Australian Broadcasting Tribunal v Bond
[1990] HCATrans 23
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 INVEST11ENTS 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 JGAUDRON 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
C2T /1/CH 1 27/2/90 TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 27 FEBRUARY 1990, AT 10.18AM
Copyright in the High Court of Australia
MR C.S.R. SHELLER, ~C: If the Court pleases, I appear with
my learne friend, MR P. ROBERTS, for the appellant.
(instructed by the Australian Government Solicitor)
MR R.V. GYLES, QC: If the Court pleases, I appear with
my learned friend, MR D.K. CATTERNS, for the
first to fifth respondents. (instructed by
Blake Dawson & Waldron)
MR R.J. ELLICOTT, QC: May it please the Court, I appear with
MR F .M. DOUGLAS, ~C and MR: R. S .- ANGYAL for the sixth to the nint respondents. (instructed by
Allen Allen & Hemsley)
MASON CJ: Mr Sheller. MR SHELLER: If Your Honours please, this is an appeal from an order and judgment of the Full Federal Court at
12 September 1989, the court sitting in the
original jurisdiction of the Federal Court and
acting under the ADMINISTRATIVE DECISIONS
(JUDICIAL REVIEW) ACT.
(Continued on page 3)
C2T /2/CM 2 27/2/90 Bond(2)
MR SHELLER (continuing): Your Honours, in fact there were two applications for orders of review, both in identical
terms, seeking review in respect of 11 of
what were described as decisions and those decisions
were of the Australian Broadcasting Tribunal conductingan inquiry into issues relating to five commercial
radio and one cOITC:Jercial television licence owned by
companies associated with Mr Bond. Your Honours, the Tribunal's findings related ultimately to the
fitness and propriety of the licensees and the
findings as to fitness and propriety were made on
26 June 1989 and are set out in the appeal book
commencing at page 180 and corning, Your Honours, at
page 190b to the findings which were particularly
a matter of agitation in argument and decision in
the Full Federal Court.
Theycornrnence right at the bottom of page 190b,
two lines from the bottom - the Tribunal said:
In relation to Mr Bond, we consider
that he would not be found to be a fit
and proper person to hold a broadcasting
licence.
Then the next paragraph at the top of page 190c was amended in a form which appears at page 191 at line 13
and reads:
"The relationship between Mr Bond and
the licensee companies is relevant to a
consideration as to whether we can be
satisfied that the licensee companies are
no longer fit and proper persons to hold the
licences. For the reasons set out, we find that the licensee companies are no longer
fit and proper persons within the terms of
s.88(2)(b)(i) of the BROADCASTING ACT." Your Honours, that section, section 88, dealt with the
power of the Tribunal to suspend or revoke a commercial licence. Your Honours, we are proceeding on the basis that Your Honours have that legislation to hand. We
do have copies in the appropriate form available to
hand up, if that would be convenient, Your Honours.
(Continued on page 4)
C2T3/l/HS 3 27/2/90 Bond(2)
MASON CJ: Yes, I think it would be, if you have got the legislation in the form in which it
stood at the relevant time, Mr Sheller.
MR SHELLER: Yes. MASON CJ: We do have the Act as it stood in 1988. MR SHELLER: As long, Your Honour, as it embraces the December 1988 amendment -
DEANE J: Yes, it does. MASON CJ: Yes, it does. MR SHELLER: - - - because section 88 was, in fact, replaced by that amendment.
MASON CJ: Yes. MR SHELLER: Well, Your Honours, I will not hand it up but if extra copies are needed, Your Honour, we have them
in Court.
DEANE J: Yours seems to be a lot bigger than what we have got. MR SHELLER: Yes, I think, Your Honour, this may be because it is only printed on one side of the paper.
BRENNAN J: Or it may be that we do not have the whole Act.
MR SHELLER: That may be right. It is critical that
Your Honours have the BROADCASTING ACT, 1942.
MASON CJ: I think it might be safer if you hand up the materials you have, Mr Sheller.
MR SHELLER: If Your Honour pleases. Your Honours, it is but a matter of passing reference but it can be
confusing. The Court is concerned with what is called the BROADCASTING ACT, 1942. At page 202 in the judgment of the Federal Court, Your Honours will see
that at about line 18, there is a reference to: the BROADCASTING & TELEVISION ACT 1942
MASON CJ: Yes. MR SHELLER: Now, that is a different Act, in fact - I do not
think that there is any doubt that the Federal Court
was looking at the BROADCASTING ACT: 1942 - but there
is a separate Act which deals or is relevant not to
the licences that we are here concerned with. Therewas a new scheme introduced, Your Honours, which involved the changing of the name in terms of future licences of which these particular ones are examples
C2T4/l/JH 4 27/2/90
Bond( 2) (Continued on page 4A) to the Act that Your Honours have in front of you,
the BROADCASTING ACT, 1942. And, what Their Honours
say there is correct that, with respect to that
Act;
The relevant provisions of the
BROADCASTING ACT are in the form in which they stood after the cormnencement of the
BROADCASTING LEGISLATION AMENDMENT ACT 1988.
Now, Your Honours, the critical section is
section 88 and, Your Honours, that section finds its
place in Part IIIB of the Act which is concerned
with licences and, amongst other things, Your Honours,
provides in section 81AA(l) that:
(Continued on page 5)
C2T4/2/JH 4A 27/2/90 Bond(2) MR SHELLER (continuing):
A commercial licence -
and these are commercial licences -
shall only be granted to a company that
is formed within the limits of the
Commonwealth or a Territory and has a
share capital.
And I emphasise "company". Your Honours, there are
various provisions then that deal with the granting
and renewal of licences and, in particular,
Your Honours may observe that section 83A(4) enables
the Tribunal to:
refuse to grant a commercial licence .....
having regard only to -
particular matters which include the Tribunal not being
satisfied that a person:
is a fit and proper person to hold the licence.
There is a similar criterion applicable when it comes
to renewal of licences, under section 86AA(4), and
then one comes to the section with which Your Honours
are here concerned, section 88, which deals with the
power of the Tribunal to suspend or revoke a
commercial licence. Subsection (1) provides that:
The Tribunal may suspend or revoke a
commercial licence if it is authorised to
do so by subsection (2), (4), (5) or (6).
And then, subsection (2):
The Tribunal may suspend or revoke a commercial
licence if it appears to the Tribunal that it is
advisable in the public interest to do so, having
regard only to the following matters or circumstances.
And, (a) deals with failure to comply with
undertakings, and then (b):
the Tribunal is satisfied that the licensee
(i) is no longer a fit and proper person to hold
the licence; or
(ii) no longer has the financial, technical and management capacilities necessary to provide an
adequate and comprehensive service pursuant to the
licence;
C2T5/l/FK 5 27/2/90
Bond(2) (Continued on page SA) Now, the part of the Tribunal's findings to
which I invited Your Honours' attention a moment ago related to the Tribunal being
satisfied that the licensees were no longer
fit and proper persons to hold the respective
licences.
If I may go back, Your Honours, to the part of the Tribunal's reasons which lead to that conclusion.
I invite Your Honours to go to page 186 of the
appeal book.
(Continued on page 6)
C2TS/2/FK 27/2/90 Bond(2) MR SHELLER (continuing): Your Honours will see that there is a reference to a summary of findings of fact - and this is at line 10 on page 186 - all of which
we consider relevant to the licensee's fitness and
propriety. Before coming to those in terms,
Your Honours, that relates back to a document which commences at page 100 of the appeal book and is
dated 7 April 1989 and is described as "Decision
on Facts". In the course of that document, the
Tribunal made a number of decisions on facts as they were described - perhaps better described as
findings of fact - which it summarizes at page 186. Your Honours, in our written submissions that
we have filed we sought to provide, in paragraph 2,
a summary of the division between these various
documents, starting on 2 March at 2.1.1 with a
notice of inquiry and then on 21 February 1989 a
list of facts which the Tribunal said it would be
open to it to find; then 7 April 1989, the document
commencing at page 100 of the appeal book; then on
26 June 1989, the finding and conclusion on fitnessand propriety.
The findings of fact are set out against five
numbers and each one of those findings was
separately challenged in the application for orders for review. Your Honours, in reaching the decision that it ultimately did, the Federal Court passed
upon each of them and in due course we will come
back to deal with that but if I could just invite
Your Honours' attention at the moment to their
terms. The first, that Mr Bond agreed to pay the Premier of Queensland $400,000 to settle his
defamation claim not believing the sum was justified
by that claim alone but believing that if he did
not settle at that figure the Premier might harm
his interests in the State of Queensland. Second,
that Mr Bond sought to disguise the true amountagreed to be paid in the belief that a sum in
excess of $50,000 could not survive public scrutiny. (Continued on page 7)
C2T6/l/DR 6 27/2/90 Bond(2) MR SHELLER (continuing): Thirdly, that Mr Bond deliberately
gave misleading evidence to the Australian Broadcasting
Tribunal in 1986 in relation to the events of
January and February 1986 and in relation to the
nature of a meeting with Sir Joh Bjelke-Petersen
on 17 February 1986.
Your Honours, that related to an earlier
Tribunal inquiry which had taken place in 1986 in
relation to the television station QTQ. And then, four, Mr Bond deliberately gave false evidence to
the Australian Broadcasting Tribunal in this inquiry
in relation to his motivation for making the offer
to Sir Joh Bjelke-Petersen at the meeting of
17 February 1986 and in relation to the telex of
2 January 1986 which was relevant to a determination
of a date by which the agreement had been reached
between Mr Bond and Sir Joh Bjelke-Petersen and
Mr Bond threatened to use his TV staff to gather
information on a business competitor, the AMP Society,
and to expose the competitor by showing the results
on television.
Your Honours, the Federal Court set aside the
two decisions which are referred to at page 190b
and 190c as amended on 191, that is to say, firstly,that Mr Bond would not be found to be a fit and
proper person to hold a broadcasting licence and,
secondly, that the licensee companies are no longerfit and proper persons within the terms of the
section, and it did so on the basis that the two
decisions were vitiated by errors of law.
BRENNAN J: Was any consideration given to the question of whether these are decisions wholly within the
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT
MR SHELLER:
Your Honour, the answer to that is yes, it was and there is no doubt that those two matters were'
treated as decisions. (Continued on page 8)
C2T7/l/LW 7 27/2/90 Bond(2) MR SHELLER (continuing): There was some debate as to whether
the other nine matters, and in particular the five
that related to the findings of fact were
decisions, and ultimately, as we understand it,
the Federal Court seemed to be inclined to the viewthat they were not and though it passed upon them
individually, those five decisions, in fact it made
no order in respect of them. But, Your Honour, there
was debate;_ as I understand it it was accepted that
the conclusion that the companies were no longer licensees
was a decision.
BRENNAN J: No longer fit and proper persons. MR SHELLER: No longer fit and proper persons. There was some debate as to whether or not a review of that was
premature because, of course, this was only a stage
in coming to the ultimate question of whether or not
the Tribunal should exercise its powers under section 88.
But, certainly, the Federal Court proceeded on the basis
that within the embrace of those two pages there were
two decisions which were vitiated by errors of law.
BRENNAN J: And do you have any quarrel with that view?
MR SHELLER: Your Honour,I do not seek to quarrel with that
view at this hearing, no. Now, Your Honours, the errors of law that were referred to by the Federal
Court - the matter in terms of the finding with respect
to the licensees which is to be found at page 239 in
the appeal book.
(Continued on page 9)
C2T8/l/JL 8 27/2/90 Bond(2)
MR SHELLER (continuing): Your Honours, at the top of that page the Full Court said:
Even if the propriety of the first
"decision" be conceded for present
purposes -
and that was the decision in respect of Mr Bond -
in our view the Tribunal fell into a
serious error of law in construing and
applying sub-s. 88(2) of the Act.
That, Your Honours, is then spelled out starting at
about page 245 and I will go back to that, Your Honours,
but leading to the conclusion at page 248:
In our view, the matters to which we
have referred above are sufficient without
more to show that the Tribunal fell into
an error of law in construing what was
involved if, within the meaning of
sub-s. 88(2) of the Act, it was to be
satisfied that each of the licensees was
no longer a fit and proper person to hold
its licence or licenses.
Then on that basis they said:
What the applicants have described as
the second decision must be set aside.
Tha::was adverted to again at page 260 at line 11 - I
am sorry, Your Honours. That is the wrong reference.
I will come back to that. There is a later reference I will come back to, Your Honours. The second error
of law which related to the findings as to Mr Bond
is referred to at page 250.
(Continued on page 10)
C2T9/l/HS 9 27/2/90 Bond(2)
:MR SHELLER (continuing): The passage really starts at the bottom of page 249, three lines from the
bottom:
There is a fundamental difficulty in
this conclusion of the Tribunal. The Tribunal sought to determine the nature of the
transaction involved in the settlement of the
defamation claim of the Premier without
inquiring into the purpose or motives of the
Premier in reaching the settlement. The Tribunal held that the Premier was not "amenable" to its jurisdiction and therefore
precluded itself from making findings as to
what the Premier did or said. There is an error
of law involved in this dichotomy which in
our opinion necessarily vitiates the seventh
"decision" of the Tribunal. It was impossible
both in logic and common sense for theTribunal to determine the nature of the
transaction involved in the settlement of the
defamation claim without making findings as
to what was said and done by each person
involved in the settlement negotiations onboth sides of the record.
Now Your Honours, there the Tribunal is talking of
the first of the five matters which was referred to
by the Tribunal, but in finding that that finding or
what became known as the "seventh decision" was
vitiated, it ultimately arrived at a conclusion that
three others of those findings were vitiated as a
result and that accordingly the decision as to
Mr Bond was vitiated and, Your Honours, that
ultimate conclusion is arrived at, or referred to
again at page 260, line 19, where it is said:
In the opinion of this Court, it was impossible
to conduct a rational and fair inquiry into the
transaction in question, in which two people
participated, without considering and making findings as to the conduct of both.
Now, as to the first of those matters, may I again
go back,Your Honours,to page 245.
(Continued on page lOA)
C2Tl0/l/CM 10 27/2/90 Bond(2)
MR SHELLER (continuing): On that page, at about line 10, there is a reference to a decision of the
Federal Court in WESTERN TELEVISION case and there
is no doubt that that case was referred to by the
Tribunal. The Federal Court said that:
The Tribunal relied upon the WESTERN TELEVISION
case as authority for the proposition that "an
assessment of Mr Bond's personal fitness and
propriety is relevant in determining the issue
as it affects each of the licensee companies".
We agree with this proposition, subject to the
qualification that it would be necessary first
to find the facts indicative of a sufficiently
close connection between Mr Bond and the
licensees. Having dealt with various factual
matters (to which we later return in these
reasons) the Tribunal spoke of Mr Bond as
being "by virtue of his association with the
licensee companies, the only relevant
individual in the sense that consideration ofhis fitness and propriety is relevant to the
question of fitness and propriety of the
licensees". The proposition which we have
underlined cannot be cavilled at, but this is
not the same as saying that Mr Bond was the
only relevant individual. The language used, coupled with the fact that the Tribunal did
not consider, in arriving at its conclusion,the qualities of persons other than Mr Bond,
indicate that the Tribunal has fallen into error,
partly pursuant to the encouragement given by
the submissions of counsel assisting and also
in mistaken reliance upon what had been said in
the WESTERN TELEVISION case.
That case is authority for the proposition that
a relevant matter to be taken into account in
determining the fitness and propriety of acorporation may be fitness and propriety of
persons associated with the applicant, and
relevant consideration the fact that a person that it would be an error in not treating as a with a significant association with the
corporation in question had been convicted ofnumerous recent offences. However, upon that hypothesis, it would still be for the Tribunal to take into account other relevant matters. In other words, in the WESTERN TELEVISION case, the Court was not saying that if the Tribunal
had done what it had failed to do, namely to take into account the recent convictions of a
person with a significant association with theapplicant, it would reach the conclusion that the corporation lacked fitness and propriety.
The finding as to one individual would not necessarily translate into a finding as to the company concerned.
C2Tll/l/DR lOA 27/2/90 Bond(2) Then, a little bit further down that page, under the heading:
The Tribunal went astray by equating the
fitness and propriety of Mr Bond (or lack of it) with that of the licensees; having found certain
facts from which it concluded Mr Bond was
lacking in this respect, the Tribunal then
failed to look at othermaterial before it which
required consideration if its decision as to
the supervening lack of fitness and propriety
of the licensees was not to be regarded asperverse in the s-.ens-e of the authorities we
mentioned earlier in these reasons.
That, Your Honours, is taken up briefly at page 260,
starting at about line 4 under the summary:
In determining whether the licensees were no longer "fit and proper persons" to hold their licences under the BROADCASTING ACT, the
Tribunal considered only Mr Bond. The licensees led evidence, in the main unchallenged,
as to the background and function of other
relevant persons, in particular directors and
executives of relevant companies. The licensees
also led some evidence as to the mode of
management of the broadcasting stations in
question. This body of evidence was not taken
into account by the Tribunal in reaching its
conclusion, although the legal relevance of
such evidence was manifest.
Now, Your Honours, we read what is said, particularly
at pages 245 through to 247, as saying that the
section required the Tribunal to look at other
material called in the judgment, "other relevant
material", and constrained the Tribunal from
treating Mr Bond's fitness as equating with the
licensees' fitness.
(Continued on page 12)
C2Tll/2/DR 11 27/2/90 Bond(2)
MR SHELLER (continuing): Your Honours, it is in answer to that as it appears in the judgment, the requirement found
in the section to look at other material and the
constraint from looking simply at Mr Bond that
leads to the submission that we set out in summary
form in our written document at paragraph 6.
Your Honours, what we submit is that the
Tribunal's finding concerning Mr Bond's shareholding control required, or alternatively, permitted a finding
of lack of continued fitness and propriety in the
licensee. Alternatively the Tribunal's finding
concerning Mr Bond's shareholding control together
with the Tribunal's findings concerning his past
and possible future involvement in management decisions
required or alternatively permitted a finding of lack
of continued fitness and propriety in the licensees
and, Your Honours -
BRENNAN J: Mr Sheller who paid the money, what company
. ' paid the money?
MR SHELLER: It was paid, Your Honour, by Bond Corporation
Holdings, apparently, I understand, not directly, but
ultimately, Your Honour, if that is a meaningful
expression. I understand the funds ultimately came from Bond Corporation Holdings.
BRENNAN J:
Did the television company pay the money and then recoup itself from the holding company?
MR SHELLER: No. BRENNAN J: Was any inquiry made as to how the money got to the payee?
MR SHELLER: Yes, Your Honour, there was and, as I understand it, it came from Bond Corporations Holdings but in fact was
paid by an insurance agent in Western Australia called
Jardines, Your Honour, but it did not come from the
media company.
