Ferguson v Cole

Case [2002] FCA 1411

FEDERAL COURT OF AUSTRALIA

Ferguson v Cole [2002] FCA 1411

ADMINISTRATIVE LAW – Royal Commission into the building and construction industry – production of an interim report by the Royal Commissioner – pre-judgment bias – whether Royal Commissioner displayed actual bias towards the applicants – whether report of the Royal Commissioner gave rise to apprehended bias – duty to ensure that persons should know of the risk of adverse findings being made against them - whether the applicants given sufficient opportunity to adduce material in response that might have deterred adverse findings from being made – whether the report contained findings adverse to the applicants in a sufficiently individual, direct and immediate way to give rise to duty – whether later statements of the Royal Commissioner about the meaning of the report relevant to consideration of actual and apprehended bias

ADMINISTRATIVE LAW – Royal Commission into the building and construction industry – procedures adopted by Royal Commission– whether Royal Commission complied with requirements of procedural fairness  – whether Royal Commissioner displayed actual bias towards the applicants – whether conduct of the Royal Commission gave rise to apprehended bias on the part of the Commissioner – role of Counsel Assisting the Royal Commissioner - whether the applicants given sufficient opportunity to adduce material in response to material adverse to them – alleged restriction of cross-examination and unfair questioning of witnesses

ADMINISTRATIVE LAW – Royal Commissions – role of the Court in reviewing the conduct of Royal Commission

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6
Judiciary Act 1903 (Cth) s 39B

Kingham v Cole [2002] FCA 45 cited
McGuinness v Attorney‑General of Victoria (1940) 63 CLR 73 cited
Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 cited
Mahon v Air New Zealand Ltd [1984] 1 AC 808 cited
Annetts v McCann (1990) 170 CLR 596 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered
Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 190 ALR 402 cited
Kennedy v Lovell [2002] WASCA 21
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 cited
Livesey v New South Wales Bar Association (1983) 157 CLR 288 cited
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 cited
Johnson v Johnson [2000] HCA 48; 201 CLR 488 cited
Re Polites; Ex parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78 cited
Shrubb v Air Pilots’ Guild of Australia (FC) (1979) 40 FLR 374 cited

Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 referred to
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 referred to
Re JRL: Ex parte CJL (1986) 161 CLR 342 referred to
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited

ANDREW FERGUSON (and others according to the schedule of applicants) v TERENCE RHODERIC HUDSON COLE AND THE COMMONWEALTH OF AUSTRALIA

N 912 of 2002

BRANSON J

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Ferguson v Cole [2002] FCA 1411
Case
[2002] FCA 1411
Decision Date

CaseChat Overview and Summary

In the case of Ferguson v Cole, the applicants sought judicial review of decisions made by the Commissioner of a Royal Commission, alleging procedural unfairness and bias. The applicants, represented by Ferguson, argued that the Commissioner had failed to ensure procedural fairness and had displayed apprehended bias in conducting the Commission. The High Court of Australia was tasked with determining the validity of these claims.

The primary legal issues involved the interpretation of the Letters Patent establishing the Royal Commission and the obligations of the Commissioner to ensure procedural fairness. The applicants contended that the Commissioner's inquiries into unlawful conduct were beyond his authority as defined by the Letters Patent. Additionally, they argued that the Commissioner had failed to provide adequate opportunities for challenge and explanation of allegations, and had not ensured that contrary or exculpatory evidence was presented. The Court also had to consider whether the Commissioner's actions constituted bias or a failure to provide a fair process.

The Court found that the applicants' claims were not substantiated. It held that the Letters Patent authorised the Commissioner to inquire into and report on unlawful conduct, and that the applicants' interpretation was inconsistent with the overall purpose of the Commission. Regarding procedural fairness, the Court concluded that the criticisms made by the applicants, while numerous, were individually insignificant and cumulatively inadequate to establish a denial of procedural fairness. The Court emphasised that it was not its role to oversee the day-to-day conduct of the Royal Commission, and therefore, the applicants' claims regarding the Commissioner's conduct did not warrant judicial intervention. The Court dismissed the application in its entirety, including the claims for bias and procedural unfairness, and ordered the applicants to pay the costs of the proceeding.

The dismissal of the application underscores the limited scope of judicial review in matters concerning the internal processes of a Royal Commission. It reaffirms the principle that the Court will not interfere with the discretion of the Commissioner unless there is a clear and substantial denial of procedural fairness or evidence of bias.

