Australian Broadcasting Tribunal v Bond

[1989] HCATrans 241

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll7 of 1989

B e t w e e n -

AUSTRALIAN BROADCASTING TRIBUNAL

Applicant

and

ALAN BOND, DALLHOLD INVESTMENTS PTY LTD,
BOND CORPORATION HOLDINGS LIMITED,

BOND MEDIA LIMITED and DAVID ROY

ASPINALL

First to Fifth Respondents

QUEENSLAND TELEVISION LIMITED,
CONSOLIDATED BROADCASTING SYSTEM
(WA) PTY LIMITED, NORTHWEST RADIO
PTY LTD and DARWIN BROADCASTERS

PTY LIMITED

Sixth to Ninth Respondents

Application for special leave

to appeal

Bond

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1989, AT 10.06 AM

Copyright in the High Court of Australia

SlT 3/1/JM 1 13/10/89

MR K.R. HANDLEY, QC: In this matter, if Your Honours

please, I appear with MR P. ROBERTS	and
MR A. ROBERTSON for the applicant.	(instructed
by Australian Government Solicitor)

MR R.v. GYLES± QC: If Your Honours please, I appear with

my earned friend, MR D.K. CATTERNS for the

first to the fifth respondents. (instructed

by Blake Dawson Waldron)

MR R.J. ELLICOTT, QC: If Your Honours please, I appear

with MR F.M. DOUGLAS, QC and MR R.S. ANGYAL

for the sixth to the ninth resuondents (instructed

by Allen Allen & Hemsley) -

MR HANDLEY:	Your Honours, we did, pursuant to an oral direction fax an outline submission to this
Court last night and a further outline this
morning.
MASON CJ:	We have both the first and second edition of

your submissions.

MR HANDLEY:  Yes. Your Honours, it is our submission

that this application raises three primary

questions of sufficient difficulty and importance

to warrant the grant of special leave. We have

sought to identify then in paragraph 3 of this morning's outline. One is the construction of

section 88(2).

MASON CJ: What is that precise question of construction?

MR HANDLEY:  Your Honour, the section provides that a licence

can be revoked in circumstances where the Tribunal

makes a finding that the licensee is no longer

a fit and proper person. That is section 88(2)(b),

the second-last page of the photocoryies that we

have handed up:

the Tribunal is satisfied that the licensee:

(i) is no longer a fit and proper person -

It is clear, Your Honours, that the Act onlv

authorizes the grant of a licence to a COr?oration

and so one has the question which is ryosed by the

difference of opinion between the Federal Court

and the Tribunal where the natural uerson who has

been found to have shareholding voting control

over the licensee is the subject of an adverse	finding on fitness and whether that mandates a finding
that the cornorate licensee isno longer a fit and prope~
nerson,or whether other considerations can be taken
into account in - - -

MASON CJ:  But how, as a natter of construction, does

section 88 mandate that?

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Bond

MR HANDLEY: 

Your Honour, I would submit that of necessity

in the case of a corporate individual the statute
authorizes and requires the Tribunal to look

behind the corporate nerson to the individuals

who control it- and - -

DEANE J: 

De facto or de jure?

MR HANDLEY: 

Your Honour, there is no difference in this

case.

DEANE J:  But if Irreant as a matter of construction?

MR HANDLEY:  De facto, Your Honour. The Tribunal is concerned

with the real world and not with legal fictions,

in our submission, and therefore we do submit

that this operates as a statutory authority to

the Tribunal to remove the cornorate veil and

look inside and that the approach of the Federal

Court in trying to, as it were, concentrate OP-

the cornorate nersonna is not one which nronerlv

reflects the true construction of the section ..

.MASON CJ:  Do I understand it that you are saying that

Mr Bond is in de facto and de jure control, or de jure control of this company?

MR HANDLEY:  Yes, Your Honour, he controls through - - -

.MASON CJ: These licensees, at least?

MR HANDLEY:  Through interposed companies he controls more

than half the voting power of the licensees.

.MASON CJ:  Was that accepted by the Full Court of the

Federal Court?

MR HANDLEY:  I believe so, Your Honour. I can take Your Honours

to the passage .

.MASON CJ:	Yes.
DEANE J: But that is de jure, what about de facto which

is what you said matters?

MR HANDLEY:  Your Honour, it is de jure and de facto in this

case. One could have a situation where - - -

DEANE J: It is legal, but I mean, let us get away from

Mr Bond. What if it emerged that de jure control

was in a man who always did what his wife told him?

MR HANDLEY:  Your Honour, in my submission, in that siutation

de jure de facto control would be in the husband.

DEANE J:	Even though the wife exercised it?
MR HANDLEY:	Your Honour recalls that in the COMPANIES CODE

the directors of a company includes "a nerson

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Bond

in accordance with whose directions the directors
are accustomed to act", so that actually because

of the definition of "directors" in companies

law the two tests coalese again.

DEANE J:	I follow the answer, but you are using "de facto"
in a different sense to the way I was using it
when I asked my question to you.

MR HANDLEY:  I am sorry, Your Honour. Is it clear now the

use which we are trying to make of it?

DEANE J: Yes, I follow.

MR HANDLEY:  Your Honours, we would submit that in the

context of a statute which only authorizes the grant of licences to corporations the approach

which the Tribunal took was one which not onlv was it ooen to take, it was one that it was ·

required- to take. What I would respectfully

submit the narrower view taken in the Court of

Appeal and in the Full Federal Court does

involve, in our submission, a misconstruction

of section 88(2)(b). The point is a short one

and I will move to the second point, if I may.

Fitness and propriety of a licensee either

in the nresent context or in any other regulatory

context will frequently involve the examination

of a transaction between the licensee or a

natural person or persons having executive or

controlling authority in that licensee and a

stranger, that is a straneer to the jurisdiction

of the regulatory authority and, in our submission,

the Tribunal in the present case not only took

a proper course but took the only proper course in

concentrating its attention on the natural person
and the corporations who were within its supervisory

or regulatory jurisdiction and with the result of

avoiding, so far as possible, making adverse

findings of misconduct or criminality against persons

who were not subject to its regulatory regime and

jurisdiction. Again, had they taken the different

course and proceeded to, in effect, try

Sir Joh Bjelke-Petersen for a criminal offence without any of the criminal safeguards which would

attach to a prosecution, they would have been

subject to judicial review, in our submission, for

denying natural justice to Sir Joh Bjelke-Petersen

and the jurisdiction which this Court accented and

exercised in the NCSC V NEWS LIMITED case and which

the English Court of Appeal recognized and acce~ted

with regard to company inspectors in the

PERGAMON PRESS case where - and I have the
PERGAMON PRESS headnote here which is sufficient

for our purposes if the Court wishes to be reminded.

In PERGAMON PRESS inspectors had been appointed under the conpanies legislation in the

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Bond

United Kingdom and all they were going to do

was to report, but the fact that they might

make adverse findings in their report which might

be made public to the detriment of the individuals

concerned was held to attract a duty of natural
justice and procedural fairness and, in our

submission, the same situation here anplied as

between the Tribunal and Sir Joh Bjelke-Petersen.

So the Tribunal, in our submission, were entitled

if not bound to take a narrower view of what was
permitted and appropriate so far as Sir Joh

Bielke-Petersen's side of this transaction is

c~ncerned, compared with their greater freedom with

regard to Mr Bond. The headnote of PERGAMON PRESS

at page 389, between D and E:

Although the inspectors' function ..... is investigatory and not judicial, they must,

in view of the consequences which may

follow from their report, act fairly.

The only consequences of course were publication

and adverse publicity. They were not going to

affect the legal rights of the directors and other

persons who were directly involved. Your Honours

know that in 156 CLR in the NCSC V NEWS CORPORATION

LIMITED case, in a differently context - slightly

different context admittedly - this Court took

the view that the NCSC had a duty to accord

natural justice to News Limited and certain of

it officers and associates where all that was

being contemplated at that stage was an

investigation and a possible public report. In

our submission that is also a question of public

importance. It is a question in which, in our

submission, the Federal Court arguable got it

wrong and it is a question which will arise from

time to time in any regulatory or investigatory
administrative function where some parties are
primarily within the jurisdiction of the Tribunal

and others are only dragged in because of their

association with a party such as a licensee or

an associate.

I would seek now, if Your Honours please, to quickly go to key parts of the Federal Court

judgment.

MASON CJ: With a view to demonstrating what?

MR HANDLEY:  With a view to demonstrating, Your Honour, how

these points arise. The section 88 noint is

picked up in a few lines on the pages referred to

fn paragraph 8 on page 3. There is a different

sort of error of a kind which in itself would not

normally attract special leave in that, in our submission,

the Federal Court only came to apply their version

of section 88 as a result of totally misunderstanding

what the Broadcasting Tribunal had said at page 126

of its decision.

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Bond

Your Honours, perhaps before I go into this,

we do submit, on a broader issue, two matters.

First of all that the Full Court exercised

original jurisdiction in this case and what we

are seeking to do is to invoke the only apnellate

remedy from -

MASON CJ:  We are aware that that is one of the points you

make.

MR HANDLEY: If Your Honours nlease. Also, we wish to nut

that the Federal Court has overstepped the limits

of its own jurisdiction in exercising a supervisory

jurisdiction over this Tribunal and has gone into

the merits, made its own findings of fact and made

its own findings of mixed fact and law. However,

that has to be demonstrated as quickly and

succinctly as I can.

MASON CJ:  You cannot demonstrate it by reference to any

state~ent of principle that appears in this

judgment?

MR HANDLEY:  No, Your Honour. They said they were not

doing it, Your Honour, but nevertheless, in my

submission, they clearly were. At page 41 of

the appeal book, lines 2 to 4, the court said

that in its view:

the Tribunal fell into a serious error
of law in construing and applying

sub-s. 88(2) of the Act.

We make the same submission about the court.

At page 47, Your Honours, line 10:

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 ..... 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.

Those facts were found.

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 ..... his 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 saving that Mr. Bond

was the only relevant individual. The language

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Bond

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 unon what had

been said in the WESTERN TELEVISION case.

At the bottom of page 48:

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 Tribuanl

then failed to look at other material.

Then, in the middle of page 49, line 11:

We have referred to evidence given by various

directors and executives of the absence of

what might be described as interference ..... this

evidence was not challenged.	But it was
disregarded.

Your Honours, I am conscious of the limited nature of my licence, but could I just take

Your Honours to pages 126 and 120 in the Tribunal

decisions? At page 120 the Tribunal was giving

its reasons about an episode involving the fabrication

of tapes of news broadcasts and it concludes by

saying:

It follows from the acceptance of the evidence

of Mr Syphers that we find that Messrs Syphers,

Branigan, Bigum and Burnie made a conscious

decision -

about certain matters which stands to their discredit.

Then at page 126 - this is the passage that the

Federal Court criticized - line 8:

In our Decision on Facts we applied a high

test of satisfaction in relation to findings -

and these were adverse findings -

which,by their very nature, would have an

impact on particular individuals. We made

findings relating to Mr Bond and Mr Asninall.

We have considered Mr Asninall's uresent

position in relation to the licensee conuanies

and we are of the view that he, in terms·· 0£

the findings which relate to him from the

Decision on Facts, is not relevant.

So they nut Asninall to one side. - J.

SIT3/7/JM 7 13/10/89

Bond

In respect of the other individuals snecified

in our previous decision -

in our submission that is the decision I have just

taken Your Honours to a.t page 120 -

in view of their current circumstances, they

need not be considered in deciding this issue.

So they put Syphers, Branigan, Bigum and Burnie

to one side.

Mr Bond remains, by virtue of his association

with the licensee companies, the only relevant

individual.

There the Tribunal is simply saying the only

relevant individual against whom adverse findings

have been made, having put aside the rest. So,

in our submission, with very great respect, the

Federal Court completely misunderstood and inverted

the meaning of that statement.

Your Honours, there is a statement - I almost

call it a classic statement - by Sir Owen Dixon

and two Justices of this Court in HlGHES AND VALE

(NO. 2) as to the meaning of the expression

"fit and proper person" and it certainly, in our

submission, picks up all the things that the

Tribunal looked at, but I do not know that I need

necessarily trouble Your Honours with it now.

But I just seek to quickly take Your Honours to

the findings about Mr Bond, only in the sense of

a line here and a line there, to show that,

unless this is disputed, they clearly were apt

and relevant to an ultimate finding of lack of

fitness and propriety.

DEANE J:	Mr Handley, I think I have misunderstood your
primary point. What is your construction of
section 88(2)(b)? I had apparently wrongly
understood you as saying that if there is a
person who controls a company the question of
the fitness and propriety of the company must be
determined by reference to him or her.
MR HANDLEY:	That is our primary point, Your Honour.
DEANE J:	If that point were right, what the Full Court
attributed to the Tribunal is what it should
have done, is it not?
MR HANDLEY:	Yes, Your Honour.
DEANE J:	Then, what are we on - we are not on the construction
point now?
MR HANDLEY:	No, Your Honour, we are on - - -

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Bond

MASON CJ:  You are endeavouring to demonstrate that the

court misinterpreted and misread what the Tribunal

found.

MR HANDLEY:  Yes, Your Honour. The summary of the findings,

Your Honour, are picked up at page 127, paragraphs

1 to 5. Finding 1 relates to Mr Bond's beliefs

at the time he settled the defamation action

brought by Sir Joh Bjelke-Petersen. Finding 2:

Mr Bond sought to disguise.

3.       Mr Bond deliberately gave misleading

eivdence .....

4.       Mr Bond deliberately gave false evidence .....

5.       Mr Bond threatened.

Your Honours, that is developed slightly in what follows at page 129 line 1:

Mr Bond, a major media proprietor, was prepared

to personally negotiate such a payment on

the terms that he did does not exhibit an

appreciation of the proper relationship

between those with control of media interests

and governments.

That is one finding. At line 12:

An attempt at such deceit, driven, as it would

appear to be in this case, by expediency -

that is another finding. The next paragraph:

The duty of candour -

and then line 21:

The deliverate misleading of the Tribunal -

over the page at line 3: 

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
cormnunity's interest in securing as licensees

of these valuable resources, persons who exhibit

sufficient quality of character and judgement

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 is distinct from other statutory requirements.

Then, in the next paragraph, he refers to the threat

which was to the AMP Society. Then at line 18 the

Tribunal refer to the misuse of television and radio

networks and that is the other finding of unfitness.

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I think in those circumstances it would unnecessary

for me to take Your Honours to what fell from

Sir Owen Dixon and two other Justices of this Court

about the meaning of that expression in HUGHES AND VALE.

At Daragraph 11 of our submissions, the

Australian Broadcasting Tribunal "did not consider ..... the qualities of persons other than Mr. Bond".

In our submission, it did. At page 125 of the appeal book, the Tribunal - - -

DEANE J:  But do you say that it should not have, if your

construction of section 88(2) be right?

MR HANDLEY:  Your Honour, in our submission, we are on a

double-header. The Tribunal did look at other

persons and said, "It is not enough to outweigh

what we've found about Mr Bond". But we do submit

that having found that Mr Bond was in control

and was unfit, the fact that there were some

nice people around was no longer relevant.

In other words - - -

DEANE J:  I am still a little bit lost .. There is no

problem if you succeed on section 88(2)

in following it.

MR HANDLEY:	Yes,: Your Honour.
DEANE J:	But assume that you are wrong in your construction
of section 88(2) and it depends on the circumstances
whether the controlling person is decisive of
the corporation.
MR HANDLEY:	Then, Your Honour, we do not have a suecial

leave point but we have a point that the-Federal

Court got it very wrong on the facts in this case.

DEANE J:	If you be wrong on your construction of section 88(2),
did the Tribunal act on your construction of
section 88(2)?

MR HANDLEY:  No, Your Honour.

DEANE J: It did not?

MR HANDLEY:  No.

DEANE J: That is where I was not following it. You are

putting a construction of section 88(2) which is

different from the construction on which the

Tribunal acted.

MR HANDLEY:  Yes, Your Honour.

DEANE J: That answers my query.

MR HANDLEY:  But if our construction is correct, it covers

what the Tribunal did. If the Federal Court's

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construction is correct, they still got it wrong

but on the facts and on the findings of the

Tribunal.

DEANE J: In other words, if your construction is correct

it brings you immediately to a point which the

Tribunal reached by a different route?

MR HANDLEY:	Yes, Your Honour.
MASON CJ:	Your construction of section 88 was presented

to the Full Court of the Federal Court?

MR HANDLEY:  Mr Roberts tells me so, Your Honour, and he

was there, I was not. The respondent has put

on some of the submissions, and Your Honours

may be taken to them, but I understand this

submission was put.

MASON CJ: Yes.

MR HANDLEY: It appears, Your Honours, from the passages

I have drawn the Court's attention to, which are summarized under paragraph 8, that the Federal

Court considered that question.

MASON CJ: It looks to have rejected its -

MR HANDLEY:  Yes, indeed. Your Honours, paragraph 11,

if I can quickly make the point we seek to make

there, the Tribunal did, in our submission,

consider persons other than Mr Bond but it put

them to one side and one sees the sort of reasoning

behind it at page 125, line 18:

we are also of the view that Mr Bond's

postion within the corporate structure

does enable him to initiate and involve

himself in management decisions which
affect the broadcasting activities within

the group.

They give two examples at this point:

Mr Bond's personal intervention in the

defamation matter with 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.

Another example, which I will not go back to, was

the fact that Mr Bond was found to have threatened

the AMP with adverse television publicity if they

did not - - -

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MASON CJ:	Yes, we are aware of that one.
MR HANDLEY:	They considered Mr Warren Jones, who is the

chairman, Your Honours, at a number of points

and I give the references. They considered the

boards at a number of points, and I give the

references. I will only take a moment with the

board question, and that is at the bottom of

page 132. In the course of rejecting the

undertakings they say at line 20:

The lack of association with Mr Bond and

the two corporations he controls with
the proposed restructed board does not
avoid the fact that Mt- Bond by virtue of

his shareholding remains in control of

the company. Apart from this we have

little confidence in view of the evidence

we have heard in this Inquiry in the notion
that Mr Bond would not ultimately previal
in any significant area where his overall

interests were involved.

Your Honours, the whole of the. analysis of

the Tribunal in rejecting the preferred

undertakings involves looking at the wider

nicture which the Federal Court said the Tribunal

did not do. In our submission, they clearly did.

The Federal Court took the view that the

Tribunal had wrongly rejected the undertakings.
I think there has been a typographical error here

and I will have to come back to that when my

juniors find out where they rejected the

undertakings. Paragraph 14, the Tribunal

failed to consider past compliance, and again,

at the pages in question, it is apparent they

just regarded it as of no weight compared with

the proved unfitness. At page 128, line 5:

We have no doubt, however, that this concept

is one that is relevant to matters outside

financial, technical and management

capabilities and is one that connotes

something of moral judgement and assessment

of values.

So there, in my submission, they are impliedly saying,

"Well, there's nothing wrong with the licensee so

far as financial, technical and management is concerned."

Then, at line 18, again a quote from Mr Justice Pincus's judgerrent, who says that:fitness and propriety are

something in addition	to financial, technical and
management capabilities.

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MR HANDLEY (continuing): Then, at page 130, there is

perhaps a better reference, line 11:

This requirement

that is, fitness -

is distinct from the other statutory

requirement that they have the relevant

management and financial capability to

operate the service.

Finally, at page 131, line 21:

The compliance with the Standards generally

has not been an issue in this inquiry.

MASON CJ:  Page 49 is the page where the undertakings were

rejected.

MR HANDLEY:  I am sorry. Yes, I am obliged to Your Honour.

It is line 19:

Further, the Tribunal decided that

the undertakings that had been proffered

did not address the fundamental issues -

then the court goes on:

But -

indicating another view, and they finish up at the

top of page 50:

The Tribunal also failed to consider the

past and continuing compliance of licensees

with their obligations under the Act.

Now, in our submission, that was either - that one

has to, perhaps, ~ust draw out of that passage at

pages 49-50 but, in our view, it does involve the

Federal Court in getting into the area of policy

and fact finding which was exclusively for the

Tribunal.

Then, going on to the criticisms of the Tribunal for their divided approach to the defamation

settlement, at page 52 the Federal Court said that

the ABT precluded itself by "making findings as

to what the Premier" actuallv did and this is at

line 14:  ·

By taking the course which it did, the

Tribunal necessarily prevented itself from

making any finding to the effect that the

sum ..... was extorted or solicited by the

Premier.

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Further up, at line 3:

The Tribunal held that the Premier was not

"amenable" to its iurisdiction and therefore

precluded itself from making findings as to

what the Premier did or said.

Your Honours, again, that just totally ignores what

the Tribunal did and if I could just, again, ever

so quickly, go to pages 85 through to 98 and just

pick up a word here and a line there.	At page 85,
line 17:

We now intend to turn to the question

of the defamation settlement -

Line 24:

The matter was raised by Sir Joh Bjelke-Petersen

in private discussions with Mr Bond -

Page 86, line 2:

Joh Bjelke-Petersen indicated -

The next paragraph beginning at line 9, the last

two lines:

According to Sir Joh Bjelke-Petersen he

again "shook hands" with Mr Bond -

Then, a telex is set out which I do not go over;

then, page 87, in the second-last paragraph, the

last two lines, the Tribunal reject the evidence

of Mr Aspinall and Mr Bond about the telex.	Then,
at page 88, the second paragraph, line 8:

The evidence of Sir Joh Bjelke-Petersen to

this Inquiry and Sir Joh Bjelke-Petersen's

letter to Mr Bond -

Page 88, third-last line, an offer from Mr Bond

"was rejected by Sir Joh Bjelke-Petersen." Then,

letters are quoted in full which passed between

the parties and then, page 92, line 23:

It was at the meeting of 17 February

that, according to the evidence of

Sir Joh Bielke-Petersen -

and the last two lines:

Subsequent to these discussions, Sir Joh

Bjelke-Petersen discussed these proposals

with Mr Lockhart -

his solicitor.

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At page 93, they quote from the evidence of

Sir Joh Bjelke-Petersen.

MASON CJ:  Is it necessary to continue with this catalogue?

You have picked out one sentence on page 52 of the

appeal book.

MR HANDLEY:	Line 3, Your Honour.
MASON CJ:	Line 3, yes, and the conclusion of that sentence:

And therefore precluded itself from making

findings as to what the Premier did or said.

MR HANDLEY:	Yes.
MASON CJ:	But does not the previous sentence more accurately

convey what the court had in mind; namely, that

the court should not inquire "into the purpose or

motives of the Premier in reaching the settlement".

Now, that appears to be what the Tribunal did.

MR HANDLEY:	Yes, Your Honour.
MASON CJ:	It did not inquire inr-o ·the· purpose or motives of the Premier in reaching the settlement and,
evidently, that is the disabling feature that the
Full Court saw in how the Tribunal approached the
matter.
MR HANDLEY:	Yes, Your Honour, they did find disabling features

above and beyond that which I have been addressing

but I have to come and address the matter that

Your Honour has seen.

MASON CJ: There certainly seems to be an overstatement in

the sentence that you have, as it were, honed in

on in the court judgment.

MR HANDLEY: Yes, Your Honour. At page 52, Your Honour, line 21,

the court said:

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.

That picks up, I think, and reinforces the point

that Your Honour the Chief Justice put to me a moment

ago.

MASON CJ:	Yes.
MR HANDLEY:	Now, in our submission, that was a course which

was certainly open to the Tribunal to take. We

S1T4/3/SH	15	13/10/89
Bond

would even go higher than that and say that it was

a course which the Tribunal was bound to take because

of the limited nature of its jurisdiction and it

should not go making findings of criminality against

third parties who are not primarily subject to its

jurisdiction which is to investigate fitness and

propriety of licensees. But there is nothing

unusual about an analysis of motivation and impropriety

on one side of a transaction and we have picked
up in paragraph 16 on page 5 of our outline, a

number of examples.

In REG V DARBY, 148 CLR 668, this Court refused

to follow an earlier decision of the Privy Council

in DHARMASENA V R, an<l said that a conspiracy conviction

against A can be sustained although the other parties

to the conspiracy, B or C, may be acquitted.

In REG V SHIVPURI, (1987) AC 1, the House of

Lords has finally come back to accept that there can

be criminality in an attempt at the impossible which

is, perhaps, not such a good example.

MASON CJ: This is a rather legalistic approach, is it not,

to go to these cases? What you are saying is that

it is perfectly permissible to inquire into the

purpose or motives of one party to a bilateral

transaction without inquiring into the purpose or

motives of the other

MR HANDLEY:  Yes, Your Honour, and it is done all the time

and the fact that you find that A was improper in

relation to B but you do not make a finding that

B was improper in relation to A; that was -

RUTHERFORD V RICHARDSON was an adultery case where

Lord Birkenhead discusses just that situation and

points out that it is not as asinine as some people

seem to think. In REG V ANDREWS - that was a bribery

case where an acquittal of the bribee of receiving

a corrupt consideration was held not to require or

mandate an acquittal of the briber, there being

different evidence available against the two persons

and, of course, we refer to the attempt to pervert

the course of justice. The Federal Court seemed

to criticize the Tribunal for not making any finding

that the payment was not a reasonable settlement

but such findings were made. At page 92, line 15,

Mr Lodge, I think, is a solicitor and he is giving

evidence and Mr Burbidge puts to him:

Now, one interpretation of that, I suppose,

Mr Lodge, is that the maximum that defamation

could carry is about $50,000.	Do you accept
that as what was conveyed?
MR LODGE:	That is a possibility, yes.

S1T4/4/SH	16	13/10/89
Bond

Then, at pages 96-97, the last three lines of page 96:

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 - and I do not need to multiply the examples. Then,

we come to paragraph 18, Mr Bond was entitled to
natural justice and, of that, we have no criticism

at all but, of course, we submit there is no denial

by examining his side of the transaction and we

refer to the other matters. For all those reasons,
Your Honours, and because of the the fact that this

case has loomed very large in the administration

of this federal statute, we submit that this is a

case where special leave ought to be granted.

MASON CJ:  Yes, Mr Handley. Yes, Mr Gyles?

MR GYLES:  Your Honours, I think, have an outline of our

submissions.

MASON CJ:	Yes, we have and we have read them.
MR GYLES:	They were directed to -
MASON CJ:	To the first edition of Mr Handley's submissions.
MR GYLES:	Well,th.ey were directed actually to the affidavit

in support of the application.

MASON CJ:  I see. Yes, so you did not have the submissions

at that time?

MR GYLES:	We did not.
MASON CJ:	But his first edition, really, recapitulated what

was in the affidavit in support.

MR GYLES:  Yes. They are really responsive none the less

to what has been put today, Your Honours.

MASON CJ:	Yes.
MR GYLES:	May I go, however, to paragraph 3 of my learned

friend's outline of submissions; look at the three

questions of law which he identifies. Now, as to (a), Your Hon-0urs will appreciate that nobody put

a submission that the corporate veil could not be

lifted. Plainly enough, with a corporate licensee,

it is necessary to look to individuals to judge

fitness and propriety. The vice which the

Federal Court found in the Tribunal's approach was

that the Tribunal said, "We will not focus first

SlT4/5/SH	1 7	13/11/89
Bond

upon the Corporation nor will we focus upon the actual

activities of individuals. We will, first of all,

identify named individuals with a connection with

the Corporation, decide what their connection is;

then decide if they would be fit to hold a licence

and, if the answer is no, then provided they are

what the counsel assisting continued to call 'the

controller', then there is an automatic disqualification

o f	the	1 ice n see" .
Now, with respect, Your Honours, that is to

include in the section a statutory requirement which

is simply not there. In the court's analysis of - - -

GAUDRON J: What is that requirement, Mr Gyles, I do not

follow? What do you say the requirement is that

is included, that is not there?

MR GYLES: 

In Mr Handley's submissions?

GAUDRON J: 

Yes.

MR GYLES: 

That each and every individual or that any particular

individual's lack of fitness will automatically mean
that the company is unfit.

GAUDRON J: Well, that is not the way I understood it. I

thought he meant the unfitness of a person having

either de jure or de facto control in the limited

way that he explained results in that situation.

MR GYLES:  Yes, quite so, Your Honour, but the section itself

provides no such test. It talks of the fitness of

the Corporation. What the Federal Court said was in

following _earlier Feder al Court authority, "In judging

the fitness of a corporation, you look to that

corporation, and how it is managed, who is connected

with it and in what way they are connected with it

and you take account of all of those factors in

deciding the fitness of the corporation".	The
argument put on the other side - and consistently

put - was once you can say a person is a controller,

then you may ignore all other considerations and
there is no balancing process to be gone into.

The section, cont a ins no de f in i t ion o f "cont r o 11 er "

and Your Honours will be aware that there are debates

in other contexts as to whether it is the person who

controls the general meeting directly or indirectly;

whether it is the board of directors and so on.

Now, none of those questions arise if the common

sense approach to the section is taken which says
that you look to see what the individuals connected
with the company have done or not done, including
their character, and you then see what the impact

of that is upon the licensee corporation.

Now, my learned friend described our submission

as narrow and his as wide. Now, in our respectful

S1T4/6/SH	18	13/Fl/89
Bond

submission, that is incorrect. The Federal Court's

decision gives to the Tribunal the greatest flexibility

in these matters. It says, "So far as a corporation

is concerned, you look at all of the factors which

are relevant to its conduct, management and control, including the fame and character", if you like, "of

the people associated with it". So that, in our

respectful submission, it is not a narrow view.

Now, Your Honours, lest there be any doubt

about the the submission which was put to the Tribunal

and to the Full Federal Court, it was submission l;

that is, counsel assisting the Tribunal consistently

put before it the submission that if the controller

was unfit, so would the company be unfit and there was
no other consideration to be taken into account.

In our outline of submissions, Your Honours, in

paragraph 6, on page 3, we refer to passages in the

appeal book - both the original and the supplementary

appeal book - which shows that that submission was

urged upon the Tribunal; it was adopted by the

Tribunal and pursued by the Tribunal in the Federal

Court.

Now, Your Honours, the reference there was

to the written submission in the Federal Court.

I have here the oral submission in the Federal Court

- the relevant portions of it - if I may hand up four copies to Your Honours. Now, Your Honours,

at 257,'line 25, Mr Roberts said:

So at the end of the day in relation

to this submission, what we were saying was,

there is only one person against whom adverse

findings have been made, that is Mr Bond.

Mr Bond is, on the evidence, the controller

of a company. The controller of a company

is in a different position from managers and

whereas it is quite appropriate to and nobody
would argue the contrary in relation to a

manager or a director, where you have got

the balancing force of other managers or other

directors, with a controller the position

is different. You do not have any balance - - -

MASON CJ: Well, that seems to be common ground between the

parties that this submission was put.

MR GYLES: No, Your Honour. Well, Your Honour, what is not

common ground, my learned friend, Mr Handley, says

that the Federal Court fell into error because it said
the Tribunal failed to take into account other matters.

Now, implicit in that is the submission that they were

invited to look at other matters or did so. Now,

when we get to the Federal Court and that is what

Your Honours are looking at, the counsel at 265 to 266

reinforced all that had been said below and all that

was said in their written submission, making it quite

S1T4/7/SH	19	13/1')/89
Bond

clear that there was to be no balancing exercise at

all and what counsel said was, at line 24:

What your Honour says in effect is that a

balancing exercise should be engaged in -

MR ROBERTS:  Well your Honours, we just go

back to the proposition of whether or not

when one deals with the controller of a

company, his position is such that it is

appropriate to engage in a balancing exercise.

If they are wrong in relation to that they

are wrong.

And that is a fair summary, Your Honour, of the

position. So, the argument that is now put was never put to the Federal Court and not put, I would submit, because it was never open to be put because of the

consistent position which counsel assisting had taken

at all relevant times.

If Your Honours just go to page 12 of the appeal book, 12 and 19, can be seen the respect in

which the matter - sorry, 11, Your Honours. Page 11

sets out the issue with which the inquiry commenced

and at line 11:

In this context.. it wi 11 be considered whether

Mr Bond and companies associated with him are

fit and proper persons to hold the above

licences.

The Full Court, in the middle of page 12, line 15,

drew attention to that and then, at 19, Your Honours

will then see the submissions which counsel assisting

put to the Tribunal as to the method of proceeding
and this, perhaps, is the best answer to

Justice Gaudron's question to me:

"It is submitted that the Tribunal should

proceed by -

A Determing which individuals affected by

adverse findings are by reason of their

association ..... such that findings as to

their individual fitness and propriety are

relevant to the question of fitness and
propriety of the licensees;

B. Determining whether those individuals

would or would not be fit and proper persons
to hold a broadcasting licence;

C. If they or any of them are not fit and

proper individuals, whether the licensees

are thereby not fit and proper persons."

SlT4/8/SH	20	11/10/89
Bond

So, in other words, Your Honours, what counsel assisting

put to the Tribunal and what the Tribunal accepted

was to interpolate into the section a concept which

was foreign to it; that is, the fitness and propriety

of an individual to hold a licence. There is no

such concept. What should have been done after A,

was to then ask the question, "What do those adverse

findings against those individuals have to say about

the fitness and propriety of the licensee corporations?"

So, Your Honours, for those reasons as to

point 1, we submit that the Federal Court was plainly

right. The principles -

GAUDRON J:  Does anything really turn on that, Mr Gyles?

I mean, the Tribunal, on your view, stated an

unnecesssary test and undertook an unnecessary step

but you do not cavil at A, do you?

MR GYLES:	No, no.
GAUDRON J:	And you do not cavil at C.

MR GYLES:  I am sorry, Your Honour, C? Yes, Your Honour,

yes, we do. In our written submissions, we put -

I mean, it is the interposition of - - -

GAUDRON J: It is the "not fit and proper~individuals·."

MR GYLES:  Yes.

GAUDRON J: Yes, well, does that just simply - I mean, I

would have thought allowing your argument for the

moment, or accepting its correctness, that what

you are thereby securing is a position more

advantageous to your client than would otherwise

have been the case.

MR GYLES:  But, Your Honour, with respect, it is - - -

GAUDRON J: That one could, really, have undertaken it all

adverse to the interests of the licensee corporation

without at any stage being required to make a finding

as to the fitness and propriety of your client.

MR GYLES:	Indeed, Your Honour, but - - -
GAUDRON J:	Yes, but that would have been far less protective

of the licensee corporations than what was done.

MR GYLES:	Well, I would submit not, in the events which happened, Your Honour, because what happened was
that the Tribunal completely ignored all aspects
of the companies bearing in mind that one of them
was a public company in itself; there was another
interposed public company; the Tribunal ignored all
other considerations apart from Mr Bond.

SlT4/9/SH	21	13/10/89
Bond

GAUDRON J: Well, that is a different point.

MR GYLES:  But it is a consequence, with respect, Your Honour,

of the finding of law so that the question - they

were invited to say, "Ignore all else but Mr Bond".

They accepted that invitation. They thereby shut

their eyes to a great deal of material which, as

it happens - -

GAUDRON J: Well, that does not emerge from those questions

or those three matters; A, Band C - - -

MR GYLES:  No, that emerges from the way in which the Tribunal

dealt with the matter as found by the Federal Court.

So that, Your Honours, as to question 1, we submit

that the principles which were set ou~ we remind

Your Honours, in our written submissions at

pages 41 to 48 are not the subject of any ground

of appeal and are said in a manner which, in our

respectful submission, cannot be cavilled at.

GAUDRON J:	I am sorry, where are· you?
MR GYLES:	I am just reminding Your Honours that in our

written submissions we point out that the principles

of law involved are set out at pages 41 to 48 in

a manner free from error, and are not subject to any

ground of appeal.

