Harper v Costigan

[1983] FCA 331

HARPER v. COSTIGAN (1983) 72 FLR 140
Nos. G333, G335, G336, G338, G340, G341, G342 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative Law - judicial review - decision by Royal Commissioner to call applicants to give evidence - whether applicants entitled to statement of reasons - whether decision made in breach of rules of natural justice - whether rules applicable - scope of Royal Commissioner's terms of reference - letters patent - whether Commissioner proposes to question witnesses on matters outside terms of reference - bona fides of Commissioner

Administrative Decisions (Judicial Review Act) 1977, ss. 5, 13(1), 13(11), Schedule 2

Royal Commissions Act 1902, s.6(1)

Administrative Law - Judicial review - Decision by Royal Commissioner to call applicants to give evidence - Whether applicants entitled to statement of reasons - Whether denial of natural justice - Whether decision outside Royal Commissioner's terms of reference - Royal Commissions Act 1902 (Cth), s. 6(1) - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13(1), 13(11), Sched. 2.

HEADNOTE

The seven applicants had been summoned to appear before the Royal Commissioner into the activities of the Federated Ship Painters and Dockers Union. The seven actions were heard together. Some of the applicants also had received a summons to produce documents. The applicants sought orders of review under the Administrative Decisions (Judicial Review) Act 1977 in respect of the decision of the respondent to summon them to give evidence and to permit them to be questioned at a hearing before the Commission. The applicants sought interlocutory orders pending the trial and also sought directions that the respondent supply them with statements in respect of such decisions pursuant to s. 13(1) of the Act.

Held: (1) The decisions to summon the applicants and to require them to give evidence were not decisions to which s. 13 of the Judicial Review Act 1977 applied, being excluded by par. (e) of Sched. 2 of the Act. The applicants were not entitled to require the respondent to furnish them with written statements pursuant to s. 13(1).

Lloyd v. Costigan (1983) 48 ALR 241, applied.

(2) The applications for interim relief should be refused as: (a) the applicants had not established there was a serious issue to be tried as to whether a breach of the rules of natural justice occurred in connection with the making of the decisions; (b) the rules of natural justice did not require that a witness prior to giving evidence be told the questions it is proposed to ask him and their relevance to the terms of the Commission's inquiry. If such a requirement did exist, it had not been shown that there was a serious question to be tried in respect of the alleged breach thereof.

Quaere whether the rules of natural justice apply to proceedings before a Royal Commissioner.

(3) It was plain that the matters being investigated by the respondent fell within his terms of reference and there was no serious question to be tried on this point.

(4) Applications dismissed.

HEARING

Sydney, 1983, November 8, 11, 16. #DATE 16:11:1983

APPLICATIONS.

Pursuant to the Administrative Decisions (Judicial Review) Act 1977 applicants in seven proceedings, which were heard together, sought interlocutory injunctions in respect of decisions of the respondent to summon them to give evidence and to permit them to be questioned before a Royal Commission. The applicants also sought final orders that the respondent supply them with statements in respect of such decisions pursuant to s. 13(1) of the Act.

T. E. F. Hughes Q.C., W. H. Nicholas Q.C. and J. D. Heydon, for the applicants Harper, Packer, Jones and McWilliam.

A. B. Shand Q.C. and D. H. Bloom, for the applicants Ray and Baker.

T. F. Bathurst, for the applicant Beames.

P. W. Young Q.C. and D. Levine, for the respondent.

Cur. adv. vult.

Solicitors for the applicants Harper, Packer, Jones and McWilliam: Allen, Allen & Hemsley.

Solicitors for the applicants Ray and Baker: Barraket, Kemp & Strang.

Solicitors for the applicant Beames: Read & Read.

Solicitor for the respondent: T. A. Sherman, Acting Commonwealth Crown Solicitor.

T.J.G.

ORDER

THE COURT ORDERS that the application be dismissed with costs.

JUDGE1

There are before the Court seven applications for orders of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). By consent of all parties the applications have been heard together. In each case the applicant is a person who has been summoned to appear before the respondent, Mr F.X. Costigan Q.C., who has been appointed a royal commissioner to inquire into the activities of the Federated Ship Painters and Dockers Union ("the union"). Some of the applicants have also been summoned to produce documents to the Commission.

The applicants seek orders of review in respect of the decisions made by the respondent to summon them to give evidence and to permit them to be questioned at a hearing before the Commission. The applicants also seek directions from the court that the respondent supply them with statements in respect of such decisions pursuant to sub-section 13(1) of the Judicial Review Act.

