Australian Broadcasting Tribunal v Bond
[1990] HCATrans 25
IN THE HIGH COURT OF AUSTRALIA Office of the Registry
Sydney No Sl30 of 1989 B e t w e e n -
AUSTRALIAN BROADCASTING TRIBUNAL
Appellant
and
ALAN BOND
First Respondent
DALLHOLD INVESTMENTS PTY LTD
Second Respondent
BOND CORPORATION HOLDINGS LIMITED
Third Respondent
BOND MEDIA LIMITED
Fourth Respondent
DAVID ROY ASPINALL
Fifth Respondent
QUEENSLAND TELEVISION LIMITED
Bond(2) MASON CJ
BRENNAN J
DEANE JTOOHEY J GAUDRON J
Sixth Respondent
CONSOLIDATED BROADCASTING SYSTEM
(WA) PTY LIMITED
Seventh Respondent
NORTH WEST RADIO PTY LTD
Eighth Respondent
DARWIN BROADCASTERS PTY LIMITED
Ninth Respondent
C2T2/l/PLC 228 1/3/90 TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 1 MARCH 1990, AT 9.49 AM
(Continued from 28/2/90)
Copyright in the High Court of Australia
'
MASON CJ: Yes,Mr Ellicott. MR ELLICOT:
Your Honour~ before I get on to the main track of our submissions may I just refer Your Honours
to paragraph 8.7.10 of the appellant's submissions,
just to make it clear that all the respondents
regard that as a possible misstatement unless it isfully understood. The Court said:-
this is.the submission -
" ... another unfortunate consequence of the
way in which the Tribunal approached the matter
was that it made no finding on the important
question whether the payment of $400,000
was justified by the defamation claim alone"
If the Court in this passage intended to suggest that the Tribunal should have independently tried the defamation action with the benefit of hindsight, this could not be correct. It had been common ground before the Tribunal that the Tribunal should not do so.
Now it is not in dispute that the Tribunal should not, in effect, have heard the defamation action but what
was clearly i~ dispute, before the Tribunal, was
that the Tribunal should proceed to consider all the
relevant facts and to come to a view about the
substantial nature of the claim; what was the likely
result, the fact that truth had not been pleaded
and the like. In other words although in strictness
C2T2/2/JL 229 1/3/90 Bond(2) it was accepted that the Tribunal would not
determine the defamation action or try it,
nevertheless the respondents' submissions to
the Tribunal were that it should come to a view
on the vital matters about the defamation claim,
that is to say, whether the amount could be
regarded as reasonable in the circumstances;what learned counsel in defamation cases might
say about it, et cetera.
(Continued on page 231)
C2T2/3/JL 230 1/3/90 Bond(2)
MR ELLICOTT (continuing): ~our Honours, I was addressing to the Court a submission that it is open to this
Court to come to the view that the finding that the
payment to Sir Joh was improper should be set aside.
Now, just to make it clear what the assumptions are,
so far as we would submit it, first of all it has to
be assumed in the context because of that paragraph
I referred to not because of something that one finds in their reasons but one has to assume first of all
that Sir Joh was not soliciting a bribe - that is the
first thing. The second thing, that Sir Joh believed he was demanding an appropriate amount -
$400,000 - and the third thing, that Mr Bond did not
believe or even suspect Sir Joh was soliciting a bribe
from him.
In those circumstances, we ask how can the
payment of the sum in those circumstances be
improper simply because Mr Bond believes it is
excessive but that if it is not settled there could be
adverse consequences of the nature described. It is
not the actual payment but the beliefs with which it was
made which made it allegedly improper. The beliefs are not criminal beliefs - there is no suggestion that
they are criminal beliefs; they are not capable of
leading to any criminal charge. They are clearly below or, perhaps I should say, above that level and
any suggestion of impropriety based on a view about
the beliefs of a person is irmnediately a very
dangerous ground if those beliefs are not criminal
beliefs.
(Continued on page 232)
C2T3/l/JH 231 1/3/90 Bond(2) MR ELLICOTT (continuing): We are not in an Orwellian society. In fact we eschew the idea of thought police or of people being attached because of what they believe. In other words, once you get out under our legal
system, once you get beyond those areas of
prohibition, that is to say criminality, legal
principle cannot really operate unless there is
some public interest factor which is recognized by
the courts or recognized by the legislation. Now
in this case, we would submit, there is certainly
nothing in the legislation, and we would submit
nothing in the public interest morality that attaches
impropriety to it. In other words, there is not any
tenet or code of public morality which would say that that belief itself was improper.
BRENNAN J: If it was paid with the belief that it was satisfying the implied requests which one finds in
the interview with Jana Wendt, is that improper or not?
MR ELLICOTT: Your Honour, if those were the facts and if those were the facts found, then we would be in a different
factual situation and suggestions of impropriety may
have been canvassed and discussed and a view could have
been formed in relation to them. Indeed, one suspects
that that is how these proceedings began. That is to
say, they began because it was thought that all here
is corruption in the public sense - in the Fitzgerald
sense, if I can use that expression. But it turned
out to be the case apparently that it was not. And so the inquiry was side-tracked into some sort of attack
on Mr Bond because of what he believed.
(Continued on page 233)
C2T4/l/CM 232 Bond(2) MR ELLICOTT (continuing): If we were wrong about this
submission it would mean, in our submission, it
would always be improper for a person to settle a defamation claim by a public official even if
the person thought a bribe was not being solicited
but thought the claim was excessive.
DEANE J: What if they had disclosed to Sir Joh Bjelke-Petersen what they were doing? In other words, what if they had said, "We are paying you more than we think
can be justified by your defamation action byreason of the fact that we want to avoid the position that you will harm our interests in Queensland". I think I read that there were some mining interests at the back of this somewhere.
MR ELLICOTT: Yes. In a sense they said that. .
DEANE J: And you would say that is not improper? MR ELLICOTT: That is not improper to say that because his retort was, "I believe that I am entitled". This is
the point. He insisted that he was entitled, genuinely entitled to $400,000 and there is evidence
to suggest that he was justified in that view and
that he was not, and indeed the assumption is that he
was not soliciting a bribe and the assumption is he
believed he was demanding an appropriate amount.
In those circumstances the discussion took place.
DEANE J: Yes, my question did not assume to the contrary.
MR ELLICOTT:
No, I appreciate that but that is, we would submit, extremely significant and it does not attach any taint
to Mr Bond simply because he believes he is paying more than Sir Joh is entitled to . DEANE J: And that is a matter of law. MR ELLICOTT: That is a matter of law, we would submit, on
this ground that it is not, we would submit, a view which a tribunal could reasonably come to because
you cannot say that that is improper according to
any tenet· of public morality. And it would mean,
as we would submit, that if any public official -
for instance, if the Prime Minister sues somebody
for defamation,and that happens from time to timewith Prime Ministers and ministers of State
or other public officials, and the newspaperdecides to settle but believes that what it is
paying is excessive then that is improper because
it does not matter, in our submission, what motive
it is, that you do not want to stir up the government
or some other reason, or if it is a private individual
that the private individual does not want to get intohalts with the g-overnment. Those are not improper beliefs.
C2T5/l/LW 233 1/3/90 Bond(2)
DEANE J: And suggest that you cover it all up by moving it on a phoney offshore deal of property?
MR ELLICOTT: That is not what.- with respect, Your Honour, one cannot take the second step unless you first decide that
what was being done was improper, that is to say that
the payment was improper. You cannot decide that.
DEANE J: But what if the second step had gone through? You would then have an excessive payment in the view of the
person making it covered up by being moved offshore
into a phoney property deal. You just cannot say that
the fact of paying to somebody more than you think he
he is entitled to so that you will, as it were, get
advantages in other areas by the exercise of political
power, stops there if the evidence is that the .further
suggestion was that the politician and the payer
join in covering it up in some phoney deal.
MR ELLICOTT:
Your Honour, once Your Honour makes those suggestions and once Your Honour makes - - -
DEANE J: But they are the findings of fact, Mr Ellicott. MR ELLICOTT: Your Honour, with respect, the word "phoney" is not in the transcript. It is not in the decision;
"concealment", yes, but not "phoney".
DEANE J: By "phoney" I meant paying $350,000 more than the true worth of the property.
MR ELLICOTT: Well, of course, if it was $350,000 more than the true worth, yes, phoney; yes, criminal; yes, a bribe;
yes, soliciting; everything, but that is not the case.
DEANE J: I am sorry. I must have misread the letter.
MR ELLICOTT: The letter of the - - -?
(Continued on page 235)
C2T6/l/HS 234 1/3/90 Bond(2)
DEANE J: Your client's letter? MR ELLICOTT: Well, not my client's letter - - -
DEANE J: The Bond letter. MR ELLICOTT: The chairman - - - DEANE J: Yes. MR ELLICOTT: He was the chairman, but he was acting in the
interests, as he saw it, of the Bond group.
DEANE J: But you say it was not suggested that there be a
purchase of property for $350,000 or - - -
MR ELLICOTT: No, I am suggesting, Your Honour, that you cannot label, using my friend's expression - you
cannot label this as improper until you first determinethe nature of the transaction as being - in other words,
you look at it and open it up for what it is and until you see what it is you cannot say that it is improper,
and that is the injustice - that is the injustice in
what this Tribunal has done on this particular matter.
DEANE J: But you are saying that - I could follow it and see the force of it if you were saying, it is a view of
the facts, but what you are saying is the other view
of the facts is not available as a matter of law.MR ELLICOTT: Yes, I am saying that as an initial proposition. I have to deal with it in logical order, and the first step is to say, well, it is not improper.
DEANE J: Well, I do not understand how you say it is a matter
of law.
MR ELLICOTT: Well, I say it is a matter of law because I
submit that a tribunal - and this would fit in with
the AD(JR) ACT grounds - acting reasonably could not
come to that view on those facts.
BRENNAN J: Because it could not form a view of public morality which would condemn the transaction.
MR ELLICOTT: It is not a reasonable view of public morality that that transaction first - and I am concentrating
on the payment - concealment has about it another
factor, but I am - our submission is that if what
you are trying to conceal is proper, the concealment
cannot be improper.
BRENNAN J: You do not have to blinker your eyes in determining either question do you, by reference to excluding
consideration of the other?
C2T7/l/FK 235 1/3/90 Bond(2)
MR ELLICOTT: You do have to start with the first proposition, "What did he do and why did he believe he should
do it?" He paid an amount of $400,000 which he
did not believe or suspect was being paid to solicit
a bribe. That is the first proposition. The payment
is made because he believes that it is in the
interests of the Bond group to pay it and not to
have an all-out battle in the courts between QTQ and Sir Joh in Queensland and he comes to a view on that and says, "Well, on that basis, it
is not in the interests of the Bond grou~ because
it has other interests than the television interest,
to have that drawn-out battle with Sir Joh which
would probably involve other people as well.
That, we submit, is not - once you limit the
payment to the non-bribe or non-soliciting area,
you cannot say that the payment itself is improper
because the motive or the belief has no public
morality impropriety about it. And if you decide that that is not improper then the concealment
of it is not improper.
TOOHEY J: I do not follow that, as a matter of logic,
Mr Ellicott. I mean, why should the concealment be capable of constituting improper conduct if,
in the end, shareholders and the public are led
to believe that this matter was settled by a payment
of $50,000 whereas, in fact, it was settled by
a much greater figure?
MR ELLICOTT: The concealment would not be improper if it was proper to pay $400,000 by paying $50,000
this way and the balance in another way, because
the $350,000 would be paid recognizing the view
that the payer had that so far as it was concernedthe payment was excessive.
TOOHEY J: Was there not a suggestion that it be paid by way of a loan?
MR ELLICOTT: Yes, that was suggested, that it be paid by way of a loan and which would not be called in
if that -
TOOHEY J: But that would create a completely false picture of what had happened, would it not, whether or
not the original agreement had been reachedimproperly?
(Continued on page 237)
C2T8/1 /ND 236 1/3/90 Bond(2) MR ELLICOTT: That is not to the point, with respect, we would submit. The point is whether what happened, that is to say,
whether an agreement to pay $400,000 with the
belief was improper. If that is not improper then the method that is chosen to pay it cannot
make it improper or cannot make the method improper
because one could say, "Well, we won't reveal theterms", supP.osing it was just simply a defamation
settlement, 'terms not to be revealed'. Now, that
would not be improper but it is no less concealing
than to say, "$50,000 this way, $350,000 the other
way".
TOOHEY J: Well, it may not be any less concealing. It may be less deceptive.
MR ELLICOTT: Your Honour, it will not be less deceptive if the public do not know an~thing about it at all
and, therefore, we would submit, that on one
view it is more revealing and less deceptive to tell
the public. that so far as the Ce:J!11Pany was concerned
this was the fact, namely, that they were paying
$50,000 as representing that. They did not believe that Sir Joh was soliciting a bribe. On the other hand, on legal advice they could say, "We didn't
believe that the amount was justified". Once they
come to that view and it is honest and honest inthe sense that it is not an amount paid for a bribe,
then to do it, we would submit, is not improper
and the deed itself, of course, provided for mutual
confidentiality. So, Your Honours, in other words,
it was settled on that basis.
BRENNAN J: Mr Ellicott, is the legal question this, whether or not, first of all, when the Tribunal has to
determine questions of fitness and propriety, is it
thereby vested with a power to form a view about the
morality of transactions?
(Continued on page 238)
C2T9/l/JH 237 1/3/90 Bond(2)
MR ELLICOTT: Your Honour, I have to say it depends on the transaction, but - - -
BRENNAN J: In relation to this transaction?
MR ELLICOTT: In relation to this transaction they could look
at it and - - -
BRENNAN J:- - - form a view as to its morality?
MR ELLICOTT: They could form a view whether, as a result of conduct in relation to the transaction, one could say
that there was some criticism that could be made or
not made of those involved in it.
BRENNAN J: On moral grounds? MR ELLICOTT:
On the grounds that one might go to public deception of morality, but only if that was in some
way related to the conduct of a television station. That is to say that there was a distinct fear that that sort of conduct might be reflected upon the conduct
of the television station, because it is fit and properto hold a licence. It is not fit and proper that -
the Tribunal is not there to impose some idea of
morality.BRENNAN J: Well the only question then is whether or not the
view that was formed by the Tribunal is one which the
Tribunal could reasonably form.
MR ELLICOTT: No, the other question is whether the conduct, however it is described, is related to the conduct of
a television station.
BRENNAN J: Be it so. MR ELLICOTT: Now that takes us back to the earlier point that
you cannot look at the question of fitness and
propriety of the licensee, our clients, without
considering what the position was in 1988/89 when this matter was looked at or if it goes back,if that
is the relevant time,today, but unless those two
exercises are there, then the whole finding, we would
submit, is void, it is not in accordance with law.
(Continued on page 239)
C2T10/l/CM 238 Bond(2) BRENNAN J: I think I understand the submission but could I ask one further question to clarify it and .that
is, is the proposition this,that if the Tribunal
forms a view that it is improper, in the relevant
sense, for a television station to pay, or for
an amount to be paid on behalf of the television
station, as damages for defamation, it is
legitimate, or not, against public morality or
however one might wish to put it to pay more to
a public officer by reason of the possible influence
that that person may have upon business transactions
of the group to which the station belongs?
MR ELLICOTT: Your Honour, we would submit that unless what is being solicited as a. bribe it is not improper,
and that if Your Honour were to attach that label
of impropriety to the conduct of any person involved
in defamation claims, or any claim if you like,
against a public official,the same problem would
arise where the person believed that it was excessive.
There just is not a test of impropriety, there is
not a test of morality outside the criminal law that
this Court can attach itself to. There is no code
of conduct, If you are going to have a look at a code
of conduct then it is a commercial code of conduct and
this Court is - - -
BRENNAN J: Perhaps I understand why you use the term E.itzgerald
morality and that - - -
MR ELLICOTT: This Court is not a court of morals, it is a court
of law, and it cannot set itself up, nor can the Tribunal, as operating in the area between the criminal law and a person's conscience. If it starts
that then this Court becomes something that was never
intended to be.
Now, the perception of public morality has to be
well-defined and well understood. Now there is no -
and I will now go to the next submission which is this -
prepared to say this is not improper", the submission and if the Court is not minded to say, "Well we are not is this,that at least we are entitled to have, and by "we" I mean the licensees because so far as four of us are concerned we are in Western Australia and Darwin and we had nothing to do with the transaction, and so far as those standing around waiting in the queue TCN9 and GTV9 and others and 2UE in Sydney, who-were owned by other people at the very time these things were happening - at least we are entitled to know what was the process of reasoning; what it is that we did and why it is to be labelled improper.
C2Tll/l/JL 239 1/3/90 Bond(2) MR ELLICOTT (continuing: It is more the why than what we
did, because what we did was what the Tribunal knew we did in 1987 and said, in effect, was not sufficient to
say that we were not a fit and proper person and we
conducted our business on that basis and we are entitled
to know the steps by which the Tribunal arrived at that,
but, more particularly, we are entitled to have the
transaction looked at by the Tribunal, not ignored -all the facts, apparently, were in front of it - and for the Tribunal to make findings; for instance, if they are going to make findings about Sir Joh's innocence
they ought to make it and they ought to say that. If
they are going to make findings about Mr Bond's belief
about Sir Joh they ought to make findings about that sothat we can attack it here or in any other court, defend ourselves, but not be left, for instance, as I obviously
am this morning, with views put about public morality
which are in the minds of Your Honours and not in the
minds of the Tribunal, because there is nothing in the
Tribunal's decisions that reflects that idea of morality.
We would submit that is another reason why this
Court should not descend into the moral area but should
require this Tribunal to give its reasons, as it was
required to do by law, on a matter that not only slurs
industry itself of - because this is the potential effect of it - of the most significant and successful commercial
the individual involved and others involved, but has
the effect of depriving the shareholders who are
completely innocent, the creditors, the staff and, iftelevision network in Australia. That is the practical
effect of this - when I say the practical effect of it i..sthat once a decision about fitness and propriety is made
against the licensees, then the next step is the
consideration of revocation and this Court cannot say,
"They won't revoke". That would be stupid. The Court
cannot say that as a defence to this argument. We would submit that it is abundantly clear that so far as a
tribunal which has committed to it the duty of giving
reasons is concerned, this Tribunal has completely erred
on a matter of such great importance to the individuals
and, one might think, to the public generally because it
cannot be assumed that Parliament intended that a television network should be brought to the ground simply because a
chairman, en passant, in the interests of a group as
a whole, decides to make a payment which he thinks is
excessive and which the other person thinks he is justified
in claiming, that other person being, in this case, a
public official, the premier of a State.
(Continued on page 241)
C2Tl2/l/HS 240 1/3/90 Bond(2)
MR ELLICOTT (continuing): That, we would submit, is just
a proposition which the Parliament would react
to, violently, that this should be brought to the
ground on that basis but, yet, that is implicit
in it and I say that, not to get into the merits,
but simply to indicate the outrageous nature of
a set of reasons which do not amplify the steps
and, not only that, do not even eschew a view that
it is appropriate to look at the steps or the nature
of the transaction.
So, we would submit, Your Honours, that at least this Court should say that consideration
of the matter, particularly having regard to the fact that in May 1987, on the same facts, it did not find it improper, should at least lead the
Court to find that the grounds for impropriety
are not set out, they are not set out, they do
not leap from the page and the fact that they might
leap into the minds of Your Honours does not mean
that they leap from the page. That is a veryimportant matter because - and I say it with very
great respect - this is not a court of morals.
This is a court of law, just as the Federal Court
is, and it is entitled to know what the Tribunal,
as we are, thinks was improper because it never
said what it was that was - although it described
the transaction, it never said why it was improper. Also, this Court, we would submit, should
find that on such a vital matter the respondents
were entitled to reasons explaining why the payment
was improper so that it could be attacked, if desired,
or, alternatively, to hold that the impropriety
could not be found to exist until the full nature
of the transaction was explored and detailed bythe Tribunal.
Your Honours, I submitted yesterday en passant
that - I was moving ahead in doing so - a Tribunal
such as this should, in fairness, act consistently
and I wanted, quickly, to refer Your Honours to HTV LIMITED V PRICE COMMISSION, (1976) - I think
it is Industrial Commission Reports, in England,
at page 170.
(Continued on page 242)
C2Tl3/l/ND 241 1/3/90 Bond(2)
MR ELLICOTT (continuing): Could I hand those up, Your Honour? MASON CJ: Thank you. MR ELLICOTT: Your Honours, at page 185, Lord Denning dealt with the facts of the case which were that
the Commission said that in one case a certain levy
could be treated as part of the costs at one time
and later said it could not be treated as part of
the costs in order to work out what benefits
the television station should get. He says,
at the top of page 185:
The Price Commission acknowledge and assert
that the Exchequer levy is part of the
"expenses" for this purpose, both beforeJuly 1974 ..... and after July 1974 ..... They
seek to justify this difference by saying that
"expenses" in paragraph 65 is different from
"costs" in paragraph 18, and that it is,
therefore, legitimate to take the -
well, that just deals with the facts of the case
and then, he goes on:
I think those criticisms are all well
justified. It is plain to me that the
Exchequer levy retained the same character both before July 1974 and after it. Its
character remained the same, but it was
calculated differently. Instead of being
calculated on receipts, it was calculated
on profits. But it still retained the
same characteristics. It was a payment
by HTV to the authority in return for a
licence to produce the programmes. I see no warrant whatever for treating it
differently after July 1974 from before.
Yet that is what the Price Connnission seek
to do.
Can they be permitted to do it? I do
not think so. It is, in my opinion, the duty of the Price Connnission to act with fairness and consistency in their dealings with manufacturers and traders. Allowing that it is primarily for them to interpret and apply the code, nevertheless if they regularly interpret the words of the code in a particular sense - or regularly apply the code in a particular way - they should continue to interpret it and apply it in the same way thereafter unless there is good cause for departing from it. At any rate they should not depart from it in any case where they have, by their conduct, led the manufacturer or trader to believe that
C2Tl4/l/JH 242 1/3/90 Bond(2) he can safely act on that interpretation
of the code or on that method of applying
it, and he does so act on it. It is not
permissible for them to depart from their
previous interpretation and applicationwhere it would not be fair or just to do
so. It has been often said, I know, that
a public body, which is entrusted by
Parliament with the exercise of powers for the public good, cannot fetter itself in the exercise of them. It cannot be
estopped from doing its public duty.
But that is subject to the qualification
that it must not misuse its powers: and it
is a misuse of power for it to act
unfairly or unjustly towards a private
citizen when there is no overriding public interest to warrant it. So when an Army -
and he goes on to refer to other cases.
The same matter is referred to at page 192
and page 195. If I could just go to page 195 where
Lord Justice Goff, as he then was, says:
It is of the utmost importance that
statutory tribunals should be consistent,
and this is a very clear instance on
which the facts call for the exercise of
that supervisory jurisdiction which this
court was careful to reserve.
Now, Your Honours, the same propositions are referred
to in SUNSHINE COAST BROADCASTERS - I will not take
Your Honours to it but give Your Honours the
reference - 83 ALR 121 at 130-131 and the matter is
also dealt with in our outline submissions which
are annexure A· to our subm.issi.ons to this Court,
paragraph 8(b), page 5.
(Continued on page 244)
C2Tl4/2/JH 243 1/3/90 Bond(2)
MR ELLICOTT (continuing): They are developed in our full submissions which are in the hand-up document that
I handed up yesterday before I started. They are right at the front of that and in those submissions
which we rely on here in toto - but I will come to
that later - at pages 45 to 52 Your Honours will
find this consistency notion developed. I will not trouble to read it to Your Honours but I do submit
that this is a basic consideration in this case,
having regard to what I put to Your Honours
yesterday about the decision in 1987 on the renewal
application. Now just to say, if Your Honours reject my primary submission,that you cannot look at those
earlier matters, on the basis of the decision in
May 1987 having been made on 1 ike facts but in
another way leading people to believe that all that
was behind them and accepting undertakings that were
thought to overcome that problem and then proceeding,
as it were, to allow that to happen and to find as
was the case here - and I will come to this in a moment -
that those undertakings were indeed complied with -
in that situation, when one takes that into account,
we would submit that there is a clear case where
the Tribunal has acted inconsistently and in fairness
that inconsistency is such that it should not beallowed to act in the way in which it has.
GAUDRON J: Could I interrupt you there, Mr Ellicott? That is
intended to relate to section 5(1)(e), is it, of the
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT?
That is that the making of the decision was an improper
exercise of the power?
MR ELLICOTT: Yes, Your Honour. GAUDRON J: And was that taken in the Federal Court?
MR ELLICOTT: Yes, Your Honour. I have referred to the submissions where we took it. We would submit that here there has been that clear inconsistency and in circumstances too
where there is no way in which the Tribunal can say - that is this Tribunal - of the earlier hearing
that it was not supposed to be a full inquiry becauseit was.
(Continued on page 245)
C2T15/l/LW 244 1/3/90 Bond(2)
MR ELLICOTT (continuing): So one has a full inquir?. One has
the same facts. One has a decision that it was not satisfied that it was not a fit and proper person; that was the test, so it must be assumed that they were saying, "You are still a fit and proper person
on those facts", then they decide, not a fit and
proper person. Now, we would submit that is completely unjust. Whether you call it - you could perhaps put
it under the natural justice µrinciples, but the
basic principle that is being 2mbraced by the courts -
this Court and the courts in England - is that there
is a fundamental duty on the part of tribunals to
act fairly, and that lack of fairness can come, not
only in the way in which they conduct a particular
proceeding, but also by reference to what they have
done in the past.
Now, Your Honours, at page 27 of the appeal book,
in the index, there is a reference to:
PRM 18 Document titled "Queensland
Television Limited - Report to the
Australian Broadcasting Tribunal
November 1988"
MASON CJ: What page is this?
MR ELLICOTT: Page 27 of the appeal book. It is in the index on - 27 up the top, I am sorry, Your Honour, 27 of the
index.
MASON CJ: Yes.
MR ELLICOTT: Now, I am instructed - it is not reproduced - but I am instructed that that document contained the
information to satisfy the Tribunal that thoseundertakings which they required in May 1987 were
satisfied, and there was no - on my instructions -
question that they were not satisfied. So that, in other words, what the Tribunal required was done. The undertakings were fulfilled. It only raises again this basis question - would you not think, having had the inquiry in May 1987, having accepting undertakings
in order to avoid the problem - the very same problem
Mr Bond interfering in management; Mr Bond believing
that the payment was excessive, but doing so to avoid
any problems for the Bond group, Mr Bond being the
chairman having resign - would you not think that one would find some consideration of that matter?
C2Tl6/l/FK 245 1/3/90 Bond(2) MR ELLICOTT (continuing): Would you not think that the
Tribunal would have said if they wanted to say, "Well yes, those undertakings were given and they were
fulfulled_ ,but we do not see those as having any
merit. We do not see those, for these reasons, as affecting our ultimate decision~ if that is what they
wanted to say. But they do not advert to it. They
do not think it is relevant. They do not even give it a passing thought and we would submit, Your Honours,
that that only pinpoints again the insufficiency of
this reasoning process that has been exposed in these
pages of the two decisions in April and June 1989.
DEANE J: Did they refer in their reasons to the 1987 inquiry?
MR ELLICOTT: They di~ Your Honour, yes. They did in the April decision, from recollection. In fact I think they
dealt with it in the sense that they described what
had happened, but they said they were not bound by
it.
DEANE J: I was not suggesting that you go into it. I was - MR ELLICOTT: No, but Your Honour will find it from page 106
onwards.
MASON CJ: What page do we find the reference to the statement
"they were not bound by the earlier decision"? Can
you give us that - - -
MR ELLICOTT: Page 106 of the appeal book at line 12: this Division of the Tribunal is not bound
by this previous decision.
They thought they could just, in effect, supplant it.
Forget about the past and look at the present. You start off looking for corruption and we find ourselves
analysing the mental beliefs of a person.
DEANE J: Except tba'a is mediate view and that is, if one rejects your black and white approach that you cannot go back
to anything before the last finding, even though the
evidence about it did not come to light until after
the last finding, but takes the view that where there
has been an inquiry and a finding that somebody is
fit and proper,that must be the starting point for the
next finding and you need reasons to go beyond the
past finding.
MR ELLICOTT: That is our argument, that you do need reasons.
You would expect them - - -
C2Tl7/ 1/CM 246 Bond(2) DEANE J: Well that is not your primary point?
MR ELLICOTT: No, I know,Your Honour. DEANE J: Well then,do you say that the Tribunal did not take
the last inquiry as the starting point but
simply disregarded it?
MR ELLICOTT: It disregarded the effect of its decision -
completely disregarded it - and did not appreciate
that it was deciding the matter on the same facts;
did not seek to indicate why it was changing a viewwhich a previous panel, perhaps, had come to; and
did not bother to explain why undertakings which were
given then and thought appropriate to isolate QTQ
completely from Mr Bond's known intervention; did
not bother to explain why it now thought that thoseundertakings were no longer appropriate and in
circumstances where as a television station it had
acted properly, in other words that is the assumption
that in other respects it was technically, and in the
public sense, satisfying all the other requirements.
That is what has to be assumed. So that matter, we would submit, tha.t it is clear that they just have
not done that and that, again, is another basic
omission.
MASON, CJ: It all really turns on the content of the paragraph that commences towards the foot of 105 and ends immediately before the sentence to which you have drawn attention on page 106? MR ELLICOTT: Yes, yes. Now that, we would submit, is not
a proper appreciation of what was found and it is a reflection - and that attempt to push it aside is
reflected in the view that it is not bm.md by
this previous decision.
(Continued on page 248)
C2Tl8/l/JL 247 1/3/90 Bond(2)
MR ELLICOTT (continuing): It says at line 20 on page 105: It is apparent from a reading of the
whole report that major concerns were
existent, but the Tribunal, on balance,
was persuaded that the commerial aspects
of the agreement were bona fide and
justified -
they were the very same commercial aspects.
Settlement is always done within the
ambit of the particular litigation.
It is this concept which the Tribunal
enunciated in its decision. The major thrust of the report centres on the
impact of the decision in respect to
management capability -
now, with very great respect, that is wrong. It does
relate to that question but it is the impact of Mr Bond
on management that they were concerned with and thev
were concerned with that because they were concerned as towhether what had happened rendered the licensee not fit
and proper. That is not brought out there -
and that proposition is borne out by the
Tribunal's proposal to impose conditionsdesigned towards maintaining independence
..... and impartiality.
Well, that is independence of Mr Bond. That is
impartiality from Mr Bond and that is because Mr Bond,
they thought, should not interfere in management but
they did not characterize what had happened as rendering
it satisfied that it was no longer a fit and proper
person.
MASON CJ: It seems to reflect two ideas; one, that in the earlier decision the commercial aspects of the agreement
for settlement were bona fide and justified, but,
particularly in relation to programmes and, therefore, secondly, there was a concern about independence, there was an attempt to set up a structure that would
preserve independence.
(Continued on page 249)
C2Tl9/l/HS 248 1/3/90 Bond(2)
MR ELLICOTT: Yes, but the independence flowed from an analysis of what might happen if a person with
wider interests might settle defamation proceedings
because of those wider interests. That is where
they talk about how it might impact upon journalists,
et cetera, in those passages I read from the
decision yesterday. I will not go back to them
again but they make it quite clear, we would submit,
that those two things were connected and it was
all about the fitness and propriety of the licensee,
having regard to the actions of Mr Bond and,particularly, as Mr Gyles pointed out yesterday,
the very virulent accusations that had been made,
which are the very accusations that are made in
the later inquiry, of corruption on the part of
the Premier.
It all ends up with that decision and that,
we would submit, required explanation and so, we
would submit, that there is that element of
inconsistency which is unfair and can only be
answered by the Tribunal, giving proper reasons
as to why it saw fit to depart from that earlier
decision if, contrary to our previous decision,
it is empowered to do so.
