Firman v Lasry

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 5022 of 2000

IN THE MATTER of an application under Order 56 of the Supreme Court Rules

JOHN JOSEPH FIRMAN	Plaintiff
v
LEX LASRY QC (in his capacity as Royal Commissioner into the Metropolitan Ambulance Service) and	Defendants
THE STATE OF VICTORIA

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 19, 22, 23 and 31 May 2000
DATE OF JUDGMENT:	9 June 2000
CASE MAY BE CITED AS:	Firman v Lasry & Anor
MEDIUM NEUTRAL CITATION:	[2000] VSC 240

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Royal Commission – Royal Commissioner – whether apprehension of bias against the plaintiff established – whether plaintiff otherwise denied procedural fairness – order in the nature of prohibition refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.R. Hayes QC with Mr S.G. O'Bryan	Dunhill Madden Butler
For the Secondnamed Defendant	Mr D. Graham QC with Mr R. Richter QC and Dr K.L. Emerton	Victorian Government Solicitor

TABLE OF CONTENTS

THE PROCEEDING....................................................................................................................................................................... 1

THE DEFENDANT'S APPLICATION........................................................................................................................................ 1

LETTERS PATENT........................................................................................................................................................................ 2

THE JURISDICTION OF THE SUPREME COURT................................................................................................................. 9

PREMATURITY........................................................................................................................................................................... 14

THE TERMS OF REFERENCE FURTHER CONSIDERED.................................................................................................. 15

PARTICULARISATION OF THE CLAIM.............................................................................................................................. 16

ONLY THE PLAINTIFF HAS SUED......................................................................................................................................... 17

THE FORBES MATTER............................................................................................................................................................. 18

UNEQUAL TREATMENT?......................................................................................................................................................... 35

CIRCUMSTANCES STANDING OUTSIDE PUBLIC HEARINGS OF THE COMMISSION........................................ 62

ABSENCE OF STATEMENT OF MATTERS BEING INQUIRED INTO; ALLEGED RECEIPT OF PREJUDICIAL, NON PROBATIVE AND IRRELEVANT EVIDENCE......................................................................................................................................................... 79

IMPROPER CONDUCT............................................................................................................................................................. 81

THE REPRESENTED PARTIES CHARTER........................................................................................................................... 87

THE DOCUMENT DATA BASE; RECALL OF WITNESSES............................................................................................. 96

THE AUDITOR GENERAL'S REPORT................................................................................................................................... 98

THE CONDUCT OF THE COMMISSIONER AND COUNSEL ASSISTING VIS-À-VIS PLAINTIFF’S COUNSEL 100

THE RETURN OF THE FIRMAN SUMMONS..................................................................................................................... 100

ORDERS..................................................................................................................................................................................... 102

HIS HONOUR:

The proceeding

Before me is an originating motion filed 12 April 2000 in which the plaintiff is John Firman and the defendants are Lex Lasry (in his capacity as Royal Commissioner appointed by Letters Patent dated 21 December 1999) and the State of Victoria. The proceeding, brought pursuant to Order 56 of Chapter 1 of the Rules, seeks (as amended at trial) an order in the nature of prohibition restraining the Commissioner from conducting so much of the Royal Commission as concerns the plaintiff on the grounds of

"(a) a reasonable apprehension of bias by the Commission; and
(b) denial of natural justice and/or procedural fairness."

When the proceeding was commenced the plaintiff sought an order prohibiting the Commissioner from undertaking his inquiry altogether. That claim was evidently too wide, as counsel for the plaintiff immediately conceded when I raised the matter. Counsel for the second defendant submitted that the plaintiff had generally overstated his position; and that the relief initially sought was just part of that overstatement. But I consider that it was more probably the result of inadvertence.

The Commissioner, in accordance with established custom, announced that he would take no part in this proceeding, and indicated that he would abide the decision of the court. Whether the first part of that announcement reflected the fact was a matter in dispute, and one which I must later address. It is at least clear that the substantial defence to the proceeding in court was assumed by the State of Victoria, which it is convenient to describe simply as "the defendant".

The defendant's application

Also before me is a summons filed 5 May by which the defendant seeks an order pursuant to Rule 23.01 that the proceeding be permanently stayed or dismissed on the grounds that it is scandalous, frivolous, vexatious or an abuse of the process of the court. Written submissions were advanced before commencement of the trial in support of this application. I decided that I could not resolve the application without, in effect, being fully apprised of all the evidence that was to be adduced. I deferred ruling upon it. At trial's end the Solicitor General, who led for the defendant, did not ask me to rule upon the application; but he submitted that principles raised in his client's submissions were pertinent to resolution of the proceeding generally.

Letters patent

The power of the Governor in Council to issue a Commission is made plain by s.88B of the Constitution Act 1975. That power was exercised on 21 December 1999. The Governor in Council relevantly commissioned Mr Lasry in the terms following:

"WHEREAS:
A.
1.In April 1997, the Auditor-General transmitted to the Presiding Officers of the Victorian Parliament Special Report No 49 entitled 'Metropolitan Ambulance Service: Contractual and Outsourcing Practices' ('the Report').
2.In the Report, the Auditor-General raised many concerns about the probity of contractual and outsourcing arrangements at the Metropolitan Ambulance Service ('the Service') during the period April 1993 to March 1995, and also reported on the absence of key documentation concerning critical management decisions of the Service which was sought to be examined during his audit.

B.
1.Pursuant to the contract dated 7 June 1995 between Intergraph BEST (Vic) Pty Ltd (ACN 068 119 559) ('Intergraph'), the Hon. Patrick John McNamara MLA (for the Victoria Police Force and for the Victoria State Emergency Service), the Metropolitan Fire Brigades Board, the Country Fire Authority and the Service, Intergraph is obliged, in managing the new computerised ambulance dispatch system to which that contract relates, to meet certain Customer Specified Service Standards ('CSSS') which, in part, concern the time within which calls to Intergraph are answered.
2.Between June 1997 and July 1998, Intergraph staff may have been directed to make telephone calls to Intergraph at particular times, the purpose of which was to enable Intergraph to appear to meet certain standards included in CSSS.

C.Certain requests under the Freedom of Information Act 1982 for the release of documents relating to contracts or outsourcing practices affecting the Service may have been dealt with otherwise than in a legal and proper manner.
D.The Governor of the State of Victoria, in the Commonwealth of Australia, by and with the advice of the Executive Council has deemed it expedient that a Commission should issue to you in the terms set out below.

NOW THEREFORE the Governor of the State of Victoria, in the Commonwealth of Australia, by and with the advice of the Executive Council and acting pursuant to section 88B of the Constitution Act 1975, appoints you, Lex Lasry QC to be our Commissioner.

FOR THE PURPOSE of inquiring into and reporting upon the following matters:
1.Whether, in connection with what is described in the Report as the development and implementation of a computerised communications system for the Service, there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so, or

(b) removal, secreting or destruction of relevant documents to avoid disclosure.

2. Whether, in connection with what is described in the Report as the consulting and outsourcing arrangements made for or on behalf of the Service including arrangements for any commercial review of the operation of the Service and its arrangements with Griffiths Consulting Pty Ltd, there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so, or

(b) removal, secreting or destruction of relevant documents to avoid disclosure.

3. Whether, in connection with what is described in the Report as the other outsourcing arrangements made for or on behalf of the Service including:

(i) management information systems and subscriptions systems;

(ii) outsourcing of fleet management and maintenance;

(iii) outsourcing of non-emergency services.

there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so,
or

(b) removal, secreting or destruction of relevant documents to avoid
disclosure.

4. Whether, in connection with:

(i) the arrangements entered into by the Service pursuant to which salary payments by the Service for the benefit of John James (sic) Firman or Donald Arthur Camerson were paid to Pinelow Pty Ltd;

(ii) the circumstances of the appointment by the Service and payments to Pinelow Pty Ltd to assist the Service with the management of changes within the Service and related training and development activities.

there has been illegal or improper conduct by any person or any other company, business, legal entity or agency including but not limited to:

(a) failing to disclose relevant documents when required to do so,
or

(b) removal, secreting or destruction of relevant documents to avoid
disclosure.

5. Whether between June 1997 and July 1998 any member of the staff of Intergraph was directed to make telephone calls to Intergraph for the purpose of enabling Intergraph to appear to meet certain standards included in CSSS or for the purpose of increasing the entitlements of Intergraph under its contract with the Service in any other manner.

6. If directions of the kind referred to in paragraph 5 hereof were given:

(a) by whom and to whom were such directions given;

(b) was the direction in breach of the contractual obligations of Intergraph;

(c) was the giving of the direction illegal or improper;

(d) whether the management of the Service and/or any department or agency of the State of Victoria were informed that such direction had been given;

(e) whether any action was taken as a result of any information referred to in paragraph (b) hereof by the Service and/or any department or agency of the State of Victoria;

(f) whether the making of telephone calls as a result of any such direction in fact resulted in Intergraph being able to appear to meet certain standards included in CSSS or in any way resulted in the entitlements of Intergraph under its contract with the Service being increased.

7. Whether there has been any illegal or improper failure by any person to release or disclose documents or any other improper conduct in relation to the following requests under the Freedom of Information Act 1982:

Request to the Metropolitan Ambulance ServiceA.

Applicant

Date

Request

J Thwaites

3 May 1994

'All documents relating to the contracting out of non-emergency ambulance services including any contracts entered into, work descriptions, expressions of interest, invoices, and amounts paid.'

J Thwaites

22 December 1994

'All documents since 3 May 1994 relating to the contracting out of non-emergency ambulance services including any contracts entered into, work descriptions, expressions of interest, invoices and the amounts paid.'

J Thwaites

26 June 1995

'All documents since 22 December 1994 relating to the contracting out of non-emergency ambulance services including any contracts entered into, work descriptions, expressions of interest, invoices and amounts paid.'

J Thwaites

30 May 1997

'Any documents from the Minister for Health, the former Minister for Health Mrs Tehan, any of their staff or the Department of Human Services (or Department of Health and Community Services) relating in any way to the ministerial briefing note of 19 February 1996 (attached) including (but not limited to) any advice in relation to the four ministerial briefing notes relating to contracting out non-emergency stretcher transport referred to in paragraph 3 of the ministerial briefing note of 19 February 1996.'

J Thwaites

30 May 1997

'All documents relating to the four ministerial briefing notes referred to in paragraph 3 in the ministerial briefing note of 19 February 1996 (attached) including any internal memoranda advising that the four ministerial briefing notes had been located, any memoranda relating to the proposed release of the four ministerial briefing notes, any instructions or memoranda in relation to the non-release of the four ministerial briefing notes, any documents explaining why the four ministerial briefing notes were not released, any legal advice in relation to the ministerial briefing notes, and any file records, diary notes or other records in relation to the four ministerial briefing notes.'

J Thwaites

1 September 1998

'All documents relating to the legal advice given by Mallesons Solicitors in or about February 1996 in relation to four Ministerial Briefing Notes relating to non-emergency transport which had not been revealed at the Administrative Appeals Tribunal hearing at which the MAS had proposed to release to me in March 1996.'

B. Request to the Victoria Police

M Forbes

6 April 1999

'all documents relating to the Victoria Police investigation into the integrity of processes used by the Metropolitan Ambulance Service during 1993-1995 to implement major outsourcing and other contractual arrangements. The material we seek includes briefs of evidence forwarded to the DPP.'

8. If any illegal or improper failure is found to have occurred in relation to any of the requests specified in paragraph 7, you may inquire as to whether there has been any illegal or improper failure by any person to release or disclose documents relating to contracts or outsourcing practices affecting the Service and required to be released pursuant to other requests under the Freedom of Information Act 1982.

9. Whether there has been any illegal or improper conduct in dealing with the Ministerial Briefing Note from the Service to the Minister for Health dated 19 February 1996 and the attachments thereto.

AND WE direct you to make such recommendations arising out of your inquiry as you consider appropriate, including recommendations regarding any legislative or administrative changes that are necessary or desirable."

On 16 May 2000, during the period of the trial, the terms were amended by excluding term 8; and a minor correction was made to term 3.

On 30 May 2000, after I had reserved my decision, the terms were further amended by extending the date by which the Commissioner must report to 1 December 2000, by deleting term 3, and by altering term 7.

The Solicitor General foreshadowed the last set of amendments on 22 May. In the course of doing so he told me that he was instructed that the Government would review the funding of parties who had been granted legal assistance, subject to further application (being made) by those parties for additional funding.

The matters for inquiry have a connection, in one way or another, with the Metropolitan Ambulance Services ("the Service"). The Commission established by the Letters Patent is conveniently described as the "Commission".

The jurisdiction of the Supreme Court

It was common ground between the parties that the Commission (in which term I include the Commissioner except where I draw some specific distinction) is susceptible to the supervisory jurisdiction of this court. Specifically, the court has jurisdiction to make an order in the nature of prohibition restraining the further conduct of a Commission. It could do so if apprehended bias, as the law understands that concept, was established against a Commission, or if a Commission was shown in some other way to have denied natural justice to some interested party; for it was common ground that a duty to accord procedural fairness (a term interchangeable with natural justice) is imposed on an investigative body such as a Commission, whose power to report is capable of damaging or prejudicing a person's rights, interests or legitimate expectations, which rights and interests include protection of reputation. See, generally, Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; The Queen v Carter and the Attorney General (Full Court of the Supreme Court of Tasmania, 23 October 1991, unreported); Independent Commission Against Corruption v Chaffey (1992) 30 NSWLR 21; Carruthers v Connolly [1998] 1 Qd R 339 and Gibson v O'Keefe (Einstein J, Supreme Court of New South Wales, 20 May 1998, unreported).

Section 21A of the Evidence Act 1958 does not impact upon those conclusions, as Thomas J decided in the context of the somewhat similar s.20 of the Commissions of Inquiry Act 1950 (Qld) in Carruthers at 377-381. The apparent purpose and likely area of application of s.21A is discussed in Hallett, Royal Commissions and Boards of Inquiry (1982) at pp.309-319.

The requirements of procedural fairness are that tribunals afford a hearing to individuals whose interests are or may be affected by their decisions, and that decision‑making be free from actual or apprehended bias.

The content of those requirements may vary according to the particular circumstances of the case. Circumstances include "the nature and general function of the entity required to observe them and the relationship between that entity and the person to whom the procedural fairness must be allowed": Gibson at 42; see also Carruthers at 371-372, Carter at 8, 10-12, and Cornall v AB [1995] 1 VR 373 at 393-402.

A Royal Commission is inquisitorial in nature (that is so even if – as texts propose – its character is described as "investigatory" rather than "inquisitorial"). A Commissioner is required to inquire into and report upon specified matters. Statute gives a Commissioner extensive powers to compel the giving of evidence and the production of documents. Such considerations provide the context within which compliance with or departure from the rules of procedural fairness must be considered – a point well-made, in my respectful opinion, by the Full Court in Carter at 10-12.

In the present case, as will be seen, the plaintiff's contention that the Commission has denied (him) "natural justice and/or procedural fairness" very substantially overlaps his contention that the Commission has so conducted itself that there is reasonable apprehension of bias. It is to the application of the latter concept that I now turn.

The test of apprehended bias is this: are the circumstances such that a party or a fair-minded and informed member of the public might entertain a reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the issues before him (or her)? See Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. The formulation in Livesey has been often cited. See, for example, Re Polites & Anor; ex parte the Hoyts Corporation Pty Limited & Others (1991) 173 CLR 78 at 85 per Brennan, Gaudron and McHugh JJ, and Webb v R (1994) 181 CLR 41 at 67-68 per Deane J. Sometimes the test has been framed as an enquiry whether a reasonable bystander "would" reasonably entertain an apprehension of bias: see, eg, Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 99-100 per Gaudron and McHugh JJ), Carruthers at 356, 371; see also Re JRL; ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. In this State, at least, the Livesey formulation stands: Gascor v Ellicott [1997] 1 VR 332 at 342.

Although the classic formulation of apprehended bias refers to "the parties or the public", Deane J pointed out in Webb (at 68) that "the test is an objective one and the standard to be observed in its application is that of a hypothetical, fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law". Only one enquiry is necessary. It is framed by reference to the hypothetical observer. An enquiry framed by reference to a party could yield no different result.

It is next clear that, whilst the civil standard of proof applies, a court should not lightly conclude that an allegation of apprehended bias is made out. Reasonable apprehension must be firmly established: R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 553-554, Re Lusink; ex parte Shaw (1981) 55 ALJR 12 at 14 per Gibbs ACJ, Laws at 100 per Gaudron and McHugh JJ; see also Gascor at 342 per Tadgell JA.

The reasonable apprehension must be of a partial or prejudiced decision, not of a decision adverse to the prosecutor: Re JRL at 352 per Mason J.

The attributes of the hypothetical observer, and the circumstances that he or she must be regarded as taking into account, are described at length, with pertinent citations, in Gibson at 52-56. The broad thrust of the proper approach is clear enough; see at 56. I need not repeat it.

The hypothetical observer should be assumed to base his or her opinion on a fair assessment of the whole of the tribunal's conduct in the context of the whole trial or inquiry. See, for example, Galea v Galea (1990) 19 NSWLR 263 at 279 per Kirby ACJ and at 283 per Meagher JA, Wentworth v Wentworth (Santow J, Supreme Court of New South Wales, 6 February 1998, unreported, cited in Gibson at 58-59), and (in the context of the conduct of a Commission of Inquiry) Carruthers at 358.

I agree with the observation of Thomas J in Carruthers (at 356) that it is not to be expected that a Commissioner appointed to inquire into and report upon matters which are highly politically charged should be "devoid of a sense of social, political, moral or economic direction; and that the main question in the end will be whether a commission is reasonably open to persuasion and seen to be so". That observation was quite consistent with the evidence given by Sir Edward Woodward in this proceeding. Sir Edward, almost certainly the most experienced person in Victoria in conducting and assisting Royal Commissions and Boards of Inquiry, said that "you never really come to a task like this with a completely blank mind … you obviously have your own ideas … what you have to be very careful about is that you put them to one side and don't allow them to affect your judgment as the evidence is adduced".

I agree, on the other hand, with the observation of Thomas J that the hypothetical observer would be likely to be concerned if, in a Commission raising matters which were highly politically charged-reflecting a divide between the main political parties – a Commissioner was thought to harbour political prejudice. In such a case, his Honour said, (at 356-357) "it (is) important that anyone appointed to the inquiry be seen to be a commissioner, not an executioner."

In considering an allegation of apprehended bias made against a Commissioner, consideration may need to be given to the role of counsel assisting.

At least by 1919, according to Hallett, "the practice to have counsel assisting was apparently well-established". The role of such counsel has been said to be to assist in the elucidation of facts, to present material to the Commission in an orderly fashion, to examine witnesses independently without the Commissioner having to descend into the arena. See Hallett at pp.210-211 and Bretherton v Kaye and Winneke [1971] VR 111 at 123. Counsel assisting is said by Hallett (at 215) to stand "in the shoes of the Attorney-General representing the public interest."

Despite emphasis placed upon the independence of counsel assisting, the relationship between such counsel and a Commissioner could not be said to be analogous to that which exists between counsel and a judge. Counsel and the Commissioner have a common aim – furthering the necessary inquiry. Counsel is likely to make use of the investigative bureaucracy which commonly builds up around a Commission – for example, directing enquiries along particular lines. It is common for counsel assisting to indicate to the Commissioner in advance the substance of evidence to be adduced from a particular witness. The closeness of the working relationship between counsel assisting and a Commissioner may well be illuminated by what transpires at public hearings of the Commission. In the present case the transcript of those hearings discloses, in a large number of instances, the apparent closeness of that relationship. The Commissioner, evidently referring to counsel assisting and himself, has very frequently used the term "we" when speaking about things done or to be done.

It is apparent from the submissions of counsel for the plaintiff that their client's contention is that the conduct of counsel assisting could be relevant in two ways: first, because the hypothetical observer would reasonably apprehend that partiality on the part of counsel assisting was likely to reflect partiality on the part of the Commissioner. Second, because if the conduct of counsel assisting was or reasonably appeared to be partial, and if the Commissioner appeared to condone that conduct, then the hypothetical observer might reasonably apprehend partiality on the part of the Commissioner.

In my opinion the conduct of counsel could be pertinent at least on the second footing. So, for example, if the conduct of counsel assisting showed an evident and persisting inequality of treatment as between witnesses espousing one view of matters under inquiry and witnesses espousing on opposing view, if one group of witnesses was apparently aided in giving its account of events whilst the other group was apparently frustrated in its attempts, and if a Commissioner either gave support to or took no action to redress the situation which unfolded before him, it would not be wrong to consider that support or inaction if an allegation of apprehended bias on the Commissioner's part was raised by an individual whose conduct was under scrutiny. Whether a conclusion adverse to a Commissioner might then be drawn must depend upon the particular circumstances.

