till 4.30.

WARD P: Very well then when it was stood down to 4.30 were [the defendants] informed that the matter would be heard by her Honour at 4.30?

KING: I’m not sure, I don’t think that happened but the point is that we told them in accordance—

​WARD P: You told them you were going to go without further notice to them and you chose not to – or your instructing solicitors chose not to tell them when the matter was going to be stood down before her Honour at 4.30.

KING: Well yes your Honour. We submit and they ignored our letter.

…

The second affidavit of the plaintiff’s solicitor, filed today, sets out more detail as to the circumstances in which the urgent orders were sought. It is clear from that affidavit that contrary to proper and usual practice, the plaintiff’s legal representatives had made no attempt to notify the defendants or their solicitor of the summons or the motion, nor of the fact that the matter was to be brought urgently before her Honour that afternoon. Indeed, it is apparent from the affidavit that a deliberate decision was made by the plaintiff’s legal representatives to seek the injunction on an ex parte basis, that is, without notice to the other side. For example, Mr Foster says he spoke to the Duty Registrar and informed her, amongst other things, “that the Plaintiff sought an urgent ex parte injunction”. The significance of this is discussed further below.

Section 13A of the Constitution Act was a central focus of the plaintiff’s arguments. It relevantly states:

13A Further disqualifications

(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 appeals lodged within the prescribed period, or

(c) such an appeal has been lodged within the prescribed period but has been withdrawn, or has lapsed, without being determined, and no other appeal lodged within the prescribed period is pending.

(3) Nothing in this section affects any power that a House has to expel a Member of the House. …

The plaintiff also focused upon Standing Order 254 of the Assembly, which is headed “Expulsion” and provides:

A Member adjudged by the House guilty of conduct unworthy of a Member of Parliament may be expelled by vote of the House, and the Member’s seat declared vacant.

Leaving aside the significance of s 13A, and the argument about Kable, there was no substantive dispute between the parties as to the availability of a power of the Legislative Assembly to expel one of its members. That power is not addressed expressly in the Constitution Act but has been recognised by the common law. It is a manifestation of the broader powers of the Houses of the State Parliament, which were expressed by Gaudron, Gummow and Hayne JJ in Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 in the following terms (see also McHugh J at [81], Kirby J at [133(3)] and [140], Callinan J at [189]–[190]):

[48] The principle derived from the authorities and not challenged on this appeal is that the Legislative Council has such powers, privileges and immunities as are reasonably necessary for the proper exercise of its functions. As Priestley JA emphasised in the Court of Appeal, to decide whether a particular power, here the power of suspension of a member for a limited time from the service of the House, is reasonably necessary for the Legislative Council to perform any constitutional function, it is necessary first to identify that function. [citation omitted]

There is no reason in this context to differentiate the powers of the Legislative Assembly and that of the Legislative Council.

The relevant constitutional function here is the House’s regulation of its own membership. As Griffith CJ said in Holmes v Angwin (1906) 4 CLR 297 at 305; [1906] HCA 64:

The legislative branch always asserted the right to determine of whom its members should consist, and whenever they have thought fit to delegate a part of that duty to another tribunal, as they have done from time to time, they have nevertheless retained control to a certain extent.

The existence and scope of the power of a House to expel a member was addressed by three judges of this Court (strictly sitting as the Supreme Court in Equity) in Armstrong v Budd (1969) 71 SR (NSW) 386. In that case a member of the Legislative Council had been the subject of significant adverse findings in civil litigation relating to his probity. The Council passed a motion that Mr Armstrong “is adjudged guilty of conduct unworthy of a Member of the ​Legislative Council”, was expelled, and his seat was declared vacant. Mr Armstrong then brought proceedings in the Supreme Court challenging the expulsion. It appears that in the meantime an election had been held and another person elected to take his seat (see at 398), although that complication did not need to be addressed. The main relief sought was a declaration that the resolution was beyond the power of the Council and was “null and void” (see at 389 and 398). The Court dismissed the application.