BRENNAN J: Was Mr Bond at the time, that is the relevant time of the negotiations and the payment, chairman of both
the holding company and of the media company?
MR SHELLER: Yes, Your Honour, and one of the things, Your Honour, that should have been included in our written
submission in terms of the background fact is that
Mr Bond, at all times, was executive chairman of
Bond Corporation Holdings, but not - he did not
continue to be chairman of the media company.
Your Honours, the two factors - and if I could
now, having looked at what the Federal Court said
about the Tribunal's finding and may I just
interpolate this, that we say that to some extent the
C2Tl2/l/HS 12 27/2/90 Bond(2) Federal Court misunderstood what the Tribunal meant
when it referred to Mr Bond as the only relevant
person, but I say that in passing. There is no doubt
that it made findings about the fitness of Mr Bond
and on the basis of those findings made findings about
the fitness of the licensee.
BRENNAN J: Mr Sheller, could I just interrupt you again to pursue another matter. There was, I take it, a deed of discharge or some instrument dealing with
discharge?
MR SHELLER: Your Honour, I do not know the answer to that but I will have some inquiries made and I will answer
Your Honour. I am told there was, yes.
BRENNAN J: And the consideration for the discharge, I suppose, you do not know at the moment?
MR SHELLER: I do not, Your Honour, but I will find out. Can I come back and I will isolate exactly the
position, Your Honour.
BRENNAN J: Of course. MR SHELLER: Your Honours, if one goes to the Tribunal's findings at page 183 of the appeal book reference
is made at the top of the page to a submission put
by counsel for Mr Bond that the Tribunal:
should look at the licensee as a
corporate structure and exclude from
our consideration the role Mr Bond
plays as the major shareholder. The submission is that although Mr Bond has the major shareholding, he does not control the licensee company, the
directors do. The contrary proposition to this submission is that the person
who has the power to appoint the
directors has the overriding control of the company and that this approach is
the one that should be followed in
relation to the BROADCASTING ACT.
(Continued on page 14)
C2Tl2/2/HS 13 27/2/90 Bond(2) MR SHELLER (continuing): It was as against that submission that
reference was then made to the decision of
Mr Justice Pincus, in the WESTERN TELEVISION case,
and the Tribunal quoted from that case and said at
page 184, at line 8:
In view of the relationship between Mr Bond
and the licensee, the proposition put forward
in the abovementioned decision is applicableto this case.
We accept the submission of Mr Gyles that any
finding as to fitness and propriety must be related to the licensee. In assessing that
quality, however, we consider that due to
the nature of his shareholding and applying
the principles set out in the WESTERN TELEVISIONcase, an assessment of Mr Bond's personal fitness
and propriety is relevant in determining the
issue as it affects each of the licensee
companies.
Now, Your Honours, that was the first head of factors
that the Tribunal took into account. The second head could be described as Mr Bond's corporate
position and that is set out conunencing at line 18.
The Tribunal said:
In addition to the above concept, we are also of the view that Mr Bond's position within the corporate structure does enable him to
initiate and involve himself in management
decisions which affect the broadcsting
activities within the group. Mr Bond's personal intervention in the defamation matter
with Sir Joh Bjelke-Petersen is an example.
Indeed, the evidence we received in relation
to the arrangements entered into between Bond
Media and Rothwells further indicates the
substance of this proposition. Our view is that Mr Bond, through his shareholding, does
have a continuing and substantial interest
in the directions and decisions of the various
licensee companies. It is also clear that Bond
Media Ltd occupies an important position in the
Bond Group of companies. These are additional
reasons to consider Mr Bond in relation to the
licensee companies.
Now, Your Honours, one thing we would submit is plain,
that the Tribunal itself never in the course of its
reasonings suggested that it was in some way
constrained by section 88 to ignore other material,
or to regard Mr Bond, or a controller, or an
individual, as the only relevant person.
C2Tl3/l/JL 14 27/2/90 Bond(2) The critical finding, we would submit
was that both as a result of his conduct and his
unfitness and the particular position that he held
in the corporate structure, it flowed that hisunfitness necessarily resulted in the unfitness of
the licensee companies.
Now, if I could invite Your Honours to go back
to our written submissions, at 7.6 we state what
we submi~ what I have just put to Your Honours, and
put that firstly, in terms of simply looking at his
control, and we submit that if, indeed, the Tribunal
finds that a person, with shareholding control of a
licensee is unfit, that that necessarily results in
the unfitness of the controlled licensee.
(Continued on page 16)
C2T13/2/JL 15 27/2/90 Bond(2)
MR SHELLER (continuing): Your Honours, there is some discussion in the Federal Court's judgment about the finding of
Mr Bond being unfit, bearing in mind that licences
may only be granted to corporations under the Act
and that the Act speaks of unfitness of licensees.
But the significance in this context of that expression is that clearly what the Tribunal is
speaking of when it speaks of unfitness is what might
be described as broadcast related conduct. In other
words, the sort of conduct that would make a licensee
corporation unfit is the sort of conduct that it
found Mr Bond had engaged in.
But, Your Honours, we say that Mr Bond's position
as a controller alone was enough to lead to that
conclusion but, of course, the Tribunal added to ithis position in the corporate structure and, we would
say, further, the Federal Court is saying,with
respect, not merely that such findings do not lead
inevitably to the conclusion but that they could notlead to the conclusion in the absence of looking at
other material. In other words, that there has to be
some balancing act engaged in, some scales in which
one weighs off against Mr Bond's conduct other material.
Your Honours, that, we would respectfully submit,
is not correct and I will come back in a moment to deal
with that, particularly in the light of some American
authority and what we would respectfully submit could
be said to be an approach to the sort of conduct of
unfitness in an individual which could, perhaps, be
described as something in the nature of instant
disqualification.
Now the Tribunal was at pains at page 186 of the appeal book - I am sorry, Your Honours, it is
at page 187. - it deals with what is meant by
'fit and proper" and refers again to a passage from
the WESTERN TELEVISION case. But at the bottom of the page it comes to deal with the various matters, the five matters, and explains why, in its view, those
matters showed unfitness. Firstly:
In respect of the defamation matter -
and this is two lines from the bottom of page 187 -
we have found that Mr Bond's agreement to pay
$400,000 was in itself improper. The fact that Mr Bond, a major media proprietor, was prepared
to personally negotiate such a payment on the
terms that he did not not exhibit an appreciation
of the proper relationship between those with
control of media interests and governments. Apart
from the dimunition of public confidence, in
the broad sense, there are particular concerns
which revolve around the issues of journalistic
independence and the integrity of the service.
C2Tl4/l/LW 16 27/2/90 Bond(2) And then at line 11, dealing with the attempts to
disguise the agreement and payment, the Tribunal said:
Mr Bond's subsequent attempts to disguise the
agreement and payment involve improper
behaviour of a more fundamental and damaging
nature. An attempt at such deceit, driven, as it would appear to be in this case, by
expediency, does not exhibit qualities which
we would expect to repose in the character of
a fit and proper person.
And then:
The duty of candour is an important plank in
the scheme of the regulatory mechanism. It is
perhaps too little understood that it is the
fulcrum in a balance which, if properly attended
to, has benefits for both the regulator and the
regulated. Trust is the basis of the fulcrum.
The deliberate misleading of the Tribunal
exhibits a desire to avoid the perceived
consequences of disclosure and undermines the
relationship that should exist between the
Tribunal and licensees. This is compounded by
the continuation of deliberately misleading
conduct into the present inquiry.
(Continued on page 18)
C2T/2/LW 17 27/2/90 Bond(2)
MR SHELLER (continuing): On page 10: A heavy responsibility rests on us in the
determination of a standard of behaviour
which does or does not meet the test ofbeing a fit and proper licensee. There is
no doubt in our minds that the function
carried out in satisfying ourselves about
the fitness and propriety of licensees
is a function primarily directed towards
the community's interest in securing as
licensees of these valuable resources, persons who exhibit sufficient quality
of character and judgment as to render them
appropriate in the community's view to
have the privileges and benefits which the
use of such resources undoubtedly brings.This requirement is distinct from the other
statutory requirement that they have the
relevant management and financial
capability to operate the service -
of course, dealt with in a separate paragraph in the
subsection. And then, fifthly:The finding in relation to Mr Bond's action regarding the threat to use his television
staff against a commercial competitor is also
significant. It is clear that one of the
great risks for a person who controls suchsignificant resources as television and
radio networks is to misuse them. The risk is twofold - the actual misuse of them and the
perception that they could so be misused.
We consider the requisite standard ofbehaviour is that both risks should be avoided.
Now, Your Honours, it is perhaps important that the
second of those matters to which the Tribunal
referred to, the disguising of the agreement and
payment, involved some further examination of what the Tribunal found and that takes one back to page 117
in the appeal book. Your Honours, up to that point there had been examination by the Tribunal of what
had passed between Mr Bond and the Premier in
relation to this defammation settlement.and that
starts at page 106 and various meetings are referred
to and, in particular, two meetings, one of
17 October 1985 and one of 18 December 1985, and
in respect of that second meeting at page 107, the
Tribunal said at about line 11:
At that meeting, there was a further
discussion about the settlement amount and
according to Sir Joh Bjelke-Petersen heagain "shook hands" with Mr Bond on the
$400,000 figure.
C2Tl5/l/JH 18 27/2/90 Bond(2)
On the 2 January 1986 Mr Aspinall -
who was an officer within the Bond group -
forwarded a telex to Mr John Biggs ..... in
which Mr Aspinall set out explicit
instructions to Mr Biggs regarding theconclusion of an agreement between Mr Bond
and Sir Joh Bjelke-Petersen -
and that telex is set out at the bottom of the page
and reference is made to an agreement having been
made, in the first paragraph, that:
It has been agreed there will be no
disclosure.
And then, in paragraph 3 at the top of page 108: The above point, that is the non-disclosure of settlement, is most vital and should be
carefully worded in the agreement.
And then, some other explanation is given apparently
by Mr Bond and then, a bit further down:
We are of the view that both Mr Bond and
Mr Aspinall, while giving their evidence
in this Inquiry were well aware of the
significance of the question as to whetherthe telex represented the fact that an
agreement had been concluded by its date,
and to the extent that their evidence
attempted to explain the telex in another
way it is not accepted.
In our view, the telex, which is in specific
terms both as to the conclusion of discussion
as to the amount of payment and as to thesteps to be taken to implement payment
itself, is unambiguous. The activity which followed it was consistent with it
representing a concluded agreement.
And then, over the page at line 5 on page 109,
the Tribunal said that in its view:
the agreement to pay Sir Joh Bjelke-Petersen
$400,000 was made by Mr Bond at the meeting
of 18 December 1985. In coming to this
conclusion we rely on the telex of
2 January 1986, the evidence of
Sir Joh Bjelke-Petersen to this Inquiry and
Sir Joh Bjelke-Petersen's letter to Mr Bonddated 19 February 1986 -
and that was formally approved at a board meeting
on 24 March 1986.
C2T15/2/JH 19 27/2/90 Bond(2) MR SHELLER (continuing): Then, Your Honours, further down
that page there is a reference to a meeting on
17 February 1986 and as a result of that meeting
letters were exchanged and that meeting related
to a proposition described at line 20 by Mr Bond:
to pay the $400,000 in what has become
known as the '50/350 split'
and that proposition being rejected by
Sir Joh Bjelke-Petersen. The two letters are then set out in full and the reply dated 26 February 1986,
page 111,from a Mr Pearce who was writing on behalf
of Mr Bond, in the second paragraph:
Please be assured that Mr Bond is as anxious as you to resolve the position however
is not prepared to put both parties in a
position where they will be exposed to
allegations of improper conduct.
He assumed that it would be understood
that any agreed settlement would be subject
to a satisfactory legal position. The advice we have received expresses grave concern
and indicates that the proposed method of
payment is fraught with danger.
And that proposed method of payment, Your Honours,
was the payment of $400,000. And then over the page
there is a reference to the concern of other people
folil.1.owing upon"Mr Bond's personal intervention"in
the matter, which is referred to at the top of the
page, the underwriters advising:
that they declined to accept any liability
and then further down the page at about line 17:
During the whole of the period from 17 October 1985 through till February 1986,
there was activity among Bond Group senior
executives in relation to the payment. The thrust of the evidence has been that the concern expressed and demonstrated was for
purely commercial reasons, that is, the
amount of the payment was too high.
Prior to meeting with Sir Joh Bjelke-Petersen
on 17 February 1986, Mr Bond was aware of
Mr Lodge's view that the maximum sum which
could be attributed to the defamation settlement
was $50,000.
C2Tl6/l/CM 20 27/2/90 Bond(2) Mr Lodge, Your Honours, was a solicitor who gave
some evidence which is then set out at page 113.
At the bottom of page 113, at line 33, the Tribunal
refers again to the meeting of 17 February:
according to the evidence of Sir Joh Bjelke-Petersen,
Mr Bond suggested that Sir Joh should accept
payment of the $400,000 through a cash payment
of $50,000, and the balance of $350,000 through
either a payment overseas related to assets,
a loan within Australia, such loan carrying
no obligation for repayment, or a property
transaction between the two which would involve
an excessive payment of $350,000. Subsequent
to these discussions, Sir Joh Bjelke-Petersen
discussed these proposals with Mr Lockhart,
and then the letters are again referred to of from the evidence of Sir Joh Bjelke-Petersen. At
the bottom of page 116, that is to say at line 33,
it said:that:
In his evidence, Mr Bond categorised these
proposals as a negotiating tactic. He said he proposed these arrangements to unsettle
Sir Joh Bjelke-Petersen. The objective,
according to Mr Bond, was to reduce the
amount of $400,000. A great deal of
evidence has been given, principally by
Mr Bond, regarding this technique and indeed
Mr Aspinall has also given some anecdotalevidence to support it.
(Continued on page 22)
C2Tl6/2/CM 21 27/2/90 Bond(2) MR SHELLER (continuing):
The proposal was left with Sir Joh to
consider.
Mr Bond's reply to Sir Joh's letter of
19 February -
which had been set out -
was hand-delivered in a sealed envelope
by Mr Lodge under express instructions that itwas only to be opened by Sir Joh. Mr Lodge,
in giving evidence, categorized the proposal
as "quite unsatisfactory in this sort oftransaction" and "just inappropriate".
And then, the Tribunal continued:
Before sending the reply of 26 February 1986,
Mr Pearce discussed its contents with Mr Bond
and with Mr Lodge. Mr Warren Jones also received a copy. In our view the letter from Sir Joh Bjelke-Peterson was sent to distance himself from the underlying matter of impropriety implicit in the proposal and to
place his position on the recored. In our view the words in Mr Bond's response " ... where they
will be exposed to allegations of improper
conduct", and " ... advice we have received
expresses grave concern and indicates that the
proposed method of payment is fraught with
danger." relate directly to the proposition
that $50,000 be paid in cash with the balance
to be paid in any of the three alternatives
suggested.
And then, Your Honour~ coming back at page 117, the
Tribunal said:
Because of the seriousness of the consequences of our finding in relation to the reason for
this proposal and its relevance to the
transaction itself, we have given these facts
the most detailed and lengthy consideration.
In our view, it was plain that Mr Bond had
placed himself and his organisation in a position
where he had agreed to pay an unjustifiably
high amount of money to the Queensland Premier
and all attempts to lower the figure had failed.
We find that Mr Bond's proposal to
Sir Joh Belke-Petersen on 17 February 1986
was an attempt to disguise the value of the
agreement made with Sir Joh Belke-Petersen. The proposal was driven by concern that the amount
of $400,000 was not a justified payment and
C2Tl7/l/FK 22 27/2/90 Bond( 2) this was an attempt by Mr Bond to
disguise any impropriety inherent in the
proposed payment.
And then, Your Honours, at the bottom of page 118,
the finding is made:
In relation to this agreement, we find
that Mr Bond dealt personally with
Sir Joh Belke-Petersen because Mr Bond
believed that Sir Joh Belke-Peterson 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 Belke-Petersen causing adverse
consequences to his group in their commercial
activities. 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. We also find that Mr Bond put forward proposals on the 17 February 1986 which were
designed to conceal the fact that the
actual payment was to be $400,000. It follows
from what we have determined that in our view
the arrangement entered into by Mr Bond
to pay Sir Joh Belke-Petersen $400,000 and the
subsequent payment of that amount was improper
and his attempts to conceal that payment
were improper.
Now, Your Honours, in relation then to the question
of disguise and candour, the Tribunal dealt with that
separately, commencing at page 120, and the thrust of
that, Your Honours, was that in the 1986 inquiry the
material relating to the meeting of 17 February 1986
was not presented and,indeed, as appears at page
122, line 10, that Mr Bond - and there is a quotation
on that page from a statement that he made in the
he was trying to negotiate the $400,000 down, that 1986 inquiry - Mr Bond stated that at that meeting no material relating to the activities in January and February were presented to the 1986 inquiry, that
the "50/350 split" was not mentioned, and thatappears at page 122, line 6, and that the evidence
was, so far as the 1986 inquiry was concerned, thatagreement to pay an amount in settlement of a defamation claim was only reached in March/April 1986,
and that appears at page 123, line 2.And, indeed, that Tribunal went on to say, at
page 123, having referred to that, on the fourth line:
C2Tl7/2/FK 23 27/2/90 Bond(2) MR SHELLER (continuing):
The evidence of Mr Bond and Mr Aspinall at
the QTQ inquiry did not deal with the
activities of January/February as disclosed
to this Inquiry. We take the view that Mr Aspinall's evidence to the QTQ inquiry
as to the drafting of the deed in March is
misleading. Mr Aspinall's assertions to this Inquiry that he did not mention the January
deed because it did not proceed were untrue.
It is quite apparent that the deed prepared following Mr Aspinall's telex of the
2nd January 1986 was the deed which was
finally executed. We are clearly of the view that Mr Bond and Mr Aspinall misled the
Tribunal in Brisbane as to the events of January/February, and this deception was
calculated to create an impression that the
agreement _was finalised in a manner contrary
to the reality as it was known to them both.
And, earlier, at the parts to which I have
already referred, namely page 107 and 109, one has
the Tribunal's finding that, in fact, the agreement
was reached on 18 December and one has the Tribunal
setting out the terms of the telex of 2 January 1986
which, again, was not presented to the 1986 inquiry.
Now, Your Honours, that is the background material
against which the Tribunal made its findings as to
disguise, misrepresentation and false evidence.
Your Honours, at page 247, in the decision of the
Federal Court there is reference, at line 7 on that
page, to other material which the Federal Court
said was either disregarded or ignored. That is
summarized at page 247 as being material:
which suggested that the boards of the
licensee companies operated in an entirely
proper manner and discharged their duties in
accordance with the obligations placed upon
them by company law.
And then:
evidence given by various directors and
executives of the absence of what might be
described as interference by Mr Bond; this
evidence was not challenged.
Then Their Honours said:
But it was disregarded by the Tribunal, the
reason for this apparently lying in the
misconception under which the Tribunal laboured
as to the narrow range of the relevant
considerations to be taken into account by it.
C2Tl8/l/DR 24 27/2/90 Bond(2) Now, Your Honours, we respectfully submit
that, certainly, one cannot derive from the way in
which the WESTERN TELEVISION case was dealt with
any misconception as to a narrow range of relevant
considerations. That was simply dealt with in
answer to a proposition put by a counsel for Mr Bond
that the conduct of Mr Bond should be ignored
altogether. Indeed, Your Honours, we would
respectfully submit that the Tribunal was at pains
in the course of its reasons to point out that it
had paid regard to all the evidence. What was
significant and overwhelming, we would respectfully
submit, both as a matter of law but also as a matter
of fact, was the evidence about Mr Bond, both
in terms of his position, his control and in terms
of his conduct.
Your Honours, that is an approach which
certainly has been adopted in the United States.
May I, just before going to that and before
Your Honours turn from page 247, give Your Honours a
reference to pages 221 to 223 of the appeal bookwhich summarizes the evidence of four people who
gave evidence about what they knew or observed about
Mr Bond's interference. Your Honours, the first of those, at page 221, was a Mr Nigel Milan and one
sees, Your Honours, that he said that:
he did not believe that Mr Bond had visited
any of the stations -
and at line 10 -
He said that also, to his knowledge, Mr Bond
had never sought to become involved in the
operation of any of the stations.
Then there is reference to evidence by
Mr Ian Muller and at line 15:
to his knowledge -
neither -
Mr Bond or any other Bond Holdings executive -
had -
sought to become involved in the operation of
the Board or the selection and presentation of
news -
and that -
He had met Mr Bond on four occasions only.
C2Tl8/2/DR 25 27/2/90 Bond(2)
MR SHELLER (continuing): Then Mr Rice, and part of his evidence is set out:
"I am not aware of any attempt since
the a c q u i s i t ion by the Bond in t ere s t s
on 31 March 1987 to influence the
selection or presentation of news.
Then over the page on page 222:
in a supplementary statement that to
his knowledge neither Mr Bond nor anyone
acting for him had ever attempted to
interfere with or influence the
selection ..... of news.
Then Lady Schubert - - -
BRENNAN J: Do theseperiods all relate to periods after Mr Bond ceased to be chairman of the licensee companies?
MR SHELLER: I think the answer to that is yes, Your Honour, but I would have to check to be absolutely certain.
BRENNAN J: Yes. MR SHELLER: Your Honours, it might assist - and I should perhaps have done this before - we have prepared a chronology
of what we say are the findings and it may assist
Your Honours if I hand that up. I do not wish to
particularly refer Your Honours to it but it is an
attempt to put what, in some respects, is a rather
scrambled discussion of various events into a
chronological order and give Your Honours the appeal
book references. I should say immediately that on the
second page the date 27 November 1985 that we have put
in brackets is not a date that appears in the appeal
papers. I understand it is a correct date, Your Honours, but it is not one that is in the appeal papers and in cases where there is more than one
reference we have given Your Honours several. Your Honours, at page 222 then Lady Schubert
speaks about:
the only contact with which she was aware
between the Bond Media board and the board
with any board member of Bond Holdings
of Bond Holdings was a montly report .....
..... no direct knowledge of special favours
..... she had only met Mr Bond on threeoccasions ..... She believed that the assets
of QTL were best preserved and enhanced
by an approach which focused on the bestinterest of that company, and not one which
C2Tl9/l/HS 26 27/2/90 Bond(2) required her as a director to assume
that what is in the best interests of
Mr Bond or any company associated with him is in the interests of QTL.
Your Honours, there are three cases in the United
States to which I invite attention, the earliest
of them a decision of the Supreme Court in the
FEDERAL COMMUNICATIONS COMMISSION V WOKO,
(1946) 329 US 223. Your Honours, the system in the United States allows for the commission to require
applicants and licensees to provide information
concerning, amongst other things, conduct. In this
particular case - and this appears against headnote 1
in the commencement of the decision - WOKO, which was
a radio station operator, had had its application for
licence renewal refused - page 225:
because of misrepresentations made to
the Commission and its predecessor as to
the ownership of the applicant 1 s capitalstock.
The particular situation was that a parcel of shares
was owned by a Mr Pickard and his family and Mr Pickard
was vice-president of the Columbia Broadcasting
Company. Apparently Mr Pickard was anxious that this stockholding not be disclosed to the Columbia
Broadcasting Company and, accordingly, it was not
disclosed to the Federal Communications Commission.
(Continued on page 28)
C2Tl9/2/HS 27 27/2/90 Bond(2) MR SHELLER (continuing): At the bottom of the first colunm
on the page that has Mr Justice Jackson's opinion,
in the right-hand colunm, it said:
The company, however, in reporting to
its stockholders as it was required to do for many years and in many applications, concealed the fact that the Pickards held this stock interest and represented that the shares were held by others. Its general
the Federal Radio Commission and to the of
manager appeared on behalf of the applicant at
various hearings and furnished false testimony
to both Commissions regarding the identity
of the corporation stockholders and the sharesheld by each so as to conceal the Pickard holdings.
The purpose of the concealment was to prevent
the facts from becoming known to Pickard's
Columbia colleagues.
The Court of Appeals reversed that decision and the
Supreme Court granted certiorari.
At the bottom of the next page, in the left-
hand column, that is 226, the court deals with the
Act and says:The Act provides as to applications such as WOKO filed that "All such applications shall
set forth such facts as the Commission by
regulation may prescribe as to the citizenship,
character, and financial, technicai and otherqualifications -
and so on and then in the right-hand colunm, at the
top:
It provides, too, that any station license may Then in that right-hand side the Supreme Court points
be revoked for false statements in the application.
out and explains that:
The fact of concealment may be more significant
than the facts concealed.
That is about a third of the way down that colunm.
The willingness to deceive a regulatory body may be disclosed by immaterial and useless
deceptions as well as by material and persuasive
ones. We do not think it is an answer to say
that the deception was unnecessary and served
no purpose. If the applicant had forthrightly
refused to supply the information on the
C2T20/1/LW 28 27/2/90 Bond(2) on the ground that it was not material, we
should expect the Commission would have
rejected the application and would have been
sustained in so doing. If we would hold it not unlawful, arbitrary or capricious to require
the information before granting a renewal, it
seems difficult to say that it is unlawful,
arbitrary or capricious to refuse a renewal
where true information is withheld and false
information is substituted.
Then.the next point,which was the innocent shareholder
point:
We are told that stockholders owning
slightly more than 50 per cent of the stock
are not found to have had any part in orknowledge 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 stockholders can
not immunize the corporation from the consequences
of such deception.
And then so on and some other cases are referred to. But then, particularly, Your Honours, at the bottom
of page 228, the last sentence on the left-hand
column:
Lastly, and more importantly, the Court of
Appeals suggested that in order to justify refusal to renew, the Commission should have made findings with respect to the quality of the station's
service in the past and its equipment for good
service in the future. Evidence of the station's
adequate service was introduced at the hearing.
And then the reference is made to what the commission
said: The Commission on the other hand insists that in administering the Act it must rely upon the reports of licensees. It points out that this concealment was not caused by slight inadvertence nor was it was it an isolated instance, but that the Station carried on the course of deception
for approximately twelve years. It says that in
deciding whether the proposed operations would
serve public interest, convenience or necessity,
consideration must be given to the character,background and training of all parties having an interest in the proposed license, and that it cannot be required to exercise the discretion vested in it to entrust the responsibilities of a licensee to an applicant guilty of a systematic course of
deception.
C2T20/2/LW 29 27/2/90 Bond(2) And then the court said:
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 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 amatter that affected its qualifications to serve
the public. But it is the Commission, not the courts, which must be satisfied that the public
interest will be served by renewing the license.
Your Honours, that passage in terms of leaving it open
to the commission to refuse to renew without making findings as to the quality of the station's service
is taken up in two cases in the United States Court of
Appeals, the first being INDEPENDENT BROADCASTING CO
V FEDERAL COMMUNICATIONS COMMISSION, (1951)
193 F 2d 900.
(Continued on page 31)
C2T20/3/LW 30 27/2/90 Bond(2) MR SHELLER (continuing): Your Honours, in this case, the
Commission had been concerned with an application,
in effect, to operate a radio station and if I
could invite Your Honours to go to page 901 in
judgment of the court, in the right-hand column
half-way down the Court said:
A hearing in the consolidated proceeding was
had in October and November, 1947, after which
the hearing officer filed an "initial decision"
to the effect that both applications should be
denied. Oral argument on Independent's
exceptions was afforded. On August 11, 1949, the Commission made findings of fact upon which it
based a final decision of denial. It found
that Independent had misrepresented the facts with
respect to the distribution of a large percentage
of its common and preferred stock. The applicant
had represented that fifty shares of unissued
common would be sold to Marvin I. Thompson, one of
the three stockholders; but in fact the unissued
common stock was divided between Thompson and the
other two stockholders, Rev. J. Harold Smith and
his wife, who together owned the controlling
interest. The applicant represented that the preferred stock would be sold on the open market,
but in fact it was all sold to Smith.
The Commission further found that Independent had
misrepresented Smith's assets and had represented
that he had no liabilities, when in fact he owed
$123,000; and that, although it was Independent's
duty to reveal any substantial business enterprises
engaged in by its members during the preceding
five years, the applicant had not disclosed the
business interests which Smith had in -
a particular institute. And then the next paragraph:
It was also found that Smith had used intemperate
language in his writings, sermons and broadcasts;
that he had a constant habit of attacking the
honesty and sincerity of those individuals and
groups who did not agree with him; that he had attempted to institute economic boycotts of
persons and groups who did not cooperate with
him as he demanded; and that he had constantly
solicited funds on the basis of statements of
urgent need which were contrary to fact.
From these findings the Commission concluded that
Smith's character was not such as to justify it in entrusting to him the public responsibility of a broadcast licensee.
C2T21/l/JL 31 27/2/90 Bond(2) And, Your Honours, we would say as to that, that
that is, in effect, saying that although one is
looking at the company as the applicant, that one
looks at the controller in this case, his character,
and whether or not his character justified
in entrusting to him the public responsibility of
a broadcast licence. In other words, Your Honours,
a convenient way of defining licence related
conduct. Then:
For that reason,·· and because of the deceptions practiced, the Commission found itself unable to say .the public interest would be served by
granting an operating license and another
construction permit.
And then it deals with appeals, and then in paragraph 1:
The Commission's findings concerning Independent's
misrepresentations and failures to make full
disclosures, and concerning Smith's behavior,
were made in considerable detail. No purpose
would be served by reciting the evidence here.
Suffice it to say that the record fully justifies
and solidly supports the findings. The evidence left no doubt as to misrepresentation and
concealment of pertinent factual information. It contained information showing not only that Smith
had been intemperate in his writings, sermons
and broadcasts, but that he was an expert in
vituperation and vilification.
And then if I could take Your Honours down to paragraph 3,
in the right-hand colunm:
There can be no doubt that the amply supported
findings of fact warranted and justified the
Commission's decision. The Supreme Court has
held that a corporation's application for a
station license may be rejected because of deception or concealment of facts even though
the deception served no purpose and the concealed
facts were immaterial; and that the innocence
of some stockholders cannot immunize the
corporation from the consequences of deception.
[4] Having concluded from its appraisal of
Smith's character that he was unfit to assume
the responsibility of a licensee, the Commission
was not required to consider the qualifications
of Mrs Smith and Thompson, the other two
stockholders, before concluding that the corporationcould not be trusted with a license. Their
innocence of wrongdoing and their good character,
if established, would not offset the
disqualification of Independent brought about bySmith's unfitness.
C2T21/2/JL 32 27/2/90 Bond(2)
MR SHELLER (continuing): And, Your Honours, a like approach is taken in the second of the Court of Appeals
cases to which we would refer which is the
IMMACULATE CONCEPTION CHURCH OF LOS ANGELES V
FEDERAL COMMUNICATIONS COMMISSION, 320 F 2d 795.
This was a case, Your Honours, in which the
Commission had denied an application for renewal
and the first part of the judgment relates to
various procedures that took place which are
described and if I could invite Your Honours to go
to page 796, the right-hand column, the first
paragraph in that column which deals with the
Commission's findings:
The Commission, reweighing the evidence,
found that KRLA's program proposals had
not been made in good faith and that
alteration of the station's program logs
should be imputed to Donald Cooke, the
owner of KRLA. The Commission refused to
consider alleged "meritorious programming
efforts by KRLA after the Commission had
made it clear to the licensee that
renewal of its license was in doubt" as
being an unreliable measure of Elev-en Ten
as a licensee.
And, if I could then ask Your Honours to go to
page 797. at the end of the judgment, it is said that
the:
Appellants contend that the Commission erred in failing to make findings as to KRLA's public service programming and to consider the public service rendered by KRLA in
determining whether or not KRLA's licence
should be renewed. The Commission need not consider the public service rendered by a
station where the licensee is disqualified
by its attempts to deceive the Commission -
and there is a reference there to WOKO and to the INDEPENDENT BROADCASTING case.
Your Honours, what we would say that really
amounts to in terms of an analogous approach in this
Court to a different question is that of its own force, a finding as to Mr Bond's unfitness combined with his
control carries an instant demonstration of
unfitness and that really here it is not a question
of the Tribunal ignoring the unchallenged evidence
of Mr Milan and others. We would submit it made its
findings despite that evidence and in the context of
its reasons it was unnecessary to refer to it.
We would submit that that evidence simply did not and
could not offset the disqualification of the
C2T22/l/JH 33 27/2/90 Bond(2) licencees brought about by Mr Bond's unfitness.
And, may we just in that regard refer Your Honours
to what was said by Mr Justice Kitto in
ZIEMS, 97 CLR 279 at 298. and this, Your Honours
is, of course, an entirely different context but is
perhaps illustrative of the approach that one takes
in a case such as this where one has this - combination of unfitness and control. On page 298, in His Honour's judgment about half-way down,
His Honour said:
Yet it cannot be that every proof which he
may give of human frailty so disqualifies
him. The ends which he has to serve are
lofty indeed, but it is with men and not
with paragons that he is required to pursue
them. It is not difficult to see in some
forms of conduct, or in convictions of some kinds of offences, instant demonstration of
unfitness for the Bar. Conduct may show a
defect of character incompatible with
membership of a self-respecting profession.
Your Honours, we would seek to adapt that language and to say similarly one can have forms of conduct
demonstrated in this case which amount to instant
demonstration of unfitness to be a licencee and that
is really what the approach of the courts in the
United States has been to matters such as deceit.
Your Honours, we submit, therefore, that in respect
of this decision there is no error of construction
or application of the Act by the Tribunal but there is
involved an error by the Federal Court in
emphasizing, or saying, that in order for a licenceeto be declared unfit in a case where it is controlled
by an unfit individual, it is necessary and
required by the Act that other material be looked at
or, alternatively, that in this particular case the
section required that other material be looked at.
(Continued on page 35)
C2T22/2/JH 34 27/2/90 Bond(2) MR SHELLER (continuing): Your Honours, another matter which
was raised in the Federal Court decision at page 247,
relates to the undertakings and ,Your Honours, we
do not read 247 and what is said about the
undertakings at line 19 as suggesting that there
was some error of law involved in the approach.
It seems rather to be some attack upon the Tribunal
on the basis that it could have regarded the
undertakings as having some other significance thanthe Tribunal saw them as having. It records at
line 19 that:
the Tribunal decided that the undertakings
that had been proffered did not address
the fundamental issues in the findings it
made, inter alia, as to the fitness and
propriety of Mr Bond.
Now, Your Honours, with those undertakings, Your Honours
will find set out at pages 225 through to 226, in
the Federal Court's decision the Tribunal dealt
with them at pages 190 to 190b. They related to the directors of media not being persons associated
with Mr Bond, to his not using his staff in particular
ways and not interferring with programmes. Those
are the undertakings that Mr Bond was prepared to give,
apparently on a without admissions and without prejudice
basis, as found at 225, line 14. The undertaking as
to directors was taken up in the Dallhold Undertaking
which is at 226, line 9,and in the Bond Holdings Undertaking at 226, line 24, somewhat different
undertakings offered by Bond Media, which appear at
226, line 29, dealing with reporting of defamationsettlements, setting up some compliance division and
appointing a chairman of stature of the board.
Now, Your Honours, what we say about that as a
separate matter which the Federal Court referred to,
we have set out in our written submissions at 9.2,
and fundamentally what the Tribunal said is that
those undertakings did not deal with the impropriety of payment and that :tmpropriety in terms of the
proper relationship between media interests and
government and that to say that settlement of
defamation proceedings would be reported simply did
not face up to that concern that the Tribunal had.
Similarly,Your Honours, setting up a compliance
division and so far as the personal undertakings
were concerned that those did not affect the
fundamental point as to Mr Bond's position, namely
the shareholding control and the executive
chairmanship,and that furthermore none of them
dealt with what they found, namely misleading
evidence and false evidence.
C2T23/l/CM 35 27/2/90 Bond(2) Now, Your Honours, what we respectfully submit
is that when the Federal Court came to pass upon
those undertakings in the paragraph at page 247,
that runs on to page 248, it has, with respect, run outside the ambit of judicial review and is simply
expressing what might perhaps be described as an
Appeal Court view, as to how it would have regarded
the undertakings.
(Continued on page 37)
C2T23/2/CM 36 27/2/90 Bond(2)
BRENNAN J: Could I just understand what these undertakingswere intended to do? Were they intended to cover
the issue of whether or not it would be in the
public interest advisable to suspend or revoke, or
were they offered as original evidence, as it
were, on the issue of "fit and proper"?
MR SHELLER: Your Honour, as I understand it, the answer is neither, that what they were proffered as was a means
of doing away with the need for any further inquiry.
They were without prejudice and without admission and the basis of them was, as I understand it,
originally, that they would be proffered and accepted
and if accepted there was no need for the Tribunal to
go further.
BRENNAN J: What role do they play in the so-called judicial
review of the first or second decision?
MR SHELLER: Your Honour, we would respectfully submit they
should play none. They are simply undertakings that were proffered. Initially the Tribunal took
the view that it was not empowered:. to accept them,
even if it wanted to, as a matter of the legislation.
That went on review to the Federal Court and theTribunal was held to be wrong about that so that when it came to make its ultimate decision it took
them into account in the manner that is set out in
its - - -
BRENNAN J: Wrong on what basis? That the undertakings went
to the issue of fit and proper or on some other
and what basis?