Failure by a Commissioner to act in such a case would be, I think, more significant than failure to intervene in the case of unfair cross-examination by counsel for a represented party. Yet in Carruthers, Thomas J (at 362) apparently considered that failure to intervene in the last-mentioned situation could be pertinent.

Prematurity

The Solicitor General submitted that, in considering whether a person has been accorded procedural fairness, the decision-making process must be viewed in its entirety. He referred in this connection to Ainsworth and to South Australia v O'Shea (1987) 163 CLR 378 at 389. Those cases concerned the right to be heard. Counsel submitted that the Commission's work was far from completed, and that no proper evaluation could presently be made whether the plaintiff had been denied procedural fairness.

The questions whether and when there is a right to be heard, and the content of that right in a given case, raise issues which are not identical to those which must be considered when apprehension of bias is alleged. Nonetheless, in cases of the latter type observations have been made along the lines of those made in Ainsworth and O'Shea. I have earlier referred to some of the authorities. Notwithstanding those observations, in cases of apprehended bias a conclusion adverse to a Commission or Board has sometimes been reached before an inquiry has been completed. I do not doubt the correctness, in general, of the Solicitor General's submission. But I think that it is subject to qualification, most particularly in cases of apprehended (a fortiori, actual) bias.

The Terms of Reference further considered

It is a feature of each of terms of reference 1, 2 and 4 that they refer to "illegal or improper conduct including but not limited to" failure to disclose relevant documents when required to do so, or the removal, secretion or destruction of such documents to avoid disclosure. Those terms focus upon absence (to use a neutral word) of documentation.

Terms 1, 2 and 4 are not, however, so confined. In the case of each of those terms the Commissioner is enjoined to inquire whether there has been "illegal or improper conduct" at large.

Up to the time when this proceeding commenced the Commissioner had given no indication what meaning, preliminary or otherwise, he considered should be given to the concept "improper conduct" – a concept left undefined by the terms of reference. That was so despite requests made by counsel for more than one represented party that he do so.

On 10 May, that is, after the proceeding had first been mentioned before me, but before the trial commenced, the Commissioner delivered a "Preliminary Ruling as to the Meaning of Improper Conduct." The meaning he accorded that term was, as will be seen, very wide. I should mention, in a preliminary way, two matters in that connection.

First, terms 1, 2 and 4 require the Commissioner to inquire whether there was improper conduct "in connection with" a described matter or matters. The phrase "in connection with", in a statutory context, has a broad reach. The Commissioner might consider that some such application should be accorded the phrase where it appears in the terms of reference. Having regard to the preliminary meaning which he has attached to the phrase "improper conduct", consideration whether such conduct took place "in connection with" a described matter or matters would seem likely to give rise to a very wide investigation. That could be expected to impact upon the amount of evidence – oral and written – which would be potentially relevant. In that context, the original requirement for the Commissioner to report by 5 July created an intolerable situation. That deadline now having been removed, one potential issue of denial of procedural fairness has been removed.

Second, the plaintiff complains that the preliminary meaning given to the term improper conduct is too wide, and imprecise. Far from defining what could be relevant, it expands the ambit of relevance to a point where it is meaningless. Of this, more later.

Particularisation of the claim

The allegations of reasonable apprehension of bias by the Commission and other denial of procedural fairness are particularised by the Originating Motion as it was amended at trial. Some thirty matters, in all, are raised, although there is overlapping. It is to be noted that, insofar as the Particulars address apprehension of bias, they do so by alleging "the existence of a reasonable apprehension of bias by the Commissioner", which allegation the Particulars then expand upon.

In addition to, or in expansion of, allegations made by the Particulars a number of matters were raised by the plaintiff in one or more of the affidavits of his solicitor, Mr McCabe, in an "Outline of Plaintiff's Case" and in a document entitled "Points of Principle raised by Firman's Application". The latter two documents were handed to me before trial as an aid to understanding the plaintiff's case.

Not all the matters eventually particularised or raised by Mr McCabe's affidavits or mentioned in the two documents to which I referred a moment ago were known to the plaintiff when this proceeding was commenced. A number of circumstances upon which the plaintiff relied, indeed, arose after that date. It does not follow that the plaintiff's claim lacked bona fides for that reason.

The plaintiff abandoned at trial reliance upon a few of the matters raised. According to the defendant's submission those matters were either far-fetched or (in several cases) involved serious but unfounded allegations against one or more of the Commissioner and counsel appearing before him. That was said to show how unrealistic and threadbare the plaintiff's case really was.

In my opinion there was something to this submission. I will say more about it in particular contexts. But from my standpoint the particularisation of the claim (I use the word "particularisation" in its widest sense) principally gave rise to a different problem. It made the task of separating the wheat from the chaff difficult and time-consuming.

Only the Plaintiff has sued

Counsel for the defendant submitted that the fact that only the plaintiff has brought this proceeding was a guide to the insubstantiality of the complaints which were made. Other represented parties could have been expected to join in the proceeding, or bring their own proceedings, had their perception of events occurring at the Commission been the same as the perception of the plaintiff. Indeed, the plaintiff was bringing a proceeding complaining, inter alia, about the treatment accorded to another represented party – that is, Dr Paterson. Yet that party had not himself brought such a proceeding.

There is something to this submission; but I do not consider it to be of much significance in resolving the matters which the plaintiff has raised. The course taken by particular parties who appear before a Commission is likely to depend upon considerations which may, but will not always, be apparent. It would be unwise to speculate why a particular represented party has taken one course rather than another. In the case of Dr Paterson, I should add, the submission made by his counsel in connection with the "Represented Parties' Charter" could scarcely be said to be a ringing endorsement of the Commission's conduct. Remember also that, in the context of apprehended bias, the touchstone is the informed observer – not a party whose conduct may be influenced by tactical or other considerations.

The Forbes matter: paragraphs 1.1(l) and (t), 1.2(d) of the Particulars

Mr Mark Forbes, a journalist employed by "The Age", wrote an article which appeared in that newspaper on 14 March 2000 – that is, the day before the Commission began its public hearing of witnesses. In part the article said this:

"Commission sources are confident that criminal charges are likely to be laid on the strength of evidence gathered so far."

Then followed a reference to "the key terms of reference", which were said to include "the letting of millions of dollars in MAS contracts, Intergraph's emergency despatch contract … (and) … the employment of Mr Firman".

On the same day

· the Commission issued a press release in which its secretary was quoted as saying, inter alia, that "The Commissioner has no view about the laying of charges against anyone … I do not understand how these conclusion (sic) could be formed, as the … Commission is yet to hear evidence from key witnesses … . The Commissioner will rely on the evidence of key witnesses … ."

· Counsel assisting the Commission, at a public hearing, repeated the substance of the matters set out in the press release; and added, as is the case, that the laying of criminal charges was a matter for the police and/or the Director of Public Prosecutions in consultation, and had nothing to do with the processes of the Commission per se.

· The Commissioner said at the public hearing that he endorsed the remarks of counsel assisting and the content of the media release.

· The Commission required Mr Forbes' attendance to give evidence and produce documents. He appeared by counsel at a hearing which the Commissioner ordered should be closed. In the course of that hearing counsel assisting submitted that three issues arose: first, the need to afford procedural fairness. In that context he reiterated that he knew of no conclusion that there was evidence upon which persons could or should be charged. Second, the desirability of obtaining such evidence – if it existed in the hands of a "Commission source". Third, what he described as the obligation of the Commission to protect the integrity of its own processes.

In the course of the hearing the Commissioner said this (at RCTr 294).

" … this whole issue this morning is a matter of some considerable concern to me and I am, without having heard you so far, determined that I'm not going to have this debate about whether there is some inappropriate source in the Royal Commission; I'm not prepared to have that debate at the moment taking place as, in effect, a media spectacle. This is not a debate in my view that is appropriate to be had in the public gaze. That may change at some stage in the future but at the moment, as Mr Howard has just said, we are endeavouring to protect our process.
We are extremely concerned that the parties of this commission may have some view as a result of the article that we have already formed a biased view. We haven't, and at this stage at least it seems to me it is inappropriate to have a debate about that in public before we have actually embarked on the substantive evidence".

His references to "we" appear to have been a reference at least to himself and counsel assisting. Contrast his use of the personal "I".

In the event, the closed hearing was adjourned to 16 March, no evidence being taken from Mr Forbes.

On 15 March counsel assisting revisited the matter in a public hearing of the Commission. He mentioned the three issues of importance that he had identified in the closing hearing the day before, and indicated that a confidential hearing had commenced, a summons having issued "to an individual".

On 16 March senior counsel for Mr Forbes spoke to senior counsel assisting. He sought to persuade the latter that the Summons had been issued for an improper purpose. He told senior counsel assisting that on his instructions "Commission sources" did not refer to the Commissioner, any of counsel assisting, and (probably) the solicitor to the Commission. He also told senior counsel assisting that Mr Forbes would say, if asked, that there was a source within the Commission; but that he would refuse to name the person.

That same day the closed hearing resumed. Mr Forbes gave evidence. He said that he had had contact with Mr Bowles, the Commission's "director of investigations", supplying the latter with information and documents. In connection with the critical portion of the 14 March 2000 article he said that –

· "It reflects opinions that were made to me by persons associated with the Commission".

· "It reflects conversations of that nature with people inside and outside the Commission".

· "Commission sources" had a broader meaning than simply meaning people working for the Commission.

· Insofar as the term referred to someone working inside the Commission "We are talking about one person".

· Information had been given by the person "to (the) effect" that he or she was confident that criminal charges were likely to be laid on the strength of evidence gathered so far.

· Neither the evidence itself nor the likely charges had been detailed by the informant.

· He could not say that the exact words used in the article were used. He had kept no notes. He did not think that the word "confident" was used, just that was the impression which he gained.

· Neither the Commissioner nor any of counsel assisting was the "source" within the Commission. Beyond that he declined, on the advice of counsel, to answer questions which would or might have revealed the identity of his informant.

The basis upon which, as I understand it, Mr Forbes refused to answer questions was that they related to a matter outside the Commission's terms of reference. In that connection the Commissioner observed (at RCTr 341-342):

"You understand that I take the view that it is impossible, probably theoretically and certainly practically, to segment the conduct of the inquiry from its process and the duties of the Royal Commission to accord the procedural fairness that we have to accord. They are inextricably connected as far as I'm concerned … ".

As at 16 March the question was left open whether the Commissioner would exercise his power under s.20 of the Evidence Act 1958 to certify the facts to a law officer.

On 17 March 2000 there was a telephone conversation between senior counsel for Mr Forbes and senior counsel assisting the Royal Commission. The latter said that the Commission was pleased that this was not a case of someone "handing over documents etc to a journalist and that maybe the Commission would see how things went for one to two months to ensure that there was no continuing adverse problem."

On 21 March counsel for the plaintiff sought access to the transcript relating to Mr Forbes' attendance before the Commission. He submitted that whilst the matter involved the integrity of the Commission processes it also directly affected the interests of the plaintiff.

The Commissioner refused the application. This is what he said:

"Mr O'Bryan, there is no question of fairness. The commission took some steps which followed an exchange between Mr Howard and myself where we endeavoured to make our position in relation to the matter clear. The commission appropriately took steps in confidential session to protect its own process. That has been occurring.
I do not propose to circulate the transcript of that for the moment. I do not see any reason why the other parties need to be involved in it or need to be aware of it, except for me to say to you that the object of the exercise was to ensure that our processes were protected and that in the future allegations that there was some bias on the part of the commission would not be made.
I should say, the only thing that affects your client really is whether or not there is a basis to believe that I, for example, have already formed some view about people being charged with criminal offences. I have said a number of times, I don't have any such view."

On 22 March 2000 Mr Bowles, the Commissioner's director of investigations, was directed by counsel assisting to interview all existing and past Commission staff in connection with the matter. Over some undefined period more than 100 persons were interviewed. Mr Bowles himself made a statement. No-one admitted to comment of the type described by Mr Forbes (see RCTr 3680-3681).

On 23 March 2000 – a time at which it is inconceivable that all the interviews could have been completed - the solicitor to the Commission wrote to Mr Forbes' solicitors. In part he said this:

"It is the Commissioner's view that, prima facie, circumstances exist which justify a referral to a law officer under Section 20(1) of the Evidence Act 1958. As was made clear to your client in both hearings at which your client was present, it is important that the parties to the Commission and the public at large have faith in its independence. The article written by Mr Forbes improperly jeopardised that perception. His position has been compounded by his refusal, without lawful excuse, to answer questions when directed to do so.
Nonetheless, the Commissioner informs me that he proposes to defer such a referral under Section 20 of the Act for a period of 3 months. In the event that no further reason for complaint arises against Mr Forbes in that period, the Commissioner may determine to take no further action. It should be clearly understood that the purpose of such a deferral is not to inhibit the proper and independent reporting of the conduct of the Commission and the surrounding circumstances but rather to protect the Commission's process.
In view of Mr Forbes' evidence I would ask for The Age to publish a statement which makes it clear that insofar as Mr Forbes' article tended to suggest that the Commissioner, Counsel Assisting or the Solicitors to the Commission had already formed an adverse view of any parties or witnesses before the Commission, such a suggestion is acknowledged to be wrong and is specifically withdrawn."

The course of which notice was thus given was the course adverted to by senior counsel assisting in his conversation with senior counsel for Mr Forbes on 17 March.

On 31 March counsel for the plaintiff presented the so-called "Represented Parties Charter" to the Commission. By paragraph H it raised the Forbes matter – seeking access to the transcript of any confidential hearings as well as provision of other information.

On 7 April the Commissioner, in a ruling concerning the charter, said that on 14 March he and senior counsel assisting had made it clear that the key assertion in Mr Forbes' article was false. He went on:

"The Commission has also taken steps to endeavour to prevent any recurrence of such publicity, recognising that such publicity is inappropriate and may be adverse to the interests of the Commission and the parties. I do not propose to involve the other parties in the Commission's internal inquiry or to grant them access to the transcripts … ".

This proceeding was commenced on 12 April. It complained, inter alia, of the Commissioner's refusal to give the plaintiff access to transcripts of the confidential hearings and of "the results of his confidential investigation into the Forbes article".

On 27 April (following notification on 19 April) the Commission held a sitting in which it dealt only with the Forbes matter. To emphasise the point, it had last sat publicly on 14 April.

Senior counsel assisting described the purpose of the sitting this way:

" … the particular purpose is to firstly inform the parties and the public generally as to the nature and the results of the investigation conducted into this particular article, the investigation that is conducted by the commission and, secondly, to refer to and release the transcript of the in‑camera examination of Mr Forbes, both to the parties and the public generally via the transcript on the net."

He described the sitting, a little later, as "an information session".

He gave an explanation why the transcript of the confidential hearing should be released. It was that the Commission's investigation had been completed.

One reason for the sitting was, he said, that "The Age" had not published a statement (as the Commission had requested on 23 March) making it clear that Mr Forbes' article was not intended to suggest that the Commissioner, counsel assisting or the solicitor to the Commission had formed an adverse view of any parties or witnesses.

Senior counsel assisting ended his presentation by expressing a number of conclusions. Thus (RCTr 3683-3684)

"May I turn now to some conclusions. Having regard to the evidence of Mr Forbes and the results of the internal investigation conducted by the commission, I am of the opinion that no person employed by the commission qualifies as a 'commission source' or has communicated information to Forbes to enable him to say as he did:
'Commission sources are confident that criminal charges are likely to be laid on the strength of evidence gathered so far.'
Mr Forbes himself acknowledges that his assertion was based on his interpretation of opinions expressed by a number of persons associated with the commission, as he put it. He is apparently unable to quote any conversation verbatim. He does not suggest that he has any notes or documentation of relevant conversations. As he says, he often attempts to engender 'a degree of vagueness' about the identity of his source in order to protect its identity. That was at transcript 322.
Importantly, Mr Forbes does not suggest that he was the beneficiary of any unauthorised disclosure of documentary material or evidence. Rather, he relied upon his interpretation of, as he put it, general opinion being expressed by a number of persons, only one of whom he alleged worked for the commission.
Of even greater significance, Mr Forbes and his counsel concede that there has been and is no prejudgment by the commissioner or counsel assisting. This concession on the part of Forbes lays to rest, in my opinion, any suggestion of apprehended bias on the part of the commissioner or the commission. I consider that appropriate steps have been taken to protect the integrity of the commission's processes and to ensure that the parties can be assured of procedural fairness, both in the hearings and in respect of the commission's inquiry more generally. I am satisfied that extensive inquiry which has now been conducted reveals no evidence that any person working for the commission has in any way provided information or encouragement in support of the Forbes assertion."

Senior counsel for the plaintiff then complained about what he said was a "self‑serving statement for the record". The Commissioner declined to debate the matter.

In addition to the matters so far set out, a number of other facts should be taken to be known to the hypothetical observer in connection with the Forbes matter.

First, the obvious fact that terms of reference 1, 2 and 4 raise for investigation matters which have been the subject of public agitation and allegation concerning the plaintiff's role for a long time.

Second, the Auditor General's report dated April 1997, referred to in recital A to the terms, made both specific and oblique reference to the plaintiff. The foreward to the Report, and paragraphs 1.6, 1.8, 1.11 and 1.12 might easily be read to suggest that hindrance to the Auditor General's work because coercive powers were unavailable to him had precluded a conclusion being reached that "senior management" of the Service had engaged in corrupt activity rather than serious mismanagement.

Third, between about March or April 1997 and early 1999 the Victoria Police Major Fraud Group conducted an investigation into the Service. The investigation (Operation Caledon) was conducted by some four to five officers. The officers did not have any special coercive powers. They took statements from a number of persons, including the plaintiff. More than one person declined to be interviewed. Documents were seized from the plaintiff. Eventually the police recommended that charges be laid against a number of persons – but not the plaintiff (that was so although the final police report opined in strong terms that there had been non-compliance with government and departmental guidelines with respect to competitive tendering and contracting out, the plaintiff having contended, to the contrary, that compliance was unnecessary and that what had been done was appropriate [see Exhibit G]). The Director of Public Prosecutions, after conferring with at least one of the investigating officers, determined not to lay charges.

Fourth, all the material gathered by the police had been provided to the Commission.

Fifth, the Commander of the Major Fraud Group at the outset of its pertinent investigation, Mr Bowles, is the same gentleman who (having retired from the police force) is the Commission's director of investigations. His name was put forward by the Commissioner. His appointment was agreed upon by the Commissioner, available counsel assisting and the secretary of the Commission.

Sixth, Mr Bowles, called by the plaintiff, gave evidence before me. He was not examined to suggest that he had provided information to the effect described by Mr Forbes in the latter's evidence at the Commission; nor cross-examined in a way that gave him an opportunity to deny that he had provided any such information. I add, that in his evidence Mr Forbes had mentioned making contact with Mr Bowles for the purpose of providing him with information pertinent to the Commission's inquiry.

Seventh, the report of the police investigation was written by a solicitor member of Victoria Police, Mr Roger Jeans. This year, Mr Jeans was seconded from the force to the Department of Premier and Cabinet, and then attached to the Commission. His delayed letter of appointment described his role as "Solicitor to the Investigations Team". His role, as he described it in evidence, was to ascertain witnesses who may have information; and to obtain statements.

Eighth, Detective Chief Inspector Kevin Sheridan was involved in the police investigation and in the recommendation that charges be laid. He conferred with the Director and other persons in the Office of Public Prosecutions concerning that recommendation. He accepted the correctness of the decision that was made not to prosecute. But he has never changed his view that charges should have been laid. He knows of no police officer involved in the investigation who did change that view. He acts as liaison officer to the Commission on behalf of the police force. He assisted the Commission early this year by supplying police files created by the Major Fraud Group in its investigation of the Service.

Ninth, the opening of senior counsel assisting on 15 March 2000 clearly enough opened up investigation of possible illegal or improper conduct in the period that the plaintiff was chief executive officer of the Service; and the plaintiff's possible involvement in such conduct: see RCTr 532-535, 539-541 and 542-543.

What might the hypothetical observer make of all this?

One position that might be urged is this: the Commissioner was placed in an extremely difficult position by the critical part of Mr Forbes' article. The Commissioner had rightly faced up to the allegation and said that there was no truth to it. What more could he do? What the Commissioner (and counsel assisting) said was enough to end the matter. The investigation in the course of which Mr Forbes was examined and Commission staff were interviewed was unnecessary. It was an indication of the Commissioner's good faith.