Herron CJ said:

[I]n the absence of express grant the Legislative Council possesses such powers and privileges as are implied by reason of necessity; the necessity which occasions the implication of a particular power or privilege is such as is necessary to the existence of the Council or to the due and orderly exercise of its functions. [at 391]

…

The requirements of necessity must be measured by the need to protect the high standing of Parliament and to ensure that it may discharge, with the confidence of the community and the members in each other, the great responsibilities which it bears. … [T]he power which arises out of necessity arises not only from conduct within the Chamber but may arise also from misconduct outside the House provided it be held to be of sufficient gravity to render the member unfit for service and requiring a decision on the facts that continued membership would tend to disable the Council from discharging its duty and one necessary for protecting that dignity essential to its functions. As to the latter it would seem that conduct involving want of honesty and probity of members is just as relevant a criterion as for example disorderly conduct. [at 397]

Wallace P expressed his conclusion as follows (at 403):

I am of the opinion that the Legislative Council has an implied power to expel a member if it adjudges him to have been guilty of conduct unworthy of a member. The nature of this power is that it is solely defensive – a power to preserve and safeguard the dignity and honour of the Council and the proper conduct and exercise of its duties. The power extends to conduct outside the Council provided the exercise of the power is solely and genuinely inspired by the said defensive objectives. The manner and the occasion of the exercise of the power are for the decision of the Council.

Sugerman JA stated (at 408):

That the proper discharge of the legislative function by the Council demands an orderly conduct of its business is undoubted. That it demands honesty and probity of its members should be equally undoubted. Indeed, the need for removal and replacement of a dishonest member may be more imperative as a matter of self-preservation, than that of an unruly member.

All members of the Court accepted that the power did “not extend to justify punitive action”: at 395 (Herron CJ); see also 401 and 403 (Wallace P), 405 (Sugarman JA). That acceptance was consistent with earlier authority. For example, in Willis v Perry (1912) 13 CLR 592 at 599; [1912] HCA 12, Isaacs J said that the Legislative Assembly “has only the common law implication to depend upon and so has no punitive power at all”. In Armstrong it was argued expulsion for misconduct was punitive. The argument was not accepted. Herron CJ, for example, explained (at 396):

in a proper case a power of expulsion for reasonable cause can be exercised provided that the circumstances are special and its exercise is not a cloak for punishment of the offender. On this aspect an analogy is seen in the order that a barrister be disbarred on the ground of unfitness. Such an order is entirely protective and notwithstanding that its exercise may involve great deprivation to the person disciplined, there is no element of punishment. [citation omitted]

The existence of the power of expulsion is referred to and assumed in s 13A(3) of the Constitution Act. It can be noted in passing that to speak of the power as “implied” raises a question as to in what document or source of power the implication is to be found. It may be that the power can be understood to be implied in and by the terms of the Constitution Act insofar as they establish the two chambers of the State Parliament, when those provisions are understood in the context of the system of representative and responsible government. It is not necessary to examine that issue further.

The plaintiff did not challenge the authority of Armstrong per se. However, he did argue that it had been overtaken to some extent by the enactment in 2000 of the current version of s 13A of the Constitution Act. The plaintiff said of the provision that:

Subsections (1)–(2) confirm that disqualification only occurs upon conviction and the absence of appeal outside the prescribed period. Its legal operation and effect taken with subsection (3) is to qualify the previous common law position of an untrammelled right for the Assembly to engage the common law privilege, to allowing in a proper case for the privilege or power should it be applicable to be engaged. …

[Subsection (3)] is general in character and refers not to the right but the “power” ie privilege and not to the occasion of the operation of the power but to its existence. Hence sub-section 3 does not offer a discretionary override of subsections 1 and 2, rendering the right of appeal futile and otiose in the present circumstances. The right being substantive the principle of legality also supports a construction that deferral pending exercise of a right of appeal does not deny or qualify the power, for upon acquittal it may still be utilised.

​[emphasis in original]

The plaintiff’s argument is unsustainable. Section 13A provides for certain automatic disqualifications from the Houses of Parliament. One of those disqualifications would potentially be applicable here, relating to having been “convicted of an infamous crime, or of an offence punishable by imprisonment for life or for a term of 5 years or more”. But that automatic operation is qualified by s 13A(2) which in effect postpones the disqualification pending the determination of an appeal which has been lodged (it is sufficient here, incidentally, to assume that lodging a notice of intention to appeal – as the plaintiff has done – would trigger that postponement). The first defendant did not suggest in the 30 July letter that this provision applied to the plaintiff.

