Kaycliff Pty Ltd v Australian Broadcasting Tribunal & Communications Law Centre

Re: KAYCLIFF PTY LIMITED; PETER ERIC BURDEN; ROBERT BERNARD CAMPBELL;
PETER GREGORY DAY and CHRISTOPHER CHARLES SKASE
And: AUSTRALIAN BROADCASTING TRIBUNAL and COMMUNICATIONS LAW CENTRE
No. G300 of 1989
FED No. 345
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - Broadcasting Tribunal - inquiry - opening statement by Chairman - statement critical of applicants - statements by husband of Chairman - apprehension of bias - whether apprehension reasonable - waiver - retirement of Chairman from Division of Tribunal holding inquiry - whether authorized by Broadcasting Act - application for judicial review - application refused

Broadcasting Act 1942, s.15C

Administrative Decisions (Judicial Review) Act 1977

HEARING

SYDNEY

#DATE 13:7:1989

Counsel for applicant: W.H. Nicholas Q.C. with J.T. Gleeson
instructed by: Freehill Hollingdale & Page

Counsel for 1st respondent: D.M. Yates
instructed by: Australian Government Solicitor

Counsel for 2nd respondent: L.T. Grey
instructed by: J. Hall

ORDER

The decision of the Chairman of the Australian Broadcasting Tribunal made in purported pursuance of s.15C of the Broadcasting Act 1942 to remove herself from the Division of the Tribunal which is conducting the inquiry into the acquisition of TVW Enterprises Limited by Kaycliff Pty Limited is set aside.

Otherwise, the application is dismissed.

Costs reserved.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is another of the many cases in which judicial review has been sought of decisions made by the Australian Broadcasting Tribunal in the course of performing its functions under the Broadcasting Act 1942 ("the Broadcasting Act"). The applicants claim that they have a reasonable apprehension that the Chairman of the Tribunal, who has been presiding at an inquiry into certain share transactions in which the applicants are involved, is biased against them. They also claim that their apprehension would be shared by members of the public. The inquiry concerns the acquisition by the first applicant ("Kaycliff") of commercial television services TVW-7 Perth and SAS-7 Adelaide.

In the events that have happened, the Chairman has removed herself from the Division of the Tribunal, consisting of herself and two other members, which has been conducting the inquiry. However, for reasons to which I shall later refer, the applicants are not satisfied by the Chairman's withdrawal from the proceedings. They claim that the inquiry, which is almost at an end, should recommence before another Division of the Tribunal and that no member of the original Division should sit on the new Division.
One of the issues raised in the case is the interesting question of whether a reasonable apprehension of bias can arise by reason of the fact that the spouse of a member of an administrative tribunal has commented upon matters relevant to an inquiry being conducted by that tribunal. So far as the researches of counsel reveal, this question has not hitherto arisen in proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 or, indeed, at common law.
Events prior to public hearing
In May and June 1988 applications were made to the first respondent for its approval pursuant to s.92F of the Broadcasting Act of certain share transactions ("the Kaycliff transactions") with which the applicants are associated. In the application lodged on behalf of Kaycliff it gave the following response to a request for information as to "contraventions of the Act or conditions of licence resulting from the transaction":

"If Mr Christopher Charles Skase acquired a prescribed interest in commercial television licences TVW-7 and SAS-7 by virtue of the transaction (which is not admitted), then, by reason of those interests and other interests held by Mr Skase, he would, from the date of acquiring the first mentioned interests, have been a person having a prescribed interest in 2 or more commercial television licences the aggregate of whose service area populations exceeds 60% of the declared population of Australia in contravention of section 92(1)(a) of the Broadcasting Act 1942."

Section 92(1)(a) provides that a person contravenes the section if he has a prescribed interest in two or more commercial television licences the aggregate of whose service area population exceeds 60% of the declared population of Australia.
The information contained in the application made by the fifth applicant, Mr Christopher Skase, included the following:

"8. COMMERCIAL TELEVISION/RADIO LICENCES IN WHICH A PRESCRIBED INTEREST IS ACQUIRED OR INCREASED AS A RESULT OF THE TRANSACTION: State the call sign of the licence or licences in which a prescribed interest would be acquired or increased as a result of the transaction:

TVW 7 - TVW Enterprises Limited SAS 7 - South Australian Telecasters Limited

This application is made without prejudice to the right of Mr Skase to argue that he did not, by virtue of the transaction, acquire a prescribed interest in the licences referred to above."

