Lloyd, Peter Hugh v Costigan, Francis Xavier Esq Q.C. Royal Commission on the Activities of the Federated Ship Painter & Dockers Union

[1983] FCA 268

Re: PETER HUGH LLOYD
And: FRANCIS XAVIER COSTIGAN ESQUIRE Q.C. ROYAL COMMISSIONER ON THE ACTIVITIES
OF THE FEDERATED SHIP PAINTERS AND DOCKERS UNION (1983) 76 FLR 279
No. WAG 40 of 1983
Administrative Law - Crown

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Lockhart(1) and Morling(1) JJ.

CATCHWORDS

Administrative Law - Judicial Review - Decisions by Royal Commissioner - Issue of subpoenas - Whether questions proposed to be asked are within terms of reference - Whether probative material concerning subject-matter needed to justify the issue.

Administrative Decisions (Judicial Review) Act 1977

Crown - Royal Commissions - Power of Royal Commissioner - Summonsing witnesses and proposing to question on oath - Judicial review of decision to investigate - Whether decision within scope of inquiry.

HEADNOTE

Held: 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.

Ross v. Costigan (No. 2) (1982) 64 FLR 55, applied.

HEARING

Perth, 1983, October 11, 12. #DATE 12:10:1983

APPEAL.

Appeal from the decision of the Federal Court of Australia (Toohey J.) refusing an application made pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 to review the decision of a Royal Commissioner to subpoena and examine a witness.

G.N. Cohen, for the appellant.

M.C. Lee, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Dwyer & Thomas.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Cron Solicitor.

B.A.G.

ORDER

1. The appeal be dismissed.

2. Peter Hugh Lloyd pay to Francis Xavier Costigan his costs of the appeal.

Appeal dismissed with costs.

JUDGE1

This is an appeal from a decision of a judge of this Court (Toohey J.) refusing an application made pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Act") by Mr Peter Hugh Lloyd, a solicitor in practice in Perth. The respondent is Mr F.X. Costigan Q.C. who is a Royal Commissioner carrying out an inquiry into the activities of the Federated Ship Painters and Dockers Union. The inquiry is being held pursuant to letters patent issued by both the Commonwealth and Victorian Governments. The application sought the review of a decision described as:

" . . . the decision of the Respondent (hereinafter 'the Commissioner') that he may call before him pursuant to subpoena and examine on oath or cause to be examined on oath before him the appellant and Kevin J.D. Bain in relation to transactions by Charles Catt & Son Pty. Ltd., Alan C. Brooker, June A. Brooker, the said Kevin J. D. Bain and Emma E. Bain (hereinafter 'the clients' transactions)".

The application also sought the review of what was described as:

" . . . conduct in which the Commissioner proposes to engage whereby he proposes to receive evidence in relation to the clients' transactions".

The application has had a lengthy history. It was filed on 9 December 1982 and has been before Toohey J. on more than one occasion on interlocutory applications. An appeal by the appellant from one of the interlocutory orders made by Toohey J. was dismissed by the Full Court of this Court on 9 May 1983.

On 18 October 1982 the respondent issued to the appellant two subpoenas returnable on 26 October 1982. One was a subpoena ad testificandum and the other was a subpoena duces tecum to produce:-

"All notes, resolutions, correspondence, agreements, contracts, balance sheets, statements of account, auditor's reports, payment books, cash books, receipt books, bank books and any and all other likely documents relating to Hamidan Pty. Ltd., Fenmore Pty. Ltd., and/or Brunswick Oil NL and in respect of the period commencing the 1st January 1972 to and including the date of service of this summons".

In obedience to the subpoenas the appellant appeared before the respondent. He was represented by counsel who submitted that the respondent should not require the appellant to give evidence relating to Conquistador Mining and Exploration N.L. of which Hamidan Pty. Ltd. was said to be a wholly owned subsidiary. However the respondent gave a ruling on 8 December 1982, the effect of which was that he proposed to continue with his inquiries and to require the appellant to give evidence. Thereupon the application under the Act was commenced.

The application was expressed to relate to a decision of the respondent concerning both the appellant and Mr Bain. Mr Bain was not made a party to the application. Toohey J. held, correctly in our opinion, that in these circumstances he could not review any decision that Mr Bain should give evidence as the appellant Lloyd was not a person who was aggrieved by the decision that Bain should give evidence. No challenge was made to this finding of Toohey J. and accordingly it is unnecessary to consider the respondent's decision in so far as it affects Mr Bain.

During the course of proceedings before Toohey J. an application was made to amend the application for an order for review. The appellant was permitted to add an additional ground but the learned Judge declined to allow amendments raising what was described as "an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made." His Honour refused to permit this amendment because it would have introduced questions of the bona fides of the respondent when the appellant had consistently acknowledged from the outset of the proceedings that those bona fides were not in issue. The refusal to permit this amendment was made the subject of some of the grounds of the appeal to this Court but these grounds were abandoned at the hearing. We should state that before us counsel for the appellant disclaimed any attack on the bona fides of the respondent.