Your Honours, in annexure B to our submissions - I am conscious of the time - we refer -
MASON CJ: There is no need to feel that you are under any
pressure as to time, Mr Ellicott.
MR ELLICOTT: If Your Honour pleases, I do not really feel
that way.
MASON CJ: I did not think you did.
MR ELLICOTT:
But I think to myself, "Well, don't repeat yourself too much."
In that schedule, annexure B,
we deal with a submission which emerges in this
way, that when the Parliament regarded the fitness
of third parties such as shareholders as determinative, well, it made specific provision.
Your Honours, of course, have the background of
the other provisions dealing with revocation and
grant and renewal.
(Continued on page 250)
C2T20/l /ND 249 1/3/90 Bond(2)
MR ELLICOTT (continuing): Now in relation to the shareholder provisions 92F and 92FAA become of relevance.
What we say about these and, Your Honours, if I may
say so, one has to sit down and look at these
provisions and compare them but if I may just for
present purposes and if Your Honours want me to go
into them I will, just take Your Honours to oursubmissions because they do explain the effect of these
provisions as we would submit them.
Having referred to the difference between the
test at the time of grant and the time of renewal
or revocation, in paragraph 3 we say it can thus
be seen that in each of these contexts it is the
fitness and propriety of the licensee or proposed
| • | licensee which is in question. | Now paragraph 4, |
the only provisions of the Act which require a
consideration of the fitness and propriety of a person
other than the licensee - that should be - or the
proposed licensee ar ethose provisions relating to thetransfer of shares in a licensee company or a company
having an interest in a licensee company.
The first of these - this is on page 2 of
annexure B to our submissions - the first of those
provisions requires persons who are prescribed parties
within the meaning of 92F to be fit and proper personsto hold the interest to which the transaction relates.
Mr Bond is not a prescribed party as defined -
just stopping there, Your Honours may not appreciate
but may have appreciated that the acquisition of shares
of interest from, I think, Mr Packer or his companies
is still before the Tribunal. And although all that is settled, et cetera, as between the parties
the question is still there before the Tribunal.
The result of what we are saying is that in that transaction Mr Bond's fitness and propriety would not
be an issue in the proceedings because that only becomes
relevant if he holds more than 15 per cent either in
the licensee itself or in a company which holds shares in the licensee. The only relevance about his participation would be whether it had some effect
on the capacity of the licensee to comply with
conditions.
I am trying to sunnnarize it there but that is the
position on the transfer from the Packer interest to
the Bond interests or between A and Bin any situation
such as this and that,we say, is the effect of these
provisions.
Paragraph 6: Mr Bond is not a prescribed party
as defined in that he is not a person who is a party
to any transaction in respect of shares in a licensee
company or a in a company having an interest in a
licensee company within the meaning of Section 92F.
C2T21/l/LW 250 1/3/90 Bond(2) The relevant provision which applies to Mr Bond in
relation to share transfer applications which are
pending before the Tribunal is section 92FAA(2)(c)(i).
This requires the Tribunal to have regard only to the
effect which the transaction has on the capacity of
the holder to comply with the conditions of the
licence or any undertaking given in relation to the
licence. Now that, we say, is the only area where it comes in.
There is a further provision which is relevant.
This subsection requires a prescribed party to a
transaction, that is, a party or proposed party who,
as a result of the transaction, has or will become
the legal owner of more than 15 per cent of the
shares in the licensee company or has or will become
the legal owner of more than 15 per cent of the
shares in another company, that is the legal owner
of more than 15 per cent of the shares in the
licensee company. To comply with the requirements ofsection 89A which relate to the transfer of a licence
which include a requirement that the proposed
transferee be a fit and proper person to hold an interest
in a licence.
So fitness and propriety on analysis of all those
provisions - and one-needs to look at sections 89F,
89K as well as 92F and 92FAA -analysis of those
provisions leads to the conclusion that where the
legislature has intended to make the fitness andpropriety of a third party - if I can use that
expression - or a party other than the licensee
determinative of the right of, if one may say so,the fitness and propriety of the proposed licensee,
that is, the transferee, it h~s done so but not in
circumstances which would cover Mr Bond because he
was well removed from the situation that the
Parliament itself thought ought to be looked at.
(Continued on page 252)
C2T21/2/LW 251 1/3/90 Bond(2)
MR ELLICOTT (continuing): Now that, we submit, it important, and that means that when the Tribunal itself is
looking at this issue - fitness and propriety of
Mr Bond - it is truly a false issue.
MASON CJ: But, are you saying it is not a relevant
consideration?
MR ELLICOTT: The issue of fitness and - is Mr Bond a fit and
proper person? To lay down that test is the first step in a process of error, we say. In other words,
yes, you can look at his conduct because in so far
as - you could look at anybody else's conduct, so far
as it impacted on the conduct of the licensee, youcould do that, but what is erroneous, in our submission,
was to say,"Let us look at whether Mr Bond was a fit
and proper person to hold a licence, and if we decide
that he is not, then the licensee is not because he
controls it~ Now, the statute itself does not
impose upon a third party, or make
the fitness of a third party a determinative
issue except in very special circumstances.
But here, we say, the Tribunal has made it a
determinative issue. We say that was quite, for the
reasons Mr Gyles expanded, and I will not go back to
them - we say that that is something which the
Parliament itself avoided, in fact, it laid down the
ground rules for dealing with fitness and propriety
of third parties where it was to be determinative.
(Continued on page 253)
C2T22/l/FK 252 1/3/90 Bond(2)
:t:1R. ELLICOTT (continuing): Where the person is beyond that, then that person can only be looked at in an
inquiry in circumstances where that person's
conduct in some way impacts on the conduct of the
licensee but it is not a determinative matter.
That is the essential element of that submission.
Your Honours, Mr Gyles put to Your Honours
submissions that the Tribunal's finding of lack of
fitness of licensees involved an error of law.
Again, I do not want to repeat that except to say
that, so far as the legal attack is concerned on
the Federal Court's judgment, there has been noattack on its views expressed between pages 238 and
244, the construction of this section. I made that
in relation to the special leave and I make it
again in the appeal and one would have expected
that there be some attack. It only indicates that
their attack is not - it is an attempt to say, "Oh,
well in the special circumstances of this case,
well you can look at that and look at that alone".
And, they are seeking comfort from those American
cases that we submit Mr Gyles fully dealt with but,
as Mr Justice Jackson said in WOKO's case and thatmany others have said it, perhaps since, "Hard
cases can make bad law". What my friends are really seeking to do is make bad law because a,,_. decision
his way in this case has got to govern many cases
in the future and give the irmnediate opening to
tribunals to go straight from some conduct on the
part of somebody who is in a position of control and
attach it to the licensee irmnediately and say they
are not fit and proper.Apart from that, we would submit, that the reasoning in 26 June decision is clearly only
attributable to a view that Mr Bond's lack of fitness equals the licensee's lack of fitness.
(Continued on page 254)
C2T23/l/JH 253 1/3/90 Bond(2)
MR ELLICOTT (continuing): Mr Gyles has taken Your Honours through all those passages, I will not repeat
them but could I just take you to 190C, lines
1 to 6. Now having found at the foot of the previous page:
In relation to Mr Bond, we consider that
he would not be found to be a fit and
proper person to hold a broadcasting
licence.
That is an extraordinary finding, we would submit,
there is no warrant for it and it is likely to lead
somebody into error because all they were entitled
to do was to say, "He was guilty of this conduct
of that conduct", and that was the first step
on the road to error. But then they say:
The relationship between Mr Bond and the
licensee companies is relevant to a
consideration as to whether we can be
satisfied that the licensee is no longer
a fit and proper person to hold the
licence. For the reasons set out, we find
that the licensee company is no longer a fit and
proper person -
Now the reasons set out are reasons which are completely,
if one goes back to the various pages, I will just
give Your Honours the references - 184, lines 11 to
15; 185, lines 3 to 8; 185, lines 19 to 22;
186, lines 11 to 37; 187, lines 33 to 189, lines 22
and the questions are raised in relation to
undertakings from 190 to 190B, they are all dealing
with Mr Bond, and it is the compelling conclusion,
we submit, that what this Tribunal was doing, in
its mind, was saying, "The licensee's unfitness
is determined, in this case, by Mr Bond's unfitness
and that in law we are entitled to do that". And
we would submit in law they are not entitled to do
that and that in so doing they fell into error. (Continued on page 255)
C2T24/l/JL 254 1/3/90 Bond(2)
MR ELLICOTT (continuing): Now Your Honours, there is a finding at the foot of 190:
The present Chairman of Bond Media Ltd,
Mr Warren Jones, was quite adamant in his
evidence that he was at odds with Mr Bond
over aspects of the payment and his positiondid not prevail. We do not see how this proposal significantly effects Mr Bond's
control, however appropriate it may be for
Bond Media Ltd to take such a course either
of its own volition for the purpose
expressed or to accommodate Mr Jones' previousplans.
Now that finding, Your Honours, has no basis in fact,
in our submission, that is the finding that he was
at odds with Mr Bond and that his position did notprevail, the fact that it did not prevail - that is
quite out of keeping with the facts, because the facts
show,as was indicated in the previous hearing, that
the company QTL distanced itself from the settlementand went out of its way to distance itself from the
settlement. Now in our previous submissions at Bin this blue book at pages 43 to 44, under tab 1, we detail that in sumnary form the evidence which
would lead to the conclusion that Mr Warren Jones'
view did prevail, because it indicates that, in
relation to that matter, he insisted that it was not
a matter for QTL. It was a matter for the Bond ~roup and it was a matter for Bond Holdings to deal with
and not a matter for the television station and he
insisted that that payment not be made by the
television station, but by the Bond group and there
is attached under tab 13, a memorandum from Mr Jones
to Mr Beckwith dated 21 March 1986, which says:
You are aware of the outstanding defamation claim by Premier of Queensland .....
endeavouring to negotiate a settlement and our Since November of last year we have been
Chairman undertook to speak direct with the claimed was ridiculous and that our insurers would prefer to fight the matter in court which obviously would have been a long and dirty affair in view of claims by Des Power in a statement he made on 12 November 1985. Alan Bond has met with Premier Bjelke-Petersen
on two separate occasions and also had discussions
with his legal representatives. He has been successful in reducing the claim by $600,000 to
$400,000 and feels strongly that we have no other
alternative other than to pay as the Premier left
little doubt that he would under no circumstances
forgive or forget and intended to vigorously
pursue the matter to a conclusion.
C2T25/l/CM 255 Bond(2) Irrespective of the reduction negotiated,
a payment of $400,000 is very substantial and
I believe is a group cost rather than a
direct charge against Queensland Television Ltd.
One's natural desire is to take the Premier on;
however, the extent of our investment in
Queensland dictates that such action could seriously prejudice the goodwill we have established with the Queensland Government and
in the end we could regret such a decision as it
may well be that "we win that fight but lose the war'
It is therefore my recommendation that we
support the settlement negotiated by our
Chairman as it is his judgment that in view of the
unusual and volatile nature of the Queensland
political environment, he had grave concerns as
to the effect of a long drawn out and dirty
defamation trail involving not only the Premier
but also Russ Hinze and Sir Edward Lyons may
have on Group investment in that State.
I therefore view this matter as one pertaining
to our whole group and believe it would be unfair
to ask the Directors of Queensland Television Ltd.,
as the defendants in the action to make a
decision without getting a direction from the
parent Board.
I propose that the Board of Bond Corporation
Holdings advise our brokers, Jardine, to settle this matter on behalf and in doing so have the
Notice of Discontinuance drafted -
(Continued on page 257)
C2T25/2/CM 256 Bond(2) MR ELLICOTT (continuing): That, we would submit, is a
clear indication, right at the end of the series
of events, in March 1986, where Mr Warren Jones, acting in the interests of QTL says, "That's got to be a charge to the Bond group and not to the
television stations."
BRENNAN J: Mr Ellicott, was that put before the Tribunal on its first inquiry?
MR ELLICOTT: No, I do not think so, Your Honour. I think there was oral evidence about Mr Warren Jones's
attitude and that is reflected in the actual
decision, the report that I read yesterday, in
other words, the insistence that it not be settled
through QTL paying the money but that it be treated
as a group liability.
Another important aspect of that memorandum
is to bear in mind that any suggestions in those
letters of February were not fulfilled. In other words, what was done was that the payment was made.
It was not concealed. And a thought about concealment is not even an attempt at concealment.
That is putting it at its worst against Mr Bond.
DEANE J: It was not a thought about concealment, it was
an offer of concealment.
MR ELLICOTT: It was a suggestion.
DEANE J: It was communicated.
MR ELLICOTT: It was a suggestion but it was never accepted
and not put as is indicated in the second letter -
not put with a view to doing anything dishonourable.
That was indicated in the second letter and - just
going back to the issue - there is no comment on
those letters which -
DEANE J: I was just taking you up on your statement it was only a thought.
MR ELLICOTT: I appreciate that, Your Honour, but I am submitting that so far as the events are concerned
a deed was entered into, the money was paid, there
was no concealment and I am just bringing to the
surface this proposition, that it was an extravagant
act, we would submit, on the face of it, to find
a licensee company to be not fit and proper simplybecause somebody thought, at one stage, that they
might do something in a particular way and
communicated that thought to a third party who
did not accept it and, later, there was no attempt
to implement that thought.
C2T26/1/ND 257 1/3/90 Bond(2)
MR ELUCOTT (continuing): Now, that we would submit, is an extraordinary result and although it is, in a sense,
an argument on the merits, one always has to go back
to this proposition, "Why didn't they say something
about that? Why didn't they analyse it? Why didn't
they direct their mind to it?" Now, it is not because Mr Shand and Mr McPhee, and others who appeared below,
did not use every endeavour to put these matters to
the Tribunal. That is not the reason. The reason is
that the Tribunal chose to take a very narrow path andto not even, we would submit, look at this particular
matter that, as a subject-matter, impelled itself on
the mind of the Tribunal in May 1987, but all they
say about it in June 1989 is, we would submit, a
misstatement because that memorandum shows that
Mr Jones' s view did prevai 1.
My stand-in junior, who was at the hearing, tells
me that in Mr Jones's statement before the hearing that
particular document was summarized.
BRENNAN J: Was summarized? MR ELLICOTT: In his statement.
BRENNAN J:
It might be significant to discover the terms of the summary.
MR ELLICOTT: I beg Your Honour's pardon? BRENNAN J: It may be material to discover the terms of the summary.
MR ELLICOTT: Yes. We can get that. BRENNAN J: Perhaps while that is being looked at you might care to comment on the correspondence between that letter and
the letter which, again, I have taken to be the letterfrom Dawson Waldron to the commission dated 3 October
1986, which was the letter following the letter from
the chairman of the Tribunal to Dawson Waldron which
is in the middle of tab Din hand-up brief volume three, to which I have earlier made reference. In that case
it was put to the Tribunal that:
the liability for the defamation
payment was regarded by BCHL as a
potential liability when the final
purchase price was agreed upon and it
was appropriate for BCHL to pay for the settlement which was ultimately
agreed.
I am not sure what the commercial imperative is
there but, at all events, that is what was said.
C2T27/l/HS 258 1/3/90 Bond(2)
MR ELLICOTT: Yes. Your Honour, there was evidence on that subject-matter before the 1987 inquiry and, at that
time - both times Mr Bond said that he took that
matter into account.
BRENNAN J: The question might be, Mr Ellicott, on the argument that you have addressed about consistency, as to
whether the material that was before the Tribunal
on the first occasion was in the relevant respects thesame as the material before the Tribunal on the second
and by "the relevant respects" I mean the motivation
for the payment and the belief of the payer as to the
reasons why the payment should be made and should be
made by BCHL.