MR SHELLER: As I understand it, Your Honour, wrong on the basis that the Tribunal could accept undertakings
even before it had made any finding about "fit or
proper" or anything else, to just bring the hearing
to an end. In short, it was not a precondition ofaccepting an undertaking that some finding had been
made, or could be made, under section 88.
BRENNAN J: Well, I understand that but if we are reviewing - if the Court was reviewing,in the instant case, a
decision so·called that the licensee was not a
fit and proper person, that is one condition
precedent to the existence of a power to suspend or
revoke. Now, I do not understand - and perhaps you
do not understand, I do not know - whether the
undertakings were relevant to the existence of the
condition precedent or to the exercise of the
power?
MR SHELLER: Your Honour, as I would understand it, relevant to the exercise of a power in the sense - at the first
stage of making any finding at all; perhaps
ultimately ? of making any order or imposing anycondition, but I cannot claim, Your Honour, to be
entirely sure as to that.
C2T24/l/DR 37 27/2/90 Bond(2) BRENNAN J: Is the decision reported?
MR SHELLER: The answer is, no it is not, Your Honour, but we have it and, Your Honour, I will arrange for it to
be provided. Well now, Your Honours, that then
brought the Court, at page 248, to the second question.
Just before I do that, Your Honours, I read
Your Honours the passage and I interpolated earlier
that we submit that the Court misunderstood what the
Tribunal had said about relevant individual. In
that regard, Your Honours, may I just invite
attention to our written submission, at paragraph 7.13
and the passage that is taken up at page 245 is set
out in the Tribunal's finding at page 185.
What the Tribunal was saying, as we seek to point out in paragraph 7.13 of our submission, is
that there were a number of individuals who were
associated with one or more of the subject
licensees against whom adverse findings had been
made. The Tribunal took the view that because they were no longer associated with the licensees,
other than Mr Bond, the only person left - the only
individual left - against whom adverse findings
had been made was Mr Bond.
(Continued on page 39)
C2T24/2/DR 38 27/2/90 Bond(2) MR SHELLER (continuing): It was in that way that at page 185
line 20 it said that:
Mr Bond remains, by virtue of his
association with the licensee companies, the
only relevant individual.
MASON CJ: Granted the mistake, there is not much in the point
is there, Mr Sheller?
MR SHELLER:
No, I do not think so, because, I mean, the fact of the matter is that it was Mr Bond whose unfitness
lead to the unfitness - - - MASON CJ: Yes.
MR SHELLER:
- - - but we make that point, Your Honours, and I thought I should just explain it. Now, that then
brings me back, Your Honours, to the second part
of the Federal Court's decision at page 248, and,Your Honours, it first of all, in the first paragraph, proceeds on the assumption - or on the footing - that
Mr Bond was a "relevant person", and then it raisedthe question at line 21: whether the Tribunal erred in law in its
finding that Mr Bond would not be found
to be a fit and proper person to hold a
broadcasting licence.
Then, Their Honours said:
That finding on its face postulates an
impossibility, namely that in some other
circumstances Mr Bond could be found to be a
fit and proper person to hold a broadcasting
licence.
And then they say:
not one the Act authorised the Tribunal Therefore, in a sense, this finding was to make.
And refer to paragraph S(l)(d) of the Act, but then
they say:
this finding also is flawed in other respects.
And we do not understand in the ultimate reasons that
much turns on what the court there said. We would repeat what we said earlier, that the use of that
expression is, no doubt, intended to ensure that the
finding made is a broadcast related finding. They then come to deal, under this question of whether the
decision about Mr Bond was vitiated, with each of the
C2T25/l/FK 39 27/2/90 Bond(2)
five findings. And the first of those is set out at line 18, on page 249, and, of that, they
say:
There is a fundamental difficulty in this
conclusion of the Tribunal. The Tribunal sought to determine the nature of the
transaction involved in the settlement of the
defamation claim of the Premier without inquiring
into the purpose of motives of the Premier in
reaching the settlement.
Now, Your Honours, it is, we would submit, important
to bear in mind, when looking at this, the nature of
that finding. It related to the belief of Mr Bond, or the non-belief of Mr Bond: firstly,that Mr Bond
did not believe that the sum was justified; that is
to say the sum of $400,000 was justified by that claim,
the defamation claim alone; secondly, that Mr Bond
did believe that if he did not settle at that figurethe Premier might harm his interests in the State of
Queens land.
Now, on the third line down, the court said that:
The Tribunal held that the Premier was not
"amenable" to its jurisdiction and therefore
precluded itself from making findings as to
what the Premier did or said.
Now, Your Honours, "amenable" is a word that is used
during the course of the transcript discussion between
counsel and the Tribunal, and we will come to that, but
it is certainly not a word that appears in the decision
of the Tribunal, and, indeed, there is nothing to be
found in any of the decisions of the Tribunal, if they
be decisions, or the findings, that relates to jurisdiction
in that form. Having said that, the Full Court then said, at line 6:
(Continued on page 41)
C2T25/2/FK 40 27/2/90 Bond(2) MR SHELLER (continuing):
There is an error of law involved in
this dichotomy which in our opinion
necessarily vitiates the seventh
"decision" of the Tribunal-
the seventh decision is the one that 1s set out
on the previous page -
It was impossible both in logic and
common sense for the Tribunal to determine
the nature of the transaction involved
in the settlement of the defamation
claim without making findings as to what
was said and done by each person involved
in the settlement negotiations on both
sides of the record. By taking the course which it did, the Tribunal necessarily
prevented itself from making any finding
to the effect that the sum of $400,000
was extorted or solicited by the Premier.
Then having referred to the finding it said at line 21:
Once the role of the Premier is removed from the consideration of the defamation
settlement, there is left an analysis
unilaterally of the motivation of Mr Bond
for the settlement, which was an
impermissible course for the Tribunal
to have taken.
The court then notes that the Tribunal did not, in
its reasons, expressly state that it proposed to approach
the problem in the way just mentioned, but deduced it
from four matters:
first, the content of the discussions about
the point recorded in the transcript,
between Mr Bond and the Premier concerning secondly, the odd lack of specificity in the findings of the nature of the contacts the payment, thirdly, the absence of any finding on the important question whether
in fact, as some of the evidence suggested,the payment constituted a reasonable sum to buy off the suit, and, finally, the
complete absence of any reference to the
very suggestion which revived the Tribunal'sinterest in the matter, namely that the
Premier was alleged to have himself linkedthe settlement to the prospect of Mr Bond
doing business successfully in Queensland.
Firstly, one has to recognize, we would submit, that
the Tribunal made a whole series of findings about
C2T26/l/HS 41 27/2/90 Bond(2)
the Premier and, Your Honours, those are found
and they are in the parts of the Tribunal's reasoningwhich I have already read to Your Honours, but they are found at pages 106 lines 18 and 24, to page 107
line 2 and page 107 lines 9 to 14. There is the passage
which I read to Your Honours at page 109 line 8
where the Tribunal relied on evidence given by thePremier, there is more material at page 109 line 16
to 22, at page 112 line 10, page 113 line 23, page 113
line 30, page 114 line 3 to page 116 where correspondence
is set out and page 117 lines 10 to 13 there is
material which relates to the Premier's state of
mind.
There is no doubt, Your Honours, that no finding
was made of any impropriety or misconduct by the
Premier and, indeed, any such was denied by the
Premier and no one suggested that such a finding
was open on the evidence. What we would submit, and we deal with this in our submissions at 8.7.4.1.2
that the Tribunal was not concerned with attachingcriminal labels but was concerned with the belief of
Mr Bond and that that is what its reasoning was
directed to and quite properly directed to.
Now, Your Honours, we would respectfully
submit that there is nothing in the findings of the
Tribunal which involves some blinkering in any relevant sense which vitiates a finding as to
Mr Bond's belief. Furthermore, Your Honours, we
would respectfully submit, as we do in our written material, that - and this, Your Honours, is all in
8.7 - that if one looks at the matters set out in
page 251 of the Federal Courts decision they simply
do not support the deduction.
(Continued on page 43)
C2T26/2/HS 42 27/2/90 Bond(2) MR SHELLER (continuing): As I indicated to Your Honours the
high point seems to be the reference to amenable
to jurisdiction and, Your Honours, that is referred
to in the transcript at page 152 of the appeal bookand Your Honours will see that a discussion was
taking place which related to counsel seeking some particularity as to what was alleged, or was open,
about the Premier. But however they may be,
Your Honours, the discussion that took place was no more nor less than a discussion which related to submissions that were put and in so far as one
can derive out of them any view, tentative views
expressed. At the top of page 152 the chairman is
recorded as saying:
There would be no circumstances in which the
tribunal would consider it had any basis for
making findings against people who are not
amenable to any - at a personal level against
people who are not amenable to our jurisdiction.
And then some further follows, at about line 10:
as Mr Burbidge said, but I am not sure I follow
that one cannot examine perhaps the actions of
those and then Mr Bond who deal with other
parties in the course of their media business.
And then it was put by counsel that that:
precluded from investigating whether, in fact,
conversations took place between Mr Bond and
Sir Joh.
And a bit further down the page, in answer to those
submissions or in the course - the following upon them, the
chairman said:
I do not think it is a case of us not being
able to look at the evidence of Sir John. It is a question of making finding - it is the next step. One can look at the circumstances surrounding it, but the focus of the
tribunal's findings and as it moves to it is
in relation to the parties - I am sorry, those
who are amenable to its jurisdiction. I think
that is the inference of the submission.
C2T27/l/JL 43 27/2/90 Bond(2)
MR SHELLER (continuing): Now that is dealing with a submission that had apparently been put by the counsel assisting
and the critical thing, we would respectfully submit,
is that it is not a question of not looking at
evidence, it is a question of focusing on the
person associated with the licensee as Mr Bond. Then that is continued at the top of page 153:
Not that we cannot take into account facts, but
not move to conclusions about them as to what
that means. We can find that it happened, but that - not move to say, well, that leads to that
inference or action or some conclusion againstthe other party.
And then a bit further:
That is as I understand counsel assisting's
submission and I again remind you that that is a submission that has been made to us,
Mr Shand.
And then· Mr Shand said:
Oh, I understand that.
And then, Your Honours, at page 156 in this submission
or: discussion is continuing. Perhaps I ought to just give Your Honours in reference,at page 155 to
what was said by other member of the Tribunal,
Mr Wilson, at line 22 and following. But then, Your Honours, at page 156, line 35, the chairman
said:
I do not see the leap that you make, Mr Shand,
that because counsel assisting has not put
something else that you would not, of necessity,
that is where we have gone wrong, put a full
account of how we should look at all the evidence we have about the transaction and its nature -
the interpreation - we should put on all of the
evidence about that that we have heard in respect
of coming to a conclusion positive or negative
against your client.
I mean, for us - you are assisting us in the sense
that you are putting to us, through submission, what
we should make of the material we have heard.
And then, Your Honours, at page 159, line 4, again
the chairman:
The nature of the transaction, in other words the dealings that Mr Bond was having is clearly the subject of the inquiry. It is just - well, we have said it again and again, that while we
C2T28/1/LW 44 27/2/90 Bond(2) can accept the facts of what went on, moving
from there to an adverse finding against
Sir Joh Bjelke-Petersen is what counsel
assisting is submitting we cannot do - cannot,
not should not, or otherwise, I mean, it is not -it is not a question - we are not at lar~e as
a corruption commission or anything of that
sort, we are dealing with the question of your
client's interests, not the Queensland
Government as it then was.
(Continued on page 46)
C2T28/2/LW 45 27/2/90 Bond(2) MR SHELLER (continuing): Then, Your Honours, at the bottom
of page 160, line 44, the chairman said:
I think we are speaking at cross-purposes,
Mr Shand. We are not suggesting that we
cannot establish facts, but we would not
move from the facts as we believe them to
a conclusion about them as to whether the
purpose was corrupt or otherwise. I mean, you could take it in respect of other
witnesses, and not only Sir Joh; we have
got a number of them. Mr Hall would fit into the same category. We will not be judging should we - the conclusion one would go
after finding that, in fact, words were said,
whatever words we find were said.
And then a hypothesis was advanced by counsel:
Mr Chairman, that would mean - just let me
hypothesize for a moment - it there were some
evidence, whether it be by way of admission
by Mr Bond to Jana Wendt, or any other way,
not coming out of Sir Joh's mouth, or even
perhaps coming out of Sir Joh's mouth - I
said to Mr Bond, "Look, I am a bit short of
ready cash at the moment. I know that defamation claim is not worth more than $50,000, but I
really do need the extra money, so it is going
to cost you 300,000 and I require you to pay
me that or you are not going to do much good
in Queensland in future." That would mean there
could not be a finding on whether Sir Joh
said that to Mr Bond.
The Chairman: Yes, there could.
And then the chairman:
We would not go to the next step and
say the conclusions that we draw or any action that we take would be related to the response of the person to whom it was said, presuming,
as you say, it was said to Mr Bond - at the next step.
And then a little bit further down, at line 34:
the adversity part only relates to the
situation. Just to hypothesize in respect of
a non-Sir Joh issue, if in the case of the
Leigh Hall affair, we preferred the evidence of
Mr Bond as opposed to Mr Hall, we would not
find that Mr Hall had perjured himself.
C2T29/l/CM 46 27/2/90 Bond(2) To which counsel said:
Oh, I can understand that, with all respect, -
and so. Now, Your Honours, that material is part of the basis from which the Federal Court
apparently, and it is not spelled out beyond a
reference to the interchange generally, from
which the Federal Court deduced that the Tribunal
had held that it could make no inquiry into the motives of the Premier or into what the
Premier did or said.
(Continued on page 48 )
C2T29/2/CM 27/2/90 Bond(2) MR SHELLER (continuing): We submit that what the Tribunal was concerned about was labelling of Sir Joh's
conduct, that being something that was not
reasonably incidental to its function and,
Your Honours, we reiterate as part of this
argument that, of course, all this proceeds on
the basis that the Tribunal had acted in the way it
did in the face of some evidence that the Premierhad acted improperly or, alternatively, or perhaps
in addition, ·some submission that it should so find.
But, even let it be supposed that there was something
open to be said about the Premier's conduct in a
labelling sense then, we would submit, that such a
finding was not reasonably incidental to what the
Tribunal was undertaking. And that expression,
Your Honours, we draw from what was said by the
New Zealand Court of Appeal in the EREBUS d~cision,
(1981) 1 NZLR 618.
Your Honours, the two particular passages to
which we would invite attention are taken one from each of the two joint judgments. The first of two
members of the court at page 628.. Your Honours will recall that the findings of the Royal Commissioner
involved findings of misconduct against a number of
airline officials and the question was whether those
findings were findings that it was open to theCommissioner to make.
(Continued on page 49)
C2T30/l/JH 48 27/2/90 Bond( 2)
MR SHELLER (continuing): The particular passage, at page 628, is found at line 45, where Their Honours said:
A suggestion of an organised conspiracy to
perjure is difference from the possibility
commonly faced by individual witnesses that
their evidence may be disbelieved. Grave with the inquiry ought not to be made without
being specifically raised at the inquiry.findings of concerted misconduct in connection emerged in the Commissioner's thinking as
something upon which he might report, he
would have had power, if that question wereindeed reasonably incidental to his terms of
reference, to reconvene the hearing if
necessary so that the alleged conspiratorscould be fairly confronted with the allegation.
To similar effect, Your Honours, at page 666,
in the judgment of the three other members of the
Court, at the top of the page:Naturally the stance of the airline at the inquiry directed by the terms of reference was not included expressly in those terms. The argument presented in effect for the
Commissioner on the question of jurisdiction is that comments, however severe, on the
veracity and motives of witnesses were
incidental to the carrying out of the
express terms. We accept unhesitatingly that what is reasonably incidental is authorised and
also that to some degree any Commission of
Inquiry has the right to express its opinion
of the witnesses, much as a Court or statutory
tribunal has that right.
But we think that it is a matter of degree.
For present purposes it is not necessary to
decide whether the law of New Zealand is
still, as held in COCK'S case, that a Commission of Inquiry cannot lawfully be constituted to inquire into allegations of crime. That issue may be raised more directly by the litigation regarding the Thomas Commission. The issue now to be decided is whether the Commissioner had
powers, implied as being reasonably incidentalto his legitimate functions of inquiry into
the causes and circumstances of the crash, tomake assertions amounting to charges of conspiracy to perjure at the inquiry itself.
C2T31/l/DR 49 27/2/90 Bond(2) MR SHELLER (continuing):
In considering that issue the importance of
not unreasonably shackling a Commission ofInquiry has to be weighed. It is also material,
however, that such a charge is calculated to
attract the widest publicity, both national
and international. It is scarcely distinguishable
in the public mind from condemnation by a Court
of law.
Now, Your Honours, what we would respectfully submit
is that what the Tribunal was concerned about was
fixing labels which,we would respectfully submit, were
not reasonably incidental to the nature of the inquiry
that it was undertaking and, indeed, the nature of
a matter that it was focused upon, namely, the belief
of Mr Bond.
Your Honours, the point is made when the
EREBUS matter went to the Privy Council,
(1984) 1 AC, and the particular reference is
at page 839. The Privy Council regarded the question as to whether or not findings as to - I am sorrY, the
report begins _ at page 808 and the passage is at 839 - that the question whether an inquiry is concerned to
make findings as to perjury, resulting out of evidence
given before it, is a grey area. But the point that
is made, Your Honours, is that what may be involved
in such a finding or, indeed, what is involved
is, as is pointed out at about just tm.der line C, a finding is IM.de or:
reached without the safeguards of trial by jury,
or the benefit of the onus of proof applied in
criminal prosecutions.
And that,we would respectfully submi~ is a matter which quite appropriately is taken into account when
considering, as the Tribunal did and as emerges
from the transcript, the approach that it should take to the Premier of Queensland. As I say, Your Honours, fundamentally, of course, there was no submission made that such a finding against the
Premier should be made by the Tribunal
(Continued on page 51)
C2T32/l/JL 50 27/2/90 Bond(2)
MR SHELLER (continuing): Your Honours, that or a not dissimilar matter was considered, Your Honours, and we will
provide copies to Your Honours of this judgment bythe Court of Appeal in New South Wales, in the case
of BALOG V THE INDEPENDENT COMMISSION AGAINST
CORRUPTION, a case in which Your Honours have given
special leave to appeal, and the question of applying
labels is dealt with by Mr Justice Samuels at
page 8 in his judgment and may we supply Your Honours
with copies of that judgment.
Now, Your Honours, that was the first basis upon
which the Federal Court deduced that the Tribunal
had so held. The second was described as the odd
lack of specificity, and we deal with that, Your Honours,
in paragraph 8.7.4.2 of our written submission, and
Your Honours, we point out the court does not
particularize that lack of specificity, but we point
out the series of findings to which we have referred,following from page 106 in the Tribunal's reasons.
Then, Your Honours, the third matter is
what is said to be, the failure to take account of
whether or not the amount of the payment constituted
a reasonable sum to buy offthe suit and we would
respectfully submit, as we submit in 8.7.4.3, that
that indeed was dealt with by the Tribunal at page 117,
line 26, and at page 124, line 16. In the first of
those two, we would respectfully submit, it is a clear
enOl!E-11 finding that the Tribunal considered the amount
of $400,000 unjustifiably high. And then, Your Honours,
the fourth matter is said to be the complete absenceof any reference to the very suggestion which revived
the Tribunal's interest in the matter, namely that the
Premier was alleged to have himself linked the
settlement to the prospect of Mr Bond doing business
successfully in Queensland.
(Continued on page 52)
C2T33/l/FK 51 27/2/90 Bond(2)
MR SHELLER (continuing): Your Honours, as I have already indicated, the evidence of the Premier was that
no importuning had taken place. The evidence that gave rise to the matter is the evidence of what
was said in the course of the interview with
Jana Wendt and that is set out in the appeal book
at page 127 in part of the Tribunal's finding of
April 1989 and it finds its place under the
heading of:
The meaning to be attributed to Mr Bond's statement to Ms Jana Wendt on 21 January 1988.
The terms of the interview are set out and Mr Bond's
statement in answer to the question of whether he
was trying to exert influence.
Bond 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 insurance
premiums 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.
Wendt He pointed that out to you? Bond Oh yes l Wendt And you took him seriously and paid out $400,000.
Bond 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 thought
that commercially was the best answer.
(Continued on page 53)
C2T34/1/JH 52 27/2/90 Bond(2) MR SHELLER (continuing): And then the Tribunal said:
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.
And then on page 128 there is reference to Mr Bond's
explanation of the stated words and at line 13
the Tribunal said:We have considered all the evidence regarding this explanation and find none of it credible.
We consider that the plain meaning of the words
used can be relied on with certainty. The
words used allow only one interpretation andthat is, Mr Bond intended to convey the meaning
that he had been placed in a position of
connnercial blackmail by Sir Joh Bjelke-Petersen.
Your Honours, again we would respectfully submit
that that comes back to what the ultimate finding
was, this finding one, that what the Tribunal was
concerned with in the finding it made was this
non-belief as to the justifiability of the amount and
belief that if that amount were not paid the interests
in Queensland would be harmed.
Your Honours, I do not know if that is a convenient
time?
MASON CJ: Yes, it is, Mr Sheller. The Court will adjourn
until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
C2T35/l/LW 53 27/2/90 Bond(2) UPON RESUMING AT 2.19. PM: MASON CJ: Yes, Mr Sheller.
MR SHELLER: Your Honours, may I hand up a copy of the deed of release and copies of that between
Sir Joh Bj~lke -Petersen and Queensland Television
Limited, which I said I would supply before the
adjournment and also,Your Honours, copies of the
decision of Mr Justice Pincus of 31 May 1989,
relating to the undertakings. I should correct what I said to Your Honours too about the payment.
I said that the payment had been made by Bond
Corporation Holdings Limited. In fact, the payment
was made by Bond Corporation Pty Limited, the
wholly owned subsidiary of the Holdings company. Your Honours, in terms of the written submission,
I come to the paragraph which is 8.7.4.5, on page 24 and the submission that we there make that the
conclusion that the Tribunal held that it lacked
power to make findings about Sir Joh Bjelke -Petersen,could not be drawn and the point is made,and I
indicated by these references and others a large
number of findings that were made about the Premier -
about his acts and statements and so on - and wewould respectfully submit that, apart from anything else,
the existence of those findings, do give some indication
that the Tribunal did not regard itself as subject to
the restriction under which the Federal Court concluded
it had acted. Then in the next paragraph we deal with what the court said, namely that the:
(purported) legal error was -
said to be -
prejudicial to Mr Bond because the Tribunal
"necessarily prevented itself from making any finding that the sum of $400,000 was
extorted or solicited by the Premier" -
(Continued on page 55)
C2T36/l/CM 54 27 /2/90 Bond(2) MR SHELLER (continuing): A quotation that we make there that
if, for example, the Tribunal gained the impression
from the evidence that there was any degree of
extortion or coercion involved then that might well
have gone to lessen the culpability attached to
Mr Bond and we repeat the submissions that we made
prior to the luncheon adjournment that there was
never any suggestion made by anybody that such a
finding should, in fact, be made.
We then come back to deal with what was said
by the Federal Court at page 250 in the appeal book
and, in particular, that passage that commences at
line 21 where it is said that:
Once the role of the Premier is removed from
the consideration of the defamation settlement,
there is left an analysis unilaterally of the
motivation of Mr Bond for the settlement, which
was an impermissible course for the Tribunal
to have taken.
Your Honours, it may be that that could be read
as some holding of the Federal Court that it was
not open in law to the Tribunal to find
impropriety in Mr Bond in relation to the
agreement without also finding impropriety in
Sir Joh and we submit that if that were so it
would obviously be wrong and we have given there
a reference to a passage in Halsbury in a
decision of the Court of Criminal Appeal in
England.May we just add to that, as part of the
discussion on this topic, a reference to Lanham
on Criminal Fraud which is a book published in 1987,
chapter 7, which deals with bribery and secret
commissions and, particularly, at page 209, where
the authors deal with'The Problem of Mutuality"
and simply to make the point there that if it were
some question here of it not being possible to
make findings about Mr Bond without also making findings about Sir Joh as a matter of law, that the authors say there, and make reference to a South African case, that in both "offering and solicitation" in tenns of bribery, whether that be
regarded as bribery or an attempt at bribery, the ultimate finding of bribery or attempted bribery: do not depend on any act or state of mind
on the part -
in the case of a bribe being offered, the state of
mind -
of the offeree or person solicited.
C2T37/l/DR 55 27/2/90 Bond(2)
MR SHELLER (continued): We would respectfully submit that what is said there, and what is said in the English
case and particularly the connnentary thereto, makes
it abundantly plain that it was prefectly open, if
the Tribunal has seen fit to do so, to make findings
amounting to bribery or an attempt at bribery, without
making any findings in respect of the motivation ormind or intention of the offeree.
DEANE J: But in the circumstances of this case you would need
to make a finding of Mr Bond's belief - - -MR SHELLER: Yes. DEANE J: - - - as to Sir Joh's belief. In other words, if Sir Joh genuinely believed that all he was getting was the proper amount of settlement, :that would be one thing if Sir Joh was, in fact, or if Mr Bond believed that Sir Joh was extorting more than he thought he was
entitled to. Now, they did not make that finding, did they?
MR SHELLER: No. That is so, Your Honour, but what we would respectfully submit - that, in fact, if bribery and
extortion were a factor, then the factor would be
Mr Bond's belief as to whether or not there was extortion
or attempted extortion or solicitation by the Premier.
DEANE J: Which means this suggested error of law would not
have excluded them from making that finding if they
thought it appropriate?
MR SHELLER: No, precisely. DEANE J: Yes, I follow that.
MR SHELLER: Well now, Your Honours, that reference and the
reference to what is said in Lanham, we put forward
as a matter of the legal situation in terms of mutuality.
And then, Your Honours, we make the point concerning
the belief by Mr Bond in 8.7.7 and then in 8.7.8 we say that, in any event,the Tribunal was not acting as a
royal connnission or criminal court considering the
sentence of.a person convicted.
(Continued on page 57)
C2T38/l/FK 56 27/2/90 Bond(2) MR SHELLER (continuing): This concerns Mr Bond's conduct only
in so far as any impropriety in that conduct could
have implications for the continuing fitness of the
broadcasters with which Mr Bond was associated, a
matter which is emphasized by the Tribunal's
explication of the respects in which it found
Mr Bond's conduct had been improper. And,
Your Honours, there is one particular matter in
that regard, and that is, again, on page 250 and
taken up from time to time is this reference to thephrase "nature of the transaction involved in the
settlement". One finds that at line 10 at page 250. But, Your Honours, it is, we would submit, important
to bear in mind what was the issue as to which this
investigation was being conducted and that appears
| • | at page 89 in the rlotice of new issues, at line 21, |
and is taken up again, in the same language at
page 104 in the decision, in fact, of 7 April 1989,
and whatwa.s.made plain. by the repetition of that, on
page 104, is that when it spoke in terms of i.ssue one
of the nature of the transaction, that seems to have
been treated as a shorthand for the issue as set out
in the notice of LSsues, and as set out at the
beginning of this April decision itself, that is tosay,at page 104: 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
implication 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 companiesassociated with him are fit and proper persons
to hold the above licences.
(Continued on page 58)
C2T39/l/JL 57 27/2/90 Bond(2)
MR SHELLER (continuing): So that, Your Honours, to confine it to something that was concerned simply with the nature of the transaction, with all respect, is to
misunderstand the nature of the inquiry under this
issue that the Tribunal was engaged in and that
inquiry led to the findings about Mr Bond's belief
and non-belief.
Your Honours, if I could then pass over to
what has been described as the 50/350 split, that is
to say the finding too about the attempt to disguise,which we deal with in 8.8 of our written
submissions, and so far as the court was concerned,
at page 253 of the appeal book, it has said that:
This finding is necessarily dependent upon
the first finding -
this is at the top of page 253:
The impropriety of any attempt to disguise
the true amount agreed to be paid by
Mr Bond must depend on the impropriety
of the transaction which underlies it. In other words any impropriety in relation to the disguising of the true amount agreed
to be paid can only be improper if in fact
the agreement to make the payment of
$400,000 was itself improper.
Now, Your Honours, that, we as it were in this part
of our submission, repeat what we have said about
the first finding made by the Tribunal in relation
to Mr Bond's belief but we continue in 8.8.3.2 on
page 30 to say even assuming Mr Bond's conduct in
agreeing with Sir Joh to pay $400,000 was not
improper, the Tribunal's finding on the 50/350 split
is not dependent, as a matter of logic, upon theantecedent finding as to the defamation settlement.
(Cotninued on page 59)
C2T40/l/JH 58 27/2/90 Bond( 2)
MR SHELLER (continuing): It was open to the Tribunal to find
in the circumstances of the matter that an attempt
to create a false trail, even in relation to a
proper transaction, could itself amount to animpropriety.
Your Honours, in that respect and indeed in respect
of the findings as to misleading and false evidence
which are dealt with by the court in the same vein
on page 253 and 254, they are not, we would respectfully
submit, dependent. They are examples of the licensee or its officers deliberately presenting
false or misleading evidence in the manner that was
described by the Tribunal in the passages that I
read to Your Honours this morning.
DEANE J: But, Mr Sheller, if there was no impropriety from
Mr Bond's point of view in the payment, it cannot be assumed that the Tribunal would have found that the 50/350 split was a device to impronerly
conceal impropriety. I mean it may have.
MR SHELLER: Yes. DEANE J: But that second finding could not possibly sustain the quashing of the first finding. MR SHELLER: Your Honour means survive the - - - DEANE J: Survive it, sor,ry, yes.
MR SHELLER: Survive it, yes.
DEANE J: I mean if the first finding stands, the Federal Court's
point disappears. If the first finding goes, surelyyour point is without substance? MR SHELLER: Your Honour, we would submit - and we have said it in our submissions and I would not want to withdraw
from it - that as in those American cases one finds a finding as to disguising and misleading evidence. (Continued on page 60)
C2T41/l/LW 59 27/2/90 Bond(2)
MR SHELLER (continuing): I accept the force of what Your Honour says, that inevitably bound up in that to some
extent, perhaps to a great extent, is the underlying
finding of impropriety.
Your Honours, we then come to a matter which I
dealt with this morning in a way which, on reflection,
is not accurate, and that deals with the finding
about the fitness and propriety of Mr Bond and
whether or not that was indeed a decision withinthe meaning of the JUDICIAL REVIEW ACT and, in
particular, a decision made under an enactment and,
Your Honours, there are two matters in the Federal
Court judgment which reflect upon this and the first
of them is dealt with in the paragraphs that starts at
9.1.2 where it is said that the Federal Court held that
the Tribunal erred in law in what it said. The court said at appeal book page 248: That finding on its face postulates
an impossibility, namely that in some
other circumstances Mr Bond could be
found to be a fit and proper person
to hold a broadcasting licence under
the Act. Therefore, in a sense, thisfinding was not one the Act authorised
the Tribunal to make. Paragraph 5(l)(d) of the ADJR Act provides for a review of
a decision not authorised by the enactment
in pursuance of which it was purported
to be made.
Your Honours, that was a passage that I referred to
this morning and which I passed over, but the point
is then made that the Tribunal was not purporting to
make a finding required or authorized by a statute.
It was merely expressing a finding which assisted it
in reaching a finding authorized by the statute,
namely that the subject licensees lacked relevant
fitness. It was therefore not a decision made or
purporting to be made under an enactment and the
court went on, as it were, to deal with that problem in reasoning that leads up to what was said on
page 257 of the appeal book in which, amongst other
things, reference is made to the decision of the
Full Federal Court in LAMB V MOSS.
(Continued on page 61)
C2T42/l/HS 60 27/2/90 Bond(2) MR SHELLER (continuing): At page 257 at about line 18,
the court said:
the Tribunal treated the issue as to whether
Mr Bond "would be" a fit and proper licensee
as being one the resolution of which directly
produced its ultimate conclusion, as to the
fitness and propriety of the licensees.
Where the interim finding has such a status,
it appears to us that LAMB V MOSS requires us
to treat it as a "decision" within the
meaning of s.5 ..... whatever may be the position
as to "findings" or expressions of views on
lesser points. We therefore have come to the view that we have power to, and should,
set aside the Tribunal's decision concerning
Mr Bond.
Now Your Honours, we would respectfully submit that
that really, as a matter of reasoning, does not work,
in this sense, that if one accepts that the ultimate
decision for present purposes is the decision that
the licencees were not fit and proper, then all that
one has here is a finding or one of a number of
findings of fact, of which this is one presumably, that
ultimately leads to that conclusion and that the
power under the Act to review decisions made under
enactments, could not enable the Court to review
a finding of fact arrived at in the course of an
ultimate decision. LAMB V MOSS is, of course, a special case because it deals with a situation in committal
proceedings and it deals with an interim decision in
a committal proceeding, but Your Honours, whether
the view expressed in LAMB V MOSS is right or wrong,
it could not possibly extend, we submit, to a situation
where one has, what is accepted for present purposes
as an ultimate decision, and this is merely one of a
series of findings in arriving at that decision.
(Continued on page 62)
C2T43/l/CM 61 27/2/90 Bond(2) BRENNAN J: Where does that leave you in relation to what I
understood to be your concession this morning?
MR SHELLER: Well, Your Honour, it leaves me in this
situation, that what I said was inaccurate, or wrong.
There is certainly a concession and, as I understand
it, always has been that the decision in relation to
the fitness of the licensees was a decision that fell within section 5, but argument was raised as
to its being a premature application, and we do not
seek to pursue that, but that it has never been
conceded until I said so this morning, that there
was a decision in relation to the fitness and
propriety of Mr Bond, which was open to review under
the Act.
Now, there are - two ways in which the Federal
Court has mentioned it. Firstly, the reference to
it being impossible to make this decision under the BROADCASTING ACT; secondly to it being treated
as some sort of finding having a special status.
Now we would respectfully submit that neither of
those matters leads to the conclusion that the
Court as a court of review could intervene to avoid that finding. In other words, it is not a decision.
So that is how we put the position.
Your Honours, that then leaves me only,
Your Honours, to tender or hand up the copies of
the BALOG decision, which I mentioned this morning,
and may I hand those up. Your Honours will recall that I referred LO a passage in the judgment
of Mr Justice Samuels at page 8 of that judgment.
Your Honours, it is for those reasons that we submit
that the orders and judgment should be set aside and
the applications that were made to the Federal Court
should be dismissed. If Your Honours please.
MASON CJ: Thank you, Mr Sheller. Yes, Mr Gyles.
MR GYLES: If Your Honours please, it may be convenient to just mention at the outset, that the last point my learned
friend made, that is the withdrawal of the concession
he made this morning, is not a point which was put to
the Court on a special leave application. I do not believe there is any ground of appeal going to it and
we would respectfully submit that it is not appropriate
to raise that point now, but may I return to it when I
come to that in the sequence of argument.
Your Honours will recall that on the special
leave application there was express qualification
incorporated in the order of the Court whichenvisaged the revocation or qualification of leave
and in our written submissions - - -
C2T44/l/FK 62 27/2/90 Bond(2) MASON CJ: I do not think it actually envisaged that. It envisaged that as a possibility.
MR GYLES: Yes, as a possibility, Your Honour, of course. We have, in our written submissions, dealt with that
topic and, of course, having now heard the arguments
of my learned friend, I am in a position to carry that further if Your Honours wish to hear us on that point.
It is very much a matter, of course, for the Court.
MASON CJ: It is a matter for you, Mr Gyles.
MR GYLES: Yes. Well, Your Honour, we do wish to put the submission that the grant of leave should be revoked. I think that, as far as the bases of it is concerned,
they appear in the first portion of our submissions.
(Continued on page 64)
C2T44/2/FK 63 27/2/90 BOND(2) MR GYLES (continuing): Your Honours, nothing which has
fallen from my learned friend throws up any
point which was not taken into account when
we prepared those submissions and, indeed,the way he has put his case today, I respectfully
submit, makes it plain there is no special leave
point in the case. I take the points one by one and, of course, at this stage I do not develop our full
argument upon them. The first point, Your Honours,
upon which special leave was sought was on the
construction of section 88 of the BROADCASTING ACT,
and whether it permitted the lifting of the
corporate veil in the manner followed by the ABT -
that is reading verbatim from the submission on theleave application.
Now, Your Honours will have noted that most of the
time my learned friend spent on this point, was spent
in endeavouring to persuade Your Honours that, indeed,
the Tribunal had not, in fact, precluded itself fromconsidering the factors under section 88B that there
had been a misunderstanding by the Federal Court of what
it, the Tribunal, had said and done and Your Honours
might think that that was the thrust, really, of my learned friend's submission on this point. He did
repeat, I think, the submission that there was an
automatic unfitness in the corporation provided that
what he called the "controller", was unfit. But that
formed a very small part of his submissions as they
were put to the court.
Your Honours, I will of course deal with the
section 88 submission shortly but I respectfully
submit that if the Federal Court correctly understood
the Tribunal, or alternatively, if Your Honours are
considering my learned friend's bare submission
that there is an automatic unfitness, that that will
be seen to be a point of no merit which the Federal
Court have disposed of on perfectly ordinary grounds.
It is, after all, a matter of construing the words
of the statute. There is no particular difficulty in construing the word "unfitness" in that context.
The question which arises, or the matter for debate,
is whether, where you have a person with indirect
ultimate shareholding control - that is composition
of the board of directors - the unfitness of that
person automatically translates itself into unfitness
of the licensee corporation regardless of all of the other factors in the case. That was undoubtedly put to the Tribunal, it was undoubtedly put to the Federal
Court by the Tribunal and we submit that the Federal
Court had dealt with that in a way which is not subject
to error. But, in any event, it is a perfectly ordinary
question of statutory construction, in the light of
the particular facts of the case and would not haveafforded a grant of special leave.
C2T45/l/JL 64 27/2/90 Bond(2) The second basis upon which special leave
was sought, Your Honours will find at the foot of
page 2 of our submissions, paragraph 5.
The requirements of natural justice in a case where an Administrative Tribunal has a duty
to investigate a transaction involving a party
who is and a party who is not subject to its
jurisdiction.
Your Honours, with very great respect to my learned
friends, that argument has not been advanced before
Your Honours; there is no issue as to what the
requirements of "natural justice" are. In their
written submissions there is a reference to RE EREBUS,
and my learned friend has referred to RE EREBUS this
morning.
The case of RE EREBUS was submitted by us to the Federal Court on two bases, first as justifying the
order discharging the finding about Mr Bond; and
secondly, because it shows,if there be any necessity
to show it, that where a tribunal has a statutory
task before it, it may make all findings necessary to
performing that task even if they involve making
findings about a third party. That is what RE EREBUS stands for.
(Continued on page 66)
C2T45/2/JL 65 27/2/90 Bond(2) MR GYLES (continuing): Your Honours, the natural justice
submission has not been pursued because it never
arose. Sir Joh Bjelke-Petersen did give evidence and he was represented at the hearing. If it had
been feared that natural justice would not have
been accorded to him unless he were given notice of the argument, then that could have been done.
There was no inhibition in doing it.
BRENNAN J: Natural justice affects the exercise of a power,
does it not?
MR GYLES: Yes, Your Honour. BRENNAN J: Well, what is the power that would have been
exercised with respect to Sir Joh Bjelke-Petersen?
MR GYLES: Your Honour, there was no power exercised with respect to Sir Joh at all. The only findings which
the Tribunal can properly make are those which are
within its own jurisdiction, as it were, but in theexercise of that jurisdiction it may be necessary,
as we say it is in this case, to make findings of
fact, for example about what was said between
Mr Bond and Mr Hall from the AMP; what was said
between Sir Joh Bjelke-Petersen and Mr Bond, and
the like. The fact that Sir Joh Bjelke-Petersen
is not amenable to the jurisdiction of the
licensing authority in the narrow sense, does notmean that they cannot, in the course of exercising
their licensing function, find what was said and
done by Sir Joh and, if necessary, what his motives
were. We do not suggest for a moment - - -
BRENNAN J: Were they the words, "if necessary" and is not
that the whole point of the game?
MR GYLES: Yes, Your Honour, but the issue which they tendered for themselves necessarily involved
findings about what happened between Mr Bond and
Sir Joh. Your Honour, all I am saying at the moment is that the case was put for special leave
on the basis that it raised an issue of general
importance on natural justice. Now, I submit
that was not correct or it proved not to be correct.
There may be arguments, Your Honour, which, if
leave is not revoked, we will come to as to precisely
how it works itself out in a case like this but, I
submit, there is no general principle.
The third matter upon which reliance was
placed on the special leave application appears at
paragraph 6 of our written submission, page 4: "Whether it is legally permissible for a Courtor Tribunal to make findings about one party's
involvement in such a transaction without
necessarily making or being able to make
findings about the other party."
C2T46/l/DR 66 27/2/90 Bond(2) Now, Your Honours, that question, in our
The question which did arise was a decision by the Tribunal as to the nature of
respectful submission, did not arise before the before the Tribunal.
the transaction between Mr Bond and
Sir Joh Bjelke-Peterson relating to the defamation settlement. Your Honours, I will have to spell
that out a little more but that is our submission
and it was on that basis that the Federal Court
dealt with the matter and that seems to appear
clearly from the passages to which I will take
Your Honours in a moment.
On that basis, it was clearly appropriate for
the Federal Court to consider whether lack of
jurisdiction over Sir Joh Bjelke-Petersen precluded
relevant findings from being made by the Tribunal.
The issue, as posed on the special leave application,
Your Honours, simply does not arise on this appeal;
it has not been put by my learned friend, Mr Sheller,
and it has not been put because it was, in truth,
a false issue. The true issue, Your Honours, is an issue peculiar to the unusual factual and procedural
setting of this inquiry. It raises no question of
general importance or, indeed, of any question ofgeneral application.
In any event we say that the Tribunal was
clearly in error in finding that lack of jurisdiction
over Sir Joh because he was not a licensee precluded
any relevant finding involving him. Now, Your Honours, we thus submit that whichever way it is approached,
the special leave issues either now do not arise, or,
if they do arise, are very special to the circumstances
of this case. I also remind Your Honours that the matter is at an interlocutory stage.
(Continued on page 68)
C2T46/2/DR 67 27/2/90 Bond(2)
MR GYLES (continuing): The order of the Federal Court returns the matter to the Tribunal to deal with the matter again in the light of the Federal Court's decision and how the Tribunal react to that is a matter, of
course, for the Tribunal. So far as the section 88 issue is concerned, Your Honours will
appreciate that the body of evidence which we say
the Tribunal ignored and did not balance was led
before the Tribunal and submissions were made and,
no doubt, can be repeated about that balancing
exercise. Whether the Tribunal in its wisdom wishes
to hear further evidence is a matter for it but there
is no necessity to do so; their material is in.
So far as the Sir Joh Bjelke-Petersen issue
is concerned, the evidence there has been led from
Sir Joh. It may be necessary to perhaps give him
notice of any further argument about the matter -
that is a question of natural justice which the
Tribunal would have to consider but the evidence
has been led and it really is a question now of the
Tribunal making what it now can do of that evidence.
Nothing has been precluded by the Federal Court
decision. What they do is to set aside the
fundamental findings and say, "In the light of that,
you now go about your statutory task in the proper
way".
TOOHEY J: I do not quite follow that, Mr Gyles. One of the orders made was that the decision that the licencees
are no longer fit and proper persons be set asideand what is the consequence of that if everything
goes back to the Tribunal?
MR GYLES: 'The inquiry is not complete, Your Honour. TOOHEY J: No. MR GYLES: That is the simple conclusion from that, that the Tribunal must then consider, in the light of
the Federal Court decision, what should happen about
the further conduct of the matter.
TOOHEY J: By·reference to considerations other than those that form part of the Tribunal's decision?
MR GYLES: They would have to do so guided by the Federal Court's
guidance that they would have to in considering
their decision take account of the material which
had to be balanced against Mr Bond's position in
the company. It may be that they will have to hear evidence about the current position if there has been
any change between now and then but short of that,
that is all that is required there. As far as
Sir Joh is concerned, similarly they have a decision
to make as to how they approach that - whether they
C2T47/l/JH 68 27/2/90 Bond(2) do it on the material presently advanced or what.
In other words, it is an interlocutary stage of the proceedings. What has been done does not preclude the Tribunal from carrying out a statutory task at all. It simply ensures that it will do so without what the Federal Court found to be unnecessary blinkers but I hasten to add, Your Honours, unnecessary blinkers in this case. It would hardly
throw any light updn other cases.
In putting that submission, I have put without taking Your Honours through it, that the issue to be
determined by the Tribunal which it set for itself was
to examine ·the nature of the transaction between
Alan Bond and Sir Joh Bjelke-Petersen and I would ask
Your Honours approach this argument on that footing.
If it be necessary to demonstrate that, then I will
do so.
Your Honours, they are our submissions on the
special leave point. We say no question arises and Your Honours will, of course, have observed that the issues on the appeal go well beyond the three points
which are isolated and argued as authorizing a grant
of special leave. It will be necessary after we have put our argument on the appeal, if special leave is
not revoked, to then consider our application for
leave to cross appeal which will raise some other
factual issues very much connected with what has been
argued before I must say, Your Honours, but we submit
that this really is very much the sort of appeal
which would not normally come to this Court,
examining the way a Tribunal and then the Federal Court
have dealt with a proceeding which is not brought to
an end. I mean, we sought an order that the proceedings be brought to an end, we failed and we
are not pursuing a cross appeal on that point.
(Continued on page 70)
C2T47/2/JH 69 27/2/90 Bond(2)
BRENNAN J:
Mr Gyles, if this matter went back to the Tribunal with r·no further guidance save that of the Federal
Court judgmmt,then the Federal Court would be bound first to consider evidence other than that relating
to Mr Bond and his relationship with the licenceecompanies? MR GYLES: Yes. BRENNAN J : That evidence is already available and there may be fresh evidence
MR GYLES: Yes. It may have to be brought up to date, Your Honour, but yes.
BRENNAN J: What would the Tribunal be bound to do in respect
of the nature of the transaction?
MR GYLES: Your Honour, all of the relevant parties gave evidence before the Tribunal and there was a great
body of documentary evidence led before the Tribunal.
Indeed, Your Honours may have found the index to the
appeal book rather unhelpful because it contains
much more that is not reproduced than that which is,
but if Your Honours flick through that you will see
the number of people who are called, the extent of
the evidence they gave and a description of many of
the documentary exhibits. For example, on thequestion of the deed which Your Honour raised,there
was a group of exhibits which were tended on that
point, how was the settlement effected? Evidence was
received, for example, of opinions received about the
quantum of the settlement. Journalists were called
as to what the defence would have been to the case and
what we submit was an unnecessary self-abrogation by
so on. Almost all of the relevant evidence was led.
the Tribunal on the point, so that probably, prima facie,
there is no need to take any further evidence on that
point at all - - -
BRENNAN J: What is the function that the Tribunal must now
perform which it wrongly denied itself the opportunity of performing?
MR GYLES: On that point, Your Honour, it would have to decide the narrowest point - there are two points of:
significance. One, they would have to decide, did
Sir Joh Bjelke-Petersen say or do anything which would
lead Mr Bond to take the view he was being importuned?
That is the finding which is missing.
BRENNAN J: Say or do anything?
MR GYLES: Yes. Say or do anything which would lead Mr Bond
to that belief. I mean, there were one or two meetings which might have led to that and a3 Your Honours will
C2T48/l/CM 70 27/2/90 Bond(2) appreciate from the facts that have been read today,
the one fact which was, although investigated at the
hearing was not the subject of possible findings,
was what Sir Joh said to Mr Bond about the settlement.
That is the missing link, so they should have to face up to that point.
Now I will show Your Honours how that arises in
a moment. The second missing point is whether $400,000 was or was not over the odds. Now, as my learned friend Mr Sheller has read, there is
one line where it is said that it was, but it was an
issue which, although there was a body of evidence
call about it, the Tribunal did not make findings
on that point and deliberately did not. They said, "we are not going to re-try the defamation case".
Now what we say is, that it is highly relevant and
indeed irrational, not to consider what the true
facts were about that and what the perceptions of
people were about it. If this was an indefensible
defamation and damages are at large is a necessary,
factual background to understanding the evidence.
And the other things that would not be clear to
Your Honours at the moment, I think, on this issue, and it is relevant to what Your Honour is asking me
I think, is this. The Federal Court, by way of example, said,"You cannot really judge culpability
in a bilateral transaction without knowing what
the nature of the transaction was". For example, if
Sir Joh Bjelke-Petersen had importuned Mr Bond, then that would be relevant in weighing up Mr Bond's
culpability, because whilst nobody would say it was
a good thing to buckle to pressure from the Premier
of a State, on the other hand it is in the - after all
we are dealing with matters of fact and degree - as
a question of degree it would rank well below offering
a bribe to obtain some sort of licence. Being importunedby a person of that power puts a particular colour
on it. (Continued on page 72)
C2T48/2/CM 71 27/2/90 Bond(2) MR GYLES (continuing): Now, Your Honours, I hasten to say that
the other side of the coin is more important to our
side of the record. It ~as our case
that Sir Joh did not importune Mr Bond. He did say nothing to bribe or blackmail him and that if that
be correct that is a necessary backdrop, not just
to his culpability in relation to the transaction,
but in relation to what he said to Jana Wendt
because in relation to that issue - an~ Your Honours,the question is what did Mr Bond mean by that? That
was the issue that they posed. So far as the Jana Wendt issue is concerned, it would be highly
relevant to know what the actual facts were. ·
BRENNAN J: We are not seeking a finding as to the purpose or motives of the offence.
MR GYLES: Sorry, Your Honour.
BRENNAN J: Purpose or motives as distinct from what was said
or done by the Premier.
MR GYLES: Your Honour, we will be primarily concerned with the primary facts.
BRENNAN J: The question of the duty of the Tribunal, if the
matter goes back?
MR GYLES: Yes. BRENNAN J:
Do you say the Tribunal is under a duty to find what was said and done?
MR GYLES: Yes, Your Honour. BRENNAN J: Do you say the Tribunal is under a duty to find the purposes or motives of the Premier?
MR GYLES: Your Honour, that would be a matter that they may well
wish to do. It is a matter for them, I would submit, Your Honour.
BRENNAN J: If they refuse or fail to do it, is it any breach
of a duty in your submission?
MR GYLES: An unconrrnunicated motive or purpose, no, Your Honour,
it would not be a breach. We would not put that submission. For his purpose or motive to be relevant
it would have to be communicated, it seems to me,
with respect.
BRENNAN J: Yes.
MR GYLES: I was putting to Your Honours the Jana Wendt issue. Yours Honours will see at page - I think Your Honours
can find what was actually said and my learned friend
took Your Honours to that in his own submissions.
C2T49/l/LW 72 27/2/90 Bond (2) I am sorry, it is in the Federal Court decision,
page 127, Your Honours. The critical words were the
words at line 15 to 19 on page 127. Now,Mr Bond's
explanation of that was that he was referring to
the necessity to settle the defamation case, not to
settle it at $400,000. That may appear a fine
distinction to Your Honours but it is a distinction which
when one goes into the facts, as Your Honours will need
to do, will turn out to be quite crucial. But if you start off on the footing that there was an indefensible defamation case brought by the Premier with damages at large and in which to
endeavour to defend it you would have to attack the
Premier, then a very different colour is painted
upon all of the rest of the factual findings.
And so, Your Honours, we submit that to understand
the issues which are involved in relation to Sir Joh involves a fairly close analysis of the
procedural situation, what happened before theTribunal, what happened before the Federal Court.
(Continued on page 74)
C2T49/2/LW 73 27/2/90 Bond(2) MR GYLES (continuing): There is no difficulty, in my
respectful submission, in the Tribunal dealing
with this matter when it goes back to them in a
perfectly coherent, logical and rational manner.
It will not prevent them or blinker them in any
way. On the contrary, it will enable them to decide the issue or the issues before them in the exercise
of their public interest jurisdiction without any
unnecessary fetters and by taking into account
the body of relevant material which was, in fact,led before them but which, for differing reasons,
they declined to pay regard to.
So that there is no harm, Your Honour, in
what the Federal Court did. We, of course, submit
that it was right but we do urge upon Your Honours
the submission that there is no special leave point.Your Honours, that is what I wish to say about that
aspect of the matter. I do not know whether Your Honours wish to hear from other parties on that issue?
MASON CJ: Mr Gyles, we think we ought to hear the balance of your argument at this stage.
MR GYLES: If Your Honours please. Can I then go back, Your Honours, to the section 88 issue, as it has
been called. As far as our submissions are concerned, Your Honours, that commences at page 5 of our book
of submissions.
It is our submission that the Tribunal did
proceed upon the basis that an adverse finding
about Mr Bond necessitated the same finding about
the licensees. It was urged upon it by counsel
assisting and it was the basis of its decision. Your Honour, we give a series of references, at page 183, lines 6 to 10. Your Honours will recall
that Mr Sheller read the alternate propositions
which are set out between line 1 and line 10 of page 183.and in our respectful submission, what
was called the contrary proposition was the proposition which was adopted by the Tribunal at
page 184, lines 8 to 10. We have said line 11
and it is really lines 8 and 10:In view of the relationship ..... the proposition put forward in the abovementioned decision
is applicable to this case.
In our submission that is really an adoption of
the second of the two propositions which have been
advanced previously. Then, at 185, lines 19 to 22,
there is the passage which is capable of being
read two ways, Your Honours, we agree but because
of all the other references it is hardly necessaryto decide what they really meant by that.
C2T50/l/ND 74 27/2/90 Bond(2) TOOHEY J: Mr Gyles, if it is your submission that the
passage on page 184 supports the proposition that
the Tribunal proceeded on the basis that an adverse
finding about Mr Bond necessitated the same finding
about the licensees, it does not seem to lie very
readily with the passage on 184 running from about
lines 11 to 18?
MR GYLES: 11 to 18? Your Honour, between 11 and 17 goes to a slightly different point, Your Honour, and
of itself it certainly does not - what Your Honour
reads a~ sa½ page 15 does not, in terms, set out
the narrower proposition and, indeed, we wouldnot quarrel with what he has written there but
what we do say is that when you read the balance
of the passages I am about to refer to and go back
to 183 at the top, they are clearly adopting
the second of those two propositions. But I accept what Your Honour says about the passage between 11
and 17 on 184.
Page 185, lines 19 to 22, I have referred.
Then, Your Honours, at 190a to 190c - my learned
junior points out that the point really starts
at page 190 where the undertakings are being dealt
with.
(Continued on page 76)
C2T50/2/ND 75 27/2/90 Bond(2) MR GYLES (continuing): What the Tribunals say at 190a,
lines 6 and 7, and then line 19 and 20, and
indeed, 19 to 25, and then what appears on 190b
between 5 and 10, culminating, Your Honours, in
what is said at 190b, 16 to 18, the sum total of
what is being said about the undertakings is, they
do not meet the problem of Mr Bond's unfitness.They are saying nothing he says, or nothing he undertakes
will presumably affect the person he is; he will
remain "unfit", therefore no undertakings he gives
will solve the problem.
But, Your Honours, the purpose of the
undertakings was to remove for the time being the
only power which Mr Bond had. He, Your Honours will recall from the structure of the companies,
personally controls the shareholding in Dallhold,
that is, the voting power at general meetings of
Dallhold. Dallhold, in turn, controls Bond Corporation,
which by the time of this application in turn controlled,
in that sense, Bond Media Limited, which was a separate -
both Bond Corporation and Bond Media Limited were
separate public companies. Bond Media then controlledthe licensees. What the undertakings do is to inhibit
Mr Bond's ultimate power through a series of company
meetings to alter the composition of the board of the
licensee company. He abrogates that role, that function, that power, for the period of the undertakings.