On 26 September 1988 the applicants' solicitors wrote to the Tribunal drawing attention to an article published in "The Financial Review" under the heading "ABT to Investigate Skase TV Deal". The letter stated that the applicants were concerned that "the use of Kaycliff Pty Limited to purchase the Perth and Adelaide television stations continues to be misrepresented as a device to enable Qintex and Mr Skase to avoid the television ownership limits". Mr Skase is chairman of Qintex Limited and he and his family interests have a controlling interest in it. The letter went on to state that the use of Kaycliff to effect the purchase of television stations SAS-7 and TVW-7 was "not intended to circumvent limits on media ownership imposed by the Broadcasting Act 1942". It was also stated in the letter that "Qintex and Mr Skase accepted from the beginning that the Perth and Adelaide audiences would count towards the total market reached by their combined television licence interest".
Thereafter the first respondent commenced an inquiry into the Kaycliff transactions pursuant to the relevant provisions of the Broadcasting Act and the Australian Broadcasting Tribunal (Inquiry) Regulations. On 7 December 1988 pursuant to the powers vested in her by s.15C of the Broadcasting Act, the Chairman of the Tribunal appointed herself, Julie James-Bailey and Sue Brooks to constitute a Division of the Tribunal for the purposes of the inquiry.
Public notice was given of the inquiry. The notice identified the applications which the Tribunal had received. It identified the issues which would be addressed during the inquiry as including, inter alia, (i) whether the Tribunal should refuse approval of the transactions having regard to whether the giving of approval would be contrary to a provision of the Broadcasting Act; (ii) whether it would be advisable in the public interest to refuse approval on the grounds that the applicants are not fit and proper persons to hold the licences; and (iii) whether the circumstances were such that, if the Tribunal gave approval it would have reasonable grounds for believing that a person would be contravening the multiple interest or cross-media limits prescribed in the Broadcasting Act in circumstances which would constitute an offence and a person would be contravening the multiple or cross-media directorship limits prescribed in the Act.
On 7 December 1988 the Tribunal sought extensive information from the applicants' solicitors on matters concerning, inter alia, the acquisition of shares in TVW Enterprises Limited, the former owner of TVW-7 and SAS-7. The bulk of this information was furnished to the Tribunal on 17 January 1989. On 27 February 1989 a meeting was held between representatives of the applicants' solicitors and the Chairman, Ms Brooks, and Tribunal staff. The solicitors advised that the Qintex group was intending to restructure the group's debt financing. They expressed concern that "in the light of the proposed refinancing the existing complex documentation already provided to the Tribunal would be redundant". The minutes of the meeting show that the members of the Tribunal "indicated that one of its concerns in respect of these inquiries is to determine who, within the meaning of the Broadcasting Act, is controlling Kaycliff ...".
On 15 March 1989 the Tribunal wrote to the applicants' solicitors advising them that it would hold a public hearing during the week commencing 10 April 1989. The letter stated that the Tribunal had ascertained that Mr Skase and Mr Geoffrey Putland had been appointed directors of Kaycliff on 3 March 1988 and had resigned their directorships on the same day. The Tribunal sought an explanation for these events and asked: "Can it be inferred from these events that Mr Skase has a measure of control over the appointment of directors of Kaycliff and thereby over the operation of the Kaycliff licensees?".
It is common ground in these proceedings that if Mr Skase had continued as a director of Kaycliff he would have been in breach of provisions in the Broadcasting Act imposing limitations on the extent of interests which persons may hold in commercial television licences.
On 4 April 1989 the applicants' solicitors wrote to the Tribunal advising that: "In connection with the hearing to commence on 10 April 1989, we are instructed to withdraw the reservation to question 8 of Mr Skase's application in relation to Kaycliff's acquisition of interests in TVW-7 and SAS-7 and all other similar reservations in other relevant applications". It was further stated in the letter that: "Insofar as the reservation ... may have led to any other implication, we are instructed ... that Mr Skase accepts that at all material times he has ... been in a position to exercise control of ...'TVW' and ...'SAS'."
Public hearing - Chairman's opening statement
The first public sitting of the inquiry was held on 10 April 1989. Before calling for appearances the Chairman of the Tribunal made an opening statement. Because the statement is the foundation of one of the applicants' major claims for relief it is necessary to refer to it in some detail. The Chairman referred to major changes to the ownership and control provisions of the Broadcasting Act made in November 1986. These changes permit common ownership of television stations provided that the viewing audiences reached by the stations do not exceed 60% of the total Australian viewing audience. After referring to the application for approval of the Kaycliff transactions the Chairman said:

"Prior to the receipt of the application from Kaycliff the tribunal was already concerned that Mr Skase and the Qintex Group might have acquired the prescribed interest in TVW and SAS because if this was so then combined with their existing television interests in Sydney, Melbourne, Brisbane, Mackay and Maryborough they would have a population reach of - we calculated - 66.95 per cent.

The tribunal therefore closely examined the Kaycliff application. This application reveals that Kaycliff was a company with an issued capital of $100. 95 per cent of its shares were owned by directors of Qintex Limited. Mr Skase himself owned only 5 per cent. This corporate structure did not create a prima facie contravention of s.92(1)(a), but it did raise questions as to how could a $100 shelf company obtain a loan of $11,926,947 from QMH Finance Pty Limited to cover its deposit on TVW and SAS. It asked the question as to why had no documentation been provided to explain the funding arrangements re the terms of the sale agreement and what was the exact role of Qintex directors and senior executives who were respectively the shareholders and directors of Kaycliff.

Lastly, was Kaycliff simply a legal device to obfuscate the ownership of these stations. This uncertainty was heightened by the very clear statements in Mr Skase's own application that he reserved his right to argue that he did not hold a prescribed interest in TVW and SAS. Under these circumstances it was necessary to process this inquiry in accordance with the provisions outlined in regulation 9 of the Tribunal's Inquiry Regulations. A notice appeared in the Commonwealth Gazette and the press on 21 September 1988 inviting the public to lodge submissions by 2 November 1988. No submissions were received at that time. In early December the tribunal invoked s.89X to obtain documents from the parties to carry out its investigations. During all this the tribunal was also conducting its inquiry into the acquisition of former Fairfax television stations by Qintex. I have mentioned these points to raise the great difficulty faced by the tribunal in implementing the government's policy which limits a person to only 60 per cent of the population.

The Broadcasting Act defines a prescribed interest in s.89F. If a person does not hold a prescribed interest as defined then the ownership limits of s.92 of the Act cannot be enforced by it. If a person does not admit to holding a prescribed interest, even though there is strong circumstantial evidence to suggest otherwise, the tribunal is bound by the Act and the regulations it operates under to conduct its inquiry at an unsatisfactory pace.

Even if a person admits that he holds prescribed interests in excess of those allowed by s.92 of the Act there is allowed a minimum of a six month period of grace to dispose of the excess interests. Unfortunately, the period of grace provisions are drafted in such a manner that when combined with the recent explosion in the turnover of owners of both television and radio and the statutory requirements to process applications in a particular manner that I have referred to before, a person who is determined is certainly able to frustrate the tribunal from implementing government policy indefinitely. This inquiry has had a very high priority accorded to it by the tribunal. Notwithstanding its scarce resources which have been devoted here, the process of investigating who effectively controls this $100 shelf company, which over twelve months ago entered into an agreement to acquire two television stations for a minimum of $126,000,000, has not allowed this oral hearing to be held before today. It was therefore with great concern that the tribunal read on 30 March 1989 the notification lodged for the sale of Kaycliff. Ladies and gentlemen, I can now reveal that on 31 March of this year Kaycliff Pty Limited was sold to the Australian Television Network Holding Pty Limited and South Australian Telecasters, the licensee of SAS, was also sold to Coucal Pty Limited, a wholly owned subsidiary of Qintex Television Limited.

The result of this development is that several companies in the Qintex Group, Mr Skase himself, and some of his family companies are clearly - certainly on the documentation currently available to us - in contravention of the 60 per cent limit.

Furthermore, by correspondence dated 4 April 1989 the solicitors acting on behalf of Mr Skase have made the statement that Mr Skase accepts that at all material times he has been in a position to exercise control of the licensee companies of TVW and SAS. If this correspondence or admission had been received twelve months ago great public expense would have been avoided. Instead we are confronted with a situation where even if this inquiry were to be terminated today Mr Skase would have a minimum of a further six months to comply with the Act .... By this process Mr Skase will have extended his period of grace without even applying to the tribunal for an extension of this time. Having made those comments, which we regard cover some matters of major concern and of public importance, I would now invite the represent atives of the parties to announce their appearance ..."

Response to opening statement

After appearances had been taken the following exchange took place between Mr Nicholas Q.C., senior counsel for the applicants, and the Chairman:

MR NICHOLAS: ... One other matter, members of the tribunal, is this. We did not have the benefit of receiving a copy of your introductory remarks before you made them, and thus it is probably not appropriate at this time to engage in some refutation of them. Suffice it to say, so that there is no misunderstanding amongst people who may be present here, that some of the suggestions which might emerge from what you were putting in your statement in so far (as) they may be regarded as tentatively adverse to my client are plainly refuted.

THE CHAIRMAN: They were not intended to be ... - certainly I will make copies available. MR NICHOLAS: We would welcome that. THE CHAIRMAN: It is on the transcript; but it was intended that any remarks that were made were general and were not intended to be related to dealings with - or, any issues that we have to determine. They were generally conceived to be related to the framework in which an enquiry of this kind would be taken. If there are any factual matters that are inaccurate - - - MR NICHOLAS: I must confess I am not in a position to pick you up on them. I am sure there may not have been; but you would know and your colleagues would know how sometimes these things do get misunderstood or misreported and we would not want this enquiry to start off in an atmosphere which would suggest - and we do not suggest it for a moment, but we are concerned about the way your remarks may be interpreted - would be to suggest that the tribunal had some views or preconceptions about this application or any aspect of it. We are quite confident you do not have them, but we were troubled about what fell from you a moment ago to suggest otherwise. THE CHAIRMAN: Can I make it perfectly plain that in respect of the matters that we are going to hear we obviously have no views. We are having an enquiry, but I did intend to express some concern about should I say the difficulties with the Broadcasting Act and the implementation of government policy which is implicitly put there; and my intention was not to speak specifically about the decision we might be making with respect to this enquiry. MR NICHOLAS: We were inclined to take what you had to say was really a plea for a change in the legislation, rather than some reference particularly to us. THE CHAIRMAN: Yes; and, I suppose, Mr Nicholas, the point that if we had received your client's letter in respect of his position in respect of these stations at the time when he acquired - - - MR NICHOLAS: Yes, I understand. THE CHAIRMAN: That point was made. We do not resile from that point. MR NICHOLAS: No, no. no. THE CHAIRMAN: We make that point quite firmly; and we wished you in this public forum to be aware of our concerns in respect of these matters and the way they are dealing with it."

The inquiry proceeded and evidence was taken on 10, 11, and 12 April. During the course of his evidence on 12 April, Mr Skase was asked by the Chairman to explain why he had reserved the right in his written application to argue that he did not acquire a prescribed interest in the relevant licences. Mr Skase answered that the reservation had been made on the recommendation of his legal advisers and that they had suggested that it was appropriate for the reservation to be made. It appears that Mr Nicholas indicated to the Chairman that he was contemplating calling evidence to explain the contents of the written applications. However, the Chairman thereupon indicated that the Tribunal accepted Mr Skase's evidence of what he was advised to do and further indicated, in effect, that it was not concerned whether the professional advice given to Mr Skase was proper. The hearing continued on 13, 24 and 27 April, when it was adjourned to a date to be fixed for addresses.
Statements by Chairman's husband
The Chairman of the Tribunal, who is a lawyer, is married to Mr M. Joseph, a member of the New South Wales Bar. On 4 May 1989 Mr Joseph, while appearing at a country court, had a casual conversation with Mr N. Griffin, a partner in the firm of solicitors which acts for the applicants. Reference was made to Mr Graham Kelly, another partner in the firm. According to Mr Griffin, Mr Joseph said:

"He might just be a bit too smart. In a recent situation in which I have been associated with he has given advice that I find extraordinary that a lawyer could give. I think for Christopher Skase to have said that he, at the time he purchased the Adelaide Station, did not believe that he had a prescribed interest, on legal advice, is very strange. I do not know how a lawyer can give such advice. OK, so Skase gets a deferment of twelve months, and is no doubt pretty happy about that, but I wonder about the lawyer giving the advice. Anyway, we shall see just how smart your Mr Kelly has been. Skase has been lucky that the press have been so fascinated with Mr Bond's problems."

