Australian Broadcasting Tribunal v Bond
[1990] HCATrans 24
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
Bond(2) MASON CJ BRENNAN J DEANE J TOOHEY J GAUDRON J QUEENSLAND TELEVISION LIMITED
Sixth Respondent
CONSOLIDATED BROADCASTING SYSTEM
(WA) PTY LIMITED
Seventh Respondent
NORTH WEST RADIO PTY LTD
Eighth Respondent
DARWIN BROADCASTERS PTY LIMITED
Ninth Respondent
C2Tl/l/HS 101 28/2/90 TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 28 FEBRUARY 1990, AT 10.02 AM
(Continued from 27/2/90)
Copyright in the High Court of Australia
MASON CJ: Yes, Mr Gyles. MR GYLES: Your Honours, may I hand up the material that was before the Federal Court. It was in the form of what was called
a hand-up brief. There are three volumes and I will be
making reference to it at various points during the
morning. Could I hand that up now, Your Honour?
MASON CJ: Yes. MR GYLES: They were not reproduced as part of the appeal book, but they are in the form that they were before the
Federal Court. Your Honours, the way they were organized in the Federal Court and are in those binders is as per
decision, the decisions having been identified in the
applications, but I will be taking Your Honours to those
parts that we see as being relevant before Your Honours.
Your Honours, yesterday at the adjournment I was endeavouring to support the submission that the Tribunal did not, in truth, take into account the body of evidence which we
summarized in the application paragraph to which I took
Your Honours yesterday. May I continue with that submission. First of all, Your Honours, in their decision the Tribunal did not advert to that body of evidence and did
not say that they took it into account. Section 25B of the
BROADCASTING ACT imposes an obligation to make a report
where an inquiry has been held and section 25B(l)(d),
any such report must contain:
the findings of the Tribunal and the
reasons for those findings.
C2Tl/2/HS 102 28/2/90 Bond(2) MR GYLES (continuing): That, on one view, would do no more
than spell out the obligation of such a tribunal
in any event .
BRENNAN J: Is this an inquiry to which section 25B applied?
MR GYLES: This is an inquiry, Your Honour,and the only question
would be whether the document is a report within
the meaning of the section.
BRENNAN J: Why do you say it is an inquiry? MR GYLES: It was 17C inquiry, Your Honour. BRENNAN J: Why do you say that? MR GYLES: Because that is the genesis of the inquiry they
were holding. It is an inquiry into the exercise of a substantive power and they must hold an inquiry before you revoke - before the Tribunal
revokes it must hold an inquiry - and that, indeed,
which went to the Full Court of the Federal Court I am reminded by my learned junior was the subject of the case during the course of this inquiry. BRENNAN J: Yes.
MR GYLES: Your Honours, the Tribunal in any event,in my submission,would be under an obligation if they
have taken into account a body of material but have
chosen to, in the end, give it no weight or if theyhave taken it into account and undertaken some balancing exercise they would be obliged to, at least, refer to that. BRENNAN J: Why? MR GYLES: Because in my submission a tribunal setting out its reasons for doing something is bound to at least refer to the consideration that they are or they are
not taking into account. BRENNAN J: What is the consequence of not doing so?
MR GYLES: The consequence of not doing so might be that they have failed to comply with 25B, it may be that they have failed in their duty to afford fair and procedural fairness. We are not complaining about that, Your Honour; what we are saying is that given the obligation under 25B and given the obligation
which was spelt out in a series of Federal Court cases and indeed other cases, a tribunal would give
its reasons on the footing that it is obliged to
refer to material bodies of fact. I do not mean that they have got to recite every fact, of course, Your Honour.
C2T2/l/JL 103 28/2/90 Bond(2)
BRENNAN J: Is this an attempt to outflank OSMOND's case? MR GYLES: No, not at all, Your Honour. BRENNAN J:
What is the power, the exercise of which is said to be affected by the failure to advert to evidence
which has been considered? MR GYLES: Your Honour, we are not here, as Your Honours
understand, attacking the decision. We are not saying that they failed to give reasons. We are saying that they did give reasons and they did not refer to this
body of evidence which is one factor tending to
support the submission we make that they accepted the
submission which was put to them to the effect that
that material was irrelevant. That is the only
purpose of my referring to this, Your Honours, that
because of the absence of reference to it in the
reasons, that is a good foundation for concluding that
they accepted the submission put to them that that
body of material was not relevant; there was no
balancing exercise required.
That that was put to them can be seen - I will
give Your Honours a reference to the cases in the
Federal Court and some other references on the duty to
give reasons. I use it only in the, perhaps, tangential way that I have outlined but this, in my submission, is the setting in which a tribunal would sit down to write
its reasons. I think the most recent of the cases was Mr Justice Wilcox in OUR TOWN - Your Honours, may
I give these references in a moment? We are having the cases copied. It may be that the Court will not
require them but I will come back, if I may, to fill
in the references on this point.
The submissions which were put to the Tribunal
can be found, Your Honours, in nand-up brief, volume trwo,
under divider lB and these were the submissions of
counsel assisting the Tribunal - that is -Volume tt'wo,
tab B. (Continued on page 105)
C2T3/l/JH 104 28/2/90 Bond(2) MR GYLES (continuing): Counsel assisting also spoke to these
submissions but so far as is relevant added nothing
of substance.
At page 6 of these submissions the approach the Tribunal should proceed by was put to them in three
steps:
(a) Determining which individuals affected by
adverse findings are by reason of their association
with the licensee companies such that findings as
to their individual fitness and propriety are
relevant to the question of fitness and propriety
of the licensees;
(b) Determining whether those individuals would
or would not be fit and proper persons to hold a
broadcasting licence; and(c) If they or any of them are not fit and proper individuals whether the licensees are thereby not
fit and proper persons.
Your Honours will recall the submission that I have made
that that approach would inevitably lead to the
Tribunal being led astray because step (b) is not one which is authorized by the legislation and the link
between (b) and (c) will almost inevitably deflect the
Tribunal from the correct consideration which was to take the licensee companies and ask the licensee
companies whether the conduct, character, et cetera,
of the individuals was such as to affect the fitness
of a company.
Then, Your Honours, at page 15 of the submission
which deals with the third step, step (c), "If it be
accepted that Mr Bond would as an individual not be
a fit and proper person to hold a licence, the
licensee companies, the subject of the inquiry,
are no longer fit and proper persons within the meaning
of the Act." Your Honours, perhaps that should be linked with the summary at the foot of page 13 and
the top of page 14. · It is submitted each of the adverse findings made in this inquiry considered individually could result in Mr Bond being found to be not a fit and proper person
to hold a broadcasting licence. When these matters are conceived compendiously it is submitted
that Mr Bond would not be a fit and proper
person to hold a broadcasting licence.
In other words, (b) is satisfied. You go to (c) and you
simply say once that unfitness is found the companies
are unfit. There is no reference in these submissions
to the body of material which was tendered as to the
way the companies had conducted themselves over the
years.
C2T4/l/LW 105 28/2/90 Bond(2) So we submit it is hardly surprising that
the Tribunal framed their decision in the way that
they did.
Our next submission, Your Honours, is that the
form of the Tribunal's reasons contain a good deal
of internal indication that they were setting out to
state in their reasons those matters that they
considered relevant. I will give Your Honours a list of those indications without taking time on them:
appeal book 184, line 16; 185, line 5; 185, lines
19 to 22; 186, line 10; 187, line 10; 190b, lines
7 and 10; and 190c, line 2. In other words, where
something was relevant they would say so.
Then, Your Honours, I handed up to the Court
yesterday the written submissions which were filed
in the Federal -or the outline of submissions which
was filed by the Tribunal as responded in the Federal
Court and those submissions are consistent with the submissions which have been put to the Tribunal, namely,
once unfitness of Mr Bond was found then that carried through to the unfitness of the company with
no reference to any other body of material.
(Continued on page 107)
C2T4/2/LW 106 28/2/90 Bond(2) MR GYLES (continuing): Now, Your Honours, overnight I have
looked at the transcript of the oral argument before
the Federal Court on this point, and what happened
was that - and I will hand that up to Your Honours
in a moment, but in the course of oral submissions
in the Federal Court, counsel for the Tribunal
handed up to the Federal Court the written submissionswhich had been made to the Tribunal; that is the submissions I took Your Honours to a few moments
ago.
The reason for that was that the judges of the Federal Court were following up on what basis had the
Tribunal proceeded: the same sort of questions,
Your Honour, we are looking at at the moment, and
what counsel for the Tribunal said to the Federal
Court was, well a good guide as to the basis upon
which the Tribunal proceeded is to have regard to
the submissions that we put to the Tribunal and they
handed those submissions to the Federal Court.
Now, Your Honours, in passagesI will take
Your Honours to in a moment, counsel was explicitly
asked whether it was its submission that the Tribunal
had, in fact, taken into account this body of material,
but left it out of their reasons; and the answer
was, "No". So that that is not a possibility which can be entertained in this Court, I would respectfully
submit. Now, can I hand up to Your Honours a copy of, not all of, but most of the submissions put by the
Tribunal on this point to the Federal Court.
MASON CJ: Mr Gyles, is there any contest about this? I suppose my question ought to be directed to Mr Sheller, but
if there is no contest about this it is a waste of time
going through the material
.MR GYLES: Yes, thank you, Your Honour.
(Continued on page 108)
C2T5/l/FK 107 28/2/90 Bond(2) MASON CJ: What do you say about this, Mr Sheller?
MR SHELLER: Your Honour, I am not familiar with the particular
oassa~e ·t&.l'Jhieh'"t!ly friend is now referring. I cannot answer it as quickly as that, Your Honour. I need to look at the passage to be frank, Your Honours.
MASON CJ: It may be possible to take instructions. I mean
there may be those who are familiar with it.
MR SHELLER: Your Honours, the position that I have taken has been that we are looking at the reasons given by
the Tribunal.
MASON CJ: Yes, I follow that. MR SHELLER: And that it is a doubtful course to engage on
looking at counsel's submissions - - -
MASON CJ: Well, in many cases it is. I was only exploring the possibility as to whether there was common ground
between the parties which would save the amount of
time that is likely to be exp-ended in·pursuing
this exercise.
MR SHELLER: Yes. MASON CJ: But if you cannot help us, Mr Sheller, then it will be quicker if we allow Mr Gyles to pursue the course he has in mind. MR SHELLER: Yes, Your Honour. It may be that, on reflection, when I see these parts, Your Honours, it may explain
itself, but I am simply not familiar with what he
is now referring to.
MASON CJ: Well, if you receive some blinding light of illumination
as Mr Gyles' argument proceeds, you may intervene and
let us know.
MR SHELLER: Thank you. MR GYLES: Your Honours, I am doing this partly because of the submission that appears in my learned friendrs written
submissions at 7.Ll. Perhaps if I could askYour Honours to go to that briefly, it throws up
rather a - it is not, I must say, clear to me precisely
what is being said. It is at page 16 of the written
submission, Your Honours:
It is not to be supposed that the Tribunal ignored or did not accept the body of material referred to by the Court at Appeal Book page 247
lines 7-14.
C2T6/l/CM 108 28/2/90 Bond(2) But then the last sentence:
But the Tribunal rightly considered it
irrelevant, in the circumstances it had
found, to the fitness and propriety of
the licensees.
(Continued on page 110)
C2T6/2/CM 109 28/2/90 Bond(2)
MR GYLES (continuing): So it does appear as written that my learned friend is seeking to pursue here a submission
that the Tribunal had not ignored and did take into
account this body of material, although they had
omitted to say so, and that does appear, with respect,to be in the teeth of what - - -
MASON CJ: It is a rather Delphic statement, is not it - - - MR GYLES: It is a Delphic statement, yes. MASON CJ: - - - when you look at the first sentence and the last
sentence to which you have called attention?
MR GYLES: Yes, and the last together. Your Honours, I will try and be as economical as I can and perhaps I can do it
by reference to pages rather than taking Your Honours
through it laboriously. Page 251, a passage in the middle of the page by Mr Roberts; page 252, the exchange between
Justice Lockhart and Mr Roberts; page 253, the first half of the page; at page 254 Mr Roberts put rather a
long submission and that is where he invited the court
to go to the submissions of counsel assisting which were
put to the Tribunal, and Your Honours will see at
page 254 point 3 there is reference to those submissions
and they were handed up and spoken to. Indeed, they are in the hand-up brief, of course. Then, Your Honours, page 257, if I could pick it up at
point 5 of the page and perhaps read this short passage:
So at the end of the day in relation
to this submission, what we were saying
was, there was only one person against
whom adverse findings have been made,
that is Mr Bond. Mr Bond is, on the evidence, the controller of a company.
The controller of a company is in a
different position from managers and
whereas it is quite appropriate to and
nobody would argue the contrary in
relation to a manager or a director,
where you have got the balancing force of other managers or other directors,
with a controller the position is
different. You do not have any balance.
(Continued on page 111)
C2T7/l/HS 110 28/2/90 Bond(2)
MR GYLES (continuing): Mr Justice Pincus then said this: Could I say before you go on, that I had
misunderstood this. I thought there was
simply a gap in the tribunal's reasons where
they said - they seemed to leap from saying
Mr Bond was unfit to saying the licensee was
unfit and I thought you were going to argue
that of course they had taken into account
other considerations such as the character or
otherwise of Mr Yeo -
he was one of the independent directors,Your Honours.-
although they did not bother to say so but you
are telling us they meant exactly what they
said. They meant that leap. And the whole
thing stands or falls on that, does not it? Imean if they are wrong about that then it all
falls to the ground. I mean, if they are right to ignore the position and character, good or bad, of all the other directors then this can stand, but it cannot otherwise, can it?
MR ROBERTS: I do not wish to shirk from that,
except that there are other matters which they
said, well Mr Bond also has the power and does -
I forget the words, initiate and involve
himself in the decisions and workings of the
company.
That is the passage the Chief Justice put to me yesterday.
I cannot remember ..... but what I am saying - - -
PINCUS J: You do seem to support the proposition,
(a) that they ignored the position of all the
other directors of all the companies and (b) thatthey were right to do so.
MR ROBERTS:
you are dealing with a controller of a company. I suggest that that is correct, when There is no balancing act - - -
Then, Your Honours, page 259 - - -
MASON CJ: Well before you leave that, about three down:
MR ROBERTS: Your Honours, it is, we would suggest, a difficult thing to engage in any
sort of a balancing activity when the personwith whom -
et cetera.
C2T8/l/JL 111 28/2/90 Bond(2)
MR GYLES:
Yes, that is so, Your Honour. Then, at page 259 - I mean, I am selecting passages, Your Honour, the whole of this submission is really relevant but I am
selecting passages. MASON CJ: Yes. MR GYLES: There was an exchange between Mr Justice Lockhart and Mr Roberts and then at page 260, it is clear-
that he was putting two propositions, first of all
purely because of what was called de jure control -
there was unfitness and, secondly, he was putting that
there was de jure control plus the instances ofinterference in management which have been referred to.
And then, Your Honours, at page 265. point 6 and page 266. point 2 - at page 265, my learned friend,
Mr Roberts said:
Well Your Honours, we just go back to the
proposition of whether or not when one deals
with the controller of a company, his
position is such that it is appropriate to
engage in a balancing exercise. If they are
wrong in relation to that they are wrong.
I cannot say anymore than that.
On page 266 ·point 2 and then point 9, the top of page 267, page 271 point 3, page 272 down to point 3, page 273 points 3 to 5, page 274 at the top and then at page 277 points 5 and 6, page 281 point 10 to page 281a point 4.
(Continued on page 113)
C2T9/l/JH 112 28/2/90 Bond(2) MR GYLES (continuing): And, Your Honours, there is also this
dilemma in the position that my learned friend,
Mr Sheller is putting, is there not? If the
·<lebate is;' Did the Tribunal, in fact, take it into
consideration or not?', that is hardly a special leave
point. I mean, it is a point just deciding whether or
not in the circumstances of this case this Tribunal
did or did not take into account this material to
which they do not refer in their reasons.
BRENNAN J: But what may be a special leave point is whether a failure to engage in the balancing act or to take
into account that which might be balanced is, in the
circumstances of the case an error of law.
:t,<i.R GYLES: Well, Your Honours, 'it is my submission that that is
an error of law or a correctable error under the
ADMINISTRATIVE DECISIONS(JUDICIAL REVIE'W)ACT.
BRENNAN J: Yes.
MR GYLES: And that is the point that was put by Mr Handley in the leave application, but I am simply saying that
if the question is not - I mean, Mr Sheller in the
end cannot have it both ways: either this Tribunal
did accept the submission that was put to it and did
ignore this body of material, or did not. If it did ignore it, the legal question or the question
of principle arises. If they did take it into
account the question of principle does not arise.
So we do submit there is an internal difficulty
which Mr Sheller has about that matter.
Your Honours, the cases on reasons, OUR TOWN FM
PTY LTD V AUSTRALIAN BROADCASTING TRIBUNAL,
(1987) 77 ALR 577, at 590 to 597.
(Continued on page 114)
C2Tl0/l/FK 113 28/2/90 Bond(2)
MR GYLES (continuing): In that decision, Your Honours, there are various other cases in the Federal and other courts
referred to on that point, including SULLIVAN V THE
DEPARTMENT OF TRANSPORT, (1978) 20 ALR 323, at page 348
and following, and COLLINS V THE REPATRIATION COMMISSION, (1980) 32 ALR 581, at pages 594 to 595. Your Honours,
we would submit that the Tribunal, having been a party
to the OUR TOWN case, and there having been no appeal
from that decision of Mr Justice Wilcox, would be
acting upon the view that it should give reasons and in
its reasons deal with material before it which it considered
relevant.
Your Honours, I think that that, taken together
with our written submissions on the point, completes
what I wish to put on the section 88 issue.
BRENNAN J:
Mr Gyles, there is one point that perhaps I should mention so that you can say what you think appropriate
on the point and it is this: there are perhaps some cases in which it is relevant to look at evidence other
than that of evidence relating to the character of the
controller of a company in order to determine whether
the company is fit and proper. In other cases it may notbe and much may turn on the nature of the character as revealed by a particular transaction. MR GYLES: Yes. BRENNAN J:
And relevantly in this case, whether or not the concern is that this company, the licensee company, may
be utilized for the benefit of the group as a whole. In other words, that is something which transcends the ordinary day-to-day board concerns and operations of a licensee company, but whether the licensee company can be pressed into service, as it were, when the interests of the total group are at stake.
MR GYLES: Yes. I follow the possibility, Your Honour. That might be a relevant factor to be considered. May I
because I think it really flows from what happened in come back to that argument, having looked at the transaction point, the Sir Joh Bjelke-Petersen point, 1986.
BRENNAN J: It does, yes. MR GYLES: I hope I do not forget to deal with it, Your Honour.
I am sure Your Honour will not let me. Your Honours, may I then turn to what has been called the "Sir Joh
issue". May I take a little time to deal with the way
the issue arises. The chronology that my learned friend, Mr Sheller, handed up is helpful as to this.
The broadcast was on 2 February 1983 and the commencement
of the proceedings was on 4 February, that is two days
later. Your Honours will find in volume four of the hand-up brief under tab~ the statement of claim,and
I ask Your Honours to look at that because it shows
C2Tll/l/HS 114 28/2/90 Bond(2)
Paragraph 3 alleges that the plaintiff had visited
Japan on three days in November 1982 and again inthe nature of the defamation - volume four 8 tab 1. and then in paragraph 6 is set out the substance of
what was said about the plaintiff on this channel: "Today we can confirm that son
John Bjelke-Petersen has borrowed a
substantial sum from Japanese bankers
for his company. We are told it is in
excess of 3 million dollars. The interest rate we are informed is 6½%.
(Continued on page 116)
C2Tll/2/HS 115 Bond(2) MR GYLES (continuing):
Critics of the Premier from within the
government have known about the loan deal
for some time. They say he has used recent trips to Japan, ostensibly for government business, to negotiate the loan. That is
categorically denied by the Premier. His
critics also say the Premier took along top
public servants to help him get the best
deal. "Not true" say sources close to the Premier. But we are told the whole exercise
has been going on for months. It has been
handled with kid gloves in the utmost
secrecy by a Melbourne solicitor who specialises
in these deals. Well, that's the money side
of things."
And there is a cliam made for, of course,
damages and exemplary damages. The defence, Your Honours, appears under the next tab, February 1984.
This is when the insurers were conducting the action
on behalf of the defendant and Your Honours will see
that there is no plea of justification and no plea of
qualified priviledge. And this is before Mr Bond
ever heard of a case. And under the next tab, Your Honours, Your Honours will find an advice given on 8 July 1983 by Justice HcHugh or Mr McHugh as
His Honour then was, to the Premier. Now this is not an advice obtained, Your Honours, after some problems had arisen with the Australian Broadcasting
Tribunal. This is an advice obtained by the plaintiff
for his purposes currently, that is, prior to the
defence having been received in the action, from -and
His Honour, at that stage was of course one of
Australia's leading defamation lawyers, both at trial
and on appeal and in that advice His Honour, at page 3
says:
it is beyond argument that it is defamatory
of the plaintiff.
of argument would not run in that case and says His Honour says that the bane and antidote sort that the tribunal of fact would find, as I would expect it to find, that the station is asserting the truth of their allegations- notwithstanding
the various denials of the Premier.His Honour then looks to various possible defences.
At the top of page 9 of his opinion says:Accordingly, in my opinion, there is no
answer to the plaintiff's claim in the
present case.
C2Tl2/l/CM 116 28/2/90 Bond(2) The subsidiary questions:
I am not competent to advise on whether the
case would be better heard by a Queensland
of local factors of which I am not aware. judge or a jury. This depends on a knowledge In New South Wales, it is my experience that the amounts awarded by juries far exceed the amounts awarded by judges in comparable cases. In the present case, - - -
GAUDRON J: How does what was advised to the Premier become relevant?
MR GYLES: It is relevant, Your Honour, in our respectful submission, it was properly received in evidence,
because the Tribunal, as we will see set itself
the task-of discovering the true nature of the
transaction between Mr Bond and Mr Bjelke-Petersen
and Your Honour will see that that was the result
of an allegation in Parliament by the Leader of
the opposition that this was what he described, I
think, as the greatest rort in Queensland public life, and it was a corrupt payment. That was what
was being investigated by the Australian BroadcastingTribunal and of course, one method of making a
corrupt payment, is for a politician or somebody else
to make a claim for defamation, not believing it
to be a valid claim and using that proceeding as a
cover for the payment of a bribe. Now that was what
was being alleged in Parliament about this transaction
and that is what led to this Australian Broadcasting
Tribunal inquiry. Thus it lay at the heart of that inquiry to decide whether or not Sir Joh Bjelke-Petersen
was soliciting a bribe.
BRENNAN J: Why?
(Continued on page 118)
C2Tl2/2/CM 117 28/2/90 Bond(2) MR GYLES: With respect, that was the issue
which the Tribunal set itself to decide.
BRENNAN J: Where does that appear at any
MR GYLES: I will be taking Your Honour to it. I am just answering now why it was-relevant; that is why
it was relevant, in our submission. His Honour,
as he then was, said:
In the present case, I would expect a New
South Wales jury to award the Premier a very substantial sum -
and he goes on to discuss damages. So, Your Honours, that is the setting of the defamation case. What next happened, Your Honours, was that the Leader
of the Opposition in Queensland - the Leader of the
Labor Party - wrote to the Australian Broadcasting
Tribunal and this, Your Honours, appears in
volume three of the hand-up brief, divider 9D.Your Honours will see there are both numerical and
lettering dividers. Divider 9D:
On 20 August 1986, the Leader of the
Opposition wr·ote to the General Manager of the
Australian Broadcasting Tribunal.
I bring to the attention of the Australian
Broadcasting Tribunal, a matter which is
relevant to the renewal of the licence toQueensland Television Limited. In the
Queensland Parliament on the 5th, 6th, 7th,
19th and 20th August, 1986, I raised a number
of matters that relate to QTQ9. I enclose, for the information of the Tribunal, (a)
Pa.E.llame_ntary questions of speeches, (b) Newspaper clippings, .(c)Supreme court Documents and (d)
Queen's Counsel opinion.
As Leader of the Labor Party in Queensland,I am concerned that this matter is relevant to the determination by the Tribunal of the renewal of the licence of QTQ9 or alternatively an issue which should be more
fully looked into by the Tribunal as to the appropriate course to follow. I will leave
it to the discretion of the Tribunal.However, I would ask that the Tribunal act upon this matter as soon as possible.
Your Honours, it is impossible, in our submission,
to understand what has happened in relation to this
matter without understanding the genesis of this
inquiry and how it proceeded. To fully understand
how the way things have gone has led to very great
unfairness to the persons the· subject of this inquiry.
C2Tl3/l/JH 118 28/2/90 Bond(2) I will not go through all of the material which
was provided. It will be sufficient to take
Your Honours to the second page of Mr Warburton's
hansard, that is, it bears a 37 on the top
right-hand corner and about point 6 of the page,
just below half-way:
I will deal with the astronomical
out-of_court settlement allegedly paid
to the Premier. If it is true, asreported, that the massive sum of money
was paid to the Premier by the Bond ·
Corporation, it wap not a genuine out-of- court settlement. In fact, it was a corrupt settlement -
and he goes on. Then, at the top of the next page:
The action was one that Channel 9 could
easily have defended if it chose to, without reflecting on the truth or
otherwise. of the allegation or the
question of conflict of duty and
interest. Channel 9 could have defended
its_ story as a matter of qualified
privilege. The law in Queensland has been established to the effect that the media
has an extensive privilege to discuss and
criticize the conduct of politicians,yet
Channel 9 chose not to defend this case.
And then, there are other allegations made. The next paragraph:
If it is correct, I ask: Why ·did its insurers refuse to pay the claim, if
not because it was a bargain for servicesrendered and to be rendered by the State
Government to the Bond Corporation?
Then, two paragraphs on:
We are forced to the conclusion that that
secret payment was not a genuine settlement - I cannot read that, Your Honour -
of the defamation of the Premier but a
cynical power play by the Bond Corporation
to secure further advantages in Queensland.
C2Tl3/2/JH 119 28/2/90 Bond(2)
MR GYLES (continuing): On the following page, about point 4 of the page:
The Premier has the opportunity today to
tell the people of Queensland what happened.
I was surprised and astounded that he did
not give an explanation first thing this
morning. If he was free of guilt he should have risen to his feet -
and so on. So there is an allegation of guilt in Sir Joh - I have been asked';''Was it 8 general' you.
scratch my back and I'll scratch yours' payment by the Bond Corporation to the
Premier, or was it a more specific sling
for particular political favours?" If that
is so,it is improper and should not be
happening -
et cetera.
If the Premier is innocent -
and so on.
If the payment was made to the Premier
he is embroiled in the most serious political
scandal in Queensland's history.
And then, Your Honours, over at page 57 which is
about four pages on, Mr Warburton, the second statemmt
of his quoted on that page:
You have got to prove it was not the biggest rort in the history of government in this State.
Now those passages will give Your Honours, I think, a sufficient notion of the allegation which was
made by the leader of the opposition,the Labor Party in Queensland, which he then referred to the
Broadcasting Tribunal and said, "Please investigate
my allegations" that is,that there had been a
corrupt payment by the Bond group to Sir Joh Bjelke
Petersen, which was corrupt; which was a wrought;
the great scandal in the State and so on.and that
the Premier was guilty.
Your Honours, that is what this case is about.
That is how it started and that is the investigation
which was launched at that time and it is relevant
to know in connection with another ground of appeal
that the Broadcasting Tribunal, by letter of 29 August
1986 which appears, Your Honours, at the end of
C2Tl4/l/JL 120 28/2/90 Bond(2) Mr Warburton's material - it is probably
easiest to find_it, Your Honours, by goit1g· to the
back of that divider D and then working forwards
from November 1986 to August 1986. On 29 August
1986 the Tribunal wrote to Dawson Waldron, who
were acting for the licensee. Notwithstanding
the question of whether Mr Warburton's statement
constitutes a submission to the inquiry:
The Tribunal has formed a view that the
matters alleged are the nature which
compel it to make further inquiries in
order to satisfy its obligations •.... The
Tribunal therefore asks that your client
provide a comprehensive response dealing
with all matters relevant to settlement, ..... of
the defamation action -
and so on, So . the genesis of the inquiry ~,ere the allegations by Mr Warburton and the Tribunal's view then formed that those matters, the matters alleged by Mr Warburton. that are of a nature which compel it to make
further inquiries et cetera.
Then followed, Your Honours, correspondence
between the solicitors for the licensee and the Tribunal
as to what might be called particulars. The solicitor
and counsel for the ALP were involved in the - and
put the cross-fire of correspondence -perhaps I could put it this way:_Dawson Waldron said ~o the Tribunal,
"Here is our answer to this material, here is our
submission, please decide this on the paper and deal
with it". Those representing the ALP said, "No, do
not deal with it on the pape~ reopen renewal hearings
and hear oral evidence". The Tribunal accepted that submission and that led to a statement, Your Honours, which appears after the letter of 3 October 1986 from Dawson Waldron to the Tribunal.
(Continued on page 122)
C2Tl4/2/JL 121 28/2/90 Bond(2) MR GYLES (continuing): There had been correspondence.
Dawson Waldron had written, the ALP had replied,
Dawson Waldron replied and then following theletter of 3 October there is a document headed "Australian Broadcasting Tribunal Inquiry into the Renewel of the Licence for Commercial
Television Station QTQ9 Brisbane - Statement
and Directions". Have Your Honours found that? I am sorry, it is not paginated and it is a little
difficult to find.
·:MASON CJ: Yes, I have got it.
MR GYLES:
Having considered all submissions received to date in this inquiry,including a request from the Australian Labor Party that it be allowed
to question certain witnesses1 the Tribunal has decided to resume the public nearing in this inquiry. The first available date for resumption is Monday, 17 November. The resumed hearing will be in Brisbane. The purpose of the hearing will be to deal with. matters left outstanding between the Australian Labor Party and the licensee. Now that, Your Honours, was the issue at the reopening
of the renewed inquiry: the matters left outstanding
between the Australian Labor Party and the licensee,
those matters having been developed in the correspondence
which I have not taken Your Honours through in detail.
Then there were directions given.
the Australian Labor Party and the licensee
are to serve on each other and file with theTribunal proofs of evidence of any witnesses they
wish to call., . .serve on each other and filE; .... a
summary of the case they wish to present -
et cetera:
the hearing will resume.-.... for the remainder of this inquiry,the Australian Labor Party and
the licensee will serve on each other copies ofall documents they provide to the Tribunal,and will
file with the Tribunal copies of all documentsthey serve on each other.
So it was very much an inter partes procedure. The
Tribunal recognized the reality that the complaint
had been made by the Australian Labor Party or by
the Leader of the Opposition, that the Australian
Labor Party had pursued it and wished it dealt with.
They, in substance, bore the carriage of the matter.
The Tribunal itself elected in these circumstances to,
as it were, allow the parties to proceed on a
C2Tl5/l/LW 122 28/2/90 Bond{2) and so on and the decision was made and the decision itself, Your Honours, is not before Your Honours but
semi-adversarial basis and that was the way it went.
we have extracted the relevant part in our written
submissions on page 10, paragraph 1 under this
heading:
The most relevant features of the settlement
are first, that it was made primarily with the
interests of the Bond Group for good relations
with the Premier in mind. It was not necessarily made for the benefit of QTQ. Second, the settlement was unusual. An opinion from a Sydney Queen's Counsel was tendered to show that the amount of the settlement was not excessive.
I might say, Your Honours, that was not Mr McHugh's
opinion, that was Mr Hughes's opinion obtained at
the time of the inquiry.However, the balance of the evidence shows that even allowing a considerable margin for individual
judgment, the amount of the settlement was unusual
and probably unprecedented, and higher than would
have been reached but for the perceived needs of the diverse Bond interests in Queensland and the
resulting need for good relations with the Premier.
None the less, the licence was renewed. Your Honours, that was not of course a finding which the Bond group
sought in the matter although it is fair to say that
if Your Honours do have in that volume four of the
hand-up brief - the statement of the managing director
of Bond Corporation can be found at tab eight in
volume four of the hand-up brief. That is Mr Beckwith's
statement.
Your Honours, at paragraphsl8 to 20 of that statement,
pages 5 to 7 inclusive, he analyses the options which
he saw as being open in relation to the litigation. (Continued on page 124)
C2Tl5/2/LW 123 28/2/90 Bond(2)
MR GYLES (continuing): The analysis was the defence which was foreshadowed was a defence, not of the substance
of the claim, but a tactic to reduce damages - attack
the Premier in order to reduce damages. That is
at 18(a)(ii). He says the consequences of pursuing that option would be that:
The amount of damages awarded would
depend on the success or otherwise of
the attack on the credibility of the
Premier. If successful, damages would
lower, and, if unsuccessful, damagescould be expected to be higher.
If either successful or unsuccessful
the Board had to consider the likely effect
of an attack on the credibility of thePremier for the Bond Group of companies
as a whole and for QTQ9 in particular as
it related to: the public in both
Queensland and nationally: the Government
and Premier of Queensland; shareholders
of BCHL; and the long term standing of
QTQ in the community (the courtroom attacks
on the Premier may result in QTQ being seen
to be politically biased).
From any angle the damages ..... of such an
attack would be very substantial.
And then there are a number of other factors referred
to, and leading ultimately to the Board taking the
view that the settlement was appropriate.
Now, Your Honours, that statement alone would
justify a conclusion that there were interests wider
than simply looking at the case itself, taken into
account by the Bond then parent company at the time. Whether that is impermissible is a matter upon which minds would, no doubt, differ but the finding which we
D~ve cited.in our submission was made: licence renewed.
Now, the next thing that happened, Your Honours, was Hr :Bond's interview with Miss Wendt on Channel 9. And the irony will not have escaped Your Honours
that here on the station which Mr Bond is claimed to
dominate, to the exclusion of all others, he is
interviewed in a manner which has led to the reopening of
this inquiry.
Now, the transcript of what is said there,
Your Honours, can be found - in our written submission
we have not set out the full text of that, and
Your Honours should see that - 127 of the appeal book -
does not contain the whole transcript, but it contains
the exchange which the Tribunal were looking at:
C2Tl6/l/FK 124 28/2/90 Bond(2) Let me just raise the issue of a defamation case in Queensland where you paid, personally
intervened, and paid out $400,000 to
exert influence there? Sir Joh Bjelke-Petersen, were you trying to
No, I was trying to settle a case which had
been taken up before we bought Channel 9 and the
action was taken certainly on the information
that we had as directors that we would have been
liable in any event. It affects your insurancepremiums and certainly the Premier made it under no doubt that if we were going to continue to do
business successfully in Queensland, then he
expected that matter to be resolved.
He pointed that out to you?
Oh yes!
And you took him seriously and paid out $400,000. Well we think that was the er - it was $1,000,000
they were asking, we got it down to $400,000. So commercially for the time involved and all the
executive time involved and having regard to, we
think the programme was inaccurate, er, we thoughttratcommercially was the best answer.
(Continued on page 126)
C2Tl6/2/FK 125 28/2/90 Bond(2) MR GYLES (continuing): Now, as I am at that page, Your Honours,
the Tribunal go on to say:
The question of the capacity of
Mr Bond's statement to stand along
with the position put at the QTQ Inquiry,was central to the decision to hold the
present Inquiry.
That led, Your Honours, to the notice of inquiry which
Your Honours can find set out at the foot of page 208
over to the top of page 209 of the appeal book. Now, Your Honours will see from page 208 line 10 that the
notice of inquiry had been issued: pursuant to Regulation 9 of the
Australian Broadcasting Tribunal
(Inquiries) Regulations ..... The
Full Court held that the Tribunal
had acted in accordance with
sub-s. 17C(l) of the Act.
The text of the notice at the foot of page 208:
"This Inquiry follows the viewing
by the Tribunal of an unedited tapeof an interview given by Mr Alan Bond
on the program 'A Current Affair' on
22 January 1988. The Tribunal also examined the transcript of the last
QTQ-9 renewal.
The issues which will be addressed
during the inquiry are as follows -
1. Whether anything connected with the payment of $400,000 in settlement of a
defamation action by Sir Joh Bjelke-Petersen
against Queensland Television Limited has
any implications as to the suitability of
companies associated with Mr Alan Bond
to hold the above broadcasting licences. In this context it will be considered whether Mr Bond and companies associated with him are fit and proper persons to hold the above licences.
Your Honours will see that the terms of the inquiry
which bound the Tribunal because it was under the Act -
I am not saying they could not amend it, but that was
the form of the inquiry that they instituted - was: Whether anything connected with the payment
..... in settlement of a defamation action
..... has any implications.
It required a full examination of that transaction 1n
order to answer the question and, indeed, Your Honours,
C2Tl7/l/HS 126 28/2/90 Bond(2) as we say in our written submissions - sorry.
Then a body of evidence was called, a very
significant body of evidence, the general nature of
which Your Honours can pick up from the index to the appeal book, starting at page 4 of the index. I can
indicate to Your Honours what the identity of these
various witnesses are with the assistance of my learned
junior; Messrs Power and Barton were the journalists responsible for the programme and they were called by
the counsel assisting the Tribunal in order to - - -
MASON CJ: Why do we need all this, Mr Gyles? I have not followed it at the present time.
MR GYLES: What I am proposing to show Your Honours is the general nature of the evidence which was led to show
that there was no restriction, at all, on the width
of paragraph 1 of the notice of inquiry. All
material that could be thought to be relevant to
this transaction was led from all those involved,
and led and tested and documentary evidence obtained,
and so on, every issue, that is whether there was a
defence to the defamation claim, and so on, all
examined in the evidence. Sir Joh Bjelke-Petersen was
called and cross-examined and re-examined, and goodness
knows what. It is all there.
Now, Your Honours, at the moment, might think that
this was, in some way, a restricted inquiry. It
certainly was not at this stage. Your Honours, the two journalists who were responsible for the 1983
publication were called. They were first called, apparently, and they were called in order to see
whether there was any defence of qualified privilege available, or justication, or some defence which the defendant, and its insurers had not raised.
(Continued on page 128)
C2Tl7/2/HS 127 28/2/90 Bond(2)
BRENNAN J: Well, where·does that lead us? MR GYLES: Your Honour - Your Honour, just to explain it: They were called and - I have not gone through all
the transcript myself, Your Honours, but nobody has
suggested at any stage that their evidence led toany possibility of a successful defence to this
action and they were called for that purpose and the
answer was, no.
BRENNAN J: Where is this leading us, Mr Gyles? MR GYLES: It is leading, Your Honours, to the conclusion, having taken that body of evidence which required
the nature of the transaction to be investigated,
when all of that body of evidence was in,the
Tribunal did not - it then, by a process of which we
complain, restricted the question to a very narrow
question which did not enable the proper
circumstances to be appreciated. You cannot look, in our submission, at the narrow question which they
ultimately looked at without having a view as to
whether Sir Joh Bjelke-Petersen and Mr Bond did make
a corrupt payment. Whether Sir Joh Bjelke-Petersen
had a defamation action which was, as it were, a
mock action or a stalking horse for a disguised
payment or whethe~ on the contrary, he believed that
he had a very strong case which he wished to pursue
to vindicate himself.
BRENNAN J: Well, ·this comes back to the question that we
raised yesterday about the purposes and motives.MR GYLES: Yes, Your Honour. BRENNAN J: And, I thought your proposition was that it was relevant for the Tribunal to inquire as to what was
said and done but now you are wanting to go back
into this nature of the transaction investigationto look at intentions.
MR GYLES: No, what I said to Your Honour yesterday and what I stand by is that I do not submit that an
unconnnunicated state of mind of Sir Joh Bjelke-Petersen
is relevant. But what I do submit is that it was
relevant for the Tribunal to find what did
Sir Joh Bjelke-Petersen say to Mr Bond and did he
mean what he said? I mean, you can have a situation,
Your Honours, where he may say, "I believe in my
defamation case". but he says it with a tone of
voice in a context in which everybody present knows
that he is putting that up as a smoke-screen.
You really must know, with respect, whether it is a
genuine expression of his opinion. Now, if he had
some other secret plan, I do not submit that is at
all relevant but fundamental, surely, to this whole
C2Tl8/l/JH 128 28/2/90 Bond( 2) exercise is to understand whether or not it was
true that there was a corrupt payment between the
two of them.
BRENNAN J:
Was there any exclusion of evidence as to what had transpired between Mr Bond and Sir Joh?
MR GYLES: No, there was no exclusive evidence at all. BRENNAN J:
Was there any exclusion of evidence as to what was understood by Mr Bond as to what Sir Joh said?
MR GYLES:
There was no relevant restriction on the way the Tribunal received evidence on the point.
BRENNAN. J: What was the fact or matter which was wrongly not answered or investigated?
MR GYLES: There was no investigation in the reasons in the final conclusion as to what took place between
Mr Bond and Sir Joh Bjelke-Petersen. There was no finding.
BRENNAN J: I thought you said that there was no doubt about the reception of the evidence as to what took place between than.
MR GYLES: Quite, but no finding. Your Honours, I will take Your Honours through it in a moment. It is a most
extraordinary thing that we have all of this
evidence taken,after,all,on a reopened inquiry
into an issue which was raised by the Labor Party of
a corrupt payment and yet no finding about that very
issue. All sorts of other findings but not that one.
And, Your Honours, I do submit, it is significant to
know what sort of evidence they did receive.
MASON CJ: Well, you have given us a picture of that fact.
We need not spend any more time on that, surely.
MR GYLES: Well, Your Honour, except that - lawyers were called from the insurer, there were lawyers called
Your Honours, I am overly concerned about ensuring from all sides, lawyers files available. Perhaps, that Your Honours do understand the width of the inquiry which took place and I suppose if Your Honours take it that it was an inquiry which investigated.ari inquiry:-in~-wnich the .
evidence led investigated the circumstances which existed between Mr Bond and Sir Joh Bjelke-Petersen, circumstances which existed which are relevant to determining whether Sir Joh Bjelke-Petersen believed or did not believe in his defamation action and also involved a body of evidence which would enable some assessment to be made of whether there was any defence to that action and what the likely damages might have been.
C2Tl8/2/JH 129 28/2/90 Bond(2) MR GYLES (continuing): All of that was dealt with in the
course of the inquiry. During the course of the
inquiry - there had been a letter in 1988 which is
not part of the appeal papers I do not think, in
which the Australian Government Solicitor had
identified, as an issue - potential issue - the
nature of the transaction itself and the inquiry
proceeded on that footing. By a ruling on. rs February, and this is paragraph 5 of our written
submission on this point, page 12, 15 February 1989
the Tribunal identifed the topics "within the
issue" upon ·which adverse findings could
be made.
This is after the close of the evidence. These topics are as follows and Your Honours might
draw a notional line through third and fourth
issue because they are not relevant so far as this
is concerned.
"The First Issue - The Defamation Settlement
This issue resolved itself into two primary
questions namely:
(a) the nature of the transaction itself; and
(b) the level of candour exhibited both on this
occasion and during the giving of evidence to the
Tribunal during the QTQ Inquiry.
The Second Issue - The significance of Mr Bond's
Statements to Ms Wendt on 21 January, 1988
Three related questions emerged during examination
of this issue namely:-
(b) what meaning is to be attributed to the
statements themselves; and
(c) whether Mr Bond has offered a truthful account to this Tribunal of the meaning he intended his words to carry.
Your Honours, this is the Tribunal's ruling, at the
end of the evidence as it were, as to what issue-s
remained live issues for determination and that is
the way that they were posed. Then, Your Honours,
by a further ruling on 21 February 1989, the Tribunal
listed 25 facts which would be open to find relevant
to the issues and can I take Your Honours to those,
which appear at page 96 to 99 of the appeal book and I think this is the material I was adverting to when
I answered His Honour Justice Brennan a few moments ago.
C2Tl9/l/JL 130 28/2/90 Bond(2) List of facts which it would be open to the
Tribunal to find which could be adverse to the Bond Group's interests
and under the hearing:
The Defamation Settlement:
there are 22 possible facts and I do not state or
read them all to Your Honours, but with the exception
of the first part of paragraph 2, there is no fact -
I withdraw that - I think, Your Honours, to make the
point everyone has got to understand what they were
saying. It is roughly chronological Your Honours, notcompletely but roughly chronological. One possible
fact was that he:
was aware by 28 November that the insurers
had denied liabiltiy because of his
negotiating directly with Sir Joh and wasaware that Mr Burke's view was that QTL could
have been expected to win the defamation
action -
and that his -
denial .... was deliberately false.
Second possible factor:
By 18 December, 1985 Mr Bond had agreed
that Sir Joh would be paid $400,000 -
that other executives -
were aware of this agreement at the
time of. the QTQ Inquiry. The failure to mention at that -
had been done with intent to mislead the inquiry. Neither Mr Bond nor the other Bond
Organisation executives obtained any legal
advice -
et cetera. Then there is a question about Mr Bond
instructing Mr Aspinall to do certain things which picks
up in 4 and Sf two questions as to Mr Lodge. 8 and
9 dealt with what other executives might or may have
thought and what they did:
10. On 17 February, 1986 Mr Bond attempted
to have Sir Joh agree to the payment ..... in
the manners indicated both in Sir Joh's
letter of 19 February, 1986 and in the evidence
that he gave at this Inquiry.
C2Tl9/2/JL 131 28/2/90 Bond(2) MR GYLES (continuing):
11. Mr Bond urged Sir Joh to accept the
$400,000 in those manners in an attempt to
conceal that the -
that must be - I see, in those manners, they were
alternative manners -
actual payment was to be $400,000.
Further material in relation to false evidence and
the QTQ inquiry. 13 again dealt with the actions of other Bond executives. 14 deals with a meeting between Mr Lodge and Sir Joh's solicitors. 15, an approach to: requested Sir Edward Lyons to approach
Sir Joh.
16 refers to the board meeting. 17, he: took over the carriage ..... without consultation
with or approval of -
the company. Misleading evidence, 18. 19,
misleading - at the instant inquiry.20. Mr Bond dealt directly with Sir Joh
because Mr Bond believed Sir Joh was in a
position to affect the Bond Group interests
and Mr Bond believed that failure to settle
the defamation claim might result in Sir Joh
causing adverse consequence~
21. Mr Bond had no belief in 1985 or subsequently
that $400,000 was a figure justified -
et cetera.
And then, going on to Jana Wendt, Your Honours:
When Mr Bond stated to Jana Wendt" ... certainly the Premier made it under no doubt ..... " he intended to convey that he had been placed
in a position of commercial blackmail bySir John. The explanation of his remarks to Ms Wendt advanced by Mr Bond to this Tribunal was deliberately false.
Your Honours will see that in that statement of
possible facts there is no possible fact which
permits the question of the nature of that
transaction to be decided. On one view that might
C2T20/1/ND 132 28/2/90 Bond(2) be said to be favourable to Mr Bond because it
excluded from the possible adverse findings any
finding of corruption. And so it did. And one
could say, "Well, the way it's worked out the
Tribunal having assessed the evidence, have put
to one side any possible suggestion of corruption;
that is not a finding which they consider to beopen to them on the whole of the evidence." But
the difficulty, Your Honours, with this procedure
is that nowhere is that said by anybody and the
way in which the Tribunal thereafter make their
actual findings does not refer to the nature of
the underlying transaction, nor do they express any conclusions about it. And that, we submit, is the yawning gap in the way the matter has been
dealt with.
When you go through these procedures, at the
end of the day, the reader simply does not know
what view the Tribunal, who heard all of this evidence,
have taken as to the underlying transaction and
it makes, with respect, an enormous amount of
difference.both to the nature of the transaction
itself - because it has not been decided, the inquiry
has not decided the nature of the transaction -and, secondly, it is very relevant to the Jana Wendt
matter.
DEANE J: Mr Gyles, can I just ask you a question to help
me understand where it is going? Can you turn
to page 186 of the appeal book which is where the
five findings are set out? What if, after those
five findings, the Tribunal had said, "We considerthose findings are sufficient to dispose of all
relevant questions of fitness and propriety and
that being so we regard it as unnecessary that
we make findings in relation to other questions
that have been discussed before us." I understand that you would criticize the reasons if they had
said that on the basis on which they would consider
those findings were sufficient but putting that
to one side, is there another point involved in this or is the point of this that it is as if they said that?
(Continued on page 134)
C2T20/2/ND 133 28/2/90 Bond(2) MR GYLES: Your Honour, no, there are two levels. The direct answer to Your Honour's question is I would be
making the same submission, because we say thatwould not be a permissible approach.
DEANE J: But as I follow,your first point is really, it is as if they did say that, but we regard those
findings as sufficient and we are unconcerned to consider other questions. MR GYLES: We do not consider other questions. Yes, I agree
that is a fair statement, Your Honour, of the
position.
DEANE J: Well, now, what is the other- point which is taken?
MR GYLES: The other point, Your Honour, is that the conclusions
that they have arrived at -and maybe this is restating it another way,Your Honour, perhaps it is -
by not dealing with the other questions, the reasoning
process is fatally flawed, both as to the nature of
the transaction and as to the Jana Wendt interview,
and I think, on reflection, that probably is carrying
the point no further than the first way of putting it.
GAUDRON J: Does that really mean that the final decision as to
the fitness of the licensees is an unreasonable decision?
MR GYLES: We would say it is flawed, Your Honours. GAUDRON J: Well in terms of the AD(JR) ACT?
MR GYLES: Yes, we do put that submission. GAUDRON J: . And do you put it on any other ground that appears
in the AD(JR) ACT?
MR GYLES: Yes, Your Honour, we submit that they made an error of law in precluding themselves from examining
the whole transaction for a reason that is wrong
in law and secondly, we submit that they failed to
take into account relevant considerations, that is the true nature of the transaction. That is where we
are getting to, Your Honours, but the way it all
happened, we submit, is - it is vital to know that
in order to appreciate where we get to at the end of
the day .. The submissions at the end of the day are
in one sense quite limited. And,Your Honours, I am
almost through this procedural history. So the questions in that form did not, we submit, leave it
open to examine what really happened.And then on
7 April 1989-Your Honours, returning to our written
submissions - the Tribunal handed down a decision on
facts which-:- and this appears, Your Honours, at
pages 102 to 103 of the appeal book - lists issues
on which findings were relevantly made. Your Honours see at the foot of 102 the only three issues which are
C2T21/l/CM 134 28/2/90 Bond(2) relevant for the purposes of this argument and
they say:
The nature of the transaction
The level of candourThe meaning to be attributed to Mr Bond's statement to Ms Jana Wendt
and they then proceed to take each of those issues
and decide them, one by one.Now the Tribunal's ruling or findings on issue 1 do not, it is submitted, on their face, answer the
question "What was the nature of the transaction
between Mr Bond and Sir Joh Bjelke-Petersen?n. They
make various narrative findings, some of which my
learned friend, Mr Sheller,has taken Your Honours to,
but nowhere are there findings which, in our respectful submission, do answer the question which
they set out to ask themselves and to answer - - -
GAUDRON J: Does it not impliedly amount to an answer,from the perspective of Mr Bond,some part of the settlement
figure was a sham, in the sense that it was not, in
his mind, a bona fide settlement to that extent of
the defamation action.
(Continued on page 136)
C2T21/2/CM 135 28/2/90 Bond(2) MR GYLES: Yes. That is a paraphrase of what they have said, and I must accept, of course,that that is a finding
that they have made about the transaction.
GAUDRON J: This is a finding as to the nature of the transaction.
Not as to the whole nature, but it is a finding as
to the nature. It is a characterization of it.
MR GYLES: If I may say so, with respect, Your Honour, that makes the point. The finding to which Your Honour
has referred clearly relates to the transaction. It
does not however, in our submission,amount to a
finding as to the nature of the transaction. A finding
as to the nature of the transaction is a more far reaching
finding and a finding which looks at the essentials ofit, not looking only at the mind of one party.
Now, Your Honours, the narrowest way in which
we put our argument was that the Tribunal narrowed what
it set out to do not because it formed a view that
the inquiry should be altered in some way, it narrowed
it because of a submission which was put to it which
it accepted. But there was some problem occasioned -and I will put it neutrally at the moment - by reason
of the fact that Sir Joh Bjelke-Petersen was not amenable
to the jurisdiction of the Tribunal. There can be no- doubt that that circumstance did influence the
Tribunal in the way it ultimately dealt with the matter.
There is a question as to what effect it had.
Our submission is that when the exchange which is set
out in the appeal book, which proceeded over a
period of time, is properly considered, it is plainthat they were taking the view that they would only look at the transaction through Mr Bond's eyes, and
they would make no substantive findings either as to
the primary facts, or as to any labels which might beattached to the primary facts. In our submission
that is a correct understanding of what was said in
that exchange, but more eloquently, Your Honours, itappears in the questions, or the facts which were open,
which were posed by the Tribunal after that exchange.
GAUDRON J: But, Mr Gyles, would there be any difference from what has presently happened if the Tribunal had
found that Sir Joh believed he had a genuine
defamation action; had no precise estimate of what
that action was worth; thought perhaps the
Bond Corporation Lawyers were a bit out of touch and
were being perhaps not totally experienced in the
ways of Queensland courts, but that was his good luck,
but that Mr Bond had at all times thought that
the amount was unjustified, but had nevertheless
by reason of his own beliefs decided to go ahead with it?
C2T22/l/FK 136 28/2/90 Bond(2)
MR GYLES: Your Honour, I submit it would be different. One would know then what the substratum of fact is.
We do not know, from the Tribunal's findings, whether
Sir Joh said or did anything which indicated to
Mr Bond that it would be in Mr Bond's commercial
interests to settle the matter generally, or to settle
at a particular figure. We simply do not know whether that is so or not.
GAUDRON J: You know what the Tribunal found he believed.
(Continued on page 138)
C2T22/2/FK 137 28/2/90 Bond(2)
MR GYLES: We know what they say Mr Bond believed but we have no finding as to what Sir Joh said.
GAUDRON J: The question I put to you really raises not the fact
that there is missing a substratum of fact but whether
such a substratum of fact is really necessary because
if that were one substratum it really would for all
practical purposes be irrelevant.
MR GYLES: But, Your Honour, we submit the whole fact finding process was flawed because part, and an essential part,
of the nature of the transaction, the facts were never
found.
GAUDRON J: It would only be flawed if it was necessary to do that. MR GYLES: Well, we submit that you cannot in a bilateral
transaction of this sort come to any conclusion as
to the mind of one of the parties, assuming that
be relevant, without at least understanding the
objective facts which took place, I rrean you cannotleap to a conclusion about Mr Bond's state of mind
without understanding whether or not anything had
been put to him. That is our submission.
If the answer were no, Sir Joh Bjelke-Petersen
did not say anything which would indicate there was
any commercial pressure, that may have an impact on
the decision-making process or would. If the
finding to the contrary were that he did say something
which gave rise to that, then again that would have an
influence on the fact finding process, it may end
up for or against Mr Bond.
GAUDRON J: Not necessarily. It depends whether one is
initiating or responding to an initiative.
MR GYLES: Yes, but Your Honour we do not know. We do not know whether Mr Bond was responding or ipitiating
on these findings. That is the fatal flaw in our
submission and the reasoning and the gap which is -
and the narrow point, Your Honours, is that that took place because of a misunderstanding as to the law. If that be correct then at least what should
happen is that the matter should go back to the
Tribunal - this is on the narrowest view - as the
Federal Court have sent it back saying there is no
inhibition upon you making whatever finding is
appropriate about Sir Joh Bjelke-Petersen and about
this transaction. There is no such legal inhibition
upon you doing it, therefore, you should at least
should be considering the questions which are open
without any handcuffs upon you or any blinkers upon
you in relation to Sir Joh Bjelke-Petersen.
C2T23/1/LW 138 28/2/90 Bond(2) Your Honours, I hasten to say we agree there is
no need in a situation like this for the Broadcasting
Tribunal to make a finding of guilt of a particular crime. That is not what is involved. We are not
suggesting that should be done or not done. It may be necessary to make some finding about Mr Bond.
As it happens, one imagines that if they looked at
the whole circumstances they would say we are
satisfied there was no actual bribery by Mr Bond
of Sir Joh. But we, Your Honour, run the risk, do we not, that if the matter goes back and they are told,
as they have been, remove the blinkers and decide
the issue, then of course it will be open to them to decide on whatever way is appropriate on the
evidence before them and one possibility is they will
bring down a finding adverse to Mr Bond. We, of course, will be submitting very much to .the contrary of that.
But we simply do not know at the moment what their
view about that is at all and we say that whichever view they came to about Sir Joh and what he did and
said would have an impact upon your judgment of
Mr Bond's actions and his state of mind.
Take a simple example. If,indeed, Sir Joh had
not applied any commercial pressure to obtain a
settlement of a particular amount but had indicated
that he wanted the case settled, that would support
very much the explanation which Mr Bond gives as to
the Jana Wendt interview. In other words, a finding
as to the actual facts which occurred between thetwo would throw light upon the truth of his explanations
as to Jana Wendt.
(Continued on page 140)
C2T23/2/LW 139 28/2/90 Bond(2) MR GYLES (continuing): His explanation for that, which is not
accepted by the Tribunal, may well accord with the
facts as found between Sir Joh and Mr Bond. Now, if
that be so, that would very much assist him. Next,
Your Honours, the task which the Tribunal entered upon
is the fitness and propriety of a company and even
assuming for this purpose that one can translate the
individual to the company, it is fitness and propriety
which is being judged and, surely, in making that
decision it is necessary to have the substratum of
fact which surrounds the actual finding of impropriety.
There are gradations. Fitness and propriety is
not a fixed standard, it is not an absolute standard.
It is something which is fixed by relation to the nature
of the licence which is being undertaken and the nature of the acts in question and the culpability must surely be considered in the light of the actual circumstances.
If there were a finding that Sir Joh had applied that
sort of commercial pressure, I submit the Federal Court
is right in saying that is at least relevant to an
assessment of fitness and propriety. You may say,
having considered it, that, "I still regard it as
sufficiently serious to make a finding", but surely
it is relevant to know whether that was done, or not,
when considering the impact of the factual finding
upon the statutory task.
BRENNAN J: Which statutory task? MR GYLES: Of deciding the fitness and propriety of the company. Your Honours, my learned friend has referred to the exchange which took place between the Tribunal and
counsel starting at page 142 of the appeal book and proceeding through to page 179 of the appeal book.
Your Honours, as with any transcript of this sort,
it is unsafe to pick out particular passages because
it is off the cuff and people are being interrupted
and it is hard sometimes to get the flow, and things
may be said in argument which do not ultimately
reflect the Tribunal's view. I appreciate that.
However, Your Honours, reading what took place on that day, which I remind Your Honours was after the
evidence, after counsel assisting had put some
submissions in, and after the other parties had putsubmissions in, and the task was to decide what needs
to be addressed, there is no doubt that this was an
important exchange, an important decision which led to
the actual ste~s which I have taken Your Honours
through, that is the actual findings which were open,and so on.
What is clear from this is that counsel assisting
in his submissions had made no submissions about the
underlying nature of the transaction or what had
taken place, in fact, between Mr Bond and
Sir Joh Bjelke-Petersen. Counsel for my client said,
C2T24/l/HS 140 28/2/90 Bond(2) "In those circumstances, we must assume that there
is nothing untoward in that. There has been no adverse submission put. Therefore, we are entitled
to proceed upon the basis nothing untoward in that
transaction", Your Honours might think a fair enough
reaction, but the Tribunal is saying, "No". The fact that there were no submissions made about that by
counsel assisting does not indicate innocence, it does
not indicate anything benign; it indicates that that
is not an area into which we can travel.
(Continued on page 142)
C2T24/2/HS 141 28/2/90 Bond(2)
1:1R GYLES (continuing): So, we end up, Your Honours, with the worst of all worlds. It might be one thing
to say, "Well, there's been no adverse findings
so you can take it that there is no corruption,
there wasno bribery, no solicitation, no
response" and go on from there but that is not the
way it happened. The lack of any finding _
or submission by counsel assisting was not based
upon the fact there was nothing to make a
submission about was that they were prohibited
from doing so by reason of the fact that Sir Joh
was not amenable to the jurisdiction - and that is
the phrase that was used. It is not a question of
discretion, it is a question of amenable to the
jurisdiction. So,_no matter what preci~emeaning one attributes to this exchange, we do know
| • | that the Tribunal were stepping back from making findings because they were told they could not and |
they took the view they could not. Secondly, it is
clear that they were saying, "You, the Bond
interest, get no comfort from that·. You cannot assume that the transaction was innocent or not a breach of the law or not improper. We simply do not deal with that". $0,asI have put it, we end up with
the worst of all worlds: no finding which can be
dealt with one way or the other and, Your Honours,
without reading Your Honours all of the passagesbecause it is necessary to see them in context
in sequence, page 159 of the appeal book is probably -the chairman's statement in the middle of that page perhaps sums it up, line 24. After the chairman had made the statement at the
top of the page which, I think, Mr Sheller read
to Your Honours, Mr Shand said at line 18:
Well, Chairman, it amounts then to this, as we would see it: the tribunal cannot look at what the transaction was, it can
only look at what Mr Bond thought it was.
Answer:
Yes. I suppose in essence. Mr Shand: Well, that is not the nature of
the transaction.
And, I remind Your Honours again, that was the issue which they said they were addressing.
BRENNAN J: But, it could not be the issue in point of law.
1:1R GYLES: With respect, Your Honour, the notice of inquiry
delineated the issue that they were inquiring into.
C2T25/l/JH 142 28/2/90 Bond(2)
BRENNAN J: Well, perhaps Tve come back to the problem of
decision again. If one looks at section 88, the issue that arises there is whether the company is fit and proper.
MR GYLES: Yes. BRENNAN J: What may, or may not, depending upon the way in which the argument goes, be relevant to that
is the fitness and propriety of Mr Bond and thatis the issue under section 88.
MR GYLES: With respect, Your Honour, the fitness of Mr Bond
is not an issue under section 88. It may be a step in the reasoning but -
BRENNAN J: Perhaps I have misstated it. It is not the
issue under section 88. It is the fact from which
an inference can be drawn of the fact in issueunder section 88.
MR GYLES: Yes, Your Honour. When I say yes, I follow what Your Honour is putting.
BRENNAN J: Yes, I appreciate that but the problem arises al~ng the lines that yuu are now putting only
if one regards this not as an exercise of power
under section 88, which is amenable to judicial review
under the ADq~ ACT, but if it is a decision which is
made, perhaps, under section 17C.
MR GYLES: I see what Your Honour is putting to me. If you have a threatened exercise of a substative power
of revocation, there must be a section 17C inquiry
and this was a section 17C inquiry so it has been
held. That ultimately leads, as Your Honour has
said, to a statutory finding of fitness or not fitness
in the company.
(Continued on page 144)
C2T25/2/JH 143 28/2/90 Bond(2) MR GYLES (continuing): If in the course of a 17C inquiry
the Tribunal properly determines that tney will
conduct the inquiry in relation to certain issues
which are relevant to the ultimate issue, which
is what they did here, there is a notice of inquiry
and then within the notice of inquiry they laid
down the suhheadings, Nature of Transaction. Now,
if thereafter in the course of that inquiry something is done which is flawed, for example, by
a misunderstanding as to the law, or flawed by
some other AD(JR) problem, then it is not on any
view, Your Honour, conduct leading to a decision, onany view.
BRENNAN J: Why does not one look at the other way and say, "Having explored the issues which were determined for the purposes of 17C inquiry, knowing that the inquiry is for the purpose of satsifying the requirement of the Act which governs the exercise of power under section 88, the Tribunal then sees that the only issue that is really relevant for the purposes of section 88 is that of fitness and propriety". Viewing it in that way it is no longer necessary for the Tribunal to adhere to the finding.,or to the view that it had earlier
expressed that it must make a finding with regardto what you call "the nature of the transaction". MR GYLES: Not what I call,what they call, with respect.
BRENNAN J: It depends on what they call or what you call
the "nature of the transaction"; if Mr Bond's
perception of the transaction is what they call
the "nature of the transaction".
MR GYLES: Well, Your Honour, that is not what they ever
said, with respect. The way that the inquiry was conducted - and that is why· I was anxious to take
Your Honours to how it was conducted and who was
called and so on - is quite inconsistent with that
view. I mean "nature of transaction" surely means what it says, there is a bilateral transaction and they wish to investigate what the nature of it was. That does not mean looking at the mind of one party. So they never said that, with respect, Your Honour; what they did say, and we see it here in the passage
I am reading, is that we cannot do what we set out
to do because we are inhibited by law. Now if that is incorrect, as we submit it is, then the process of reasoning Your Honour has outlined was not their
process of reasoning. Yes, that is not - - -
BRENNAN J: The question under the AD(JR) ACT is whether what they did is inconsistent with the requirement of
what they must do in order to make their decision
proof against judicial review.
C2T26/l/JL 144 28/2/90 Bond(2)
MR GYLES: Your Honour, that is one of the issues but we can take - our submission is that in a 17C inquiry if
in the course of that inquiry there are flaws in
the inquiry of a nature which would attractjudicial review then either they are decisions in themselves as per LAMB V MOSS, or even if they are not, they are conduct leading to a decision within section -Your Honour understands the two -
and our application was on the two bases: either decisions in themselves or conduct leading to a decision, and I would submit that on the law ?.s it now stands, Your Honour, LAMB V MOSS clearly establishes the first proposition that if
in this sort of inquiry - - -BRENNAN J: It may establish it in other court~ it has not established it here.
MR GYLES: No, I understand that, Your Honour, that is why
I put that as an alternative it would be, in oursubmission, conduct leading to a decision which would also be amenable to the same, provided we can show a relevant flaw - not every difference ot opinion of what should happen is an administrative law matter - - - BRENNAN J: Yes, I understand the way you are putting it. MR GYLES: But if in the passage that I am just reading, Your Honours, where the chairman said: We can only make findings about Mr Bond's
part in an activity with the Premiser insofar
as it affects him, and the licences for
which he controls.
Taken together with what had been earlier her
agreement that the Tribunal cannot look at what
the transaction wa& it can only look at what
Mr Bond thought it was, and if it is correct
that that was based upon the view that that was required because Sir Joh was not amenable to
jurisdiction, we would submit that is a clear
error of law which the Tribunal should be freed
from as the Federal Court have freed them from it
and they should go back and consider what really
they should do about it.
C2T26/2/JL 145 28/2/90 Bond(2)
MR GYLES (continuing): Your Honour also understands that our submission, in any event, is that as a matter
of rational decision making you cannot, with a
bilateral transaction, safely come to a view
as to what is in the mind of one of the parties
without making findings as to what actually happened
between them. It is a flawed reasoning process
to say, "I don't care what happened between them
at the time, I can safely deduce what was in his
mind." That would be, in my submission, a process
which would, A, be an irrational decision-making
process and, B, as Your Honour points out to me,
the statutory task is fitness and propriety not
whether he bribed Sir Joh or whether he thought
he bribed Sir Joh. The issue is fitness and propriety. In order to determine that wider issue, the
circumstances, in my submission, must always be
relevant and it would be an error, an administrative
law error, not to take into account those
circumstances which is our respectful submission. I And Your Honours will also have in mind here
that once an inquiry under - the inquiry under
section 17C which was commenced here was an inquiry
into the exercise of two possible powers, onesection 85, condition making, and the other
section 88, revocation. The institution of a 17C inquiry does not oblige the Tribunal to proceed
with that inquiry inevitably to a finding of
fitness or not. The substantive powers being investigated were section 85, section 88 and it
was not inevitable that they should go ahead and
make a section 88 finding. The matter could have been solved under section 85 at any stage.
Mr Justice Pincus has held - in our submission
correctly, and in a way which binds by estoppel
both parties here - that section 85 conditions
can be imposed without any statutory precondition and they could certainly bring any inquiry of this
sort to an end. So it is not correct to say that this inquiry is limited to a section 88 power,
it also~encompassed, expressly encompassed, the
utilization of section 85.
Your Honours, as we put in our written submission
in paragraph 8, page 13, that the mind of one party
to a transaction is not the nature of a transaction,
even if it be a relevant matter, it is a different
relevant matter to that which the Tribunal set
itself to answer. We then submit that the Federal Court was plainly correct in concluding that the
Tribunal held that the Premier was not amenable
C2T27/l/ND 146 28/2/90 Bond(2) to its jurisdiction and therefore precluded
itself from making findings as to what the Premier
said and did.
The transcript of the proceedings makes this
pellucid as does its subsequent listing of facts
which might be found. It is further submitted
that even if the issue were not as posed, the nature
of the transaction, but Mr Bond's state of mind,
it is impossible to make any finding about this
or draw any conclusions as to unfitness based upon
it without understanding the facts which existed
that were relevant to this state of mind.
We submit the lack of jurisdiction over
Sir Joh was no basis for not properly and fully
examining the transaction in which he was involved
and in making all necessary findings of fact about
it, including findings of fact as to his state
of mind, what he in fact communicated and what
he intended to communicate. I qualify that by saying, Your Honours, his state of mind as relevant
to what he did, not some uncommunicated state of
mind.
At the very least this amounted to a refusal
to take into account relevant matters for a reason
which was plainly bad in law, and amounted to a
failure to afford procedural fairness to the
respondents. The reference to natural justice for Sir Joh is a red herring. He gave evidence, he was represented and could have been given
appropriate notice.
The Tribunal's ultimate finding on this, from which its findings on candour also flow, was that:
the arrangement entered into by Mr Bond to
pay Sir Joh Bjelke-Petersen $400,000 and the
subsequent payment of that amount was
improper - Your Honours, that is a conclusion which,
in my submission, is a conclusion which cannot
be supported upon their process of reasoning.
The payment of $400,000 for that defamation
settlement may have been an entirely appropriate
amount. It may have been. The defamation may have been indefensible and damages at large with
apparently exemplary damages available in Queensland,
an amount of that sort may well have been the result.
And no matter what individuals thought about it,
the possibility is clear. We all know of defamation verdicts, not in Queensland, because one does not how many cases are actually fought in Queensland.
There was a $600,000 verdict in Sydney recently for a
defamation which many would think was far less
serious than this.
C2T27/2/ND 147 28/2/90 Bond(2) BRENNAN J: Well, the fact that you do not know what happens
in Queensland, does not really make evidence of
what happened in New South Wales some information
about it.
MR GYLES: Well, Your Honour- but is that correct, with respect?
Surely defendants in those circumstances will be
seeking for guidance from wherever it comes and juries,
whilst different in Brisbane, no doubt, from Sydney,
and different from Melbourne, they are, after all,
taken from a community which is increasingly homogenous
and, I would respectfully submit, that a jury's verdict
in Sydney is at least material consideration in assessing
what a defendant should do by way of settlement in
Queensland where there is little history of jury verdicts.
Now I agree,Your Honour,it may not - - -
BRENNAN J: It is known that there is little history of jury
verdicts, is it?
MR GYLES: Well,Your Honour, I am referring to the evidence in
this case. Now I really do not know myself, Your Honour. There was evidence in the case about that, Your Honour.
Whether that is reliable,I do not know, but that was
the evidence. Your Honour, we then draw attention to
the fact that- the-·way in which this impacts upon thefinding about Ms Wendt. There,the Tribunal found
that Mr Bond intended to convey the meaning that he
had been placed in a position of commercial blackmail
by Sir Joh Bjelke-Petersen and yet he denies that in
those term~. It would be clearly relevant to that
question to know whether or not Sir Joh had placed him
under commercial blackmail. If he had it may make that statement to Ms Wendt more likely than not. If he
had not, it would make it less likely. Again, the
Tribunal have not permitted themselves to consider material plainly relevant to the question that they
wereasking. We submit that the attempt to, as it were, slide around this by the appellant, is not valid. The Tribunal did not make any finding about what
Sir Joh did. The transcript shows they refused to do so at counsel assisting's urging, and counsel
for the Tribunal conceded to the Federal Court theTribunal did not make findings about Sir Joh. And
we say that the approach was not merely to refuse
to attach labels. It did not1 :make the primary finding
of .. fact;: about what he did or said or intended to do or say.
Now may I go back to the passages that my
learned friend, Mr Sheller, referred the Court to
in the judgment which indicated that they had in fact
made findings about Sir Joh and had not had this
self-abrogation. Now we rely upon what they did
because what they did was, in a sense - going through
C2T28/l/CM 148 28/2/90 Bond(2) a narrative of events, they used what Sir Joh said.
Without any examination of whether it was consistent
with other evidence or not, used it, but still having
used it for peripheral, collateral purposes, having
used it for narrative purposes and having used it
for purposes which are contrary to Mr Bond's interests,
none the less make no finding on the central issue and
that can only be because they were told they could not.
Now, Your Honours, my learned friend referred I think
to - and this starts at page 106, line 16:
The issue of the settlement was first raised
by Sir Joh Bjelke-Petersen on the 30 January 1985
with various senior Bond executives. There
appears to have been no follow up to thisdiscussion.
I am just referring to Sir Joh here, Your Honours.
Line 25:
On the 17 October 1985 the matter was raised by
Sir Joh Bjelke-Petersen in private discussions
with Mr Bond which took place at the Premier's
office in Brisbane. At this stage, Sir Joh
Bjelke-Petersen indicated that he was suing
for $Ml and some negotiation took place, with
the effect of reducing the amount claimed to
$400,000 on the basis that he alerted Sir Joh
Bjelke-Petersen to the fact that he would not have to pav tax on the sum.
(Continued on page 150)
C2T28/2/CM 149 28/2/90 Bond(2) MR GYLES (continuing):
Subsequent to this meeting, Mr Bond
called for reports from various executives
on the status of the matter.
There is something wrong with the transcription
there, I think, Your Honours.
On the 18 December 1985, there was a
further meeting between Mr Bond and
Sir Joh Bjelke-Petersen alone and that
meeting took place at the offices of
Castlemaine-Toohey. At that meeting, there
was a further discussion about the settlement
amount and according to Sir John Bjelke-Petersen
he again "shook hands" with Mr Bond on the
$400,000 figure.
Your Honours, we do not know whether the Tribunal are
accepting that or not. They are apparently setting
out what Sir Joh had said, according to Sir Joh.
Either they were merely reciting it as whathe said about it without finding that to be true, or,_
if they were accepting that as a fact, contrary to what
they said, it does not deal with what took place at
that meeting beyond saying there was a further
discussion and, according to Sir Joh he "shook hands"
on the $400,000 figure. It does not set out to
decide the facts of that meeting.
MASON CJ: Well, they do make a finding about that, do they
not, on page 109?
In our view -
this is line 5 -
the agreement to pay Sir Joh Bjelke-Petersen
$400,000 was made by Mr Bond at the meeting
of 18 December 1985.
MR GYLES: As to date, yes, Your Honour, but not as to what took place at that meeting. I think that is fair
to say, Your Honour, that the question was one of
date. Then the next reference is the passage to which Your Honour has just referred to: 109 line 5, where they make a relevant finding as to date, and they then refer to the third and final meeting on 17 February 1986 and the letters which follow that, and that is referred to again, Your Honours,
at 113, line 23. And then there is a referenceat the foot of that page to discussions with
Mr Lockhart, Sir Joh Bjelke-Petersen's solicitor. And there is a passage of evidence set out, and then at the foot of 116, Mr Bond's response is
recited, and then the relevant findings at the top
C2T29/l/FK 150 28/2/90 Bond(2) foot of 177, top of 118, and going on down to
the bottom of that page.
Your Honours, in all of that - whilst, as I have said,
for certain purposes the evidence of Sir Joh is
referred to, certain findings are made, it is,
with respect, an extraordinary thing that there is
no finding as to what was said by Sir Joh to
Mr Bond, or Mr Bond said to Sir Joh in any of these
crucial meetings, and we submit that when the task
was one in which the Tribunal set for itself the
task of deciding the nature of the transaction,
that is a striking error and one which can only be
explained by the misap~rehension under which they
laboured that it would be mcorrect. for them to go beyond
this and say what was actually said, because to do somay involve a consideration of finding;which would be
viewed as adverse to Sir Joh.
If they found that he had importuned Mr Bond,
that is not the finding of a criminal offence, it is
their finding of fact about the transaction whichthey were entitled to investigate.
BRENNAN J: Had Mr Bond given evidence that he had been importuned by Sir Joh?
MR GYLES: No, no, but - - - BRENNAN J: Had Sir Joh given evidence that he had importuned Mr Bond?
(Continued on page 152)
C2T29/2/FK 151 28/2/90 Bond(2)
MR GYLES: No, Your Honour, but he did give evidence that he had first raised the question of the defamation
settlement with Mr Bond in a very early meeting with
Mr Bond. Once Mr Bond's interests had taken over the Q'IV licensee, I think the first time that Sir Joh saw
Mr Bond after that Sir Joh had raised the question of
the outstanding defamation writ. So we know that. We do not know what the Tribunal makes of that, nor do we know
what it makes of what was said thereafter. Your Honour, I
hasten to say that it is Mr Bond's position, and has
been, that he was not importuned, that he made the
decision for commercial reasons, that is commercial
associated with the defamation itself and the nature
of the case, and that he has been consistent with that
both in the 1986 inquiry, the 1988 inquiry, and hesays he was consistent with that in relation to
Jana Wendt. So that is his position.
BRENNAN J: Is there any evidence which the Tribunal might have
relied on to find that Sir Joh importuned -
MR GYLES: Your Honour, that would depend upon their assessment, I suppose, of what Mr Bond said to Jana Wendt, what was
meant by Sir Joh's initial raising of the matter with
Mr Bond. I mean, as an administrative tribunal, having regard to the body of evidence, they may have come to
that view. Neither of the participants gave evidence
consistent with a bribe on either side. I do not suppose you would expect them to, but they did not.
GAUDRON J: Mr Gyles, could I take you back, I am sorry, to your answer to me earlier that there were three ways
in which you attacked this decision? You remember them and I need not go into them.
MR GYLES: Yes. GAUDRON J: And can I take you then to the answers to Justice Brennan in which you said you relied on the decisions, if you were, you relied on the matters
as conduct.
MR GYLES: Conduct, yes. GAUDRON J: Even assuming for the moment that it is conduct, does it not simply amount to a finding of fact, all these
matters, and notwithstanding everything else, but by
reason that it amounts only to a finding of factual
matters, why does one look to anything other than
whether that finding of fact is reasonably open on the
evidence?
MR GYLES: Your Honour, that would be posing an appellate question and we cannot contend that there was any
appellate supervision of the Tribunal. I mean, we would put that submission if it was open to us.
C2T30/l/HS 152 28/2/90 Bond(2) GAUDRON J: I do not know that it helps you. I am just wondering - because it is factual findings within
the context of the AD(JR), what can be the relevant
consideration other than it is reasonable in lightof the evidence?
MR GYLES: Your Honour, what I was intending to say was this: Your Honour has posed a question for an appellate
court where it is reviewing findings of fact by the
inferior tribunal. That is not the test. Here the question is whether or not in arriving at its finding
of fact the decision-making process was flawed in
any of the respects subject to judicial review.
GAUDRON J: Well, I am wondering if they are appropriate in any respect other than one of reasonableness when
you are looking at a finding of fact which, on one
view, is merely conduct in relation to a decision.
MR GYLES: But Your Honour, I suppose 99 per cent of administrative decisions are decisions of fact.
GAUDRON J: That may involve findings of fact? MR GYLES:
With respect, I submit that administrative decisions are generally purely questions of fact
rather than questions of law.
(Continued on page 154)
C2T30/2/HS 153 28/2/90 Bond(2)
MR 1GYLES (continuing): However, in arriving at the
decision in question, the decision on the facts,
administrative law ensures that the decision-making
process is a valid process and it does so in
a number of ways. First of all, you must take into account relevant considerations and you must exclude
irrelevant considerations. You must not misdirect yourself in law, you must not do any of the things
which section 5 of the ADMINISTRATIVE DECISIONS
(JUDICIAL--REVIEW) ACT says that you shall not.Now, if in the course of making a factual decision under an enactment the decision maker
commits any of these errors then administrative law
steps in, not to decide the merits of the point
but to ensure that the process is correct and we
submit this is a very good example of it here. If
we are correct in submitting that the Tribunal did
not advert to the true nature of the transaction
and if it be correct that that was a relevant and
material consideration,then. we submit that would
be correctable on administrative review.
If they did not do so because they were under a misapprehension of law, so much the easier to have it
corrected. The result is that it would go back to the Tribunal saying, "Remove from yourself the blindfold.
Remove the handcuffs. Now look at all of the evidence and make all of the appropriate findings.
Take all of that into account in making your decision
on the facts. We can't tell you what to do but we can tell you you must not exclude that body of evidence
for that invalid reason". And, I respectfully
submit, this is a - - -
GAUDRON J:
But, you see, no evidence was excluded in the hearing. It was simply a question of what was taken
into account to support factual findings which thereafter might in the ordinary course of events form a base for some other decision.
MR GYLES: Yes, that is correct, Your Honour and, we submit, that is par excellence to the !ield of administ!'ative review.
GAUDRON J: I am not suggesting that. I am just wondering as to the - perhaps that is not really a matter
I need pursue further.
MR GYLES: Yes, I would submit the circumstance that the ultimate finding may be described as one of fact does
not mean that the finding is immune from the processesof the (JUDICIAL REVIEW) ACT or, indeed, of
judicial review at common law if there were no Act.
GAUDRON J: No, I am not suggesting immunity at all. I am suggesting that the issues have been, in so far as
one is concerned with conduct on which you rely,, and
C2T31/l/JH 154 28/2/90 Bond(2) if it comes to conduct rather than decisio~
in so far as one is concerned with conduct and
that conduct is the finding of facts, I am just wondering whether the issues have not been inflated
to some extent.
MR GYLES:
I think, Your Honour, our submission is to the contrary, of course.
GAUDRON J: Yes. MR GYLES: Your Honours, the question of what the Tribunal could properly find about Sir Joh - my learned
friend read from MAHON's case in the New Zealand
Court of Appeal and the Privy Council and we do not
dissent from the propositions there that the
Tribunal decides what it is necessary to decide for the purposes of its jurisdiction and does not go beyond that but what is necessary is to be
judged not by any doctrine of implied immunities.
You ask the question, "What is proper for this Tribunal to carry out its statutory task?" and you answer that question and you do not say avoiding, of course, something else. If what is required is required,then the Tribunal has a statutory duty to
go ahead and make that decision.
(Continued on page 156)
C2T31/2/JH 155 28/2/90 Bond(2) MR GYLES (continuing): Your Honours,my learned friend referred to
BALOG's case without taking Your Honours to it.
I am not sure whether he is intending to submit that
that is to the contrary of that proposition. It seems
to me, with respect, to be in line with the MAHONprinciple. I know special leave has been granted
and I think all I wish to say about BALOG's case is
that there is nothing in it to detract from the
principle which appears from MAHON's case and there
was nothing in BALOG to cast any doubt upon theTribunal's power to make all appropriate findings
of fact as to the bilateral transaction.
BRENNAN J:
Mr Gyles, could you identify the paragraphs of sections 5 or 6 of the AD (JR) ACI'under which you say
this leg of your argument comes?
MR GYLES: Yes, Your Honour. Your Honour may recall that in the application which we referred Your Honours to yesterday
we put the grounds under - we took each "decision" and then listed the grounds under the Act which we
said vitiated it and that would help Your Honour.
BRENNAN J: That is all that I need.to look at?
MR GYLES: I think probably it is, Your Honour, and we have a matching conduct. If it was not a decision but
conduct leading to a decision then the matching flaw
was alleged, if Your HonoBr follows.
BRENNAN J: And if it is conduct leading to a decision, is the·
relevant decision the decision under section 88?
MR GYLES: Or 85. I do not know whether Your Honours wish to
hear argument on the LAMB V MOSS question. The way we put our argument, we say that the LAMB V MOSS
makes these decisions, but even if that be wrong
they are conduct leading to a relevant decision.
Whether LAMB V MOSS, as Mr Justice Brennan put
to me, that is not a question which this Court has
~passed upon and it is cl_early a large question. We ···are prepared to argue it but we are really - - -
MASON CJ: I think, Mr Gyles, we will have to hear argument
on it.
MR GYLES: Yes. In our respectful submission, Your Honours, LAMB V MOSS which is reported in various places -
it may not be on the list, Your Honours. My learned
friends had not challenged LAMB V MOSS but I see how
it arises. Anyway, the reference I have, Your Honours,
is LAMB V MOSS, (1983) 76 FLR 296, and perhaps I can
put the submission, Your Honours, that we rely uuon
LAMB V MOSS and submit it was correctly decided and that if correctly decided it would categorize the
decisions that we have isolated as decisions.
C2T32/l/LW 156 28/2/90 Bond(2) That will be our submission on the matter,
Your Honour, we adopt the reasoning of the Federal Court. Your Honours, may I then pass from that issue to some other issues.
I remind myself that I did
not,in dealing with the section 88 point,go to the
American cases which my learned friend had cited.
May I do so briefly, Your Honours? The decision of
the United States Supreme Court in FEDERAL
COMMUNICATIONS COMMISSION V WOKO INC, (1946)
329 US 223, Your Honour, the part of the decision
which my learned friend referred to was the right-
hand column at the foot of page 227.
(Continued on page 158)
C2T32/2/LW 157 28/2/90 Bond(2)
MR GLYES:(continuing): But Your Honours will appreciate that the factual circumstance was that the
company itsel~ W0K0,had itself lodged the
incorrect returns which did not disclose the true
ownership position and the company itself had done
so for, I think, 12 years and the purpose was to
prevent Mr Pickard's association with the company
being known to his colleagues at Columbia; so it was the company's false returns, contrary to
the stat8te.
The argument which was presented, at the foot
of 227:
We are told that stockholders owning
slightly more than 50 per cent of the stock
are not found to have had any part in or
knowledge of the concealment or deception
of the Commission. This may be a very proper
consideration for the Commission in determining
just and appropriate action. But as matter of law, the fact that there are innocent
stockholds can not immunize the corporation
from the consequences of such deception.
If officers of the corporation by such
mismanagement waste its assets, presumably
the State law affords adequate remedies
against the wrongdoers. But in this as in other matters, stockholders entrust their
interests to their chosen officers and often
suffer for their dereliction. Consequences of such acts cannot be escaped by a corporation
merely because not all of its stockholders
participated.
Your Honours, we would not disagree with a word
of that. If the licensee itself breaches the Act
it can hardly say, "I escape from that because
not all of my stockholders were party to it.",
although as the Supreme Court say, the fact that
there were innocent stockholders may well be regarded
what consequences flow. as appropriate by the licensing authority in deciding And then, Your Honours, the question arose
as to whether or not they should make findings
about quality of service in the past and its
equipment for good service in the future. And the Supreme Court's conclusion about that, in the right-hand column at 229: We cannot say that the Commission is
required as a matter of law to grant a license
on a deliberately false application even if
the falsity were not of this duration and character, nor can we say that refusal to
renew the license is arbitrary and capricious
under such circumstances. It may very well
C2T33/l /ND 158 28/2/90 Bond(2) be that this Station has established such
a standard of public service that the
Commission would be justified in considering
that its deception was not a matter that
affected its qualifications to serve the public.
But it is the Commission, not the courts, which must be satisfied -
and so on. Again, Your Honours, we would not
quarrel with that. The Supreme Court are saying,
with respect, surely, that the standard of public
service is relevant and to be weighed in the scales
but the regulatory authority may properly take the view that none the less the licence should
be refused - or the renewal should be refused because
of what they describe as the systematic course
of deception.But there is nothing in this case to support the view that there is not a balancing exercise
to be done in considering qualifications to serve
the public. Indeed, we rely upon that decision,bearing in mind, of course, it is on other
legislation and in another place and for that reason-
perhaps of marginal importance.
(Continued on page 160)
C2T33/2/ND 159 28/2/90 Bond(2)
MR GYLES (continuing): The IM1'-1ACULATE CONCEPTION CHURCH of Los Angeles case, Your Honours, in the District of
Columbia Circuit Court of Appeal, 320 F 2d, 795, is, Your Honours, on all fours with WOKO really. It was a case in which the applicant for renewal itself,
the corporation, had filed false returns and, for
that reason,we submit that where a licensee reaches
a statutory requirement and deceives the commission,
the regulatory body may take the view that that is
sufficient to disqualify it, and we submit that that
says nothing relevant to this case.
The INDEPENDENT BROADCASTING COMPANY case,
Your Honours, in, again, the Columbia circuit,
193 F 2d, 900 - may I make these points shortly
about it, Your Honours?
Firstly, it was a case of a grant, not a
renewal of a licenGe. As the cases referred to in the Federal Court of WESTERN TV on the one hand and
NEW BROADCASTING on the other, decisions by
Mr Justice Pincus and Mr Justice Davies, respectively
show, the issues on a grant are very different from
those on a revocation or renewal. Secondly, again, it
is a case of deception by the company applicant
itself, not by the stockholder himself. Thirdly, the
argument was that the deceptions which the company
had perpetrated should be overlooked because some
stockholders were innocent and, as per WOKO, that
did not immunize the corporation from the
consequences of it.
The second significant finding,which my learned
friend read to Your Honours, was that where you have
conduct by the company - corporation which disqualifies,
and you have a stockholder who, because of his association
with the company, it can be said his character would
dis entitle to the grant, you do. not say, balance,stockholder A against stockholder Band remove the
difficulty. We agree with that, Your Honours. What this
case does not deal with is the present circumstance
where you have stockholder, no direct shareholding,
no office with the company, not a director of officerof the company, a body of evidence from the
directors of the companies, from officers of the
companies, employees of the companies and evidence
of what the companies had, in fact, done over a .. ,
course of year, and we submit that the issue that arises
in the instant case before Your Honours is quite a
separate question from that which arose in the
INDEPENDENT BROADCASTING CASE.
Now, Your Honours, may I then turn to the
next matter that my learned friend's submissions address,
which was - I think he described as other errors.
I am sorry, Your Honours, the next issue to which he
went was the ancillary findings of lack of candour,
C2T34/l/FK 160 28/2/90 Bond(2)
misleading the Tribunal, and so on. Now, it is our respectful submission that as far as that
is concerned the Federal Court were right in saying
that if the basic analysis of the transaction was
flawed in the way the Federal Court said it was, then
it would inevitably catch up with it - the findings
which flowed from it, depending, as they did, uponsubstratum which said Mr Bond was guilty of
impropriety in that he thought the following.
(Continued on page 162)
C2T34/2/FK 161 28/2/90 Bond(2) MR GYLES (continuing): Now, if that was an impermissible
mode of reasoning, if that finding should be set aside,
we adopt the Federal Court's finding that that carried
with it the ancillary or accessory issues, and I thinkI need not develop that submission further,
Your Honours. My learned friend then proceeded to examine the question of the finding about Mr Bond
which appears at page 32 of his submission and, as
I understood that written submission and his
submissions,he intends that it was not a decision under an enactment. Your Honours, here I just
incorporate what I have said earlier that, in our
submission, LAMB V MOSS establishes, as the
Federal Court held, that this was properly to be
viewed as a decision and, secondly, that, in any
event, it was conduct leading to a decision in the
relevant sense.
That brings me, Your Honours, to the question
of undertakings. Subject to the matter which was
raised with me by His Honour Justice Brennan yesterday,
the issue on undertakings which arose in the Federal Court
and arises now is a relatively narrow issue. The
Tribunal did not accept the undertakings because, in-
their view, they did not address the fundamental issues
arising upon Mr Bond's impropriety, unfitness.
(Continued on page 163)
C2T35/l/HS 162 28/2/90 Bond(2) MR GYLES (continuing): In our written submissions at page 17,
Your Honours, we isolate where the Tribunal's decision
is to be found and where the Federal Court decision
about it is to be found and it is our submission thatthe rejection of the undertakings, in essence, resulted from the Tribunal's erroneous view of
Mr Bond's position as controller and the automatic
unfitness which went with that title and plainly
failed to appreciate that the undertakings effectively
fettered or rem:rved Mr Bond's only relevant nexus with
the licencee companies. That is, the ability
ultimately to control the board of directors. That is,
of course, subject to the undertakings that he would not involve himself or the actual undertakings as to
what he would or would not do. Your Honours, the undertakings themselves are found at page 225 of
the appeal book and my learned friend, Mr Sheller,
took Your Honours to them and I will not, I hope, take
undue time about them, but the effect of them is to
deal with the control which Mr Bond has by virtue of
his ultimate shareholding. Each of Mr Bond, Dallhold
and Bond Holdings. give the necessary undertakings
which deal with the composition of the Board. That,
after all, is the only power which the shareholder has
in relation to the company below and:
he will take all necessary steps within his power
to ensure that, as soon as is practicable and
in any event no later than three months
following the Tribunal's Final Decision in
its current Inquiry and until the last day of
the next licence renewal period for commercial
television station QTQ9 Brisbane, a majorityof the directors of (Bond Media), as well as
its Chairman, are persons who are not otherwise
associated with Alan Bond, (Dallhold) and(Bond Holdings);
(Continued on page 164)
C2T36/l/CM 163 28/2/90 Bond(2)
GAUDRON J: It is controlling the composition, though. MR GYLES: I am sorry, Your Honour? GAUDRON J:
To that extent, he is able to control the composition of the board.
MR GYLES: Well, of course, Your Honour. GAUDRON J: Yes.
MR GYLES: I am sorry, I do not understand what is being put to
me. He is saying, "I have the power to control the
composition of the board. That is my power, and I am undertaking to use it in a particular fashion".
GAUDRON J:
Perhaps, "to use it so that a certain consequence does not result".
MR GYLES: Your Honour, what he does is to undertake that he will not utilize the power except in a certain way for a
certain period.
DEANE J: It is a two-edged sword, though, Mr Gyles, in that what it says - assume that he is an unfit and improper person -
what it says is, "The directors of this company will
remain non ex but selected by an unfit and improper
person".
MR GYLES: Your Honour, there is no assumption of impropriety. It hurdles the problem.
DEANE J: But the point that Justice Gaudron is making to you is that this undertaking underlines the fact that if
Mr Bond is an unfit and improper person for relevant
purposes the directors of the companies will all be
people effectively chosen by an unfit and improper
person and it is really neither here nor there to say
that they w1il not have other contact with him.
I am not suggesting it destroys any value of the
undertaking. I am simply pointing out to you there is another way of looking at it which means that they do not overcome all the problems.
MR GYLES: I see what is being put to me. The case, of course, has proceeded on the footing that Mr Bond, by virtue
of a shareholding control, can ultimately control thecomposition of the boards. That is a given - and
this is an end~avour to deal with that point.
(Continued on page 165)
C2T37/l/HS 164 28/2/90 Bond(2)
BRENNAN J: Had this undertaking been in force at the time of the transaction and had the board been
constituted in the way that that undertaking
contemplates, would it have made a scrap of
difference.
MR GYLES: Absolutely, Your Honour.
BRENNAN J: How? MR GYLES: Because the board - it would depend upon that board's view as to the settlement.
BRENNAN J: The board did not even know of the settlement until after 1 April.
MR GYLES: No, Your Honour, with respect, the settlement was effected by - I mean, it was necessary to have
the concurrence of the then board.
BRENNAN J: Was it? MR GYLES: Yes. BRENNAN J: Well, I misread the letter from Dawson Waldron
to the - - -
MR GYLES: Your Honour, the deed was handed up to Your Honour yesterday.
BRENNAN J: Yes. MR GYLES: I mean, Your Honour, a case involving a particular company cannot be settled without that
company's concurrence.
BRENNAN J: I appreciate that that would be the usual situation.
MR GYLES: And it was the situation here, Your Honour, with respect. Indeed, Your Honour, probably a main
question of difference between Mr Bond and Sir Joh Bjelke-Petersen about the settlement was
that Mr Bond claimed that when he reached agreement
with Sir Joh it was on the basis that it would
be subject to board approval. He meant, of course, Bond Corporation board approval but that was his
position and has remained his position, that he
went back to the board and the other members of
the board were not happy with the settlement and
that led to the problems in January.
Your Honours have not seen the evidence but
that was the position that Mr Bond took with
Sir Joh that his agreement was subject to board
approval and his directors were not happy to go
along with it.
C2T38/l/ND 165 28/2/90 Bond(2)
BRENNAN J: I do not know what this document is because is has not got a heading on it but it is in volume three
"Ap1?licant-' s Hand-Up· Br-ief." It is in the section under tab D and it is the document
immediately following the letter to Dawson Waldron
from the Chairman of the Broadcasting Tribunal
setting out four questions, (a), (b), (c) and (d),
including the question:
Why was the board of Queensland Television
Limited only advised of the settlement after
it was effected.
(Continued on page 167)
C2T38/2/ND 166 28/2/90 Bond(2) BRENNAN J · ( continuing) : And, your answer to that in the docl.lm=Ilt which,
I assume, pernaps incorrectly, came from
Dawson Waldron, was that "In the circumstances
there was no necessity for the QTL Board,
formally as a board, to be directly involved in the
settlement negotiations" and so forth.
MR GYLES: I do not have it in front of me, Your Honour, at the moment but I apprehend - well, the answer is
without having stated it, Your Honour, that
by then the funding of the settlement was known to
be from Bond Corporation not from the company.
BRENNAN J: Yes. MR GYLES: None the less, as Your Honour sees, the settlement did involve the company itself giving a
release, the deed which was handed up yesterday.
BRENNAN J: Well, the next question is, I think, is the use of the company seal without the board's
knowledge - - -?
MR GYLES: Yes, that was an authorized transaction ratified by the board of the company, Your Honour.
BRENNAN J: Ratified? MR GYLES: Yes. BRENNAN J: Well, my question to you was, that if the undertaking had been in force at the relevant time,
would it have made any difference to the carrying
through of this transaction?
MR GYLES: Your Honour, my answer was it would depend upon
the attitude the board as to whether they thought that was a prudent or an imprudent transaction.
BRENNAN J: That is the ratification?
MR GYLES: No, the settlement. BRENNAN J: But, the board had no knowledge. MR GYLES: Well, if they did not, they could not be bound by it.
I mean, it is a non sequitur, Your Honour. The board was required that they ratify. If they did not ratify then there would have been a liability in
the person who had executed the document on behalf
of the company. That must be the position, Your Honour.
That points up the fact - it would depend really on
their analysis of the situation as it then stood.
They may well, Your Honour, have said - I do not know,
if they were independent directors as some of them were -
''Well, if this is being paid by Bond Corporation, it lets us off the hook of a liability. At the IIXJm2nt we have a potential liability in an unliquidated claim for damages by the Premier against us".
C2T39/l/JH 167 28/2/90 Bond(2) MR GYLES (continuing): "Our chairman's intervention had led
to the situation where the parent company would
pay the amount". That must surely be a provident
transaction so far as the company itself is concerned.
The answer may well be that they may have - I do not know, Your Honour, it is a difficult thing to judge
what they would have done about that. But another view would be that - you see Mr Bond was then the
chairman of the company. Given these undertakings he would not be in that position. To verify the point, we cannot go back to 1980 because these
undertakings would ensure that he was not the
chairman of Bond Media which was the parent companyof the subsidiary. It just would not arise. It could
not arise that he would be in that position. He would have no role whereas as chairman of the board of the
company itself and as chairman of the parent company
he did. Given the undertakings, the answer no,
independent chairman.If the Tribunal had said, ttLook, the problem with these undertakings is that Mr Bond remafns the chooser,
that is why we do not accept them."; then perhaps
another formula could be found, Your Honour.
DEANE J: They would have said he remains the controller.
MR GYLES: They would have said that, yes. DEANE J: That is really what they did say, is it not?
MR GYLES: Precisely, Your Honour, and we say that -
DEANE J: What they said was the whole problem with the case
from your point of view is that Mr Bond is the controller.
MR GYLES: They say that, Your Honour, I know. There is no statutory thing which says anything about a controller
at all.
DEANE J: Mr Gyles, I was not discounting your argument about the
incorrectness of saying that but the point is if you fail in that argument the undertakings are beside_the point. If you succeed in the argument we do not really
come to the undertakings.
(Continued on page 169)
C2T40/l/LW 168 28/2/90 Bond (2) MR GYLES: Weli in a sense that is correc~ Your Honour, except
that it is not inconsistent with their view that the
controller defeats all. If you take the next step
and analyse why that is so. if the answer is "It
is so because he controls the composition of the Board"
then the objective of the undertakings was to cut
that knot. Now Your Honour is pointing out to me
that maybe it did not sufficiently do that. I mean, I, with respect, take Your Honour's point and perhaps a formula could have been adopted. Your Honour, what happened about the undertakings and
the other thing about which we complain, which I
will come to in a moment, is that the Tribunal did
not and would not respond in that way. They expressly declined on more than one occasion to
express a view as to the form of the undertakings.
TOOHEY J: Mr Gyles, could the undertakings have been offered either in the fonn in which they were offered or in
some comparable form, following a finding that the
licensee was no longer a fit and proper person, and
with a view to persuading the Tribunal not to
exercise the power of revo.cation or suspension?
MR GYLES: Yes, that could have happened, yes. TOOHEY J: Why then does the giving of the undertakings bear upon the finding otherwise made that the licensee
was no longer a fit and proper person?
MR GYLES: Because, Your Honour, they were offered before the finding. That is - - -
TOOHEY J: Yes, I understand that, but how does it bear upon
the finding if it was otherwise to be made on the
evidence that had been adduced that the licensee
was no longer a fit and proper person?
MR GYLES: Because, Your Honour, that finding was in prospect, it had not happened. However one basis which had
been put forward for the finding was that the position of Mr Bond as the controller infected the
company. That was a potential argument which mightbe accepted by the Tribunal.
(Continued on pagel70)
C2T41/l/CM 169 28/2/90 Bond(2)
MR GYLES (continuing): If it is correct to say that that follows from the shareholding power, which is the only
relevant link when a controller is a shareholding
exercising control over the composition of the board
of directors, and let me assume for a moment that
the undertakings were sufficient to effectively
remove or fetter in a quite satisfactory way that
power of exercising shareholders' control, and
bearing in mind that the power to control the
composition of the board was a prospective power,
it was a possibilit½ it was a potential. If the
undertaking which is given removes that potential,
then I respectfully submit that it would answer the
problem.
Let me say that Mr Bond gave an undertaking to
accept the nominations of the Australian Broadcasting
Tribunal as a majority of the board of the companies and
to appoint a chairman nominated by the Australian
Broadcasting Tribunal. Let me assume that sort of
undertaking, and given the fact that he has no role
in the executive structure of the company and he
holds no office in the company, that would surely
remove the only cancer which causes the unfitness,
that is the shareholding control.
TOOHEY J: I find it easier to see the force of that in relation to the exercise or non-exercise of the power
once the finding of unfitness has been made.
MR GYLES: Your Honour, that is clear enough. The Tribunal said, much as Your Honour has said, "Too early to
take these undertakings. We'll do it later".
Now, later has disastrous consequences for not just
the company and its shareholders but the individuals concerned. To be labelled "unfit" by a body of this
sort has the most enormous practical consequences.
(Continued on page 171 )
C2T42/l/HS 170 28/2/90 Bond(2)
MR GYLES (continuing): And the inquiry under 17C was set up not to necessarily arrive at an inevitable
finding of fitness one way or the other.
Section 85 was another alternative route which could have been followed at any time. Not driven to make an adverse finding against
somebody. You are not on a tram which you
cannot get off and if the undertakings, and I
say if, if they satisfactorily cut the nexus
between his potential shareholding
control of the board for the period then I submit
that would remove unfitness for that period and
in any event create a situation in which the
Tribunal could properly say, "That undertaking
having been given, we will discontinue this inquiry.
That will meet the practical situation" in the
same way as imposing a condition might. We do
not need to do more; we retain the ability to
supervise what has been happening or what willhappen and if there is any breach of the
undertaking it will be dealt with and if there
is any other breach well we have not only ad hoc powers we have the ordinary licence renewal. In other words there was no .. inevitability about making
an adverse finding if a practical solution could
be found.
Now, when the Tribunal said, "We will not
accept the undertakings because it is premature",
we went to the Federal Court; in a reasoned jud?)Jle!lt the Federal Court said, "That is incorrect You
may accept those undertakings at the momenti,, and,
Your Honour, it is clear that the foundation for
that was that it might bring the inquiry to an end.
There has been no appeal from that decision and
both parties are bound by it. It is not a quesri.on of this Court reviewing it 110\v, even if it:''wisbed to. We say, (a): it was clearly right and (b) in &ny
event there is estoppel and that must be the
foundation on which this matter proceeds. It is
not premature to offer those undertakings, and if accepted, it would enable the Tribunal to bring
the inquiry to a conclusion. After all, Your Honours,the Tribunal is not bound to proceed to - they can
have facts drawn to their attention and they may say,
"We do not want to have an inquiry at all", or they
can bring the. inquiry to an end, or they can impose
conditions. To proceed as happened led to, in our submission, a quite unnecessary finding to the detriment
of the ordinary shareholders of the compani,.es and to
the individuals concerned when, upon this hypothesis,
the practical problem could have been met by a form
of undertaking.
C2T43/l/JL 171 28/2/90 Bond(2) MR GYLES (continuing): Now, Your Honours, if the particular
form of undertaking was unacceptable for various
reasons, it was surely incumbent upon the Tribunal
to say so, as a matter of fairness, before bringingdown the unfitness finding, but it refused to do so.
Now, Your Honours, there are authorities which
indicate that that is a connnonplace, that courts or
tribunals when dealing with disciplinary matters,
or the consequences of findings, will normally enter
into dialogue as to the appropriate remedy. In all
sorts of fields this is done and we referred the
Tribunal to these authorities.
MASON CJ: Now, Mr Gyles, it may be convenient to adjourn but could I ask you, how long will the balance of
your case take?
MR GYLES: I would have thought, Your Honour, about half an hour, if I incorporate,by reference, some written
material, in other words, if I do not go through
it all.
MASON CJ: Yes, and Mr Ellicot?
MR ELLICOT: Your Honour, about an hour and a half to two hours-.
MASON CJ: Thank you. The Court will adjourn until 2.15. AT 12.48 PM LUNCHEON ADJOURNMENT
C2T44/l/FK 172 28/2/90 Bond(2) UPON RESUMING AT 2.16 PM:
MASON CJ: Yes, Mr Gyles? MR GYLES: If Your Honours please, yesterday I put some submissions about the Rothwel.1s• transaction which
was referred to by the Tribunal. May I hand to the Court a copy of the outline of submission on that
point which I put to the Federal Court which, in turn,
refers to the hand-up brief. I had not proposed to do more than hand that to the Court. It puts in
somewhat more detail what I endeavoured to put in
essence to the Court yesterday, that is, that
Mr Bond's participation in that transaction throws
no light at all upon the question as to whether he
was exercising any de facto management control.
I might say, Your Honours, that the only
submission that was put to the Tribunal by counsel
assisting about that transaction appears in
volume - I am sorry, Your Honours - I referred
Your Honours this morning to counsel assisting's
submissions before the Tribunal - I am sorry, I have
just misplaced that, Your Honours.
(Continued on page 174)
C2T45/l/JH 173 28/2/90 Bond(2)
MR GYLES (continuing): I will give Your Honours a reference to that in a moment but counsel assisting did not put
a submission that the facts of the Rothwells'
transaction showed any de facto managementinterference and I will pick it up in a moment.
Next, Your Honours, Mr Justice Brennan earlier
put a question, the substance of which was, as I
recall it, that a relevant matter to consider mightbe the use by the group of a subsidiary for group
purposes, and I said I would come back to that
after looking at the Bjelke-Petersen transaction.
Your Honours, the Tribunal had to consider that position in 1986 on the renewed inquiry because
they had before it then the procedure which was followed,
that is, the way in which the licensee came into the
settlement and the way in which the group came into the
settlement, the sort of matters Your Honour was putting
to me just before lunch.May I hand up, Your Honours, the relevant part of the 1986 decision which referred to the way it was
done. Now paragraph 2.53, Your Honours, at the end of the first page:
If such a settlement had been negotiated or been
paid by QTQ, the necessary independence of the
station would have been compromised.
And they go on to spell that out. In other words, the
way it was done was seen as a plus rather than a minus
and at 2.56 the Tribunal deaB with the same set of
circumstances and conclude at the end:
So it can be said that the television station
was to some extent isolated from the settlement.
(Continued on page 175)
C2T46/l/LW 174 28/2/90 Bond(2)
MR GYLES (continuing): Your -Honours, the submission that I had referred to earlier on the Rothwells' point
appears in volume two of the hand-up brief
behind divider B, page 7, the second-lastparagraph:
It is apparent that Mr Bond's recent
involvement with Bond Media extends at least
to communication to the Chairman of Directors
of Bond Media of his views as to the
desirability of Bond Media's entering into a
financial venture with a friend of his outsidethe ambit of broadcasting.
Your Honours, that is the most that counsel
assisting put on that transaction and I submit
that is the most that could have been put.Your Honours, one other miscellaneous matter, there has been some question raised as to the
procedures under which the Tribunal was operating.
If I could take Your Honours to the regulations -
I wonder, do Your Honours have a copy of the
Broadcasting Tribunal (Inquiries) Regulations?
I do not know that Your Honours would have that.
MASON CJ: No, I do not think that we have them. MR GYLES:
Yes. I think Mr Sheller has copies for
Your Honours. May I hand up six copies, Your Honours, of the Australian Broadcasting
Tribunal (Inquiries) Regulations.
(Continued on page 176)
C2T47/l/ND 175 28/2/90 Bond(2)
MR GYLES (continuing): Your Honours, regulation 9 provides that:
Where the Tribunal commences an inquiry,
whether in consequence of the lodgment of
an application or otherwise, the Tribunal
shall, subject to regulation 8 and any
direction by the Tribunal under sub-section 19(2)
of the Act, publish a notice in accordance
with sub-regulation (3) of the commencementof the inquiry.
And then in (3):
A notice under sub-regulation (1) of the
commencement of an inquiry shall -
set out relevant particulars of the
application.
specify the issues to be considered in the
inquiry.
And so on. So that what was done in that notice of inquiry was not a mere informal Tribunal
procedure. It was laid down by the regulations.
Then there are provisions for submissions, public
documents and then regulation 12:
Where the Tribunal is satisfied that the
issues to be considered in an inquiry, as
stated in the notice published under
sub-regulation 9(1) in relation to the
inquiry, should be changed, the Tribunal
shall determine new issues to be considered in
the inquiry.
And so on. · Provision for conferences, hearings,
a record of proceedings and in regulation 16:
Where in an inquiry the Tribunal is
satisfied, having regard to -
the application (if any)
submissions (if any) ..... and
(c) the Tribunal's investigation into the matters relevant to the inquiry, that it is not
necessary to take any further step in the
inquiry, the Tribunal may, in its discretion,
terminate the inquiry.
C2T48/l/CM 176 28/2/90 Bond(2)
MR GYLES (continuing): Your Honours will appreciate I was putting to the Court before lunch that, in relation
to the undertakings, at any stage the Tribunal couldexercise its power under 16 and terminate the
inquiry if it were of the view that a practical
answer had been arrived at for the problem.
Your Honours, that brings me to what might
be termed the challenges which were made, in the
Federal Court, to the decisions which were not dealt with by the Federal Court. In our
written submissions, Your Honours, we have
annexed under tab 3 our outline of submi.ssions to
the Federal Court. I can,_ I hope, quite quickly go,Your Honour, to those which have not yet been -
as to which no argument has yet been addressed.
GAUDRON J: And each one of these you say is a decision within LAMB V MOSS?
MR GYLES: Each one of them we say is either a decision under LAMB V MOSS, in itself, or it is conduct leading to
a decision within LAMB V MOSS. Your Honours, (a) which is the first decision was Mr Bond's fitness and
propriety - I have already put submissions about that,and I need not take any time on that. As to the second decision, that is the licensees' fitness and propriety, that which appears under paragraph 2 has not been the subject hitherto of argument. Your Honours, it is our submission that on page 187
of the appeal book the Tribunal applied a wrong test
of "fit and proper" which picked up a concept ofa priori general public moriality rather than suitability
in relation to the duties and responsibilities of a
licensee. It did that, Your Honours, by in our
submission applying a passage from WESTERN TELEVISION
and discussing it at the foot of 187 and over
to 188, in a fashion which,first of all, somewhat
overstated what Mr Justice Pincus said, but in any event, in my respectful submission Mr Justice Pincus
went too far if he took the view that public morality
rather than suitability to hold the particular
licence was to be the touchstone. I submit His Honour did not mean to say that. His Honour,
in WESTERN TELEVISION, was looking at an application
for a licence with competing applicants and, in those circumstances, we submit that the relevant body has a
larger task•
C2T49/1JL 177 28/2/90 Bond(2)
MR GYLES (continuing): Where revocation is concerned on the grounds of unfitness, that unfitness, in our
submission, must relate to the statutory task andwe submit that so much is decided by the authorities to which we there refer. If Your Honours would just
note that appeal book page 187 is page 8 of the
decision and, Your Honours, we go on to submit that
there is no absolute standard of fitness and proprietyunrelated to the nature of the licence and we further
submit that lack of fitness and propriety is not a
permanent condition. Your Honours, amongst the authorities we cite there are some - - -
BRENNAN J: What role does public morality play, none? MR GYLES: Your Honour, public morality would only come in if
| ' | one could say that the holding of that licence - I | |
| ||
| fit and proper to hold the licence? I would submit | ||
| that public morality, which has no relationship with | ||
| the holding of a licence, is not a relevant | ||
| consideration. Now that - in many cases it may be that the two are coextensive but, after all, it is a | ||
| broadcasting licence. |
BRENNAN J: I do not know what the content of public morality
is in the way in which it is being discussed, or its
relationship with the suitability to hold a licence.
MR GYLES: Yes. Your Honour, it is not really spelled out, but we submit that if the particular characteristic which
is said to be against public morality has no relationship
with a relevant licence, then it is an irrelevant
consideration.
BRENNAN J: You mean no relationship with financial capacity and technical equipment?
MR GYLES: No, because they are dealt with separately,
Your Honour. I am dealing with fitness and propriety. The words "fitness and propriety to hold a licence"
cover, as Your Honour knows, a whole range of licences from private inquiry agents' licences to being a member
of the bar, to being a pharmacist or having a licence
to manufacture poker machines, and so on. There is a whole myriad of occupations and professions which require, by statute, fitness and propriety.
(Continued on page 179)
C2T50/1/HS 178 28/2/90 Bond(2)
MR GYLES (continuing): The thrust of the cases to which we refer is that you must always judge suitability
in the wide sense, and I include fitness and
propriety and aspects of character, and so on, by
looking at the obligations which :are imposed upon
the licensee, and one would not have the same
approach to a member of the bar as one would to a
licence to manufacture poker machines. They are~
different tasks. Now, it may be that evidence of
dishonesty is equally applicable to both but if,
for example, somebody were an habitual protestor
against some social policy and were - some may saythat continually flouting the law of the land may
go to one's public morality, but we would say that
unless one can say that you would be less likely to
carry out - or it would render you unfit to carry
out your licence, you would not take account of it.
In other words, an obligation of fitness and
propriety holding a licence does not mean that all
aspects of one's life can be taken into account in
relation to a particular licensing activity.
MA.SON CJ: What is the particular passage in the Tribunal's
determination to which you object, which you see as
a reflection of this over-broad concept of public
morality?