The matters came before the court on Wednesday last pursuant to leave to serve short notice of applications for interlocutory relief. The applicants seek interim orders restraining the respondent from requiring them to give evidence and produce documents in obedience to the summonses served upon them. It was agreed by all parties that, as well as determining the claims for interlocutory relief, I should also decide the applications for orders that the respondent be directed to furnish each applicant with an appropriate statement in writing pursuant to sub-section 13(1) of the Judicial Review Act. The nature of these latter applications is such that they can only be decided on a final basis since if the respondent is ordered to furnish statements to the applicants, and the statements are furnished in compliance with the court's order, the statements will be beyond recall.

It is convenient to deal first with the applications for orders that the respondent be directed to furnish the applicants with statements pursuant to sub-section 13(1). These applications raise for consideration the short but important question whether the respondent's decisions to summon the applicants to give evidence and to produce documents are decisions of the kind to which s.13 of the Judicial Review Act applies. By virtue of sub-section 13(11) the answer to this question depends, in turn, upon the answer to the question whether the respondent's decisions are included in any of the classes of decision set out in Schedule 2 to the Act.

Section 13 provides, in part, as follows:

"13. (1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.

. . .

(11) In this section, 'decision to which this section applies' means a decision that is a decision to which this Act applies, but does not include -

(a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;

(b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision: or

(c) a decision included in any of the classes of decision set out in Schedule 2."

Paragraph (e) of Schedule 2 is in the following terms:

"(e) decisions relating to the administration of criminal justice, and, in particular -

(i) decisions in connection with the investigation or prosecution of persons for any offences against a law of the Commonwealth or of a Territory:

(ii) decisions in connection with the appointment of investigators or inspector for the purposes of such investigations;

(iii) decisions in connection with the issue of search warrants under a law of the Commonwealth or of a Territory;

(iv) decisions in connection with the issue of Writs of Assistance, or Customs Warrants, under the Customs Act 1901; and

(v) decisions under a law of the Commonwealth or of a Territory requiring the production of documents, the giving of information or the summoning of persons as witnesses;"

On behalf of the respondent it was contended that his decisions were decisions of the kind referred to in paragraphs (e) (i) and (v) of the Schedule. The rival contention advanced on behalf of the applicants was that none of the decisions were within paragraph (e) since they were not decisions relating to the administration of criminal justice.

Before addressing the question it is first necessary to refer to the terms of the letters patent issued to the respondent. The original letters patent issued on 10 September 1980 appointed the respondent to inquire -

"whether the Federated Ship Painters and Dockers Union (hereinafter referred to as 'the Union') or any officer or member of the Union has engaged in illegal activities in relation to shipping engaged in trade and commerce between Australia and places outside Australia or among the States or ships operated by, or on behalf of, the Commonwealth or in relation to any naval establishment within the meaning of the Naval Defence Act 1910:"

The respondent was directed to give particular attention to the following questions:

"(a) whether any executive, administrative or other body forming part of, or established by, the Union has been used, or is being used, for the purposes of illegal activities, other than activities involving only breaches of laws, whether of the Commonwealth or a State, relating to trade unions;

(b) whether the Union or any of its officials or members has been or is engaged in demanding or receiving payments (other than payments of an ordinary commercial nature or payments in accordance with an industrial award or agreement in respect of work actually performed or to be performed) from employers or other persons in relation to ships engaged in trade and commerce between Australia and places outside Australia or among the States, in relation to ships operated by, or on behalf of, the Commonwealth or in relation to any naval establishment within the meaning of the Naval Defence Act 1910 and, if any such payments have been made -

(i) the persons by whom and to whom any such payments have been made;

(ii) the reasons for, or the purpose of, any such payments;

(iii) the subsequent or proposed use or disposal of any such payments;

(c) whether the Union or any officers or members of the Union have engaged in illegal activities in relation to the election or appointment of officers of the Union or the conduct or purported conduct of the Union's affairs; (d) if the Union or any officers or members of the Union have engaged in activities of any of the kinds whether the employment conditions applying to the work of ship painters and dockers have contributed to the development of those activities"

The original letters patent were varied and supplemented by further letters patent issued on 1 April 1982 which directed the respondent to inquire:

(a) whether the Union or any officers or members of the Union have engaged in illegal activities, other than activities in relation to shipping or any naval establishment;

(b) whether any person, group of persons or body established by, or associated with, the Union or its members is engaged in illegal activities; and

(c) whether any person is using the Union or its members for the purposes of illegal activities:"

The letters patent further provided as follows:

"AND WE DECLARE that, for the purposes of these Our Letters Patent, 'illegal activities' means -

(d) activities involving any breach of a law of the Commonwealth or a Territory;

(e) activities in, or in relation to, trade and commerce between Australia and places outside Australia, among the States or between a State and a Territory, being activities which are contrary to a law of the Commonwealth, a State or a Territory; and

(f) activities that have the effect of, or are directed to, impeding, preventing or defeating, or that tend to impede, prevent or defeat, the operation, implementation or enforcement of a law of the Commonwealth or a Territory:

AND WE FURTHER DECLARE that, for the purposes of the Letters Patent issued on 10 September 1980, without limiting the meaning of the expression 'illegal activity', that expression includes any activity that is an illegal activity for the purposes of these Letters Patent: AND WE FURTHER DECLARE that, for the purposes of the Letters Patent issued on 10 September 1980 and of these Letters Patent -

(g) a reference to officers or members of the Union includes a reference to persons purporting to be officers or members of the Union; and

(h) a reference to illegal activities engaged in by officers or members of the Union is a reference to illegal activities engaged in by officers or members of the Union, whether by themselves or in association with any other person:

. . . . . . AND WE FURTHER DIRECT that a finding that the Union or a person has engaged in conduct amounting to a criminal offence be made only on evidence, admissible in a Court of Law, sufficient to place the Union or that person, as the case may be, on trial for that offence."

It will be observed that the questions for the respondent to determine having regard to his terms of reference include:

1. Have members of the union been engaged in activities involving any breach of a law of the Commonwealth?

2. Are persons associated with the union or its members engaged in activities involving any breach of a law of the Commonwealth?

3. Are persons using the union or its members for activities involving any breach of a law of the Commonwealth?

The terms of reference are extremely wide. They require the respondent to inquire into the illegal activities of members of the union or persons associated with them or with the union itself. Significantly, there is nothing in the terms of reference limiting, the inquiry to illegal activities having some association with the union. The terms of reference permit and require the respondent to inquire into the illegal activities of members of the union and their associates, even though those activities are remote from the affairs of the union itself.

It is to be further observed that the letters patent contemplate that the respondent will investigate and report on whether there is evidence, admissible in a court of law, sufficient to place persons on trial for conduct amounting to a criminal offence.

The question with which I am presently concerned arose for consideration by Toohey J. in one of the interlocutory applications made in Lloyd v Costigan. In a decision (which appears not to have been reported) given on 6 July 1983 his Honour held that having regard to the respondent's terms of reference his decision to call Mr Lloyd before him and examine him on oath was a decision which fell within para. (e) of Schedule 2. There was no appeal from this decision but on appeal from another interlocutory decision given in the same matter, the Full Court (Bowen C.J., Morling and Fitzgerald JJ. - 9 May 1983) made it plain that where proceedings for an order of review are already before the court it has power to order a decision-maker to furnish a statement pursuant to the provisions of s.13(1) of the Judicial Review Act where there is a duty to furnish such a statement. However, as Toohey J. pointed out in his decision of 6 July 1983, the Full Court was not called upon to consider the question whether a decision by the respondent to require a witness to give evidence was a decision of the kind referred to in para. (e) of Schedule 2. So far as my researches have revealed Toohey J's decision is the only authority directly in point and it is against the applicants' contention.

In my opinion I should follow Toohey J's decision unless I am persuaded it is wrong. I am not so persuaded. Indeed I respectfully agree with it and I shall state briefly the reasons for my concurrence. It may be conceded that not every decision taken by a Royal Commissioner to summon a witness and require him to give evidence is a decision relating to the administration of criminal justice. For example, a decision to summon a person to give evidence to a Royal Commission inquiring into the mining of uranium plainly would not relate to the administration of justice whether criminal or otherwise. It may also be conceded that the ordinary meaning of the words "administration of justice" if not controlled by any special context in which they appear, would not extend to cover the activities of a Royal Commissioner charged with the responsibility of inquiring into possible breaches of the law. The functions of a Royal Commissioner are to investigate and report, as Stephen J. pointed out in The Queen v Collins 50 A.L.J.R. 471 at p.475. See also Lockwood v The Commonwealth (1954) 90 C.L.R. 177 at p.181 per Fullagar J. A Royal Commissioner has no power to find a person guilty of an offence, or to convict a person of an offence. This being so, as Dean J. observed in R. v Arrowsmith (1950) V.L.R. 78 at p.85, a Royal Commissioner is not concerned with the administration of justice in the ordinary sense.

However, the task in hand is to ascertain the meaning of the words "relating to the administration of criminal justice" in the particular context in which they appear, i.e. in para. (e) of Schedule 2. In my opinion, the paragraph provides its own dictionary. In para. (e)(i) a decision in connection with the investigation of a person for an offence against a law of the Commonwealth is described as one instance of a decision relating to the administration of criminal justice. The words "in particular" indicate that decisions of the kind referred to in para. (e)(i) are encompassed by the opening words of the paragraph. Cf. Ricegrowers Co-operative Mills Ltd. v Bannerman (1981) 38 A.L.R. 535 at 541. So are decisions requiring the production of documents, the giving of information, or the summoning of witnesses - vide para. (e)(v). Thus in the context in which they appear the words "relating to the administration of criminal justice" have a meaning much wider than they would otherwise have. Having regard to the respondent's terms of reference under the letters patent, his decisions to summon the applicants and to require them to give evidence are decisions "in connection with the investigation . . . of persons for any offences against a law of the Commonwealth . . . " and are thus decisions relating to the administration of justice for the purposes of para. (e). They are therefore not decisions to which s.13 of the Judicial Review Act applies and the applicants are not entitled to require the respondent to furnish them with written statements pursuant to sub-section (13)(1).

