Lloyd, Peter Hugh v Costigan, Francis Xavier Esquire QC. Royal Commissioner on the Activities of the Federated Ship Painters & Dockers Union

[1983] FCA 142

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. WAG50 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Administrative Law - judicial review - decision by Royal Commissioner - motion that Commissioner answer interrogatories - alternatively further statement sought under s.13 of Judicial Review Act - powers of Court - whether particulars adequate - whether orders sought appropriate - nature of proceedings under Judicial Review Act - nature and function of Royal Commissioner

Administrative Decisions (Judicial Review) Act 1977 ss. 5, 13, 13(7), 13(11), Schedule 2 paras. (e) and (f).

HEARING

PERTH

#DATE 6:7:1983

JUDGE1

I heard this matter last evening and now deliver my reasons orally.

By this motion the applicant seeks an order that the respondent answer an extensive set of interrogatories. Alternatively, he asks that the respondent provide the information sought in the form of a statement additional to that already furnished in conformity with s.13 of the Administrative Decisions (Judicial Review) Act 1977, although it is said by the respondent that the section imposes no obligation on him in the particular circumstances of this matter.

The substantive application seeks a review of what is alleged to have been a decision by the respondent that he may, in the course of his inquiries as Royal Commissioner, call before him and examine on oath the applicant and certain other persons. The respondent disputes that there has been a decision susceptible of review under the Judicial Review Act but agrees that for the purposes of this interlocutory application it may be taken that a decision was made.

This matter has had a long history which I do not propose to traverse now, except to say that the substantive hearing has been listed to take place on 14 July. I accept that the rules of court relevant to an application under the Judicial Review Act are wide enough to empower the court to direct a respondent to answer interrogatories. See order 54 rule 5, read in conjunction with order 10. