Bond, A v Australian Broadcasting Tribunal

[1988] FCA 544

c

CATCHWORDS

BROADCASTING AND TELEVISION - Inquiry by Australian
Broadcasting Tribunal - Questions as to the suspension o r

revocation of licences or the imposition of conditions -

Nature of inquiry - Whether Tribunal bound to furnish, o r to

cause to be furnlshed, detailed particulars as to allegations

and possible orders - Witnesses associated with licensees	but
required by counsel assisting to give evidence	- Whether

counsel for licensee entitled to determine order in which

witnesses will be called and to lead their evidence in	chief.
Broadcasting Act 1942 ss.l7C, 25, BOA.
NSW G.989 of 1988

ALAN BOND h ORS V AUSTRALIAN BROADCASTING TRIBUNAL -

-	25
-
-	i .
-	3

6 October 1988

WllCOX	J	-
Sydney
IN THE FEDERAL COURT	OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	)	NO. NSW G.989 Of 1988
)
GENERAL DIVISION	)

BETWEEN: ALAN BOND

First Appllcant

BOND MEDIA LIMITED

Second Applicant

BOND CORPORATION HOLDINGS

LIMITED

Thlrd Appllcant

QUEENSLAND TELEVISION

LIMITED

Fourth Applicant

CONSOLIDATED BROADCASTING

SYSTEM (WA) PTY LIMITED

Fifth Applicant
NORTHWEST RADIO PTY LIMITED
Slxth Applicant

DARWIN BROADCASTERS LIMITED

- -

Seventh Applicant -

i	-	-
:

AND:	AUSTRALIAN BROADCASTING TRIBUNAL
Respondent

CORAM :  WILCOX J

PLACE	:	SYDNEY
DATE :	6 OCTOBER  1988

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Application be dismissed.

2. The applicants pay to the respondent its costs of the

proceeding, lncluding the costs incurred at the

hearing before Morling J on 23 and 25 August 1988.

Note: Settlement and entry of orders IS dealt with in Order

36 of the Federal Rul s. Court .

IN THE FEDERAL COURT	OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	)	No, NSW G.989 of 1988
1
GENERAL DIVISION	)

BETWEEN: ALAN BOND

First Applicant

BOND MEDIA LIMITED

Second Applicant

BOND CORPORATION HOLDINGS

LIMITED

Thlrd Appllcant

QUEENSLAND TELEVISION

LIMITED

Fourth Applicant

CONSOLIDATED BROADCASTING

SYSTEM (WA) PTY LIMITED

Fifth Appllcant
NORTHWEST RADIO PTY LIMITED
Sixth Applicant
DARWIN BROADCASTERS LIMITED

5 -

Seventh AppllCant	- - -
-

AND:	AUSTRALIAN BROADCASTING TRIBUNAL
Respondent

CORAM:  WILCOX J

PLACE : SYDNEY

DATE	:	6 OCTOBER	1988
REASONS FOR JUDGHENT

Thls application raises questions relating to the

conduct by the Australlan Broadcasting Tribunal, the
respondent, of an Inquiry under s.l7C(l) of the Broadcastlnq

- Act 1942. Section 17C(1) provldes:

"17C. (1) Where the Tribunal receives an

application under this Act requestlng	the exercise of
any of its substantive powers,	or proposes to exercise
any of Its substantive powers otherwlse than on	such an

applicatlon, the Tribunal shall hold an inquiry into the

requested or proposed exercise of the power."

Amongst the substantlve powers of the Tribunal are

powers "to vary, revoke or impose a conditlon of a licence

. . ." and "to suspend or revoke a llcence . . . ":	see
s.l7A(2)(c) and (d).

The appllcants. Alan Bond, Bond media Limlted, Bond Corporation Holdings Llmlted, Queensland Televlsion Limited,

Consolidated Broadcastlng System (WA) Pty Limited, Northwest

Radio Pty Limlted and DarWln Broadcasters Limited, are persons

3 -

who hold,-or are associated with the holders of, llcences	-=
-

-?

under thc Broadcastlng Act. ?

The applicants have all been represented In the

inquiry. In connection therewith they raise three questions for determination by the Court: whether the Trlbunal 1 s bound

to furnish to the appllcants further particulars of the
subject matter of the Inquiry, and whether the Tribunal is
bound to permit counsel for the appllcants, firstly, to
determine the order in whlch six witnesses who are associated
with the applicants shall be called to give their evidence to
the inquiry and, secondly, to take the evidence in chief of
those witnesses.

The history of the inquiry

A t a meeting held on 5 February 1988 the Tribunal

decided to hold an Inquiry In order to investlgate certaln

comments made by Mr Bond in an interview wlth	MS Jana Wendt in
relation to a defamatlon settlement made with	the former
Premier of Queensland by Bond Corporation. Notlce	of this
decision was given by letter	to Bond Media, the letter
indicating that issues for	the Inquiry were being settled and

would be forwarded when flnalised.

On 2 March 1988 the Trlbunal issued a notlce stating that it had commenced an lnqulry "Into issues relating to the

following commercial radlo and televislon licences owned by: - -

companies, assoclated with Mr Alan Bond". One televislon 4 -

- i

licence and five commercial radlo llcences were then

ldentifled. The notlce proceeded:

"This inquiry follows the viewlng by the

Tribunal of an unedited tape of an lntervlew

given by Mr Alan Bond on the program 'A

Current Affalr' on 2 2 January 1988. The

Tribunal also examlned the transcrlpt of the last QTQ-9 renewal.

The issues which wlll be addressed during the

Inquiry are as follows:

1. Whether anything connected with the

payment of $400,000 in settlement of a
defamation action by Sir Joh

Bjelke-Petersen against Queensland

Television Limited has any impllcatlons

as to the suitability of companies

associated with Mr Alan Bond to hold the

above broadcasting licences. In this

context it will be considered whether Mr Bond and companies associated with him are flt and proper persons to hold the

above licences.

2 .    Whether it would be advisable In the public interest for the Trlbunal to do any of the following:

(a) suspend any of the said licences associated with Nr Bond;

(b) revoke any of the sald licences;

(c) impose or vary conditlons on any of the said llcences.

3 .    Such other matters relevant to the Inquiry as the Trlbunal sees fit."

After referring to other televlsion and radlo licences held by

companies associated with M r Bond, the notice invited

submissions upon the issues.

Following the publicatlon of thls notice there was considerable correspondence between Messrs Blake Dawson i

- - -

Waldron,-the solicltors for the present appllcants, on the +ne

- -

hand, and-the Tribunal and the Australian Government

Solicltor, acting on behalf of the Tribunal and instructing counsel assisting the Tribunal In its inquiry, on the other. It is necessary only to refer to that part of the correspondence which touches on the matters falling for present determination.

On 9 March 1988, in response to an Inquiry, the Tribunal advised Blake Dawson Waldron that he issue of the

suitability of companies associated with Mr Bond to hold the

relevant licences was "not limited to the question of fitness

and propriety but may encompass other questions	such as
management capabilitles".

On 11 April 1988 Blake Dawson Waldron sent to the

Tribunal a submission dealing in some detail with the matters

referred to in the Tribunal's notlce.

On 2 2 April, in response to a further letter from Blake Dawson Waldron, the Australian Government Solicitor advised, amongst other things:

"1. The Trlbunal wlll consider any issues

bearing on the sultability of the
companles associated with Mr Bond to hold
the relevant broadcasting llcences which
evidence before it connected wlth the
payment of $400,00 In settlement of the
defamation action raises.

2.  It is anticlpated that the question of suitability raised by the Notice of

Inquiry wlll be determlned a by -

-

consideration of the conduct of those	4	-
-

- persons wlthin the licensee companles -

-	involved In the settlement of the	1
defamation action, both in relation to
that action and subsequently. The
Trlbunal will also consider evldence
given by those persons to the Tribunal in

earlier hearlngs and if approprlate, whether such actlons as the evidence discloses taken wlth earller flndings	of
the Tribunal constltute a pattern of
conduct. The Trlbunal wlll consider	the

impllcations of its flndings on these

matters."

The letter also included the names of eight witnesses who were

expected to give evldence, including	Mr Bond.
On 5 May 1988 the Australian Government Solicitor wrote a letter to Blake Dawson Waldron	in whlch, "(i)n an

effort to assist you", he set out "the lssues whlch counsel

assisting the Tribunal currently percelves to arise within	the
lssues nominated by the Notice of Inquiry".	As slightly
amended one week later, those issues were:

"1. Mr. Bond's bellef as to the truth or

substantial truth of the story broadcast
on 2 February 1983 on QTQ 9, Brisbane,

and the basis or bases of that belief.

2 . Whether there were facts concerning the

truth of the story of which Mr. Alan Bond
was unaware and whether M r . Bond took
reasonable steps to acqualnt himself with

those facts.

3. Whether the defamatlon action lnstltuted
by Sir Joh Blelke-Petersen in consequence
of that story was belng actively
prosecuted by hlm prlor to the
acqulsition of QTL by a company
associated with M r Bond.

4.  The advice possessed by QTL and its defamatlon insurers as to prospects of success and/or extent of potentlal damages in relation to the defamation action.

5. The nature of the conversatlons between -

- Sir	Joh	Bjelke-Petersen	and Mr. Bond, or	5
3
-

- persons associated with Mr. Bond, -

- touching upon the defamatlon writ. -

6. Whether those conversatlons amounted to a demand by S l r Joh for settlement of the defamatlon wrlt having regard to factors other than the legal merits of the defamation action.

l. The circumstances of Slr Edward Lyons' and M r . Peter Gallagher's appointment to the QTL Board.

8. Sir Edward Lyons' dlsclosure to the QTL Board of hls knowledge of an involvement in the facts which contrlbuted the basis for the story broadcast on 2 February

l.

9.	Whether Slr Edward Lyons raised the sublect of the Blelke-Petersen wrlt while a member of the QTL Board, and if so far (sic) what purpose.
10. The advlce taken	by Mr. Bond as to the

appropriateness of the settlement reached
with Slr Joh Blelke-Petersen.

11. The extent of inquiry made by Mr. Bond

into the likely level of damages were QTL

to fail in its defence of the defamation
action.

12. The sum paid by way of settlement of the defamatlon action and the person who pald that sum.

13. The extent to whlch QTL Board members were kept aware of the settlement negotlatlons and thelr outcome.

14. The meaning to be ascribed to Mr. Bond's remarks made to MS. Jana Wendt, partlcularly In relatlon to evidence glven by Mr. Bond before the Tribunal in 1986.

15. The clrcumstances in whlch the programme, which had orlglnally broadcast the story on 2 February 1983, was terminated by QTQ management.

16. The circumstances surrounding the

non-broadcast on 22 January 1988 on the

programme 'A Current Affair' of a segment of an interview between Nr. Alan Bond and

-

Ms. Jana wendt which had been broadcast

-	on 21 January 1988 as a promotlon for the	4	-
-
programme to be broadcast on 22 January	-

-

- 1988. " 7

Blake Dawson Waldron responded to the letter of 5 May

1988 by asklng for "proper partlculars" of the topics llsted

in this letter. To that letter	the Australian Government
Solicitor replled on 6 Nay 1988:

"I remind you that the Tribunal's Inquiry is
not in the nature of ordinary litlgatlon.

There is no question of presentlng a 'case'

against your client. The essence	of the
Inquiry is the knowledge that the

-a

Bjelke-Petersen defamation action was settled for a substantlal sum, that Mr Bond earlier gave evidence thereon to the Tribunal and then subsequently made certain comments in relation to the settlement to MS Jana Wendt.

what the Inqulry will look at 1 s whether in
all the circumstances surrounding those
events, a particular conclusion should be

drawn. In this regard, neither I nor Counsel

assisting the Tribunal have any views
whatever.

'Particulars' of any lssues will emerge as the

Tribunal's preliminary investigations unfold and in the course of evidence given by wltnesses at the Inquiry."

The hearing by the Tribunal apparently commenced -

about 9 May 1988. After evidence had been taken over a period

of about two weeks, there was a flurry	of actlvity regarding
the matters presently before the Court.	On 2 4 May, Blake
DawSOn Waldron wrote a letter to	he Australian Government

Solicitor seeking the following further particulars:

"1. Which substantive powers are proposed to

be exercised by the Tribunal?

2 . Please identify each person or

corporation who lt will be alleged or

suggested are not fit and proper persons

to hold a broadcasting llcence.

-

-	3 . Please state in respect of
.

(a) Mr. Bond, and
(b) each person referred to in 2 above,

In which manner or respect each such person is not a flt and proper person to hold a broadcasting llcence.

4. Please state the facts and material relied upon to support the allegatlons o r

suggestions that each such person is not

a fit and proper person.

5. Please state the terms of any conditions which rt wlll be proposed should be imposed on any llcence.

6. Please identify each person or
corporation who It will be alleged or
suggested does not have the requisite
management capability.

7 . Please state in respect of

(a) Mr. Bond, and

( b ) each person referred to in 2 above,

In what manner or respect such person does not have the requislte management capabillty.

8. Please state the facts and materlal relled upon to support the allegation or

suggestion that each such person does not

have the requisite management capablllty.

9. Please conflrm that the 'sultablllty'
referred to in the Notice of Inquiry
refers only to fitness and propriety and
the requislte management capablllty."

The solicltors asked that these particulars be provided

"before Mr. Bond and witnesses associated with	the licensee
companies glve evldence".

The Australian Government Solicitor replied to this,

4

- -

letter on-the following day by stating that the Issues	-
< .
remained %hose set out in the Notice of Inquiry and that ths

"factual issues perceived to arise by Counsel Assisting withln

these general issues" were as set out previously. But five

additional issues were added and the wrlter went on to mentlon
two matters which the Tribunal "may need to consider" in the

event that "adverse findings fall to be made against Mr Bond

on issues".

On the same day, at the hearing, senlor counsel foi. the applicants raised the questlon of his leadlng evidence

from certain witnesses.	Also on 2 5 May, the Australian
Government Solicitor dealt with this	matter in a letter to
slake Dawson Waldron	by saylng:

“It 1 s my view and the vlew of Counsel

Assisting the Trlbunal that the conduct of proceedings before the Tribunal is in the

hands of Counsel Assistlng, and it follows

that both the order of witnesses and the
taking of their evidence in chlef are matters

for determination by Counsel Assisting.

I have considered your request that you take

certain witnesses in chief, and advise that

Counsel Assistlng are agreeable to your	taking
the following witnesses ~n chief:-
Mr. Bond	Mr. Lodge
Mr. Asplnall	Mr. Beckwith
Mr. Jones	Mr. Coppin”

Each of the s1x named persons, I am Informed, 1 s assoclated with one or more of the Bond companies, as a director, employee or consultant.

slake Dawson Waldron responded to these two letters- by a single letter, also dated -

2 5 Nay, which read as follos:  - -

-	-
i

-“l. As	to the 2 page letter dealing wlth
.	witnesses
Subject to any dlrections by the Tribunal, Counsel for our cllents propose to take In chief all of the wltnesses necessary for the presentatlon of our cllents‘ case, including those relating to ‘the matter of the promotional material’. Unless the Tribunal otherwise dlrects, the order of those wltnesses is a matter for our Counsel although, of course, they wlll consult with Counsel Assistlng as to matters of mutual convenience.

3

In accordance with the Tribunal's usual

procedures, we will provide the Tribunal,

the parties and Counsel Assisting with a

list of witnesses whom we propose to

call, the order of wltnesses and copies
of statements of witnesses as soon as is
practicable prlor to the witnesses being
called.

2.     As to the 3 page letter dealing with

particulars

This letter does not provide a satisfactory answer to our numerous requests for particulars.

We propose to raise each of these matters before the Tribunal tomorrow before any further evidence is given. We confirm the suggestion made between Counsel that it may save inconvenience 1f further witnesses were not brought before the Trlbunal until these matters are resolved."

Counsel dld in fact raise the matters at the hearing.

On 2 6 Nay the Trlbunal was asked to make certain directions.
Those directions included a direction that counsel assisting
provide the particulars sought in the letter of 2 4 May from

Blake Dawson Waldron to the Australian Government Solicitor

and directions that counsel for the present applicants "may

take in chief the evidence of all witnesses whom they propese

- - S

to call"_and - that "sub~ect to questions of convenience" th&e

- i

counsel "may determlne the order of witnesses whom they

propose to call".	The Tribunal heard argument in respect of
these directlons. Upon	the followlng day the Chairman
announced the Tribunal's declsion.	In connection with the

matter of particulars the Chalrman said:

"Having examined all of the correspondence and

the Notice of Inquiry we do not consider it

appropriate to make the directlon sought as it
is our view that the Australian Government
Solicitor's letter of 2 5 May 1988 does give
the particulars sought in the licensees'

*

solicitor's letter of 24 May 1988. We do wish
to add, however, that In so far as the
Australian Government Solicitor's letter of 2 5
May 1988 purports to set out the present
thlnking of the Tribunal, it does s o
accurately. We have not formed any intent to
exercise any of OUK substantive Dowers under

the Broadcasting Act 1 9 4 2 In a manner adverse

to the licensees. Should that position change

we shall inform the licensees before finally- deciding whether to exerclse any of our powers giving the licensees adequate opportunity to

place material before us and to make
submissions."

In relation to the s1x witnesses referred to in the letter of 2 5 May, the Chairman said:

"As to the order of examination of any
particular wltness, as there is no objectlon
by any party to Mr. Shand's first examinlng
those witnesses, we are content to give effect
to the agreement that has been reached. No

direction is therefore necessary.

As to the order of wltnesses, ~t 1s our lvew
that that matter should generally be
determined by Counsel Assisting, at whose
Instance these six witnesses are to be called.
As Counsel Assisting has indicated that he
wishes that the aforementloned six wltnesses
be examlned in a partlcular order, and as we
can see no unfalrness to any party in those

persons giving evidence in that Order, we

decllne to give the direction sought by	Mr.	3
Shand QC. "	3
-	3
i -

-
-	1
Being dlssatisfied with these rulings,	the applicants

Immediately Instituted the present proceeding.	The Tribunal
then adjourned the Inquiry.
The present proceedinq

The Appllcation came before Beaumont J on 31 May 1988. His HOnOUK made interim orders, including an order restralning the Tribunal, until further order, from holdlni

the inquiry. Beaumont J expedited the flnal hearing of the

matter.

The final hearing proceeded before Morling J on 2 and

3 June 1988. At that time counsel f o r the applicants amended

the Application, whlch had prevlously been concerned solely
with the matters of partlculars and of witnesses, so as to

challenge the validity of the inquiry itself.

In a declslon handed down on 10 June 1988, Morling J

held that the inquiry was Invalid. Consequently, his Honour

did not deal with the more llmlted matters upon which the

applicants had originally approached the Court. But his

Honour's decision as to invalidity was reversed in a decision
of a Full Court given on 10 August 1988. Amongst other
orders, the Full Court remitted the matter to the trial Judge,
or other Judge of the Court, to determine the questions that
remalned in the proceeding. Unfortunately, although his

Honour heard some further argument in the matter, Morling J I

-	-
->
-

was not ayailable to dispose of the matter within an *

- -

acceptable-perlod of tlme. Accordingly, I was asked to deal

wlth the matters still outstanding.

In the meantime, on 2 5 August 1988, Blake Dawson Waldron forwarded further letters, both to the Australlan Government Solicitor and to the Trlbunal Itself, seeklng the

following particulars:

"1. Please identify each person or

corporatlon who is presently in

contemplation as not belng fit	and proper
to hold a broadcastlng licence.

2 . Please state in respect of -

( i ) M r Bond: and

(ii) each person referred to in (l),

In which manner or respect each person is contemplated by the Trlbunal as not being a fit and proper person to hold a

broadcasting llcence.

3. Please state the conduct which it is contemplated the Trlbunal may suggest that each such person is not a fit and proper person.

4.  Please state the terms of any conditions which it is contemplated could be imposed by the Tribunal on any licence.

5. Please identify each person or
corporation whom it is contemplated may
not have the requlslte management
capability.

6. Please state in respect of -

( 1 ) Mr Bond; and

(il)each person referred to in (1) above,

in what manner or respect such person may	-
not have the requisite management	3

- capability.

i -

- -

- l . Please identify the conduct which it is

- contemplated may suggest that each such
person does not have the requisite
management capabllity.

8. Please identify the conduct which it 1s

contemplated may suggest that M r Bond and

others in 1986 made a concerted attempt
to persuade the Trlbunal flasely that the
payment of $400,000 was made ln
consequence of a genulne bellef on the
part of those persons that that sum was a

proper and ~ustified amount to pay ln

settlement of Sir Joh Bjelke Petersen's
defamation actlon.

l

9. Please Identify the evldence given to the
Trlbunal In 1986 which the Tribunal
contemplates may have been less than
candid and honest.

10. Please speclfy the respect In which Mr Bond and those assoclated with him are contemplated as not havlng displayed the

requisite standards of candour and honesty required of the holders of publlc broadcastlng licences In the glving of the evldence to the Tribunal during the hearing into the renewal of llcences in 1986.
11.	Please give particulars of the conduct on the part of Mr Bond that the Tribunal contemplates may have constituted a pattern of conduct such as to require action by the Trlbunal in relation to the radio and television licences held by him. "
The Australian Government Solicitor	responded on 31

August :

"Thank you for your letter of 2 5 August 1988.

In that letter you seek, in effect, to

interrogate the Australian Broadcasting
Trlbunal ('the Tribunal'). In my view and
that of the Tribunal it is Inappropriate for

you to seek to interrogate the Tribunal.

I have advised the Tribunal that the

requirements of natural justlce do not impose	-
any obligation on the Trlbunal to provlde	4 -

'particulars'	of the nature sought In your	-.
-

letter. Thls view	is conslstent with the	?
i -

judgment of the Full Federal Court in Bond v

ABT	- (G 1030/1988).
I am instructed that the Trlbunal has not
formed any vlews as to the facts under investigation and has formed no concluslons as to the likely outcome of the inquiry."

Subsequently, the Australlan Government Solicltor conflrmed that the Trlbunal had made a declslon not to supply these particulars.

Before dealing with the substance of the matter, I'

should say that I was informed by counsel that an application

has been made, on behalf of the present applicants, to the

High Court of Australla for an order granting special leave to

appeal to that Court against the declslon of the Full Court upon the questlon of invalidity. I thereupon discussed with counsel the question whether it was desirable for me to

postpone determinatlon of the present problems until after the

completion of proceedlngs in the Hlgh Court. However, I was

asked by counsel for both partles not to take thls course.

The present intention of the Tribunal, sub~ect to what may in

the meantime happen in the High Court, is to resume the
hearing on 17 October 1988. Consequently, it is thought
deslrable that the remainlng questions ralsed by the

Applicatlon be resolved as soon as posslble, ln order that the

Tribunal may take any actlon necessary to comply with the

Court's orders In good tlme before 17 October. Although there 1s a measure of Inconvenience In taking the course requested by counsel, In the sense that anything I say may have to be reconsidered in the llght of any observatlons made by the High	-	.a
-

Court rel_atrng to the nature of the inquiry, I think that, g n

- 3

balance, I ought to take the course sought by counsel; the

more especlally because that course 1s urged on behalf of both

parties and by counsel having an intlmate knowledge of the
history of the inqulry and the matters under investigation by
the Tribunal.
Some fundamental propositions

Before turning to the particular matters in relatlon to which orders are sought, I note flve propositions relatlng

to the exercise upon whlch the Court is engaged. The flrst

four of these propositions are uncontroversial. But as each

is of fundamental importance it 1 s desirable to set them out.

Firstly, in undertaking the subject inqulry, the Tribunal is bound by the common law prlnciples of natural lustice. The Tribunal is empowered, by the Broadcasting Act,

after Inquiry, to make orders adversely affecting one or more

of the various licences referred to in the Notice of Inquiry.

Those are licences in which the applicants, of some of them,

have Interests. The value of those interests may be adversely

affected -- perhaps very slgnlficantly -- by any exercise of

the power. The present case is covered by the prlnciple enunciated by Mason J in Kloa v West ( 1 9 8 5 )	1 5 9	CLR	550	at
p.502:

"It	is	a	fundamental rule of the common law	-
-

-doctrine of natural justice expressed in -

_traditional terms that, generally speaking, -

-when an order IS to be made whlch will deprive	+
a person of some right or Interest or the legitimate expectation of a benefit, he 1 s entitled to know the case sought to be made agalnst him and to be given an opportunity of replying to it: ... The reference to 'rlght or Interest' in this formulation must be understood as relating to personal liberty, status, preservatlon of livelihood and

reputatlon, as well as	to proprletary rights
and interests."

See also FA1 Insurances Ltd v Wlnneke ( 1 9 8 2 ) 151 CLR 342,	a
case where the question of renewal or non-renewal of an insurance licence was under consideration.

Secondly, and supplementing the common law obllgatlon described by Mason J, there are two statutory provisions

directly applicable to the present case.	The first 1 s s . 2 5 of
the Broadcasting Act which	reads:

" 2 5 . ( 1 ) The Tribunal shall, wlthout regard to

legal forms and solemnitles, make a thorough
investigation into all matters relevant to an inquiry

under this Division, and may give all such dlrections

and do all such things as the Tribunal considers are

necessary or expedlent for the expeditious and just
hearlng of the inquiry.

( 2 ) The Trlbunal is not bound by legal rules of evldence and may inform itself on any matter In such manner as it thinks fit.

( 3 ) Subject to section 19, the Tribunal shall

ensure that every party to proceedings before the

Tribunal at an ordinary	inquiry is glven a reasonable
opportunity to present hls	or her case."

Nothing in s.19 -- whlch requires public hearings, sublect to some provislons regardlng confidential lnformatlon -- affects the applicatlon of s . 2 5 ( 3 ) to the present case.

The second statutory provision is s .8OA which reads:

"s .8OA. In the performance of ~ t s functions under

this Part, the Tribunal shall act fairly and Impartial12 ..

and sfiall observe the rules of natural lustice." i

Sectlon BOA is included in Part I I I B of the Act, dealing wl-zh

licences. That Part includes ss.85, under whlch section

licence conditions may be varied or revoked or further
condltlons imposed, and s.88, whlch section authorizes the
Tribunal to suspend or to revoke licences.

Thirdly, an inqulry Instituted by the Tribunal under s.l7C(l) of the Broadcasting Act is inquisltorial In

character. The Inquiry	1 s inltiated elther by an applicatlon,
under 5.178 of the Act, made by a person seeklng	that the
Trlbunal exercise a substantlve	power, or else by a proposal

-- ~n the sense identified in the Full Court declsion in this

case -- for such exerclse emanating from within the Tribunal

itself. In elther case the question falllng for consideration at the inqulry is the desirabllity of exercising the relevant

power. In some cases, one or more licensees may have a

direct, particular and presslng concern with the question
whether that power should be exercised; In other cases, for
example where some general determination 1 s to be made, the

outcome may not be a matter of great moment to any licensee.

But regardless of the category into which a given inquiry falls, it retalns Its character as an lnvestigatlon by the

Tribunal into the desirability of its taklng a	particular
course of action. Whatever	the prlvate interests at stake,
an inquiry is never Inter partes litlgation:	see The Queen v
Australian Broadcastlng Trlbunal;	Ex parte Hardlman (1980)+

.. -

144 CLR 1-3 at p.33. -

-	i	-
-	i

Fourthly, this Court 1 s entitled to lntervene In

relation to an inqulry conducted by the Trlbunal only In a
case in whlch it appears that the Trlbunal has fallen, o r is
likely to fall, into legal error; glvlng to the term "legal

error" a connotation sufficient to include each of the grounds

referred to in the Administrative Decislons (Judicial Review)

- Act 1977. Except to the extent that such it is for the Tribunal to perform its functlons in lts an error is shown;

own way

free of any interference by this Court.

In recognition of this fourth proposition, the applicants have sought to brlng their case within various

grounds for relief set out in	the Administrative Decisions
(Judlcial Review) Act.	I will ldentlfy each of the grounds

relied upon in discussing each of the toplcs falling for

consideration.

The final proposltion is contentious. Counsel for

the applicants suggest that, although an lnqulry under

s.17C(1) starts life as an lnqulsitorial proceedlng, ~t

subsequently becomes adversarlal In character. Thls

metamorphosis occurs, counsel submit, when witnesses

associated with a party potentially adversely affected	by the
Tribunal’s declslon are about to glve their evidence.	At that
polnt, say counsel, procedures commonly assoclated wlth	inter
partes litigation, such as the supply of partlculars of	f

-

allegatlQns, become appropriate. -

- 4

I see difflcultles about thls submission. In the

first place, it assumes that it will always be possible,

durlng the hearing, to chart the course of possible

dlsadvantage in the outcome. There	1 s no problem about thls
in a proceedlng, such as	the present, dealing with the fltness
of a particular llcensee. But	ln an inquiry, under s.l7C(l),

which deals, for example, with the determlnation of program standards, there may be many people, licensees and others, - whose interests are potentially affected, for better or for

worse and perhaps significantly, by partlcular outcomes. The

inquiry would become unmanageable i f , in relation to each
party potentially disadvantaged by each possible result, the
Tribunal were bound to treat the inquiry as inter partes
litigation with a concomitant obligation to supply particulars

of possible contemplated decisions. Secondly, underlying the

submission 1s a	notion that, when witnesses associated with a
particular party are called to give evidence,	by counsel

assisting, or by the Tribunal Itself, the Tribunal is then -
hearing that party's case; so that there is an obllgation to

supply precise particulars of allegations before those

witnesses are called. This notion treats those witnesses as

being witnesses for that party, notwlthstanding that they are

called otherwise than at the intiative of that party. Thls

notion has given rlse, in the present case, to the submission that counsel for the applicants are entltled to determine the order in which, what they called, "Bond camp" witnesses should

give their evidence, this submission being lustified upon the - 4

- -

basis that this prerogative is an essential ingredlent of - 3

- 5

their being able to put the applicants' case.

I think that the submissions to which I have adverted

are erroneous.	The Inquiry remains throughout an
lnvestlgative proceedlng. All witnesses	called by counsel

assisting, or by the Tribunal, are called in aid of that

investigation; not to	put anybody's "case". I agree that, at
some stage, a particular party may wish to	put a positive
"case" to the Tribunal; and,	for that purpose, to call
witnesses who might not otherwise have been called.	Although

lt was probably not necessary to so provlde, s.25(3)
specifically affirms the entitlement of a party to take that

course. But these circumstances do not mean that, at some

stage, the inquiry changes its character from an investigation
to an adversarial proceeding or that the entitlement of a
party to present his or her own evidence changes the proper
characterization of the evidence of the witnesses called by
counsel assisting or by the Tribunal.

Particulars

Two separate complaints are made in connectlon with

the matter of particulars. They relate respectively to the

requests for particulars made on 24 Nay 1988 and on 25 August

1988. In each case the appllcants refer to a "decision", within the meaning of s.5 of the Administratlve Declsions

(Judicial Review) Act,	as well as "conduct" within s . 6 of that
Act. It is accepted on behalf of the Trlbunal that the	-

- 4

- -

Tribunal-has decided not to direct counsel assisting to 2 *

- II

accede, and not, itself, to accede, to either of those
requests and that it intends, subject to any order of this
Court, to contlnue with the inquiry without those particulars
being supplied. In relatlon to each of the decislons against
the supply of those particulars, the applicants r e l y upon four

grounds: that the Tribunal dld not have the jurisdiction to make the decision, (Admlnistrative Decislons (Judiclal Revlew)

- Act s.5(l)(c)); that the declsion was not authorized by the

enactment in pursuance of which It was purported to be made,

(s.S(l)(d)); that the declslon involved an error of law

(s.S(l)(f));	and that the decision was contrary to law
(s.5(l)(j)).	In connectlon with the conduct of the Trlbunal

In proposlng to contlnue the Inquiry before particulars are

supplied, the applicants complain	of breach of the rules of
natural justlce (s.6(l)(a));	that procedures required by law

to be observed in respect of the conduct have not been, and

are not being, observed (s.6(l)(b)); error of law (s.6(l)(f);

and absence of ~urisdlctlon (s.6(l)(c)).

It seems to me that many of the grounds for revlew

advanced by the applicants are misconceived. There	is no
question of lack of ~urlsdlctlon	or authority and the only

suggested error of law is a failure by the Trlbunal to

percelve the extent of the obligatlons Imposed upon	it by the
common law doctrine	of natural justice or by s.25(3)or s.8OA
of the Broadcastlng Act.	In relation to thls aspect of the

case, the question is whether the Tribunal is bound, either at
common law or by either of these statutory provisions, to : - 3

-
-~

ensure the supply of the requested particulars before -

- i i

proceeding with the hearlng.

The content of the common law duty to glve natural

justice to a person potentially affected	by the outcome of an
lnqulsltorlal proceeding was consldered	by the Judicial

Committee of the Privy Council in Mahon v Air New Zealand

Limited [l9841 1 AC 808. That case arose out of a Royal

Commisslon, conducted In New Zealand, into the causes of the crash in Antarctica of an Air New Zealand aeroplane. In his report, the Royal Commlssioner, the appellant, made stringent

criticisms of the alrline and of some of Its offlcers. He
ordered that the airline pay $150,000 towards the cost of the

Royal Commission.

At pp.814-815 of the report, Lord Diplock, on behalf of the Judicial Committee, contrasted the nature of an

"investigative lnqulry into facts by a tribunal of inquiry" wlth "ordinary clvil litigation" conducted by trial judges.

His Lordship pointed out that, whereas in ordlnary civil	-
litigation the judge is concerned to determlne where, upon	the
balance of probabllitles, the truth lies in respect of such evidence as the partles have chosen to adduce to the court, the situation is dlfferent In relatlon to an lnvestlgative

lnqulry. Writlng wlth the instant facts In mind Lord Diplock

sald:

"In an lnvestlgatlve inqulry, on the other
hand, into a dlsaster or accident of which the
commissioner who conducts it 1 s required, as

the judge was in the instant case, to inqulre

-

Into and to report upon 'the cause or causes	5
of the crash,' it 1 s inevltable, particularly	5

i f there are nelther survivors nor .-

eyewitnesses of the crash, that the emergence	T
of facts, and the realisation of what part, if
any, they played in causing the disaster and of their relative importance, should be more elusive and less orderly, as one unantlcipated
piece of evidence suggests to the
commissloner, or to partlcular partles
represented at the inquiry, some new llne	of

lnvestlgatlon that It may be worth while to

explore; whether, in the result, the

exploration when pursued leads onto to a dead
end or, as occurred in one partlcular lnstance

in the present case, it leads to the discovery

of other facts whlch throw a fresh llght on

what actually happened and why It happened."
Against that background, it is Instructive to turn to

Lord Diplock's descriptlon at pp.820-821 of the content of the relevant principles of natural lustice:

"The rules of natural justice that are germane to this appeal can, ln their Lordships' view, be reduced to those two that were referred to ~~ by the Court of Appeal of England In Reg. v.

Deputy Industrial Injuries Commissioner, Ex

arte Moore 119 Q.B. , 488, 4 9 0 , which

witE51h: exer=::: of an

Investigative ~urlsdlctlon, though one of a

different kind from that which was belng

undertaken by the ludge inquiring into the Mt.

Erebus disaster. The first	rule is that the
person making a finding in	the exercise of

such a lurisdictlon must base his decision
upon evidence that has some probatlve value in

the sense described below. The second rule is

that he must listen fairly to any relevant

evidence conflicting with the finding and any rational argument agalnst the finding that a person represented at the Inquiry, whose

interests (Including In that term career or
reputation) may be adversely affected by It,
may wlsh to place before him o r would have so
wlshed if he had been aware of the risk of the

findlng belng made.

...

The second rule requlres that any person

represented at the lnqulry who will be

adversely affected by the declsion to make the

finding should not be left In the dark as to	-
4
the risk of the flndlng being made and thus	- -
.

deprived of any opportunity to adduce	-
-additional material of probative value	which,	-

had it been placed before the declsion-maker,

mi ht have deterred him from making the

r%- in lng even though lt cannot be predicted

that it would lnevltably have had that

result."

Moore was a declsion of the Unlted Klngdom Court of Appeal given when Lord Dlplock, as he	later became, was a
member of that Court. The references	to the case in Nahon -

-

were to passages In hls Lordship's own judgment.	At p.490
Diplock LJ said:

"Where, however, there IS a hearing, whether
requested or not, the second rule requires the
deputy commissloner (a) to consider such
'evldence' relevant to the question to be
declded as any person entltled to be
represented wishes to put before hlm; (b) to
Inform every person represented of any
'evidence' which the deputy commissloner
proposes to take Into consideration, whether
such 'evldence' be proffered by another person
represented at the hearing, or is dlscovered
by the deputy commlssioner as a result of his
own lnvestigatlons; (c) to allow each person
represented to comment upon any such
'evldence' and, where the 'evidence' 1 s given
orally by witnesses, to put questlons to those
wltnesses; and (d) to allow each person
represented to address argument to him on the
whole of the case. This In the context of the
Act and the regulations fulflls the
requlrement of the second rule of natural
justice to listen, falrly to all sldes (see
Board of Education v Rice [l9111 AC 179 at
p.182) ."

The principles stated In Mahon were considered by Glbbs CJ in Natlonal Companies and Securltles Commlssion v

News Corporation Llmlted (1984) 156 CLR 296 at pp.314-315.

Because of the functlons of the Commisslon, the Chief Justlce thought that these principles were not appllcable to Inquiries conducted by It but hls Honour went on to say:

-

-
i

"However, assumlng thelr applicabllity, the = -

,requirement to whlch they refer is satisfled -

-by the procedure which the Commlssion has	7
suggested, namely, that If, at the concluslon of the hearlng, the Commlsslon proposes to publish any matter adverse to or critlcal of any person lt will afford hlm or ~t an opportunlty to be heard and call evidence on such matter before proceedlng further."

Glbbs C J observed that "the rules of natural lustice do not requlte the Commisslon to treat the hearlng as though it were a trial In a court of law".

There is no doubt that, in ordinary civll litlgation,

a party 1s entitled to have particulars of the case sought to

be made agalnst him or her. As Hunt J said in Etherton v

Publlc Service Board of New South Wales [l9831 3 NSWLR 297 at p.301:

“The fundamental principle In relation to

particulars in a civil case is that the party
must be made aware of the nature of the case
he is called upon to meet.”

Hunt J cited authority for that propositlon, and he applied It in the case before hlm in which the plaintiff faced a disciplinary charge lald by the defendant under the Public

.

Service Act (NSW). The declslon of Hunt J was affirmed by the

New South Wales Court of Appeal:	see [l9851 1 NSWLR 430.
It is equally clear that a person charged with a crimlnal offence is entitled to proper particulars.	The

principle was stated by Dlxon J In Johnson v Miller (1937) 59

CLR 467 at p.489:

“FOK a defendant is entitled to be apprised not

only of the legal nature of the offence with

which he is charged but also of the particular	-
act, matter of thing alleged as the foundation	S
pf the charge.”	-7
-

- -

See alsoIper Evatt J at pp.497-498. -

The princlple enunciated in Johnson v Miller has been applied in many subsequent cases. Notwithstanding	that, there
is no rule that a defendant	is entltled to particulars at the
commlttal stage:	see Ex parte Donald; Re McMurray (1969) 89
WN (Pt.1) (NSW) 462,	Ex parte Coffey; Re Evans [l9711 1 NSWLR

434. Thls seeming inconsistency may partly be justified upon the basis that, at the committal stage, a defendant is not In leopardy of conviction and that particulars will be available before any trlal. But In Moss v Brown [l9791 1 NSWLR 114 at

pp.129-130 the New South Wales Court of Appeal laid some

emphasis upon the difference between an inquiry and a trial:

"The function of particulars to confine issues,
and hence the evidence to be given, 1 s

inapproprlate, or almost so , at an Inquiry.