The applicants submitted that the decisions referred to in para. (e) were decisions taken in the course of or in connection with criminal proceedings, i.e. proceedings which can result in punishment for an alleged offence. Amand v Home Secretary (1943) A.C. 146 at p.156 was relied upon. It was put that the reference in para. (e)(v) to a decision requiring the summoning of persons as witnesses was a reference to a summons issued in proceedings before a judge in curial proceedings or possibly before a magistrate in committal proceedings. But this submission does not take sufficient account of the reference in para. (e)(i) to the investigation of persons for offences or the reference in para. (e)(v) to the giving of information. Investigation and the obtaining of information precede criminal proceedings and do not form part of such proceedings. Moreover, it is difficult to regard decisions of the kind referred to in para. (e)(ii) and (iv) as decisions taken in proceedings which can result in punishment of an offender. Rather they are decisions taken in connection with the process of ascertaining whether facts exist justifying the initiation of criminal proceedings. Such decisions are treated by para. (e) as being encompassed within the ambit of decisions relating to the administration of criminal justice. The respondent's decisions are of a similar kind and they are similarly encompassed.

The inconvenience which would flow from the construction of para. (e) contended for by the applicants is manifest. The efficient conduct of a Royal Commission could be gravely jeopardised if a witness served with a summons could require a s.13 statement before answering the summons. If a decision is one to which s.13 applies the decision-maker is obliged to furnish it. It is true that in the exercise of its discretion the court might decline to order the decision-maker to furnish a statement: cf. Lamb v Moss (12.10.1983 Bowen C.J., Sheppard and Fitzgerald JJ.) but the prospect of contested applications for orders that s.13 statements be furnished to any witness summoned to attend a Royal Commission is not one to be viewed with equanimity.

For the reasons I have given I am of the opinion that there was no obligation on the respondent to furnish statements under sub-section 13(1) to the applicants. Accordingly I refuse to direct the respondent to furnish such statements.

I turn now to consider the application for interlocutory relief. In considering this application I propose to adopt the approach taken by Gibbs C.J. in Australian Coarse Grain Pool Pty. Ltd. v Barley Marketing Board of Queensland (1982) 46 A.L.R. 398, that is to say, to inquire first whether there is a serious question to be tried, and then, if necessary, to determine the matter on the balance of convenience. I think this approach is, if anything, more favourable to the applicants than an approach based upon the principles referred to in Beecham Group Ltd. v Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. 618, as discussed by the Full Court of this court in Transport Workers Union of Australia v Leon Laidley Pty. Ltd (1980) 28 A.L.R. 589. However, for present purposes, nothing turns on whether the approach in Australian Coarse Grain Pool or Beecham is adopted since I would arrive at the same conclusion on either approach.

The applications, as framed, sought relief in the form of interlocutory injunctions. However, it seems to me that if it is appropriate to grant interlocutory relief, the appropriate form of relief would be an order under para. (a) of sub-section 15(1) of the Judicial Review Act suspending the operation of the decisions pending the final hearing. However, nothing turns on this since the same principles as to the grant of interlocutory relief would apply.

The applications for orders of review in respect of the respondent's decisions to summon the applicants were based on two submissions. First, it was submitted that a breach of the rules of natural justice occurred in connection with the making of the decisions. I shall refer to this submission as the "natural justice" submission. Secondly, it was submitted that the respondent's terms of reference did not permit him to investigate the matters upon which he proposed to question the applicants and that therefore the decisions were contrary to law. I shall refer to this submission as the "terms of reference" submission.

Two quite separate matters were urged in support of the natural justice submission. In the first place, reliance was placed upon certain events which occurred at Hong Kong airport on 2 November 1983 and upon what occurred on 4 November 1983 at the proceedings of the Royal Commission. Prior to 4 November the respondent indicated to the applicants, or some of them, that he would deliver a ruling on that date on their request that he furnish them with s.13 statements. He also advised them that it would not be necessary for them to attend the hearing for the purpose of receiving his ruling. Accordingly they did not attend the Commission on 4 November. Before giving his ruling the Commissioner made a statement in the following terms:

"Before I read the ruling I should indicate a further matter. Yesterday I signed a subpoena directed to a Mr Bruce McWilliam, who is a solicitor in the same firm as Mr Harper in Sydney who was one of the witnesses that I had wished to examine last Wednesday. I have signed the subpoena and I believe it will be served today. So that Mr McWilliam will also have the opportunity at the same time as the other witnesses to take such proceedings as he thinks appropriate to protect his position.

The particular reason why I have subpoened Mr McWilliam arises from some matters which caused me a good deal of trouble last week. It will be recalled that in the Brisbane sittings I sought from Mr Brian Ray his consent for me to obtain files from him in Singapore and Hong Kong and access to various banking accounts, and in due course he signed an authority which confirmed that consent from the witness box. Pursuant to that I went to Singapore last week for a few days with other members of the staff of the commission, and although the journey was as might be expected not unfruitful so far as the commission was concerned, nonetheless, both in Singapore and Hong Kong the commission was met with a blank wall so far as all the offices and banks to whom the authority was directed, and the blank wall was orchestrated from Sydney and quite deliberately intended to keep from the commission's eyes the documents which had previously been indicated and authorized that I could have.

In addition to that, Mr McWilliam was flown from Sydney to Singapore last Sunday and then to Hong Kong on Monday, clearly playing a part in the instructions issuing from Sydney to hide from the commission's eyes the documents which had previously been authorized.

I accordingly have issued the subpoena directed to Mr McWilliam, and unless restrained by the Federal Court, and he has been given time in which to do that, I propose to enquire from him and from Mr Harper the reasons why it was felt so urgent that this commission should not see the documents which were in Singapore and Hong Kong. I now turn to the ruling."

Prior to the respondent visiting Singapore and Hong Kong Mr Ray had given a written authority to accountants and solicitors in those cities to forward to the respondent documents in their possession concerning a particular transaction involving Mr Ray. As appears from the statement made by the respondent on 4 November the documents were not available for his inspection when he sought to inspect them. One of the persons who accompanied the respondent to Hong Kong was Mr McDonnell, a solicitor attached to the Royal Commission. Mr McDonnell met the applicant Mr McWilliam at Hong Kong airport on 2 November before they both boarded a flight to return to Sydney. Mr McWilliam is a solicitor in the employ of Messrs Allen Allen & Hemsley, the solicitors for some of the applicants. Mr McDonnell expressed concern that Mr McWilliam was removing documents from Hong Kong. According to Mr McWilliam, Mr McDonnell said:

"We know that you have been in Hong Kong and Singapore to remove documents or stop us getting access to them."

Mr McWilliam denied that this was the case. During the course of the conversation Mr McDonnell showed Mr McWilliam a carbon impression of a telex from Messrs Allen Allen & Hemsley to Johnson Stokes & Masters, a firm of solicitors in Hong Kong who had been authorised by Mr Ray to forward to the respondent documents in their possession relating to the abovementioned transaction. The applicants originally claimed that the telex had been improperly obtained but this allegation was subsequently withdrawn when it was ascertained that it had come into Mr McDonnell's possession by legitimate means and in entirely proper circumstances.

There is some dispute between Messrs McWilliam and McDonnell as to whether Mr McWilliams's version of the conversation at the airport is either complete or wholly accurate. In these interlocutory proceedings it is undesirable that I should attempt to determine exactly what was said in the conversation at the airport. Indeed, it is unnecessary for me to do so. Mr McWilliams's version of what occurred may be accepted for the purpose of determining the present application. Accepting his account of what happened I do not think it establishes the glimmer of a case that the respondent acted in breach of the rules of natural justice. Quite apart from anything else there is no evidence that the respondent was present at, took part in, or was aware of the conversation at the airport on 2 November. It is true that on 4 November he exhibited his displeasure that the purpose of his visits to Singapore and Hong Kong had been substantially frustrated. But the circumstances were such that it was not unreasonable for him to suppose that the non-availability of the relevant documents in Singapore and Hong Kong was not unconnected with Mr McWilliam's hurried visit to those cities. It would have been wiser of the respondent to have deferred making any comment upon the possibility of Mr McWilliam's visit to Singapore and Hong Kong being connected with the non-availability of the documents which Mr Ray had authorised him to obtain until Mr McWilliam gave his account of what, if anything, happened on his visits to those cities. But assuming that the respondent is required to observe the rules of natural justice in deciding to summon witnesses it cannot be a denial of natural justice to Mr McWilliam or anyone else to require them to state on oath what did happen. The respondent decided to summon most of the applicants several days before he visited Singapore and Hong Kong and before he delivered his ruling on 4 November. It is plain that the applicants were summoned because the respondent desired that they be questioned as to their knowledge of certain matters to which I shall presently refer. Whether or not the respondent should have advised the applicants of his intention to make the statement that he made prior to giving his ruling, his failure to do so affords no basis for the argument that the rules of natural justice, if applicable and whatever their context, were infringed. I am of the opinion that the applicants have not established that there is a serious issue to be tried on this branch of their case.

