Farrow v Habersberger

[1992] HCATrans 339

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M67 of 1992

B e t w e e n -

ROBERT WILLIAM McINTYRE FARROW

Applicant

amd

DAVID JOHN HABERSBERGER

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

McHUGH J

Farrow 1 13/11/92

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 1992, AT 2.14 PM

Copyright in the High Court of Australia

MR D.R. MEAGHER, OC: If Your Honour pleases, I appear with

my learned friend, MR D.B.X. SMITH, for the

applicant. (instructed by Paul J. Rule)

MR J.W.K. BURNSIDE, QC:  May it please the Court, I appear

with my learned friend, MRS K.M. WILLIAMS, for the

respondent.	(instructed by Minter Ellison Morris
Fletcher)

MASON CJ: Yes, Mr Meagher.

MR MEAGHER:  If the Court pleases, we submit that special

leave to appeal in this matter should be given on

three basic grounds: first of all, that the Full

Court, in its decision, failed to accord to the

applicant the protection of the decision in

Hammond as articulated by Your Honour the

Chief Justice in Hamilton v Oades at pages 493 and

494.

The second ground is that the Full Court erred in that it placed the onus of establishing the

protection upon the applicant in circumstances

where the onus should have been placed upon the

respondent to demonstrate that the protection was

not available.

The third ground is, in so far as civil

proceedings were concerned, the Full Court erred in

that it failed to take into account the

circumstance that the investigation by the

respondent involved an examination of the

applicant, which examination could be placed before

the civil court, and also allowed for a report on

that examination and matters associated with it,

which report may be tendered in the civil court as

proof of the facts contained within it.

If I can go to the first of those. In the

decision of Hamilton v Oades the Court was
primarily concerned with whether or not the

protection accorded by Hammond had been excluded by

the statute there under consideration. But in

considering that matter, Your Honour the
Chief Justice articulated what the risk of injustice was to which the decision in Hammond referred. In doing so, Your Honour referred to

what Chief Justice Gibbs had said in Sorby v The

Commonwealth, namely:

"If a witness is compelled to answer questions

which may show that he has committed a crime
with which he may be charged, his answers may

place him in real and appreciable danger of

conviction, notwithstanding that the answers

themselves may not be given in evidence."

Farrow 2 13/11/92

you cited:

Your Honour also referred to Lord Wilberforce in

"Whatever direct use may or may not be made of

information given, or material disclosed,

under the compulsory process of the court, it

must not be overlooked that, quite apart from

that, its provision or disclosure may set in
train a process which may lead to

incrimination or may lead to the discovery of

real evidence of an incriminating character."

Your Honour then referred to what Justice of Appeal

Clark had said in that particular case and said:

Clark J.A. considered that, because a person

charged is not ordinarily required to submit

to pre-trial interrogation, to reveal his

defences or to produce documents under
compulsion, questions asked of that person
pursuant to s.541 may lead to the giving of

incriminating answers in respect of matters

central to the charge which may result in

significant prejudice to the person charged

and constitute "a real interference in the

administration of criminal justice".

Your Honour observed:

It is plain that an examination under

s.541 while charges are pending may expose the
witness to the risks mentioned.

There are two observations we would make about that passage which are germane to our complaint in this

case. First of all, Your Honour spoke of it as

being "plain that an examination ..... while charges

are pending may expose the witness to the risks
mentioned".	Your Honour was not saying that it had

been established that in fact that would occur.

Secondly, there was no reference by Your Honour in

that statement of principle to the design or intent

of the examiner.

Like statements of principle were made by

Justices Deane and Gaudron at pages 502 and 503 in

that case.	Mr Justice Dawson does not appear to
have articulated the principle.	Mr Justice Toohey

did, and at page 515, although he had previously

acknowledged what Lord Wilberforce said in Rank

Film v Video Information, went on to say that he

adhered:

to the opinion I expressed, as a member of the

Federal Court, in Huston v Costigan, that in

Hammond "the basis for restraining the

Farrow 3 13/11/92

Commissioner from examining the plaintiff on

oath, at least in the view of the majority of

the court, lay in the fact that if the

plaintiff were required to answer questions

designed to establish that he was guilty of

the offence with which he had been charged,

there would be a real risk that the

administration of justice would be interfered

with".

And indeed, in Huston v Costigan, that was the

basis of his decision.

That raises the contrast that we say arises in

this particular case. The Court is no doubt

familiar with the basic facts of what occurred

here, that for some two years the respondent had

been conducting an investigation, having been

appointed as investigator by the Registrar of

Building Societies. The applicant had attended

before him and answered the questions that were put

on innumerable occasions. Then, in mid-year, the

Registrar of Building Societies issued some 11

informations and it was after their issue and

delivery that the applicant declined to answer

further questions saying that he needed greater

particularity about the charges which had been laid

against him and he also wanted the charges disposed

of.

We acknowledge that circumstances could arise

where the furtherance of the inquiry and the

examination of the applicant could relate to matters that are quite unassociated with the

charges that have been laid. If that were the

case, then it may be evident from the nature of the

charges laid and the evidence that was to be called

in support of them, contrasted with the intentions

of the respondent, that there was no risk of there

being the same ground trampled over in the
examination as was before the criminal court.	But
that, in our submission, was not the case here.

In the application book you will find in

Mr Justice Gobbo's decision an account of what it

was that the applicant had been charged with and
what it was that the respondent proposed to examine

the applicant about. I am not going to take the

Court to all of the matters with which he was charged but simply to one particular area of

charge. On page 2 of the application book

Mr Justice Gobbo referred to a third category of

eight charges which had been made by advances to

societies in breach of one provision of the

Building Societies Act. That provision proscribed

the building society from investing its funds where

the acquisition of the asset was under what was

Farrow 4 13/11/92

called the free tranche provision in circumstances

which, if the advance was made, it would exceed a

percentage of 6 per cent of the assets as at the
previous 30 June.

The applicant was charged with such advances being made on 30 June 1989 and again on

1 July 1989. The charges that related to the

30 June 1989 would have compelled an examination of

what was the total state of advances 12 months

earlier; the charges in July of 1989 would have

compelled an examination of the total state of

advances on 30 June 1989. What the applicant was

told, by way of letter from the respondent, was

that the first area of proposed questioning was

whether as at December 1989 and April 1990 that

proscribed level had been exceeded by advances.

Such a charge necessarily involved determining what

was the total state of advances as at 30 June 1989,

and then looking at what the level of investment

was in December and what it was in April. Exactly

the same inquiry as to the level of investment on

30 June 1989 was required in respect of the charges

that had been laid for July of 1989.

Now, the position was a fairly clear cut one.

The respondent asserted, and the applicant was in no position to disagree, that his inquiries were directed at whether or not offences had been

committed in December and with whether or not they
had been committed in the following April.

Accordingly, since he had asserted that, and since indeed questions were asked of the applicant as to

what the position was in December, it followed that

the applicant was in no position to demonstrate

that the respondent, who in any event was a

gentleman who enjoys a high reputation for

integrity, was in any way misleading anyone in

saying that was his intention.

But what the applicant did say, and still

says, is that notwithstanding that being his

intention, the questions which he directs as to

what the state of the free tranche was in December

necessarily involved a consideration of what the

situation was back on 30 June and at times after

30 June.

BRENNAN J:  Mr Meagher, we understand from the judgments

what the principles were that were common ground

here. What you have been saying has to do with the

application of those principles to a particular

case.

MR MEAGHER:  I do not believe so, Your Honour. It is our

submission to you that what Mr Justice Gobbo did in

resolving this matter, and what the Full Court did

Farrow 13/11/92

in resolving it, was to pay particular attention to

what was the design of the investigator, the
respondent. It did not look at the broader
question of whether the continuation of that
examination would involve a contravention of the

broader principle as explained by His Honour the

Chief Justice in Harrison v Oades.

BRENNAN J: Is that right, in the light of the fact that the

Full Court identified some particular questions as

questions which ought not to be asked?

MR MEAGHER:  No, the questions they identified were

questions of what one might call academic interest.

They were, I think, questions as to whether or not

he would answer questions, generally, as a general
proposition without reference to any particular

matter.

Your Honour, I can demonstrate the situation,

I believe, by referring to the very first questions

that Mr Farrow has been ordered to answer. The

first two questions, which are questions 3 and 4 -

questions 1 and 2 he did not have to answer because

they were of the type I have indicated - questions

3 and 4 asked him first to identify, and then to

acknowledge that he had signed, the six monthly

accounts to December of 1989 of the building

society. Now, if I hand up to the Court those

accounts so that you can see what was involved in

that, you will see immediately that in answering
that question, or in asking that question,

undoubtedly the question could be characterized as

one that related to December of 1989, because the

accounts were to December of 1989.

If Your Honours look at the accounts you will

observe on the second page that an acknowledgment

by Mr Farrow of those accounts would not only admit

to the position as at 31 December 1989 but also the

position as at 30 June 1989. So that the moment he

acknowledged that he would be acknowledging the

position at the earlier point in time. Not only

was there that, Your Honours, but if you go to

note l(n) of those accounts, which I believe is on

the seventh page of them, Your Honour will see that

the note set out, in a section headed "Compliance

with Building Societies Act", an account of the

extent to which it was said there had been

compliance over the whole of that six month period with the very provisions in respect of which eight

charges had been laid as at June and July of 1989.

I will not read it to the Court, but if you

glance over l(n) you will see that in the third

paragraph there is reference made to what is the

practice of how the free tranche provision was

Farrow 6 13/11/92

operated and the way in which it was being done and

the free tranche was again mentioned in note 6,

under the heading "Mortgage Loans", which indicated

when the Farrow Free Tranche Unit Trust was

established, which was in April 1989, and went on

to explain how it operated there.

The position, Your Honours, as we see it, and

as we put it to you it is, is simply this: of

course, in asking Mr Farrow to identify these

accounts and acknowledge he had signed them, we do

not doubt for one moment that Mr Habersberger was

directing his attention to what took place on

31 December 1989 and what those accounts

demonstrated. But, of course, the moment Mr Farrow

acknowledged these accounts and identified his

signature on them, the Registrar of Building

Societies, to whom the respondent answers, would

then have available to him material which he could

employ in the proceedings in the criminal court

which he was bringing against Mr Farrow, albeit

that that might not be Mr Habersberger's

intentions. It covers the very same matters which

one would expect to arise.

Now, when one looks at the judgment of,

firstly, Mr Justice Gobbo, because his judgment is

approved by Mr Justice Brooking, and one looks at

how that was handled, one finds that what

His Honour does is, at page 5, to refer to the

decision in Hammond and selects from it the passage

which speaks of design:

answer questions designed to establish that he

is guilty of the offence -

If you go over the page at the top of page 6 you

will see His Honour observes that:

In that case it was apparently accepted that,

be likely to be questioned in such a way as to	if the defendant were again examined, he would
show that he had committed the offences with
which he was charged.

If I can just pause there, in Hammond the facts

were that the Royal Commissioner was

Sir Edward Woodward. He had indicated that his

design was not to establish that Hammond had

committed offences but rather to examine Hammond

about the circumstances that certainly involved
those offences for the purpose of reporting to

government and for the purpose of seeing whether

other people should be charged. So although

Mr Justice Gobbo there makes the comment he does,

it was not by reason of any design. In the very

Farrow 7 13/11/92

next paragraph there you will observe that

Mr Justice Gobbo says:

By contrast, the plaintiff has made it

clear he does not intend to ask any question

relating to the offences with which the

defendant is charged. It is, however,

contended on behalf of the defendant that the questioning may indirectly have the result of

assisting in proving that the defendant

committed the offences in question.

He listens to that as a submission and he notes it

as a submission. If you go over to the top of

page 7 to look at how he then deals with it,

His Honour says:

The questions have been numbered ..... The

questions are not susceptible of any

compartmentalizing according to the three

groups of charges. This very fact tends to

reinforce the plaintiff's argument that the

questions do not relate to the charges laid

but it cannot, of course, be a decisive

consideration ..... before me.

Then we go to what he said in particular about	the
free tranche on page 9. Towards the bottom of	that
page he identifies the nature of the charges.	At
the very bottom he says:

It was made clear ..... that

questions ..... were to be asked as at the two

dates, namely 31 December 1989 and 30 April

1990. There was nothing in the correspondence

or in the actual questions that derogated from

this or suggested that the questions were

directed to levels of investments at earlier

dates.

Then he goes on to mention: 

that the question about later levels of

investments might nonetheless offend, because

it would be contended on the defendant's

behalf that investments were the subject of

ongoing discussions, and arguably, approval by

the Registrar -

and he says:

In my view this objection does not raise

any legitimate basis for declining to answer

questions that are directed to investments

that are made or exist at a time not the

subject of any charges. It is mere

speculation that a line of questioning may

Farrow 13/11/92

result in some inference being drawn that

establishes, or may establish, matters that

will be relevant to a quite different time

zone.

He concludes that section by saying:

A question that is in terms not limited but covers the period comprehended by a charge

need not be answered. Thus a question that

asks "Was it always your practice to do the

act inquired of?" will offend -

Now, if one looks at how His Honour the

Chief Justice expressed the matter in Hamilton v

Gades, and indeed as to what was cited by

Lord Wilberforce:

"Whatever direct use may or may not be made of

information given, or material disclosed,

under the compulsory process of the court, it

must not be overlooked that, quite apart from

that, its provision or disclosure may set in

train a process which may lead to

incrimination or may lead to the discovery of

real evidence of an incriminating character."

Here, that is exactly what is being done. What is

being done is in respect of precisely like charges, varying only because of their date, there is sought

to be extracted from the applicant what was done

about the free tranche provisions in the six months

from 1 July through to 31 December, with particular

emphasis, no doubt, on December. That is to be

done by having him identify documents that set out

that practice. One would have thought, in itself,
that conflicted directly with the charges that

related to the free tranche in July, in any event,

because July falls in that six months, but even if

it did not, it would be wrong to say that simply

because it started on 1 July it would have no

significance to the informant who has laid charges

in respect of 30 June, the day before.

McHUGH J: That raises the question, does it not, as to

whether or not, within the meaning of the

principle, a fair trial of the accused is
prejudiced simply because his answers might lead an

informant or somebody else to obtain evidence.

MR MEAGHER:  Yes, Your Honour, and that is the very

principle that we say is raised. That is the very

issue that we say is raised. We say that if that

is so, then the principle is transgressed, even

where the intention of the investigator is not to

do that. That is why I have referred you to it, so

that it can be demonstrated that that is the

Farrow 9 13/11/92

consequence of it. We accept - I do not believe, although I did not appear in the lower courts - I

do not believe at any stage we have challenged what

the intention or design of the respondent was.	We
accept that.	What we say is that by this continued

examination he will do exactly what Your Honour

just articulated.	And that, we say, is what the
protection is that is given to us.	Of course, we

may be wrong about that, Your Honour, and may say,

now you have got to show the design. In that event

we could not possibly succeed because we do not

suggest he had a nefarious design.

In the Full Court, Mr Justice Brooking said

little about the matter other than to say that he

could see no error in what Mr Justice Gobbo did.

He did make an observation - - -

MASON CJ:  What he said was that the trial judge applied the

principle, was "there a real risk that the

administration of justice would be interfered

with".

MR MEAGHER:	Yes. But, Your Honour, as to what that real risk was, it is not articulated. It does not
explain - what Mr Justice Gobbo had set out was the
short passage from Chief Justice Gibbs which spoke
of the design of the investigator. What
Mr Justice Brooking goes on to say on page 22,
immediately following what Your Honour just read to
me - that my learned junior had accepted that there
was no real risk of interference with the
administration of justice - it is a matter with
which I think my junior would contest that he said
that - - -
MASON CJ:	We have got to accept what was said in the

judgments, Mr Meagher.

MR MEAGHER:  Yes, Your Honour. But he goes on to say:

submitting that there was a risk that there

might be a risk.

I come back, Your Honour, to what is demonstrated

by what I have just referred you to when Mr Farrow

is asked to adopt, in effect, those accounts as at

31 December.

BRENNAN J: 

Were these accounts produced to the court below?

MR MEAGHER: 

Yes, Your Honour, and they were the subject of

questions 3 and 4. Question 3 was, identify those
accounts, and question 4 was to ask if he had
signed them.

BRENNAN J: Yes, I appreciate that. These documents

Farrow	10	13/11/92
MR MEAGHER:	Yes, they were before the court.	Question 5

was to identify the free tranche register for the

business, without any limitation on the point of

time. So one could imagine what would be done with

that. If you look at what Mr Justice Southwell

said on the matter, at page 24, and this, I am

instructed, is closer to the concession that was

made, at the top of page 24, after speaking of:

it was sufficient in this case if the appellant expressed or perhaps merely

privately harboured a fear that there might be

some connection. This in turn was said to

form the basis for a "real risk" that the

appellant's trial might be prejudiced. Yet

counsel was forced to concede that here it has

not been shown that any risk exists which was

created by the fact that the questions were
designed to establish that the appellant was

guilty of the offences charged.

And my learned junior certainly said that, just as

I have said it to Your Honours here today. We are not saying that there was a risk created by the

fact that the questions had that design. What we

are saying is that by continuing this examination

in the areas in which they are doing it, there is a

real risk that that is what will occur.	And to
that we go back to what His Honour the Chief Justice Mason said in Oades.

BRENNAN J: But, Mr Meagher, looking at that passage that

you have just drawn our attention to on page 24, it

is clearly understood that it was not suggested

that the risk was to be apprehended by the design

of the inspector.

MR MEAGHER:  Yes.

BRENNAN J:  And Their Honours then went on to assess what

they regarded as the argument about the existence

of a real risk, appreciating that if there was a

real risk, then the case was to go one way.	How is
it otherwise than a case which turn on its
particular facts?

MR MEAGHER:  Simply by reason, Your Honour, of what those

first few questions directly went to.

BRENNAN J: That is a question which turns on its own facts.

MR MEAGHER: They could not have been taking that view, that

there was more to this than what was the design of

the investigator.

MASON CJ:  I think the next paragraph on page 24 denies

that, Mr Meagher. If you look at the sentence:

Farrow 11 13/11/92

The "real risk" referred to in Hammond's case

cannot, in my view, be established by pointing

to some vague possibility that it might in the

long run appear that there be some connection
between the question asked and the offence

charged.

That was the conclusion that was reached. Now, you

might disagree with that as a conclusion to be

drawn from the application of the principle to the

facts, but it seems clear enough that in

Mr Justice Southwell's mind the question was, was

there a real risk?

MR MEAGHER:  I can do no more, Your Honour, than to submit

what I have submitted on that and if Your Honour

takes a different view, you do. All I can say

about it, Your Honour, is that one must assess that in light of what the questions were directed to and

what this Court said you must answer. Where you

have the very first questions being directed at a

document and the applicant being asked to adopt it,

and that document not only sets out matters that

are directly relevant to the charges that have been
laid but also goes to the very offences with which
those charges are concerned, by way of the

explanation it sets out, it is, in our submission,

no answer to say, oh well, the investigator is

concerned with December, not with June. That is

what we put on that matter.

The second matter relates to the issue of the

onus of proof. As appears from Mr Justice Gobbo's

decision, the position was that the charges had

been laid without particulars being delivered and
those charges were laid by the Registrar of

Building Societies. It was the Registrar of

Building Societies by his investigator, the

respondent, who wanted to continue the examination.

Now, apart from what you could see on the face of

the charges themselves, and they did lack

particularity to a very great measure, there was

nothing that the applicant would have within his

knowledge or accessible by him as to what would be

embraced in those charges. For example, the free

tranche charges that were laid as at 30 June or in

June and July did not identify the advances which

they alleged were made which contravened the

provisions; they simply alleged the provision was

exceeded. Nor does the applicant have available to

him any information as to where the examination

will go and what questions will be asked, other

than what was set out in the letter addressed to

him set out by Mr Justice Gobbo.

In those circumstances, it is our submission

that if the Registrar and the respondent wish to

Farrow 12 13/11/92

continue their examination after the charges have

been laid and have invoked the criminal

jurisdiction of the court, then the responsibility or the onus rests on them to demonstrate that that
examination can be conducted without traversing the

matters that are in the criminal court.

MASON CJ: But why? Your client is making the allegation

that this will amount to an interference with the

due administration of justice. Why is it not for

your client to establish that?

MR MEAGHER:  Because under the Act my client is compelled to

comply with the directions of the respondent unless

he has a lawful excuse, that is how the Act is

drafted. If he raises, and I accept fully that he

has got the evidentiary burden to raise, the

initiation of the criminal process by the

respondent, then only the respondent or the

Registrar of Building Societies standing behind him

knows what it is that will be embraced in the

conduct of those criminal proceedings. It is

knowledge which is denied to the applicant. He

asked for it, he asked for particulars, he asked

what they were to embrace. There is no way in
which he can put before the court what it is that

they do in fact embrace. That is a matter that is within the exclusive knowledge of the Registrar of Building Societies. If the Registrar, who wishes

the examination to continue, then in our submission

it is incumbent on the Registrar, either directly

by coming along to the court himself or by way of

through the investigator who seeks the orders of

the court compelling us to continue to answer

questions, to explain what it is those criminal

proceedings embrace.

What has happened here, and one needs only read the judgments to see it, is that the Full

Court and Mr Justice Gobbo before it, both said

that you, the defendant, cannot demonstrate that

these questions will cover the same ground as in

those criminal informations. You cannot

demonstrate that those matters are matters that

will be put against you in those processes. Of

course he cannot. He has got no control over what

evidence will be led - - -

MASON CJ: That is the point, is it not? You cannot really

elaborate it further.

MR MEAGHER:  I will simply finish it by saying where the

knowledge is within the exclusive hands of a party,

it is wrong for the other party to have complaint

made against him that he has not demonstrated that

which is being denied to him.

Farrow 13 13/11/92

The third area concerned the civil process.

There was, I do not think, any debate in this

matter that the questions asked of Mr Farrow in

respect of the civil process were questions that

were in fact of that civil process. The civil

process concerned contracts made in 1986 and the

questions asked related to those contracts, as to

when they were made and whether they were backdated

and so on. What was relied upon by Mr Farrow was

the principle in Watts v Hawke which is set out by

Mr Justice Gobbo and when it came to dealing with

the civil matter, it was dealt with very shortly,

I think, at page 11 in the last paragraph where he said:

They suffered from the same deficiency,

namely, they failed to point to any more than

bare theoretical risks -

without explaining what that really was. When

Mr Justice Brooking dealt with it in the Full

Court, whilst he supported that, he spent a great

deal of time dealing with the question of whether

or not there would be publicity to the findings of

the respondent. Now, I must say to you that I do

not believe that publicity was ever a concern that

was advanced or is a concern of the applicant

today. What is the concern of the applicant today

is the fact that he will be examined by the

respondent as to those matters, under the

provisions of the Building Societies Act. That

examination will be forwarded to the building

societies and may be employed in evidence against

him, and what is more, the respondent is in the

position to make a report and that report then may

be tendered in those proceedings as evidence of the

facts set out in it. That, you will find, in

sections 32, 33, 34 and 35 of the Act.

BRENNAN J:  Would your client be subject to examination on

discovery?

MR MEAGHER: In those civil proceedings, certainly, yes, in

terms of interrogation, yes, or discovery of

documents.

BRENNAN J:  Where is the tendency to prejudice or embarrass?