According to Mr Griffin, Mr Joseph also remarked that "Bond and people like him had cost the community a lot of money by use of bottom of the harbour schemes and tax shelters". Mr Griffin said that when he asked Mr Joseph what was his involvement in the case before the Tribunal and whether he was appearing in it, Mr Joseph replied: "No, I was not appearing in it. I am married to the Chairman of the Tribunal."
Thereafter Mr Griffin made a statutory declaration giving his account of the conversation and it was forwarded to the Tribunal. When counsel who had been retained by the Australian Government Solicitor to assist the Tribunal in the inquiry was apprised of the statutory declaration he advised that a statutory declaration should be obtained from Mr Joseph giving his account of the conversation. This was done, and a copy of the declaration was given to the applicants' solicitors.
Mr Joseph accepted that Mr Griffin's version of the conversation was substantially accurate save that he could recall that he used the word "interested" rather than "associated". He could not recall there being any reference to another matter (of no significance for present purposes) referred to in Mr Griffin's declaration.
Both Mr Joseph and Mr Griffin gave evidence before me. I have not the slightest doubt that both gentlemen did their best to give me an accurate account of their conversation. On the one hand, it seems more likely that a barrister in Mr Joseph's position would have used the word "interested" rather than "associated". On the other hand, the word "associated" appears in a written note of the conversation made by Mr Griffin on the day after it occurred. Both gentlemen were equally impressive as witnesses and I am unable to determine, on the balance of probabilities, which of the two words was actually used. In these circumstances, and bearing in mind the onus which rests on the applicants of establishing their case, I think I should proceed on the basis that Mr Joseph said that he was interested in, and not associated with, the proceedings before the Tribunal.
Mr Joseph gave evidence, which I accept, that he has never spoken to his wife, and his wife has never spoken to him, as to the evidence presented at the inquiry or as to what decision the Tribunal might make. He said that, with the exception of his identification of Mr Kelly as the solicitor who had advised Mr Skase, the sources of the information upon which his remarks to Mr Griffin were based were media reports of the proceedings at the inquiry, and also evidence he had heard when he attended the inquiry in his capacity as an interested member of the public. I accept this evidence. It is borne out by the media reports which are in evidence and by the transcript of evidence taken on the day when he attended the inquiry. He said that he knew that Mr Kelly acted for Mr Skase because his wife had so informed him on previous occasions unrelated to the Kaycliff inquiry.
Application to members of Tribunal to disqualify themselves
The Tribunal reconvened on 19 May 1989. Mr Nicholas requested the members of the Tribunal to disqualify themselves from further proceeding with the inquiry. He submitted that if a public inquiry was to take place into the Kaycliff transactions it should be conducted by a Division of the Tribunal differently constituted. He argued that the conversation between Messrs Griffin and Joseph, considered by itself or in conjunction with the opening statement made by the Chairman on 10 April and the obtaining of the declaration from Mr Joseph, gave rise to a reasonable apprehension that the Tribunal would be biased in its determination of issues directly relevant to the inquiry. He put to the Tribunal that this apprehension was entertained by the applicants and that it might also be entertained by members of the public. No submission was made that the Chairman or the other members of the Tribunal were actually biased.
During the course of argument on 19 May, the Chairman drew counsel's attention to the differences between proceedings at an inquiry held under the Broadcasting Act and curial proceedings. She observed that prior to the making of the opening statement on 10 April the Tribunal had been furnished with much information relating to the Kaycliff transactions. In effect, she indicated that what she had done on 10 April was to express no more than a preliminary view on the material then before the Tribunal so that the applicants would be able to address the concerns of which she spoke in her statement. In the course of making her observations, she used the following words with reference to the statement made on 10 April:

"we were ... expressing our view that there were aspects of the application and responses to it which had caused us great concern in respect of misleading us and delay in respect of some of the matters."

On 30 May 1989 the Tribunal wrote to the applicants' solicitors giving its decision on the application made to it on 19 May. As to the bias claimed to be apprehended in respect of the Chairman's opening statement, it was stated that the apprehension arose out of a misunderstanding of the nature of the Tribunal's inquiry procedure. It was said that, unlike proceedings before a court, Tribunal hearings were but one of a number of information-gathering procedures available to the Tribunal when holding an inquiry and that, in some inquiries, "the collection and evaluation of evidence will be well advanced by the time hearings commence, so that the Tribunal is in a position to present its preliminary views and concerns at the outset to be addressed by the parties." The view was expressed that this airing of concerns was desirable in the interests of natural justice and helped to ensure thorough exploration of the matters which were of concern to the Tribunal.
As to the action of the Australian Government Solicitor in obtaining the declaration from the Chairman's husband, it was stated that counsel assisting the Tribunal had decided that it was appropriate to obtain the declar ation and that the Tribunal had not taken any part in obtaining it.
Withdrawal of Chairman
As to the conversation between the Chairman's husband and Mr Griffin, it was stated in the letter of 30 May that the Tribunal did not accept that a reasonable person would apprehend bias on the part of the Chairman solely on the strength of the views expressed by her husband on a topic of which there had been considerable media coverage. However, it was stated that, for personal reasons, the Chairman would be on leave from 1 June 1989 for an extended period and would be unable during that time to take part in the inquiry, and that as it had proved to be impossible to conclude the oral hearings before her departure on leave, she had removed herself from the Division hearing the inquiry. It was further stated that, even if the view had been taken that her husband's views were a ground for apprehending bias on the Chairman's part, the Tribunal rejected as unreasonable any apprehension that either Ms Bailey or Ms Brooks might be biased; and that Ms Bailey and Ms Brooks would hear final submissions in the inquiry on 20 June.
Section 14 of the Broadcasting Act empowers the Minister to grant leave of absence to a member of the Tribunal. On 29 May the Minister, in accordance with s.14, granted leave of absence to the Chairman from 1 June to 14 July 1989. The reason for the Chairman seeking leave of absence was her need to enter hospital for surgery and for a period of recuperation thereafter. On 30 May the Chairman issued a notice in the following form: "Under section 15C of the Broadcasting Act 1942, I remove myself from the Division which is conducting the inquiry into the acquisition of TVW Enterprises Limited by Kaycliff Pty Limited."
Apprehension of bias - the opening statement
It is against this background of facts that the applicants' claims for relief must be determined. It is convenient first to consider the claim that the making of the opening statement gave rise to a reasonable apprehension that the Chairman and the other members of the Division may be biased against the applicants.
The general principle applicable to a case such as the present is not in doubt. In the unanimous judgment of the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4 it is expressed as follows:

"That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reason able apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."

See also Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 where the same principle is adopted in all the judgments. In that case Mason J. said at pp 351-2:

"The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Reg. v Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263; Livesey v NSW Bar Association

(1983) 151 CLR 288, at pp 293-294. This principle, which has evolved from the funda mental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done."

Livesey and Re J.R.L. were both concerned with the conduct of judges. The Australian Broadcasting Tribunal does not exercise judicial functions. Nevertheless, having regard to the nature of inquiries conducted by it and the importance to interested parties and the general public of the issues which it is called upon to determine, the general principles referred to in Livesey and J.R.L.. are of equal application to it.
There is no doubt that the statement made on 10 April and the explanation of it given on 19 May reflect the Tribunal's disenchantment with the completeness and sufficiency of the material furnished by the applicants prior to the sending of the letter of 4 April 1989. There is also no doubt that the Tribunal expressed its concern that it might have been misled and delayed in its consideration of the matter prior to the commencement of the public hearing. It is fairly clear that the Tribunal thought that its time would have been saved and its consideration of the applications expedited if the concession made in the letter of 4 September had been made earlier. But that is not to say that a reasonable person who heard the statements would apprehend that the members of the Tribunal might not bring impartial and unprejudiced minds to the resolution of the questions they were called upon to decide. It was not improper for the Tribunal to raise its concerns on 10 April. By that time it had had the opportunity to consider a considerable volume of material which had been furnished to it. It had conferred with the applicants' solicitors after the receipt of that material. Not to have drawn the attention of the applicants' counsel to a matter which concerned it would have been unhelpful to the applicants and to the Tribunal alike.
It was submitted that the statement made on 10 April, as illuminated by what the Chairman said on 19 May, was clearly condemnatory of the applicants, that it conveyed the view that they had been involved in a device to improperly circumvent the provisions of the Act, and that it suggested that they had improperly misled the Tribunal. I think this submission overstates the import of what the Chairman said. It is true that what she said might have been expressed in less pungent terms. But I do not think a member of the public, or the applicants, could reasonably have apprehended, having heard the statement, that the members of the Tribunal might not proceed with the inquiry with impartial and unprejudiced minds. As appears from the exchange which took place between the Chairman and Mr Nicholas after the statement was made, he did not regard it at that time as reflecting any "preconceptions about this application or any aspect of it". Mr Nicholas submitted at the hearing in this Court that what was said by the Chairman on 19 May led the applicants to reconsider whether they had correctly interpreted what she said on 10 April. But I do not think that what she said on 19 May amounted to anything other than a re-statement of the concern which she had voiced on 10 April.
Moreover, it is not without significance that on 12 April the Chairman expressly indicated that the Tribunal accepted Mr Skase's evidence to the effect that the material furnished to the Tribunal had been provided in a form which had been settled by his legal advisers. At that point in time, the Tribunal's thinking appears to have advanced to the stage where it excused Mr Skase from any personal opprobrium in respect of the form and content of the application.
The Tribunal was not required to hold a public hearing as part of its inquiry into the Kaycliff transactions. The decision to hold a public hearing was not made until some time after the Tribunal had had the opportunity of considering a good deal of material furnished to it in support of the applications. The applicants and any interested member of the public would have assumed that, by 10 April, the Tribunal would have carefully considered and evaluated the material already furnished to it. In these circumstances, the applicants would have had reason to wonder why a public hearing was being held at all if the Tribunal had failed to indicate the matters which were of concern to it.
In R v Lusink: Ex parte Shaw (1980) 32 ALR 47 at p 50 Gibbs ACJ. said:

"In that case (i.e. R. v Watson; Ex parte Armstrong (1976) 136 CLR 248 at p 264) it was pointed out that it is not uncommon, and sometimes necessary, for a judge, during argument, to formulate propositions for the purpose of enabling their correctness to be tested, and that 'as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory'. However, in some cases the words or conduct of the judge may be such as to lead the parties reasonably to think that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be 'firmly established' that such a suspicion may reasonably be engendered in the minds of the parties or the public, as was made clear by the court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R v Watson; Ex parte Armstrong (136 CLR at 262)."

In Lusink, at the conclusion of a wife's case in the Family Court, the trial judge indicated to counsel for the husband that, on the evidence as presented to that point, she considered the husband's initial offer of maintenance unsatisfactory. Counsel for the husband then asked the trial judge to disqualify herself. Prohibition was refused by the High Court because it could not reasonably be suspected that the trial judge had pre-judged the case. At p 53 Murphy J. said:

"Almost all experienced practitioners welcome indications by judges, whether at the first instance or on appeal, of the provisional impressions made upon them by evidence or argument of factual or legal issues. The judicial process is quite opposed to the idea that a judge forms no impression until the very last word before judgment. On the contrary, one side begins by introducing arguments or evidence intended to create a provisional view in its favour, and often succeeds. The other side seeks to reverse the process by cross-examination and then presenting its case. The extent to which any impression is formed depends upon the strength of the evidence and the conduct of the case up until that point.

Often during the course of a trial, a judge is required to give formal rulings which indicate a provisional, or even concluded, view on some aspect of the case. Sometimes, an impression may be created, even before an oral hearing, by documentary material containing the opposing legal or factual contentions. This occurs daily in the ordinary conduct of civil trials without a jury (different considerations apply in criminal matters and in jury trials)."

In my opinion, Murphy J's remarks are apposite to an inquiry held by the Broadcasting Tribunal. I conclude that neither the applicants nor members of the public could entertain a reasonable apprehension, based on the opening statement, that the members of the Tribunal might not bring impartial and unprejudiced minds to the resolution of the issues under consideration at the inquiry. This conclusion is not affected by the remarks subsequently made by Mr Joseph or the action of the Tribunal in obtaining the statutory declaration from him. I shall consider those matters later in these reasons.

Waiver and Discretion

Had I been of the opinion that the making of the statement by the Chairman on 10 April 1989 gave rise to a reasonable apprehension of bias, it would have been necessary for me to consider whether the applicants' conduct in allowing the inquiry to continue, without objection, to the stage where the taking of evidence was completed amounts to a waiver of their right to relief. In Vakauta v Kelly (1988) 13 NSWLR 502 at 528-532, McHugh J.A. said:

"If a party or his legal representative knows of circumstances which would disqualify a judicial officer from hearing a case but permits the case to proceed to decision, he waives his right to set aside the decision unless he was unaware of his right of objection. Moreover, he may waive his right in some cases even though objection is taken before a decision is made. If, with knowledge of the circumstances and his right to object, a party or his legal representative permits the case to continue for a period before taking objection, he may be held to have waived his right to have the case determined by an impartial adjudicator. Whether or not a party who has delayed in making an objection has waived his right will depend on all the circumstances of the case. They will include the nature of the disqualifying factor, the extent of any financial or other prejudice to the other party if the hearing is terminated, the reason for delaying the objection, and the period for which the hearing has continued since the objecting party became aware of his right to object."

The above statement of the law was made by his Honour in the light of an extensive examination of the authorities. Notwithstanding the reservation expressed by Kirby P. in Allen v Corporate Affairs Commission (NSW) (1988) 14 ACLR 632 at 633, I agree with McHugh J.A's analysis of the authorities and with his conclusion that the rules set out in the above passage in his judgment correctly state the settled law governing civil litigation.

Mr Nicholas submitted that his clients did not have a complete appreciation of the import of what the Chairman said in her opening statement until 19 May 1989 when she, in effect, elaborated her first statement. I do not think that what she said on 19 May added much, if anything, to what she said on 10 April. The applicants elected to allow the inquiry to proceed for some six days after the opening statement was made. The decision to approach this Court seems to have been made as a result of Mr Joseph's conversation with Mr Griffin and not in consequence of what the Chairman said on 10 April. In these circumstances, if it had been necessary to decide whether the applicants waived their right to complain about the statement made on 10 April, I would have found that they did waive that right. That being so, it would have been proper to exercise the discretion given by s.16 of the Administrative Decisions (Judicial Review) Act against granting the application insofar as it is based upon the making of the statement on 10 April.
Involvement of the Tribunal in obtaining evidence
Mr Nicholas submitted that the Tribunal became involved in obtaining evidence to rebut Mr Griffin's account of his conversation with Mr Joseph. The Tribunal, so it was argued, thus engendered the impression that it had become a protagonist in the very matter it was required to determine. Reliance was placed on The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at p 35. In that case, the Tribunal instructed counsel to contest the prosecutor's case for relief in the High Court and this he did by presenting a substantive argument. In the joint judgment of the Court, the following was said:

"In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal."

I do not think the above dictum was intended to have any application to the situation which arose in the present case. It was entirely proper for counsel assisting the Tribunal to request his instructing solicitor to obtain from Mr Joseph his account of his conversation with Mr Griffin. The members of the Tribunal took no part in the approach made to Mr Joseph. Counsel who appeared for the Tribunal before me did not make any substantive submissions in opposition to the case made by the applicants. Save for tendering Mr Joseph's declaration, he took no part in the calling of witnesses or the testing of their evidence. Nothing that was done by the Tribunal or by its counsel could have engendered the impression that the Tribunal had become a protagonist in the matters into which it was inquiring.
Can the Chairman withdraw?
The applicants claim the Chairman is not empowered to remove herself from the Division of the Tribunal conducting the inquiry, leaving Ms Brooks and Ms James-Bailey to complete it. It is common ground that it was not competent for the Chairman to remove herself from the Division pursuant to s.15C of the Broadcasting Act. That section has no application to the facts of the present case. However, in my opinion there is no doubt that Ms Brooks and Ms James-Bailey are authorized by s.25A(1) of the Broadcasting Act to complete the inquiry on their own. Section 25A(1) provides as follows:

"25A. (1) Where an inquiry has been commenced by the Tribunal constituted by 2 or more persons but, before the inquiry has been completed, one of the persons constituting the Tribunal for the purposes of the inquiry has ceased to be a member or has become unable to perform his functions as a member, the Tribunal as constituted by the remaining member or members and, if the Chairman of the Tribunal so directs, another member may complete the inquiry, and for that purpose may have regard to any record of the inquiry held by the Tribunal as previously constituted."

Mr Nicholas submitted that the evidence did not establish that the Chairman had become unable to perform her functions as a member. He argued that the circumstances which gave rise to the necessity for her to temporarily absent herself from her duties did not establish that she was unable to perform her functions as a member of the Tribunal. In my opinion this submission cannot be sustained. At the time the Chairman took the decision not to continue sitting on the inquiry she was about to undergo surgery. For that purpose she had sought and obtained leave of absence until 14 July 1989. There is no evidence as to the present state of her health. The inquiry was scheduled to hear addresses from counsel on 20 June. As at 30 May it was well open to the Chairman and the other members of the Division to conclude that she would be unable to perform her functions as a member of the Tribunal until at least 14 July. Section 25A(1) does not refer to the permanent inability of a member to perform his or her functions as a member. I see no valid reason for construing the provision so as to exclude temporary inability through sickness. In The Queen v Kelly; Ex parte The Victorian Chamber of Manufactures (1953) 88 CLR 285, the High Court considered the meaning of s.24(4) of the Conciliation and Arbitration Act 1904, which provided: "Where the hearing of an industrial dispute ... has been commenced before the Court but, before an order or award has been made determining the dispute or appeal, one of the judges sitting as a member of the court hearing the dispute ... has become unable to continue to sit or has ceased to be a judge, the court constituted by the remaining judges has jurisdiction to complete the hearing and make an order or award determining the dispute ... in whole or in part." Of this provision, Williams ACJ. said, at p 299 :

"It is not easy to ascertain the meaning of 'unable' in this expression. At least it includes occasions where a judge has become unable to sit for reasons beyond his control, the commonest of which would be illness."

