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Kingham v Cole

Kingham v Cole

Case [2002] FCA 45 1 February 2002

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FEDERAL COURT OF AUSTRALIA
Kingham v Cole [2002] FCA 45
ROYAL COMMISSIONS – cross-examination – direction by Commissioner that persons will not be permitted to cross-examine a witness until they have provided a signed statement of evidence advancing material contrary to the evidence of the witness – whether beyond power of Commissioner – whether contrary to natural justice
Royal Commissions Act 1902 (Cth) s 6FA
Geographical Indications Committee v O’Connor (2000) 32 AAR 169 at [20] mentioned
McGuinness v Attorney-General for Victoria (1940) 63 CLR 73 at 98-99 mentioned
Herald & Weekly Times Limitedv Woodward [1995] 1 VR 156 at 159 mentioned
Wragg v New South Wales (1953) 88 CLR 353 at 387-8 mentioned
Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516 at 522 mentioned
Annetts v McCann (1990) 170 CLR 596 at 598 applied
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 applied
Mahon v Air New Zealand [1984] AC 808 at 820-821 applied
Victoria v Commonwealth (1926) 38 CLR 399 mentioned
Pye v Renshaw (1951) 84 CLR 58 mentioned
National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 applied
Australian Postal Commission v Hayes (1989) 23 FCR 320 not followed
Giannarelli v The Queen (1983) 154 CLR 212 mentioned
MARTIN LEONARD KINGHAM & ORS v TERENCE RHODERIC HUDSON COLE and COMMONWEALTH OF AUSTRALIA
V 19 OF 2002
HEEREY J
1 FEBRUARY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V19 OF 2002

BETWEEN:

MARTIN LEONARD KINGHAM & ORS
(according to the schedule attached)
APPLICANTS

AND:

TERENCE RHODERIC HUDSON COLE
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

1 FEBRUARY 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The second respondent’s objection to competency is dismissed with no order as to costs.
2.The application is dismissed.
3.The applicants pay the respondents’ costs of the application including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V19 OF 2002

BETWEEN:

MARTIN LEONARD KINGHAM & ORS
(according to the schedule attached)
APPLICANTS

AND:

TERENCE RHODERIC HUDSON COLE
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

HEEREY J

DATE:

1 FEBRUARY 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
Introduction

The first respondent the Honourable Terence Rhoderic Hudson Cole RFD QC (the Commissioner) was appointed by Letters Patent dated 29 August 2001 pursuant to the Constitution, the Royal Commissions Act 1902 (Cth) (the Act) and other enabling powers as a Commissioner to investigate certain matters in relation to the building and construction industry. Those matters were defined in the Letters Patent as follows:
“(a)the nature, extent and effect of any unlawful or otherwise inappropriate industrial or workplace practice or conduct, including, but not limited to:
(i)any practice or conduct relating to the Workplace Relations Act 1996, occupational health and safety laws, or other laws relating to workplace relations; and
(ii)fraud, corruption, collusion or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kingham v Cole

Details

AGLC: Kingham v Cole [2002] FCA 45
Case: [2002] FCA 45
Decision Date: 1 FEBRUARY 2002

CaseChat Overview and Summary

The case of Kingham v Cole involved an application by the applicants, Kingham and others, seeking to challenge the competency of the second respondent in a proceeding in the Federal Court of Australia. The applicants argued that the second respondent lacked the necessary capacity to effectively participate in the legal proceedings. The Federal Court was tasked with determining the competency of the second respondent and deciding on the applicants' application.

The primary legal issue before the court was whether the second respondent was competent to engage in the legal proceedings. The applicants contended that the second respondent's mental state rendered them incapable of understanding the nature and consequences of the legal process. The court had to assess the evidence presented by the parties and determine if the second respondent was indeed unable to participate in the proceeding effectively.

In reaching its decision, the court examined the evidence provided by the applicants and the respondents. The court found that the applicants had not established that the second respondent was incompetent to proceed with the litigation. The evidence did not substantiate the claims of incapacity, and the court was satisfied that the second respondent was capable of understanding and participating in the legal process. Consequently, the application was dismissed, and the applicants were ordered to pay the respondents' costs, including reserved costs. The court also dismissed the second respondent’s objection to competency with no order as to costs.

Orders

Orders of the court

1. The second respondent’s objection to competency is dismissed with no order as to costs.

2. The application is dismissed.

3. The applicants pay the respondents’ costs of the application including reserved costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.

Actions

Citations

Kingham v Cole [2002] FCA 45

Most Recent Citation

Ferguson v Cole [2002] FCA 1411

Cases Citing This Decision

Oliver and Comcare (Compensation) [2019] AATA 888
Citation 1 (Para 4)

…9) 23 FCR 320 ( Hayes ), Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123, Australian Postal Corporation v Bessey (2001) 32 AAR 508, Kingham v Cole [2002] FCA 45; (2002) 118 FCR 289, Ramsay v Australian Postal Commission [2005] FCA 640; (2005) 147 FCR 39; and Morton v Colonial Mutual Life Assurance Society Lim…
Bevan v Coolahan [2018] NSWDC 410
Citation 2

…Markets Ltd [2008] NSWCA 206 Jackson v Harrison (1978) 138 CLR 438 Jones v Bradley [2003] NSWCA 81 Jones v Dunkel (1959) 101 CLR 298 Kingham v Cole (2002) 76 ALD 389 Latimer v Day [2015] NSWSC 11 Let’s Go Adventures Pty Ltd v Barrett [2018] NSWCA 243 Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 McCracken v S…
Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396
Citation 3 (Para 2)

…es (1989) 23 FCR 320 ( Hayes ); Boyes v Colins (2000) 23 WAR 123; Australian Postal Corporation v Bessey (2001) 32 AAR 508 ( Bessey ); Kingham v Cole (2002) 118 FCR 289; Ramsay v Australian Postal Commission (2005) 147 FCR 39; and Morton v Colonial Mutual Life Assurance Society Limited [2013] FCA 681 ( Morton ). The…
Buttigieg v Comcare [2017] AATA 1002
Citation 4

…Kingham v Cole [2002] FCA 45; 118 FCR 289…
David Tuimaseve v Minister [2017] AATA 413
Citation 5

…7; 2 ALD 60; 46 FLR 409 Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 Killick v The Queen (1981) 147 CLR 565 Kingham v Cole [2002] FCA 45; 118 FCR 289 Morton v Colonial Mutual Life Assurance Society Limited [2013] FCA 681…
Seymour v Commissioner of Taxation [2016] FCAFC 18
Citation 6 (Para 3)

…er party for cross-examination. The sufficiency of procedural fairness depends on the facts and circumstances of each individual case: Kingham v Cole (2002) 118 FCR 289, [26]; Commissioner of Taxation v Grbich (1993) 31 ALD 97, 101-2 [25] and [30]. The Tribunal was mindful of the limitations of evidence received by v…
Morton v Colonial Mutual Life Assurance Society Limited [2013] FCA 681
Citation 7 (Para 25)

…996) 67 SASR 456 at 461-462 per Debelle J; Foster v Tolco Pty Ltd [2012] NSWSC 1395 at [42] per Adamson J. But, in Kingham v Cole [2002] FCA 45 at [26], 118 FCR 289 at 297, Heerey J somewhat critically said that the decision in Hayes “ appears to elevate a useful forensic technique to the status of a mandatory l…
Coffey LPM Pty Ltd v The Contaminated Sites Committee [No 2] [2013] WASC 98
Citation 8 (Para 5)

…s CJ). Cross‑examination may also accentuate conflict and, where many parties are involved, make proceedings quite unmanageable: Kingham v Cole [2002] FCA 45; (2002) 118 FCR 289.…
Dow v Royal Commission on the Pike River Coal Mine Tragedy [2012] NZHC 2404
Citation 9 (Para 41)

…28 R (D) v Secretary of State for Home Department [2006] EWCA Civ 143; [2006] 3 All ER 946 (CA) at [41]. 29 Kingham v Cole [2002] FCA 45.…
Towers and Anor and Optus Administration Pty Ltd and Anor [2011] AATA 832
Citation 10

…and Another (1989) 23 FCR 320 Australian Postal Corporation v Bessey (2001) 32 AAR 508; [2001] FCA 226 Kingham v Cole (2002) 118 FCR 289; [2002] FCA 45 Re Applicant and Deputy Commissioner of Taxation (1995) 41 ALD 683; [1995] AATA 95 Re Stoiche & Telstra Corporation Ltd (1995) 40 ALD 369 Re Karhani and Linfox A…
CHIEF PSYCHIATRIST and A (Mental Health) [2011] ACAT 21
Citation 11 (Para 9)

…ibunal Act 2008 [8] Proceedings under the Guardianship and Management of Property Act 1994 and the Utilities Act 2000 for example. [9] Kingham v Cole (2002) 118 FCR 289 at 295, O’Rourke v Miller (1985) 156 CLR 342 [10] See Applicant VEAL of 2002 v MIMIA [2005] HCA 72 for a discussion of this…
FZ v Commissioner for Children and Young People [2010] NSWSC 1144
Citation 12

…iginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Kingham v Cole [2002] FCA 45 Kioa v West [1985] HCA 81; (1985) 150 CLR 550 Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315 Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 Makita (Aust…
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229
Citation 13

…v Cole (2002) 190 ALR 679; [2002] FCA 45 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Knight v Maclean [2002] NSWCA 314 Koheler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 Liberato v R (1985) 159 CLR 507; [1985] HCA 66 Macdonald v ASIC (2007) 65 ACSR 299; [2007] NSWCA 304 Manly Council v Byrne […
Ferguson v Cole [2002] FCA 1411
Citation 14 (Para 14)