Then, as to the closed hearing at which Mr Forbes was examined, was it not understandable that the Commissioner would want to deny the press the chance of a media spectacle? And was it not understandable that an examination one of whose purposes was to ensure the integrity of the Commission's processes should be kept confidential?

Again, was not the course which the Commissioner adopted with respect to Mr Forbes' refusal to answer questions understandable as a method of defusing the incident and its possible impact upon the Commission's reputation?

Further, were not the reasons given for holding the information session cogent? And were not the conclusions expressed by counsel assisting quite sound?

Next, there was no reason to believe that Mr Bowles' investigation had not been thorough. Mr Bowles himself should be excluded as the "informant". True he had spoken with Mr Forbes in connection with the Commission's inquiry. But he had given evidence before me, and he had not been examined or cross-examined to suggest that he was the informant. Was not the fact that an internal investigation had been ordered itself a demonstration of the Commissioner's desire to get to the bottom of what Mr Forbes had written?

Further again, even if a member of the Commission staff had prejudged material adversely to the plaintiff, why was there reason to apprehend that such prejudgment might infect the work of the Commissioner (or of counsel assisting)? Could it not be fairly assumed that the Commissioner (and counsel assisting) would be vigilant in their work?

Finally, would it be anything more than speculation to conjecture that the informant (if not the Commissioner or counsel assisting) was simply repeating the expressed views of the Commissioner or counsel assisting; and would it be more than speculation to conjecture that the informant had the ability or opportunity to impose his views upon the Commissioner or counsel assisting?

Is it arguable, however, and if so with what strength, that the observer might legitimately adopt a different perspective, whose threads would be as follows:

A serious allegation of prejudgment was made. Denial by the Commissioner (and counsel assisting) was to be expected; but saying something did not mean it was the case.

Accepting, for argument's sake, the statements of the Commissioner and counsel assisting that there was no actual prejudgment, and accepting also the evidence of Mr Forbes which on the one hand exonerated each of them as his informant, and on the other hand reiterated that there was a Commission informant, who was the probable informant? Objectively, might not Mr Bowles be suspected? [In this connection there is the lawyer's point that Mr Bowles gave evidence and that counsel for the plaintiff did not examine him to suggest that he had been the informant. But, on the other hand, neither did counsel for the defendant cross-examine Mr Bowles to dispel the suspicion that might objectively attach. This would create problems for a lawyer, let alone a lay observer]. If it was not Mr Bowles, then having regard to Mr Forbes' position as a senior journalist with a long history of close involvement in the ambulance imbroglio (so, for example, he was one of the authors of the article of 9 December 1999 which is referred to elsewhere in these Reasons; and a request made by him under the Freedom of Information Act is the subject of inquiry under term of reference 7), and having regard to his role in providing information to the Commission, and further having regard to the seriousness of the allegation made in the article, was it not likely that the informant was a member of the Commission's investigation team rather than some junior clerk (or, for that matter, the Commissioner's then media director)?

Might it not, then, be sensibly apprehended that the informant was party to, and was repeating, the opinion of the Commissioner (or perhaps counsel assisting), or was in a position where he might influence the thinking of the Commissioner, or that the informant's perception of the situation was likely to affect the way in which investigations were pursued, and the way in which material was presented to counsel assisting and thereafter to the Commissioner – this producing, in substance, prejudgment by the Commissioner?

Next, might not the hypothetical observer reasonably be concerned about the way in which the Commission handled the matter? Might he not fairly think, for a number of reasons that I shall set out, that the Commission was ready to exculpate itself fairly readily from the import of what Mr Forbes had written?

So, first, might he not think that, even if an in camera hearing was necessary, there was good reason why counsel for represented parties should have been permitted to attend? Could not the Commission have inquired into the integrity of its own processes without excluding counsel for represented parties? Since senior counsel assisting knew, in advance, that Mr Forbes would not implicate the Commissioner or counsel assisting as "the source", was it not a matter of very considerable concern that a private hearing was conducted in which that was said and no one present had an interest to challenge it?

Second, might he not think that the Commission – by the statements of both senior counsel assisting and the Commissioner – was principally interested in maintaining the integrity of its processes, not in ascertaining whether it was infected by partiality? Could there be virtue in preserving the integrity of Commission processes if to do so was to conceal prejudgment?

Third, whilst he would rightly conclude that senior counsel assisting had comprehensively cross-examined Mr Forbes (as counsel for the plaintiff conceded before me), might he yet be concerned that the Commission had, by counsel assisting, in substance advised its likely course in connection with Mr Forbes even before it had commenced its own internal investigation; and that it had formally advised its intended course on the day after that investigation commenced?

Fourth, might not he be concerned about the course which the Commissioner decided to take with respect to Mr Forbes? It could be said to be a generous disposition. Note also that it was a disposition settled upon before the Commission began its own internal inquiry, and long before senior counsel assisting arrived at his conclusions. [I add this: the observer would not conclude that the Commissioner did not refer the matter to a law officer under s.20 of the Evidence Act because he was uncertain whether he had the power to question Mr Forbes about his article: cf Hecker v Beach (Dunn J, 7 May 1975, unreported). That is not the reason which the Commissioner gave for the course he took; and it is inconsistent with the attitude of senior counsel assisting in discussion with senior counsel for Mr Forbes on 16 March].

Fifth, might not the observer be concerned that the Commission used one of its own staff to conduct an investigation into the serious question raised by Mr Forbes' article? It might be said that propriety dictated that the investigation of that matter, allegedly involving a person within the Commission, be undertaken by someone external to the Commission.

Sixth, would not the observer have thought it likely that there was in fact material in the possession of the Commission implicating more than one person in conduct which justified criminal charges being laid (I put to one side for the moment the question whether the observer might have included the plaintiff among those persons)? After all, the material generated by Operation Caledon was in the possession of the Commission; and the observer might think that the 1999 decision not to prosecute was not the last word on the subject, particularly in light of the Commission's extended evidence-gathering abilities. Why should the observer be criticised if he reasoned that, despite the statements obtained by Mr Bowles, Mr Forbes' evidence could not easily be dismissed? Moreover, he might note that the statements were neither released to the parties in the Commission proceedings, nor were in evidence before me; so that the extent of the internal investigation remained to an extent opaque.

Seventh, would it not be open to the observer to regard the Commissioner's apparent change of heart in releasing material on 27 April as being inadequately explained in the several reasons given by senior counsel assisting; and in that context regard the conclusions and opinions then expressed by counsel (apparently accepted by the Commissioner) as revealing a too‑willing readiness to exonerate the Commission in its entirety from any conduct justifying the pertinent portion of Forbes' article? So, a reader of those conclusions might think that counsel was quick to find fault with the detail of Mr Forbes' evidence; and that there was a readiness to prefer the out of court statements (so far as is known, unsworn) of Commission staff to the testimony of Mr Forbes. The observer would not, I think, conclude that counsel's conclusions were affected by the advantage that he (and the Commissioner) had in seeing and hearing Mr Forbes give his evidence. Although it is not decisive, neither counsel assisting nor the Commissioner asserted any such thing.

Next, might not the hypothetical observer think that the serious allegation made by Mr Forbes' article referred, whether solely or otherwise, to the plaintiff? True it was that neither the Auditor General's report nor the Operation Caledon report alleged illegal conduct on the plaintiff's part. But on the other hand, the inquiries which led to those reports were inhibited by lack of coercive powers and absence of documents. The plaintiff was surely one of the "senior management" to whom the Auditor General's attribution of "at worst corrupt activity" related. At one stage the plaintiff had been a "main suspect" in Operation Caledon (Exhibit K, memorandum 2 May 1997), and at a later stage it was only said that there was "insufficient incriminating material to warrant a criminal interview" (Exhibit K, memorandum 26 February 1998). The terms of reference inevitably submitted the plaintiff's conduct to examination, a matter made the more obvious by the opening statement of senior counsel assisting (made on 15 March, but nonetheless part of the material in the context of which the article of 14 March should be considered). Further, the plaintiff's name has been repeatedly mentioned in the daily press for a number of years in connection with the Ambulance affair – an affair popularised as involving corruption and concealment. Could not the situation be summarised this way: that if the observer concluded that the plaintiff was a person to whom the critical portion of Mr Forbes' article related, that conclusion could not be said to be unreasonable?

All in all, might not the observer conclude that the course which the Commissioner and counsel assisting took with respect to the Forbes matter – whether or not that course was necessary – tended to reinforce rather than dispel an appearance of prejudgment adverse to the plaintiff conveyed by the critical portion of the article?

Having set out the competing analyses in some detail, I come to the critical point. The law requires, as I have said, that apprehension of bias be firmly established. It is one thing to say that there is a chain of reasoning, whose links are of variable strength, from which an appearance of prejudgment on the part of the Commission against the plaintiff may be discerned. But to say that does not of itself answer the question whether apprehension of bias by the Commissioner against the plaintiff has been firmly established.

In my opinion, a number of the matters which tend in the direction of apprehension of bias, and to which I have adverted, are matters of substance; not mere shadows. But I am not satisfied that apprehension of prejudgment has been firmly established. I have been influenced to that conclusion by three matters.

First, in the unusual situation created by the Forbes' article, there was not a lot of time given to the Commissioner to select an appropriately swift response. The response that was in fact made, once it was set in train, and whether or not it was necessary, led from one step to the next almost inexorably. With benefit of hindsight, one can stand back and argue that some, perhaps many, of the steps taken were not necessary; and one can now see that there were points where different action could have been taken. But the situation was an evolving one, against the backdrop that the Commission was under a time constraint and that substantive hearings were ongoing.

Second, there is, as I have noted, a way in which the hypothetical observer might view the facts and conclude that no apprehension of bias adverse to the plaintiff was disclosed. That approach could not by any means be said to be far-fetched.

Third, it is apprehension of bias on the part of the Commissioner that must be of the greatest (if not decisive) significance. Indeed, whilst the originating motion refers to "a reasonable apprehension of bias by the Commission", the Particulars commence by reference to "the existence of a reasonable apprehension of bias by the Commissioner." The observer would fairly draw a distinction between the Commissioner on the one hand and all other segments of the Commission (I include counsel assisting in this description) on the other hand. It might be apprehended that some segment of the Commission was affected by prejudgment and yet the observer might fairly conclude that the Commissioner was not to be saddled with that stigma.

Complaint may be made, as I have observed, about the circumstances in which Mr Forbes was examined. But he did say on his oath both that there was an informant within the Commission and that it was not the Commissioner or counsel assisting. I consider that it would be too much picking and choosing to accept the former and reject the latter. All things considered, putting myself in the shoes of the observer, I see no reason not to accept both.