Section 25A(1) applies to circumstances where an inquiry has been commenced by the Tribunal. The reference to a member becoming unable to perform his functions as a member is plainly a reference to a member becoming unable to perform his functions as a member sitting on an inquiry. Hence s.25A(1) serves the same purpose in the Broadcasting Act as s.24(4) of the Conciliation and Arbitration Act served in that Act. The above dictum of Williams ACJ. supports the construction I place upon s.25A(1). The subsection is plainly intended to facilitate the prompt and efficient dispatch of the Tribunal's business. There is no warrant for reading it down so as to frustrate its operation.
It is to be noted that s.25A(1) authorizes the remaining members to complete an inquiry if the other member "has become" unable to perform his functions. In my opinion, it is a prerequisite to the operation of s.25A(1) that a member is unable to perform his functions at the time the remaining members continue with the inquiry. It is possible that by the time the inquiry into the Kaycliff transactions resumes the Chairman will have become able to perform her functions in relation to the inquiry. If that turns out to be the case, it could well be that s.25A(1) would no longer remain a sufficient source of authority for the remaining members of the Tribunal completing the inquiry on their own. But that is not a question which arises in these proceedings.
The Chairman may take the view that, even if she is physically able to perform her functions as a member when the inquiry resumes, she will not be able to satisfactorily discharge her functions because of the allegation (whether justified or not) that her husband's conversation with Mr Griffin has given rise to an apprehension of bias. If she takes that view, it is my present opinion that it would be well open to her to conclude that she remained unable to perform her functions as a member of the Division inquiring into the Kaycliff transactions. That is to say, I do not think that the inability of a member to perform his or her functions is to be determined by reference only to the member's state of health. However, as this question was not explored in argument and may, in any event be academic, I say no more about it.
Appearance of justice if Chairman withdraws
The applicants claim to have an apprehension that Ms Brooks and Ms James-Bailey may be biased against them even if they complete the inquiry in the absence of the Chairman. This apprehension is said to be based upon the apprehension that the Chairman may already have communicated her views to Ms Brooks and Ms James-Bailey and that those views may carry weight with them.
For the purpose of considering this submission I shall make the assumption that an apprehension of bias is reasonably entertained in respect of the Chairman herself by reason of her husband's conversation with Mr Griffin. Even if this assumption be made, I do not think the submission is valid.
It is well settled that the decision of a tribunal which has a duty to act judicially will be invalid if it permits a person to be present when it deliberates upon its decision, if that person ought not to be present: Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 and numerous cases cited therein. As Lord Hewart L.C.J. said in R. v Sussex Justices; Ex parte McCarthy (1924) 1 KB 256 at 258, "It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." If justice is not seen to be done there will not be adherence to the requirements of natural justice. As Barwick C.J. pointed out in Stollery, what is required to satisfy the principles of natural justice depends very largely on the nature of the matter in hand and the circumstances in which a hearing takes place, and the degree to which justice should manifestly be seen to be done will likewise be related to the particular situation under examination by a supervising tribunal: (128 CLR at pp 517 and 519).
In Stollery, a board charged with the responsibility of controlling and regulating greyhound racing in New South Wales had power to inquire into and deal with matters detrimental to the proper conduct of greyhound racing. The manager of a greyhound racing association brought to the attention of the board an incident involving a greyhound owner. The board held an inquiry into the incident. Both the owner and the manager were present during the inquiry. The owner then withdrew. Thereupon the board deliberated and resolved to charge the owner with conduct detrimental to the proper regulation and control of greyhound racing. The owner was recalled, heard again, and withdrew. The board deliberated further and resolved that the owner be found guilty and he was disqualified for twelve months. The manager was present in the boardroom throughout the deliberations and decisions, but took no part in them. It was held that the manager's presence during the deliberations and decisions of the board was inconsistent with the principles of natural justice even though he did not participate in the deliberations or decisions.
There are important differences between the present case and Stollery. The manager in Stollery was said to be in the position of a prosecutor and the greyhound owner was effectively the defendant. Moreover, the manager was personally involved in the incident which gave rise to the complaint against the owner. In the present case the applicants are not in the position of defendants, nor has the Chairman had any personal involvement with the applicants or the transactions under consideration at the inquiry.
The applicants relied upon The Queen v Justices of Hertfordshire (1845) 6 QB 753. The facts in that case were very special. An appeal was heard at Quarter Sessions by a bench made up of a number of lay magistrates. One of the magistrates was himself a respondent to the appeal. He left the bench before the actual decision was made but, as Lord Denman C.J. pointed out (6 QB at 756) it was quite consistent with his leaving the bench that "he may have joined in the discussion so far as to affect the result". Another magistrate had a pecuniary interest (albeit remote) in the outcome of the appeal. He sat on the bench during the hearing and retired with the other justices into a private room when they adjourned to discuss the merits of the appeal. He apparently took no part in the discussion though it is said (6 QB at 755) that "he gave his vote in favour of confirming the order". I do not think the case assists the applicants.
The applicants also relied upon Hannam v Bradford Corporation (1970) 1 WLR 937. A decision was taken at a meeting of the governors of a school to terminate the employment of a school teacher. A committee of the Bradford Corporation had power to prohibit the teacher's dismissal by the governors. At a meeting of the committee it was decided not to prohibit the teacher's dismissal. Three members of the committee were governors of the school, but they had not been present at the governors' meeting when it was decided to terminate the teacher's employment. It was held that the trial judge was right to find that a real likelihood of bias existed when the three governors sat upon the committee as they did not cease to be an integral part of the body whose action was being impugned. They became, in effect, judges of their own cause. The decision is of no application to the present case. If the remaining members of the Tribunal complete the inquiry themselves they will not be judges is in their own cause.
I do not think there is any reason to think that, notwithstanding her withdrawal from further participation in the inquiry, the Chairman will continue to play a part in the decision-making of the remaining members. If I had been of a different view on this matter, it would have been relevant to consider the advice given by Hope J.A. on 15 June 1989 (as yet unreported) as Assessor to the Visitor to the Macquarie University in relation to a petition by Dr Ong. Dr Ong held the office of Head of the School of Law within the University. The Council of the University, having received a report from a committee of investigation, declared his office vacant. Dr Ong petitioned the Visitor seeking his reinstatement as Head of the School on the ground, inter alia, that the Council's decision was invalid by reason of alleged denial of natural justice by the Council. The meeting at which Dr Ong's office was declared vacant was held on 6 January 1989. The Vice-Chancellor was not present at the meeting. However, she had previously written a letter to the Registrar with a memorandum asking that it be circulated to Council members, and this was done. The Chancellor told the members of the Council that they should set aside the Vice-Chancellor's letter from their consideration. The letter was not shown to Dr Ong or his advisers. In her letter, the Vice-Chancellor argued the case against Dr Ong and referred to new matters adverse to him. Hope J.A. was of the opinion that the Vice-Chancellor's absence from the Council meeting did not preclude the application of the principle in Stollery. He was of the view that the Vice-Chancellor had actively involved herself in the decision-making process and that her letter put before the Council matters prejudicial to Dr Ong as effectively as if she had been present in person. He concluded that, on this ground, Dr Ong was denied natural justice.
The Chairman does not stand in a similar position in relation to the Tribunal as the Vice-Chancellor stood in relation to the Council of the Macquarie University. To the extent that the Vice-Chancellor put matters adverse to Dr Ong before the Council she became a protagonist against him. In contrast, the Chairman of the Tribunal is in no sense a protagonist against the applicants. Accordingly, the reasoning of Hope J.A. is of no application to the facts with which I am concerned.
In the present case, although the inquiry has reached the stage where the evidence is complete, no submissions have been put to the Tribunal. Hence Ms Brooks and Ms James-Bailey are not yet in a position to consider finally what decisions they should make on the issues under consideration. In these circumtances it will not appear that justice is not being done if they alone complete the inquiry.
There is no allegation that any member of the Tribunal has any actual bias against the applicants and it is not suggested that any member of the Tribunal has any interest in the outcome of the inquiry. In these circumstances, there would need to be a solid foundation for a finding that justice will not appear to be done before an order is made prohibiting Ms Brooks and Ms James-Bailey from completing the inquiry. cf. The Queen v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Limited (1953) 88 CLR 100 at p 116. In Re J.R.L.; Ex parte C.J.L. (supra) Mason J. said at p 352:

