Chaffey; Canellis; Mulheron; McKnight v Independent Commission Against Corruption

[1993] HCATrans 210

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S45 of 1993

B e t w e e n -

LANCE WILLIAM CHAFFEY

Applicant

and

INDEPENDENT COMMISSION AGAINST

. CORRUPTION

Respondent

Office of the Registry

Sydney No S46 of 1993

B e t w e e n -

STEPHEN FRANCIS CANELLIS

Applicant

and

INDEPENDENT COMMISSION AGAINST

.C.0.RRlJPTION

Respondent

Chaffey 1 9/8/93

Office of the Registry

Sydney No S47 of 1993

B e t w e e n -

WILLIAM EDWARD MULHERON

Applicant

and

INDEPENDENT COMMISSION AGAINST

CORRUPTION

Respondent

Office of the Registry

Sydney No S48 of 1993

B e t w e e n -

KENNETH JOHN McKNIGHT

Applicant

and

INDEPENDENT COMMISSION AGAINST

CORRUPTION

Respondent

Applications for special leave

to appeal

MASON CJ
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 AUGUST 1993, AT 10.21 AM

Copyright in the High Court of Australia

MR G.D. WOODS, QC: If Your Honours please, I appear for the

applicants and, with me, MR M.B. EVANS. (instructed

by Messrs Cohen Ajaka & Walter, Messrs Teakle

Ormsby & Associates and Messrs Taylor & Scott)

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P.W. NEIL, for

the respondent in each matter. (instructed by

D. Sweeney, Solicitor to the ICAC)

MASON CJ:	Mr Woods.
MR WOODS:	Your Honours, we see the special leave point here in particular as being related to the point of

Chaffey 2 9/8/93

cross-examination, the relevance of cross-

examination to the question of whether or not a

particular matter is a review, merits review, or

really a question of procedural fairness or breach

of natural justice.

If we were granted leave, we would seek to

argue a number of other points, but the essential

argument revolves around, for the purposes of

special leave, we would submit, whether or not the

majority took the correct approach with respect to the relevance of cross-examination and the failure, we say, to give adequate weight to the problem that

the man, Smith, was unprepared to be cross-examined

as to material matters.

Your Honours, there is a dearth of authority

as to the significance of cross-examination,

probably because it is so centrally important in

all the courts of this country.

McHUGH J:  I do not understand the way you are putting your

point. Has your point got anything to do with the

case being heard in public as opposed to private?

MR WOODS:  Yes, Your Honour, it does, yes.

McHUGH J: Well, what has cross-examination got to do with

that? On your view there would be a denial of

natural justice if the courts had been closed,

would there?

MR WOODS:  Yes, that is true, as well. But, the point about

the decision that is made under section 31 is that

it permits the failure to allow proper cross-

examination to be substantially more damaging to

the reputation, the interest in reputation of the
applicants, than would otherwise be the case. If I
can put it this way, it is the cross-examination

point which converts the publicity point into a

matter of grave damage and breach of natural

justice.

The matter of reputation clearly is recognized

in Ainsworth's case as being an interest which will

be relevantly protected by the law - - -

GAUDRON J: If it is recognized as an interest which will

attract a duty to observe the requirements of

natural justice, but your argument seems to go

beyond that to say that the actual content of the

duty must be designed to protect the reputation.

The law does not go that far as yet, does it?

MR WOODS:  Your Honour, we concede that this is a novel

case. It is a novel case. It is the first time it

has arisen, but the flexibility that we say has

Chaffey 9/8/93

been manifested in the recent trend of decisions

about principles of natural justice would

encompass, we would say, the circumstances of this

case.

McHUGH J: What is your answer to the proposition, which at

the moment seems to me unanswerable, which appears

at page 45 in Chief Justice Gleeson's

judgment - - -

MR WOODS:  Was it 49, Your Honour?

McHUGH J: 45. Where he says:

There is a fallacy in passing from the premise

that the danger of harm to reputation requires
the observance of procedural fairness to the

conclusion that fairness requires that

proceedings be conducted in all respect in

such a way as to minimize damage to

reputation.

MR WOODS:  The answer to that, Your Honour, is that we do

not contend:

that fairness requires that proceedings be

conducted in all respects in such a way as to

minimize damage to reputation.

We have never contended that, and that is a

proposition, as Your Honours says, which is

unanswerable. We say that the peculiar

circumstances of this case have given rise to a

situation where the appropriate remedy should be

given, but we do not contend, and it is a - we were

at great pains at all stages before His Honour

Mr Justice Cole and before the Court of Appeal not

to contend that merely because a proceeding is

conducted in such a way that reputation is damaged,

automatically there is a remedy.

McHUGH J: Take a case where it is known at the beginning of

proceedings that a witness will claim privilege.

It may be professional privilege, or it may be a

witness refuses to incriminate himself or herself,

as the case may be, do those proceedings have to be

conducted in private?

MR WOODS:  Is Your Honour talking about ICAC proceedings?

McHUGH J: Take ICAC, or take any

MR WOODS:  The distinction is that in this case there is an

illegitimate claim of some entitlement, or at least

intention to refuse to answer, whereas if a person

is claiming lawful privilege in some way, that is

an entirely different situation. A person is

Chaffey 9/8/93

entitled to be dealt with by the law and in no

better way than that. But, if he claims the right

which nobody else has, simply because of the

principle, no doubt, of honour among thieves, or

whatever cultural factors propel him to take the

position he does, that is an entirely different

situation, and the court and/or the tribunal should

approach it in a different way.	So we say that is
the answer to that point.

McHUGH J: But you have got to erect a legal proposition out

of this. It is not a question as to whether the

Commissioner was right or wrong in coming to his

conclusion about whether proceedings should be in

public or in private, you have got to show he erred

as a matter of law, have you not?

MR WOODS:  Your Honour, that is so. We say you start with

section 31 of the Act - if Your Honours do not have

that I will hand up a copy of the - - -

McHUGH J: It is set out in the judgment.

MR WOODS:  Page 34 of the appeal book, Your Honours, yes.

Your Honours will see there, the third paragraph, the third subsection:

In reaching these decisions -

that is, the decision under 31(1):

the Commission is obliged to have regard to

any matters which it considers to be related

to the public interest.

His Honour the Chief Justice said at page 52, we

say wrongly, at line 15:

The answer to that contention is that it

is the statute which governs the matter.

Our submission, with respect, to section 31,

section 31(3) in particular, is that while the

Commission is bound to take into account those

matters in subsection (3) that it considers

relevant, what His Honour the Chief Justice has

done, in effect, is to erect that into a principle

which effectively prevents the ICAC decision maker

from being governed by the principles of natural

justice or principles of fairness.

GAUDRON J:  Not entirely. You see you do not complain about

the decision to hold the hearing in public as such,

you complain that the hearing of the matter in

public is itself a breach of natural justice. It is

a very different proposition.

Chaffey	9/8/93
MR WOODS:	Your Honour, the holding of it in public is - - -

GAUDRON J: What you in fact say, is it not, is on no view

could - well you say, "Any holding of this hearing

in public, notwithstanding what the statute says,

is itself a breach of natural justice."

MR WOODS:  Yes, that is the - - -

GAUDRON J: But you do not complain about the antecedent

decision.

MR WOODS:	We have not specified that, Your Honours, but I mean it is implicit, we say, in the proposition
that the holding of it in public is a breach of the
principles of natural justice.  The objection was
taken originally that it should be heard in private. It would be, with respect, somewhat artificial to refine out a protection of the
decision of the Court of Appeal in this case on the basis that the attack had not been made on the
making of the decision itself.

We do not dispute that the Commissioner has

the power to make the decision - - -

GAUDRON J: Anyway, you have put it simply on the basis of

natural justice.

MR WOODS:  Yes.

GAUDRON J: And there is no authority which goes so far as

to suggest, is there, that holding proceedings in

public is a denial of natural justice?

MR WOODS:  No, there is not, but we say the circumstances of

this case are so novel and compelling that one is

forced to the conclusion that in the circumstances

of this particular case, which is capable of

recurring at ICAC because there are a lot of people

who are there with life sentences and there are a	lot of people who have allegations that they wish
to make, and we do not advance the general proposition originally raised by Your Honour
Justice McHugh, that any damage to reputation can
be protected by such an order as was made by His
Honour Mr Justice Cole, but we say that in the
peculiar circumstances of this case, the narrow
circumstances, where a criminal gets, as His Honour
Mr Justice Kirby put it, a free kick, that when one
combines the failure, with respect, to permit cross-examination, with the inescapable damage to
reputation, that in those circumstances, applying
the rules and adopting the flexibility that the law has had with respect to natural justice in the last
10 or 15 years, that one sees in this case the
situation where Mr Justice Cole was right. If it

Chaffey 6 9/8/93

goes beyond - and indeed, His Honour the

Chief Justice did refer to the novelty point - but,

one can go back -

McHUGH J:  He said it was, on the face of it, a decision -

the assertion that the decision to hold a hearing

in public involves a denial of natural justice is

somewhat surprising.