That said, I think that it would fairly be regarded as no more than speculation that Mr Forbes' informant was either repeating the views of the Commissioner or was in a position to influence the Commissioner in a way adverse to the plaintiff. Further, I do not think it could be apprehended with any degree of conviction, even if the informant did provide prejudiced material to counsel assisting, and even if such material was adduced in evidence before the Commissioner, that the Commissioner, by want of vigilance, might himself become infected by that material to the plaintiff's detriment.

Before leaving this topic I should briefly mention an additional matter. In one of the documents which plaintiff's counsel handed up to me it was asserted in effect, that the reasonable observer would see in Mr Forbes' evidence which exonerated the Commission and counsel assisting as his informant, and in the way that the Commissioner dealt with Mr Forbes, the working out of an arrangement or understanding that Mr Forbes would exonerate the Commissioner and counsel assisting in return for a "good behaviour bond".

There was a deal of argument before me concerning the true nature of the assertion, whether or not it had been echoed in another of the plaintiff's documents, whether it had ever been formally abandoned; and so on. Much of this, I consider, was a sideshow. Insofar as the matter deserves attention it does so because, whether once or more than once, an assertion was made that out of certain events the hypothetical observer would or might conclude that the Commissioner, counsel assisting and counsel for Mr Forbes had concluded a corrupt arrangement which involved (or at least may have involved) Mr Forbes in giving perjured evidence. That was not "the obvious conclusion" to draw from the revealed circumstances. It was very far indeed from being "the obvious conclusion". Despite the fact that it should be taken to have been advanced as the perception of the hypothetical observer, I consider that it was an assertion that should not have been made.

Unequal treatment?

The Particulars allege that the existence of a reasonable apprehension of bias by the Commissioner adverse to the plaintiff is to be discerned from the matters alleged by paragraphs 1.1(b), (c), (d), (e), (m), 1.2(f) and (i); and that the matters raised by paragraph 1.2(f) and (i) otherwise constitute a denial of procedural fairness. The paragraphs are as follows:

"(b)the total failure of the counsel assisting or the Commissioner to cross‑examine Mr Morris, Mr Fodero and Mr Langridge as to their motives and conduct in respect of removing MAS documents and opposing outsourcing reforms;
(c)permitting counsel assisting to lead evidence with a one sided political flavour and without any probing or testing of that evidence;
(d)the involvement of counsel assisting in the drafting of Mr Morris' statement;
(e)the favourable treatment by the Commission of the union witness, Mr Morris, and unfair treatment of Dr Paterson (known to be strongly disliked by the unions);
(m)the Commission's abandonment of specified procedures for dealing with witnesses in relation to its dealings with Dr Paterson (who was only the third witness to be called for examination);

1.2(f) denying (the plaintiff) access to the drafts of Mr Morris'
statement;
(g)the leading of, and acceptance by the Commission of prejudicial
and not probative 'evidence' irrelevant to the scope of the inquiry."

Those Particulars grounded a major plank in the plaintiff's case: that the Commissioner has both acquiesced in and supported a thoroughly one-sided preparation and presentation of material by counsel assisting in which a political barrow has been firmly pushed, in which witnesses who have assisted in the pushing have been treated solicitously by counsel assisting, and in which a witness who stood in the way of the barrow was treated very harshly and unfairly by counsel assisting.

In building the plaintiff's case in this connection counsel for the plaintiff submitted that the hearings of the Commission clearly revealed a number of themes which have been advanced by counsel assisting in a one‑sided way. Counsel produced a document in which 34 themes were identified. Leaving aside transcript references and headings the themes were these:

"1. MAS underfunded.
2.Liberal government cost cutting, even in the face of the coroner's finding of deaths due to inadequate funding and staffing of the ambulance service was the/a major cause of any problems with MAS.
3.On Minister Tehan's expressed view that 'lives were not at risk' therefore, there was no urgency to introduce CAD/AVL. Nor was there any urgency in other outsourcings such as financial management and non-emergency transport, indeed no need to outsource anything.
4.There was nothing/little wrong with MAS that could not have been fixed with a little bit more money and time.
5.CAD/AVL needed 2 years to implement (not 6 months as occurred).
6.The real motive of Minister Tehan, Dr Paterson and Firman was to 'smash' the union by making its members redundant, even though this created a risk to public safety.
7.It was government policy to privatise MAS.
8.Minister Tehan and Dr Paterson's true intention was 'smashing' the union.
9.Firman was chosen as CEO because he was a person likely to 'smash' the union. He was an agent for change.
10.Firman adopted a 'crash through or crash' approach.
11.Firman acted as CEO for a time before he was officially appointed.
12.There was no good reason to sack the existing committee of management. Henderson's resignation was forced.
13.The union problems were exaggerated and either did not exist or the problem was relatively small and under control.
14.The advice of Morris and other union officials was wrongly ignored.
15.The first Henderson consultant's report was flawed.
16.Perrins was a 'puppet'.
17.Minister Tehan, Dr Paterson and Firman have acted deceptively and unfairly.
18.It was irregular for Firman to be employed through his company Pinelow Pty Ltd as it created a conflict of interest as between Firman's duties to Pinelow and to the Department.
19.Firman had a most unusual bonus clause in his contract.
20.Firman's bonus was a motivating factor in his conduct in relation to MAS.
21.Minister Tehan and Dr Paterson irresponsibly permitted or turned a blind eye to these most unusual and unsatisfactory commercial arrangements.
22.Firman pushed for Griffiths and, inter alia, ignored Perrin's information as to his association with the business failure.
23.Firman had a pre-existing relationship with Tyrell, Griffith and Terry Henderson.
24.Firman had Intergraph in mind at the commencement of his employment as CEO. It was a done deal.
25.Firman wrongly ignored government guidelines and procedures and acted outside them.
26.Firman's proposal that MAS have its own CAD system was contrary to government policy.
27.Firman left no proper paper trail.
28.Tenders were rigged or improperly conducted.
29.Tenders were not in accordance with government guidelines.
30.Firman was involved in removing or concealing key documents.
31.Firman's reforms did harm.
32.There were breaches of statutory obligations and other disregard for duty by Paterson/Tehan.
33.Dr Paterson and Mrs Tehan abrogated responsibilities by not properly supervising Firman.
34.Filschie and Coroner's recommendations ignored."

Counsel for the plaintiff did not deny that most of the themes were, actually or potentially, relevant to issues opened up by the terms of reference. He did not extend that concession, in substance, to the matters categorised as themes 1, 2, 6, 8, 9, 10, 12 and 13. His principal complaint was that counsel assisting, with the Commissioner's acquiescence and encouragement, had relentlessly pursued the themes in a one‑sided manner; and that a number of important matters which might tend to impugn the evidence of proponents of the themes were not raised by counsel assisting. Thus:

· The conduct of Messrs Langridge, Morris and Fodero, or any of them, in providing Service documents to Mr Thwaites;

· Union policy, the campaign to oppose outsourcing, and generally the motives for "union" witnesses to give the evidence which they did;

· Inconsistency between the evidence of union officers at a Coroner's 1992 inquiry into ambulance-related deaths and the evidence of witnesses such as Mr Morris in the Commission hearing;

· Failure to probe the opinions of Messrs Allan Henderson, Morris, Langridge and (substantially) Fodero – by contrast with swift and vigorous cross‑examination of opinions expressed by Dr Paterson;

· The contribution of persons such as Mr Morris to the investigations undertaken by and the conclusions of the Auditor General and Victoria Police (particularly when some of the Auditor General's conclusions were put to Dr Paterson in cross‑examination by counsel assisting).

Counsel characterised each of those issues as a credit issue only; but he made the point that the credit of witnesses was important in that, for example, diametrically opposed accounts of pertinent conversations had been given.

I do not consider that the fourth matter raised by counsel did raise merely a credit issue. Some of the opinions expressed by Messrs Allan Henderson, Morris, Fodero and Langridge went to matters of substance. Further, the Commission not being bound by the rules of evidence, it may be that the evidence of Mr Morris and others given at the Coroner's hearing could be treated other than as merely going to the credit of those witnesses insofar as any of them have given or might give evidence before the Commissioner.

Counsel for the plaintiff conceded that counsel for the represented parties had taken up the identified issues with Messrs Allan Henderson, Morris, Fodero and Langridge – but "partly", not "wholly". He submitted that attempts to fully cross-examine had, in some instances, been inhibited by the Commissioner and counsel assisting.

According to the submissions of counsel for the defendant the criticisms of the Commissioner and counsel assisting were in all respects without foundation. Each step taken by the Commissioner and counsel was individually explicable. Insofar as there had been a variant approach taken by different counsel assisting to the examination of different witnesses, that was no more than a forensic decision dictated by different circumstances. Insofar as there has been sharp exchanges between senior counsel assisting and Dr Paterson, they were a reasonable response to the way in which the witness went about answering questions; and in any event Dr Paterson was well able to look after himself. Insofar as Messrs Henderson and Morris had not been cross-examined by counsel assisting, well, counsel for represented parties were present and were able to conduct cross‑examination. Further, the plaintiff's counsel in substance withdrew from the Commission hearings when only three witnesses had given their evidence (or part thereof). A witness later called who the plaintiff characterised as a "union witness" had been cross-examined by counsel assisting. This pointed up the fact that the plaintiff's application was premature.

At the conclusion of the hearing on Monday 27 March counsel for the plaintiff ceased to attend the Commission. He did not attend again until Friday 31 March. By then senior counsel had been engaged and the charter, so-called, had been prepared. It is very clear from the evidence of the plaintiff and of Mr McCabe, and also from written submissions provided to the Commissioner in support of the document, that the plaintiff's side viewed its acceptance, or at least acceptance of its essentials, as the Commission's last chance to give the plaintiff procedural fairness, and to avoid an intractable conclusion that there was reasonable apprehension of bias on the part of the Commission.

It was in substance suggested, in cross‑examination of the plaintiff and Mr McCabe, that presentation of the charter was a stunt or sham - the Commissioner being presented with a document whose contents he could not have accepted just so that his refusal could be relied upon as a plank in this proceeding. Attention was drawn to the peremptory language of the document and to intemperate language used in the related written submission for the plaintiff. But in his closing address the Solicitor General specifically disclaimed any submission that the presentation of the document was a stunt or sham; and he specifically endorsed my provisional conclusion that, whether rightly or wrongly, Mr McCabe, a solicitor of many years experience, held a very strong view about the way in which the Commission had been conducted – that is, in the period to and including 27 March. The Solicitor General continued to contend, however, that the charter was not one that the Commissioner could have accepted; and that its rejection could occasion neither reasonable apprehension of bias nor a conclusion that the plaintiff had otherwise been denied procedural fairness.