Subject to mlsuse of power to inquire into a

particular charge: ... the magistrate has the

power, and indeed the duty, ~n the end to

conslder whether the evidence is sufficient to

warrant the defendant being put on his trial

for 'an indlctable offence': s.41(6). SubjeZ to the observance of rules of fairness, he may Indict a defendant upon	a
different charge from that	the subject of the
Inquiry: ...	Subject again to the observance

of rules of fairness, and the bona fide
conduct of the inquiry, if the evidence
provldes prlma facle evidence of the
indictable offence lnqulred lnto,itwould be

contrary to the dictates of s.41(6) for the

maglstrate to conflne hls decislon by the

limits of an issue as on a trlal arising from
'particulars'. ... It 1s an lnquiry. It is
possible that neither side may be quite sure,
or even know, what will be the true content of
the evidence of witnesses, when they come to
give sworn evidence, and are cross-examlned.

The Crown may not be sure that wltnesses wlll

adhere to earller assertions; or, whlle

believing a witness 1s able to give evldence

in relation to	the charge, it may not know its	- P
Tontent, because the witness elects to	be	-
- -
silent until called to glve evidence.	a

-

-

Some danger exists, where advance information	-
is glven, that It be labelled as 'particulars', so that they are used as an instrument of pressure upon magistrates to confine the legltimate conduct of the inqulry as to evidence or otherwise as on a trial.
In an inquiry, there are many different means
by which a magistrate may ensure that persons charged have sufficlent lnformatlon to enable them reasonably to exercise rights of
particlpation In the lnqulry.	. . . 1x1 some

inquiries, particularly in a long one, it may be appropriate to take steps progressively to ensure that the defendants are aware of the

Crown case as it emerges, sufficient to facilitate cross-examination, leadlng evidence in reply and making final submlsslons. It may

be appropriate lnltlally not to intervene by

any direction and to permlt the Crown case to

be opened, and then to intervene when any

complexities or problems In the presentation of the evidence for the prosecution, and any problems that lack of information may present
to the defendants, are known and understood.
It may be appropriate to give such directions,
if any, from time to tlme, as appears
appropriate, to meet these problems; or to do
this only at the end of all of the evidence,
so that the defendant 1 s aware what the Crown
submits that the evidence establlshes, and is
better able to make final submisslons to the

maglstrate. The appropriate course may be

simply to grant an adjournment, or to defer
cross-examlnatlon of a particular wltness, or
to recall a witness. It may be approprlate to
order that information be glven in the form of
particulars. The prospect of lnterruptlon of
the inquiry should encourage the Crown not to
wlthhold available Information reasonably
sought. In short inqulrles of a slmple nature
the charge Itself may suffice, but, if not,
some advance information may be required, and
ordered to be glven, ~f the inquiry is to
proceed without interruption."

It seems to me that much of the above passage 1 s

appllcable to an inqulry under s.17C of the Broadcasting Act. Some s.17C inquiries may commence as a result of a detailed complaint respecting the conduct of a person, in connection	-	5
- .-

wlth which It would be practicable to glve preclse i -

- - i

particulars. But thls	will not always, or perhaps usually; be
the case. As Lockhart	J pointed out In the Full Court, in
thls case, "the effect	of s.l7C(l) is that the mere receipt of

a request from any person is sufflclent to requlre the
Tribunal to hold an lnqulry". And the lnterpretatlon of the

word "proposes" adopted In the Full Court means that the

inqulry may commence wlthout	the Trlbunal having formed any
view, even a tentative view, upon the question whether ~t	'
ought to exercise a substantive power or as to the facts
relevant to that question. Moreover, regardless	of the

precision of the Initial complalnt, the sltuation may change
during the course of the inquiry. An lnquiry under s.17C is

not structured lltlgatlon, wlth Issues settled in advance.

The Tribunal must follow the evldence wherever It leads,

provlded that it 1 s related to the possible exercise of the

relevant substantive power,	and regardless of the attltude of
the person who Initiated the matter.	As the Hlgh Court said
in Hardiman's case at p.33:	.

"TO dlscharge its duty the Trlbunal must In an

appropriate case investigate for itself the
possibility of contravention, even in
circumstances where there is no party before

the Tribunal willing, anxious or able to

party in an inquiry before the Trlbunal	pursue the 1ssue. ... The appearance of a
alleging that there are, or may be, contraventions of the Act cannot qualify or modify the Tribunal's statutory duty to Inquire into relevant matters."
The comparlson made by the Hlgh Court, a little later

in the ~udgment, between crimlnal proceedings and an inquirl

- - - -

1 s important in the present context: < - -

- ?

"The proceedings were not proceedings in a

criminal court whlch mlght result ln

conviction and penalty where it would have
been appropriate for the party alleging the

offence to specify it and glve appropriate

partlculars of it. The znqulry was an

administrative inquiry ln whlch the Tribunal
had a statutory responslbllity to lnquire into
the issue. It was bound to discharge ~ t s

responsiblllty, notwlthstandlng that the same

issue could arise In proceedlngs for offences

against the Act."

The Court’s comment on the matter of particulars was made by

way of obiter dictum. But havlng	regard to its source, great
weight must be given to ~ t ;	the more particularly as the
comment accords with the vlews expressed in MOSS v Brown.	The
confines of particulars are inconsistent in principle with	the
performance of a statutory duty to follow the evidence wherever it leads.
This polnt is highllghted by conslderation of the partlculars sought in thls case.	The first request, made on

2 4 May, commenced by asklng “Which substantive powers are

proposed to be exercised by the Tribunal?“. Presumably the writer meant “proposed by the Tribunal“, thereby maklng the

assumption that the Trlbunal had a flrm proposal. The

validity of that assumptlon was denled by the Chairman on 21

May. The questions which followed sought information about partlcular allegatlons. It 1s not clear whether the writer

had in mlnd allegations by the Tribunal, by counsel assisting

or by the Australian Government Sollcltor;	but all three have
denied that they were then maklng any positive	allegations.:

-	4
j

The Tribunal was simply hearing evldence relating to the

- - i 3

matters formulated as lssues, which evidence was belng adduced

by counsel assisting on the instructions of the Australian

Government Solicltor. Once	lt is understood, as the Full
Court held, that there	may be a valld lnquiry under s.17C

without a firm lntentlon by the Trlbunal to exerclse a

substantive power, and without formal allegations, it becomes

apparent that these questlons are inappropriate.	The
situation is quite unlike cases, of which Etherton is an	'
example, in which precise charges are laid before a disciplinary inquiry.

Although the second request, on 25 August, was couched in different terms, the same comments may be applled

to it. The various questlons used the words "is

contemplated". In some cases it was made clear that these

words referred to the contemplation of the Tribunal. In other

cases the identity of the contemplator was not revealed, but

presumably these questions also	were intended to refer to a
contemplation by the Tribunal. Once again,	the assumption was

made that the Tribunal presently had a contemplatlon upon these various matters, an assumption at variance wlth e

Chalrman's statement on 2 7 May. Presumably, as the evidence

unfolded, the three members of the Tribunal who were
conducting the inquiry each formed impressions about various

matters. Their impressions may, or may not, have co-incided.

But these impressions ought to have been -- and, no doubt,

were -- merely tentative impressions open to reconsideratiffn .. ;9 - -

as further evidence was adduced, and subject to whatever - 4

- 1

emerged in submissions and even in the ultimate deliberations

upon the case of the Tribunal members. Under these

circumstances, it would be qulte mlschievous to require the
members of the Division to agree on, and to artlculate, their
tentative views In the form of particularized allegations.

Were the members to take this course, a serious question would

arise as to whether those members should contlnue in the

inquiry:  see The Queen v Watson; Ex parte AKmStrOnq (1976)

136 CLR 248, Livesey v New South Wales Bar Associatlon (1983)

151 CLR 288, The Queen v Maurice; Ex parte Attorney-General

(Northern Territory) (1987) 7 3 ALR 123.