MR ELLICOTT: Your Honour, there is no doubt, we would submit, from looking at the report, that it was before them
because that iis the effect of their findings in,
what we would submit, was a carefully reasoned report,
matter, the material in the second, but we can provide that and we certainly will provide it in so far as it
but I do not think the Court at the moment has before
it all the material that was before that first
is needed to convince the Court that the material,
indeed, was before the first Tribunal and that there
is an inconsistency so far as a view is concerned
about the same evidence.
BRENNAN J: The problem may be to demonstrate a negative, namely that there was nothing new which was material
before the second.
MR ELLICOTT: Well, one can only look at the reasons and to
conclude that if the circumstance that they regarded
as leading to impropriety in the payment was a
circumstance which was clearly acknowledged in the
Tribunal's finding in May 1987, then one can concludethat there was consistency because they are the same
circumstance. They may be put in different words but,
in substance, they are the same. (Continued on page 260)
C2T27/2/HS 259 1/3/90 Bond(2)
MR ELLICOTT (continuing): In those paragraphs, 2.52 onwards
of the earlier report, this matter is ventilated
in a very clear way, which is - a bit later when
one comes to a later decision, it is not
ventilated in that way at all, and certainly, so far as
Mr Bond's involvement was concerned, I think it will
be found that the Dawson Waldron letter was taken into
account - the subject-matter which is referred to in
the Dawson Waldron letter, that Your Honour has referred
to, was taken into account by Mr Bond in both proceedings.
Now, can I just - there is a passage I do
not think I referred Your Honours to yesterday, under
tab Din our submissions, page 16. 2.32: It was
common ground throughout the hearings that the
commercial interests of BCHL were at the least
an important feature of the thinking and subsequentactions of Mr Bond and his other close associates
as the following statements illustrate. "After the
meeting on 20 March Mr Jones came to the conclusion,
based on the substantial investments that BCHL and
its group of companies had in Queensland, .. that on
balance the matter should be settled as soon as
possible by BCHL as this was a liability which BCHL
had acquired when they purchased QTL from AWA." "Mr Coppin and Mr Lodge both said in their
conversations with (Mr Aspinall and Mr Jones) ...
that one thing that had to be taken into account
was the interests of Bond Corporation and, of course,
its shareholders particularly with the large investments
that we had in Queensland, being QTL and Castlemaine
Perkins .... "
Now, that is a reference, on the face of it,
to the memorandum of 24 March, which may not have
been in front of them, but it was, as we would say,summarized, in effect, before the Tribunal in
Mr Jones's statement.
DEANE J: Mr Ellicott, while you are referring to that 1987
report, what do you say the Tribunal did then, in relation to a finding of fitness and propriety? Did it make one, or did it sidestep it by imposing conditions? MR ELLICOTT: What it did - first of all, it was in a renewal application, and it - - -
DEANE J: And it renewed, I appreciate that. MR ELLICOTT: And it renewed, so, it is to be inferred that it was not satisfied that the licensee was no longer
a fit and proper person, by reason of the material
in front of it.
C2T28/l/FK 260 1/3/90 Bond(2)
DEANE J: I thought that was quite contrary to what your clients have maintained and established in the first hearing in the present proceeding~ that is
that you do not have to make a finding aboutfitness and propriety, but you can go on and deal with the matter by accepting undertakings or imposing
conditions.MR ELLICOTT: Yes, but if it believed that it was no longer
a fit and proper person, then, we would submit, it
would have said so, but it did not say so. If it
believed that, but for the undertakings, it would have
expressed a concern that it was no longer a fit and
proper person but nevertheless it felt that the
undertakings could overcome that problem, but whatthey were - - -
DEANE J: Its power to impose conditions was independent?
MR ELLICOTT: Yes, it was independent - - - DEANE J: - - - of any: .... w.ew that the condition precedent in section 88 had arisen?
(Continued on page 262)
C2T28/2/FK 261 1/3/90 Bond(2)
MR ELLICOTT: Their power to impose conditions was at large,· it is unrestricted. They· can do that but in the
context of the inquiry the question of fitness and
propriety was obviously in their mind.
DEANE J: I appreciate that. My question is a very narrow one.
MR ELLICOTT: Yes. DEANE J: Do you maintain that they made an unexpressed finding - because I cannot find it - about fitness
and propriety or is it that they side-stepped
the need to make such a finding by imposingconditions which in their view justified or
would warrant the renewal of the licence?
MR ELLICOTT: It is implicit that they made a finding to this effect, that they were not satisfied by
reason of these matters that the licensee was
no longer a fit and proper person. However, they
thought there were concerns - they used the word
"concern" -:,and the concern that they had was met
by what they first called conditions but were
ultimately accepted, I am told, as undertakings
but implicit in this, we would submit, is a view on the part of the Tribunal that what had happened did not satisfy them that the licensee was no longer a
fit and proper person.
DEANE J: But, I am right, am I not, that they did not say so? MR ELLICOTT: They did not say so, no, but we would submit that that is a proper reading of i~but even if it
is not, it nevertheless indicates that they took
the view inconsistently with the later Tribunal's
decision that we are here about that,any question oflack of fitness could be dealt with appropriately
by undertakings and that it did not lead
irrevocably to the unfitness of the licensee. That
is, Mr Bond's fitness did not - - -
DEANE J: That does not follow because if you be right, if it is implicit in this for them to do what they did,
that they made a finding of fitness and propriety,
then what the Tribunal did in this case must be right
and that is, that they made that finding before they
came to conside_r undertakings and conditions. It is
only if you read it as side-stepping that findingand treating the matter at large as if it can be
determined by reference to conditions or
undertakings that Mr Gyles's argument about the
undertakings can really stand up.
MR ELLICOTT: Well, we would submit that if you view this as not containing a finding about fitness and
propriety, then it means that the Tribunal has taken
C2T29/1/JH 262 1/3/90 Bond( 2) the view that it can overcome any concern that it
has about it by accepting undertakings and that is
in all fours with what we have been submitting - - -
DEANE J: Yes, I was not querying that. MR ELLICOTT: - - - there is no problem with that.
DEANE J: I was not attacking your submission, I was asking a simple question.
MR ELLICOTT::-: I-know that, Your Honour, and I am not being
aggressive towards Your Honour.
DEANE J: It seems to me you are being overdefensive in examining any questions that I ask.
MR ELLICOTT: No, Your Honour, I am not wanting to be.
It is just a natural trait of an advocate, Your Honour, and I will withdraw a little.· Your Honour, the other way of looking at it, as
I put to Your Honour, was that they had made a
finding within section 88, that is to say, they
were not satisfied that he was not a fit and proper
person, that they had some concern. That does not
negative our argument. It may not assist the other argument but it is not against us to say tha.t because
that is more powerful to say that they found that
they were not satisfied that the licensee was no
longer a fit and proper person on that information
because the very same information is the subject,as we have developed it, in the second inquiry.
(Continued on page 264)
C2T29/2/JH 263 1/3/90 Bond(2)
MR ELLICOTT (continuing): So, whichever way one looks at it, it has a plus for the respondents, in our
respectful submission.
BRENNAN J: Mr Ellicott, just before you leave that aspect,
can I just draw your attention to this: in the paragraph at page 105 to 106, to which the Chief Justice earlier referred, there is a statement
by the Tribunal as to the view which had previously
been expressed and the difference between the
evidentiary basis available to the Tribunal in
the two hearings. I take it, from what you say, that you contest, as a matter of fact, that there
was any difference in the evidentiary basisavailable?
MR ELLICOTT: Yes. BRENNAN J: Without checking page by page, that is proposition
which one finds daunting to contemplate. In what way can we resolve that problem?
MR ELLICOTT: Your Honour, you can resolve it by going to
the pages where the second Tribunal considers the matter and it does that at pages 187 and 188 and pages 118 and 119.
BRENNAN J: Thank you.
MR ELLICOTT: They are the pages where the critical matters were found and it is our submission that when you
read the earlier report you will find in the
paragraphs that we referred to yesterday, fromparagraphs approximately 2.48 onwards, you will
find a reference to those very matters. For instance, at 2.56: To the extent that the interests of QTQ were contemplated at all ..... they were contemplated
primarily because QTQ was part of a diversified
group of companies -
et cetera. And it goes on to deal with this notion that the payment was made because of a fear of
harm to the Bond group's interest and it is that
very matter which seems to lie at the heart of
the second Tribunal's decision. But the surrounding facts are there too and they are significantly,
we would submit, the same.
DEANE J: Mr Ellicott, would it be accurate to say, in
your submission, that the more one looks at the
overall picture and what you are now putting, the
more critical becomes the consideration of the
attack that has been made on the finding of
deliberate concealment in the 1987 inquiry in the
sense that if there were deliberate concealment
C2T30 /1 /ND 264 1/3/90 Bond(2) then, subject to your technical argument, it
is difficult to see how the Tribunal would nothave been entitled to disregard or reopen the
first finding but if the finding of deliberate
concealment or the argument that the finding of
deliberate concealment can be demonstrated to be
wrong because it was based on a factual error that
finding, as it were, influenced the overall
approach. I have put about three propositions
there and one requires a concession which I am
sure you will not make but subject to that?
(Continued on page 266)
C2T30/2/ND 265 1/3/90 Bond(2)
MR ELLICOTT: Yes. Your Honour called it a technical argument but we would say it is an argument of substance.
DEANE J: That was not the concession I was thinking of.
MR ELLICOTT: Yes, I will not even make that one, Your Honour. We start out with the proposition that the payment
itself was said to be improper and we say that was
not improper and you cannot therefore say that concealment of something that was proper - - -
DEANE J: No, I was directing my question to your argument that all was effectively concluded by the 1987 Tribunal's concealment of relevant material from the 1987
findings. If their finding that there was deliberate launched against it, I have trouble in seeing how
your argument can be sustained. The other side of it seems to be that if that finding of deliberate concealment is set to one side these aspects of the
matter seem to carry that finding right through
the Bond findings.MR ELLICOTT: Your Honours, so far as the earlier inquiry was concerned I referred to HARDIMAN's case and I referred
to that for this purpose, amongst others, to indicate
that the Tribunal was inquiring - it was a renewal
application - and i. t had great powers of inquiryand that the question of concealment from the Tribunal,
if that is what Your Honour is concerned about, that
is not a matter which can be established against
parties where a tribunal itself has the duty to inquire
and particularly in the circumstances where the
Tribunal itself decides not to set off on a track which
would have led to any material which subsequently
was put to the second Tribunal being discovered in the
first.
So that one cannot say of the first Tribunal that
it was deceived or deliberately misled simply on the
basis that information was not before it because it had
the duty to get the information, it had the duty to fully inquire and that duty cannot be taken away from it.
And even if people make perverse allegations as
HARDIMAN's case seemed to suggest, the Tribunal still
has, if it thinks those allegations might have some
substance in them, a duty to pursue them whether the person produces evidence about it or not.
In those circumstances, in the context of the
first inquiry, we submit that there cannot be a proper
finding of concealment in those circumstances.
DEANE J: Mr Ellicott, I do not want to take you back over
Mr Gyles's territory. I understand the answer you give.
C2T31/l/LW 266 1/3/90 Bond(2)
MR ELLICOTT: Your Honour, what was said at 120 and 121 do contain some factual errors.
DEANE J: But I was not asking you about that.
MR ELLICOTT: At the top of 121 in relation to this matter which assists the argument that I am putting to
Your Honour. We would submit that you cannot find - if it is that concealment that Your Honour is
referring to, then we would submit that you cannot
find, in relation to that inquiry, that there was
concealment. That is on the assumption that the
so-called technical argument is incorrect. If
Your Honour is talking about the attempt at
concealment - I take it Your Honour was not referring
| • | to that and I am sorry that I thought Your Honour was |
in the first place and that is why I set off on that
track.
(Continued on page 268)
C2T31/2/LW 267 1/3/90 Bond(2)
MR ELLICOTT (continuing): On the broad ground of failure to take into account relevant considerations, I
just wanted to advance a general submission butnot go to the detail that Mr Gyles went to, and
that is this that where you have the issues defined -
and looking back at the principles Your Honour
the Chief Justice enunciated in PEKO and the question of what is, perhaps, I use the phrase
"imperatively relevant" as distinct from "relevant"
in the general sense, in other words, what the
Tribunal must look at- we would submit that once
issues are laid down then all the evidence before
the Tribunal is assumed to be relevant. It may be
if lawyers look at it they would say, "Well that
is not really relevant", but not only "relevant"
but "imperatively relevant", that is to say if theissue is stated as it was in the new issues document
then the Tribunal could not then make a full inquiry
into this matter without looking at all evidence
relevant to that issue. Otherwise, like a court, if
it did not consider evidence relevant to the issuesbefore it it would be, we would submit, in error; if
it just said, "We will not look at that". Now there is no doubt that here the chapter of events has
indicated that so far as the Tribunal is concerned it has taken the view that all these other matters
were irrelevant; that it did not have to take them into
account; that it could just jump from point A, that
is Mr Bond's own fitness into the unfitness of the
licensee.
Now this is all the more so where the question is,
"Is the licensee no longer a fit and proper person"?
Now how can a tribunal address that question unless it
looks at the circumstances and weighs them up up to
the time that it makes its decision. That is to say, it
must look at and must do the balancing that we submit
it did not do in relation to what had happened since,
and it must have done it in this case or should have done
it in this case, in other words if it was"imperatively
relevant" in this case for it to do it because of the finding which it had already made in May 1987 and the undertakings which had been given. So that, I made this point earlier this morning,
but how could it not look at the effect of the observance
of those undertakings, if those undertakings were inthe context of ·a concern, or alternatively, whether
they were in the context of a finding that they were
not satisfied that the licensee was no longer a fit
and proper person. Again, there is an argument that
has been advanced by the appellants that they can look
at de jure control as distinct from de facto control.
Mr Gyles has said all that we would want to say about
that. But then they say de jure control is not
C2T32/l/JL 268 1/3/90 Bond(2) enough,the power of Mr Bond to control these companies
indirectly, then they can look at de facto control.
But the only de facto control they want to look at
is Mr Bond's de facto control. If one is going to
look at de facto control then one has to look at the
whole area and we would submit that that . they clearly failed to do. When they came to deal with the Karratha matter, well they set it aside, and in that sense they
did not allow the impropriety to be locked in. They allowed it to be treated as irrelevant because the
persons concerned had left the company. But to say that is simply to indicate that the licensee has not
observed proper standards, if that was implicit in
their view, but that something has happened which can,
as it were, be a circuit breaker between that lack of
fitness and its present lack of fitness at the time they
are looking at it, and in these circumstances what was the circuit breaker was the fact that these people had left the company, or likewise, we would submit, that
undertakings can be a circuit breaker just as much as
the absence of a person can be a circuit breaker and
that brings us to the undertakings.
(Continued on page 270)
C2T32/l/JL 269 1/3/90 Bond(2) MR ELLICOTT (continuing): In our submission, those undertakings
were clearly directed at the fitness of the licensees
and that they should have been seen by the Tribunal
as aimed at isolating the licensees from the perceived
unfitness of Mr Bond. That was their purpose and indeed,
we would submit, that is a perfectly legitimate matter
for them to bear in mind and their decision was
perverse because they turned their mind against it
and they said, "This does not cure the perceived
unfitness of Mr Bond". Now that was not the purpose of it and when they said that then automatically they
fell into error and so in not considering the
undertakings which, we would submit, were clearly
relevant, they committed an error of law and failed
to take into account a relevant consideration and one
| • | which, in accordance with the judgment of |
Mr Justice Pincus, was one that they could take into
account and which, on the view of the law that
Mr Gyles put and which we accept, we would submit,they
were bound to take into account and they were bound
by, that is to say, a view that these matters were
relevant at the time.