GAUDRON J:	Yes, thank you.
MR GYLES:	Your Honours, thus we submit that, first of all,

the Federal Court were plainly right; secondly, that

the way in which the issue was posed by my learned

friends, whether it be originally or now, is a false
issue. It did not, really, arise and when t~e matter

is analysed, the question is one individual to the

case depending upon whether or not the Tribunal

correctly applied that test and whether the Federal

Court correctly viewed the Tribunal's application

of it. So, 3(a) of theirs does not arise. In the

way it has been formulated in argument, I submit

that the Federal Court were plainly right and that

there is no special leave point there.

As to the requirements of natural justice

which are wrapped up in (b) and (c), in our written

submissions, Your Honours, we endeavoured to put

the context in which this argument appears and to

remind Your Honours that the starting point of this

matter is at page 52, lines 3 to 8, where the court

says:

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.

S1T4/10/SH	22	13/10/89
Bond

Now, reading that in context with what appeared before it and looking at the decision, it is plain

enough that there was a self abrogation by the

Tribunal and it was based upon the submission to them that the Premier, not being amenable to its

jurisdiction, there should be no findings made.

Now, Your Honours, let me make it clear:

we are not suggesting for a moment that the Tribunal
need make findings, as my learned friend said, of

criminality. That labelling what is done as a breach

of law may not be appropriate. However, what was

required to be done was to examine what took place

between Mr Bond and Sir Joh Bjelke-Petersen fully

in understanding what was said and what the purposes
of each of the parties was in the context and I do

not put that as a general proposition in all

circumstances, Your Honours. There plainly may be

occasions where you may look at one side of a transaction.

MASON CJ:  Your proposition that having disbarred itself

from an inquiry into the purposes and motives of

the Premier, the Tribunal disabled itself from making,

as it were, a comprehensive and reliable inquiry

into the purposes and motives of Mr Bond.

MR GYLES:  Yes, that is so, Your Honour, and we do so

particularly by reminding Your Honours, as we do

at the bottom of page 4 and the top of page 5, of

the issue which was being determined by the Tribunal

and enunciated by the Tribunal as the issue which

they were determining and they are set out and I

will not read them, Your Honour. The first, a

delineation, I have taken the Court to already; the

second and the one which was the occasion for the

debate was "the nature of the transaction between

Mr Bond and Sir Joh Bjelke-Petersen relating to the

defamation settlement."

Now, that issue was posed as the issue and

remained the issue. It was the issue when Sir Joh

Bjelke-Petersen was called to give evidence. There

was evidence called from journalists as to the
defamation settlement. There was a whole body of

evidence called in order to properly and fully answer

that question. When time came for addresses, with

the issue remaining as it was, the Tribunal then

said, "Well, we propose to answer that question" -
that question - "without making relevant findings

about Sir Joh Bjelke-Petersen's side of the transaction

because he is not within our jurisdiction."

Your Honours have not got before you the precise of

their ruling but Your Honours can take it that that

was the substance of it. They said, "We are not

a corruption commission and we do not have jurisdiction

in the State of Queensland" but, if it was proper, as

S 1T4/ 11 /S:-!	23	13/10/89
Bond

we agree it was proper, for the Tribunal to make

a finding as to the nature of the transaction, they

would have to do so by taking into account relevant

material and whilst they are given, of course, a

great deal of latitute as to what they do, ultimately,

take into account, to arbitrarily preclude themselves

from doing so, in our respectful submission, was

incorrect.

DEANE J:	What is the sort of material that you say they did not take into account?
MR GYLES:	They made no finding as to what Sir Joh Bjelke-Petersen'

propositions to Mr Bond were, for a start. They made some findings, Your Honour, but there is that duality

in what happened.

DEANE J: Well, where are the gaps in their findings about the

communications between the parties?

MR GYLES:	Well, Your Honour, that would take a little bit of demonstration but they do not - - -
DEANE J:	But they do exist, do they?

MR GYLES:  Yes, I so submit, Your Honour. What they have done

is to give an outline narrative of events without

incorporating all of the narrative and certainly

without incorporating any issue as to purpose of

the Premier and the impression that the Premier made

upon Mr Bond.

DEANE J:	They have not simply said it would be unfair to judge Bjelke-Petersen's motives and purposes because
he is not a party and, in any event, all we are
concerned with is the effect of what was said and
done on Mr Bond and his companies. That is not what
they -
MR GYLES:	No, it was not as simple as that, Your Honour.

It was not as simple as that.

DEANE J~	But that would be completely proper, would it not?
MR GYLES:	Your Honour, I would submit not, if you are

answering a question in the nature of the transaction.

DEANE J:  What, to judge what one person has done in a bilateral

situation by reference to things as they seem to
that person and not by reference to hidden motives

and purposes of the other person?

S1T4/l/SH	24	13/10/89
Bond

MR GYLES:  No, Your Honour, we are not talking about hidden

motives and purposes. That is not the - - -

DEANE J:	That was what I was asking.
MR GYLES:	No, but, Your Honour - - -
DEANE J:	You say that is not what they have done.
MR GYLES:	I submit that is not what they have done.
DEANE J:	But you say it would be wrong if they did it anyway.
MR GYLES:	I would say that if they are asking themselves

the question, "What was the nature of the transaction?" then it is implicit in that you must look to both sides of the transaction.

DEANE J:  And has the Federal Court said it would be wrong

if they took the view that the other party's motives

and purposes were not relevant, what was relevant

was things as they appeared to the Bond companies?

MR GYLES:  What the Federal Court said, in essence,

Your Honours, was that where you have an issue as to

the nature of a bilateral transaction you must look

to both sides of that transaction.

DEANE J:  Including purposes and motives communicated or

uncommunicated?

MR GYLES:  Your Honour, they did not go so far as to say that,

no.

DEANE J:	What, did they say nothing about that?
MR GYLES:	Nothing about uncommunicated or communicated motives.

That was not part of their judgment. Could I just remind Your Honours it has wider ramifications than

simply Sir Joh Bjelke-Petersen's purposes.	Although
there was a body of evidence as to, for example,

whether that settlement was an appropriate settlement,

that is the nature of the transaction,

including a contemporaneous opinion which

Sir Joh Bjelke-Petersen had as to the chances of success and the quantum of damages, all of this material was tendered but at the end they said,

"We are not going to assess whether it was a

reasonable transaction." Now, it was highly relevant,

with respect, to know whether the Premier genuinely

held the view that he was entitled to $400,000

damages.

MASON CJ:  But if you look at page 52, the complete paragraph

on that page, and the first sentence in it, the Tribunal made a finding as to Mr Bond's belief.

SlTS/1/HS	25	13/10/89
Bond

MR GYLES:	Yes.
MASON CJ:	Now, why was it not permissible for the Tribunal to

make a finding as to his belief without making any

findings about the motivation of the Premier?

MR GYLES:  Your Honour, it might be appropriate to make a

finding about belief. Clearly that can be done, but

the question which was being addressed was not

Mr Bond's belief but the nature of the transaction.

That is point 1.	It is really a matter of procedural
fairness, Your Honours.	That is the case that everybody

came to meet, and then at the last moment they say,

"We will not find that case. We will find another case",

and that is what the Federal Court meant when they

referred to natural justice. That is why I say,

Your Honours, with respect, that this is not a point of general importance. It depends entirely upon the

way this arose.