Thus it is that the only nexus in this case - he
is not a director of the licensees; he is not a
director of Bond Media; he not an officer of Bond Media;
he is not an officer of any of the licensees. He has no executive function in relation to any of them,
and has not had since 1987 when he resigned from the
board of the licensee. That I might remind Your Honours
was before Bond Media was formed, in any event. So that
he is removed, completely removed from management ofthe companies, either as a director or an officer.
Of course, he holds the shareholding control, via
as I say, a series of companies - he says, I will not
exercise that. Now, the short point at the moment, Your Honours,
is that the way in which the undertakings were dealt
with is consistent only with the view that it was personal unfitness of Mr Bond, no matter what his
actual power in relation to the company was. In other words, it supports the proposition that the Tribunal
were proceeding upon the basis of automatic unfitnessbecause of Mr Bond, regardless of any other circumstances.
BRENNAN J: Mr Gyles, glancing at the judgment of Mr Justice Pincus,
which was a precursor to the consideration of the
undertakings, I am still not sure that I understand the
issue to which the undertakings were relevant.
C2T51/l/FK 76 27/2/90 Bond(2) MR GYLES: Yes. Well, Your Honours, I do not think, have
been taken to some of the relevant sections in the
division of the Act which deals with it - deals withthe point. Can I take Your Honours back to the Act.
BRENNAN J: The only relevant question for present purposes, I should have thought, is whether or not the
undertakings go to the question of the fitness of
the licensee company.
MR GYLES: That is so, Your Honour, yes.
BRENNAN J: And do you say that they do?
YiR GYLES: Yes, Your Honour. BRENNAN J: Though they were undertakings to do something?
(Continued on page 78)
C2T51/2/FK 77 27/2/90 Bond(2)
MR GYLES: Yes, Your Honour, although they were undertakings
to do something, certainly.BRENNAN J: As distinct from a statement of what had been done? MR GYLES: Yes, Your Honour, indeed, indeed, because we are in a regulatory context where the regulatory body maintains control. Indeed, one of the points the Tribunal relied upon in saying that they could not accept undertakings was that there was no power of enforcement and
Mr Justice Pincus dealt with that,Your Honour. The undertakings, once given, were enforceable and in any
event, even if not enforceable by contempt proceedings,as we submit they were, but even if they were not the regulatory body maintains control over the regulated,
both with ad hoc inquiries and with regular licencerenewal and it is inconceivable that an undertaking
given solemnly and breached would not be then regarded
as a very good ground for saying unfit.TOOHEY J: Section 88 assumes that something has happened since
the grant of the licence in the sense that it speaks
of no longer fit and proper.
MR GYLES: Yes. TOOHEY J: And if the Tribunal finds that events have occurred
which make that sort of judgment appropriate how then
do undertakings as to what is to happen in the future
bear upon that assessment?
MR GYLES: Well, Your Honour, the administrative control of - the Act
does not contemplate, in my respectful submission, a
situation where an act having taken place, it infects
all that happens thereafter - it may or may not.
TOOHEY J: No, it may or may not, but if it leads to a judgment, or
otherwise leads to a judgment that the licensee is not
a fit and proper person, your argument is that nevertheless
that judgment can be, as it were, withheld because of what may take place in the future?
MR GYLES: Yes, Your Honour, we do submit that. Take the simplest possible example; Your Honour, there are examples in
this very case. One of the matters which was investigated by the Tribunal the
manufacturing of some tapes by employees of the companies
up in the north west of Western Australia, found to be -
and it was undoubtedly a wrong thing to do. The individuals concerned were removed from their positions.
Now the c-ampany by the time the Tribunal looked at the matter, on that hypothesis, there could be no continuing
unfitness by the licensee unless there was some breach
of duty to supervise, or something of that sort.
C2T52/l/JL 78 27/2/90 Bond(2) TOOHEY J: But that may mean no more than that as at the date
of the inquiry the licensee is not, or is a fit
and proper person.
MR GYLES: Yes, I agree with respect, Your Honour, that is the question. It is not a question of looking back to a date in the past because it is an ambulatory setting, surely, where you have a licence and the question must always continue to be, "Is the licensee now fit and proper?"_, and if something has happened - I mean in an organization of this sort there are no doubt things happening all the time which may reflect upon fitness, but they may be cured, dealt with in the appropriate
fashion and so on. One would hardly say that once committed cannot be cured. TOOHEY J: But your argument is, may be cured or may have been cured and in some way may be capable of being cured
subsequent to the inquiry?MR GYLES: Before the inquiry concludes, Your Honour, yes, or
perhaps by the - the reason, Your Honour, perhaps it
is necessary to go back to the Act is to appreciate
that there was a condition imposing power and - - -
BRENNAN J: But the power is discretionary? MR GYLES: Oh quite, and without any preconditions. There is no necessity to find unfitness in order to impose a condition. But, Your Honours, in so far as tmre is any formal difficulty, if I could put it that way, in
what Your Honours are putting to me, that is veryeasily solved by standing over the inquiry until the
undertakings are entered into. and carried out.BRZNNAN J I can see readily how the undertaking can relate to the exercise of the discretionary power to suspend or revoke,
but at the moment I do not see how it is that it
affects the question of whether or not the company iso.n which the Tribunal makes its decision Mr Bond is
at the relevant time, fit and proper. If on the day accustomed to exercising his power actively, then the fact that there is an undertaking offered may well affect the exercise of discretion, but it does not
seem to me to affect the status of the licensee.
(Continued on page 80)
C2T52/2/JL 79 27/2/90 Bond(2)
MR GYLES: Your Honour, if what was complained of was an act of the licensee then, with respect, I follow
Your Honour's difficulty. But, where what is
complained about is the character of a person
removed from the licensee and the undertakings
effectively deal with the nexus and having in mind
that you are dealing with a regulatory context in
which the licensee, where it· be the radio station or the television station, of
something which requires to be on the air, if there
is a means of - I mean, once started an inquiry as
to fitness of propriety there is no necessity to
complete the inquiry.
GAUDRON J: But, Mr Gyles, do you not have this problem?
Your undertakings are to operate in the future. They were, as I understand it, in some respects conditional in any event. They were not matters that had been implemented and had affected the
operation and organization of the companies and
licensees as at any relevant time whilst the inquiry
was being conducted.
MR GYLES:
Well, Your Honours, first of all, as to the conditional nature, I am not sure what Your Honours
mean there. They were offered on the basis and they were offered contemporaneously - it is not something which is to happen in the future; the
undertakings were then and there given.GAUDRON J: But, they were as to things which would thereafter happen.
MR GYLES:
They were operative inunediately but they involved things which were to happen, yes, quite.
GAUDRON J: Yes. MR GYLES: But, the only conditionality - if I can put it that way - was to say, "These undertakings are given
on the basis that that will be the end of this inquiry". So, there is nothing conditional about the operation of the undertakings, Your Honour.
GAUDRON J: Well, that is to say if the inquiry were not then and there terminated, they would not then and there
be put into effect.
MR GYLES: Yes, they were, ·Your Honour. I mean, the undertakings were operative -
GAUDRON J: No, sorry, if the inquiry were not terminated they would not be put into effect.
MR GYLES: That is correct.
C2T53/l/JH 80 27/2/90 Bond(2)
GAUDRON J: So, what you then had, subject to any question whether the Tribunal might have been bound to
accept the undertakings - - -
MR GYLES: Yes, that is another point. GAUDRON J: - - - that is another point,but what you then had was a continuing situation whilst the inquiry
was continuing which was not relevantly different from
that which, which was in no respect different from
that which the undertakings were intended to
address for the future if the inquiry terminated.
MR GYLES: Quite, if the status quo remained. GAUDRON J: Yes, and so, is not the question directed by section 88 one as to the present, the question of
fitness, a present question, not a future question?
MR GYLES: Well, Your Honours, the answer is yes but that does not lead to the conclusion that one cannot
accept undertakings of this sort and thus bring the
inquiry to an end.
GAUDRON J: That is another question. MR GYLES:
Well, that is the question I am endeavouring to address my submissions to at the moment and - - -
GAUDRON J: Is that not your cross appeal as to which you have not yet got leave?
MR GYLES:
It is both a cross appeal and an answer to the appeal which is made against us but I am following
through - I have been asked about the undertakings, Your Honours, and may I also put this submission? This argument lies at the heart of the matter which went to the Federal Court and from which these very parties were parties; there has been no appeal and, Your Honour, that really has been precluded.
BRENNAN J: Quite,and the decision in the Federal Court,
no doubt, stands for whatever it stands for. As at the moment, I do not perceive it to be standing
for the proposition that when undertakings are
offered that the offering of the undertakings
necessarily affects the finding as to whether the
party offering the undertakings is fit and proper
as distinct from affecting the decision whether the
inquiry should continue having regard to the fact
that the power to suspend or revoke is a
discretionary power.
C2T53/2/JH 81 27/2/90 Bond(2) MR GYLES: Well, Your Honour, may I address that in due
course. I do submit that in the statutory context, having in mind particularly section 85 as well as
section 88, the status quo can be altered by an
undertaking - by the grant of an undertaking - and
remove the potential unfitness or remove, if you
like, the actual unfitness or the deemed unfitness
by virtue of the relationship of the individual.
That is a necessary part of some of our arguments
to Your Honours and, we submit, is either express
or inherent in the decision of Justice Pincus onthe point.
I came to the undertakings for a very much
narrower purpose at the moment which is to say
that the answer which was given to them was not,
with respect, what Your Honours are putting to me.
They did not say, "Look, there is a problem because
it hasn't happened yet", because if that were the
problem then the respondents here may well have
said, "Well, if that's the difficulty we will do
it now and adjourn the hearing for a week and
we'll do it." That was not the problem, Your Honours.
They said the undertakings do not meet the
difficulty. Why? Because the undertakings do not
remove Mr Bond's personal unfitness, revealing that
they were concentrating upon his unfitness withoutregard to his link with the company.
Your Honours, the same point is made at
page 217, where the Federal Court recite portions
of the written submissions by the counsel assisting
to the Tribunal and at page 219, lines 43 to 45,
perhaps carries it no further than reciting our
submission about it, Your Honours, but it is
accepted by the Federal Court. That is not surprising,
Your Honours, because the written submissions to the
Federal Court itself,which are now part of the appeal book, I have here; that is,the submissions
for the Tribunal. If I could have Your Honours'
leave to hand those up?
If Your Honours concentrate particularly for this purpose on paragraphs 4 and 5, that puts very broadly
the proposition which we say the Tribunal acceptedand acted upon and is in the teeth of the
alternative submissions which took up most of
my learned friend Mr Sheller's time.before this
Court.
DEANE J: Is that a submission of law or a submission of fact
because, if it is a submission of fact, why was not
the Tribunal entitled to take that approach?
MR GYLES: Well, Your Honour, it was put to them as being a
matter of law, I would submit. I mean, they - - -
C2T54/l/DR 82 27/2/90 Bond(2) DEANE J: Well, I have been looking for that and I have
difficulty in seeing that it emerges as a matter of
law as distinct from as a matter of fact. But do not let me divert you.
MR GYLES: No, but may I pick up what Your Honour puts to me?
(Continued on page 84)
C2T54/2/DR 83 27/2/90 Bond(2) MR GYLES (continuing): Is not the real question this:
if it was put to them in those terms would that
vitiate their consideration of the matter?
DEANE J: I mean, take the best case from your point of view. Assume Xis the Mr Sin and Mr Evil of a city but is a quadriplegic with brain damage at the time of the Tribunal's inquiry. Would you say that the Tribunal is unable as a matter of fact to say that we do not care what X's position is, the fact that
he is the main owner of. this company makes it an unfit licensee for the purposes of our Act? MR GYLES: Your Honour, we say that a tribunal, this being put to them and they accepting it, are
either accepting a proposition of law, that is,
that the statute has that operation, or they would
be adopting a submission of fact which is unreasonable
in the administrative law sense.
DEANE J: What, to say that the fact that somebody is the main
owner of the company and is completely unfit by
reasonable standards means that the company is unfit?
MR GYLES: Your Honour, yes, to take it, to adopt the proposition that under all circumstances - the proposition is a
general one, Your Honour - that once you find
unfitness in the person who - not who owns themajority of shares in the corporation itself, but
who up the line does - - -
DEANE J: Who indirectly or directly is the main owner and
controller of the company.
MR GYLES: Yes, Your Honour. We submit that to adopt that
general proposition as the guiding - as a principle, is to either err in law or to adopt a proposition which is rationally indefensible.
GAUDRON J: But the question really is whether it is adopted
as a principle or whether it is adopted as the way in which the section has operation in the particular
circumstances, where there is a finding of controland a finding of involving himself in the affairs of
the company to the extent of the defamation payment.
MR GYLES: No~ with respect, Your Honour, that is a separate point,
I would submit, that the narrow and bald point is put,
was put and was accepted. I would have to -
GAUDRON J: As a matter of principle or as a matter of application
of circumstance?
MR GYLES: As a matter of both,we submit. All we know is,
Your Honour, that the submission was made to them by counsel assisting. We say that they plainly in
C2T55/l/LW 84 27/2/90 Bond(2) their decision accepted that submission. The
submission was continued by their counsel in the
Federal Court in this bald form. Now the other aspects of the matter I will have to deal with
in the course of my submission but I submit that
there is little doubt that that is the view of the
Tribunal upon which they acted in this case,
that - - -
BRENNAN J: Do you draw that from the language used by the Tribunal in their findings or from extrinsic evidence or from both?
MR GYLES: Both, Your Honour. We submit that their findings themselves which relate without more,unfitness of
Bond to unfitness to company, without considering
the other body of material, having in mind all
they have said in their own decision, knowing thatsubmissions were put to them along those lines
by counsel assisting leads inevitably to the
conclusion that that is the basis upon which theyacted. When they as a litigant come to the court
they put that submission, Your Honour. Now this a problem for a tribunal which chooses to come to
court as an active party. They cannot have their
cake and eat it too. It is one thing to sit down and say, "We are a tribunal and we have said what
we have said but you cannot go behind that". But
once they enter the arena as an actual litigant,once their counsel puts a submission that that is the
position, surely you are entitled to say that is their
position. It reflects what they said,which reflects what they did and,of course,it remains their primary
submission before Your Honours.
(Continued on page 86)
C2T55/2/LW 85 27/2/90 Bond(2)
GAUDRON J: Could I ask, because I am a little lost, is
this point directed to decision No 2 as set out in page 2 of the appeal book?
MR GYLES: Yes, Your Honour. GAUDRON J: And is the only ground on which you challenge
that decision. then in the Federal Court that
which appears under - where do the grounds come? It
involves an error of law?
MR GYLES: They run, Your Honour, from page 49 to 60 inclusive are the grounds which were taken and pressed before
the Federal Court. What the Federal Court did was
to take one of them and adopt that and,Your Honours,
we would be putting the same arguments to Your Honours.I mean there are a number of flaws in the reasoning of the Tribunal which went beyond the single ground
chosen by the Federal Court. Now,Your Honours, of course there is repetition between 49 and 60 and
there are a number of grounds which are repeated under
different headings, but there are a series of points
which were argued and which we would wish to argue
ourselves. It is a full appeal and we are entitled
to take any point which is available to support the
judgment, we would respectfully submit.
GAUDRON J:
But are all those matters there set out necessarily errors of law?
MR GYLES: They are either errors of law or errors which are
correctable under the Act. They are put under their headings there, Your Honour. We pick out the various sub headings of section 5 of the Act and that is why
there is repetition, because you,can see, what we
submit, are errors coming under several headings, and
that is why the document, on one sense, is more verbose
than one would like. On the other hand, it endeavours to pin the complaint to the statutory head.
Now, Your Honours, the old submissions to the Federal Court did not shrink from the proposition
that there should be no balancing once the person is
classed as a controller, which was, Your Honours,the submission by counsel assisting at all times before
the Tribunal in- the .Eederal Court; repeated here, although
in a somewhat muted fashion as being, once you say
controller, then you automatically impute unfitnes& UnfitnesE
of controller automatically unfitness of company and,
we submit, that has been the thread. So there should
be no doubt that that was the proposition which was
acted upon.
BRENNAN J: Was there any fall-back position and if that is not right then in the circumstances of this case it was
appropriate to adopt that approach?
C2T56/l/CM 86 27/2/90 Bond(2)
MR GYLES: No,Your Honour, not in the Tribunal's findings, no, there is now - well, when I say there is now, my
learned friend, Mr Sheller,says alternatively that
the Tribunal made findings, I suppose, which
justified their conclusions about Mr Bond.
(Continued on page 88)
C2T56/2/CM 87 27/2/90 Bond(2) BRENNAN J: The phrase is "require or permit". I think, as Mr Sheller - - -
MR GYLES: Yes, that is the way he put it. BRENNAN J: In the Federal Court, was it i'require or permit"? MR GYLES: Your Honour has the Federal Court submissions and I do not think it was put in that way,
Your Honour. I have not reread the oral submissions.
BRENNAN J: Because I understood·you to say that you construe
what the Tribunal said in the light of the
Federal Court submissions, is that right?
MR GYLES: What I do submit, Your Honour, is that the Tribunal's decision - in considering the Tribunal's decision
we can take account of what was put to the Federal
Court, certainly, yes. Not for a later self-serving alternative, I might add, but the primary proposition
which was put then, and Your Honurs I think have
the document there, is a robust submission. But,
more important, Your Honours, there is none of
this in the Tribunal's decision itself. It did adopt - Your Honours, with respect, it did adopt
what counsel assisting said and it did say, "Once
you are the controller that is it." They simply
did not do the balancing task. They did not say - and I will come to some things they said in a moment
about the - as Your Honour Justice Gaudron has
reminded me of, but their fundamental proposition
is no balancing. You do not look at how the company has conducted itself, you do not look at what has
happened since or anything of that sort.
So we do submit, Your Honour, as we do in
paragraph 7 on page 7 or our submissions, that
this automatic fitness cannot, as a matter of law,
be right and if it were adopted as a guiding principle
of fact, it would be irrational.in the administrative
law sense.
First of all, Your Honours, we point, to the
statutory scheme. The licensee must be a company and it is the fitness of the company which is
to be judged. There is no provision, in this division,
of deeming unfitness of any related individual
of 1982, of New South Wales, sections 45 and 47,
to render the company unfit and we remind
there is such a provision which makes one of the
statutory preconditions the fitness of individuals
having certain relationships with the company.
And that, I think, is on Your Honour's list, butthat is the effect of the sections of the New South
Wales LIQUOR ACT.
C2T57/1/ND 88 27/2/90 Bond(2) In this very Act, sections 89E and 89G, when
another topic is being looked at, that is share
transactions, there are deeming provisions. They are not found in this division of the Act. In our respectful submission, the principle of law
which is being advanced or the principle of - if
you call it - fact which is being advanced is really
requiring the section to be read as if it had the
sort of deeming provision which one finds in the
LIQUOR ACT or the control provisions of this Act
and we secondly submit that the ordinary principles
of company law and practice do continue to apply.