Now we deal with the undertakings to a fuller
extent in our submissions which are in the blue binder -
in our full submissions, I will call them, before the
Federal Court -at pages 24 to 28 and we deal with them
seriatum and in those pages we deal with each of the
submissions and explain why it is relevant to the
fitness of the licensee as distinct from the fitness
of Mr Bond. So we support the submissions that Mr Gyles put in relation to that matter. Your Honours, the effect of criminal conduct on the part of
sharehdlaers of television companies has been dealt
within the United States under the relevant com:nission
in 11 the United States and we have annexed in annexure E
a reference and a paper that refers to those particular
decisions. And the balance of the relevant authorities
·a:re under tabs 16 to 21 in the blue binder. Now I am not going to take Your Honours to those American
authorities in detail, but what they do, in our submission, is follow on the same principle that was
. enunciated by Mr Justice Davies in NEW BROADCASTING,
73 ALR ·420. Now,· again, Your Honours have been taken to that decision but it made it clear that
criminal conduct of a shareholder or of a chairman of
directors did not impact on the licensee in a necessary
sense, that it was indeed the character or the fitnessand propriety of the licensee which was in question and
you could not conclude that because a chairman had
been guilty of these acts over a series of years that
the public might regard as not according to ordinary
standards,you could not impact that on the televisionstation. Now in one of the cases that is referred to in
annexure E and to some degree is set out therein, there
C2T33/l/CM 270 Bond(2) was a chapter of criminal conduct on the part of
the company in question. It is a case of
MUTUAL RADIO OF CHICAGO, 98 FCC 2d 330)
a copy of it is at the back of tab E, but it is
sufficient to take Your Honours to what we say at
pages 4 and 5 of our main submission before this Court,
Your Honour. We say the licensee Mutual was a wholly- owned indirect subsidiary of the Amway Corporation.
Amway and its Canadian subsidiary had pleaded quilty
to charges of violations of Canadian customs laws
with the result that the largest criminal penalty everlevied by the Canadian Government - $20 million - had
been paid by Amway. The Canadian subsidiary had paid
a further fine of $5 million. The principals of
krway controlled 100 percent of the shares of the licensee
and were co-chairmen of its Board. The principals had approved and participated for 15 years in
Amway's fraudulent misconduct and its scheme to make misrepresentations to the Canadian Government. With respect to the undisputed violation of Canadian law by the parent company, the FCC held: The Commission must decide what effect, if any,
this admitted misconduct has upon Mutual's
qualifications as a Commission licensee. Our inquiry into a licensee's past performance has
traditionally served as a predictor of future
broadcast performance ... If it appears that a
nexus exists between an applicant's past
misconduct and a possible carry-over of the
misconduct into the operation of the broadcast
station resulting in future harm to the public
interest, we have refused to grant the application
Conversely, where past misconduct does not pertend
future broadcast abuse of the public trust by
a licensee, we have acted favorably on pending
applications ... Against this framework, it is
apparent that the Amway misconduct, while an
admitted criminal violation, has no nexus with
any past practices of Mutual that are likely to
result in any possible future violations of the
Communications Act, Commission rules or policy. The misconduct at issue is a violation of a foreign nation's criminal law with no evidence that it has had any adverse effect on the broadcast station operation or the public interest.
Further, there is nothing to suggest that theadmitted nonbroadcast misconduct would be likely to result in broadcast misconduct by Mutual in the future. Therefore, we find that the admitted violations of Canadian law by Amway has
no effect upon the qualifications of mutualto continue as a Commission licensee .... "
C2T33/2/CM 271 Bond(2)
MR ELLICOTT (continuing): And there the requirements,
Your Honours, were matters of character. Now, that decision, and the thrust of it are continued
on in other cases that are referred to in our
submissions and we draw Your Honours' attention
to those and we submit that NEW BROADCASTING LIMITED,
Mr Justice Davies's decision,is in line with them
and that they indicate what we submit is imperative
in the present case and that is that attention
to the fitness and propriety of the licensee
demands that one not allow the actions of third
parties to answer the question, are they fit and
proper? And that the fitness and propriety willbe gauged by the effective conduct and whether or
not it can be, in some way, isolated if the misconduct
is found, or whether, in fact, it just could not be
repeated again, or whether by the acceptance of undertakings
or the imposition of conditions, it could some way be
isolated from the future conduct of the broadcastlicence, and also, this important question, whether
or not the conduct had any effect, any effect, on
the conduct of the licensees?
Now, here there is no suggestion that this
requirement to settle a defamation - perceived
requirement to settle a defamation action that was part of fre bundle of acquisition from AWA - there is
no suggestion that that in any way has impacted on the
quality of the television services provided by the
Queensland company and certainly could not be
suggested, and has not been suggested, in relation to
the quality of the services of the broadcasting
companies which are far removed in Western Australia
and Darwin.
Now those are compelling reasons, we would submit,
why this Tribunal has failed to take into account
relevant considerations. On the Sir Joh issue generally, we adopt what Mr Gyles has put. I have put some other submissions. On the question of whether it was a proper finding that could be set
aside under the AD(JR) ACT, that Mr Bond was not a fit and proper person, we adopt what Mr Gyles has said
in relation to that. In other words, whether it was a
decision under the Act or whether it was conduct
leading to a decision under the Act, and whether it
could be found to be a wrong decision, and we submit
that what Mr Gyles has said is a complete answer to the
attack that is made on that finding of the Federal
Court by my·learned friend,Mr Sheller.
Now, Your Honours, that leaves one to say something
about LAMB V MOSS. Your Honours,just on the question
proposition that there is no event in the conduct of of the effect of undertakings, may I just stress this the licensees, or Bond Media for that matter,
C2T34/l/FK 272 1/3/90 Bond(2) after the 1987 decision to indicate any
interference or lack of independence on the
part of the television station or the four
radio stations. Indeed, there was a great deal of
independent evidence to the contrary. In other words, what happened could only be regarded as
supportive of the view which they had formed in
1987 that if they imposed undertakings these would
assist to overcome the problem they foresaw, or
the concern that they foresaw, or the interference
in management that they perceived ought to be
stopped.
(Continued on page 275)
C2T34/2/FK 273/274 1/3/90 Bond(2)
MR ELLICOTT (continuing): Now, the Tribunal on the other question of the attempted concealment, it is important
to note that the Tribunal did not find that thelicensee, or Mr Bond, was not fit and proper by
reference to the concealment alone. They only did it by reference to the finding that the payment itself
was improper. They do not treat it as a separate category of impropriety and that means that once one
finds that the payment was not improper then the
concealment was not improper, even if my other
submission that, as a matter of logic and common
sense, you cannot treat an act of concealment as
improper when what you are concealing is proper, but
the way in which they actually dealt with it here
there was a complete nexus between the two things.
Corning to LAMB V MOSS, 76 FLR, Your Honours will
find at pages 313 and following a discussion of the
relevant cases and our submission is that this decision
was correctly decided. There was a decision of
Your Honour Justice Deane in an earlier decision inCHANEY's case - I think I am right in that - and the
relevant passage is at page 315:
Section 3(3) of the Act defines a reference in the Act to a 'decision'
as including a reference to a litany
of activities of both a positive and
negative nature culminating in 'doing
or refusing to do any other act or thing'.
The provisions of s.3(3) would seem more
apposite to define a reference to a
substantive 'decision' of the original
decision maker than to confine the scope
of a reference to a 'decision' of the
Tribunal upon review. Subject to that
qualification, the specific activities
mentioned in the definition in s.3(3),
which are in the nature of effectiveaction rather than intermediate 'decision'
on the path to such action, provide some
indication that a reference to a 'decision' in the Act is, prirna facie, a reference to the ultimate or operative determination
rather than a reference to an adjudication
or deterrninatin of issues arising in the
course of making such an ultimate oroperative determination.
Then they review a number of authorities and at the foot of page 317 they say:
The review of the authorities we have
undertaken reveals, in our opinion, some
inconsistency in the approaches of various
of the judges of the court as to what is
a decision for the purposes of the Act.
C2T35/l/HS 275 1/3/90 Bond(2) This is understandable. The legislation has been in force for little more than
three years. The factual situations which have been presented to the court
for consideration have been many and
varied. Judges have understandably
adopted a pragmatic and a cautiousapproach to the question of construction
which is involved. Care has been taken not to decide more than has been necessary the leaving open of the question of the
in order to dispose of the instant case.meaning of "decision" pending the
acquisition by the court as a whole of
a sufficient experience to give it more
understanding of the ramifications of
what is involved.
In our opinion this case raises
more squarely than any in the past the
problem of what is a reviewable decision.
We are required to express a more precise
view about it than has so far been
necessary. We have been assisted in our task by the judgments to which we have
referred and our knowledge of the
accumulated experience which the court has
had in administering the Act.
The attribution of a wide meaning to
"decision" in the Act to include any
decision of an administrative character
seems to us to accord with the broad
list of activities which are included inthe non-exhaustive statutory definition of
the word in s.3(2) which are further
expanded in s.3(3).
(Continued on page 277)
C2T35/2/HS 276 1/3/90 Bond(2) MR ELLICOTT (continuing): The very presence of the latter subsection
is, in our opinion, incompatible with the
notion that only ultimate and operative
determinations are reviewable. Furthermore,
such an approach seems to us to be consistent
with the Schedules to the Act. It is
unnecessary in these proceedings to say more
and it is therefore inappropriate to enter
upon the as yet unresolved question as to
the proper use of those Schedules in the
interpretation of the Act.
In our opinion, there is no limitation,
implied or otherwise, which restricts the
class of decision which may be reviewed to
decisions which finally determine rights or
obligations or which may be said to have an
ultimate and operative effect. Such a conclusion is, in our opinion, in accordance
with the plain legislative intention revealed
by the words of the Act.
Your Honours, just to refer to those provisions,
in section 3 of the ADMINISTRATIVE DECISIONS
(JUDICIAL REVIEW) ACT, section 3(2) would, in our
submission, indicate that what is intended is not
only final decisions at the end of the day, for
instance, here a decision that the licence be
revoke~ but includes decisions along the way;
that is to say, anything that can properly come
within the description of the paragraphs.
One does not have to drive it to the point
of saying every decision on admissibility of evidence
is therefore a decision, in our submission. There
may, indeed, be a discretionary element in that
particular matter. It may not be appropriate,
in a given case, for the Court to take up the matter,
even though it may nevertheless be a decision which
an ultimate effect when the Tribunal comes to make in a sense is final in the sense that it will have up its mind at the end of the day. So that the question of whether a decision
should be interfered with is rather a matter of discretion rather than a matter of definition of
"decision". But when (d), for instance, in 3(2)
speaks of:
imposing a condition or restriction
it may be that that could take place in the course
of administrative decision making, as distinct
from at the end.
C2T36/l /ND 277 1/3/90 Bond(2) The words:
doing or refusing to do any other act or
thing -
this is a decision of an administrative character
that the Court is dealing with and, therefore,without going into the definition of what that
means, that is picked up in the defintion:
"decision to which this Act applies" means
a decison of an administrative character - Any decision, in the course of administration,
we would submit, is open to some remedy under this
Act and it would be really truncating the intention
of the legislature to read it down.because the
whole intention of the Act, surely, was to enable
the courts in a simple procedure to enter the
administrative process and say that a particular
decision which appeared to have finality about
it - that is to say that it could have an ultimate
effect - should be set aside because the body was
on the wrong track.
It is obviously convenient to do that because
if the body is carrying out an inquiry and has
made a decision of law which is wrong, then it
ought to be corrected at an early stage if days
and days of evidence are going to be called and
expense incurred if it proceeds on that decision.
(Continued on page 279)
C2T36/2/ND 278 1/3/90 Bond(2)
GAUDRON J: It is not so much whether it is reviewable or not, Mr Ellicott, because conduct leading to a
decision is reviewable - or leading to a proposed
decision. The question i~ really, what grounds wereapplicable because the grounds set out in
section 5 for a decision are not precisely identical
with those set out in section 6 and the focus ofconsideration, if you turn to conduct, is in the
main on its effect on the ultimate decision rather
than on the particular findings, if I can use a
neutral word, that have been made .
MR ELLICOTT:
Your Honour, that begs, with respect, the question of what is meant by conduct. We would
submit that if something is a decision, it is a decision but sorneth:i.ng may be defined as not a
decision but yet can be conduct and, of course, in
this case one can say that whatever the Court thinksabout LAMB V MOSS, it was certainly conduct and that it is within the provisions of section 6, reviewable. But, so far as the word "decision"
is concerned,and that has to be the starting point,we would submit that clearly enough that is intended to cover anything that adds up to a judgment upon a matter in the administrative process, that is to say, that it should have its widest meaning - because that, we would submit, is the obvious intention of the legislature - and that meaning is aided, we would submit, by section 3(3): Where provision is made by an enactment for
the making of a report of recommendation
before a decision is made in the exercise
of a power under that enactment or under
another law, the making of such a report or recommendation shall itself be deemed ..... to be the making of a decision.
That deeming provision is not, in our submission, an
indication that section 3(2) is to be read down. It
is only making it abundantly clear what the
legislature is saying, that is to say, that matters that are decided along the path to the ultimate
decision are themselves decisions within section 3(2).
BRENNAN J: But, if one looks at the definition of "decision"
to which the Act applies, section 3(2) and (3) and
section 5(1), I thought it i~ - withoutlooking at a specific concatenation ·of those provisions - the impression which a reading of those
provisions gives is that "decision" consists in the
exercise of a statutory power.MR ELLICOTT: Well, it has to be a decision of an administrative character.
BRENNAN J: Made under an enactment?
C2T37/l/JH 279 1/3/90 Bond(2) MR ELLICOTT: Yes, made under an enactment. The words 'under an "enactment" are extremely broad, in our
submission, and if Your Honour looks at both the
primary decision - which I will not refer to if
you do not mind - in BURNS V THE AUSTRALIAN NATIONAL
UNIVERSITY, and the decision of the Full Court,
Your Honours will find the mean.ing o_f "underan enactment''discussed and in broad terms because
the AUSTRALIAN NATIONAL UNIVERSITY ACT was an
Act that controlled the university as a whole but one could say the appointment of a professor was
under an enactment.
We would submit that the wo:r:ds "under an
enactment" are very broad and, therefore, one does
not have to find a precise power and this is the only
sense in which I qualify what Your Honour has put
to me, that you may have a very general power but
in the end you are exercising that power and making a decision pursuant to it in an administrative context.
(Continued on page 281)
C2T37/2/JH 280 1/3/90 Bond( 2)
BRENNAN J: Where the relevant Act which is said to constitute
the decision depends on the statute for its validity.
MR ELLICOTT: Yes, and depends on, obviously, the construction
of the statute but may depend on a broader notion than
merely finding in a particular section a precise power.That is simply all I am saying, that you can find statutes which have very general powers. If there
was a broad power in a body to control the activities
of that body under a statute and that was all that
was there and you found some activity going on and
decisions being made in the course of it, then even
though that precise type of decision was not mentioned
you could attach it to the broad power. But subject to that, Your Honour, I would not want to disagree
with what Your Honour put to me.
So far as LAMB V MOSS is concerned and its
application to this case then what is happening here
is that the Tribunal is conducting an inquiry of its
own motion under section 17C and it is exercising the
powers to undertake that inquiry. That exercise of
power may end up in an exercise of another power,that is to say, section 85, imposition of conditions, or section 88, or other powers which are inferentially in those sections, for example - certainly section 88 -
we would say a power to accept undertakings.
But the power that is being exercised by this
Tribunal is the power initially of section 17C but
using it as an instrument, as it were, in the course
of exercising powers which may turn out to be under
either section 85 or section 88.
The schedule to the Act does give some assistance
if one looks at the schedule, schedule 1, and we would submit that one is entitled to look at the
schedule. For instance, in (e) it says:
decisions making, or forming part of the
process of making, or leading up to the
making of assessments or calculations of tax or duty -
Now one might think that the ultimate decision is the assessment but clearly enough they have gone to the trouble of excising those earlier decisions
because the courts have at various times in the taxation
process been willing to interfere at the process,
for instance, amended assessment. They have been willing to interfere on occasions with the process up
to the making of the decision and they wanted to make
clear in any event that this Act was not to be used
for that purpose even though it might .-for the purpose
of opening up all those intermediate steps to the
extent to which they would not otherwise have been
C2T38/l/LW 281 1/3/90 Bond(Z) opened up by the courts. This Act, that is the
AD(JR) ACT,was not to be used as a tool to enable
the assessment processes to be opened up.