Orders

Orders of the court

1. The application be dismissed.

2. The applicants pay the costs of the second respondent including reserved costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J
It should, in my view, be stressed that it is not the role of this or any Court to oversee the day to day conduct of a Royal Commission so as to ensure, for example, that the openings of Counsel Assisting are complete and accurate, that evidence is fairly gathered and used, that individual witnesses are questioned fairly and that cross‑examination is not restricted unfairly or arbitrarily. No inference should be drawn from this statement that I am satisfied that the criticisms made by the applicants of the specific instances of conduct referred to above are justified. Taken individually the criticisms are insufficiently significant to be relevant to the issues before this Court. Cumulatively, even if made out, they would be inadequate to establish that the applicants, or any of them, have or has been denied procedural fairness. I have not found it necessary to determine whether, as the second respondent contended, the applicants have waived their rights, if any, in relation to the conduct of which they complain.CONCLUSIONS For the reasons given above the application pursuant to s 5 of the ADJR Act for review of the decisions of the Commissioner to:‘(i)refuse to disqualify himself upon an application for disqualification made by the Applicants on the basis of apprehended bias;(ii)fail to give the Applicants, or any one of them, the sufficient ability to challenge and/or explain allegations made against them;(iii) fail to have evidence put fairly to the Applicants or any one of them;(iv)fail to provide the Applicants with procedural fairness before the Commission; and(v)further and in the alternative to (ii), (iii) and (iv) above, failure to ensure that contrary or exculpatory evidence is gathered and presented to the Commission by counsel assisting or made available to all parties affected thereby’must be dismissed. Similarly, the application under s 6 of the ADJR Act to review the conduct, or the proposed conduct, of the Commissioner similarly described must also be dismissed. Also for the reasons given above applications made under s 39B of the Judiciary Act for a:‘… declaration that the First Respondent has acted with bias, or in the alternative has displayed apprehended bias, or acted in such a way that the Applicants entertain a reasonable apprehension that the First Respondent will not bring an impartial and unprejudiced mind to the issues’; and a ‘… declaration that the First Respondent has not provided a fair process for the Applicants’must be dismissed. The claim for consequential relief under s 39B of the Judiciary Act must also fail. The application will be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

The submissions of the applicants touched on three broad issues. The first issue was the proper construction of the Letters Patent. The second issue was the First Report. The third issue concerned the matter in which the Royal Commission had been and is being conducted. The submissions touching on the second and third issues were clearly intended to address the procedural fairness obligations of the Commissioner. It would seem that the submissions touching on the second issue must also have been intended to address the procedural fairness obligation but exactly how they did so was not identified.CONSIDERATIONProper Construction of the Letter Patent The applicants contended that the Letters Patent, to the extent that they require the Commissioner to inquire into and report on the nature, extent and effect of any unlawful industrial or workplace conduct, do not authorise the Commissioner to inquire into particular conduct and determine for himself whether that conduct is unlawful. Rather, the applicants argued, the reference in the Letters Patent to ‘unlawful… industrial or workplace conduct’ is a reference to conduct which has been determined in legal proceedings to be unlawful. The above contention was advanced as a matter of construction of the Letters Patent. Although the applicants issued notices under s 78B of the Judiciary Act 1903 (Cth) they ultimately did not press any arguments arising under the Constitution or involving its interpretation. It is not open to doubt, at least in this Court, that the Executive Government has power to appoint a commission to inquire into and report on whether any person has been guilty of a crime (McGuinness v Attorney‑General of Victoria (1940) 63 CLR 73; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25). Of course, a determination of a commission that an individual was guilty of a crime would carry no legal consequences (McGuinness v Attorney‑General of Victoria per Latham CJ at 86, Rich J at 88, Starke J at 90 and Dixon J at 102). The relevance in this proceeding of the contention that the Commissioner has acted outside the terms of reference against the interests of the applicants is not clear. No allegation of a lack of bona fides in this regard was advanced. However, as the contention can be dealt with briefly I do so. In my view, the contention is unsustainable as being inconsistent with the Letters Patent read as a whole. The Letters Patent require the Commissioner to inquire into and report on ‘the nature, extent and effect of any unlawful or otherwise inappropriate industrial or workplace practice or conduct’. The task so imposed on the Commissioner would be likely to become frustrated by technicalities were it necessary, as to any apparently relevant industrial or workplace practice or conduct, to identify whether it might have involved the commission of a criminal offence, and if so, whether charges in relation thereto had been laid and prosecuted. Perhaps more importantly, the direction to the Commissioner to ‘inquire into whether any practice or conduct that might have constituted a breach of any law should be referred to the relevant Commonwealth, State or Territory agency’ would appear to be wholly inconsistent with the contention advanced by the applicant. The only purpose of any referral to a Commonwealth, State or Territory agency would presumably be to allow consideration to be given to the launching of a prosecution.Procedural Fairness