MR WOODS:  Your Honour, we would accept that, but the

element of surprise comes about because one goes

back in time, I think one could submit it is

surprising that the Commissioner would have

permitted it to have occurred in the first place.

There is certainly no precedent for that, and

indeed, the legislation under which he operates

makes it almost inescapable that his decisions
will, from time to time, raise novel points. But,

we concede that there is an element of novelty

about it, but it is novelty, we say, within the

notions that have been advanced in the law, Annetts

and - - -

MASON CJ: But, there is nothing in recent developments

concerning natural justice that gives the rules of

natural justice a different object or goal. That

is what you are really seeking to identify, that

the rules of natural justice should now be

transformed from rules which are designed to ensure

fairness in hearing and determination with another

goal altogether, that is protection of reputation.

MR WOODS:  No, Your Honour. With respect, we say - that is

why I advanced my argument initially, focusing on

the cross-examination point. The reputation aspect

of it is certainly relevant to that, and the fact that it was held in public is certainly the thing which damages the reputation of my applicants.

McHUGH J: That is what I have difficulty in understanding,

because it seems to me, if your point is good,

these proceedings would have been bad even if they

had been held in private.

MR WOODS: That is certainly so.

McHUGH J: Then the public nature of the proceedings has got

nothing to do with the point, has it?

MR WOODS:  Yes, it does, Your Honour. The history and the

nature of this tribunal is relevant in

understanding how it comes about; that we are

attacking only, as it were, a small aspect of the

proceedings. The procedure before the tribunal is

almost, I cannot say ..... , but almost formless in

the sense that one does not know what is going to

happen next, who is going to be called, what

.Chaffey 7 9/8/93

evidence will be given, whether the evidence will

be given at all. And it may well be that at the
point in time in these proceedings when a report is

to be brought down by the Commissioner for the

parliament with respect to these matters, it may

well be that we would be making other submissions

about that.	So we have to confine ourselves to the
way the situation developed from the beginning.	We

do not concede that it was correct and proper that

the man, Smith, should have been put into the
position of making allegations on oath, swearing to

tell the truth, the whole truth and nothing but the

truth, in respect of my clients at all. But we are

not contending that here. That is something that

arises. Something will arise with respect to the

report, and we are confined here. We are not

seeking to elevate the notion of reputation into

some new principle to be protected. What we are

saying is that the fundamental error was the error

to permit it to be held in public in the light of

the fact. Even if we ignore the damage to

reputation of my clients, we say it is unfair to

make a decision to hold it in public on the basis

of the limited co-operation that would be

forthcoming from Smith with respect to answering

questions.

Your Honour, the other aspect of reputation

and publicity which is important, I would seek to

deflect the hypothesis that we are here seeking to

elevate reputation into something novel in terms of

the principles of natural justice. The ICAC,

itself, clearly regards publicity as being

significant in the conduct of its affairs and,

indeed, there is numerous references in the

judgments to it and in the proceedings before

Mr Temby. If there is any novelty in the way we

invoke reputation in this case, it arises in the

context of this particular legislation. Section 31

gives the Commissioner a discretion to hold things

in private, to hold hearings in public if he wishes
to.	We do not seek to elevate the protection of

reputation beyond the context of the structure set

out in this particular Act.

Your Honours, the Chief Justice and

Mr Justice Mahoney, as distinct from the other two

judges, Mr Justice Kirby and Mr Justice Cole, in

effect said, "This is a merits review. What you

are seeking to do is have us, as the Court of

Appeal, substitute our view about what is right and

proper in this case for the view of Mr Temby."

We say there was an error in identifying this

as a merits review, when it is really and truly a

procedural issue.

Chaffey 9/8/93

MASON CJ: Yes, but, in describing it as an attempt to get a

merits review, that is rather a consequence of the

Court of Appeal rejecting the arguments that you

have put in principle.

MR WOODS:  Yes.

MASON CJ: It is not at the forefront of Their Honours'

reasons for rejecting your application.