MR GYLES: Yes, Your Honour. It starts at line 10 of 187: The relevance of these aspects is in our
view related directly to the purpose and
function of the regulatory system.
Then there is the passage from WESTERN TELEVISION where His Honour said:
Fitness and propriety are concepts which,
as applied to people, may have widely
varying scope. Here, as financial, technical
and management capabilities are separately mentioned, it appears probable that the
legislature had in mind, at least principally,
qualities of a potential licensee other than
those capabilities. That is, a person perfectly
capable of providing a proper service may yet notbe a fit and proper person to hold a licence for
reasons of-, for example, public morality.
MASON CJ: Yes, well I follow that, but when the Tribunal comes
to make its determination in relation to the conduct
of Mr Bond and the licensee, what is the passage there
that you object to that is reflecting this?
C2T51/l/FK 179 28/2/90 Bond(2)
MR GYLES: Your Honour, I think - I am sorry, I follow what Your Honour means - how is that applied in a
particular case?
MASON CJ: Yes. MR GYLES: I cannot, Your Honour, pick on a particular passage but we submit that what is said at the - - -
MASON CJ: What do you say, for example, about what appears on page 188 and the first half of page 189? Have
you got any objection to that?
MR GYLES: Your Honour, what we submit is, that what is said at the first part of page 188 - an,d perhaps, over
to page 189 but I am particularly concentrating on
the top of page 188 - is coloured by their view ofpublic morality and also the point which is linked
with it that this is a public resource which you must
have some worthiness to hold and we submit that iscarried over into the way in which they deal with it
at the top of page 188.
In other words, it is imposing a very high
standard. If you stand back from this case and see
what is - it is not that Mr Bond has been convicted of
anything. It is not that Mr Bond has been said to have breached the law in any respect. It is not that he has been said to have entered into a transaction which
is, in itself, improper. It is said, you have
settled a case with impure motives. Not wholly bad because it was a defamation case which had been
brought and was to be properly settled presumably,
but you have an impure thought.
Now, for a licensing authority to take that
view, in my respectful submission, may well have been
coloured by accepting a notion of public morality
and public worth to hold a licence. We submit that a licensing system is not to hand out goodies to the
people who hold licences. It is to ensure that people who hold licences carry out their statutory
obligations.
Your Honours, the next submission we make is that
the Tribunal applied the further wrong tests appropriate
to have the privileges and benefits which the use of
the licences undoubtedly brings. In addition,Your Honours, to the passage from Mr Justice Pincus, the Tribunal themselves, at page 189 lines 9 and 10,
bring in that notion and directly apply it.
C2T52/l/JH 180 28/2/90 Bond( 2) MR GYLES (continuing): Now, we respectfully submit that
worthiness to receive a benefit is not the test
and involves a concept that is entirely
different from fitness and propriety. There is
no scope for gradations of fitness and propriety in licence
revocations and suspension proceedings, whatever
the position may be in grant proceedings with
competing applications.
Your Honours, it would be to mislead the Tribunal in its task and misdirect itself if it
felt that it was able to withdraw a licence because
it did not think that the party was worthy of the
benefit which was bestowed upon it. That is to
ask the wrong question and, in my submission, is
reflected in the current decision.
Your Honours, the next complaint we make about the Tribunal's decision is that the Tribunal
misdirected itself as to the duty of candour in
relation to the notion of fitness and propriety.
Your Honours, what we submit on page 4 of oursubmissions, paragraph 4, is that a party to an
inquiry of a quasi adversary type, as was the
QTQ 1986 inquiry, and, indeed, the 1988 inquiry,
does not have a duty to volunteer all information
that could possibly be adverse to it.
Under another heading, we submit that there
was a proper response to the Tribunal's request
for information. In our submission, where there is a statutory duty to disclose, as in WOKO and
the other cases, and if you do not disclose that
information then you have breached the statute
and you bear the consequences. That is quite distinct
from a situation where in a setting like this the
regulatory body says, "I'm going to undertake an
inquiry into these events with possible adverse
consequences to you being the result of that inquiry."
In those circumstances, the regulated, the
subject of the inquiry is bound to answer properly a lawful request for information.
(Continued on page 182)
C2T53/l /ND 1 8 1 28/2/90 Bond(2)
MR GYLES (continuing): However, there is no duty of candour which requires such a person to volunteer each
and every bit of information which might be regardedby somebody as adverse to them. In the present
circumstances as Your Honours have seen already
the genesis of this inquiry lay in an allegation
in Parliament which the Tribunal picked up and
adopted as the substance of the inquiry. It was
pursued as an issue, in effect, between the ALP
on the one hand and the licensee on the other.The licensee did produce a body of information
oral and written, documentary and otherwise,
about the transaction but what the Tribunal has
done in the current decision is to impose upon
the licensee the obligation of producing everything
which might possibly be regarded by somebody as
adverse to it. We submit that is putting the duty too highly. Your Honours, in these submissions we have
referred to some unreported cases. Might I hand
to Your Honours a volume of those cases? Your Honours,
I will come back to this point under the later heading
if I might.
Paragraph 5 under this heading of the second decision
has been covered, Your Honours. I do not wish to pursue that further and I think, indeed, paragraphs
5 to 10 inclusive have been the subject of argument.
Paragraph 11 is a slightly different point which I
repeat or I make now that the Tribunal in its
decision did not distinguish between an act which
may be categorised as improper and the condition
of lack of fitness and propriety to hold the licence.
(Continued on page 183)
C2T54/1/LW 182 28/2/90 Bond (2)
MR GYLES (continuing): Now just as, in our submission, the Tribunal followed a process of reasoning which said,
"Unfitness in Bond equals unfitness in the company",
it also adopted a process of reasoning which said,
"One improper act in 1986 equals the condition of
unfitness". Now if that is the process that they
followed, then, in my submission, that was the
result of them having misdirected themselves as to the task and not properly focussing on the present
fitness of the company and to regard one act, by
then nearly three years ago as, in itself, indicating
that permanent state of unfitness, in our submission,
was the result of misdirecting itself. Then Your Honours see the third decision was the consideration
of conditions. Your Honou½ this submission has been in essence put during the course of argument here,
but may I directly put the submission that the inquiry
was into the proposed exercise of two substantive
powers, section 85 and section 88. The nature of
the inquiry was such that the Tribunal was required
to consider whether or not to impose conditions on
the licences under section 85 before or contemporaneouslywith making a finding under 88.
It is an error of law or alternatively unreasonable
for the Tribunal to choose to follow a path -
Section 88 -
which will result in likely, or as the Tribunal
considers to be open, certain revocation when
the alternative imposition of conditions was
(a) legally open
According to Mr Justice Pincus -
(b) would satisfy the statutory objective of fit and proper licencees; and
(c) would avoid the revocation of the licences
And Your Honours there are some words missing there.
If Your Honours would add,"this being contrary to
the public interest and the interest of the applicants
and third parties". So the point we make is that where you have a benign way of dealing with the problem
and a way which is not benign, it is unreasonable in
the administrative law sense to adopt that which is
designed to do most damage and not serve the public
interest any better.
Your Honours, the next point we put, and we repeat,
is that the Tribunal should have consulted with the
applicants on the undertakings proffered or on the
conditions which might be imposed.
C2T55/l/CM 183 28/2/90 Bond(2) The Tribunal refused to do this, despite, I think,
three requests and the authorities to which we there
refer show that it would be conventional and entirely
appropriate to do so, and that the Tribunal misdirected
itself in declining to go into that and leads, in
our submission, to the rather unsatisfactory state of
affairs where, both in the Federal Court and here,various members of the bench have pointed out ways in
which the undertakings might be improved. Well that
may be granted,Your Honours, but the Tribunal did
not undertake what, in our submission, was a necessary
step in order to ensure that justice was done in
a regulatory context.
Your Honours, I do not need to say anything more
about the fifth decision - the agreement to pay
Sir Joh Bjelke-Petersen. This is just another way
of putting the submissions that I have already put.
The same thing applies to the sixth, seventh and eighth
decisions. I do put, however, here what we put on the ninth decision. The Tribunal held that the response which had been given in 1986 by the Bond
interests was deliberately misleading. Now Your Honours, the QTQ inquiry reconrrnenced following the submission
by the Queensland branch of the Australian Labor Party.
This alleged in plain words the transaction was a
bribe and I took Your Honours to that this morning.
Volume three, divider 9 D is where the material is to be found:
The licenser was asked to provide a comprehensive
response dealing with all matters relevant to the -
11 settlement 11 is the wrong word. Is that the right word, is it? There is obviously some mistake. Well, anyway,
the sense is clear enough.
(Continued on page 185)
C2T55/2/CM 184 28/2/90 Bond(2)
MR GYLES (continuing): Your Honours, the applicants submitted in this inquiry - that is the 1989 inquiry - that the
licensee had approached the QTQ inquiry on the basisthat information supplied was limited to a response
to the matters raised by the QLP and subsequently by i
the Tribunal. The applicants put in a late
request to the Tribunal to identify matters
outstanding. Your Honours will also recall that this morning I took Your Honours not only to the letter
asking the licensee to provide comprehensive response
in answer to Mr Warburton's submission - and I think"submission" might be the word, rather than
"settlement" - but also to the notice which the
Tribunal issued stating the issues to be those
outstanding between the ALP and Bond.
May I remind Your Honours about that. That 1s 1n volume three, divider 9D, unfortunately not paginated,
but the document is to be found behind 10 October 1986
where the statement and directions of 9 October 1986:
The purpose of the hearing will be to
deal with matters left outstanding
between the Australian Labour Party
and the licensee.
Now, the Tribunal said at appeal book page 120 line 24:
If this submission were accepted -
that is, if the response had been limited to answering
the matters raised by Mr Warburton -
the licensee would be justified 1n
claiming that it had no duty to make a
full disclosure of other relevant
information.
So the Tribunal is saying, "Yes, if that is the way you
understood the request in 1986, then that is a very good answer to the claim that you misled us ". The Tribunal rejected that submission, however, on what
we submit are erroneous bases. Now, for volume one
divider 7 page 22, Your Honours can substitute
appeal book page 121, from lines 1 to 15:
It is our view, after exam1n1ng
transcript of the QTQ hearing on this
matter and the Report that followed the
hearing, that none of the parties wereacting under this assumption. In the
rather lengthy discussion which took
place at the beginning of the hearing
on 17 November 1986, several submissions
were made dealing with the relevance of
particular material. None of these
C2T56/l/HS 185 28/2/90 Bond(2) referred to that particular construction
of the letter of 29 August 1986.
Now, Your Honours, that material is to be found in volume three, 9A, divider H. Perhaps if I read on
for this next paragraph and then go to the underlying
documents:
If, in fact, particular witnesses
had been giving evidence in Brisbane under such a limitation, it would be
expected that in evidence before us they
would have adverted to such a restriction,
and none did in those particular terms.
We also note that no witness from the
Bond group at this Inquiry made mention
of any such conception regarding their
evidence, nor was such a proposition
led from any witness.
Now, if Your Honours go to volume three of the
hand-up brief under 9A and go to page 2316 - that 1s
paginated at the bottom - to page 2317, counsel
assisting - Mr Aspinall was giving evidence.
It is volume three, divider 9A.
(Continued on page 187)
C2T56/2/HS 186 28/2/90 Bond(2)
MR GYLES: It is a transcript, 9A - and it is a transcript - it is the last two pages under that divider - it is a transcript of evidence pages 2316 and 2317. Point 7 of the page or 8 of the page:
Mr Aspinall I show to you the documents
produced by the Bond Corporation, including
a letter from this Tribunal of
29 August 1986?---Yes.
I am suggesting to you that that was the
letter to which the various statemPnts produced
for the 1986 inquiry was a response?---Yes.I think you tell us you had the overall charge of collating the material for that inquiry, did you not?---Well, I was the executive at the television station
concerned; I worked, obviously, with our solicitors in then preparing the different
statements and the different persons by
way of question and answer and then as
personal interview in my case, but I was
certainly the officer of the station
responsible.
Yes, and you accept, do you,that the
material which was produced to the
inquiry was produced consequent uponthe request and in accordance with the
terms of this letter of 29 August?---Yes,
I believe that it complied with that request.
I think the key question is to be found in the second paragraph in these terms, the Tribunal therefore asks you that your
client provide a comprehensive response dealing
with all matters relevant to a settlement -
et cetera - That is correct?---ies. As per Mr Warburton's accusation in
Parliament?---Yes.
And it was an endeavour to satisfy that
request, in those terms, that the material
was created and presented?---That is
correct.
So that the witness, Your Honours, who was called by
counsel assisting, on this very point, that is the
executive who was responsible for collating the 1986 material did do so on the basis he was responding to
C2T57/l/JL 187 28/2/90 Bond(2) Mr Warburton's accusation in Parliament. That 1s
the very thing which the Tribunal, apparently,
completely overlooked when they said what they
did in the middle of page 121. Here we have the
very witness who was in charge saying that thematerial had been prepared on that footing.
And, Your Honours, it is our submission that the
material referred to earlier on page 121, which
is to be found under tab 9H - and contained there,
Your Honours, is a series of discussions,arguments about procedure - is completely general in character and, in our respectful submission,
there is nothing in that at all which bears upon
the question, that is, "On what footing did thelicensee produce the material in 1986"?
Now, in our submission it follows, as night
follows day, from the Tribunal's own judgment -
own decision - that if there had been that understanding as to the basis upon which the
material was produced, that would be a good
answer to the claim of misleading. When Your Honours go to look to both the contemporaneous evidence, that
is, the letter of 29 August and what preceded and
followed it, particularly look at the statement of
issues from the Tribunal which make it clear it was
the issues between the QLP and the licensee, and go to the evidence of Mr Aspinall to which I
have referred, it is abundantly plain that the
condition which the Tribunal agreed would exculpate,
did exist. So we submit that is an answer to that problem.
(Continued on page 189)
C2T57/2/JL 188 28/2/90 Bond(2)
MR GYLES (continuing): As Your Honours see, further, the licensee arranged for Mr Taylor - Mr Taylor was the
station's solicitor - to be present at the
1986 inquiry with his file and the file to be
available and the Tribunal ruled that that file
and that material was irrelevant. Now, that file contained all of the material which in the 1988/89
inquiry was seen to be important - sorry, I will
correct that - did not contain the 50/350 letters
but it contained all of the balance of the
procedural material and material which in 1988 and1989 was seen as significant. It was produced by the
licensee, held not material.
It may well have indirectly disclosed the
50/350 matter, I am informed, Your Honours, but in
any event it was there and ruled to be irrelevant
and that can be seen from volume three, divider 9Cand I do not think I need take Your Honours through it
in detail but it appears clearly there that
Mr Taylor's file was not regarded as relevant.
Your Honours, the only other decision to which
we pursue is, on page 11, the eleventh decision , the
AMP threa4 Your Honours, this raises a rather peculiar discrepancy in the Federal Court's decision
as it seems to us, with respect. If Your Honours go
to the Leigh Hall finding at page - the issue is
dealt with from pages 129 to 132 of the appeal book. It was, Your Honours, a very narrow question between Mr Bond, on the one hand, and Mr Hall, on the other
which is summarized by the Tribunal at line 24 of
page 130:
the only- matter for determination is
whether Mr Bond said he would use his
staff to collect information, or whether
he said he would use his TV staff to do
so, and would expose the AMP for showingthe results on television.
So, it was a very narrow factual question, not much difference between the two accounts. What they go on to say is: In determining this issue, we have taken into account not only the statement and
evidence of Mr Hall and the statement and evidence of Mr Bond, but also, apart from the demeanour of these two witnesses, the credit of Mr Bond on other issues, the
contemporaneous note taken by Mr Hall
during the conversation and the report -
et cetera,and they prefer the evidence of Mr Hall.
So, one of the matters that they expressly take into
account in weighing up that question was Mr Bond's
C2T58/l/JH 189 28/2/90 Bond(2)
credit on the Bjelke-Petersen matter. Now, we put to the Federal Court that just as the other
findings of lack of candour and so on fell,
if the main finding fell, so must the Leigh Hall
matter require at least re-examination by theTribunal excluding from its consideration the
credit of Mr Bond on other issues. I mean, again, they may or may not take the same view but with such
a finely balanced choice over such a small difference
in oral conversation where they said they took the
credit of Mr Bond on other issues into account, if
the findings against his credit go, so must this
finding, one would have thought and one would have
had some confidence because that is what the
Federal Court did in relation to the other findings.
(Continued on page 191)
C2T58/2/JH 190 28/2/90 Bond(2)
MR GYLES (continuing): However, when Their Honours came to deal with this matter they simply do not apparently appreciate that the decision was one which depended
upon his credit on other issues.
Appeal book 225, lines 3 to 5, is where the Federal Court deal with it, Your Honours - I am sorry,
that is the wrong reference; it is 254, I am sorry,
Your Honours, starting at line 26. The way in which
the Full Bench dealt with this does not refer to the
a~t that the finding depended upon, in part,. l'1r Bond's credit on
ocner issues, and they appear, with very great respect,
to have forgotten that that was the plank upon which
we relied before them, and, indeed, as Your Honours
see from our written submission, that is the point we
make, and so we respectfully submit that if we are
right about the principal matter, then this is one of
the dominators that must fall with it.
Now, Your Honours, they are our submissions.
The cross appeal is largely academic, Your Honours, because the cross appeal covers the matters I have been
dealing with since lunch, and on one view it is not
necessary to have a cross appeal because they are other
ways of supporting the bringing down the main decision,
but I do, Your Honours, seek special leave for thecross appeal. It is intimately bound up with the
proper conduct of the appeal itself. It has not added
significantly to the time of the appeal. If the
Court is not disposed to revoke leave and to hear a
full appeal, we submit a full appeal should be heard
with both sides having the same opportunity. If the
Court pleases.
MASON CJ: Yes, thank you, Hr Gyles. Yes, Mr Ellicott.
MR ELLICOTT: Your Honours, we accept and adopt the submissions that have been made by Mr Gyles on behalf of the
first to fifth respondents. First of all, as to the
revocation of special leave, we do submit that nothing
that fell from Mr Sheller raised the issues that were
before this Court on the application for special leave. No argument has been put to disagree, in our submission, with what the Full Court said in its
construction of section 88, between pages 239 and 245
of the appeal book, not a word, and really his case,
as he puts it, seems to be - because there is nothing
in the case about lifting bails, and the questionof natural justice; the only question that he seeks
to raise is that in some particular circumstances -
indeed in the peculiar circumstances he suggested in
this case, it is appropriate to look only at the particular matters and make a decision on those.
C2T59/l/FK 191/192 28/2/90 Bond(2) MR ELLICOTT (continuing): That was not a point of law that
was raised on the application for special leave
and it is basically when one analyses it, as he
puts it, a question of fact and we would submit
that the Court should not proceed to entertain
the appeal. It is not for me to say that - perhaps
I should not say it - that the Court needs to police
special leave. If people get here through the
barrier, well, they should have to measure up to
what happened at the barrier because other people
who do not get through the barrier may feel a sense
of injustice because they may feel that if they
only got through the barrier they would have beenable to point to some matters too that would have
inclined this Court had it been sitting on a full
appeal to upset it.
So we would submit that in this case
Your Honours should revoke special leave. Now, Your Honours are obviously not going to do it now
and therefore I will proceed to deal with the matters
on appeal.
Again, I adopt the submissions that Mr Gyles
so ably put. May I, at the beginning, have the temerity to hand up even more documentation. It
is a blue book and it is the only volume, I think, I will be handing up to Your Honours. It contains
our submissions before the Federal Court, some 50
or 60 pages, but it also contains the documents
relevant to that matter. And in a way - perhaps I will have them handed up first and then perhaps
draw something from the fact that we have to hand
these things up.
MASON CJ: Is this in support of the application for revocation
of special leave or your response to the appeal?
MR ELLICOTT: On the appeal, Your Honour, and the cross-
appeal. I do not invite Your Honours to go to
it immediately. I just want to make sure
Your Honours have it. The fact that Mr Gyles has had to hand up a lot is perhaps at least an indici1
that something has gone wrong. It did not go wrong in the Registry_of~this Court because the Registrar did not properly settle the appeal book, that is
not the point. The point is that something has gone wrong in the proceedings that we have had
to hand up to the Court basic material. And the reason we have had to do it is because the reasons
that were given in the decisions that are under
attack are defecti~e in themselves.
The question of fitness and propriety which
affects not only Mr Gyles's client but our clients
is a matter of gravity when it is going to be
determined by an adminstrative body. It is not
193 28/2/90
Bond(2)
an easy thing to escape the slur of having it
said that you are not a fit and proper persons,
for a start, but quite apart from that, it is the
basis upon which the licence can be revoked. And
I do not have to remind Your Honours that not only
is the shareholding of Mr Bond and other companies
involved but there are public shareholders, there
are creditors, there is the viewing public and
others - indeed, the public interest and the staff- who are involved as well.
I make that point because my clients - QTQ,
of course, was involved in the earlier inquiry
but four of them are radio stations around - three of them in Western Australia - I am not sure where
Northam is but I think it is in Western Australia - and Darwin. They, of course, had nothing to do
with this matter. They did not know anything about it and their directors, no doubt, would not have
had a clue as to what was going on in Brisbane
in 1985 and 1986. But, yet, it is said that their
licences are to be in jeopardy, that they are not
fit and proper licensees.
Not only is that said but the Tribunal has
indicated that it has similar consequences for
the major commer-cial channel in Australia, that
is to say, TCN Channel 9 and GTV 9 and the Nine
Network.
(Continued on page 195)
C2T60/2/ND 194 28/2/90 Bond(2) MR ELLICOTT (continuing): It has serious consequences.
I mention that, not because Your Honours would not
immediately have that in mind but simply to indicate
because we submit it is of immense importance that
a tribunal that is going to determine that sort of
matter and have that sort of affect in the area of
a great public licence such a TV licence or a
series of TV licences, would be expected, if it had
a requirement to give reasons, to give reasons.
And if it went into an inquiry that took some months
and large numbers of witnesses to handle the matter
as a judge would be expected to handle it because
the issue is so fundamental to individuals, not only
Mr Bond. One might say, "Well, he is the least of the people concerned". There are many other people and
because of that we submit that one would approach
this thinking, well, surely, we are going to see
some reasons.
Now I want to develop an argument which relies
very greatly on the background that Mr Gyles has given,
the references to the Act and the various provisions
but, first of all, leads to this proposition: that -
because the words in section 88 and section 85 are
"the licensee is no longer a fit and proper person"
then the Tribunal had no power at all to go into thequestion of those matters which occurred before
May 1987.
The way the Act works, it would appear, is that
on a grant the Tribunal has to be satisfied that
the proposed licensee is a fit and proper person to
hold a licence. On revocation - I will deal with renewal first. On renewal, then they have to consider- they have to be satisfied that the licensee is no longer
a fit and proper person and the same applies in
revocation proceedings and in proceedings under
section 85 relating to conditions.