"In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ((1969) 122 CLR 546, at pp 553-554); Watson ((1976) 136 CLR at p 262); Re Lusink; Ex parte Shaw

((1980) 55 ALJR 12 at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

I am of the opinion that having regard to all the facts of the present case no person could entertain a reasonable apprehension that Ms Brooks and Ms James-Bailey would not bring impartial and unprejudiced minds to the resolution of the questions which will fall to be determined in the inquiry.
Whether statements made by Chairman's husband give rise to apprehension that Chairman biased
It will be seen from what I have so far written that it is unnecessary to determine the question whether Mr Joseph's conversation with Mr Griffin gives rise to a reasonable apprehension that the Chairman may be biased. Nevertheless as the question was fully argued and could be a live issue should this matter go further I shall state my opinion on it.
As I have observed, the Chairman is a lawyer. She was formerly a practising member of the Bar. As I understood Mr Nicholas' submissions, he did not contend that his clients' apprehension of bias arose from the mere expression by Mr Joseph of his views on matters being inquired into by the Tribunal. Rather, he submitted that Mr Joseph expressed his views in such a manner as to lead the applicants to believe that they had been formed after communication with his wife. He argued that it could be inferred from what Mr Joseph said that there had been conversation between the Chairman and her husband concerning the conduct of the applicants, that he held views adverse to the applicants, that he would have expressed his views to his wife, and that they may have influenced her. It was further submitted that it could be inferred that there was a possibility that the Chairman may have passed on her husband's views to the other members of the Tribunal. Another inference which was said to be open was that the Chairman may have passed on her own views to the other members and that her views may have been arrived at as a consequence of what her husband had said to her. A further submission was that, because Mr Joseph's views may have influenced the Chairman, it was reasonable to see him as a participant in the decision-making process of the Chairman and of the Tribunal itself. In these circumstances, so it was argued, the applications to the Tribunal would not be determined in accordance with the principle that justice must be seen to be done.
So far as counsel's and my own researches have revealed, no consideration appears to have been given in the decided cases to the inferences, if any, which can properly be drawn from the fact that the spouse of a member of a tribunal has made statements related to a matter under consideration by that tribunal. In my opinion, it would be wrong to conclude that a casual statement by a husband of his views on a matter under consideration by a tribunal of which his wife is a member gives rise to a reasonable apprehension that the husband's views might have been formed after discussion with his wife, or might be communicated to his wife.
It is not uncommon for a member of an administr ative tribunal to be married to a lawyer. It cannot reasonably be assumed that such a member will discuss with his or her spouse confidential matters relating to the the tribunal's work. A reasonable person would expect that they would discuss matters of mutual interest, including some aspects of their work. But he would not expect their discussion to influence the member's thinking on a matter into which he or she was inquiring. It will no doubt almost always be the case that considerations of circumspection will lead one party to a marriage to avoid conversation on a matter which the other party is considering as a member of an administrative tribunal. But that is not to say that a reasonable person would think that casual remarks incautiously made in such conversation reflect prior discussion with the member of the Tribunal concerned.
In determining whether the apprehensions said to be held by the applicants are reasonable, it is necessary to have regard to the considerable publicity which attends the work of the Australian Broadcasting Tribunal. Proceedings at public inquiries of the Tribunal receive much coverage in the media. The inquiry into the Kaycliff transactions was no exception in this respect. Mr Joseph said that he had read media reports of the proceedings of the inquiry at which his wife was presiding. No reasonable person would expect him not to be interested in the inquiry and to follow its progress.
If Mr Joseph told Mr Griffin that he was "interested" in the Skase matter and also said that he was not appearing in the matter, but was married to the Chairman of the Tribunal, the totality of what he said ought not to have given rise to the apprehensions that are said to have been entertained by the applicants. Even if Mr Joseph had said at the beginning of his conversation with Mr Griffin that he was "associated" with the Skase matter, the nature of that association would have been apparent to Mr Griffin by the time the conversation concluded. It would have been apparent to him that the "association" of which Mr Joseph spoke (if he did use that word) was no more than that he was married to the Chairman of the Tribunal. Knowledge of such an association would not lead a reasonable person to think that Mr Joseph had had any meaningful discussion with his wife on any matter germane to the issues in the inquiry.
Reticence in expressing opinions on matters of public interest has never been the special mark of the lawyer. Mr Griffin would have known of the propensity of lawyers to make gratuitous remarks about cases with which they have no connection and concerning which they have no special knowledge. I do not think it would have been reasonable for him to attribute any significance to Mr Joseph's remarks.
In all the circumstances, including the wide media coverage of the Tribunal's inquiry into the Kaycliff transactions, the informality of the occasion when Mr Joseph's remarks were made and the fact that both he and his wife are and were known to be lawyers, I do not think there are grounds for a reasonable apprehension that the Chairman might not bring an impartial mind to the resolution of the questions under consideration by the Tribunal. Accordingly, had it been necessary to do so, I would have found against the applicants on this issue.
Orders
In the result, the only order to which the applicants are entitled is an order that the decision of the Chairman made in purported pursuance of s.15C of the Broadcasting Act to remove herself from the Division of the Tribunal conducting the inquiry into the Kaycliff transactions be set aside. The making of this order will not disentitle Ms Brooks and Ms James-Bailey from completing the inquiry if the Chairman continues to be unable to perform her functions as a member of the Division holding the inquiry. Otherwise the application should be dismissed. At the request of the parties, I reserve the question of costs.

[1989] FCA 345

13 JULY 1989