Secondly, Your Honours, whilst it may be relevant

to make a finding about Mr Bond's belief we would not

challenge that, it would also be relevant in assessing

the consequences of that to know what the wider context

of that belief was. Now, if Sir Joh Bjelke-Petersen - - -

GAUDRON J:  But that really, is it not, is to concentrate

entirely on the transaction when it is the consequences

of the transaction to which the Tribunal looked as,

for example, in the evidence later given and the attempt

to mislead the Tribunal and it went from these facts,

as it were, to look at matters which it said were

directly relevant to the fitness of the Corporation

to hold the licence like the relationship of the people

in the company with the Tribunal.

MR GYLES:  Your Honour, nobody put a submission, either to the

Tribunal or to the Federal Court, that matters such as

that are not relevant in the exercise of a discretion.

That is not the case. The Tribunal can take into

account a wide range of circumstances in exercising

its jurisdiction and there was no attempt on our part
to confine that.	The complaint made to the Federal

Court and the complaint which they upheld was that

you do not find the nature of a transaction by looking

only at the subjective views of one side.

GAUDRON J:  That assumes that you had to find the nature of

the transaction and that the nature of the transaction

was so found, and the point I am suggesting to you

is that (a) you did not have to find the nature of the

transaction and (b) that the Tribunal did not, that it

concentrated on something else which is explicable

when you look to the considerations which the Tribunal

then said were central, as it were, to the fitness and

propriety of the Corporation.

SlTS/2/HS	26	13/10/89
Bond

MR GYLES:  Your Honour, let me grant for the moment that it

might be relevant to know what Mr Bond's subjective

belief was. Let me also grant that it is relevant to

know whether there was any misleading of the Tribunal. Of course those things are relevant. It is a question

of the procedure by which that is dealt with by the

Tribunal about which the complaint is made. They pose

an issue and do not ever resile from the issue which

was to be investigated and then, at the very end of the matter, say, "We will still decide that issue, but only by looking at one small portion of it".

DEANE J:	Where does the issue that they pose appear, Mr Gyles?
MR GYLES:	At page 11, lines 2 to 14, followed by - - -
DEANE J:	Do not bother going to it.
MR GYLES:	At the foot of our written submissions, Your Honour,

at the bottom of page 4 to the top of page 5 and we

had set out where in the Federal Court judgment that

can be found. The question was one of procedural

fairness, Your Honour, first of all, but, in any event,

if they were wrong in law in precluding themselves

because they thought there was a limitation upon their

jurisdiction, is that not, in itself - and that was our

first point and remains our first point - they misled

themselves, they misdirected themselves as to law and they said, "We could not make findings because of the

difficulties of jurisdiction". Now, if they were

wrong in that, that error must be corrected and the

matter must go back to them. Nothing in this decision
will preclude the Tribunal from having the widest

flexibility in dealing with its role.

There is no point of general importance at all

involved in this. The Federal Court corrected

in our respectful submission, an error of law and a
failure of procedural fairness involved in one

procedural decision in the course of this inquiry which

is, as we have reminded Your Honours, at an interlocutory

stage.

DEANE J:	If it goes back to them on what the Federal Court has said, would it be open to the Tribunal to say,
"On the facts of this matter, what we are concerned with is really only Mr Bond's beliefs and motives,
therefore we will not bother about Sir Joh Bjelke-Peterson's
beliefs and motives.  We will only look at it from the
Bond side"?
MR GYLES:	Your Honour, our submission is that that would not be a proper result.

DEANE J:  That was not my question. The question was, would

it be open to them in the light of what the Federal

Court has said?

SlT5/3/HS	27	13/10/89
Bond

MR GYLES:  Your Honour, it would raise a real question for them

as to how a tribunal of this sort should act.

DEANE J:  Assume they are acting in accordance with the

Federal Court judgment.

MR GYLES:  The answer would be technically they would not be

precluded from doing that because the Federal Court

judgment related to the issues as propounded before

them. Now, we would argue that the proper result

would be they should take into account the other

considerations, but they would not be technically

bound to do so, Your Honour, I would submit.

Your Honours, the other points that we raise

under the heading General on paragraph 8, we draw

Your Honours' attention to that and we, of course,

also rely upon the fact that it was a unanimous

Federal Court. If Your Honours please.

MASON CJ:  Yes, thank you, Mr Gyles. Yes, Mr Ellicott.

MR ELLICOTT:  Your Honours, we adopt the submissions of

Mr Gyles appearing as we do for the licensees. Now,

this Court has, in the past, directed certain strictures

to the Australian Broadcasting Tribunal.

MASON CJ:	HARDIMAN's case,you are referring to?
MR ELLICOTT:	I am referring to HARDIMAN's case and I am

referring to the fact that the more they take an

adversary role the more their impartiality comes in

question and that is a matter which, we would submit,

in the public interest Your Honours should bear in mind.

I will say no more about it; Your Honours are familiar

with it.

May I address the Court, first of all, on the

question that my friend has just referred to. This

matter of - I will call it the natural justice point -

this question,which arose because the Tribunal failed	to fully consider the role of Sir Joh Bjelke-Petersen	in this matter, was adverted to by the Federal Court,
the Federal Court looked at all the issues and it came
up with a reasoned judgment about it. There was no
issue of principle that this Court needs to be
concerned about. They did not err in principle,
but in case there are some misgivings in Your Honours'
minds as to whether the Full Court dealt with the matter
appropriately, can I just first of all refer
Your Honours to the bottom of page 51 and the top
reasoning which led the Full Court to the view that it was not appropriate to come to a decision as to
of page 52, and Your Honours will see there the without first considering fully the role of
S i r Joh B j e 1 k e-Petersen . May I say - and I w i 11 take
Your Honours to this in a moment - this was not just a

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decision about motives. I will take Your Honours to

the decision where they actually find impropriety

in the transaction and the impropriety they then

refer to Mr Bond is that he acted improperly in

concealing the impropriety. Now, that is far different

from getting into a question of motives and beliefs.

They first of all said, "This is an improper

transaction", but they did it without considering in

terms of what we would say is fairness to Mr Bond

that they did it without taking into account fully
the facts which involved Sir Joh Bjelke-Petersen's

conduct, his motives, et cetera.

Now, having done that, we submit, it is clear

as daylight that it would be fundamentally unfair to

say of a person that that person had acted improperly
in concealing something when they had not, having
decided that what he was concealing was improper,
without first of all, in deciding that improper

conduct, looking at all the facts, and there is no

dispute as to the fact that the motives, the reasons,

the conduct of Sir Joh Bjelke-Petersen were not fully

taken into account. Now, can I take Your Honours

very quickly to pages 98 and 128 of the appeal book.

At page 98, line 4:

It follows from what we have determined

that in our view the arrangement entered
into by Mr Bond to pay Sir Joe Bjelke-

Petersen $400,000 and the subsequent

payment of that amount was improper and

~is attempts to conceal that payment were

improper.

That is the first one, and if Your Honours go over

that is in the decision of April - if Your Honours

go over to the decision in June at page 128, the

finding at line 35, the last two lines:

In respect of the defamation matter we

have found that Mr Bond's agreement to

pay $400,000 was in itself improper.