In those circumstances, it is perhaps not
a strange submission that one should only be able to rely on supervening circumstances -and,indeed, that is what the Federal Court said - should only be able to rely on supervening circumstances when an inquiry was held for revocation. In other words, we would submit on the proper construction of the Act there is in it an indication
that once the Tribunal has its bite of the cherryat the point of grant, the point of renewal, and it comes to a question of revocation, the words no longer only apply to a date which is the last
finding of the Tribunal in relation to fitness.And it cannot go back except if the particular matter that arises entitles it inferentially to go back as a court looking at a particular
C2T61/l/LW 195 28/2/90 Bond(2) matter that happened in 1987 might say, "Yes,
in order to determine that we can look at what
happened in 1982". But as a circumstance which entitles the Tribunal to find that it is no
longer satisfied that the licensee is fit and
proper cannot go back.
I am reminded that all those who were on the Tribunal have had legal experience and it is not too
much to expect that they would be intended to give
the sort of attention to a matter like this because
of its significance that a judge would be expected to
give. And I submit that the Court should apply the same test. I do not think it is an exaggeration, with great respect, to say that if a judge considered this particular matter and delivered a judgment such
as those that were given in April and June 1989
this Court would be horrified because this Court
would be saying, as it has to be now, "What was said
about this? What was said about that? Why is this
not discussed? Why do you not move from from that
proposition to that proposition? How did they get to that proposition?". That has been the tenor
of our submissions through Mr Gyles in recent hours.
(Continued on page 197)
C2T61/2/LW 196 28/2/90 Bond(2)
MR ELLICOTI'(continuing): Now, Your Honours, in order to develop that submission can I just, first of all,
because I do not think it needs a great deal ofdelelopment because Your Honours have been taken
to the relevant provisions, remind Your Honours
that sections 25 and 25B requires a
full and fair inquiry -
That means what it says, a full and fair inquiry -
and that the Tribunal must make findings and
give reasons.
Now those words surely mean what they say. "Make findings and give reasons", but apart from that,
when an inquiry under section 17(l)(c) of the Act
is set upon in order to exercise some power under the
Act, some substantive power as is the case here, then the Tribunal can itself, under the regulations
which result from the provisions of section 134(ii)(c)
of the Act - under those regulations can lay down what
the issues are to be. So, not only do you have the
Tribunal. Not only do you have the requirement of a full inquiry. Not only does it have to make findings and give reasons, but it can nominate issues, and when
it does, it is as close to a matter before a court,
except for one thing that I wanted to come to in a
moment, as it could be, and one would expect those issues
to be referred to.
Now can I shortly take Your Honours to
HARDIMAN's case, because here the court did indicate
something about this Tribunal's responsibility and
that is reported in 144 CLR 13. Your Honours may
not have the reference and we have had it copied. Now this is another case which originated with complaints
from the Australian Labor Party and at page 15 it says:
The Australian Labor Party alleged: (a) that
before making the application Control and companies associated with it had acquired a prescribed interest
in three licences ..... (b)that other contraventions
had or might have been committed by Control and
companies associated with it; and (c) that
breaches of the criminal law had been committed
as a result of the transaction. Counsel for
the Party asserted that he was entitled to
explore those allegations and matters of
public interest by cross-examination of Control's
witnesses without calling primary evidence tosupport the allegations. The Tribunal rules:
(a) that there could be no contravention of
the Act unless the acquired shares had been
registered; (b) it would not inquire into the possibility of breaches of the Act and of the
C2T62/l/CM 197 28/2/90 Bond(2) criminal law and would not permit
cross-examination to show that offences
might have been connnitted unless it was
proposed to adduce legally admissible
evidence to support the allegations; and
(c) it would not itself sunnnon evidence from
participants in the transaction.
Now at page 26 at the top:
The Tribunal rules that, if the prosecutors
were unable to produce evidence to support
their allegations, they should withdraw that
part of their submission in which they alleged
contraventions of the Act and of the criminal
law and that they should apologise to the
applicant. Counsel for the prosecutorsdeclined to make the withdrawal or the apology.
He submitted that, although he had secondary
evidence consisting of press reports and
Stock Exchange statements relating to share
transactions, it would be preferable if the
Tribunal had the benefit of primary evidence
from the witnesses called by Control, from
the minute books of the companies and from the
documentary records regarding the share
transactions and the relevant agreements. The Tribunal then ruled that, in the absence of admissible evidence presented by the prosecutors, the allegations of contravention of the Act and breach of criminal law would not be inquired into.
(Continued on page 199)
C2T62/2/CM 198 Bond(2) MR ELLICOTT (continuing): The Court, at pages 32 and 34, deals with the powers of the Tribunal:
The second ground taken by the Tribunal
has very little to commend it. As we have seen, it was for the Tribunal under
the terms of reference which it
formulated for itself in accordance with
the statute to inquire into the issue of
contravention. Under section 16(1) .....
the functions of the Tribunal include thegranting of approvals and the giving of
directions ..... and the holding of
inquiries ..... and the publishing of
reports ..... Section 18(1) ..... :
"Before taking action under this Act .in
relation to any matter, the Tribunal may
if it thinks fit, and shall if this Act
so provides, hold an inquiry.
Although section 92F(4) does not expressly
refer back to the provisions of
Division 3 of Part II, it is evident that the inquiry for which section 92F(4) provides is an inquiry that is governed
by the provisions of Division 3 and that
it is an inquiry to be held in
accordance with the procedures which the
Division prescribes.
In this respect the provisions of section 25 are important -
that is set out:
It follows from the provisions of section 25(1)
that the Tribunal was under a statutory duty
to make a thorough investigation into all
matters relevant to the inquiry which it was
holding pursuant to section 92F(4). It was
therefore under a statutory duty to investigate the possibility that contraventions of the
Act had taken place on the part of
Control and those associated with it.
To discharge its duty the Tribunal must in an appropriate case investigate for itself the possibility of contravention, even in
circumstances where there is no party before
the Tribunal willing, anxious or able to
pursue the issue. It will be noted that a party is given no right to compel the
attendance of witnesses. It. is for the
Tribunal to decide who should be summoned
before the Tribunal to give evidence and
produce documents ..... The appearance of a
C2T63/l/JH 199 28/2/90 Bond(2) party in an inquiry before the Tribunal
alleging that there are, or may be,
contraventions of the Act cannot qualify
or modify the Tribunal's statutoryduty to inquire into relevant matters.
By ruling that it would not inquire into
contravention because the prosecutors
were not calling legally admissible
evidence, the Tribunal departed from its
statutory responsibility.
The suggestion that it was for the
prosecutors to give specific particulars of the contraventions alleged, that they
should call evidence and that they could
not elicit evidence by cross-examination of Control's witnesses misconceives both the nature of the inquiry and the
functions and duty of the Tribunal in
relation to the inquiry. The prosecutors made it very clear that they had no
knowledge of specific contraventions andthat they had no specific case to present.
But they made it equally clear that the
circumstances detailed in the Tribunal's
own information paper and in the oral
evidence raised the possibility that
contraventions had taken place, that it
was the duty of the Tribunal to inquire intothem and that the prosecutors wished to
assist in that process by cross-examining
Control's witnesses.
The proceedings were not proceedings in a
criminal court which might result in
conviction and penalty where it would have
been appropriate for the party alleging the
offence to specify it and give appropriate
particulars of it. The inquiry was an administrative inquiry in which the Tribunal
had a statutory responsibility to inquire
into the issue. It was bound to discharge its responsibility, notwithstanding that the
same issue could arise in proceedings for
offences against the Act. The possibility that proceedings might subsequently be
commenced for offences was not a reason for
the Tribunal refusing to allow questions
to be put to witnesses in cross-examination
which were relevant ..... There is no rule of
law that a witness cannot be asked a
question that tends to establish that an
offence has been committed by a company with
which he is connected, or for that matter by
himself. In an appropriate situation thewitness should be advised of his privilege
against self-incrimination and he m:1.y exercise that
privilege. But in this case the cross-examination of
the witnesses did not travel so far.
C2T63/2/JH 200 28/2/90 Bond(2)
MR ELLICOTT (continuing): Now, Your Honours, we would submit that that decision really - if I may just indicate
how, to some degree, we propose to use it; first of
all we propose to use it to, as it were, mark out thefield of inquiry and the responsibilities of the
players on the field, and there is no doubt that the
Tribunal, according to both the statute and this Court's
interpretation of it, is that the Tribunal has the
responsibility to inquire. Now, if that is so and if
the inquiry is to be full and fair and, indeed, in
order to be fair sometimes it has to be full, if thatis so, then it supports our primary submission, that
is to this effect, that when the Tribunal inquired
in 1986 and 1987 that was the time when the Tribunal
had the responsibility to inquire into this matter
and to do it fully and to listen to the parties, hear
those who made the complaint, call the witnessesbefore it, call for the file, if it was there and
available, and do all the other things that had to
be done in order to have a full inquiry.
Now, that, we would submit, was the duty of the Tribunal and if they were to find some error or some fault in Mr Bond, or Mr Aspinall, or Mr Jones, or
Mr Beckworth, or anybody else, that was the time
because that was when they had the responsibility to
decide this particular issue relating to thedefamation settlement. Now, if that is so, and
fairness, I would suggest, might dictate that it should
be so in the context of HARDIMAN's case and the Act,
and all the immense consequences of going back over
and over again to these issues in a theoretical
sense; if that is so, then it would support, in our
submission, the construction that we would seek to
put on the Act.Now, in the decision of the Federal Court in those pages, and I think it is at page 241 - it begins
at the foot of page 240 of the appeal book at line 30:
Renewal of a commercial licence may be refused if the Tribunal, again to put it shortly, is satisfied that the licensee is no longer a fit and proper person to hold the licence; this proceeds on the footing that the licensee satisfied a criterion of fitness when the licence was granted and at any earlier renewal; in our view, sub-s. 88(2) is to be read
in the same way, as looking to supervening
circumstances which change the status quoaffecting the licensee.
Now, those are, we submit, not only important words to our submission, but they are abundantly correct and, really, what the Federal Court was saying
there is what we are here submitting. Now, the
C2T64/l/HS 201 28/2/90 Bond(2) implication of that, if there is merit in that
submission, as we submit there is, is this; that
all the Tribunal could properly do was to look at of QTQ and when these matters of the defamation
circumstances which occurred after May 1987 when thesettlement were considered, and the only two matters
would be the Jana Wendt interview and the question
concerning the AMP, the use of staff or use of TV
staff.
They would be the only two matters, in our
submission, which the Tribunal could properly look
at and, obviously, they have gone far beyond that.
They have gone into fields which are not prompted by
the Jana Wendt interview because, when one looks at it,
the Jana Wendt interview was about the meaning to beattributed to what Mr Bond said and the most that could
be concluded, against the background of all that
Your Honours are aware of already, the most that could be concluded would be that Mr Bond, in a TV interview,
had made an extravagant statement to the effect that
he had been, in effect, blackmailed bySir Joh Bjelke-Petersen.
(Continued on page 203)
C2T64/2/HS 202 28/2/90 Bond(2) MR ELLICOTT (continuing): That might cause the Tribunal to be
concerned, but far different to all the issues that
this Tribunal has looked at and found adversely to
Mr Bond. The Tribunal, we would submit, in the inquiry that they initiated themselves, and where
they lay down the issues, could only look at those
too matters and, to go beyond it, we would submit,
was to commit a breach of the Act; to fail in their
statutory duty.
Now, the submission, forsome extent requires
a detailed look - but I hurry to emphasize, not too
detailed a look - at the finding in May 1987, and in
looking at it, not only to show that there was a
serious inquiry on this issue, but to relate it to
another submission which I want to make, that ifthis Tribunal was correct in looking back to
1985 and 1986, that the very same things that they
laid at the door of Mr Bond and were thinking of
laying at the door of my client, QTQ at that time,
were in the mind of the Tribunal then. That is to
say, the fact that there was no real belief that
$400,000 was enough, that Sir Joh Bjelke-Petersen
took the view that he was entitled to $400,000;
that Mr Bond overrode the management: all those
factors which have led the Tribunal here to come
up with the view that the transaction was improper,
were present in 1987 in that inquiry.
Now, could I take Your Honours to our submissions under the annexure D.
If Your Honours go to page 14,
at paragraph 2.28 and, remembering that this is not
an inquiry for revocation, this is a renewal inquiry,
but it still has the same issue in it, is theTribunal satisfied that the licensee is no longer a
fit and proper person? And, it was in the course
of the renewal application process that these
allegations were made by a Mr Warburton in Queensland.
Now it says at 2.28:
It should be noted that, in its direction of 13 November, the Tribunal
specified the following matters on
which it sought further submissions at
the resumed hearings:
1. the fitness and propriety and the
management capacility of the licensee;
2. the settlement of the defamation action
brought by the Premier of Queensland against QTL.
The other matters do not have any relevance.
C2T65/l/FK 203 28/2/90 Bond(2) In its directions -
at 2.29 -
of 22 October, the Tribunal had also said - and then over the page, after (c):
At the resumed hearing, the ALP submitted
that the Tribunal should not renew the licence
on the grounds, inter alia, that the licensee
had demonstrated in its handling of the
defamation settlement that it was not a fit
and proper person, and that it lacked the requisite
management capability.
And:
2.31 Mr Bond said that the matter had first
been raised with him by the Premier personally
during a meeting on 17 October 1985, when the
Premier had told him that he was suing for
$1 million, and that he had the opinion of
Queen's Counsel to support his claim.
And that was Mr McHugh, as he then was. Now, at 2.32: It was common ground throughout the hearings
that the commercial interests of BCHL were, at
the least, an important feature of the thinkingand subsequent actions of Mr Bond and his other
close associates, as the following statements
illustrate.
It is the same point that is raised by the Tribunal
in the instant case before this Court.
(Continued on page 205)
C2T65/2/FK 204 28/2/90 Bond(2)
MR ELLICOTT (continuing): I will not read all this because it will take time but, Your Honours, there are two passages then set out that deal with that.
Then 2.33:
Nevertheless, consideration of the effect
on QTQ of contesting this defamation
action was also a factor:
If either successful or unsuccessful the
Board has to consider the likely effect of
an attack on the credibility of the Premier
for the Bond Group of companies as a whole
and for QTQ-9 in particular as it related to:
the public in both Queensland and
nationally; the government and Premier
of Queensland; shareholders of BCHL; and the long term standing of QTQ in the community
(the courtroom attacks on the Premier may
result in QTQ being seen to be politicallybiased.
And then in answer to the Tribunal there is a comment
by Mr Aspinall. Over the page at 2.36: Mr Bond said that he felt that he should
personally continue to negotiate with the Premier, with the aim of reducing the sum
claimed:
In view of the fact that the Premier'had
raised the matter of his defamation action
with me personally and obviously felt very
strongly about it, I formed the view that itwould be inappropriate for me to delegate
responsibility for the matter. I believed
that I should deal with it personally. In other words, the personal involvement of the
controller as my friend,Mr Sheller,calls him
and, in a sense overriding management and doing so not for the purposes of QTQ but for the
purposes of the Bond group as a whole and in order
to protect the commercial interests of the Bond
group, as a whole, in Queensland and with a view -
as these passages will indicate, with a view that
the amount claimed by Sir Bjelke Petersen was not
thought to be justifiable.Now those particular matters - and I ask Your
Honours to look at the whole of it, but I will
not stop to read it but from paragraphs 2. 50 there
is a reference to a number of matters which ring a
bell, as it were, because they are the same matters
that were exercising the mind of the Tribunal in the
current case. 2.50:
C2T66/l/JL 205 28/2/90 Bond(2) Extensive evidence was heard about the settlement of the defamation action brought
by the Premier. As mentioned elsewhere in this report, the Tribunal is not concerned
with defamation law as such or with any
impropriety or illegality in government arising
out of the defamation settlement.
At the foot of 2.51, the last sentence:
Mr Bond's evidence shows that he made a
connnercial judgment about the need to remove
an alleged liability which was seen as an
obstacle to good relations between BCHL and
the Queensland Government posed by the
intransigent attitude which the Premier
displayed towards his defamation claim.
So, we have the element that the Premier is stubbornly
saying, "$400,000 is what I want and I have QC's
opinion to that effect." But we also have the making
of a connnercial judgment about that whether to fight
or not to fight; whether to have some sort ofpublic reaction because you are attacking the
Premier; and whether,in the context of those times,
attacking a Premier who was at the height of his
powers. Those are matters that, obviously, areoperating on the company mind. 2.52:
The most relevant features of the settlement
are, first, that it was made primarily with the
interests of the Bond Group for good relations
with the Premier in mind. It was not
necessarily made for the benefit of QTQ. Second, the settlement was unusual. An opinion from a Sydney Queen's Counsel was tendered to show that
the amount of the settlement was not excessive.
However, the balance of the evidence shows that even allowing a considerable margin for individual judement, the amount of the settlement was unusual and probably unprecedented, and higher than
would have been reached but for the perceivedneeds of the diverse Bond interests in Queensland and the resulting need for good relations with the Premier.
C2T66/2/JL 206 28/2/90 Bond(2)
MR ELLICOTT (continuing): Now, that P.assage is a clear indication of what is allegea,clear basis for finding an
impropriety but of the same order and character
as is suggested by the Tribunal now and that very
matter is in 2.52:
If such a settlement had been negotiated
or been paid by QTQ, the necessary
independence of the station would have been
compromised. A television licence is a scarce outlet for news -
and they go on to talk about very important matters
relevant to why it is that perhaps a television
station should not get involved in defamation
settlements with governments which might look to be
excessive. Point 2.54:These are reasons why any action which may have led QTQ to compromise its impartiality
towards a Premier or government required
close examination both at the Fairlanes
inquiry and at this renewal.
1Close examination' J full inquiry so that the Tribunal
is conscious all the time of its responsibilities.
You could not blame this Tribunal, the one in 1987,
for not being conscious of the issues which it had
to face and the facing up to them. Now, payment of unusually high damages to a State Premier for a
defamation action arising out of a progranme critical
of his use of public office clearly has, in principle,the potential to compromise the impartiality of the
licensees.
There are several obvious ways in which such an
effect can occur. For example, journalists employed
at the station can be led to believe, rightly or not,
that their employer has a favourable predisposition
towards the government. Now, these very thoughts and ideas are contained in the judgment in the reasons
under attack. Point 2.56: To the extent that the interests of QTQ
were contemplated at all in the settlement
of the defamation action, they were
contemplated primarily because QTQ was part of
a diversified group of companies. Whilst it
was necessary for the board of QTQ, the
defendant in the defamation action, to consent
to the settlement before it could be finalized,
the negotiations about the settlement were
conducted with Mr Bond and without the knowledgeof most of the QTQ board, including the
Queensland directors at the time. :t-1r Bond and BOIL executives treated the defamation action as a liability
arising from the conduct of the previous manage:m:nt of thestation which should be cleared from the books in view
of the new management approach adopted since the takeover.
C2T67/l/JH 207 28/2/90 Bond( 2) The $400,000 was paid not. by the licensee of QTQ, but by Bond Corporation Holdings Ltd. ·so it
can be said that the television station was
to some extent isolated from thesettlement.
Evidence taken at the Fairlanes inquiry
indicated that BCHL and individual directors
would not involve themselves in the day to
day management of the station. There is no
doubt that Mr Bond did take over what had
previously been a managerial role, by settling
the defamation matter. The usual way -
and they go on to define that. Point 2.59:
The executive action of Mr Bond was contrary to the relationship between the board, the
management and the local directors which was
explained at that earlier inquiry. Given this
concern) it is necessary to consider
departure from the intention announced at the of
potential conflicts of interest arising from
the role of QTL as a member of the Bond Group.
Such consideration was less necessary at theFairlanes inquiry, where the Group had said
that QTQ management would be independent. _
QTL is only a relatively small interest in the
Bond Group and there are many ways the
station could be used to further the interests
of the Bond Group which are not necessarily in the best interests of the public and yet not possible for the Tribunal to monitor or regulate.
Then, they go on to speak of that and then they say in
the last three lines:
hence the need for a structure of management
and decision-making which does not easily
lend itself to pressures for such an approach. (Continued on page 209)
C2T67/2/JH 208 28/2/90 Bond(2)
MR ELLICOTT (continuing): So they are considering there Mr Bond interfering in management, going over the board, going over the chief executive and settling the defamation proceeding and they are considering
what can be done, as it were, to put some circuit
breaker, if you like, between Mr Bond and QTQ, the
television station. I mention this now because of
its relevance, obviously, to the undertakings
question. Here the Tribunal had no problem whatsoever in seeing certain conditions being imposed or certain
undertakings being given which, in their opinion,
overcame the problem. But it was the very same problem that the Tribunal faced in this case.
That is to say, having a controller, having a defamation settlement with a payment which was in
excess of that which could be justified, a payment
made because it was in the commercial interests of
the group and a payment which ultimately was made
by another company and not by the licensee and
the licensee itself, of course, being a party to the
settlement.
Now they go on to point out that the licensee
had still not establish the board structure outlined
above so they have the problem that the promise had
not been fulfilled. Then there is a reference to a
letter and in 2.62:
The Tribunal accepts that the Bond Media Limited
proposal goes some way towards addressing the
problem outlined above, in that it re-establishes,
through the proposed "outside directors", anindependent Queensland presence on the board.
To that extent, the Tribunal is satisfied that
a condition on the licence specifying the
constitution of the board will not be required.
But they contemplated it as a method of overcoming
the problem, the problem which they saw of a
television company which was a very small part of the
Bond group having an imposition on it which might cut across the public interest in how that television
station should be conducted. To that extent the Tribunal is satisfied. Nevertheless, it is important to ensure that the
Queensland directors are not merely nominal
appointees, but have a strong, independent voice
in deliberations concerning local issues. The Tribunal therefore proposes to place a condition on the licence to reflect the Tribunal's wish
that:
and then there are a number of things which include:
C2T68/1/LW 209 28/2/90 Bond(2) (b) the broadcasting interests of the licensee
company, Queensland Television Ltd, be upheld
by the board independent of the interests of the
Bond Group as a whole or other non-media companies
within it
Obviously those undertakings or conditions if they are imposed, they can be policed by the Tribunal
and once laid down then it becomes the sort of
broadcast related conduct that the Tribunal can then
say, "Well, look, you came to us and you told us you
would do this. You said you would have an independent board. Now we have provided a condition that the board operate independently. You have not done it and now we propose to exact the punishment and you deserve
what you get". That is the sort of approach which they
took on that occasion. Now we know that Mr Bond
had retired from the board and we know that the facts
relative to what happened to the board of QTQ,
according to the submissions that we put in advance,
were completely ignored by the Tribunal. They just
did not take them into account.
(Continued on page 211)
C2T68/2/LW 210 28/2/90 Bond (2)
MR ELLICOTT (continuing): And what an odd Tribunal it is that makes a decision in 1987 - it is the same
Tribunal - they try and escape it by saying they
can sit in separate divisions, but it will be
the same High Court, whoever of Your Honours sits - it is the High Court - and it is the Tribunal, the
same Tribunal - and they say they are not bound by
its decision. What do they mean by that? They say
that in their reasons in 7 April decision. Of course they are bound by their decision. They made a decision in 1987. It is binding and it had the effect
of renewing the licence and in so deciding they
decided that they were not satisfied that the
licensee was no longer a fit and proper person. So this decision in May 1987, we say, is a fulcrum point in the whole matter, and we_would submit the
Tribunal cannot go beyond it except to point to
other matters. But if I be wrong in that, and I put that as a strong submission, if we be wrong in it
and I submit it is not easy to see the answer, if there
is one and if I could see it I would debate it with
Your Honours, but if there is an answer so be it.