That takes me to the document itself. This is what it said:

"REPRESENTED PARTIES' CHARTER
A.Counsel assisting will not be permitted to:
- cross examine witnesses in-chief (reserving same for re‑examination);
- belittle or intimidate witnesses.
B.Subject to any privileges that might exist, the Commission will permit all drafts of witness statements and any other material supplied by a witness to it that was used in the process of preparing any witness statements to be inspected by counsel for the purpose of cross examination of that witness.
C.Counsel assisting will not show to witnesses documents supplied to them by other counsel in advance of any cross examination if requested not to do so.
D.The Commission shall keep the represented parties fully informed about any alterations or likely alterations to the date by which it must deliver its report to government.
E.The Commission shall provide the represented parties with a descriptive timetable (to be kept updated as necessary) of all proposed future public hearings.
F.Until:

(i) the Commission document data base has become fully accessible to the represented parties for a reasonable period of time;

(ii) the Commission has given its present view about the meaning likely to be attributed by it to 'improper conduct';

(iii) counsel assisting have informed either the Commission in public or any represented party of the likely nature of any allegations against that represented party and the evidence proposed to either prove or disprove them –

Counsel for represented parties shall have the right to defer their cross examination or further cross examination of any witness called in the current round of hearings and are assured that those witnesses will be recalled by the Commission for the purpose of further cross examination upon request by any represented party.

G. Represented parties who might be the subject of adverse findings and who counsel assisting propose to challenge in any way will not be required to give evidence without notice of the kind referred to in paragraph F(iii) above.

H. Represented parties affected by the Forbes article will be kept informed by the Commission of all matters that the Commission is presently informed about concerning the article including:

- being granted access to the transcripts of any confidential hearings involving Forbes on the matter;

- being granted access to all and any other relevant material on the issue in the possession of the Commission;

- being fully informed about what further steps the Commission has taken and may be planning to take in relation to the article both in respect of Forbes himself and any internal Commission investigations into the matter and internal action by the Commission concerning the matter."

Senior counsel for the plaintiff first mentioned the document to the Commissioner on 31 March 2000. Counsel for the plaintiff indicated that written submissions would be filed. The matter was stood over until Monday 3 April. What occurred in connection with this matter on 31 March is disclosed at RCTr 1965-1972.

On 3 April senior counsel assisting contended that the submissions made for the plaintiff were only an amplification of submissions made on 27 March, and that the matter should be disposed of by giving other parties the opportunity of making written submissions, the plaintiff an opportunity of making further written submissions, and then (implicitly) the Commissioner ruling upon the matter. The course proposed was not news to the plaintiff's side. Senior counsel had been told over the intervening weekend that the Commissioner would not entertain oral submissions. The Commissioner's remarks at RCTr 2097 show that the Commissioner and counsel assisting had been involved in that decision. Be that as may, the Commissioner indicated on 3 April that he proposed to follow the course outlined by counsel assisting. He rejected the submission of senior counsel for the plaintiff that he be permitted to speak to the charter; and he declined a request that he rule immediately. Submissions made for the plaintiff, I add, were at times not expressed in temperate language. The relevant transcript is at RCTr 2092-2100.

Counsel for the plaintiff had filed written submissions in support of the charter on 31 March. Many of the matters now relied upon by the plaintiff were raised. I need not mention them. I do note that the submissions -

· contended that if the charter was not "essentially adopted" (or adopted "at least in its essential elements") the Commissioner "must" stand down. But they did not suggest – rather the contrary – that reasonable apprehension of bias did not already exist;

· asserted that "the conduct of this Commission has been an affront to common dignity". This perception was very apparently shared by Mr McCabe (see T 369,370). It was not the language of the law. I think that the Solicitor General was right to describe that submission as highly provocative.

Various of the represented parties filed submissions in connection with the charter. I pause to make three points. First, none of the represented parties had been consulted by the plaintiff's side before the charter was produced before the Commission. Second, whilst it is true that no represented party embraced the charter in its entirety, it is not the case that the concerns out of which it grew were not replicated in certain of the submissions that were advanced. Third, the submissions made on behalf of a Mr Cameron raised apprehension of bias arising from the Commission's employment of past and present police officers who had been involved in Operation Caledon. That took up a matter briefly mentioned (at paragraph 14) of the submissions for the plaintiff.

The Commissioner delivered his ruling on 7 April 2000. He began by describing some of the submissions made for the plaintiff as "unhelpful, provocative, sensational and offensive both to me and Commission staff". The substance of his ruling was this:

· he declined to direct counsel assisting to refrain "from cross‑examining witnesses in chief when they first question the witness";

· he said that it was inappropriate to belittle or intimidate witnesses. That must be dealt with on a case by case basis;

· he declined to adopt a general rule that all drafts of witness statements and other material supplied by a witness and used in preparation of his or her statement be released for inspection before cross‑examination, saying that release must depend on the circumstances;

· he declined to rule that counsel assisting not show witnesses documents supplied to them by other counsel in advance of cross‑examination if requested to do so, saying that such matters depend on the circumstances;

· he accepted each of the matters raised by paragraphs D and E of the charter;

· he dealt with paragraph F by noting his earlier statement that witnesses would be recalled, if necessary, when the document database was fully accessible, by noting that he had reserved his decision on the issue of the meaning of the term "improper conduct", and by observing that authority compelled him to inform a party against whom an adverse finding might be made of that possible conclusion – offering that person an opportunity to meet it by evidence and by submission;

· he rejected paragraph G;

· in connection with the Forbes matter he said that he "did not propose to involve the other parties in the Commission's internal inquiry or to grant them access to the transcripts of any confidential hearings that relate to that matter";

· he said that he had no intention of removing any staff members of the Commission, or of debating the investigative methods used by the Commission's staff.

I do not consider that principle required any different outcome in respect of the matters raised by paragraphs A-G of the charter. The Commissioner's position with respect to paragraph H was overtaken by later events. I have dealt with it separately. For the most part, I should add, the charter raised matters of procedure concerning which the Commissioner had, and was entitled to preserve, a discretion for exercise on a case by case basis.

Notwithstanding the overall conclusion just expressed, I should briefly say something about paragraphs A, B, C, F(iii) and G of the charter.

As to the first of these, in my opinion the Commissioner was not bound to preclude counsel assisting from cross‑examining a witness from the outset. Hallett, supra, at pp.218-221 does not suggest that there is an inflexible rule to the effect contended for by the plaintiff. But it may be said, nonetheless, that very different treatment of witnesses by counsel assisting, which treatment is unexplained, may carry with it the apprehension that a particular result is being sought.

As to paragraph B, in my opinion the Commissioner's approach was not in error. It could be expected no doubt, that drafts and materials used in preparation of statements would be disclosed where a witness's credit was likely to be in issue and where the drafts and materials opened up the possibility of inconsistency, or partiality.

As to paragraph C, the Commissioner's refusal to bind himself to a course of conduct disclosed no error. No doubt, in practice, a request of the kind under discussion would be acceded to. Whilst a witness is a witness of the Commission, cross‑examination by a represented party might be important to the Commissioner's assessment of the witness; and its impact could be significantly diminished, to the Commissioner's ultimate disadvantage, if the witness was given forewarning of a likely attack.

I deal with paragraphs F(iii) and G together. I do not consider that the Commissioner was compelled to reach any conclusion other than he did. Neither of the authorities cited for the plaintiff to the Commissioner – Bretherton, supra, at 125 and Air New Zealand v Mahon [1983] NZLR 662 at 671 compel a contrary conclusion.

It is not clear to me from the ruling at RCTr 2666 whether the Commissioner relied upon Cornall, supra, at 393-402 in resolving one or both of the matters raised by paragraphs F(iii) and G. Cornall had nothing directly to say about the matters raised by those paragraphs; but the Commissioner seems to have reasoned that, his obligation being as he set it out, it followed that there could be no obligation binding him to the course proposed by paragraphs F(iii) or G. I do not consider that such reasoning was objectionable.

In the event, the ruling itself did not deny the plaintiff procedural fairness. As to apprehension of bias, even if it was theoretically possible that a ruling could be unexceptional and yet might reasonably lead to such an apprehension I am unable to see that the present case might lead to such a conclusion.

Further as to apprehended bias, the plaintiff relied not only upon the substance of the ruling but upon the apparent milieu in which it was delivered (this is part of the subject-matter of Particular 1.1(p)). It was contended, in substance, that the reasonable observer would apprehend partiality against the plaintiff from the way in which the Commissioner and counsel assisting treated his counsel. It is in connection with the matter thus raised that I have referred in what would otherwise be unnecessary detail to the course of the debate.

It is, I consider, the case that senior counsel assisting responded to the submissions made by junior counsel for the plaintiff on 27 March in a particularly vigorous way. It is further the case that the submissions filed for the plaintiff on 31 March used language which was not the language of the law, and was highly provocative. Further, the submissions made for the plaintiff on 3 April were at the least very forceful. Clear also it is that the Commissioner in his ruling commented adversely upon the way in which the plaintiff's counsel had advanced their client's case; and that he made several remarks critical of other aspects of the behaviour of junior counsel for the plaintiff in the course of the preceding debate.

In all, the hypothetical observer would apprehend from what took place that there was a quite high level of tension between counsel for the plaintiff, counsel assisting and the Commissioner. He would not think that surprising having regard to the subject matter of the debate. He would not apprehend, from the circumstances described, that the Commissioner might not bring an impartial mind to bear in considering the plaintiff's conduct vis‑à‑vis the terms of reference.

The document data base; recall of witnesses

Paragraph 1.2(e) of the Particulars alleges that the plaintiff has been denied procedural fairness because he has been denied access to the data base of documents maintained by the Commission.

Paragraph 1.2(h) alleges that the plaintiff has been denied procedural fairness because the Commissioner has refused to undertake to recall witnesses at the plaintiff's request after he has had reasonable access to the data base and the meaning of "improper conduct" has been clarified.

Those complaints are not made out.

The evidence shows that Commission staff have for months been collating and indexing in a number of ways a vast body of documents. The task is not yet complete. When it is complete represented parties will be given access to both the documents and the indexes (except where some issue of confidentiality arises).