Now, when the Federal Court was saying that the question

was not fully investigated, it involved a lot of
evidence and it involved, for instance, evidence of

leading counsel in Sydney's view as to whether that

amount was a reasonable amount, or not. All the

Federal Court was really doing was showing that there

were circumstances that were not fully weighed up but

in the ultimate the Federal Court,having sifted through
this evidence and having a full appreciation and not

erred in principle as to what was a proper way to act

in terms of natural justice, came to the decision that

the person who needed protection was Mr Bond. He was

the one who would have been denied natural justice

or fairness in the procedure that was adopted and

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the proposition that if a person is to be found to

have acted improperly in relation to a particular

transaction, the proposition that to so find only
requires looking at, if I may put it elliptically,

half the facts, only has to be stated in order to

indicate that it is wrong and it is just simple

logical reasoning.

So on that point we would submit there is no point

of principle but, in any event, the Federal Court has been fully justified in the views it expressed at the

top of page 52. Now, on the other question - and

Your Honours have the written submissions we have

put in.

MASON CJ:	Yes, we have.
MR ELLICOTT:	Your Honours, that is a simple question of

construction, but let us declare as to what the
applicant for special leave has all the time been

saying because this is the great point of law that they

want this Court to consider and my friend, Mr Handley,

of course, has now decided to move to the side in

relation to that, but in the grounds that are in the

affidavit at page 136 - - -

MASON CJ:  Yes, we recall how the first question was stated,

repeated in the first edition of the submissions.

MR ELLICOTT:  Yes, that is how it was stated and that is how that

has always been stated because counsel assisting

throughout the inquiry after a certain date - I think
it was in February of this year - operated persistently

with the Tribunal on the basis that all they had to do

was find a lack of fitness and propriety in Mr Bond, ergo

a lack of fitness and propriety in the licensee and

Your Honours will appreciate that this not only affects these licensees, it affects much more substantial

licensees than these licensees and the delay in this

matter, there is an area - I will not go into it

fully, but only mention it - there is an area of public

importance in this case.

MASON CJ:	We are aware of the aspect of
MR ELLICOTT:	If Your Honour please, but in relation to this particular point, that was the point that was argued
in the Federal Court, that was the point that was persisted in by counsel assisting the Tribunal, and that is the real point and the only point of law that they are able to erect in relation to the meaning of
section 88(2)(b)(i), and it is clearly wrong, in our
submission.  You cannot say that the Tribunal is
confined to only considering the conduct of Mr Bond.
You can lift the corporate veil and look at what
Mr Bond is doing if he has ultimate control, but to
do that and not fully consider all the other matters -
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and that is the point	we submitted below was wrong.
Now, the only point of law, however, in all that,	1s

whether you could confine the consideration to Mr Bond.

Now, from beginning to end of their reasoning on 29 June, if you start from the beginning and read

through their decision to the end, they are only

considering - they isolate Mr Bond, there is no doubt

about that. They isolate his conduct, they look at

his conduct, they conclude that they are not going to

take into account the undertakings, and that is the only

point where they consider these other people, then they

say, "Mr Bond is not a fit and proper person to hold

a licence". As Mr Gyles points out, that is irrelevant

under the Act, but that is the test they lay down.

The only proper approach was, "What is the conduct of

Mr Bond that might be relevant?". You do not prescribe

"fit and proper" in relation to these other people. that conclusion, in the last two pages of their

decision under attack, they conclude, "Therefore,

the licensee is not a fit and proper person", and
there is absolutely no doubt, in our submission, that

that was the approach of the Tribunal, that is why

counsel assisting framed his submissions in that way,

and that is why when this matter first came to the

court the question was framed in that way.

In truth it is the only question of law which could

be brought up, but it is so clearly wrong that we

would submit this Court is not going to entertain it and,

in any event, it is a question of construction and

it is not, as such, a matter of public importance.

A matter does not have public importance simply because

it has significance. It has to be in itself a matter

of public importance and a pure question of statutory

construction is not a matter of public importance and for those reasons, Your Honours, we would submit that Your Honours will decline to grant special leave to

appeal.

MASON CJ:  Thank you, Mr Ellicott. Yes, Mr Handley.

MR HANDLEY:  Just briefly, Your Honours, my learned friend,

Mr Gyles, put that the only argument to the Federal

Court on the control question was the argument that

a finding of unfitness in a controller mandated

a finding of unfitness in the licensee. The wider

argument was put, Your Honours, at a page of the

transcript not drawn to Your Honours' attention

previously and it will only take a moment to make

the point. At page 259 Mr Justice Lockhart, who

was presiding, said at the top of the page:

Are you saying two things or one? Are you saying that de jure control in the

relevant sense here being Mr Bond's

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capacity ultimately to control the relevant
boards, you are saying that is de jure

control so far as relevant purposes are

concerned. Is that right?

MR ROBERTS:	Yes.
LOCKHART J:	And you say evidence to

support the tribunal's finding Mr Bond

was unfit to be a controller within

the BROADCASTING ACT sense.

MR ROBERTS:	Yes.
LOCKHART J:	Therefore you say QED?
MR ROBERTS:	Yes.
LOCKHART J:	I understand that argument.
MR ROBERTS:	But I can only say QED -

I think it is probably "But.I not only say QED" -

because they went one step further. Even

if we be wrong in relation to that they

went that extra step of making findings

that he did in fact involve himself.

LOCKHART J: That seems to me to be a

different step.

MR ROBERTS:	It 1s, yes.
LOCKHART J:	A different argument -

and so on.	So the two arguments were put, Your Honours,
in our submission, to the Federal Court.	Your Honours,

in relation to the finding about the defamation

settlement, we would respectfully submit that the key

point at which the Federal Court went wrong, with

respect, is at page 52, lines 13 to 16:	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.

There is no doubt that, in our submission, that is a key

part of the reasoning. Indeed, it is the ultimate

conclusion of the Federal Court, that without finding

one way or another whether the Premier extorted or

solicited- and that must mean improperly solicited,

I suggest, in the context -this payment, they were not

able to make fair and realistic and logical findings

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about Mr Bond's state of mind in the matter.

In our submission, that is incorrect for the reasons

we have already given and it shows that there is an

important error here in the approach of the Federal Court, with respect. Mr Gyles submitted that there

had been some denial of procedural fairness to

Mr Bond because the ultimate findings of the Tribunal

were narrower than the initial issues which they

posed for themselves at page 11:

Whether anything connected with the

payment of $400,000 ..... has any

implications as to the suitability

of companies associted with Mr Bond.

And at page 15, line 10:

The nature of the transaction between

Mr Bond and -

the Premier. Because they did not go to the boundaries

of those issues there has been some denial of natural

justice or procedural unfairness to Mr Bond. In

our submission, the findings ultimately made were

within the four corners of the issue which the

Tribunal posed for itself and there is no denial of natural justice in doing that, provided they

do not go outside the issue which was fairly and

fully posed for Mr Bond. Your Honours, we do submit

that there are a number of unsatisfactory features

associated with this decision, that it is arguable

that the Federal Court have outstepped the limits of

judicial review, they have gone beyond exercising a

merely supervisory jurisdiction and, for the reasons

we have already given, we submit that this is a proper

case for special leave.

MASON CJ:  The Court will announce its decision in this

matter at 2 o'clock.

AT 11.31 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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UPON RESUMING AT 2.01 PM:

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MASON CJ:  There will be a grant of special leave to appeal

in this case but in saying that I should point out

that there is a possibility that the Court might

revoke or qualify the grant of special leave should

it appear on the hearing of the appeal from an

examination of all the materials and the issues

that the grant is inappropriate.

AT 2.02 PM THE MATTER WAS ADJOURNED SINE DIE

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