MR MEAGHER: That is a matter which, in our submission, is

yet to be developed fully in this Court. In Watts

v Hawke it was concerned - although the statement

of principle is general, it was concerned with

publicity. It was picked up by this Court in the

ELF case where, again, it was resolved in terms of

whether there would be publicity that might affect

the matter, but then in the Pyneboard decision, it

was left open as to whether there would be other

Farrow 14 13/11/92

circumstances which would prejudice. What was

referred to by Chief Justice Gibbs there was the

decision in Brambles Holdings which spoke of

extra curial processes that would give a party

advantages beyond those which are conferred by the

Court and its processes, the principle being, as I

understand it, that whilst you are subject to
interrogation and discovery in the supreme court

pursuant to those processes, it is unfair for you

to be, in addition to that, subjected to an

examination outside the processes of that court, in

this case by the respondent, and we would say if

that principle has got any effect at all, it must

be especially so where that examination can be
placed before the court, as it can, and even more

so, where the inspector or the investigator may

make a report which then is given evidentiary

support in those civil proceedings.

That, we accept, is not a matter that has yet

been determined by this Court. This Court has

dealt with a conflict between such examinations and

the civil proceedings only in respect of whether
there would be publicity that would affect the

civil proceedings, and we are not suggesting, even

if there were, that it would have an effect. They

would be a heard by a judge sitting alone. But we

are saying that where the examination can be placed

before the court, and where there can be findings

made by the respondent, which findings then take on

evidentiary value of their own as to the facts

stated in them, then that is prejudicial. It is

prejudicial for a number of reasons, not least
being that the applicant's right of appearance
before the respondent is limited to when he is
being examined. He has no right to be there when

other witnesses are examined on the matter, which

might be the subject of the report; he has no right

to cross-examine those other witnesses; he has no

right to address the inspector on the force of
their evidence.	What he is met with at the end of

the day is a report that would be tendered in the

civil proceedings, which would have force because

of what it says as to its facts, and which he would

then be asked to combat in some fashion.

McHUGH J: But that is the very purpose of the section, is

it not, to create a system of discovery and confer

on the Registrar rights by reason of the facts

obtained in that discovery.

MR MEAGHER:  Yes, Your Honour, indeed it is, and until the

civil processes are commenced there is little we

can say about it. But once the civil processes are

commenced, then the section would appear to

preserve our rights as found in Hammond because it

allows us to decline to comply with directions if

Farrow 15 13/11/92

we have a lawful excuse. We would say that that is

a preservation, must be seen as a preservation, of

what was referred to in Hammond, albeit that

Hammond referred to criminal processes, but we

would say to civil processes as well.

We are not here, Your Honours, saying that we

can get an injunction - we are not seeking an

injunction - to stop the respondent from otherwise

conducting his examination. What we are saying is

that in the circumstances that have arisen, with

our rights preserved, we can now cease to comply

with the directions by reason of that.

As to what we would say about a report that

was delivered or sought to be tendered in the court

later on, that was based on investigations that

took place after the writ was issued is, of course,

another matter. We may well say, if it were that,

that it ought not to be admitted in evidence in the

court. But I accept, Your Honours, that prior to

the issue of the proceedings, this provides for

discovery in the most broadest terms and, indeed,

that has been Mr Farrow's approach to it. He has

said, until these proceedings were issued, he has

acknowledged he is obliged to attend and answer all

the questions and so on.

They are the submissions that we make.

MASON CJ: Thank you, Mr Meagher. The Court need not

trouble you, Mr Burnside.

As to the first point argued on behalf of the

applicant, we are not persuaded that there was any

error of principle on the part of the Full Court

or on the part of the primary judge.

As to the other two points argued in support of the application, we are not persuaded that there

is any question of general principle of sufficient

importance to justify the grant of special leave to

appeal.

The application is therefore refused.

MR BURNSIDE:  I seek the costs of the application, if the

Court pleases.

MASON CJ:	You do not oppose that?
MR MEAGHER:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE

Farrow 16 13/11/92