In effect the plaintiff seeks to draw from sub-ss (1)–(2) a negative implication which operates to limit the power of the Houses to expel one of their members by reference to conduct which has been the subject of a conviction falling within s 13A(1)(e). That type of argument is a familiar one in statutory construction. Parliament, however, foresaw the point. It is plain that subs (3) was meant to preclude that very argument being made.

If there were any possible doubt on the issue, it would be resolved by reference to what Minister Egan said in his second reading speech when introducing the bill to amend the Constitution Act by including the current version of s 13A (New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 June 2000 at 6689):

In some cases, however, the behaviour of the member may be such that it is unacceptable that the member continues to sit as a member while the appeal process is under way. In such cases, the House will retain its discretion to expel a member for unworthy conduct, by way of a vote of the House. Other options may include the suspension of the member, or the granting of leave to the member so that he or she does not sit during the appeal process. This ensures that the House retains the flexibility to deal with members in a way that is necessary to preserve public confidence in the integrity of the Parliament.

The plaintiff sought to rely on earlier passages of this second reading speech. Minister Egan noted that a commissioner of the Independent Commission Against Corruption had raised a concern about the predecessor provision, which was said to be ambiguous as to what would happen if a conviction was set aside on appeal. The Minister said that there were two ways to deal with ​this lack of clarity, the first being to confirm that the seat was vacated upon conviction regardless of any later appeal. He said this approach “would be inherently unfair to the member concerned” and might detract from public confidence in the parliamentary process. The second was to provide that automatic vacation of a member’s seat did not occur until the appeal process was completed which, the Minister said, “has the advantages of both fairness and certainty”.

That the Minister expressed the view that it was fairer and preferable for automatic vacation of office to await completion of any appeals does not support a construction of ss 13A(1)–(2) as implicitly limiting the Houses’ own power to expel a member. That was the very point that the Minister went on to make in the passage quoted above. He expressly recognised there that in some cases it might be appropriate to expel a member whilst the appeal process was under way. His reference to the appeal process indicates that he was talking about expulsion following a member being convicted.

The plaintiff said that subs (3) “does not create or augment the power of expulsion”. So much can be accepted. But that is not the issue. The power of the Houses to expel a member is not derived from s 13A; it is a separate power recognised by the common law. The clear statement principle (the “principle of legality”) upon which the plaintiff relied is a principle of statutory construction: note State of New South Wales v Hamze [2025] NSWCA 22 at [58]. It is not apparent that it has any work to do with respect to the scope of that power. The argument seemed to involve not a reading down of any statutory provision, consistently with that principle, but rather a reading up or extension of what is set out in s 13A. Again, that argument hits the rock of the clear statement of the Parliament’s intention in subs 13A(3). The role of the interpretive principle “may be thought of as an occasionally useful, context-dependent adjunct to the ultimate and central judicial task and responsibility of giving effect to legislative intention”: Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [86]. It is not a tool to defeat a clear statement of legislative intention.

That subs 13A(3) refers to the power to expel does not support the plaintiff’s argument; the contrary is true. The plaintiff seemed to suggest that the courts ​can still review and restrict the manner of the exercise of the power. That is inconsistent with the proper approach. It “is for the courts to judge of the existence in either House of Parliament a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise”: R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162; [1955] HCA 36; see also Egan at [27].

As for the argument that a motion of expulsion would render “the right of appeal futile and otiose”, it is true that passage of such a motion prior to determination of an appeal from a conviction would mean the limitation in subs (2) would have no work to do. But the only work it has to do is qualifying the operation of the automatic expulsion provision in subs (1), which is not presently to the point.

The plaintiff referred in argument to an approach taken in employment law cases in circumstances where summary dismissal is threatened because of a conviction. It was said that certain courts and tribunals had developed a practice of “adjourning or staying consideration of action to prevent or reverse expulsion or summary dismissal on the ground of the conviction pending determination of guilt or innocence by the criminal courts”. Such cases say nothing as to the scope of the power of the Houses of the State Parliament to expel one of their members. Insofar as those cases suggest that arguments of fairness militate in favour of delaying actions to dismiss until an appeal process is exhausted, that is an argument which the plaintiff can address to the Assembly. He has done so in the letter sent by his solicitor on 4 August 2025.