What that means in effect is that the statute
has been given a meaning by the Parliament that it
does cover all those intermediate steps.
So that, to that extent, we would submit that
in this case it is appropriate to find that the
decisions in question are within the Act and thatthey are amenable to the jurisdiction of the Federal
Court under the AD(JR) ACT and that if - - -
BRENNAN J: Is there any power to make a finding as to the
fitness and propriety of a licensee relevant in this
case save the power conferred by section 88?
(Continued on page 283)
C2T38/2/LW 282 1/3/90 Bond(2)
MR ELLICOTT: Yes, section 85 - the one in relation to grant I will give Your Honours the references - grant
is 83A - - -
BRENNAN J: They were not involved in that exercise. MR ELLICOTT: No, renewal is 86AA. BRENNAN J: They were not involved in that exercise. MR ELLICOTT: Not in the second inquiry, in the first one we were. Suspension 88(2)(b)(i).
TOOHEY J: Is your reference to section 85 intended to remain
or do you withdraw that reference,Mr Ellicott, because
I cannot see anything in section 85 which is
relevant.
MR ELLICOTT: There is nothing about fitness and propriety· ,
I am sorry - there is nothing about ·fitness and
propriety in section 85 but it was a power which
it was open to the Tribunal to exercise. That is
what I meant by my reference to it. But it does not
inquire into fitness and propriety , either in the positive or the negative onus sense, on conditions.
BRENNAN J: Well does the question come down to this, that if
the focusing on the second decision so called, that the second decision is an exercise of power under
section 88?
MR ELLICOTT:
Yes, because they indicate what is the next step in relation to considering suspension or revocation.
BRENNAN J: Yes, and you treat the statutory power then as a
power, including a power to make intermediate
decisions leading to the ultimate exercise of the
substantive power conferred by the statute?
MR ELLICOTT: Yes, and therefore the decision about Mr Bond
is such a decision, and any other of the decisions we have referred to are such decisions if they
have that appearance of finality about them.
BRENNAN J: Can you prevent that argument going back to
questions of admissibility of evidence or any
other in:termed_iate questions?
MR ELLICOTT: Your Honour, I sought to make that - - - BRENNAN J: I understand the argument about discretion; that aside.
MR ELLICOTT: Yes, unless some principle is adopted of finality, in other words, something that will
inevitably have an effect on the ultimate decision,
C2T39/l/JL 283 1/3/90 Bond(2) some discretion of principle about that which,
we submit, would be very difficult to define in
advance, then all decisions along the track whichcan properly be described as decisions are decisions
within the meaning of the Act.
BRENNAN J: Which will need a Federal Court judge in every office?
MR ELLICOTT: No, it simply means that discretion will inevitably be applied, not only by the judges, but also at
the point where the question arises as to whether a
particular party is going to intervene or not but
the only intermediate definition would be one that
said something like this and that is that any
decision which has the appearance of finality about
it in the decision-making process, that is to say
that it will bind subsequent events, such as a
decision is amenable to the jurisdiction of the
Federal Court.
Now it may be that decisions about evidence
would not fit in with that category but on occasions
they may if they are decisions based on some view
of the law or some misconception that the Tribunal is
bound by rules of evidence when it is not and it may
decide we are bound by rules of evidence and therefore
we will reject this evidence. If they decided that
then, obviously, that could affect the ultimate
decision but if it was a decision which had no
operative ultimate effect then it may be one that
can be said not to be a decision.
(Continued on page 285)
C2T39/2/JL 284 1/3/90 Bond(2)
MR ELLICOTT (continuing): Now, my attempt at that definition perhaps only indicates why the Federal Court in
LAMB V MOSS was correct: that you do take this case
by case and not attempt an overall definition and
certainly do not attempt to exclude everything before
the final ultimate operative decision, eg in this
case, suspension or revocation. That would be, we would submit, quite contrary to what must have been
the perceived intention of Parliament because it
would not answer the needs of administrative review,
and it would probably give a lesser remedy than the
prerogative writs, and one would not want to say
that the AD(JR) Act was any less in scope than
the prerogative writs, and I would urge on Your Honours
the submission that LAMB V MOSS is correctlydecided, but also that Your Honours should not, at
this stage, attempt a final definition of what a
decision is, but simply adopt the case -by -case
process which the Federal Court was minded to adopt,
but certainly reject, and I say so with respect, the
notion that may be found in the judgments of
Mr Justice Northrop and Mr Justice Deane in the
Federal Court if it was intended to mean by that
that you could only look at, as in this case, the
suspension and revocation decision.
MASON CJ: It is a bit difficult to say, is it not, that the
wide-ranging definition or description of reviewable
decisions that you contend for is something that was within the contemplation of Parliament, and it would lead to extraordinary fragmentation of the decision- making process if every preliminary decision on the
way to an ultimate determinative decision were
subject to judicial review?
Is it not possible to, as it were, look at a
midway course?
MR ELLICOTT: That is what I was suggesting.
MASON CJ: For example, here we are confronted with
decisions of an important kind which immediately activate the possibility of the exercise of powers
adversely to the interests of individuals. Now, is it possible to say that reviewable decisions
comprehend decisions of that kind without necessarilyincluding all the preliminary decisions that you
would embrace.
MR ELLICOTT: Your Honour, I attempted the definition and I stopped short of saying "having an effect on individuals" because there may be cases where it does not have
that effect, but nevertheless has an operative effect
and is final in the sense that it is going to have
an effect on a process in the exercise of the particularpower which is the decision-making process, and subject
C2T40/l/FK 285 1/3/90 Bond(2) to that, I think what Your Honour is saying is not
different, in substance, to what I was putting.
Obviously, once one says that Parliament did not
intend to deal with all preliminary matters, that
can be accepted, but what one has to be careful
of is not to allow the word "preliminary" to
colour a situation where something may be decided
in the early stages of a proceeding which is rather
critical to the ongoing process.
Really, coming back to this proposition, we
would submit that the purpose of the Act is to ensure
that the administrative process was kept free of
errors of the description mentioned in section 5, and that in order to do that the process could be
looked at at any stage where those errors could be
found to exist in the exercise of a power under
a statute, and that it was intended to do so in
circumstances where the decision had, if you like,
an operative effect on the next stage of the
decision-making process.
(Continued on page 287)
C2T40/2/FK 286 1/3/90 Bond(2)
BRENNAN J: A legally operative effect? MR ELLICOTT: Well, practically, too.
BRENNAN J: Well, that might be the point of division
between the proposition you put and the proposition
the Chief Justice invited you to consider.
MR ELLICOTT: If that is a distinction - I did not understand His Honour to make that distinction but if it is
then if a particular decision, for instance the decision not to accept certain evidence is made
and that evidence is clearly relevant to the
inquiry, then we would submit that that could be
attacked as a decision. It may be attacked as
"conduct" but just looking at "decision", we would
say that could be attacked as a decision.On the other hand, if the decision was made to admit evidence that was clearly irrelevant to the inquiry or took into account an extraneous
consideration and it involved the practical
consequence that the inquiry was going to be greatly
enlarged then that is another point at which there
would be - it may not have an effect in law in
one sense but it would have a practical effect
on the conduct of the proceedings.
It may be, in a given case, depending on what
you mean by an effect in law, that the practical
effect is an effect in law but if there is a
distinction between the two we would submit one
has to look at practical effects as well in
determining whether a decision is reviewable.
Your Honours, I think that is all I can
helpfully say in relation to LAMB V MOSS.
MASON CJ: You are making admissions now.
MR ELLICOTT:
Only, Your Honour, because it is 20 past 12 and I think it is a subject that, probably, although
it could be expanded by me, would not assist the
great knowledge that Your Honours already have
of the subject.
MASON CJ: On that note, I think, we will call on Mr Sheller.
MR ELLICOTT: If Your Honour pleases.
MASON CJ: Yes, Mr Sheller. MR SHELLER: If Your Honours please. Your Honours, the
first point or the instruction point about the
use of the expression "no longer": generally, as
to that, may we suggest that the consequence,
C2T41/l/ND 287 1/3/90 Bond(2) if it be the consequence, of a tribunal which has
been misled by a licensee and as a result of that
misleading evidence coming to a conclusion not
being able to look under section 88 as to whetheror not, in its opinion, in the light of that the
licensee was fit and proper is startling and, we
would respectfully submit, irrational. And may I just, in that regard, give Your Honours, without going to it, but we will hand up copies of the
sheets, reference to page 26 of Pearce's Statutory
Interpretation, the third edition, and
particularly what is said in MURRAY-MORE.
Your Honours, on a more textual basis, it
is helpful if oneunderstands what is meant by the
expression "no longer" and, Your Honours, according
to the Shorter Oxford English Dictionary that means
"not now as formerly". What the Tribunal is concerned with, firstly, is whether or not the
licensee is not now fit and proper. The "as formerly" assumption that comes into the equation refers
back to earlier satisfactions or want of
satisfaction by the Tribunal.
Reference has been made, Your Honours, firstly
to the grant section which is section 83A(4) which
provides that:
The Tribunal shall refuse to grant -
if it -
is not satisfied that the person:
(i) is a fit and proper person to hold the
licence -
Section 86AA(4), which is concerned with renewal, provides; in terms of fitness and propriety, that:
The Tribunal shall refuse ..... only -
if satisfied that the person -
is no longer a fit and proper person -
When one comes to section 88, one is looking in the
expression "no longer" at the assumption that the Tribunal has, under one or other of those
sections, either on grant or renewal been so
satisfied or not so satisfied.
C2T41/2/ND 288 1/3/90 Bond(2)
MR SHELLER (continuing): We respectfully submit that no law flows from the expression "no longer than that",
and that the question remains whether or not theperson is now a fit and proper person and that is the question before the Tribunal under section 88
which was considered here.
BRENNAN J: You have to strain the language a little to get to
that result, do you not? That would have clearly followed if the words "no longer" had been put in before "satisfied"?
MR SHELLER: Yes, I accept that, Your Honour, but even if one finds them where they are, the first question is, "Is
it not now a fit and proper person?". Now, the only other work that the expression does is to point to the
obvious assumption that by the very fact that this is
an application for revocation or suspension the Tribunalpreviously has been satisfied or not satisfied
otherwise. That is how we put it, Your Honour. We respectfully submit that that is a sensible
construction and that it overcomes what would be a
highly inconvenient construction which leads to'What my learned friend Mr El 1 icot t says here, to his
saying that even if there is a revelation subsequent
to a decision of the Tribunal to renew, even if there
is a revelation then the Tribunal has been misled,
there is no way that the Tribunal can use its powers
under section 88.
Now, Your Honours, the way that the Federal Court approached it was to refer - and this is at Rage 241
of the appeal book, line 6 - to "supervening' events.We would respectfully suggest that it is not necessary
to categorize some event that gives rise to the
exercise of the power under section 88 as supervening
but, Your Honours, if that is a helpful categorization
we would say here that the supervening event was the
revelation of misleading evidence, the revelation of
what Mr Bond had in his mind as revealed to Jana Wendt
view because, having referred to the need for a and that, indeed, probably the Federal Court took that supervening event, then went ahead and proceeded with the:--~·cer without imposing any limitation as to what events could be looked at. Now, Your Honours, the next matter that I would wish t6 come to is the matter of active concealment and,
Your Honours, if I could invite the Court to go to the appeal book at page 120 - Your Honours, may I just
hand up the page from the Shorter Oxford English Dictionary which deals with "no longer" and, also,
Your Honours, the extract from Pearce. The particular meaning that I gave Your Honours is under . the word "long" and it is meaning number 5.
C2T42/l/HS 289 1/3/90 Bond(2) Your Honours, if I could deal with the question
of active concealment and what was said by my learned
friend, Mr Gyles, about the part of the Tribunal's
finding which is found at pages 120 and 121 of the
appeal book and the error that was adverted to by
reference in evidence that had been given by
Mr Aspinall. Your Honours, that, we submit, played
no part in what the Tribunal had to say about the
misleading evidence that had been given to it and oneonly has to look to see that at the bottom of page
121 and reading on from there when the Tribunal
said:
On any view of the matter, that material
relating to the meeting between Mr Bond
and Sir Joh Bjelke-Petersen on
| ' | 17 February 1986, and material relating |
| to activities in January and February | |
| generally of that year, was not presented | |
| to the Brisbane inquiry. In view of our | |
| findings in relation to Issue 1 it can | |
| be seen that the omission of these two | |
| areas of evidence allowed a fundamental | |
| misconception to exist in assessing the | |
| nature of the transaction. |
(Continued on page 291)
C2T42/2/HS 290 1/3/90 Bond(2)
MR SHELLER (continuing): Now,Your Honours, if one can back track before continuing over the page,
reference has already been made this morning to what
was said at page 105 of the appeal book about thenew material that was before the Tribunal in this
second inquiry and that is described in the first
paragraph and the second paragraph on page 105 and
I think it has been read to Your Honours.
Now the context of that is taken up at the
beginning of page 122 and the Tribunal then says that:
In dealing with the question of whether or not
the Tribunal was misled, we have carefully
adopted the approach urged upon us by Mr Bond's
counsel,to take an objective view of the
statements, the further oral evidence and thereport in the QTQ inquiry.
And then the Tribunal goes on to say:
In relation to the "50/350 split" and the failure
of this matter to be mentioned in the QTQ inquiry,
we refer to paragraph 84 of Mr Bond's statement
to this inquiry which we set out as follows:
And then it is set out. And, Your Honours, the effect
of that statement and,indeed, the material that follows
on page 123 is as follows,that it was the evidence
that had been given to the 1986 inquiry that in
February 1986 Sir Joh and Mr Bond were still negotiating,
that no final agreement had been reached until Marchor April and that no mention was made to the 1986
inquiry of the 50/350 proposal. What emerged, of
course, before this inquiry and which is summarized
at page 123 and referred to elsewhere, is the
existence of the telex, the evidence of Sir Joh
himsel~which made it as plain as could be that in
fact agreement on the $400,000 had been arrived at
in December 1985 and particularly in point was the telex which was set out in full by the Tribunal, the telex calling upon these solicitors to prepare
a deed.
(Continued on page 292)
C2T43/l/LW 291 1/3/90 Bond(2)
MR SHELLER (continuing): Now, none of that was mentioned in the 1986 inquiry and, indeed, on page 123 at line 6,
the Tribunal said that it took:March is misleading -
the view that Mr Aspinall's evidence to the in
and so on. Your Honours, it is that material that
leads to the finding that was ultimately made that
the evidence that had been given was misleading,
it was all new material, the Tribunal was bound to
investigate it and it came to the conclusions it
did as a matter of fact.
DEANE J: Mr Sheller, what you say may well be right but I find it very hard to follow in that if you go to
page 120, the last paragraph is:
If this submission were accepted, then the licensee would be justified in claiming
that it had no duty to make a full
disclosure of other relevant information.
And, they say on a mistaken factual basis that the
submission is not accepted.
MR SHELLER: Yes, Your Honour. DEANE J: Now, in other words, we start with the assumption that their rejection of that submission cannot stand.
MR SHELLER: Yes, Your Honour. DEANE J: Now, what you say may well be right but I do not see, or I do not follow, how it leads to the
argument or the conclusion that a finding based on a
wrong approach that the licensee was not justified
in its claim that it had no duty to make a full
disclosure can, none the less, stand.
(Continued on page 293)
C2T44/l/JH 292 1/3/90 Bond(2) MR SHELLER: Well, Your Honour, we respectfully submit
this, that what one finds is that when they
approach that matter they approach it in the way
that is set out commencing on page 121. It is
a separate exercise altogether, Your Honour. That
is no part of the exercise that goes to misleading
evidence. The misleading evidence, Your Honour, is Mr Bond's evidence.
DEANE J: Well that depends a lot on the meaning of "on any
view of the matter".
MR SHELLER: Not entirely,Your Honour. It depends upon what is said at the top of page 122, because what
they say they had done, is:
take an objective view of the statements,
the further oral evidence and the report inthe QTQ inquiry.
