Lloyd, Peter Hugh v Costigan, Francis Xavier Esquire QC

[1983] FCA 46

Re: PETER HUGH LLOYD
And: FRANCIS XAVIER COSTIGAN ESQUIRE Q.C. ROYAL COMMISSIONER ON THE ACTIVITIES
OF THE FEDERATED SHIP PAINTERS AND DOCKERS UNION
No. WA G50 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Administrative Law - judicial review - motion to remove affidavit as oppressive and for application to proceed on pleadings - availability of remedy where decision-maker fails to provide statement of reasons - function of affidavit - whether contents hearsay.

Administrative Decisions (Judicial Review) Act 1977 ss.13(1), 13(2), 13(3), 13(4A), 13(5), 16.

Federal Court Rules Order 4r.6, Order 14 rr.8 and 9, Order 32 r.2, Order 54r.2.

Federal Court of Australia Act 1976 s.23

HEARING

PERTH

#DATE 25:3:1983

ORDER

1. The applicant's notice of motion dated 23 February 1983 be dismissed.

2. The applicant pay the respondent's costs.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977.

The decision sought to be reviewed is that of Mr. F.X. Costigan Q.C. as Royal Commissioner enquiring into the activities of the Federated Ship Painters and Dockers Union. The decision is identified in the application in these terms :

". . . that he may call before him pursuant to subpoena and examine on oath or cause to be examined on oath before him the Applicant 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")".

Alternatively, the application is one to review conduct :

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

The applicant is a legal practitioner; the others referred to are clients of his firm.

To understand the purpose for which the application is presently before the court, it is necessary to say something of the steps already taken in this matter.

On 20 December 1982 orders were made by consent that the hearing of the application proceed by way of evidence on affidavit and that the hearing be fixed for 11 February 1983. Other orders of a machinery nature were made relating to the filing of affidavits and the discovery of documents. The matter was again before the court on 24 December and further orders were made, again by consent. The effect of these orders was to vary dates for the filing of affidavits and for discovery and to confine the hearing on 11 February to the question of discovery. The reason for confining the hearing in this way was that issues had arisen as to the obligation of the Commissioner to give discovery, particularly in relation to documents received in confidential session. At the same time the hearing of the substantive application was fixed for 2 March 1983.

Subsequently the Court was asked by the parties to vacate 11 February for the hearing of the discovery issue and also to vacate 2 March for the hearing of the substantive application. The court agreed to these requests. The court was then asked to make 2 March available for the hearing of a motion by the applicant seeking orders of a procedural nature. It agreed to do so.

A hearing took place on 2 March of the applicant's motion. By this time affidavits had been filed, one by the applicant, another by Mr. Pynt a member of his firm, and a third by Mr. B.W. Harkin, a solicitor in the Commonwealth Attorney-General's Department attached as instructing solicitor to the Royal Commission.

The applicant sought various orders in his motion. Primarily he asked that the application proceed to a hearing, not on the affidavits, but on pleadings. He also sought to have Mr. Harkin's affidavit taken off the file on the ground that it was oppressive. It is as well to set out the particulars of oppressiveness :

"(i) most of it is inadmissible as being hearsay;

(ii) it states a large number of conclusions without detailing the evidentiary and other material said to support them;

(iii) if it stands as a pleading it does not raise, but conceals, the issues;

(iv) if it is allowed to stand as the evidence for the Respondent in this Application, it deprives the Applicant of any worthwhile opportunity to cross-examine upon his particulars pursuant to Order 54 Rule 6".

The respondent challenged the applicant's entitlement to any of the relif sought.

The manner of making an application under the Judicial Review Act is prescribed by Order 54 of the Federal Court Rules, read together with such other rules as may be relevant.

Order 54 r.2 provides that an application for an order of review made under the Judicial Review Act shall be substantially in the form provided in the first schedule. If the grounds for the application include an allegation of fraud or bad faith, the applicant must set out in the application particulars of that fraud or bad faith. The applicant is also required to file a statement of the terms of the decision the subject of the application and any statement with respect to that decision furnished pursuant to s.13 of the Judicial Review Act, or any other statement furnished by or on behalf of the person who made the decision purporting to set out findings of fact or a reference to the evidence or other material on which those findings were based or the reasons for making the decision.

Nothing in Order 54 prescribes the manner in which evidence is to be adduced in support of an application but Order 4 r.6 requires any applicant in the Federal Court to file and serve with the application "either an affidavit or a statement of claim, whichever is appropriate".