A company is run by its officers and directors,
particularly in the case of a public company, andwhilst I am not suggesting by submission here that
you cannot look behind the board of directors for
this purpose, we do submit that a highly relevant
factor is who does compose the board of directors,
how have they, in fact, operated in the past and
how has the company been managed and conducted.
The body of evidence which was tendered about
this, Your Honours, has - the summary of it in
the Federal Court judgment which my learned friend
read this morning was a very incomplete summary
of that body of evidence. Another summary and
a more reliable one, we submit, is to be found
at page 54 in our application.
(Continued on page 90)
C2T57/2/ND 89 27/2/90 Bond(2) MR GYLES (continuing): And I might say, Your Honours, that the
evidence came from the directors themselves of all
the relevant companies, and most of them were not
cross-examined, and every company in the chain -
the directors gave their evidence, their set of
declarations, or statements, or something, affidavits.
Officers of the company were called, journalists
were called, people who had been with the company
during the Packer regime and now under the Bond
regime - there was a very considerable body of
evidence devoted to this very topic, Your Honours,
which is sunnnarized, the effect of which, we say,
is adequately sunnnarized at pages 54 and 55.
DEANE J: Am I right that what this submission amounts to is that if a company is, for example, owned mainly and ultimately controlled by the mafia, it is irrational to say that it is unfit for the purposes of the BROADCASTING ACT, regardless of whether the mafia, in fact, intervenes in the actual running of it?
MR GYLES: No, Your Honour. Our submission does not do that. It does not need to and nor does it. That is putting
it the other way around.
DEANE J: Then I do not follow why you say it is irrational to
say that if the entity that ultimately controls and
mainly owns a company is unfit for relevant purposes,
that company is unfit for relevant purposes, come
what may.
MR GYLES: Your Honour has taken a particular example. DEANE J: Although I have dropped the mafia.
MR GYLES: Well, Your Honour, once Your Honour drops the mafia,
Your Honour is conceding, with respect, it is a
matter of degree, and it is.
DEANE J: That was just the colour for the question. MR GYLES: I know, Your Honour, but Your Honour, surely there are matters of degree, and our point, simply, is
this - - -
DEANE J: Yes, well the degree - what I was suggesting to you is really, when you reach the stage of main owner
and ultimate control in one entity.
MR GYLES: Yes. Your Honours,wewould submit that no case could it be as simple as that. You would need
to know what the unfitness is. There is no label
which says, "Unfit for all purposes for all times".
It is a relational concept. It relates to the task
which is being performed and one can have unfitness
C2T58/l/FK 90 27/2/90 Bond(2)
because of lack of candour to the Tribunal. One can have unfitness because of bad character generally. One can have unfitness for all manner of reasons and they will vary enormously. It is not
as if you have a threshold over which you mustjump, and everybody is unfit regardless of degree.
I would submit you must judge on the one hand, what
is the relationship of the person concerned to the
company? What is the conduct of which he is guilty,
or what are his defects of character? You do not ever
ask the question, "Is he unfit?" You say, "What is
the character which he bears, or the act which he
has done which, when you relate it to the company,
would render the company unfit?" And, having done
that, that means you must inevitably say,"I must
look to see what this company is; what it does;
what the licensing role of the company is; how is it b • ? II e1.ng run.
Now it may be, Your Honours, that at the end
of the day, you would, say, in the example given by
Mr Justice Deane, 'Look, as a licensing authority,
with the mafia involved, we just simply don't trust
the appearances. It does not matter what you tell us, we cannot trust the appearances:' Now - - -
BRENNAN J: The problem in this case is - I am sorry.
MR GYLES: I am sorry. I was just saying that one can imagine that happening, by the licensing authority and it
would not be an irrational response.
(Continued on page 92)
C2T58/2/FK 91 27/2/90 Bond(2)
:MR GYLES (continuing): One can imagine things at the other end of the scale which would be quite irrational
to say because as in the case of - in
WESTERN TELEVISION and NEWS BROADCASTING cases,
which are referred to by the Federal Court, a person who was really the moving force of a company
was convicted of taxation offences.
Mr Justice Davies said, "He was guilty of that, he
had no real excuse, I don't accept his excuses~. I think he had lodged either false returns or no returns at alL ''.I don't accept those excuses. But, what I must do is to look at the company, look
at its responsibilities, look at how it is to be
managed, what his relationship with the company is
and decide whether that act, that conviction, renders
this company unfit and I find that it does,,not.
And, I would submit, that always, Your Honour, there would be a substratum of fact which must be
analyzed in order to come to a conclusion. You may come to a conclusion, we do not deny that you may come
to a conclusion, that given a relevant association
the person's act or conduct may be such as to
impute unfitness to the company.
GAUDRON J: I have some difficulty with what you are saying,, in a practical sense not in a theoretical sense,
and the practical problem arises in this way. You start off within section 88 really from the premise
that something has been done, some event has occurred.
In this case, the event, it would seem in a neutral
way, is the acquiescence by the licensees or by one
licensee at least in a course of conduct which has
in respect of which there have been certain findings
and the control by the other licensees by that same
person and that is a new event and it seems to me
once you come to a new event everything is determined
by reference to the event and that the way you have
said it is really something that is more appropriate
when you are starting off afresh; starting off from
taws, as it were.
:MR GYLES~ Wellr actual~y, Your Honours, we put the proposition that where you are dealing with a
revocation situation the practical position, as
Your Honour puts it to me, should be much more
difficult than it is for a licence application.
On the licence application you might have four
applications and you are entitled to look at them and say, "Well, I really do prefer that one to this one",
You look at everybody there and you make a decision
and you take into account what their past record
has been. When you come to revocation, is no longer, then you are assuming fitness at a point
of time and something must have happened - - -
C2T59/l/JH 92 27/2/90 Bond(2)
GAUDRON J: But, you are judging the quality of an act, a supervening act, and determining whether by
reference to that - - -
MR GYLES: Act or series of acts. GAUDRON J: - - - yes, something has changed. MR GYLES: Quite. And, in a context wherer as I have put
it, it is an ambulatory context. You have a station which is running, it is going to air, and
it will be there tomorrow and the next day and-the day after that with the same regulatory authority.
GAUDRON J: Then, I have trouble in understanding why you cannot say that the man who controls these
companies has done this, x, y and z - we will
leave that out - and that without further ado his
being in control, his having dorie it once, renders
without more everyone else unfit.
MR GYLES: Your Honour, it would be irrational to take that view without knowing - - -
GAUDRON J: Excep.t, it has happened once, you see. MR GYLES: No, Your Honour, I am not endeavouring to put a submission that you could never ultimately come to
that conclusion. I mean, it would be -something pretty heinous, I would suggest, to arrive at that
conclusion and we say far from the facts in this
case. But, there may be some act which is quite
inimical .. __ to the holding of a broadcasting and
television licence.
(Continuing on page 94)
C2T59/2/JH 93 27/2/90 Bond(2) GAUDRON J: Well, lying to the Tribunal might be.
MR GYLES: Well, you can take any example that Your Honour
likes: let me assume that it is heinous enough
to draw that conclusion. However, it would be necessary to know, I submit, whether that person,
for example, was still in a position to do it.
Take this case: Mr Bond, at the time the settlement with Sir Joh was negotiated, was the
chairman of directors of the licensee company. He has not been the chairman of directors, or a director, since 1987. That matter was gone into
in 1986. Now, Your Honour surely is notsuggesting that we are frozen as at 1986 in
deciding this question. Surely the question mustbe decided in 1990 now, or 1989 last year, as to
what is the current position.It may be Mr Bond or the perpetrator had died
in the mean time. It simply cannot be that once an act has taken place that everything is frozen
thereafter; you must look and see where is that
person now: is he still there? If he is still
there, what is his position? Is he in a position
the same position as he was, or is he not? Allof those questions must be asked and answered
before the judgment at the end of the day can be
made. What the Tribunal failed to do here was to
conduct that exercise.
MASON CJ: Now, Mr Gyles, in relation to this proposition
for which you contend, namely, that the Tribunal
pitched its finding on fitness and propriety
on an absolute proposition of law, are you going
to deal with what appears at page 184 of the appeal book, because it seems to me that what
appears there denies that proposition?
MR GYLES: Yes, I certainly will, Your Honour. May I come to those immediately. Is Your Honour putting that it
denies the proposition that is the way they dealt
with it, or -
MASON CJ: Yes, as an absolute proposition of law. It seems to me, when you read page 184, they are dealing with it rather as a matter of fact
having regard to Mr Bond's position as having
ultimate shareholding control.
(Continued on page 95)
C2T60/l/DR 94 27/2/90 Bond(2) MR GYLES: Well, Your Honour, we deal with that in two ways.
MASON CJ: Taking that as a relevant factor?
MR GYLES: Yes, we deal with that in two ways.Your Honour. The first is to accept the findings of fact and accepting the findings of fact it still remains
the position, as the Federal Court found, that the
Tribunal having found those additional facts none
the· less did not take into accout any of the other material which was relevant to the question. MASON CJ: Yes,I follow that aspect of the submission.
MR GYLES: That is our first way of answering what Your Honour
puts to me.
MASON CJ: Yes, yes.
MR GYLES: In other words all I have said to date applies on the assumption you have got general principle plus, plus. MASON CJ: But that brings you back to another matter of fact, does
it not, a question of degree. He has ultimate shareholding control? MR GYLES: Yes. MASON CJ: He has intervened? MR GYLES: Yes.
MASON CJ: Not merely on one occasion but on other occasions as
well?
MR GYLES: Yes. MASCNCJ: Examples being given, that is enough, having regard to what has happened.
MR GYLES: Yes, I understand - now, a.s I say, our first answer is they still deliberately, because they were
asked to, put from the balancing process a body of
material which was, at least, relevant to it. Our
second answer to Your Honours, with respect, is that
the examples which were given illustrate the point.
Now take the first of them, his personal intervention in the defamation matter with Sir Joh Bjelke-Petersen.
Now, Your Honours, at the time which was 1986 he was
chairman of directors of the licensee company. Bond
Corporation was a direct shareholder in the licensee
company. He resigned that position - - -
BRENNAN J: Bond Corporation Holdings?
MR GYLES: Yes, Bond Corporation Holdings was a direct shareholder in the licensee at that point, there was no Bond Media.
C2T61/l/JL 95 27/2/90 Bond(2)
MR GYLES (continuing): He resigned his position before the Tribunal handed down its decision in the renewal hearing and from that day to this he has played
no part in the affairs of that company. There is
an independent board of the licensee; there is an
independent board of Bond Media - when I say
independent, it has independent directors upon it -and Bond Media Limited was floated to the public
in the intervening period, that is, between one
hearing and the next.
Those, Your Honours, are facts which are
surely relevant to judge this question and no matter
what conclusion you may ultimately arrive at having
had regard to them, it would surely mean that the
Tribunal in order to assess the quality of his act
in doing what he did in 1986, would have to have
regard to his relationship then with the licensee
compared with his relationship now with the licensee
and more importantly perhaps what has happened in
relation to the conduct of the licensee between that
time and the present day.
But surely, Your Honours, even convicted criminals the court endeavours to assist rehabilitation.
Is it suggested in a regulatory context, dealing
with people of good character so far as the evidence
shows, the general good character, that one mistake
where Mr Bond was in a particular position in thatcompany, is any more than a factor to be taken into
account,ultimately when judging his position without
having regard to the intervening reconstruction ofthe company and the intervening conduct of the
affairs of the company, deposed to, on oath, by
dozens of people who were in a position to know? So we submit that if that is the example,
that it is truly unreasonable in the administrative
law sense.
BRENNAN J: Mr Gyles, one aspect of th.: transaction which I suppose the Tribunal would be entitled to take into account is that which they found on page 109, namely, that although he was chairman of the
licensee company this $400,000 was accepted as a
BCHL responsibility.
MR GYLES: Yes. BRENNAN J: And the subject matter which agitated the Tribunal's
interest was the preservation of the group's interest
in Queensland, or furthering the group's interest
in Queensland.
C2T62/l/LW 96 27/2/90 Bond(2)
MR GYLES: That was found in 1986 BRENNAN J: But it is the nature of the transaction, is it not? MR GYLES: Yes, Your Honour. BRENNAN J: So that the question is whether or not, when you have a controller of the company who has exercised a
capacity to utilize the licensee company as the
vehicle for the assistance to his group, whether
anything necessarily has changed?
MR GYLES: Well Your Honour, that is a legitimate question,
if I may put it that way, for the Tribunal to ask
itself. I am not suggesting Your Honours question is legitimate. That would be a legitimate question
for the Tribunal to ask itself, but in answering it,
it would have to take into account the facts about
that, and Your Honours will be taken to this under
the next heading, and then the facts which
subsequently arose. I mean, I am not suggesting that the Tribunal are masked from any of this. They can take account of all of it, but what they are
doing here is saying, "Now, in that case, he involvedhimself in management decisions". I am saying simply
this, "At that time he had a particular position
which enabled him to do it". The position changed. Whether or not the change was good enough for the
Tribunal is another matter, but at least. they should
be saying, we must balance up what has happened since,
particularly when Your Honours understand, with respect,a little more about the detailed facts of the
Bjelke-Petersen transaction, what I say, I hope, will
have more force.
But, Your Honours, then the ROTHWELL's matter.
Now, Your Honour, Mr Sheller has not put any submission
about this and I do not blame him, because the
ROTHWELL's transaction was a situation where
Mr Bond spoke to the chairman of Bond Media Limited,
Warren Jones, and said to him that there was an opportunity for Bond Media to involve itself in a
transaction which would give it a financial advantage -
would earn it some money.
(Continued on page 98)
C2T63/l/CM 97 27/2/90 Bond(2)
MR GYLES (continuing): Mr Jones took that to his board with advice from an accountant and they made the business
decision to go ahead. Mr Jones was called to give evidence about it; Mr Chisholm was called to give
evidence about it; Mr Liddiard made an affidavit or
statement about it; all the relevant documents were
produced; Mr Jones, I believe I am right, was not
cross-examined to suggest that he had buckled the
pressure, indeed it was an opportunity which he said hetook because it would improve the financial position
of the company; he, of course, by the time of the
inquiry, he very much regretted he had ever done it or
the board had ever done it. But this was not a situation
Mr Bond had interfered in management at all. He had offered an opportunity to Bond Media Limited with its
directors, and they gave evidence, as to why they did it
had accepted it. A body of evidence which was not challenged. It really is not fair for a Tribunal -
that issue having arisen; counsel assisting having
learnt of the transaction made it an issue in the
proceedings, and fair enough - no complaint about that
by us - we dealt with.
Evidence was called from all these people; more
submission made about it as indicating unfitness, but
in one line here it is used as evidence of "He"
involving himself in management decisions which affect
the broadcasting activities within the group. Number one, he did not intervene - he offered an opportunity to the
board; number two,it had nothing to do with broadcasting at all. It was a purely connnercial decision by the board
as to a means of obtaining finance. It had no relationship to the running of a television station;
it was Bell Media not the licensee, and had no
relationship with television.
Now, we respectfully submit that that is a very
good example where the only bit of evidence which is
used to indicate Mr Bond_- Your Honours, Mr Bond, I
think the evidence was, he had been at Channel 9 twice:
once was for a christmas party,· the other, ironically 7nough, was for the Jana Wendt interview which got him into the hot water he now finds himself in.
C2T64/1/JL 98 27/2/90 Bond(2) MR GYLES (continuing); Twice he has been at Channel 9. And yet, by contrast WJ..th that body of evidence saying
absolutely no relationship, and a positively helpful,
so far as the company is concerned, Mr Chisholm, who
had been there for years, was able to point to the
advantages they had through having the Bond
connection. None of that mentioned. All of it
ignored, and why is it ignored? Because counsel
assisting said to them, "Your task is to decide",
and, Your Honours, this was over our opposition,
the methodology of saying, look at the individual, decide if he is fit and proper, then decide if the
company is fit and proper.
We protested on two bases. We said, first of
all, that it is unfair to the individuals concerned
because it labels them in a way which they should not
be labelled about and secondly, it inevitably
skews the task you have got to make, which is to
decide the fitness of the company. You do not say "individual company";you say, "What is the persons
relationship with the company, what has he done;
what has his conduct been?" Now, none of that - - -
MASON CJ: Counsel may have made that submission to the
Tribunal, but we cannot determine the effect of what the Tribunal decided by reference to the
submissions made to it. We have got to look at the reasons that the Tribunal advanced itself.
MR BYLES: But not only the reasons, with respect, Your Honour. Surely it is an administrative body; it is a matter
of proof as to what they did. Now if counsel assisting the inquiry make a firm submission, if what they do is consistent with it, and then if they go to
the Federal Court when challenged and repeat the submission, it is not an unreasonable conclusion to
draw, that that was what they are acting on, Your Honour.
They went to the Federal Court as a party, and they
put that submission. So, we submit that we are entitled to analyse the decision which they gave
in that light. But, Your Honours, it does not stop
there.
The absence from their reasons of any reference to the body of material which we summarized in the
application is striking indeed, and surely it must -
its absence is so striking - - -
C2T65/l/FK 99 27/2/90 Bond(2) GAUDRON J: Assume for the moment that the finding of
unfitness is made by reference to the events
which have occurred and as to which there have
been findings. Does any of that evidence to which you have referred go to the unfitness that
is found to emerge by reason of those findings?
MR GYLES: Directly, Your Honour, very much so. The incorporation - - -
GAUDRON J: It goesto how - it might go to the day-to-day
activities but does it go to the - - -
MR GYLES: Yes, it goes directly to it in many ways,
Your Honour. I mean, a corporation can only act through individuals and when you label a corporation
as being unfit to carry on a statutory task, the
question is: is it unfit to hold a licence under
this Act? It would be rare, indeed, that one act
committed in the past by one individual would be
enough to render the company unfit forever. As I put,
it would be an extraordinary proposition whenrehabilitation is a principle of the criminal law -
people convicted of criminal offences. This is
not - - -
GAUDRON J: I thought that went to sentencing, not guilt. MR GYLES: Well, Your Honour, a question of fitness and
propriety is a question of judgment as to what
relationship the act bears to the corporation and
the material which was ignored goes directly to
that issue, in my respectful submission, but I
would have to take Your Honours through that in a
little more detail than I have in order to
endeavour to persuade Your Honour that that was
so. Well, I notice the time, Your Honour, is that a
convenient point, or - - -
MASON CJ: Very well, we will adjourn until 10.00 am
tomorrow, Mr Gyles.
AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 28 FEBRUARY 1990, AT 10.00 AM
C2T66/l/DR 100 27/2/90 Bond(2)
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Standing
-
Statutory Construction
-
Procedural Fairness
-
Jurisdiction
-
Appeal
0
0
0