MR WOODS:	I would accept that, Your Honour, but the essence of it, we say, is that the Court of Appeal failed
to give sufficient weight to the procedural anomaly
of allowing a witness to come forward, to make
allegations in public, when he is contending that
he has the self-claimed right to refuse to
co-operate about material matters.  The procedure,
with respect to cross-examination, is deeply important, not only in the criminal courts but also
in ICAC itself.

Section 34 gives people who are represented,

by leave, the right to cross-examine. So, it is a

different situation from the situation, say, for

example, in the Wednesbury case, where you are

talking about whether 15-year-old children should

be permitted to go to the movies. This is a case

where the tribunal being dealt with is dealing with

major criminal matters; cross-examination is

central to its procedure.

If it were the case that, by statute, the

Commission was not entitled to hold its hearing

other than in public - and the previous section 31,

before it was amended, went quite close to that; it

said there was a presumption that it should be held

in public - we would have no argument. If the

Parliament determines that it can conduct its

proceedings in public, albeit inquisitional, that

is something that we cannot contend against.

But this is a tribunal which performs some of

the functions of a detective of police and some of
the functions of a court. There is no mechanism

and right to stop ICAC from asking people

questions; from compelling the production of

documents, and if all these things are done in

private, it does not necessarily cause any

difficulty. But the reason why section 31 is

structured as it is, we would submit, is because

the Parliament specifically envisaged that there

would be circumstances where the inquisitional

procedures and, as it were, the court-type _

procedures would have to be allocated to different

areas.

Chaffey 9 9/8/93

We would say it is the structure of the

legislation and common sense dictates that where a

situation arises where people are going to be

named; little evidence for it; people refuse to

answer questions about it; it should be done in

private.

MASON CJ:  But that is only to say that the course taken by

the Commissioner was unfair to your client. Now,

you may be able to mount arguments in support of
that proposition but it does not seem to me to have

any necessary connection with denial of natural

justice for reasons which have been expounded to

you by members of the bench today.

MR WOODS:  My answer to that, Your Honour, is that if one

considers it - we say it is not just a matter of

two sensible people having different views about

it. Our position, at all stages, has been that any

tribunal, looking reasonably at these
circumstances, would agree that it is a breach of
the principles of natural justice; not just a

question of being unfair.

MASON CJ:  I certainly would take issue with that, Mr Woods.

Now, the argument you appear to be trying to

develop is an argument that there was an erroneous

exercise of discretion by the Commissioner. Now,

that is a different argument to the argument that

has been advanced throughout these proceedings.

MR WOODS:  Your Honour, in that respect, I would rely upon -

if there be a distinction, as there clearly is, as

Your Honour points out, we would contend, as

Mr Justice Kirby says, that the particular formula

by which this wrong is remedied by a court is not a

matter of categories.

MASON CJ: Well, it is a matter of categories.

McHUGH J: They are two different areas of discourse.
MR WOODS:	Yes.

McHUGH J: See, the Commissioner is obliged, under

section 31(3) to take into account the public

interest and, no doubt, he is entitled to take into

account - indeed, probably is obliged to take into

account questions of damage to people's reputations

and such matters. But supposing he came to the

view, in a particular case - perhaps this case -

that the public interest in open publicity was of

overwhelming importance, he would be entitled to

take the view, surely, that in that case there

should be public hearings, no matter how much

damage is done and how unfair it was to people who

Chaffey 10 9/8/93

were being subjected to examination in public

hearings.

MR WOODS:  Your Honour, our contention is that on the facts

of this case that is not a position that he could

reasonably arrive at.

MCHUGH J: But that is a totally different argument to the

argument that has been put before Justice Cole,

before the Court of Appeal and in the documents

which were filed in this Court. Your case, if you

had a case, seems to me to have been a

Wednesbury-type case and that case has never been

run from beginning to end.

MR WOODS:  Your Honour, our submission is that the

Wednesbury remedy is capable of being regarded

within the context and within the scope of the

natural justice argument.

MASON CJ:  It has never been suggested anywhere that that is

so, Mr Woods, never.

MR WOODS:  Your Honour, Mr Justice Kirby does go so far.

This very point was agitated in the Court of

Appeal.

McHUGH J: It is at page 81, I think, the alternative;

line 18.

MR WOODS:	Your Honour, that is so, pages 81 and 82.
MASON CJ:	But he puts that as an alternative argument. He

is not putting it as the same argument with a

different label attached to it.

MR WOODS:  Your Honour, what he says, and I would adopt this

reasoning, is at page 82 at about point 3:

The declarations he made were expressed in

gulf between the various categories by which	terms of procedural fairness. There is no
the invalidity of administrative acts is explained.