GAUDRON J: Well may there not be an answer, Mr Ellicott, in
so far as the critical consideration is not what the
licensee may have done in the meantime or whether
he did anything in the meantime, but the satisfaction
of the Tribunal - the consideration is that theTribunal be satisfied of fitness et cetera.
MR ELLICOTT: Yes, the Tribunal has to be satisfied -
GAUDRON J: And may it not be that the Jana Wendt episode was such as to do away with the satisfaction that
previously existed?
MR ELLICOTT: Well, Your Honour, the difficulty with that is
that under the renewal application they had to be
satisfied that the licensee was no longer a fit and
proper person. Well, they were not so satisfied and
therefore the grant having been given, and if you
go right back to the grant it may have been in 1962, for all I know, but whenever it was given, initially
there was a decision that the applicant that was
chosen was a fit and proper person to hold a licence
and that position remained right through and if therewas some - I will take Your Honours to the sections
which deal with share transfers to show how the fitness
and propriety of a particular shareholder may become
relevant, but subject to that sort of situation, then
all that the renewal application does is to leave that
assumption of fitness and propriety there. It is asort of statutory presumption, if you like, going
through. So that as at May 1987 it had to be assumed, as a result of their decision, that the licensee was
a fit and proper person to hold a licence, but when - - -
C2T69/l/CM 211 Bond(2)
GAUDRON J: What I am suggesting is that all that is assumed is that the Tribunal was satisfied that
it was a fit and proper person, or that the
licensee was a fit and proper person.
MR ELLICOTT: Yes, but in 1988 when this matter arose, there
having been the previous renewal and that licence then being on foot, the Tribunal, if it wanted to
move in relation to that matter had to be satisfied
that the licensee was no longer a fit and proper
person. Now that is not a question of going back to the previous satisfaction. That is a question of
whether the licensee is any longer a fit and proper
person, he having been presumed to be a fit and
proper person as at May 1987. Now that, we say,
cannot be overcome by any analysis of the words in
the section. The words are "is no longer". It points to the present time and it -· - -
BRENNAN J: Your proposition is that the earlier decision
cannot be reopened by the Tribunal? Is that correct?
(Continued on page 213)
C2T69/2/CM 212 MR ELLICOTT, QC 28/2/90 Bond(2)
MR ELLICOTT: That is the effect of it because - let us assume that we succeeded in this and the Tribunal says,
"All right, we will renew the licence" - Your Honours
can assume there is a renewal application on and
that question of renewal is on foot - "We will renew
the licence or we will not take this inquiry any
further", and the licence is renewed and then next
year, or the year after, some other question arises
as to what happened in relation to the defamation
settlement in 1985 and 1986 which makes the Tribunal feel, "If we'd only known that, we may not have come
to that decision"; that, we would submit, cannot be the situation because the Act is structured on there being finality from licence grant to renewal; if there
is a problem in the meantime suspension, revocation,
"Let us have a look at it, all right, we will not suspend,
we will not revoke", they renew again. That is
designed and has to be seen to be designed, we would
submit on the part of Parliament, because of the stakesinvolved, to ensure stability in the television
industry because is people's fitness and propriety
is open season, going right back, then you obviously
leave a sense of instability there.
This is an instance of it and we would submit
that if there was - there was, obviously, a very full
inquiry - but whether it was a full inquiry, or not,
does not matter. The point is there was an inquiry which ended up in a decision that they were not
satisfied and, therefore, that is the end of that issue
relating to the defamation settlement. The only way it can come up would be - - -
BRENNAN J: That means that you cannot reopen a decision as you might reopen a judgment?
MR ELLICOTT: No. The only way of reopening a decision is the way we are ~eeking to reopen it, because Parliament
has committed to the Tribunal the function of making
a decision or being satisfied about a particular
matter, a very serious matter and, in the statutory
would never have intended to be up for grabs every context, one that, we would submit, the Parliament three years, for instance, with a view to having another look at it. It is an intolerable burden enough that a person's fitness should be judged by an administrative tribunal without any appeal, but that is a btirden they have to accept because they want to
take on a Tv· licence and that is fair enough.In the public interest they should have to bear
that, but the idea of having to be constantly subject
to attack on the same matter, we would submit, itwould be contrary to fairness, it would be contrary to
what one would expect to be the intention of
Parliament, that the Tribunal which is given these
immense powers of inquiry is intended to look into
it and come to a decision with a sense of finality.
C2T70/l/HS 213 28/2/90 Bond(2) So that both those matters, we would submit, should
lead to the conclusion that those words do mean what
they say, that you must look at the person then and
say, "What is it that has rendered you no longer afit and proper person? What supervening circumstances
have occurred since this matter was last looked at?
What have you done? Have you failed to honour a condition that we imposed on you then? You gave an
undertaking and you did not fulfil it".
Those matters can properly be looked at, or,
"You told Jana Wendt that Bjelke-Petersen had, in
effect blackmailed you. Is that what you really say
because that seems to be inconsistent with what you
said in 1986?" Answer: "That's not what I said".
Finding: "We think that is what you meant". "All right, what is the conclusion? The conclusion is you have
made an outrageous statement about a premier of a
State, and that is not the sort of thing you should say."
(Continued on page 215)
C2T70/2/HS 214 28/2/90 Bond(2) MR ELLICOTT (continuing): What is the solution to that
problem? Probably a wrap on the knuckles but
certainly not - going to revoke or suspend the licence for that and it is certainly not the issue. Indeed, in their decision they do not
even rely on the Jana Wendt issue and can I
remind Your Honours, because Your Honours have
been taken to so many of these submissions but
yet another - I do not think that Mr Gyles referred
to it - at page 19 of our submissions - - -
GAUDRON J: Before we go to that,Mr Ellicott,could I ask you
precisely what decision and what ground of review,
in your application for review to the Federal Court,
covers that argument you have just put?
MR ELLICOTT: You mean the - - - GAUDRON J: Yes, you see it seems to me it has got to come
within; it has got to refer to a decision which
the Federal Court was asked to review and there
has got to be a ground either under section 5(1)
or section 6 (l)of the AD(JR) Act - - -
MR ELLICOTT: Yes,it is an error of law.
GAUDRON J: Yes,and what decision -
MR ELLICOTT: And the Federal Court said that it only applied
to supervening circumstances, and that is precisely
the argument that I am putting to this Court and,
of course, this Court, we would submit with very greatrespect, cannot escape it because it has to make a decision about it.
GAUDRON J: But what is the decision that is vitiated, the finding that the licensees were - - -?
MR ELLICOTT: All those decisions: the decision that Bond was not a fit and proper person and the decision
that the licensees - but one that we are particularly concerned in, the decision that the licensees were
not fit and proper persons because it was based on irrelevant
matters, that is to say - that is how we put it,
Your Honour.
GAUDRON J: Yes, I understand that,thank you.
MR ELLICOTT:
I do not know that this precise argument was put in the Federal Court..
I am not suggesting that,
I do not think it was, to be frank, but I cannot
withdraw from it because, with very great respect, I
submit this Court must entertain it as the process of
asking what are the words, "is no longer", what are
they saying ? There is a conundrum about this case
C2T71/l/JL 215 28/2/90 Bond( 2) and it is a conundrum because having had a full
inquiry and HARDIMAN'.~ case applying to their
powers, why would one expect that there is going
to be another one which is equally full and also
looking at the same subject-matter? It is contrary
to ideas of people being in double jeopardy, for
instance, basic ideas of justice that it is contrary to and therefore one is going to look for a solution
and we would submit the solution is in those
words. If it is not in those words then there is a duty for tribunals and administrative bodies to act.
consistently and we will seek to take Your Honours to
that particular requirement that tribunals do, as amatter of fairness, act consistently and that they
cannot decide one thing one year and a different thing
two years later on the same particular question.
BRENNAN J: Mr Ellicott,could I take you back to your answer to Justice Gaudron a moment ago when you referred to irrelevant considerations. That arises under
sec,tion 5(l)(e) of the Act, that is"making of the decision
was an improper exercise of power."
MR ELLICOTT: Yes. BRENNAN J: In other words, no question as to the possession of
the power, it relates only to the manner of its
exercise.
(Continued on page 217)
C2T71/2/JL 216 28/2/90 Bond(2) MR ELLICOTT: Yes. It is a proper exercise of a power. They had no power to take into account the
circumstances surrounding the defamation settlement;
just putting it very broadly.
BRENNAN J: Well, I understand that.
MR ELLICOTT: Except inferentially, as they mieht-; on one very small matter relating to the Jana Wendt interview.
BREtIT~AN J: They have power to make the relevant finding which
was the subject of the so-called decision, that is
the licensee was not a fit and proper person.
MR ELLICOTT:
They had power to make a decision that the licensee was not a fit and proper person. If they
were exercising revocation, section 88, or
conditions, section 85, yes, they had that power,if they were satisfied that the licensee was no longer a fit and proper person, and that was their power. BRENNAN J: So we are concerned only with the manner of its exercise, and your proposition is that it could not
be properly exercised by taking into account events
which had occurred prior to the last decision of the
Tribunal.
MR ELLICOTT: Yes, prior to May 1987, that is the argument. MASON CJ: At the moment I do not quite understand what happened in the Federal Court in relation to this
particular question because it seems from the passage
that you quoted on, I think from page 240 of the
appeal book, that the Federal Court took the same
view of the Tribunal's power that you contend for.
Yet, as I read the judgment of the Federal Court,
that does not seem to have flowed through in relation
defamation proceedings. What is the explanation of that?
to any conclusion about the findings that the
(Continued on page 218)
C2T72/l/FK 217 28/2/90 Bond(2)
MR ELLICOTT: 'I'he explanation is that they saw other reasons for not accepting those or for setting
aside those particular decisions. The other reason being that they were saying in effect, "Well,this
Tribunal has operated on a particular formula. Bond is unfit, therefore licensee unfit and we do not have to take into account anything else", for instance,
the matters that Mr Gyles has referred Your Honours
to. But that is the basis upon which the Federal Court seems to have approached that matter and on the other
matter of Sir Joh there their decision is rather based
on the view that you could not make those findings
of impropriety unless you first looked at what
Sir Joh did and said and probably, as a result of
so finding, what his motives and purposes were.
But that is how it came up, that is how the Federal Court dealt with it, but in the course of
their judgment they put their finger on, in our
submission, a very significant matter that you canonly rely on supervening circumstances and something
of that fell from Mr Justice Toohey yesterday, the
same idea. I thought he was going to put that argument to my friend but it did not happen.
It came up in a different context but His Honour's mind was directed to the same thought, but it has
to be, in our respectful submission, correct that
every indicia of justice, quite apart from the words,
would indicate that you cannot just go on retrying
the same events if you cannot lay it at the door of
the parties. And you cannot because HARDIMAN's case said the Tribunal with all these iIIllilense powers has the responsibility of making a full inquiry
and coming up with a decision. They came up with a decision and they said, "On the basis of those
matters, of what happened in relation to that
settlement, we are not satisfied that Mr.Bond is nolonger_a_fit.and proper person".
TOOHEY J: Mr Ellicott, is what the Federal Court did in
remitting the matter in the sort of unrestricted way to the Tribunal consistent with the submission that you are now putting and which you suggest the Full Court adopted?
(Continued on page 219)
C2T73/l/LW 218 28/2/90 Bond(2)
MR ELLICOTT: Your Honour, I must cor).cede that.. I t may be
because they did not use it as a ground upon which
they set aside these decisions, they did not turntheir mind to the effect of what appears in that
part of their judgment. But that does not overcome the problem that if what they said there is right, then their direction should have been much more
aggressive towards the Tribunal than it was. No doubt, had the matter gone back to the Tribunal and not come here, the parties,reading the judgment, would have said, "Well there is another matter you will now have to consider. Look what the Full Court judgment says, supervening circumstances, you cannot look at this at all". If they said, "Yes, we can" there would have been another application to the
Federal Court, but - - -
TOOHEY J: Consistent with that approach, ought the Federal Court
have remitted the matter at all, except perhaps at
the direction that- the inquiry terminate forthwith?
MR ELLICOTT: It obviously thought it should terminate forthwith,
but it did not give a direction and the proper
direction would have been, in our submission, that the inquiry, so far as it related to events prior
to May 1987, as direct issues, should terminate.
TOOHEY J: But the reason that I understand whythe Full Court
thought that it was perhaps opportune to terminate
the inquiry was simply in terms of the time and
expenditure that had already been incurred.
MR ELLICOTT: Yes, that is right. Yes, I cannot stand here
and say to Your Honours that the Federal Court did
precisely what it should have done as a result of
the effect of this submission if it was found to be
correct by this Court. In other words, this Court
would have to say that and,to some extent, if this
argument is right, that is a reason why leave to
appeal should be granted, but that is another matter.
(Continued on page 220)
C2T74/l/CM 219 Bond(2) TOOHEY J: Just to clarify my own mind. If the submission
is imde ,~ood and accepted, it is an inevitable
consequence that the matter ought not to go back
to the Tribunal at all, except for some
administrative purpose in bringing it to an end.
MR ELLICOTT: The practical effect of this submission being correct would be that that inquiry should come to
an end because it was wholly and completely
misconceived, because, really, the Jana Wendt matter
was only used as a trigger to get back into 1985
and 1986, and it was all in the context ofcorruption and Fitzgerald Inquiries and all the rest of it and did not end up as corruption, it
ended up as something else, and that is the other
part of our submissions that I will come to shortly,
but so far as that particular matter was concernedit is our submission that the proper course would
be to terminate the inquiry for all practicalpurposes, even though theoretically you could look
at the question of the Jana Wendt interview, on the
question of; did you say it, or did you not? Andgive somebody a rap over the knuckles, but that would
be de minimis, and not a reason for continuing the subsequent inquiry which costs so much and cause so much heartache to so many people here and elsewhere
in the world.
Now, at page 19 of our submissions, we refer
to this written submission in the Federal Court
by the Tribunal:
13. It was no part of the Tribunal's
finding of impropriety by Mr Bond in relation
to the payment to Sir Joh Bjelke Petersen that
Sir Joh had solicited a bribe from Mr Bond or
that Mr Bond believed or even suspected that
Sir Joh had solicited a bribe from him.
Therefore, the Tribunal's not having regard to
evidence tending to show that Sir Joh had not
solicited a bribe from Mr Bond was in no way
harmful to Mr Bond's interests. (Continued on page 221)
C2T75/l/FK 220 28/2/90 Bond(2)
MR ELLICOTT (continuing): That last sentence, we are not concerned about. That seems to be an inconsequential
matter, an attempt to take a point on us but thesignificant thing is that they are conceding there
that it is no part of the impropriety that
Sir Joh was seeking or that Mr Bond believed that
Sir Joh was seeking. That is very relevant and I
am referring to it now because I did want to develop
another submission based on the question of
impropriety. What is improper about what happened and that requires going to particular passages where
they find imppopriety but if we are right, or if that
is right and that is just conceding it was no part
of their decision, Mr Gyles has pressed on
Your Honours, as we do, that they do not really
decide that but it was a critical matter for them to
decide, if they were to find impropriety. But, if that
is there, how can you say, how can one say, I say
rhetorically, that it is improper for Mr Bond to have
done what he did?
I have already stressed, probably ad nauseam,
that the elements of the impropriety alleged against
Mr Bond, apart from the 50/350 matter, were before
the Tribunal in 1957 and, as Mr Gyles emphasized,
they chose not to look at the file which may have ledthem up that path and they had the complete control
over those proceedings.
(Continued on page 222)
C2T76/l/JH 221 28/2/90 Bond(2)
MR ELLICOTT (continuing): Now, if the findin~ of impropriety goes then, we would submit, the finding of concealment
goes. They depend on one another. If it was not improper to pay the money, then it cannot be improper
to conceal the payment of the money. I will come to that, but that is a basic part of the proposition that
I am putting to the Court. It is not essential, but
it is basic and important to our ultimate submission.
Now, on the question of reasoning, surely one
would expect - and put my other submission about no longer away and thinking now that that has no force to it, and turning one's mind to the question whether
these reasons are flawed or not, whether they did
take into account relevant considerations - surely
one would expect that they would look at the
reasoning in the May 1987 decision and then indicate
why it was that what was before the Tribunal in May
1987 was not found to be improper but yet what is
before it in 1988 and 1989 is improper.
You would expect that as a matter of elementary
justice. The individual will say, "For heaven's sake, I went there in 1987 and I put all this before
them. They had the chance to question me. They found not improper" - bringing it down to the particular
matter - "now they say it is improper, but why?"
Now, there is a complete absence of reasoning and
there is a complete lack of consistency.
(Continued on page 223)
C2T77/l/HS 222 28/2/90 Bond(2)
MR ELLICOTT (continuing): The passages are first of all at the bottom of page 118 of the appeal book:
In relation to this agreement, we find
that Mr Bond dealt personally with
Sir Joh Bjelke-Petersen because Mr Bond
believed that Sir Joh Bjelke-Petersen was
in a position to affect his group's interests,
and Mr Bond believed that a failure to settle
the defamation action might result in
Sir Joh Bjelke-Petersen causing adverse
consequences to his group in their commercial
activities.
Now that sentence in substance can be found in the
May 1987 decision. Then they say: We find that Mr Bond had no belief in 1985,
or subsequently, that the $400,000 paid to
Sir Joh Bjelke-Petersen was an amount
justified by the defamation claim alone.
Now how many- I mean, as lawyers, surely we know that on many occassions matters are settled and people
believe that they are paying the other side too much.
But they do it for other reasons. So it goes on: We also find that Mr Bond put forward proposals
on the 17 February 1986 which were designed to
conceal ..... It follows from what we have
determined that in our view the arrangement
entered into by Mr Bond to pay Sir Joh Bjelke-
Petersen $400,000 and the subsequent payment
of that amount was improper -
So it is actually the payment that they are finding
to be improper.
DEANE J: They are finding both.
(Continued on page 224)
C2T78/l/CM 223 Bond(2)
MR ELLICOTT: Yes, I know, but 1:just want to emphasize that it was the actual payment as well as the
concealment.
DEANE J: But the previous statement that Mr Bond had
no belief in 1985, the $400,000 paid i:·ms justified, was implicit in what had been found in 1987, that critical sentence, because if you say it was higher than would have been reached but for the
perceived needs unrelated, you are just sayingthe same thing . · MR ELLICOTT: It is. the same thi•ng. But my submission is why not improper in 1987, why improper in 1989?
And that really raises - - -
DEANE J: I was not putting any argument about anything. MR ELLICOTT: No, I appreciate that, Your Honour, and it is the very fact that they are the same that raises
the question, "What is the impropriety?", and how
can you determine the impropriety - and this is
where we get into our other argument. Unless you
really look at the transaction and point to the
things that are perhaps improper in it; for
instance, Sir Joh soliciting a bribe, if that was
it. But that is not suggested, that he was doing
that. Or Mr Bond thinking that Sir Joh was soliciting a bribe, that is not suggested.
In other words, if one is to take this
finding by itself in the context that Your Honours
have, what standard of public morality is there
to which it is directed? What moral code is there?
I know that in the New Testament if you commit
adultery in your mind you are committing adultery
but that is a standard that does not apply outside
people who are saintly.
(Continued on page 225)
C2T79 /1 /ND 224 28/2/90 Bond(2) BRENNAN J: This is making an ingratiating gift to a
repository of power.
MR ELLICOTT: Well, that is a way of saying it which we
would say is coloured, Your Honour. We would say that if one has one's feet on the commercial ground,
these people are saying - and we are in the commercialworld after all - they are saying, look, first of
all there is a genuine claim that is basic to it, that
is to say, Sir Joh is claiming $400,000 and he is
claiming it in circumstances where we have tried to
get him down and he will not. He says he is entitled to it. We, if we go to court, may - we are
not defending it on the ground of truth, we may get
a verdict less than that, but if we do go to court
then there are certain perceived commercial
disadvantages. We would be attacking a very popular premier-- he had just been given his greatest vote
in his particular history,. in February, I think it was, 1986 - and all they are really saying is, in the
light of all the disadvantages that will flow, and
because he genuinely believes that he is entitled to
$400,000 and because it going to have all these other
problemsi executives' time, raking over coals,
cross-examining the popular premier in the box, et cetera,
et cetera, we think it is in the interests of the
Bond Group as a whole, to settle the matter.
We would submit those fact, of course, were there
in 1987 - not found to be offensive to public morality.
What is offensive to public morality in that?
(Continued on page 226)
C2T80/l/FK 225 28/2/90 Bond(2)
MR ELLICOTT (continuing): Why cannot people say, "All right Xis claiming $50,000 from me-my neighbour-for some
nuisance I have created, I think that is far
more than he is entitled to, but I am going to pay him because we really get on with these people and we have got to get on with them".
BRENNAN J: Perhaps the answer is because to oppose public power
in a person can never be a source of profit.
MR ELLICOTT: Yes, but the question is, in our submission, whether in Mr Bond's case - it may be some ideal that people
in public office should not be a source of profit, it
may be an ideal, but the morality, from an ind~vidual's
point of view, is not that morality. Tl:H!-~licy is of a
Premier with a genuine claim for defamation who is just
as entitled to come into the courts of Queensland and seek
a verdict for damages as anybody else, and entitled
on counsel's advice,as we know he had, to believe thathe was going to get a high verdict and to hang out for
it. All those things there is no impropriety in that,
from his point of view. We would submit that is perfectly proper. Now from Mr Bond's point of view
he is simply saying, "I am concerned about the Bond
group as a whole, this television station is only
part of it, it is not going to pay up. I agree with Mr Jones and the others that it should not have to
pay but it is a reason why I can, in my position as
the chairman of BCH. as distinct from QTQ, it is a
reason w1:1y I think it is in the interests of the group,
as a whole, to settle the matter" and he goes on and
does it.
Now that, we would submit, is not by any general standard of public morality imoroper, it is just
paying somebody something which that person genuinely
believes he.-''ls entitled to receive which he thinks might be too high but nevertheless he is prepared to pay it because it impacts on him.
(Continued on page 227)
C2T81/l/JL 226 28/2/90 Bond(2)
MR ELLICOTT (continuing)': Now, the morality is no different, we would submit, to any other situation
and it does not matter whether it is Sir Joh or
the neighbour next door, it is the same morality
involved and there is no better reason for saying it
was departed from in 1989 than there was for saying
that it was not departed from, in effect, in 1987.
MASON CJ: Mr Ellicott, it may be a convenient time to adjourn. MR ELLICOTT: I am sorry, Your Honour. MASON CJ:
For the purposes of listing tomorrow, can you give us a more up to date estimate estimate of how long
you will be tomorrow?
MR ELLICOTT: Yes, Your Honour. I think another half an hour, Your Honour.
MASON CJ: Thank you. Mr Sheller, how long do you anticipate being in reply?
MR SHELLER:
Your Honour, I think I will be something in the order of half to three-quarters of an hour but I may
be longer, Your Honour.
MASON CJ: Thank you. The Court will adjourn until 9.45 am tomorrow.
AT 4.24 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 1 MARCH 1920
C2T82/l/JH 227 28/2/90 Bond(2)
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