DEANE J: But on the basis that there was a duty to make a full disclosure of other relevant information, because they have already rejected that submission. MR SHELLER: But Your Honour, with respect, not, because the starting point in this is what Mr Bond had said to
that inquiry. Mr Bond had said to the inquiry that the meeting on 17 February:
I again indicated to Sir Joh that $400,000 was a lot of money and I again tried to negotiate
Sir Joh down from his figure of $400,000.
And so on. Now the point that is made, Your Honour,
is that that evidence ignores and indeed is entirely
inconsistent with the truth of what happened at that
meeting. That is to say, the matter had long been
settled, but Mr Bond was seeking to have payment made
by a payment in cash of $50,000 and a payment of
$350,000 by some other means. Now Your Honour, we respectfully submit that it is quite clear and indeed
it has been done apparently on the basis of an approach that was urged by Mr Bond's counsel. But what they are looking at there are the statements,
the oral evidence and the report, and that is what
we submit.
DEANE J: I can see the great force in that. It still leaves this query though and that is, ln the very forefront
of their approach on an obviously basic mistake of
fact, they say they reject a submission that there was
no duty to make a full disclosure, it can be assumed
that the rejection of that submission did not colour
the whole of their approach to the level of candour
during the earlier inquiry.
C2T45/l/CM 293 1/3/90 Bond(2)
MR SHELLER: But, Your Honour, what we say is that one does not have to make an assumption because they
themselves, at the top of page 122, say exactly what they are doing, and they say what they are doing is abiding by the very approach that was
suggested to them by Mr Bond's counsel.
DEANE J: But in the context of rejection of a submission that there was no need for full disclosurable
relevant information.MR SHELLER: There is no doubt, Your Honour, that that is what is said on pagesl20 and 121, but we submit,
Your Honour, that without making assumption, as a
matter of the way the finding reads, that is
not what they take into acount when they come to
what we would respectfully submit are very
significant matters, which go to what is the finding,
Your Honour, is misleading evidence.
DEANE J: I do not want to take time, but this is troubling me.
MR SHELLER: Yes, I appreciate that.
DEANE J: It does qo to the whole approach as to whether you say, ?.These. people are facing specific allegations.; they are not going to confession, as it were, they are coming here to answer those allegations." They
simply have to answer them and to say, ''We areapproaching this on the basis that these people have to disclose to us all relevant information." MR SHELLER: But, Your Honour - and I do not want to
unnecessarily repeat what I am saying, Your Honour,
but what we say is that the pivotal point of this
is Mr Bond, if it be volunteers, or gives the
evidence, or provides the evidence of what happened
at that meeting - now, that is the pivotal point,
Your Honour. That is just wholly inconsistent with
what the Tribunal found happened at that meeting.
DEANE J: But it is not enough to say the Tribunal probably
were not affected by that wrongful rejection of the
submission. You must say it is apparent they
could not have been. Do you agree with that?
MR SHELLER: Yes, Your Honour, and I do say that, and I say it, Your Honour, on the basis of what they say on
page 122.
C2T46/l/FK 294 1/3/90 Bond(2) MR SHELLER (continuing): Now, Your Honours, may I just say
that in addition to the material that is- set
out there, one has also the question of the
evidence of Mr Lodge who is described on page 123,
at line 18:
as the solicitor advising the Bond
interests -
Now it is pointed out there that at the· 1986 inquiry
he gave evidence and he said that he saw the
matter as being somewhere between $100,000 and
$300,000, and that is set out there and then he
is asked whether he spoke to Mr Taylor, and then
at page 124 the Tribunal continues:
In this Inquiry, Mr Lodge gave evidence
when con:lillenting on a file note of Mr Taylor's recollection of a telephone conversation .....
This evidence referred to under Issue 1
clearly indicates that a figure of $50,000
was being discussed by Mr Lodge as themaximum Mr Bond could pay on the action.
And, Your Honours, that particular passage at,
Your Honours, I think it has already been read but
may I just give Your Honours a reference to it, is
found at page 113 in their finding, and before
they came to that at the bottom of page 112 the
Tribunal found that:
Prior to meeting ..... on 17 February 1986,
Mr Bond was aware of Mr Lodge's view that
the maximum sum which could be attributed to the defamation settlement was $50,000.
Now, the Tribunal said, and I invote Your Honours to go back again to page 124 at line 16:
This view -
that is to say the $50,000 view - was not placed before the QTQ hearing. The
Tribunal relied on the earlier evidence
in respect of what was asserted as a
con:lillercially justifiable figure of $400,000.
It is difficult to see how a similar submission could be sustained from a base of $50,000.
~?2~1/JL 295 1/3/90
MR SHELLER (continuing): And, then they said that so far as that was concerned, while on the bounds of
probabilities they would have considered it
intentional applying some higher degree of proof,
they were not prepared to make such a finding.
DEANE J: Mr Taylor was Bond's own solicitor? MR SHELLER: No, I think Mr Taylor, Your Honour, was the
insurer's solicitor.
DEANE J: I see. Biggs and Biggs were the insurer's solicitor.
MR SHELLER: Yes. Your Honours, this comes conveniently to the point that it made about some inconsistency
between the two findings and, Your Honours, one can
summarize this, we would respectfully submit, andYour Honours have been taken to a number of
paragraphs in the decision that was made in May,
I think it was, · 1987. The difference was between some commercial judgment made to remove a liability
in a defamation action where there was a potential
verdict of something between $100,000 and $300,000
and, no doubt, costs and inconvenience and one thing
and another that could be added on to that, which
the Tribunal then thought was unusual between that
and what was shown to be no longer commercially
justified in the sense that as the result of a
defamation action $50,000 was the upper limit, that
Mr Bond did not believe was justified in settlement
of a defamation action and that, in fact, he believed
that if he did not settle it, the Premier might harm
his interests in Queensland; if he did not settle
it at that figure of $400,000.
Your Honours, we would respectfully submit
there is nothing inconsistent in that. It is just an
entirely different type of payment and - - -
(Continued on page 297)
C2T48/l/JH 296 1/3/90 Bond(2) DEANE J: Mr Sheller, I am sorry, but while we are on this
can I take you back to page 113?
MR SHELLER: If Your Honour pleases.
DEANE J: It is significant, it seems to me, as to whether
Mr Taylor is saying the maximum Bond can do is
$50,000 or whether Mr Lodge is saying that the
maximum that the defamation will carry is $50,000.
Which is it? The Tribunal obviously seems to read it as Mr Lodge accepting that $50,000 was the maximum. What is there does not support that.
There is probably something else where they_- - -
MR SHELLER: Your Honour, I understand and I will have to check where one finds this but I understand, Your Honour,
this is Taylor's file note as to what Mr Lodge said
to him on the telephone so that that is an expressionof Mr Lodge's opinion.
DEANE J: If that is so,that answers my question.
BRENNAN J: That is Mr Lodge's evidence that is recited.
MR SHELLER: Yes, that is Mr Lodge's evidence. BRENNAN J: The question is:Mr Lodge's agreement that that is
probably a fair interpretation, is that a fair interpretation of what he is alleged to have said
or what Mr Taylor is alleged to have said?
DEANE J: Or what Mr Taylor wrote?
BRENNAN J: Or what Mr Taylor wrote?
MR SHELLER: Your Honour, I understand it to mean that it is a fair interpretation that Mr Lodge's view as expressed
in that shorthand note of what he said and as
expressed to Mr Taylor was~tha.t the maximum that it
could carry waa·-about $50,000.
(Continued on page 298)
C2T49/1/LW 297 1/3/90 Bond(2)
DEANE J: But I thought I saw evidence elsewhere that the Bond group said that the insurers had said that the
maximum was $50,000.
TOOHEY J: Mr Sheller, if you look at the foot of page 112 to
the top of page 113 there is an assessment by the
Tribunal that Mr Bond was aware of Mr Lodge's viewthat the maximum sum which could be attributed was
$50,000. Quite where that is derived is another matter.
MR SHELLER: Yes. Your Honour, I understand it to derive from what they then set out in the following paragraph.
I am told, Your Honours, that, in fact, it was a view
both of the insurance company and of Mr Lodge, of the
insurance company's advisors.
'
DEANE J: Mr Sheller, it would help me if you could subsequently direct me to - I have seen where the Bond people say
somewhere that they understood the insurers had said
the maximum was $50,000. I would be grateful if you
could indicate to me where Mr Lodge said, or where it
appears that it was Mr Lodge's view that the maximum
was $50,000.
MR SHELLER: Yes. Your Honour, I understand that it is on this page, page 113.
TOOHEY J: But why would Mr Lodge be expressing a view,
assuming there was no rift between insurer and
insured? Did it matter a great deal what the insured's solicitor thought? MR SHELLER: I am not sure of the answer to that frankly, Your Honour. It certainly would have mattered to
Mr Lodge, we would submit, because, of course, this
was a view that was expressed within days before the
meeting of 17 February 1986.
(Continued on page 299)
C2T50/l/HS 298 1/3/90 Bond(2)
DEANE J: But following on what Justice Toohey said, because this is what my impression was, I read that in the context as saying, "Well from the insurer's point of view the most that Mr Bond can do is $50,000", not Mr Lodge saying, "The maximum Mr Bond can do is $50,000". It was a context where Mr Bond was going
to talk to the people. MR SHELLER: Your Honour, I think I had better think about that a little more carefully. What we submit, Your Honour,
is that this is Mr Taylor's file note of what
Mr Lodge said to him. That is Mr Taylor of
Biggs & Biggs. Now, who else expressed a similar view, Your Honour, I am not sure, but the view that was taken by the Tribunal, based upon that material and it may be other material,Your Honours, and we
will check that, but certainly based on that material,
was that that was Mr Lodge's view of which Mr Bond
was aware.
DEANE J: Mr Taylor may make it clear in his evidence if he gave evidence. MR SHELLER: May I come back,Your Honours,and I will just try and deal with that a little more eloquently than that? Your Honours,the other matter that emerges clearly and indeed it emerges clearly from what my learned friend,
Mr Ellicott,referred to is that Mr Bond, in engaging
in this negotiation and making what he described as
a commercial judgment, was doing so as the head of
the group and,of course,he was and has at all times
remained the executive chairman of the holding company.
(Continued on page 300)
C2T51/l/CM 299 1/3/90 Bond(2) MR SHELLER (continuing): And, Your Honours, the significance
of that is that it is not simply that he was
engaging in this because of his position as
chairman of the licensee, so that there is some new
factor that enters into the equation in terms of
what the Tribunal referred to as his interference
in the matter, by reason of the fact that he is nolonger chairman of the licensee, his negotiating
position was as head of the group.
Your Honours,that appears from the material
in a summary form that Mr Ellicott referred to
yesterday - that is to say the material 2. 50 and so on in the 1986 finaing, but, Your Honours, may I also
hand up the statement that was made by Mr Bond to the
1986 inquiry - statement of evidence; the statement
that was made to the 1989 inquiry - portion of that
statement, and also portion of his transcript,
Your Honours, which we would respectfully submit
makes it absolutely plain as to the position frorJ Wllich
he was negotiating - and if I could hand those
documents up to Your Honours.
BRENNAN J: Was there ever any doubt about that? MR SHELLER: So far as I know, not, Your Honours, but I was concerned at the submission that seemed to be being
put, that in some way the fact that he was no longer
chairman of the licensee meant that it was not correct
to say that he was in a position of continuing
interference in the way that it had them suggested by
the Tribunal, namely in the part he played in the
defamation proceedings. And all we would wish to
make of that, Your Honour, is quite simply this,
that in terms of what he was doing his position
was exactly the same in 1986 as it was in 1989. That
is to say, he was head of the group.
MASON CJ: Now, Mr Sheller, you are not going to complete your
submissions within five minutes, I take it.
MR SHELLER: No, Your Honour. MASON CJ: That being so, we will adjourn until 2 o'clock.
AT 12.57 PM LUNCHEON ADJOURNMENT
C2T52/l/FK 300 1/3/90 Bond(2) UPON RESUMING AT 2.01 PM:
MASON CJ: Yes, Mr Sheller. MR SHELLER: If Your Honours please. Your Honours, may I go back to the passage at page 113 of the appeal
book. Your Honours, Mr Lodge, as well as being a solicitor, was a director of Bond Corporations
Holdings. It appears from the transcript, and
this is a passage - I am sorry, Your Honours,
what I said to Your Honours is wrong. He was
apparently a director of QTL.
Your Honours, sometime in 1985 or early
1986, Mr Jones sought advice from Mr Lodge about
this defamation claim and that appears in the
transcript at 2083 to 2084. Mr Taylor was ofthe firm of Biggs and Biggs which had originally
acted for the insurers but the insurers considered
themselves off liability some time in November
1985.
Thereafter, Mr Taylor or Biggs and Biggs were engaged by Mr Aspinall to act for QTL direct.
Your Honours, so far as this file note is concerned,
the first witness between Mr Taylor and Mr Lodge
that gave evidence about it was Mr Taylor and
may I hand up to Your Honours part of the transcript
of evidence of Mr Taylor which was given in the
1988 inquiry.
Your Honours, it is probably necessary to
read all the four pages that I .· have handed up but
it appears from the first of those pages, 473,
that there was a memo of a conversation held
on 10 February.
(Continued on page 302)
C2T53/l/ND 301 1/3/90 Bond(2) MR SHELLER (continuing): Your Honours will recall that the
particular conversation referred to in page 113
of the appeal book is 11 February. It was another
conversation on 10 February, and that was a
conversation between Mr Taylor and Mr Lodge and
he was asked, Mr Taylor, about two-thirds the waydown that page:
There are a number of matters in quotes there
so I think you told us it was your practice to
put in quotes things said to you on the
telephone. Is that correct?
MR TAYLOR: That is the case.
Now, he was then asked some questions about that
file note and that continues on on page 474 and at
the top of page 475 he was asked:
And then you answered the three questions that
you had been earlier asked for your advice.
Is that correct?
MR TAYLOR: Yes. MR ROBERTS: I remind you, the first question that you were asked was your views as to the
amount that Sir Joh would receive if the matter
went to court and he was successful and what
amount did you advise as your views of theamount that he would receive?
MR TAYLOR: $30,000 to $50,000.
Then he was asked:
as to the likelihood of success ..... What
advice did you give?
MR TAYLOR: I took the view that the premier would not succeed in the action.
And then the third question:
MR TAYLOR: I did not answer that question in fact. Then about two-thirds the way down page 475:
MR ROBERTS: Can I take you next to transcript of memorandum of 11 February 1986, telephone
call, Harry Lodge?
And he is asked:
This records a telephone call that you had
with Mr Harry Lodge, correct?
C2T54/l/JL 302 1/3/90 Bond(2) MR ROBERTS: Contains the words, "Spoke to
Alan". What is that a reference to?
MR TAYLOR: I took - Mr Lodge informed me that he had spoken to Alan which I presumed
to be Mr Bond.
(Continued on page 303).
C2T54/2/JL 303 1/3/90 Bond(2) MR SHELLER (continuing):
MR ROBERTS: All right. It goes on: "He will
ring the plaintiff and arrange to meet next
week". Is that correct?
And is answer was ''Yes". Now, Your Honours, that
part of the file note is not included in the excerpt
on page 113. It is at the beginning before one gets
to the next part which is referred to, a third of the
way down on 475a because he is asked:
It goes on: "Maximum he can really do is about $50,000". What is that a reference to?
MR TAYLOR: I took that to mean that either Mr Lodge or Mr Bond had reconsidered the matter
and thought that the maximum settlement would be
about $50,000.
Now, Your Honours, the point of going through that
is to say that that demonstrates that the first person
who was asked who had made this note was saying, in
effect, that that was what Mr Lodge had said to him.
Now, Your Honours, it is as against that, or
following that, that one gets to the next passage of
transcript which I hand up which is the passage which
includes what is quoted on page 113 and that is
evidence that is taken some time later. If Your Honours
look at the first of those pages which is 1925 it starts
by his being asked incorrectly:
Well I will ask you to comment on Mr Lodge's
record?