The above considerations Impel me to the concluslon that it is a fundamental mlsconception to see the sublect

inquiry as an occasion	for the supply of the type of detailed
particulars sought by the applicants.	As is Indicated by

Mahon, the duty of the Tribunal is to ensure that the
applicants are made aware of the material placed before the
Tribunal, and whlch is relevant to the exercise of any power
in a manner adverse to their interests, and that they have a
full opportunity to put to the Tribunal such additional
material -- by way of both evidence and submisslons -- as they
may think helpful in persuading the Trlbunal against the

exerclse of such a power.

In applylng Mahon, I do not overlook the fact that a Royal Commisslon generally has no power to make substantlve

-

orders adversely affectlng persons whose conduct i

- 25

investigates whereas, at the end of a s.17C inqulry, the 3

- -

Tribunal may exercise powers drastically affecting	the
interests of a licensee. It	is possible to exaggerate the
slgnificance of the distinction.	A s Mahon itself eloquently

demonstrates, the findlngs of a Royal Commlssion may have a devastating effect upon the reputatlon of a person, perhaps causing an indlrect flnanclal loss exceedlng that which could

be sustained, In another case, as a result of the direct

exercise of power by a body obliged to ensure that full

partlculars of allegations are supplied. But, accepting that

there is a distlnction between the two types of inquiry, ~t is
not crltical to the present question. The existence of an

obligation to cause the supply of particulars of allegations

depends upon the question whether the sub~ect proceeding 1s

one in whlch speclfic allegations are belng made -- in which

case conslderations of both fairness and efficiency would

support the particularization of those allegations -- Or

whether it 1s a general inqulry into a particular	topic
without precise allegations as to conduct	-- in which case

particulars are both impractlcal and potentially embarrasing

to the proper conduct of the inquiry; the polnt made in -	Moss
v Brown.
The present applicants have been represented throughout the course of the inquiry.	They are aware of all
of the material so far put before the Tribunal.	They have had

the opportunity of cross-examining all of the witnesses who

have given evidence. There is no suggestlon that thls

sltuation will change or that the applicants will be precluaed - 4

from putting before the Tribunal such relevant evidence a n z

- i

submisslons as they may wish. The only possible question 1s

whether, accepting that no formal allegations have yet been
made and that the detalled partlculars sought in the two
letters are inapproprlate, the Tribunal has caused, or 1 s

llkely to cause, the applicants to be "left In the dark" as to

the type of'findings and orders whlch may

be made.

Notwlthstanding the fact that the matter is not

mentioned in Mahon, or in Moore, ~t should, I think, be
accepted that there are cases In which some speclflcation of
the issues IS necessary if an lnqulry IS to be fair. A person
potentially affected by the outcome of an inqulry 1s entltled
to understand the nature of the lnquiry and the issues being
lnvestlgated; otherwise meanlngful particlpatlon becomes

.

imposslble. The nature of an lnqulry, and the relevant issue

or issues, is often self-evident; but upon some occasions the
document establishing an inquiry is couched In such broad
terms that further informatlon 1s necessary. Having regard to
the width of the Tribunal's substantlve powers, thls situation
may occur in an Inquiry under s.17C of the Broadcasting Act.

In such a case falrness requlres the Tribunal to take such

steps as may be necessary to identify the sublects to be

addressed. Any such reflnement of the subject matter of the
lnqulry can, and should, be framed In terms of lssues and

relevant powers; the Tribunal indicating no vlew, however

tentatively, about the relevant facts or the likely outcome of
the Inquiry. Except where allegatlons have in fact been m%ae, - - -

it is inappropriate to supply thls additional informatlon a

- 7

the form of allegations.

The course to which I have referred has been followed

In thls case. The issues which have been notifled to the

applicants specify wlth preclslon the matters belng

Investigated. The notice of 2 March 1988 lndlcated the type

of order which would be under conslderatlon at the inquiry.	I
agree with the comment, made by Lockhart J in the Full Court, that the appllcants “had no doubt about the sublect matter of
the inquiry and its posslble outcomes ... l ’ .	The situation
is, of course, fluid.	A s additional materlal comes to hand
new questions may arise.	In partlcular, and without

commenting upon the substance of the matters under
investigatlon, evidence elicited from witnesses closely
associated with the appllcants may throw further light upon

the question whether any of those matters are relevant to

management capabilities, as distinct from fltness	and
propriety.	As the sltuation develops, it may become

appropriate f o r the Tribunal to ensure that the issues are

revised o r , in some other way, to direct the attention of the

applicants to particular aspects of the case.	But, upon the
history of the inquiry to date, there appears to	be no danger
that this duty wlll be neglected.
Reference should be made to an addltional submission of counsel f o r the appllcants. Counsel	draw attention to a

passage in the judgment of Gibbs CJ in Natlonal Companies and - - - - .

Securiti-es Commisslon v News Corporation, at p.316: <

-	i
“Further, when the Commission said that it

would give the respondents an opportunity to
be heard, It must have meant a proper
opportunity, and there 1s no reason to thlnk
that the Commission will not give to the
respondents adequate notice of any adverse

conclusion which It has tentatively reached,

o r of any crlticism which It tentatively

proposes to make, or that It will not listen
wlth an open mlnd to whatever materlal IS then
put before it by the respondents and give full
weight to such materlal.”

They submit that thls sentence indlcates a vlew that tentative conclusions ought always to be dlsclosed to a person

potentially affected by the outcome of an Inquiry.	I cannot
accept this submission.	It seems to me inconsistent with the

acceptance by Gibbs CJ of the adequacy of the requlrements
stipulated in Mahon. The statement made by the Chief Justlce

must be read in the light of the facts of the case then under

consideration. The appellant Commlssion was engaged in a

prlvate hearlng. The High Court held that News Corporatlon was not entitled to be represented throughout that hearing. It followed that, in the absence of some lntimatzon of

relevant matters, the company might not become aware of the

issues which It needed to address.	An obvlous way of ensuring
that the company would not	be "left I n the dark" would be for

the Commission to give notice of any tentatlve adverse

conclusion. But thls can hardly be necessary in a case where

the subject matter of a potentlal critlclsm has been flagged

as an issue, in the presence of the affected person, during

the course of the inquiry:	and particularly if questions have
been directed to that matter by counsel assistlng or by	2

-

members af the Tribunal themselves.

I do not wlsh to suggest that occasions will

arise In whlch it will be appropriate for an ~nvestigator,
llke the Trlbunal, to direct the attention of a party to a
particular matter. In rare cases the lnvestlqator mlght do
thls by lndicating a tentatlve vlew upon a polnt: see, for

never

example, the procedure suggested by Woodward

J in Freeman v

McKenzie

( 6 September 1988, not reported). The investigator

might simply express concern about

the adequacy of the

material relating to an aspect of the case.

Judges frequently

take this course, In an endeavour

to gain the maxlmum

assistance from the partles in resolvlng an lssue.

In an

unusual case -- like Mahon, in which the adopted procedure obscured from Air New Zealand the signlficance of evldence which the Royal Commissioner regarded as condemnatory of that

party's conduct -- there may be a positive obllgation upon the
investigator to call attention to a polnt. But this course
will hardly be necessary In a case where the relevant matter
has been clearly identified as an issue and has been the

subject of contested evidence.

The questlon whether, in a particular case, an investigator has left a party "in the dark" as to the ~ l s k of

an adverse findlng being made upon a particular subject must

depend upon the whole	of the clrcumstances of the relevant
inquiry.	It 1 s a question not capable of determination by the

applicatlon of rules devised for the conduct of a dlfferent type of proceeding. Rarely will it be approprlate for the j	-	G
Court to-intervene upon this ground prior to the conclusloGof	-

- i

an inqulry, and then only where it 1 s clear that, left to its

own devices, the Trlbunal will leave a party In doubt as to

the nature of the inqulry or the risk which It faces. That 1 s

not this case. Counsel for the Tribunal, who are the counsel assisting the Trlbunal at the lnqurry, expressly accept that their cllent has an obligation to brlng to the notice of the

applicants any provlsional vlews which it may form, upon

relevant matters of fact or as to the consequences of any such findings, in any case where the omission to do so might expose the applicants to an adverse flnding upon an unforeseen issue,

or in some other way might deprive them of an opportunity to

deter the Tribunal from making that finding.