Counsel for the plaintiff asked, rhetorically, who is indexing the vast body of documents so as to classify each of them as highly relevant, relevant or marginally relevant (they being the categories of classification); and so as to relate each of them to one or more of the terms of reference?

The task of classification must be undertaken by someone. The Commission has taken possession of the documents. For that reason, and because the Commission alone is likely to have the resources to apply to the project, Commission staff are logically the persons to do the work. There is not the slightest evidence to suggest that the persons undertaking the task of classification are applying other than fair minds to their work; nor is there any evidence upon which to doubt the competence of any of those persons to perform the task. There may well be, in some cases at least, an element of subjectivity in determining whether a particular document is pertinent to a particular term of reference; but I see no reason to conclude that the determinations in such cases are likely to be so flawed as to deny utility of the classification outcome to the represented parties.

It is a corollary of what I have just said that the particular aspect of the plaintiff's submission now under discussion raises complaint prematurely. The classification process is as yet incomplete. The accuracy and reliability of its outcome has not yet been put to the test.

Counsel for the plaintiff submitted, as is the fact, that a number of witnesses have so far been examined without either counsel assisting or the represented parties having access to the full body of documentation. Counsel pointed to the undesirability of that course and to the fact that the Commissioner has given no guarantee that a request for a witness to be recalled will inevitably be granted.

The course which has been taken is, having regard to time constraints, understandable. It is also less than ideal. It is likely, if not inevitable, that witnesses will have to be recalled. Senior counsel assisting conceded so much at RCTr 505. The Commissioner has not said that this will not be permitted. He has said that a request for a witness to be recalled will not necessarily be granted: RCTr 1909, see also 2665-2666. That is a perfectly reasonable position to take, particularly bearing in mind the fact that this is not a proceeding inter partes, but an inquisition in which the witnesses are the witnesses of the Commission.

There is another reason why the complaint raised by Particular 1.2(h) must fail. It is, I consider, premature. It is not yet known what requests will be made for witnesses to be recalled; and on what ground or grounds – that is, by reason of emerging documentation, or having regard to the Commissioner's preliminary ruling as to the meaning of "improper conduct". The Commissioner's response to concrete situations is unknown.

The Auditor General's report

According to Particular 1.1(a) apprehension of bias reasonably arises from the Commissioner's

"failure to examine the accuracy or reliability of the information on which the Auditor General's report … was based, in particular, on information from Mr Morris, Mr Fodero and Mr Langridge."

No such apprehension could reasonably arise. It is true that the preamble to the terms of reference identifies the report, in particular its expression of concern "about the probity of contractual and outsourcing arrangements at the … Service during the period" when the plaintiff was chief executive officer. It is also true that conclusions expressed in the report are the obvious source of a number of the terms of reference (if any confirmation was needed, see Exhibit J). I am also prepared to accept the plaintiff's evidence that, as he perceives it, the report is a scandalous and appalling document, expressing conclusions reached upon a less than thorough investigation.

Those things said, the Commission is not a Commission to inquire into the Auditor General's report. It is a Commission to inquire into particular transactions which are identified in his report. It is for the Commissioner to inquire into and report upon those transactions, and to do so upon material adduced before him. He already has called or no doubt intends to call before him persons who provided information which was relied upon by the Auditor General. In the end, the evidence of those persons will be assessed by him as relevant or irrelevant, reliable or unreliable. In the Commissioner fulfilling his function, conclusions reached by the Auditor General will be neither here nor there. The fact that, depending upon the Commissioner's conclusions, conclusions reached by the Auditor General will be either supported or impugned will be a by-product, no more, of the Commissioner's conclusions. That is the way in which the hypothetical observer would perceive the situation.

Counsel for the defendant developed an argument that the plaintiff had not, in any event, made out a fundamental premise on which Particular 1.1(a) was said to rest: that is, that the Auditor General's report was based, in particular, on information provided by Messrs Morris, Fodero and Langridge. I do not agree that the Particular does rest upon that premise. I conclude, having read the report, the later Operation Caledon report, the evidence of Messrs Morris, Fodero and Langridge before the Commission, and also having regard to Mr Morris ' evidence before me, that each of the three men provided material to the Auditor General; and that such material at least contributed to some of the conclusions which he reached. Those conclusions do not advance the plaintiff's case.

The conduct of the Commissioner and Counsel Assisting vis-à-vis plaintiff’s counsel: paras 1.1(p) and (t) of the Particulars

It was contended for the plaintiff that the Commissioner, and counsel assisting with the Commissioner’s evident acquiescence, had treated counsel for the plaintiff in such a way as to indicate animus against the plaintiff (see eg, Outline of Plaintiff’s Case, para 16); and that the pattern of conduct established before the Commission had continued in the proceeding before me.

I do not consider that the complaint was made out. Proceedings in the Commission and before me were not at all times free of tension. Senior counsel for the plaintiff could not be said to have been a shrinking violet in either setting. Many would think that, in pursuing his client’s interests, he gave as good as he got. Generally speaking, I do not regard any remarks highlighted by the plaintiff’s side to go beyond what could be expected in all the circumstances; though in expressing that conclusion I do not say, and it is not the case, that junior counsel for the plaintiff was always treated kindly by counsel assisting.

Nor, again, do I consider that anything favourable to the plaintiff is to be discerned from the alleged failure to acknowledge the role of plaintiff’s counsel which are referred to in para. 1.1(t) of the Particulars; or from the unilateral revision of transcript there identified. The revisions, I add, were made on 13 April; and counsel for the plaintiff ultimately did not rely on one of the two of them.

The return of the Firman summons: paragraph 1.1(k) of the Particulars

The plaintiff was served with a summons to produce documents. It was returnable on 3 February 2000.

Many of the plaintiff's documents had been seized by the police in October 1997.

The plaintiff recovered those documents a day or so before 3 February this year.

The plaintiff's solicitor, Mr McCabe, understood, from speaking to some employee of the Commission, that it was to receive from the police a copy of those documents.

On 3 February the plaintiff and Mr McCabe attended at the Commission hearing. They had with them the documents returned by the police.

On that day there was apparently some discussion between senior counsel assisting and Mr McCabe concerning the ambit of the summons. The matter was briefly mentioned before the Commissioner, and the return of the summons was adjourned to 10 February 2000.

In the course of that brief mention Mr McCabe told the court that the majority of the documents sought were documents that had been provided to the police, that he had been informed that they had been provided to the Commission, and that he sought an opportunity to inspect what had been provided so that, inter alia, irrelevant documents could be identified. He did not mention the fact that he and the plaintiff had brought the returned documents to the Commission that day.

In the event, the summons was not answered and the documents were taken back to Mr McCabe's office.

Later that day, it seems, the Commission learned that the documents had been returned to the plaintiff by the police.

The plaintiff was forthwith required to attend the Commission the next day. He and his solicitor did so. The plaintiff was examined to suggest that he had concealed documents from the Commission. The examination was robust. The plaintiff denied any such concealment. He explained the situation from his standpoint. Mr McCabe explained that it had all been a misunderstanding, and apologised to the Commission – but, he said in evidence before me, in substance to his client – for having created that misunderstanding.

The explanation was accepted, without hesitation, by the Commissioner.

Mr McCabe gave evidence that, at the time, he attached no significance to the matter. In light of the terms of reference, he accepted that the Commission could be expected to be sensitive to the possibility that documents had been concealed. It was only after he saw a certain pattern emerging in the conduct of the Commission that he came to attach particular significance to what had occurred on 4 February.

I do not consider that the hypothetical observer would or might reasonably apprehend from what occurred on 4 February 2000 any appearance of bias against the plaintiff. What the plaintiff's solicitor said on 3 February was really the source of the problem; and the response of counsel assisting on 4 February could scarcely have been otherwise. I do not accept, I add, the suggestion that on 4 February the matter should have been settled between counsel assisting and the plaintiff's solicitor; and that failure to dispose of it that way might reasonably lead to an apprehension of bias on the part of the Commission adverse to the plaintiff.

Orders

On the plaintiff’s notice of motion there must be judgment for the defendants. The second defendant’s summons should be dismissed. The likely fate of that summons, had it been discretely argued, is disclosed by the entirety of my Reasons.

---

Applicant	Date	Request
J Thwaites	3 May 1994	'All documents relating to the contracting out of non-emergency ambulance services including any contracts entered into, work descriptions, expressions of interest, invoices, and amounts paid.'
J Thwaites	22 December 1994	'All documents since 3 May 1994 relating to the contracting out of non-emergency ambulance services including any contracts entered into, work descriptions, expressions of interest, invoices and the amounts paid.'
J Thwaites	26 June 1995	'All documents since 22 December 1994 relating to the contracting out of non-emergency ambulance services including any contracts entered into, work descriptions, expressions of interest, invoices and amounts paid.'
J Thwaites	30 May 1997	'Any documents from the Minister for Health, the former Minister for Health Mrs Tehan, any of their staff or the Department of Human Services (or Department of Health and Community Services) relating in any way to the ministerial briefing note of 19 February 1996 (attached) including (but not limited to) any advice in relation to the four ministerial briefing notes relating to contracting out non-emergency stretcher transport referred to in paragraph 3 of the ministerial briefing note of 19 February 1996.'
J Thwaites	30 May 1997	'All documents relating to the four ministerial briefing notes referred to in paragraph 3 in the ministerial briefing note of 19 February 1996 (attached) including any internal memoranda advising that the four ministerial briefing notes had been located, any memoranda relating to the proposed release of the four ministerial briefing notes, any instructions or memoranda in relation to the non-release of the four ministerial briefing notes, any documents explaining why the four ministerial briefing notes were not released, any legal advice in relation to the ministerial briefing notes, and any file records, diary notes or other records in relation to the four ministerial briefing notes.'
J Thwaites	1 September 1998	'All documents relating to the legal advice given by Mallesons Solicitors in or about February 1996 in relation to four Ministerial Briefing Notes relating to non-emergency transport which had not been revealed at the Administrative Appeals Tribunal hearing at which the MAS had proposed to release to me in March 1996.'
B. Request to the Victoria Police
M Forbes	6 April 1999	'all documents relating to the Victoria Police investigation into the integrity of processes used by the Metropolitan Ambulance Service during 1993-1995 to implement major outsourcing and other contractual arrangements. The material we seek includes briefs of evidence forwarded to the DPP.'

[2000] VSC 240

9 June 2000