In the present case the applicant must be taken to have considered that an affidavit was appropriate because he filed one and consented to the hearing of the matter on affidavit evidence. In such a case there are other rules to which reference should be made. Order 14 r.9 empowers a party to require the attendance for cross-examination of a person making an affidavit. Order 14 r.8 empowers the court, where there is scandalous or oppressive matter in an affidavit, to "order that the affidavit be taken off the file". Order 33 r.2 permits the inclusion of hearsay evidence in an affidavit but only in the case of evidence "other than evidence on an issue at a trial and only when the circumstances are such that undue delay or inconvenience would otherwise be caused".

The basis of the application to substitute a hearing on pleadings and oral evidence for one on affidavit is, if I understand it correctly, that the affidavit filed on behalf of the respondent is objectionable and that whether it remains or is removed from the file there is in truth no issue joined between the parties. The applicant's position, it is said, is further worsened by the absence of a statement of reasons as required by s.13 of the Judicial Review Act. The absence of such a statement comes about in this way. In an affidavit filed at the time this application was commenced the applicant, Mr. Lloyd, deposed :

"It has not been thought proper at this time to make application to the Commissioner for a statement of the facts upon which he bases his decision, pursuant to Section 13 of the Administrative Decisions (Judicial Review) Act because it is thought that any relevant facts sufficiently emerged from the submissions contained in the transcript as responded to by Counsel leading Counsel assisting the Commissioner".

The reference to "transcript" was to a record of the proceedings before the Commissioner leading to the decision and the conduct complained of by the applicant.

In a later affidavit Mr. Pynt deposed to the fact that on 4 January 1983 the applicant, by written notice to the Commissioner pursuant to s.13(1) of the Judicial Review Act, requested a statement in writing setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision made by the Commissioner. There had been no reply to that request.

Counsel drew attention to what was said to be an hiatus in the Judicial Review Act. Reference has already been made to s.13(1) which imposes upon a decision-maker an obligation to furnish reasons for the decision and relevant material if asked to do so. Section 13(2) specifies a time limit of 28 days for compliance with this obligation. On receipt of such a request the decision-maker, if of the opinion that the person who made the request was not entitled to make it, may within 28 days give to the person concerned notice in writing of his opinion or he may apply to the court under s.13(4A) for an order declaring that the person who made the request was not entitled to make it. Sub-section (4) also enables a person who has received a notice under sub-s.(3) to apply for an order declaring that he was entitled to make the request.

Sub-section (5) permits a person to whom a request is made pursuant to sub-s.(1) to refuse to prepare and furnish a statement if the request was not made within the times prescribed.

As I read the components of s.13, sub-ss.(3) and (4A) are concerned with the entitlement of a person to request a statement of reasons pursuant to sub-s.(1). Sub-section (5) is concerned only with justification to refuse that statement if the request is made out of time.

Sub-section (7) empowers the court to order a decision-maker who has furnished a statement pursuant to sub-s.(1) to provide "an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons".

But what if a decision-maker, faced with a request under s.13(1), simply fails to provide any statement of reasons, does not himself invoke sub-s.(4A) and does not give notice under sub-s.(3)? The Act does not, in express terms, provide for such a contingency. Is it possible to spell out a remedy from the provisions of the Judicial Review Act or any other Act? It is unnecessary for me to express a concluded view as the point was not argued. But as it is of some importance I shall say something about it.

Section 16 of the Judicial Review Act confers upon the court, on an application for an order of review, the power to make orders relating to a number of matters. Sub-section (1)(d) specifies :

"(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties".

It has been suggested that s.16 is concerned with the powers of the court when disposing of an application. It speaks of an order quashing or setting aside a decision; remitting a matter for further consideration; and declaring the rights of the parties. In this respect it may be significant that the power to stay proceedings under a decision the subject of review is conferred, not by s.16, but by s.15.

On the other hand para.(d) is in the widest terms and sub-s.(4) of s.16 makes it clear that orders made under that section are not final.

Although s.23 of the Federal Court of Australia Act is a source of power to make interlocutory orders when such a power is absent in a statute concerned with a specific subject matter (see Rifki v. Minister for Immigration and Ethnic Affairs - unreported decision of the Federal Court delivered 3 February 1983 and cases mentioned therein), s.13 of the Judicial Review Act is formulated in such detail it is not easy to treat failure to comply with s.13(1) as no more than a procedural defect in the proceedings before the court.

The point is one requiring decision but as its resolution is not essential for the disposition of the present motion and as it was not argued, that must await another day. If there is indeed an hiatus in s.13 as counsel suggested, it requires early attention by the legislature.

The question still remains - is the affidavit filed on behalf of the respondent so open to objection that the only way of ensuring that the issues between the parties are properly raised and ventilated is to remove the affidavit from the file and require pleadings?

Mr. Harkin's affidavit is a lengthy document running to more than 50 pages. Having recited formal matters concerning the commission's terms of reference and the nature of its enquiries, it proceeds to set out with great particularity the evidence before the commission said to be relevant to this application.