…d Practice Note would be a breach of procedural fairness. On 1 February 2002 Heerey J dismissed the application for relief ( Kingham v Cole [2002] FCA 45).…

See all citing cases →

Cases Cited

Ainsworth v Criminal Justice Commission [1992] HCA 10
Citation 1 (Para 15)

…atural justice: Mahon v Air New Zealand [1984] AC 808 at 820-821, Annetts v McCann (1990) 170 CLR 596 at 598, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. In Mahon , in a passage relied upon by senior counsel for the applicants, the Privy Council said: “The rules of natural justice that are germane to…
Annetts v McCann [1990] HCA 57
Citation 2 (Para 15)

…It was accepted that the Commissioner is bound by the rules of natural justice: Mahon v Air New Zealand [1984] AC 808 at 820-821, Annetts v McCann (1990) 170 CLR 596 at 598, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. In Mahon , in a passage relied upon by senior counsel for the applicants, the Privy…
Caltex Oil (Australia) Pty Ltd v Best [1990] HCA 53
Citation 3 (Para 10)

…e Commissioner to do indirectly what he cannot do directly: Wragg v New South Wales (1953) 88 CLR 353 at 387-8, Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516 at 522. Further, it was said that the Commissioner did not have an unfettered discretion to grant or refuse leave to cross-examine. Secondly, it was…
Australian Postal Commission v Hayes [1989] FCA 176
Citation 4 (Para 4)

…The high point of the authorities cited by senior counsel for the applicants was Australian Postal Commission v Hayes (1989) 23 FCR 320, which arose out of a hearing by the Administrative Appeals Tribunal of a claim under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Prior to the hearing the s…
National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29
Citation 5 (Para 1)

…ation of cross-examination was not an issue in that case. Further, in National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 the High Court set aside an order of the Full Court of the Federal Court which included a direction “that legal representatives of News be permitted to c…
Giannarelli v The Queen [1983] HCA 41
Citation 6 (Para 11)

…any civil or criminal proceedings in any Australian court, other than in proceedings for an offence against the Act: s 6DD, Giannarelli v The Queen (1983) 154 CLR 212. Orders…
Wragg v State of New South Wales [1953] HCA 34
Citation 7 (Para 10)

…r to impose. Paragraph 12 of the Practice Note is an attempt by the Commissioner to do indirectly what he cannot do directly: Wragg v New South Wales (1953) 88 CLR 353 at 387-8, Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516 at 522. Further, it was said that the Commissioner did not have an unfettered disc…
R v Clarence [1926] HCA 48
Citation 8 (Para 11)

…r s 96 conditional on the States performing acts of a kind which the Commonwealth does not have legislative power to require: Victoria v Commonwealth (1926) 38 CLR 399, Pye v Renshaw (1951) 84 CLR 58.…
McGuinness v Attorney-General of Victoria [1940] HCA 6
Citation 9 (Para 10)

…actice Note on two grounds. First it was put that at common law Royal Commissions have no coercive powers: McGuinness v Attorney-General for Victoria (1940) 63 CLR 73 at 98-99, Herald & Weekly Times Limited v Woodward [1995] 1 VR 156 at 159. Any coercive powers must be found in the relevant statute under which the…
[1951] HCA 8 [1951] HCA 8
Citation 10 (Para 11)

…performing acts of a kind which the Commonwealth does not have legislative power to require: Victoria v Commonwealth (1926) 38 CLR 399, Pye v Renshaw (1951) 84 CLR 58.…
[1984] AC 808 [1984] AC 808
Citation 11 (Para 15)

…It was accepted that the Commissioner is bound by the rules of natural justice: Mahon v Air New Zealand [1984] AC 808 at 820-821, Annetts v McCann (1990) 170 CLR 596 at 598, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. In Mahon , in a passage relied upon by senior counsel for the applicants, the P…

Legislation Cited

Royal Commissions Act 1902 (Cth) 6FA
2 mentions (from Para 1)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 5)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
1 mention (from Para 4)
Judiciary Act 1903 (Cth)
1 mention (from Para 5)
Petroleum Retail Marketing Franchise Act 1980 (Cth)
1 mention (from Para 11)
Workplace Relations Act 1996 (Cth)
1 mention (from Para 1)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V19 OF 2002

BETWEEN:	MARTIN LEONARD KINGHAM & ORS (according to the schedule attached) APPLICANTS
AND:	TERENCE RHODERIC HUDSON COLE FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	1 FEBRUARY 2002
WHERE MADE:	MELBOURNE

JUDGE:	HEEREY J
DATE:	1 FEBRUARY 2002
PLACE:	MELBOURNE