The principal argument advanced in support of the appeal was that the learned trial judge erred in rejecting an argument put to him that there was no evidence or other material before the respondent to justify his making a decision to call the appellant to give evidence before him. The matter proceeded before Toohey J. upon the basis that the questions for the Commissioner to determine having regard to his terms of reference were:

1. Have members of the union been engaged in illegal activities?

2. Have persons associated with the union or its members been engaged in illegal activities?

3. Have persons been using the union or its members for illegal activities?

On the hearing of the appeal counsel for the appellant contended that this formulation of the questions arising under the terms of reference was too wide. But an examination of the letters patent shows that this is not so. As Toohey J. pointed out in his reasons, the terms are very wide indeed. They require the respondent to inquire into the alleged illegal activities of persons associated with the union or any of its members. The terms of reference do not confine those illegal activities to activities having some association with the union. The illegal activities of an associate of the union may be inquired into even if those activities might appear to be remote from the affairs of the union itself.

However as Toohey J. pointed out in his judgment, since it is the activities of the union with which the respondent is primarily concerned, 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 there would be little justification for proceeding further with that line of inquiry. But, as the learned trial judge pointed out, before that stage is reached extensive investigation may be required.

There was evidence before Toohey J. that Hamidan Pty. Ltd. may have had some association with the union or its members. The appellant contended that at the time he or his clients first became involved in the affairs of Hamidan Pty. Ltd. that company no longer had any association with the union or its members. But as Toohey J. correctly pointed out, the making of such an assertion by the appellant provided no answer to the respondent's right to pursue his investigation. The respondent was entitled to test the appellant's assertion. In this respect it is to be observed that there was evidence before the learned trial judge that two members of the union had been directors of Hamidan Pty. Ltd. There was also evidence that Mr Lloyd's clients referred to in the subpoena had, at some stage, become what was described as "sub-joint venturers and contributors" to a venture undertaken by Hamidan Pty. Ltd.

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. Indeed, material probative of the fact that there was an association between union members and Hamidan Pty. Ltd. and the further fact that this ceased at some time after which other activities were undertaken by that company might well call for inquiry by the Commissioner in the discharge of his duties. Furthermore, as Toohey J. pointed out in his reasons, the respondent has not made a finding which may be tested against the presence or absence of relevant evidence. He is making an inquiry. Even the absence of evidence cannot properly inhibit the making of such an inquiry: See Ross v Costigan (No. 2) (1982) 41 A.L.R. 337 at 351.

We agree with Toohey J. that it is not possible to say that questions that the respondent proposes to ask of the appellant bearing upon a company of which members of the union were directors cannot be said to be within his terms of reference. In this respect Toohey J. referred to a passage in the judgment of Ellicott J. in Ross v Costigan (1982) 41 A.L.R. 319 at 334 with which we also agree. His Honour there said:

"Where broad terms of reference are given to it, as in this case, the Commission is not determining issues between parties but conducting a thorough 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."

Considerations of the kind referred to by Ellicott J. make it impossible to say in the present case that the respondent does not have authority to inquire into the matters into which he proposes to inquire because those matters are not within his terms of reference.

Counsel for the appellant presented a further argument that the trial judge erred in admitting into evidence a statement furnished by the respondent pursuant to s.13 of the Act. This statement was furnished by the respondent without prejudice to his contention that he was not obliged by the section to furnish it. The contents of the statement were not relied upon by the trial Judge in arriving at his decision. It is plain that the other material before his Honour disclosed that members of the union had been directors of Hamidan Pty. Ltd. and that the company may have been engaged in illegal activities. Counsel for the appellant argued that, notwithstanding this, there was nevertheless no evidence that at the time the appellant's clients had any association with the company any alleged illegal activity was then being engaged in or that the union's association with the company then continued. Whether or not this was so at the time the respondent made the decisions under challenge he was not debarred from making further inquiry into every aspect of the matter.

The existence of probative material is relevant when the respondent is making findings and recommendations to the Government. But the exercise of the inquisitorial powers vested in the respondent does not require the presence of such material. Rather its existence can generally be determined only after the inquisitorial power has been exercised. A Royal Commissioner must, of course, always act in good faith within the terms of his commission.

In view of our conclusions on the arguments advanced on behalf of the appellant we do not find it necessary to determine the question raised by the notice of contention given by the respondent pursuant to Order 52 Rule 22 of this Court's Rules. The substance of this notice is that the respondent proposed to contend that the trial Judge erred in deciding that the respondent's actions were susceptible of review under the Act.

We would dismiss the appeal with costs.