There is no denial of natural justlce in the

Tribunal's refusal to supply, or cause to be supplied,

particulars of detailed allegations, as sought	in the letters
of 2 4 May 1988 and 25 August 1988.
I have dlscussed the matter of partlculars in terms of the Tribunal's obligation to afford to	the applicants
natural justice.	In s o doing, I do not overlook 55.25 and 80A

of the Broadcasting Act; but I do not think that the

existence of those provlslons adds any addltlonal strength	to
the applicants' argument regarding particulars. It may be
conceded that, although the second clause in s.25(1) 1 s
expressed In facultative, rather than mandatory, terms, the
powers conferred by it are lntended to be used, where
necessary, to ensure a just hearing of the inquiry.	It may

- a

also beronceded, with s.25(3) in mind, that a party does iot

- 2

have a reasonable opportunity to put a case to an inqulry

unless that party is sufficiently apprised of the issues to be

determined at the inqulry. But thls simply means that s.25

relevantly casts upon the Trlbunal a duty corresponding to

that imposed by the general law. Section 80A does llkewlse.

There is nothing in either section which goes further and requires that the Tribunal supply information In a particular

form. In particular, there is nothing which requires the

Tribunal to formulate, or have counsel assistlng formulate, preclse allegations or intlmatlons of possible conclusions.

The "Bond camp" witnesses

It is convenlent to dlscuss together the two

remaining issues in the present proceeding: the entltlement

of counsel for the applicants to eliclt the evidence in chlef
of the six witnesses referred to in the letter from the
Australlan Government Solicltor of 25 May 1988, and thelr
entitlement to determine the order in which these witnesses

shall be called. Once again, a number of grounds, under the

Adminlstrative Decisions (Judlclal Review) Act, are relled

upon: lack of jurlsdlction, lack of authorlty, error of law, that the declsion was contrary to law, breach of the rules of natural justlce and that procedures requlred by law to be

observed have not been, and are not likely to be, observed.

Some of these grounds are clearly lnapproprlate but the la@ - - -

mentioned ground suffices to ralse the relevant lssues. - i- -

- 5

As to the flrst matter, it I S dlfflcult to see why the applicants have pressed for an order. The letter of 25

May clearly Indicated to Blake Dawson Waldron that counsel

assisting agreed to the request that counsel for the
applicants take the evldence In chief of these wltnesses.
This attitude was endorsed by the Tribunal Itself, in the

announcement made by the Chairman on 2 1 May. I was informed

during argument in this proceeding that the attitudes

indicated on 25 and 2 1 May remain the attitude	of counsel
assistlng, and of the Tribunal, at this tlme.	There 1 s no

reason to thlnk the posltion will be otherwlse when the
lnqulry resumes.

I have previously referred to the notion adopted by those advlsing the applicants that those witnesses who have,

or who have had, some contlnuing association with	the
applicants are necessarily witnesses in	the applicants' own

case. This is not correct. A person charged with the duty of

lnvestlgatlng the conduct of a partlcular person, or conduct

within a particular organizatlon, will often	flnd it necessary
to cause a person closely associated wlth that person	r
organlzatlon to glve evidence.	The very assoclation between
the witness and the person or organlzatlon whose conduct	is

under scrutiny 1 s likely to make the evldence of that wltness
partlcularly material. An associate of the person or

organlzatlon under scrutlny does not, by that fact, become

-
-

immune from being required by the Investigator to give 4

- :

evidence;. and, if called, he or she does not, by that fact,

become the witness of the person or organlzatlon.	The witness
is called to assist the inqulry.	Subject to any speclal

statutory provislon, or agreement, to the contrary, it 1s for
the person conducting the lnqulry to determine both the time
when that witness will be heard and the order In whlch the
varlous counsel may question the wltness. Either of these

matters may affect the value of a wltness' evidence.	The
order in which witnesses are called may also	influence the

assistance obtalnable from other wltnesses. The effective conduct of an Inquiry is not to be hamstrung by a clalm of property made by an associate of the witness.

In support of thelr submission that they are entitled

to determine the order in which the "Bond camp" witnesses give
their evidence, counsel for the appllcant cite Brlscoe v
Briscoe 119681 P 501 and Barnes v BPC (Business Forms) Ltd

119751 1 WLR 1565. These were both cases In which the Court

emphasized the entitlement of the representative of a party to

determine the order in which the witnesses for that party are

to be called. Both cases were ordinary inter partes

lltlgation. In Briscoe a wife sought a matrimonial order on
the ground of desertion. At the commencement of the husband's
case, the magistrate refused to allow counsel for the husband

to call another wltness before calling, or deciding whether to

call, his client.	The Divlslonal Court allowed an appeal. At
p.504 Karmlnski J commented:	-
I
-deciding what wltnesses should be called and
! have always thought that the duty of

in what order they should be called is solely

a matter for counsel. It is a grave

responsibility and It rests on hlm and him

alone . . . ' I .

In the same case, Lane J spoke of the "fundamental Importance" of counsel retaining the right "to choose what wltnesses to call and in what order".

Similar views were expressed in Barnes, this belng-a

case in which a solicitor appearing before	an industrial
tribunal had reluctantly acceded to strong	pressure from the

chairman of the trlbunal as to the order In which he should

call his wltnesses.

The prlnciple applied in Briscoe and in Barnes is not

in doubt. But	it has no application to the present question.
The so-called "Bond camp" witnesses are not	being called -- at
least at this stage	-- as part of the case belng made to the
inquiry by the present applicants.	They are being called,

upon the initiatlve of counsel assistlng, because those
counsel think that they may be able to assist the Tribunal in
relation to the relevant issues. Although these witnesses

happen to have, or to have had, a close association with the

applicants, they are technically in a posltion no different

from that of the other wltnesses called by counsel assisting.
It is true that counsel assisting, and the Tribunal, have

agreed that counsel for the appllcants may take those

wltnesses in chief. Presumably, thls concession was made - :

- -4

-

because o_f a view that this procedure was likely to be the 2 - .

- i

most effeGtive way of obtalnlng a full and coherent account of the witnesses' involvement in the matters under lnvestlgatlon. But the circumstance that thls concesslon was made does not

mean that the witnesses should be regarded as belng the

wltnesses of the applicants, that is witnesses In the

applicants' case. They remain witnesses called by counsel

assistlng In order to assist the Trlbunal In Its lnqulry.

The time might come when counsel for the applicants' decide to put a positive case to	the inquiry on behalf of
their client.	There may be evldence, whlch they thlnk
material, which has not been ellcited. If	s o , they are

entitled to put that case. Both s.25(3) of the Broadcasting

- Act and the requlrements of natural lustice guarantee them

that right. They may call additional oral evidence; perhaps from new witnesses, perhaps by recalling wltnesses already

heard; perhaps by a mixture of the two. In calling that

evidence, that is in presenting their own case, counsel for the applicants will have the rlght to decide not only which

witnesses to call,	but also the order in which those wltnesses
are to be called.	Noreover, they will be entitled -- as of

right, not merely by concession -- to take those witnesses In their evidence In chief. These entitlements will sprlng from the fact that the applicants will then be in their own case.

But, unless and until they do embark upon a case of their own, the appllcants do not have the rlghts over the witnesses whlch they clalm; regardless of the Identity of those witnesses.

-

4 -

I do not thlnk that the Tribunal has departed from: the requirements of natural justice, or of s.25 of the

-

- -

Broadcasting Act, in relation to any of the matters argued in

thls proceedlng. The Appllcation should be dlsmlssed wlth

costs. In accordance wlth the agreement between the partles, those costs will include the costs of the hearlng before

- Morling J on 23 and 25 August 1988.

I certify the forty-four ( 4 4 )

preceding pages to be a true copy of
the Reasons f o r Judgment of

his HOnOUK Justice Wilcox.

Assoclate: ,

Date:

Counsel for the Applicant:	Mr A B Shand	QC with
M r P M wood

Solicitors for the Appllcants:	Blake Dawson Waldron
Counsel for the Respondent:	Mr R J Burbidge QC wlth
M r P Roberts

Solicitor for the Respondent: Australian Government

Solicitor

Date(s) of hearing: 8 and 9 September 1988