Relevance is determined by the commission's terms of reference. In the applicant's submission, the questions for the Commissioner, as distilled from the terms of reference, are as follows :
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?

Counsel for the respondent did not demur at this formulation and for present purposes it may be taken to be a reasonable statement of the criteria against which relevance is to be assessed.

According to Mr. Harkin's affidavit the commission has been and is investigating investment by members of the public in connection with a company which is named but which I shall simply refer to as "the company". I do so because much, if not all, of the evidence given to the Commissioner on matters touching this application were given in confidential session. Criminal proceedings are pending against one of the persons concerned with the management of that company.

In paragraph 7 of his affidavit Mr. Harkin deposes:

"Further to that investigation the Commission has received evidence of the involvement of the Applicant and the firm of solicitors of which he is a partner, Dwyer & Thomas, and its clients in the affairs of (the company)".

Counsel for the applicant complained :

"One could not have a broader statement less possible of particularization unless capable of being challenged when expressed in that form".

If the affidavit went no further, the complaint would be justified; but it continues for many pages and whatever objection may be taken to its contents, it can hardly be said to lack detail.

Having regard to the territory over which the applicant's submissions ranged, it must be stressed that the court is presently faced with a motion that touches upon procedural matters only. Questions touching the precise character of the decision made by the Commissioner, whether it was a decision properly within his terms of reference and whether there was evidence to support the making of the decision will arise for determination on the substantive hearing of this application. But they do not arise at this stage and I decline any invitation to express views on these matters. In particular it would not be appropriate to analyse Mr. Harkin's affidavit with a view to determining whether they show a connection between the applicant and his clients that may truly be said to bear upon the activities of the company being investigated by the Commissioner. If, on the hearing of the application, the applicant can demonstrate that on no reasonable view of the matter has any such connection been revealed by the affidavit of Mr. Harkin or by any other material properly before the Court, he may well be entitled to relief under the provisions of the Judicial Review Act.

It is important not to lose sight of the fact that the applicant's motion is substantially aimed at the destruction of Mr. Harkin's affidavit so as to pave the way for a hearing on the pleadings. As already mentioned, objection is taken to that affidavit as oppressive for a number of reasons. The first of those reasons asserts that most of the affidavit is inadmissible as being hearsay. Counsel for the respondent submitted that the hearsay evidence in an affidavit authorised by Order 33 r.2 was "other than evidence on an issue at a trial" (r.2(1)), and that the implied prohibition on hearsay evidence in other circumstances operated only when there was before the court a trial with issues to be determined in which the presentation of evidence and findings on that evidence were important. In effect counsel was submitting that an application under the Judicial Review Act does not involve a trial and that it was not appropriate to seek to apply Order 33 r.2 and to argue therefrom that hearsay material could not be contained in an affidavit intended to be the evidence upon which a party relies.

In my view the language of the rules is against that submission, simply because Order 1 r.4 defines "trial" to include "any hearing other than an interlocutory hearing". Viewed in that light Order 33 r.2 is consistent with the approach taken in the rules of Supreme Courts which permit the use of hearsay material in affidavits filed in interlocutory proceedings but preclude it on the substantive hearing of the matter. In that respect it seems to me not to matter whether the evidence to be presented at the hearing is oral or on affidavit.

But I question whether Mr. Harkin's affidavit does in truth contain hearsay evidence. Certainly it contains reference to many facts of which he cannot have and does not purport to have any personal knowledge. But the truth of those facts is not an issue in this application, nor can it be. As I see it, the object of Mr. Harkin's affidavit is not to demonstrate the veracity of the material presently before the Commissioner. It is to indicate the nature and extent of that material so as to justify the decision of 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 applicant and Mr. Bain in relation to transactions by those persons and companies referred to as clients of the applicant. The matters deposed to by Mr. Harkin are not put forward as primary facts. They are put forward to identify the material before the Commissioner. Seen that way, the material in Mr. Harkin's affidavit is not hearsay evidence. It is direct evidence of what the Commissioner has heard and which has led him to make the decision (if there be a decision) which the applicant seeks to have reviewed by this court. See Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965 at 970, Gabriel v. Williamson (1979) 1 N.T.R. 6 at 13.

It is unnecessary to refer in any detail to recent decisions that deal with the nature and scope of the enquiry conducted by a royal commissioner and, as it happens, the royal commissioner who is the respondent to these proceedings. See Ross v. Costigan (1982) 41 ALR 319; Ross v. Costigan (No.2) (1982) 41 ALR 337. I would however cite one short passage from the judgment in the second of those cases :

"We should add that 'relevance' may not strictly be the appropriate term; what the Commissioner can look to is what he bona fide believes will assist him in his enquiry". (at p.351).

