R v Winneke; Ex parte Gallagher [1982] HCA 77

High Court of Australia Gibbs C.J. Mason, Murphy, Aickin and Wilson JJ. R v Winneke; Ex parte Gallagher [1982] HCA 77

ORDER The Queen v. Winneke; Ex parte Gallagher. Application for writs of prohibition and certiorari dismissed with costs. Gallagher and Others v. Attorney-General for the State of Victoria. In each of these matters —Grant application for special leave to appeal.Appeal dismissed.

At the conclusion of argument, Gibbs C.J. said that the applications for prohibition and certiorari were dismissed. The applications for special leave to appeal were granted but the appeals were dismissed. Murphy J. indicated dissent. The following written reasons for judgment were delivered:—

Dec. 16 Gibbs C.J.

The Court heard together (1) an application for a writ of prohibition directed to Mr. Winneke Q.C. prohibiting him from further proceeding with or in reliance on summonses addressed to the prosecutors commanding each of them to attend before him to give evidence at an inquiry being conducted by him as Royal Commissioner, or alternatively for a writ of certiorari to quash the summonses; and (2) eight applications for special leave to appeal from judgments and orders of Crockett J. convicting the applicants of offences against s. 19 of the Evidence Act 1958 Vict., as amended, in that each applicant without lawful excuse refused or failed to answer questions touching the subject-matter of the inquiry being conducted by Mr. Winneke. The Court has dismissed the application for prohibition and certiorari and, although granting the applications for special leave to appeal, has dismissed the appeals. It remains to give our reasons for taking this course.

Mr. Winneke was conducting an inquiry, pursuant to the authority of two letters patent issued respectively by the Governor-General and the Governor of Victoria. The validity of both letters patent has recently been upheld in this Court: see Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1] . The matters into which Mr. Winneke was directed to inquire by the two letters patent were related and to some extent overlapped, so that some questions were relevant to both inquiries. Each of the letters patent authorized the Commissioner to conduct his inquiry in combination with the inquiry under the other letters patent, and he did so. Each applicant was served with a summons which stated that, pursuant to s. 2 of the Royal Commissions Act 1902 Cth, as amended ("the Commonwealth Act") and pursuant to s. 17 of the Evidence Act 1958 Vict., as amended ("the State Act"), it required the person named therein to attend before the Commissioner to give evidence. Each applicant did attend but refused or failed to answer certain questions. The refusal or failure was an offence against s. 19 of the State Act and exposed the applicants to penalties under s. 20 of that Act, assuming those sections to be valid. A further summons which has been served on each of the prosecutors is the subject of the application for prohibition and certiorari.