In further support of the natural justice argument it was submitted that a witness summoned to attend a Royal Commission is entitled to be told what is the relevance of the questions it is proposed to put to him. Otherwise, so it was argued, a witness cannot know whether he can properly decline to answer any question asked of him. In this respect reference was made to sub-section 6(1) of the Royal Commissions Act 1902 which provides that if any person appearing as a witness before a commission refuses to be sworn or to make an affidavit or to answer any question relevant to the inquiry put to him he shall be guilty of an offence. It was submitted that failure to advise a witness, in advance of his giving evidence, of the relevance of the questions which it is proposed to put to him is a denial of natural justice.

There is no doubt that the investigatory nature of the respondent's inquiries under his broad terms of reference makes it difficult to determine whether a question is relevant to the inquiry being undertaken by him. However, assuming compliance with the rules of natural justice is obligatory, I can see no basis for holding that they require that before a witness is served with a summons requiring him to give evidence, or before he is required to enter the witness box, he is entitled to be told the questions it is proposed to ask him and their relevance to the terms of the inquiry. No authority was quoted for such a novel proposition. The witness must assume that he will be questioned upon matters relevant to the inquiry. If, having entered the witness box, he is asked questions which he claims to be irrelevant to the inquiry, his proper course is to object to answering such questions. As I have already pointed out, a witness only commits an offence against sub-section 6(1) of the Royal Commissions Act if he refuses to answer a question relevant to the inquiry.

In any event, I think that the applicants have been given a reasonable indication of the relevance of the question which they are likely to be asked by the respondent or counsel assisting him. Before these proceedings were commenced a letter (exhibit C) was written by the solicitor attached to the Royal Commission to the solicitors for some of the applicants. The letter which was written in response to a request that Mr Packer be advised of the relevance of the matters into which the respondent was inquiring, reads in part as follows:

"I understand that Senior Counsel assisting the Commission, Mr Meagher Q.C., made it plain to Mr. Shand Q.C. that no allegations were being made against the person, but rather an inquiry was being undertaken to ascertain whether there was any truth in information received by the Commission which indicated that substantial sums of money had been disbursed from the Comalco House branch of the then Bank of NSW for the financing of the distribution of drugs in Queensland. It was explained to him that the Commission was in possession of a great deal of material concerning the distribution of drugs in that State by persons said to be members of the Painters and Dockers Union. The Commission was investigating the financing of such transactions.

The amounts of money involved in such transactions are substantial. They are said to have been taken from the branch of the Bank at some unspecified time falling in the years 1980 or 1981. The Commission has examined the activities of the branch in some detail. It has found a number of cash transactions, the explanation of which is, to say the least, neither illuminating nor consistent. Amongst those transactions fall the cash payments said to have been collected by Mr Ray and Mr Beames, in some cases, and at another branch by some person identifiable at present only by the name of Richards who, it is said eminates (sic) from Sydney.

It may well be that the cash paid to your client has nothing to do with the matter under investigation by the Commission. At present there are two conflicting accounts about the payments said to have been handed to your client. Your assertion that your client has had nothing to do with the painters and dockers is noted. No doubt he will give evidence to that effect in the witness box, and will proffer an explanation for the cash receipt which will (sic)-be both credible and will remove the matter from the ambit of the Commission's investigations. Until that occurs, however, the Commission intends pursuing the matter. It is noted that to this point in time the Commission has not been acquainted with your client's account of the matter."

On its face this letter states that the Commissioner is inquiring into matters which would fall within his terms of reference - vide particularly paragraph (a) of the letters patent of 1 April 1982. Distribution of drugs in Queensland by persons said to be members of the union is plainly a matter calling for inquiry under that paragraph. The financing of the transactions involved in the distribution of such drugs similarly would be a proper matter for inquiry. That inquiry has led the respondent to examine a number of alleged cash transactions, one of which is referred to in exhibit C. Messrs Ray and Beames have already given evidence about this alleged transaction. There appear to have been some unusual features about it, not the least of which is that the sum of $225,000 is said to have been received in cash by Mr Packer from Mr Ray. Mr Ray has said that the money was received by him from Mr Beames as an interest free unsecured loan, and that he in turn advanced the money to Mr Packer on the same terms. There are other unusual circumstances about the alleged transaction but it is unnecessary to refer to them. As I read exhibit C the respondent is seeking to investigate whether the cash involved in the above alleged transaction had anything to do with the distribution of drugs in Queensland by members of the union. Questions directed to ascertaining whether that was the fact would clearly be relevant to the terms of inquiry. The terms of exhibit C are sufficient to convey the relevance of the matters which the respondent is investigating and therefore the relevance of questions which may be asked of applicants when they are called to give evidence.

I am therefore of opinion that, assuming in the applicants' favour that the respondent was bound by the rules of natural justice in deciding whether to summon the applicants as witnesses and assuming further that the rules of natural justice would not have been satisfied unless the applicants were given sufficient information to enable them to determine the relevance of the questions which might be asked of them, it has not been shown that there is a serious question to be tried on this aspect of the matter.