Although I have used the word "relevance" earlier in these reasons, I have done so in order to deal with the applicant's submissions. I am not to be taken as holding that on the hearing of this application "relevance" is the touchstone on which Mr. Harkin's affidavit is to be tested.

There is nothing to be gained by tracing through the affidavit with a view to making an assessment of the extent to which the material it contains shows a link between the applicant and his clients on the one hand and the company on the other. Indeed to do so might well be to prejudge a matter lying at the heart of the applicant's case against the respondent.

Objection is also taken to the affidavit on the ground that it states a large number of conclusions without detailing the evidentiary and other material said to support them. Again this objection seems to me to suffer from the defect that it assumes the role of the affidavit to be the assertion of facts relating to the company and those said to be connected with it and further assumes that what are described as "conclusions" are asserted as matters of fact which the applicant cannot challenge, or at any rate has difficulty in challenging, because they do not sufficiently identify the material from which the conclusions are drawn.

It may be that some of the conclusions are argumentative but again they are put forward to demonstrate why the Commissioner has taken the course that he has in regard to the applicant and his clients. To the extent that it becomes material to do so, I see no reason why the Court, on the hearing of this application, cannot decide for itself whether the conclusions asserted may fairly be drawn from the material available.

The applicant also complains that if Mr. Harkin's affidavit stands as a pleading, "it does not raise, but conceals, the issues". I do not accept this. The application is based on various grounds, in particular that the Commissioner lacks jurisdiction to make the relevant decision, that he is authorised neither by the Royal Commissions Act nor by letters patent to make that decision, that the decision is an unauthorised exercise of power, that it involves an error of law, that the Commissioner has no evidence to justify the making of the decision and that the decision is otherwise contrary to the law. This is further particularised pursuant to Order 54 r.2(2) of the Federal Court Rules.

It may be that Mr. Harkin's affidavit is unduly long and detailed. On the other hand the Commissioner may well argue that he has put before this Court with great particularity the evidence and material before him and that he has done so to demonstrate the course that the enquiry has taken, so far as it concerns this matter, and what has led him to make the decision he has made. In the end it may prove to be the case (and I express no view on this) that some of the material in the affidavit is unhelpful. But it would be a lengthy and, I think, pointless exercise to embark upon any process of dissection when it is not the truth of the matters contained in the affidavit that is in issue before this court. It is the existence of facts and material before the Commissioner that is the material consideration.

The final complaint about the affidavit is that if it is allowed to stand "as the evidence for the Respondent in this Application, it deprives the Applicant of any worthwhile opportunity to cross-examine upon his particulars pursuant to Order 54 Rule 6". Counsel indicated that the correct reference was to Order 54 r.2(2) which provides that if the grounds of application include an allegation of fraud or bad faith, "the applicant shall set out in the application particulars of the fraud or bad faith on which he relies". I find this ground of complaint somewhat puzzling. The application does not in express terms assert either fraud or bad faith on the part of the respondent. But it does specify particulars said to be given pursuant to Order 54 r.2(2). Those particulars however assert no more than that any enquiry into the transactions of the applicant's clients is an enquiry into matters outside the terms of reference; that the Commissioner has no materials before him which provide a real possibility that an enquiry into these transactions will provide any information relevant to the terms of reference; and that there is now no material before the Commissioner which can sustain a reasonable belief that an enquiry into those transactions will provide any information relevant to the terms of reference.

But that seems to me to say little if anything more than has already been said by the applicant. The attack upon the Commissioner's actions, so far as they relate to the applicant, is essentially that the Commissioner is enquiring into a matter which has not and cannot have any relevance to his terms of reference. The applicant's concern appears to be that although Order 14 r.9(1) of the Rules permits a party to require the attendance for cross-examination of a person making an affidavit, it would serve no useful purpose for the applicant to cross-examine Mr. Harkin since, for the most part, he deposes to matters of which he has no personal knowledge.

But, in my view, that submission falls into the same error of which I have already spoken. It would not be appropriate for this Court to allow cross-examination of Mr. Harkin or of anyone else, for that matter, upon the truth of the matters referred to in the affidavit. That is not a consideration for this Court. The furthest cross-examination could go would be to demonstrate that in fact the Commissioner did not have before him material referred to in the affidavit. But there is no suggestion of this. Once again the applicant fails to distinguish between the veracity of the material before the Commissioner and the existence of that material.

The applicant has failed to satisfy the court that Mr. Harkin's affidavit should be taken off the file. He has failed to persuade me that there is good reason why the application should not proceed to a hearing in terms of the affidavits presently filed and any other affidavits that may be filed pursuant to any order of this court now in existence or that may be made. The question of discovery remains to be resolved; subject to that resolution the matter should proceed to hearing.

It follows that the relief sought in the notice of motion should be denied. The motion will be dismissed with costs.