The plaintiff noted that in Egan McHugh J had doubted whether the power of expulsion extended to dealing with a Minister who declined to comply with a direction to produce documents or information (at [108]). That is not relevant to the current issue. The plaintiff also noted that Callinan J had said in that case that “Legislative Councillors can hardly be regarded as holding office, like members of a club at the pleasure, or the displeasure of other members”, but rather held elected office pursuant to legislation (at [184], fn 430 in the CLR version). His Honour’s point was made in the context of explaining that it was not necessary to consider whether Armstrong was correctly decided. As ​explained, in this matter that decision was not challenged beyond the arguments addressed.

There was no dispute that, as explained, the Assembly’s power of expulsion does not extend to authorise punitive action. The plaintiff argued that the proposed resolution “is punitive in scope and effect”. This argument, too, must be rejected. It is not made out on the materials before the Court.

To a significant extent the parties proceeded on the basis that it was the reasonable necessity test addressed in Armstrong and Egan which placed an applicable limit on what the Assembly may do. However, there is no apparent reason why the Assembly may not regulate its powers within the applicable limits, and arguably it has done so by making Standing Order 254, as quoted above. Pursuant to that order the question for the Assembly is whether the Member in question is “adjudged by the House guilty of conduct unworthy of a Member of Parliament”. The plaintiff did not challenge the validity of that order; on the contrary, he relied upon it.

Identification of “conduct unworthy of a Member of Parliament” involves an assessment which is both evaluative and normative. It is not expressed in terms such as there being “reasonable grounds” for expulsion, or such like: cf the statutory criterion considered in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125. The parties did not seek to grapple with the extent to which the criterion is justiciable when applied to expel a member of the Assembly. Even working on the assumption that it is, some significant area of judgement would be available to the House in making the assessment involved. It is not for the courts to engage in merits review of the decision made.

Insofar as the criterion of reasonable necessity has a role to play, an issue arose between the parties as to the extent to which the matter is to be assessed on a case-by-case basis. The defendants submitted that to do so would be to engage in reviewing the manner of exercise of the power as opposed to considering its existence and scope. That distinction may be simple at one level but is not necessarily clear in practice. Professor Anne Twomey ​addressed the point as follows (The Constitution of New South Wales (2004, Federation Press) 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. The distinction, however, is often difficult to apply. For example, as a House has no inherent power to “punish” a Member by expulsion, a court may therefore need to consider the intention of the House in expelling a Member in order to determine whether or not it had exercised an existing power. [citations omitted]

In Egan the plurality concluded analysis of the issue at hand there by saying:

[55] It was submitted that the House may not punish the member concerned but may coerce or induce compliance with its wish. To distinguish between punishing and merely inducing compliance may very well be difficult. Further, to state the distinction in these terms may distract attention from more important considerations of identifying what is the power that has been exercised and whether, or to what extent, the courts may review what has been done in Parliament. But on no view of the authorities did the action taken in passing and implementing pars 2 and 3(a) of the resolution go beyond the boundary of what is permissible. …

That approach provides guidance here. The relevant boundaries of the power of expulsion, as recognised by the common law, were articulated in Armstrong and the cases which preceded it. Notably, the power is a protective and self-preserving one which exists for the purposes of maintaining the orderly exercise of the functions of a House, and to protect the high standing of, and public confidence in, the Parliament. It does not extend to taking punitive action. The question in any particular case is whether the exercise of the power can be characterised in such a way as to fall within the scope of the power.

Here, as the position stands no motion has been passed by the Assembly. The plaintiff seeks to found his case on the 30 July letter sent by the Leader of the Government in the Assembly foreshadowing a motion of expulsion. There is nothing in that letter which suggests that the proposed action is punitive in the relevant sense. On the contrary, it speaks of the House acting “for its own selfpreservation and the orderly exercise of its functions”, doing so “to protect the high standing of the Parliament so it may discharge with the confidence of the community the great responsibility that it bears”. That language echoes what was said in Armstrong. It can be inferred that the letter was informed by legal advice. There is nothing sinister about that fact. It is suggestive of proceeding in a careful and informed manner.