I should make it clear that I am not to be taken as deciding that the assumptions to which I have referred are necessarily sound in law. The question of their validity was not fully argued and it is inappropriate and unnecessary to decide the question on the hearing of this interlocutory application. However, bearing in mind that the function of a Royal Commissioner is merely to investigate and report and that any recommendation he may make does not affect the rights of any person, it must be a serious question whether the rules of natural justice apply to proceedings before him. When the question does fall to be determined cases such as Brettingham-Moore v St Leonards Municipality (1969) 121 C.L.R. 509; The Queen v Collins ex parte: A.C.T.U.-Solo Enterprises Pty. Ltd. (1976) 50 A.L.J.R. 471 and Re Royal Commission on Thomas Case (1980) 1 N.Z.L.R. 602 will require consideration. The recent decision of the Privy Council in Mahon v Air New Zealand Ltd. (20 October 1983) may well turn on the form of the legislation pursuant to which the findings of the Royal Commissioners were examinable.

For the reasons I have already given, I am of the opinion that there is no serious question to be tried on the issue whether the respondent has denied natural justice to the applicants in requiring them to give evidence before him. The claim for interlocutory relief upon that basis therefore fails.

I turn now to consider what I have described as the terms of reference submission, i.e. that the respondent's terms of reference do not permit him to investigate the matters upon which he proposes to question the applicants. The respondent's decision to question them upon such matters was said to be reviewable on one or more of the grounds referred to in paragraphs (c), (d), (e), (f), (h) and (j) of sub-section 5(1) of the Judicial Review Act.

I am of the opinion that this submission is answered by the terms of the letter exhibit C. It is plain that investigation of the matters referred to in that letter fall within the respondent's terms of reference. I was invited to find that the letter did not truly refer to the matters which the respondent proposed to investigate. It was said that the history of other investigations which he had undertaken showed that the respondent proposed to embark upon an examination of matters having nothing to do with his terms of reference. In particular, it was submitted that the respondent's real purpose in summoning the applicants was to examine their taxation or other business affairs which did not have the slightest connection with any matter falling within his terms of reference. As I understand the submission put on behalf of some of the applicants it was submitted that, in effect, the letter exhibit C was not written bona fide.

As the evidence presently stands I see no basis in the evidence for this submission. Having regard to the interlocutory nature of these proceedings it is undesirable that I should pass any further comment on this submission, save to say that the evidence presently before the court does not establish that there is a serious question to be tried as to the respondent's bona fides. The application for interlocutory relief on this basis also fails.

In dismissing the application I am not unmindful of the serious difficulty which may confront the applicants when they are called as witnesses before the Commission. They apprehend that they may be asked questions going beyond the matters referred to in the letter exhibit C. They fear that some of the matters upon which they may be questioned will be irrelevant to any of the respondent's terms of reference. They also fear that the respondent may make reference in his report to evidence obtained from them notwithstanding its irrelevance to his terms of reference. They point to the respondent's fourth interim report which makes damaging reference to a person employed in the office of the Deputy Crown Solicitor in Perth and whose affairs were investigated by the Commission. They submit that whilst that person may well have been properly called before the respondent to give evidence on matters relevant to his terms of reference, the respondent included in his report prejudicial material having no relevance to his terms of reference. They also point to the evidence already given by the applicants Ray and Beames and to the fact that it has not so far been established that they or any other of the applicants has any association with the union or its members.

I readily understand that a person whose business and other affairs have no relevance to the terms of inquiry of a Royal Commission should be properly anxious that he be not questioned upon those affairs, and, a fortiori, that his affairs be not reported upon by the Commissioner. But the nature of an inquiry before a Royal Commission makes it extremely difficult to find, in advance of a witness being examined, that his evidence will be irrelevant to the Commission's terms of reference. In Ross v Costigan (1982) 41 A.L.R. 319 at pp.334-5, Ellicott J. said: -

"In determining what is relevant to a Royal Commission inquiry, regard must be had to its investigatory character. Where broad terms of reference are given to it, as in this case, the Commission is not determining issues between parties but conducting a through investigation into the subject matter. It may have to follow leads. It is not bound by rules of evidence. There is no set order in which evidence must be adduced before it. The links in a chain of evidence will usually be dealt with separately. Expecting to prove all the links in a suspected chain of events, the Commission or counsel assisting, may nevertheless fail to do so. But if the Commission bona fide seeks to establish a relevant connection between certain facts and the subject matter of the inquiry, it should not be regarded as outside its terms of reference in doing so. This flows from the very nature of the inquiry being undertaken.