MASON CJ: Well, that is a meaningless phrase.

McHUGH J: Yes. What does that mean?

MR WOODS:	In most, if not all, cases they simply amount
to different ways of explaining why the
purported exercise of power is not a real exercise of the power at all in the eyes of
the law.  -

Now, Your Honours, can I refer to the decision

in -

Chaffey 11 9/8/93

MASON CJ: But they are different arguments and different

concepts, although they lead to the same result if

they are successful.

MR WOODS:  Your Honour, what we say is that the principles

of natural justice applied in this case lead to the
result that the decision taken by the Commissioner
was not a real exercise of the power in the eyes of

the law, vitiated by, we say, his failure to detect

the compelling significance, we would respectfully

submit, of the position that Smith had adopted.

MASON CJ: Did you argue Wednesbury unreasonableness?

MR WOODS:  Your Honour, we did not. In terms, we did not.

It was not argued before Mr Justice Cole and,

indeed, the step that had been taken, if I can so

describe it as that, in Ainsworth's case, from the previous position which had operated - Ainsworth's

case, we would submit, is a step, is a development

of the law in this area.

GAUDRON J:  So far as remedies are concerned, maybe, but so

far as the principles of natural justice, surely,

it is simply an application of Annetts.

MR WOODS:  Your Honour, it certainly is so far as remedies

are concerned. The reason why we did not base the

original litigation on Wednesbury unreasonableness

was because we saw the extension of the law in

Ainsworth's case as conveniently encompassing an

attack on this decision under the principles of

natural justice.

Your Honours, His Honour the Chief Justice at

page 44 of the application book talked about this

question of, if I can use the word "categories".

His Honour said, at about point 2:

Lack of procedural fairness has usually been

found in matters such as failure to give

reasonable notice of what is being alleged

against a person, failure to allow an

allegation to be decided by cross-examination

or otherwise, making use of evidence or
information extraneous to the proceedings,
failing to give adequate reasons for a
decision or failing to observe the

requirements of impartiality.

And His Honour then makes the point, of course,

that Your Honour Justice McHugh made a while ago:

This Court has not been referred to any case

in which it has been held that conducting a

hearing in public, in the presence and with

the full participation of the person whose

Chaffey 12 9/8/93

interests might be adversely affected,

involved a denial of natural justice.

Your Honours, what we say and what we would

seek to argue in grounds 4 to 7 is that there was

no full participation; there was no full

participation here. Once it had been determined

that Smith was to be de facto, if not de jure,

permitted not to answer questions, permitted to
give evidence, while he would not answer material

questions, it, ipso facto, resulted in a situation

where there was no full participation of the person

whose interests might be adversely affected.

McHUGH J:  Of course there was a full participation. You

had the right to ask questions. He might have told

lies or he may have refused to answer questions.

You can make comment on that. I must say I am like

the Chief Justice, I just find your whole case a matter of surprise. With great respect to those

who have thought to the contrary, I just do not

think there is any substance in it at all. I could

understand if it was run on Wednesbury

unreasonableness and it was said, "Well, the actual

decision of the Commissioner was so unreasonable
that no reasonable person could have made the

decision", but to put the case on a breach of

natural justice is unheard of, so far as the cases

go and, in principle, just seems to me to lack a

foundation.

MR WOODS:  Your Honour, can I respond to that by saying that

the reason why I focused on the cross-examination

point is because - as I say, it is novel, it is

certainly novel and there is no particular

precedent for it, but the natural justice cases

have quite regularly dealt with cross-examination

as being the opportunity to confront and the
opportunity, possibly, to destroy the case or the

allegations or the smears that have been put

against them as being centrally important.

Now, the way we put it is that, really, what

has happened here is that these police officers, by not being able to adduce from Smith materials about

the co-offenders, have been put in the position
where they are deprived of a real opportunity to
destroy the allegations against them by making
inquiries of and about those other people.

So, it is, by analogy, almost a situation of the person not being allowed to present anything at

all_to the relevant tribunal. It is as if

somebody, being expelled from a club or being dealt

with in some other tribunal, were not to be given a
fair opportunity and full opportunity to destroy

the allegations against him.

Chaffey 13 9/8/93

McHUGH J: Supposing Smith or somebody else had said, "Such-

and-such happened", and you wanted to cross-examine
him about all sorts of surrounding details and he

could not remember anything about the surrounding

details.