The plaintiff articulated the following arguments as to why what was proposed in the letter was punitive. First, it was said that the proposed motion was punitive because it involves expelling the plaintiff from the seat to which he was elected. Yet that simply states the effect of the motion; it says nothing as to its character. The plaintiff relied on an extract from D Natzler and M Hutton, Erskine May's Treatise on the Law, Privileges, Proceedings, and Usage of Parliament (25th ed, 2019, LexisNexis) at [11.33] which said that expulsion of a member by the House of Commons is “treated here as one of the methods of punishment at the disposal of the House”. That the issue is “treated” that way in that text does nothing to grapple with the legal point at issue here, arising from cases such as Armstrong. Moreover, the extract provided went on to give examples of members being expelled because of “being guilty of certain criminal offences”; as to which see also Enid Campbell, “Expulsion of Members of Parliament” (1971) 21 University of Toronto Law Journal 15 at 20.

Second, it was argued that expelling the plaintiff would trigger a by-election, a point with which the defendants agreed: Electoral Act 2017 (NSW), s 76. Depending on the timing of the by-election vis-à-vis the sentencing of the plaintiff, he may not be eligible to stand: ibid, ss 30(4) and 83(1). Yet that the plaintiff will vacate his seat if expelled is simply another way of saying that he has been expelled. His potential inability to stand again is a consequence of unremarkable provisions in another piece of legislation, the validity of which is not challenged.

Third, it was argued that where the expulsion motion was “brought on so hurriedly” he would be unable to attend the Assembly to present his case in response. That he is unable to attend the Assembly is a consequence of having been remanded in custody following conviction for serious criminal offences. His ability to present his case is addressed further below in relation to the procedural fairness argument.

Fourth, it was said that the first defendant’s letter fails to identify any “unworthy conduct”, which is the only basis for expulsion identified in the standing orders. The plaintiff asserted that there “are simply no particulars, unlike the position in Armstrong, and hence no evidence able to be introduced of wrongful ​behaviour, corrupt conduct and other disorderly conduct which requires the intervention of the chamber to protect itself”. It is true that the letter does not use the phrase “unworthy conduct”. However, the letter makes clear that the basis of the proposed motion is the plaintiff's convictions and the identified concerns to which they give rise about the Assembly’s self-preservation (etc). The letter refers to the “serious criminal offences” involved. The plaintiff was convicted of charges on indictment at what we were told was a nine week trial. The nature of the conduct of which he was charged and convicted must be clear to him. If the foreshadowed motion is put, it will be for the Assembly to adjudge whether or not there has been conduct “unworthy of a Member of Parliament” such that he should be expelled, taking account of all the circumstances, including the fact that the plaintiff has lodged a notice of intention to appeal.

The plaintiff sought to place some reliance on s 91 of the Evidence Act 1995 (NSW), which provides that evidence of a decision or finding of fact in an Australian or overseas proceeding “is not admissible to prove the existence of a fact in issue in that proceeding”. That Act “applies to all proceedings in a NSW court”: s 4(1). It does not apply to proceedings in the Assembly. The plaintiff then sought to argue that the word “adjudged” in Standing Order 254 implied that common law rules of evidence were to be applied. A much clearer use of words would be required to support the rather surprising suggestion that Parliament would have intended to apply such extensive and complex rules to itself.

Fifth, the plaintiff says that the 30 July letter “omits crucial context: the Plaintiff’s sentence has not yet been imposed, and his appeal – under which the presumption of innocence continues – is unresolved”. That context is addressed explicitly and at length in the letter the plaintiff’s solicitor sent in response to the 30 July letter. There is no reason to doubt that that letter will be made available to all members of the Assembly, given that it was received in response to the first defendant’s invitation to the plaintiff to submit “any statement or material you would want the House to consider prior to it making any determination”.

Sixth, the plaintiff made suggestions to the effect that the approach adopted by the first defendant “appears to be a purely political approach”, and it was suggested that it was not made bona fides. There is no basis in the evidence for those assertions.

Moreover, accepting that an expulsion motion is likely to proceed and be debated, we do not know its terms, nor exactly what opportunity may be given to the plaintiff by the Assembly to present his case, nor (if relevant) what will be said in the course of debate, nor whether the motion will be carried and with what degree of support. In Armstrong the plaintiff had already been expelled and the Court had before it, without objection, the debate on the expulsion motion (it is unnecessary to consider here whether this Court could receive and draw inferences from the terms of such a debate in light of art 9 of the Bill of Rights 1688).

In sum, the plaintiff has failed to establish on the evidence before the Court that the proposed exercise of power addressed in the first defendant’s letter is punitive, such that any expulsion which results is also punitive and outside the scope of the Assembly’s powers.