. . . .This does not mean, of course, that a Commission can go off on a frolic of its own. However, I think a court if it has power to do so, should be very slow to restrain a Commission from pursuing a particular line of questioning and should not do so unless it is satisfied, in effect, that the Commission is going off on a frolic of its own. If there is a real as distinct from a fanciful possibility that a line of questioning may provide information directly or even indirectly relevant to the matters which the Commission is required to investigate under its letters patent, such a line of questioning should, in my opinion, be treated a relevant to the inquiry."

This decision was affirmed on appeal (Ross v Costigan (No. 2) (1982) 41 A.L.R. 337). The Full Court there said (at pp.350-351).

"What questions the Commissioner should ask, or allow to be asked, is a matter for his own good sense and judgment. The terms have been widened, the scope of the inquiry has been expanded, and the limits of what is relevant have been correspondingly extended. Counsel sought, . . . to avoid an inquiry (assumed to be threatened) in relation to their clients by saying that there was no evidence linking them with members of the union or any relevant illegality, and indeed, that the evidence was to the contrary. This provides no reason why the Commissioner should not inquire further, and require further evidence from them, if he considers these courses desirable in the performance of his function. We should add that 'relevance' may not strictly be the appropriate term; what the Commissioner can look to is what he bona fide believes will assist him in his inquiry."

In Lloyd v Costigan (12 October 1983 - Bowen C.J., Lockhart and Morling JJ.) the Full Court said (at p.6):-

"Counsel for the appellant contended that there was a complete absence of probative material upon which the Commissioner could come to the view that there was any association between any member of the union and Hamidan Pty. Ltd. as at the time the appellant had anything to do with the company. The absence of such probative material, so it was contended, vitiated the decision of the respondent to issue the subpoenas and to proceed to examine the appellant. This submission must be rejected. It is a misconception of the function of a Royal Commissioner that before he can invoke his inquisitorial powers there must be before him material probative of the facts the very existence of which his commission has directed him to investigate."

See also Church of Scientology v Woodward (1982) 43 A.L.R. 587 at pp. 615-616 per Brennan J. These dicta illustrate the difficulty in the way of a witness seeking the kind of relief sought in these proceedings, whether that relief be interlocutory or final.

When the respondent gave his ruling on the request that he furnish a statement of his reasons under sub-section 13(1) of the Judicial Review Act, he said:

"If law enforcement agencies generally, and Royal Commissions such as mine in particular, are compelled to reveal their knowledge of sophisticated criminal activities point by point as the knowledge is gained, then the investigations into those activities will swiftly founder. The criminals engaged in them will be warned as to the progress of the investigations and will thus be equipped to counter its enquiries by such means, lawful and unlawful, as they choose to adopt. It would be quite contrary to the public interest to compel such disclosure as the investigations proceed.

He also said:

"Of course, it is difficult for witnesses who are brought before the Commission to judge for themselves the relevance of the matter to the Commission's enquiry. Witnesses, and indeed Courts supervising the Commission, cannot hope or expect to be placed in the same position as a Commissioner involved in an extremely complex and wide-reaching enquiry. In the absence of any allegation of mala fides, it may be unlikely that any such application would succeed."

I readily understand the reasons for the respondent's reluctance to make public the nature of the allegations he is investigating and the lines of inquiry he is pursuing. Those reasons are cogent but they must be balanced against the desirabilty of a witness being furnished with sufficient information to enable him to make an informed decision whether a question asked of him is relevant to a matter falling within the respondent's terms of reference. It is not the exclusive prerogative of the respondent to determine what is relevant to his inquiry. If a witness refuses to answer a question which the respondent rules is relevant, his ruling would be subject to challenge if the witness were prosecuted for the offence of refusing to answer a question relevant to the inquiry. The respondent is not entitled to go on a frolic of his own unrelated to matters falling within his terms of reference. As Toohey J. said in Lloyd v Costigan (1983) 48 A.L.R. 241 at p.250:

". . . it is the activities of the union with which the respondent is primarily concerned and once it appears that some illegal activity of an associate of the union has no implications for the union itself or for any of its members and throws no light upon illegal activities of the union or its members, there is little justification for proceeding further with that line of inquiry."

I am bound to say that a reading of the transcript of the fairly extensive evidence already given by the applicants Ray and Beames does not make readily apparent to me the relevance to any of the respondent's terms of reference of many questions which have been put to them. But it is the respondent's intention to question the applicants on matters relevant to the allegations contained in exhibit C. Those matters are plainly relevant to the terms of inquiry. No doubt the respondent will conduct the inquiry with due regard to the limitations placed upon him by those terms.

I should add that if I had come to the view that there was a real question to be tried on the issue whether the respondent proposes to question the applicants on matters having no relevance to the terms of reference I would have decided the question of the balance of convenience in favour of the applicants. Any inconvenience caused to the respondent by delay in bringing to finality the proceedings before him would be outweighed by the inconvenience and possible prejudice to the applicants if they were to be questioned on matters irrelevant to the respondent's terms of reference.

For the reasons I have given the application is dismissed with costs.