And he replies:
Mr Taylor's record.
And then the next passage that follows is the commencement
of the file note and is going to embrace shortly the part taken up in 113:
Sorry, I beg your pardon, Mr Taylor's record of
11 February 1986. He has: telephone call,
Harry Lodge. Then he records: spoke to Alan.We would deduce from that, I imagine, that you
told him that you had spoken to Mr Bond. He goes on: he - that is, presumably Mr Bond again -
will ring the plaintiff and arrange to meet
next week. N.ow, it would, as an interpretation
of that, but please correct me if I am wrong,
that you did speak to Mr Bond, that you did not
reach any resolution of the problem, but you did
extract an indication from Mr Bond that he would
talk to Sir Joh and arrange indeed to meet him;
correct, so far?---Yes.
C2T55/1/LW
304 1/3/90
Bond(2)
And then, Your Honours, we come to the part that
is picked up on page 113 and which sets out what is
there over to the second line on page 1926 and then
it goes on:
So it would seem ithat you indicated on the 10th that you would take the matter up with Mr Bond. It seems that you have done so -
and so on. Your Honours, we submit that from that it was plain enough that what had been said in the
quotation marks, ''The maximum he can really do is
about $50,000'' was something that was said by
Mr Lodge. That he was then asked:
one interpretation of that, I suppose, Mr Lodge,
is that the maximum that defamation could carry
is about $50,000.
And he says:
That is a possibility.
He was asked:
Do you accept that as what was conveyed?
He said:
That is a possibility.
He asked:
Well, is there any other intepretation -
He says:
I think that is probably a fair interpretation.
And, Your Honours, as I think I mentioned before lunch,
it was the following week that the meeting of
17 February took place where the 50/350 proposal was
put forward. Your Honour Justice Deane asked me about material
relating to advice from an insurer. I am no.t _sure Your Honours, that we have isolated out the part that
Your Honour was particularly referring to but there is a statement which we will provide by Mr Coppin who was
with Jardines Insurance which was the insurer for the
Bond group.
C2T55/2/LW 305 1/3/90 Bond(2)
MR SHELLER (continuing): According to his statement, Mr Coppin made inquiries, including inquiries of the
insurer~ concerning what amount they regarded as likely to be recovered under this claim. In his evidence at pages 1265 to 1266 of the transcript
he said that he passed on to Mr Jones his hunch -
that is, Mr Coppins' hunch - that $50,000 would
be the maximum that could be obtained from the
insurers for any settlement.
Now, Your Honours, I am not sure that that is
the particular matter that Your Honour had in mind
but that certainly is some material that was before
the 1988 inquiry.
DEANE J: Mr Sheller, when I asked you those question, I was
| ' | under the mis.appr.ehension that Mr Taylor was acting |
| for the insure:i.. |
MR SHELLER: Yes, well I undoubtedly contributed to that misunderstanding because I thought he was, too,
Your Honour, but he was not by the time of the conversation in February 1986.
Your Honours, I wanted to say something which
in a sense gathers together material to try and put
it into brief perspective and it is an answer that I
make to the submission that the conclusions of the
Tribunal were in some way irrational or unreasonable.May I just list these matters for the sake of putting
them in order and reminding Your Honours of them: that
one had,firstl½ the Bond controlling interest of
Mr Bond, as executive chairman of Bond Corporation
something in the order of 65 per cent; one had, secondly, recorded at page 127 of the appeal book which squarely
raised the question as to what Mr Bond's belief was;
one had, fourthly, his intervention as head of the
group in the settlement of the defamation matter without
the knowledge of most of the board of the licensee and
that appears, Your Honours, in the passages to which
my learned friend, Mr Ellicott,referred in the 1986 findings at 2.56.
(Continued on page 307)
C2T56/l/JH 306 1/3/90 Bond(2)
MR SHELLER (continuing): Indeed, without the approval of the board and, indeed, as appears from that material under
this head, it has to be remembered that it was
Mr Bond who was making the commercial judgment that was referred to, that it was in the interests of the Bond group and, as I mentioned before, that it was
made by him as head of that group.
One then has, Your Honours, the Rothwells
matter and it is important there to remember that
when the Tribunal spoke of those matters it spoke of
them as matters which involved, amongst other things,
initiation by Mr Bond of management decisions and that,
we would respectfully submit, on any view, falls into
that area. My learned friend referred to the part of
the submission that had been made by counsel assisting
and we do not withdraw from that. It was, indeed, a
factoring transaction of a substantial size, $110 million,
to be entered into by a broadcasting company outside
any possible ambit of a broadcasting business with
a friend of Mr Bond's, and that is what appears in
that part of the submission that my learned friend,
Mr Ellicott, tendered.
One then has, Your Honours, the five factors of conduct which are described in the appeal book at
page 186 and in terms, Your Honours, of an ongoing
situation which my learned friend referred to, one must not, we respectfully submit, forget that one of
those factors was the threat to use TV staff for
purposes quite extraneous to broadcasting purposes,
namely to check AMP share transactions_ and so on.
Now, we would make this comment about all that
material, that it is hardly appropriate, as my friend
seeks to do, to describe that as being some isolated
incident. It was a series of incidents spread over a
period of time and then, Your Honours, all that has to
be looked at in terms, firstly, of what Mr Bond said to the
interviewer, his attempts to disguise the matter and
the amount of the payment, $400,000.
(Continued on page 308)
C2T57/l/HS 307 1/3/90 Bond(2)
MR SHELLER (continuing): And we would respectfully submit that when one looks at all those matters which are
embraced by the findings of the Tribunal, it
would be impossible to say that the ultimate conclusions
reached were irrational or unreasonable. Your Honours, some criticism was levelled at the Tribunal's approach
to "fit and proper" and that is something that they dealt
with at page 187 of the appeal book and,Your Honours,
we submit that what is said on that page is not an
attempt to provide an exhaustive or even indicative
definition of what the phrase means. It simply refers to a number of considerations which we would
respectfully submit are entirely appropriate and takes
up as part of that, what had been said in the
WESTERN TELEVISION case. But, Your Honours, what we
would respectfully submit is more significant than that
is that the Tribunal itself then went on, and I went
through this when I put my opening submissions on
187 and 188 and continued on 189, of the particular
reasons why, in its opinion, these various matters
amounted to unfitness and,Your Honours, we would
respectfully submit, that when one looks at that it
is impecc:able and certainly well within the bounds
of what the Tribunal was entitled to take into account
in forming the views that it did.
Your Honours, we have already made this
submission, but may I just repeat it again, that
particularly if one looks at page 184 in the
reasoning, it is as plain as can be that the Tribunal
did not regard itself as constrained as a matter of
law or construction of section 88 to consider only
Mr Bond's personal fitness and propriety.
(Continued on page 309)
C2T58/l/CM 308 1/3/90 Bond(2)
MR SHELLER (continuing): And, indeed, what is really attempted at some length in counsel's submissions
is to dredge up from what had been said at various
stages by way of submission or otherwise by counsel
assisting what was in the mind of the Tribunal,
contrary, we would respectfully submit, to what
appears on the face of the document. And, Your Honours, we would submit that that is not a permissible approach,
or is certainly an approach which ought to be undertaken
with great caution. May I just hand up to Your Honours
in respect of that, a passage from the fourth edition
of 9-e Sr.ith, which is found at page 335 in that, and
one of the cases, which I will not go to, Your Honours,
but a passage in a case of RV THE LICENSING AUTHORITY,
(1949)2 KB 1 at pa8e 22. It is a passage in the
judgment of the then Lord Chief Justice Lord Goddard
and, again, Your Honours, if I may just hand up thatparticular page to Your Honours.
We would respectfully submit that it is obvious
enough that the Tribunal is not bound to accept
submissions put to it by counsel assisting, and that
if it be right to say that one can read counsel
assisting's submissions as suggesting that, as a
matter of law, the Tribunal had no choice, then the
Tribunal did not accept that submission.
Your Honours, again on the question of
undertakings, which my learned friend seemed to seek
to use in support of that same submission, it is
important, we respectfully submit, to remember that
as appears from page 189 at line 25, the Tribunal gave
those undertakings serious consideration. It said
that it had a discretion, as appears from the bottomof page 189, as to whether it accepted the proposals
or not, and we would respectfully submit that that
plainly must be right. It realized, as appears from
the top of page 190, that the exercise of that discretion
was an important function, and it appreciated the
serious nature, as it said, of any consequences wtich could
arise depending on its decision. (Continued on page 310)
C2T59/l/FK 309 1/3/90 Bond(2)
MR SHELLER (continuing): Your Honours, a good deal has been said about those undertakings and we dealt
with them in-chief and in our written submissions
but the critical feature, we would submit, thatthe Tribunal pointed up was that they did not
deal with two fundamental matters; that is to
say, Mr Bond's ultimate shareholding controlling
interest and, secondly, Mr Bond's conduct asthe Tribunal found it to be.
They expressly reserved - and this is at
page 190b, line 20 - the question of whether
or not undertakings would be accepted at some
subsequent stag~ as one might think, at the
appropriate stage, when the question of whether
or not there should be revocation or suspension
came to be considered.
We respectfully submit that there is nothing
unreasonable or improper or reviewable about
the way in which those undertakings were treated
and we would respectfully submit that there is
nothing in the refusal of the Tribunal to accept
those undertakings to support some contention
that the Tribunal found itself in some way bound
as a matter of law.Your Honours, the next matter, the question of whether or not the Tribunal considered itself
amenable to the jurisdiction, we have gone over
those and Your Honours have been referred to
the passages in the transcript. My learned friend, Mr Gyles, picked up a passage at page 159. May we just, when Your Honours look at that, invite
Your Honours to read on, as it were, to what
appears on the next page, 160, which clearly
puts that into its context and it is a passage
that I read Your Honours before and, particularly,
the passage where Mr Shand advanced a hypothesis
which the chairman of the Tribunal rejected.
(Continued on page 311)
C2T60/l/ND 310 1/3/90 Bond(2)
MR SHELLER (continuing): Your Honours, more importantly than that, we respectfully submit, it is quite plain that
all evidence that the parties wished to put before the evidence referred to which could be said in this context relevantly not to have been considered.
There was simply no evidence of the premier engaging
in importuning, as distinct from Mr Bond's belief as to what the premier might or might not do. It seems to be accepted from Mr Gyles's submissions that there
was nothing relevant available about the premier's
purposes or motives which was not considered, qnd
Your Honours will recall that phrase used in the
Full Court at page 250 line 2, and really, Your Honours,
what it comes down to is that the submission is trying,
we would respectfully submit, to make something outof the expression "nature of the transaction".
Indeed, at one stage, in the course of his
submissions, Mr Gyles referred to the trying of
culpability in a bilateral transaction. Your Honours, we respectfully submit that that was not what the
Tribunal was undertaking at all. The thing that set this going was what Mr Bond had said to Jana Wendt and
the issue was plain enough and it is set out at
page 104 and we have referred to that.
Now, Your Honours, I think I mentioned this
before, but may I just repeat it if I have, that
what the Tribunal said about Mr Bond's non-belief and
his belief amounted simply to this, that a payment was
made of $350,000 to the premier because he thought that
the premier might otherwise harm his interests
in Queensland.
(Continued on page 312)
C2T61/l/HS 311 1/3/90 Bond(2)
MR SHELLER (continuing): Your Honours, we respectfully submit that a payment of that sort to a person in power,
made with that belief, is well within the bounds
of what in a broadcasting related sense, the
Tribunal could regard as improper. Again,
Your Honours, the reasons why are set out in theTribunal's findings at appeal book page 188 line 1. Your Honours, on the question of decision,
may I just make the point again that at page 257 in
the appeal book, the Federal Court dealt with
LAMB V MOSS and it said that:
LAMB V MOSS stands, so far as relevant to
the present case, for the proposition that
a finding by a stipendiary magistrate that
a prima facie case has been made out in
respect of a charge of an indictable
offence is a "decision".
Now, Your Honours, that is, we would respectfully
submit, what LAMB V MOSS does stand for. What it
does not stand for, we would submit, is what appears
at the bottom of page 257, namely, that at some
point of time during what is a decision-making
process a finding of fact is made as appears hereand that some findings of fact have a special status
which makes them a decision.
Your Honours, we would respectfully submit
that the correct approach to what is meant by "decision"
is that to which my learned friend referred to before
from CHANEY's case in Your Honour Justice Deane's
judgment and while it may be a decision that is either
final or intermediate, it is a decision which
determines a question of substance or procedure.
We would respectfully submit that the finding about
Mr Bond does not answer that definition and, we would
respectfully submit, for those reasons is not a
decision even if one accepts fully what is said in
MOSS'~case and certainly not a decision if the
correct view is that expressed by Your Honour Justice Deane. (Continued on page 313)
C2T62/l/JH 312 1/3/90 Bond(2) 1:1R SHELLER (continuing): Your Honours, so far as conduct is
concerned, we would again say that that is directed
to some act normally one would expect of a procedural
nature, such as holding an inquiry or possibly, for example, taking evidence without cross-examination, for the purpose of ultimately making a decision and
that it would be a wide construction, although
undoubtedly conduct is a word of indeterminate
extent, to include within that individual findings
made in the decision-making process under an
enactment. Your Honours, so far as the attack is made on special leave being granted to us, we would
emphasize here that clearly there is an important
question of law arising under section 88, but quite
separate from that it has become abundantly plain,
firstly, that this is a most important matter in
terms of the size and reach of the undertaking. If
indeed, as we suggest, there are errors in the approach
of the Federal Court, this unusually, in the appeal
system, is the only appeal that we have, and that it
is now suggested by my learned friend,Mr Ellicott,
that there is a threshold point, which means that if
the Court were now to revoke leave, the matter would
go back to the Tribunal in consequence of the orders
of the Federal Court, but with a new and unresolved
threshold question as to jurisdiction.
Your Honours,there are I think only three shorter
matters, if I may just refer to them, that arose this
morning. Your Honours, it seemed, though I do not know that at the end my friend went as far as this, that
a submission may be being advanced that it was not
open in considering whether a corporation licensee was
fit and proper, to look at the conduct of individuals.
May I - and these are on our list,Your Honours - just
give Your Honours the references firstly to the
AUSTRALIAN STEVEDORING~ INDUSTRY BOARD case,88 CLR 121, a reference to the DAIMLER CO LTD V CONTINENTAL TYRE
& RUBBER CO, (1916) 2 AC 307 at 340 and to
MERCHANDISE TRANSPORT LTD V BRITISH TRANSPORT
COMMISSION,(1962) 2 QB 173. (Continued on page 314)
C2T63/l/CM 313 1/3/90 Bond(2)
MR SHELLER (continuing): Your Honours, there was some debate about what had been said at page 190 of the appeal
book about Mr Jones. This is at the bottom of page 190 -being:
at odds with Mr Bond over aspects of
a payment and his position -
not prevailing. A document was handed up by my learned friends concerning that and, Your Honours, as
we understand it - and it seems to us that it appears
from that document - the point of debate was not who
would pay. That was a matter that Mr Bond had determined himself from a quite early stage, as
appears from his statement. The point of debate was whether or not $400,000 was too much. Now, Your Honours, that appears from the document read and from the
statement of Mr Bond in terms of the decision that
the money be paid by the holding company.Your Honours, reference was made by my learned friends, both in oral and written submissions, to the
MUTUAL RADIO OF CHICAGO case, which is in folder E of
the submissions and if Your Honours look at page 6
in that, one factor which pointed against the conduct
there being relevant was that it was treated as
non-broadcast related. The fundamental feature, of course, here, as I mentioned before, is that by using
the expression "fit and proper" in terms of Mr Bond,
what the Tribunal was making plain, we would submit,
is it was talking of what it considered to be broadcast-related conduct. If Your Honours please, those are my submissions in reply.
MASON CJ: Thank you, Mr Sheller. The Court will consider its decision in this matter.
AT 2.40 PM THE MATTER WAS ADJOURNED SINE DIE
C2T64/l/HS 314 1/3/90 Bond(2)
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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