The plaintiff submitted that he has been denied a fair opportunity to respond to the proposed course of action in the Legislative Assembly. He submitted that he has had no opportunity to address any factual matters or allegations in person, and that the invitation in the 30 July letter to provide written material was insufficient.

The defendants did not accept that the power to expel a member is conditioned by any justiciable requirement to afford natural justice, contending that considerations of fairness go squarely to the manner of the exercise of the power to expel, which is a matter for the House. However, they submitted that it was not necessary for the Court to address that contention because the plaintiff has in fact been given an opportunity to be heard. We accept the latter submission, rendering it unnecessary to determine the former.

The 30 July letter gave the plaintiff notice that when Parliament resumed on 5 August 2025, the Legislative Assembly would be asked to consider a motion ​to expel him as the Member for Kiama for its self-preservation and the orderly exercise of its functions. It referred to his convictions for serious criminal offences and to the need for the House to consider, in view of those convictions, whether his continued membership of the House “requires it to act to protect the high standing of the Parliament so it may discharge with the confidence of the community the great responsibility that it bears”. Noting that the plaintiff was in custody, the letter invited him to submit, either himself or by anyone on his behalf, any statement or material he would want the House to consider before any resolution was voted upon, by 9am on 5 August 2025.

The 30 July letter satisfied the foundational requirement of procedural fairness that the plaintiff be fairly apprised of the course that was proposed when Parliament resumed and given a reasonable opportunity to address it: see eg Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 591; [1994] FCA 1074. That conclusion is supported by the letter that the plaintiff’s solicitor sent to the defendants on 4 August 2025. Parts of the letter have been referred to above but it is useful to draw out some further content for present purposes:

It is apparent from the above summary that the plaintiff gave a detailed response to the matters raised in the 30 July letter, including addressing each of “the purported justifications” (as described in that letter), articulating the arguments that were agitated in this Court, and submitting among other things that the motion should be deferred pending the completion of judicial processes.

In oral submissions, the plaintiff picked up on the passage in the letter of 4 August 2025 which described the letter as being in general terms and submitted that by referring only to the fact of the convictions, the 30 July letter did not provide sufficient particulars of the behaviour of the plaintiff that formed the basis of the proposed expulsion. We do not accept that submission. As noted above, the plaintiff was the subject of the indictment, and was convicted following a nine-week trial. Procedural fairness did not require the 30 July letter to provide further detail about the convictions in order to give the plaintiff a reasonable opportunity to respond. The assertion in the letter, and in these proceedings, that the 30 July letter did not allow for the plaintiff to provide a fair response has not been made out.

We also do not accept the plaintiff’s further submission that procedural fairness required arrangements to be made to facilitate his personal attendance at Parliament to respond. The plaintiff relied in this context primarily upon Standing Order 85 which sets out maximum time limits for debates and speeches including, relevantly for present purposes:

Expulsion of a Member (SO 254)

Mover – 30 minutes*

Member next speaking – 30 minutes*

Any other Member – 30 minutes*

Member in response – 20 minutes*

Reply – 20 minutes*

[Emphasis added.]

The plaintiff submitted that the allocation to the “Member in response" of speaking time of 20 minutes (the asterisk indicating that the Member could request “and the Speaker shall put, without debate or amendment, a question that the Member be allowed to continue that speech for a further period of up to ​10 minutes”) necessarily entailed the presence of the Member the subject of the resolution. However, it is necessary also to bring to account Standing Order 365, which makes provision for the Standing Orders to be suspended:

(1) A Member may, at any time after 10.00am and up to 1.15pm, without leave, move a motion to suspend Standing and Sessional Orders to deal with any matter.

(2) A Minister may, at any time without leave, move a motion to suspend Standing and Sessional Orders to deal with any matter.

(3) The mover, one other Member and the mover in reply shall be entitled to speak to the motion for up to five minutes each.

(4) When the mover is a Member not supporting the Government, the response shall be by a Minister and, when the mover is a Member supporting the Government the response shall be by the Leader of the Opposition or a Member deputed.

(5) Such motions shall not be entertained during Question Time.

(6) The closure shall not apply.