MR WOODS:  If he says he cannot remember them, well, that

is, as it were, something that occurs within the

legitimate confines of, for instance, give and

take.

McHUGH J:  You keep introducing this distinction between

"legitimate" and "illegitimate", but how does that

affect your opportunity to defend yourself? You

have still got the opportunity to cross-examine.

The witness may lie; he may have a failure of

recollection; he may claim privilege or he may
refuse to answer. Supposing in this case the

Commissioner had made it plain he was going to fine

this witness every time he refused to give an
answer, would you still claim, in those

circumstances, that there was a denial of natural

justice?

MR WOODS: Absolutely, because, indeed, that is precisely

what happened with this man. He had been fined

$60,000 in a previous matter; fined by the Court of

Appeal, over a person called Flack.	He refused to
nominate Flack, and he was fined $60,000.	He is
doing life.	The Commissioner, not unnaturally,

took the view, as any realistic person would, that

fining him $60,000 was not going to be productive

of anything. It is precisely that knowledge, we

say, on the part of the Commissioner which makes

the circumstances in which my clients found

themselves to be particularly disadvantageous.

The Commissioner knew that he was going to

refuse to answer questions and he also knew that

there was absolutely nothing he could do,

practically, to compel this murderer and drug

dealer, who had already defied the Court of Appeal

over refusing to answer questions - anything at

all. That made it, we would respectfully submit,

particularly a breach of fairness.

MASON CJ:  But what was unfair? I have not quite understood

from your argument what you say was unfair?

MR WOODS:  Your Honour, if a person is charged with being at

a particular point - and these allegations are

allegations of police being involved in

various - - -

MASON CJ: Yes, I follow all that. But what was the

decision of the Commissioner that was unfair? What

are you complaining about, what decision?

Chaffey 14 9/8/93

MR WOODS:	The decision to hold it in public in the context of Smith - - -
MASON CJ:	To hold it in public or to hold it at all?
MR WOODS:	Your Honour, we would go so far as to say - and

at another time we may have to, but we would say to

hold it in public.

MASON CJ: That seems to me to bring you back to the point

that has been made against you before, that what

you are really complaining about is the

unreasonableness of the decision.

MR WOODS:  Your Honour, that is so. We concede, quite

frankly, that, as it were, the category point that

Your Honour makes now appears to be an obstacle to

us. If I have misjudged the scope of Ainsworth,

well, so be it. But, in my submission, what

His Honour Mr Justice Kirby says about that is correct.

MASON CJ: Then you are in this difficulty, that you are

relying on a ground for special leave that you

never advanced at any stage during the course of

the case, and this Court has made it very clear in
the past that it does not grant special leave in

those circumstances.

MR WOODS:  Your Honour, we would submit that, albeit it was

not specified as such at an early point, we are not

changing our ground in the sense that - - -

MASON CJ:  You are adopting a different ground and it is a

ground to which your opponent has never had an

opportunity of responding.

McHUGH J:  And we do not even have the Commissioner's

reasons for judgment, if there were any.

MASON CJ:  No. And we do not want to compound difficulties

about natural justice when we perhaps come to the

conclusion there is not a denial of natural

justice, but create one by granting special leave

in circumstances where the solicitor has not had an

opportunity of advancing in the courts below his

answer to this claim.

MR WOODS:  Your Honour, this very argument was dealt with in

the Court of Appeal.

MASON CJ: It was an alternative ground offered by.

Justice Kirby but it is not dealt with by the other

judges.

Chaffey 15 9/8/93

McHUGH J: Indeed, I thought, from recollection, that

Chief Justice Gleeson said specifically it had not been raised.

GAUDRON J: Yes.

MASON CJ:  You have really said all you can say about this,

have you not, Mr Woods?

MR WOODS:  Yes, Your Honours, I think that is so. If

Your Honours please.

MASON CJ:  The Court need not trouble you, Mr Solicitor.

On the· issue of denial of natural justice, the

Court is of the opinion that the Court of Appeal

was correct in the decision to which it came. The

argument that the decision to hold a public hearing

was void for Wednesbury unreasonablness was not put

in the courts below and for that reason cannot

justify the grant of special leave to appeal.

The application for special leave is therefore

refused.

MR MASON:	Costs?
MASON CJ:	You do not oppose an order for costs, Mr Woods?
MR WOODS:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 11.02 AM THE MATTER WAS ADJOURNED SINE DIE

Chaffey 16 9/8/93