As the defendants submitted, there is no general rule that procedural fairness requires an administrative decision-maker to afford a person affected by the decision an oral hearing in every case; whether an oral hearing is required depends on the practical requirements of procedural fairness in the circumstances of the case: see Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [33] (Kiefel CJ, Bell and Keane JJ). Although the plaintiff submitted in reply that the present case does not involve an administrative hearing, nothing in the nature of what is proposed to occur in the Legislative Assembly, or the potential consequences for the plaintiff, renders what was said about the content of procedural fairness in that context relevantly inapposite. Standing Order 85 does not require a contrary conclusion, particularly having regard to Standing Order 365. We reject this ground.

The plaintiff made only brief written submissions on this contention and did not address it orally. He submitted that in circumstances where he was duly elected, his expulsion before the judicial processes conclude disenfranchises the voters of Kiama, “short-circuits” the constitutional procedure under s 13A, and “misconstrues the role” of a member of the Legislative Assembly.

The central point sought to be made was that apart from the operation of s 13A(1) and (2), expelling a member of the Legislative Assembly impermissibly overrides the choice made by electors to elect that particular member. The point is misconceived having regard to s 13A(3) which, as the second reading speech makes clear, preserves the discretion of the House to expel a member for unworthy conduct by way of a resolution of the House. In that event, and as the defendants submitted, the democratic legitimacy of the House is secured by the process that follows expulsion. As noted above, if the Legislative Assembly votes to expel a member, resulting in a vacancy, s 76(1) of the Electoral Act provides that “the Speaker, after the Assembly by resolution has declared that the vacancy exists and the reason for the vacancy, is to issue a writ for an election of a member to fill the vacancy”. By this process, the expelled member’s electorate is re-enfranchised in an orderly and expeditious way. We reject this ground.

The plaintiff also submitted that the proposed expulsion intrudes on matters that are judicial in character, in a manner contrary to the principle in Kable. He submitted in writing that as sentencing is an exclusively judicial function, the proposed expulsion usurps the Court’s role. In addition, the proposed expulsion would deny him the fruits of a successful appeal, contrary to what the plaintiff described as “due process principles” recognised in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64. As it was put in oral submissions, the argument was developed along two pathways:

The first contention is premised upon the application, at the State level, of the principle in Chu Kheng Lim, which is a recognised limitation on Commonwealth legislative power so as to ensure that the adjudgment and punishment of criminal guilt under Commonwealth law is vested exclusively in courts designated by Ch III of the Commonwealth Constitution (see eg Chu Kheng ​Lim at 27). That is a large question that was not the subject of substantial argument and which is not necessary to resolve in the present case. For the reasons outlined above the plaintiff has not established that the proposed expulsion is punitive in character.

As to the second contention, it is predicated on conflating the exercise of a power of expulsion by a House of Parliament with the exercise of the functions of sentencing and/or determining an appeal by a court. As the defendants submitted, were the plaintiff to be expelled from the Legislative Assembly that would have no effect on his sentencing, other than as a potentially admissible fact at the time of sentence. It would in no way usurp the discharge by the Court of its sentencing function. Nor would it undermine the appeal rights that are available to the plaintiff and which he has indicated he intends to exercise: the available outcomes of an appeal as to conviction and/or sentence are in no way affected by such steps as the Legislative Assembly may elect to take. We reject this ground.

The circumstances relating to the plaintiff’s decision to approach the Court on an ex parte basis have been set out earlier in these reasons: see, in particular, [13], [15]–[24], [28]–[29] above.

It may be accepted that, from the plaintiff’s point of view, the commencement of proceedings was urgent. Urgency is one thing. Moving ex parte is another.

There will be circumstances where moving ex parte is justified. Such circumstances may include applications for Anton Pillar orders and for freezing order relief. This is because, if notice were given, it would risk defeating the very purpose of the interlocutory relief sought: JD Heydon, MJ Leeming and PJ Turner, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (5th ed, 2015, LexisNexis) at [21-425]. In certain circumstances, seeking an interlocutory anti-suit injunction on an ex parte basis may similarly be justified: see M Davies, A S Bell, PLG Brereton and M Douglas Nygh’s Conflict of Laws in Australia (10th ed, 2020, LexisNexis) at [9.18]. None of these circumstances was applicable in the present case.

Urgency absent a risk of defeating the purpose of the relief sought does not relieve a moving party from the obligation of notifying a defendant or respondent of the fact that the Court is being approached for urgent relief. That requires notification of which judge is being approached urgently (whether by name or status for example the Common Law Duty Judge), at what time any such approach is to be made and, if known, in which court room the judge will be sitting. Such information facilitates a prospective defendant or respondent’s ability to appear not only to apprise him, her or itself of the matter but, importantly, to have an opportunity to make any submissions relevant to the urgent relief sought. In a day of instantaneous communications, such notification should include the electronic provision of Court documents to be relied upon in support of urgent relief, where an email address is known or readily ascertainable such as by a telephone call.

Mr King, who appeared for the plaintiff, referred to and relied upon the final sentence of the letter of his instructing solicitor of 4 August 2025 to Mr Hoenig set out at [13] above, as providing adequate notification. That sentence read as follows:

Please provide your assurance that you will by 2:00pm today Monday, 4 August 2025, otherwise we will commence urgent proceedings in the Supreme Court of NSW without further notice to you

We do not agree that this was adequate notification. The expression “without further notice to you” meant that the plaintiff’s legal representatives purported to keep the prospective defendants in the dark as to precisely when the Court was to be approached, who the defendant(s) in fact would be, and which duty judge was to be approached. In the event, the Common Law duty judge was approached.

The evidence does not disclose precisely when the plaintiff’s legal representatives approached the Court although the transcript before Sweeney J indicates that a notice of motion for injunctive relief was filed at 2.59 pm and sent electronically to her Honour’s chambers. As Mr King indicated to Ward P, some time thereafter (but at what precise time is unclear), Sweeney J stood the matter down until 4.30pm: see [28] above. At no time after 2.59 pm until after injunctive relief had been granted were any of the defendants notified of the ​actual fact of commencement of the proceedings or that they had been stood down until 4.30pm before Sweeney J. This was quite unacceptable and inappropriate. Absent exceptional circumstances which did not exist in the present case, notification was not just a matter of professional courtesy but of professional obligation.

The position was only exacerbated by exchanges by the plaintiff’s counsel with Sweeney J. As noted at [19] above, Mr King indicated at the outset of his submissions before her Honour that “we’ve given notice to the other side, extensive notice that this application will be brought on before the Court today” (emphasis added). That was not accurate. Her Honour was entitled to assume that the defendants had been notified of the actual approach to the Court and had chosen not to or were otherwise unable to appear. Mr King, however, was evidently referring to the final sentence of the 4 August letter in formulating his response to her Honour. That was not “extensive notice” nor, as already observed, did that letter indicate when and before which judge an application was to be brought. The truth of the situation only became apparent in the exchange with the President on the following morning: see [28] above.

These matters alone would warrant discharge of the interlocutory injunction. In any event, on the return of an injunction granted ex parte in urgent circumstances, it is for the party that obtained the injunction in the first place to remake its case justifying any continuation of that relief: Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730. As McLelland J said in that case at 731:

on the return of the summons or notice of motion the injunction should be discharged unless the plaintiff shows sufficient reason for its continuation. In other words, the mode in which the duration of the ex parte injunction is expressed should not be allowed to affect the substance of the matter, or the onus, on the first occasion on which the defendant has any opportunity at all to put its case to the court.

No sufficient reasons have been shown for the continuation of the injunction ordered by Sweeney J and it should be discharged forthwith. Mr King accepted in the course of oral argument that if any motion of the House were void or invalid, no injunctive relief would be required. In any event, none of the arguments advanced by the plaintiff which may otherwise have sustained any ​injunctive relief have succeeded for the reasons set out in the body of this judgment. In the circumstances it is not necessary to consider whether or not an interlocutory or final injunction should issue to the defendants in a context such as the present: note Eastgate v Rozzoli (1990) 20 NSWLR 188 at 193–199.

Moreover, the prayer for injunctive relief in the plaintiff’s Summons was only ever for an injunction “pending the determination of this Court of the proceedings herein”. These proceedings will be determined by the orders we propose in these reasons for judgment.

When this was pointed out to Mr King in the course of argument, he informally moved to amend the Summons to seek an order that injunctive relief be granted pending the determination of Mr Ward’s foreshadowed appeal in the Court of Criminal Appeal. That application was opposed on the ground of futility in the sense that none of the substantive arguments advanced on behalf of the plaintiff for the substantive and final declaratory relief sought have succeeded. That opposition was sound and the informal application to amend the Summons should be refused.

The orders of the Court are as follows: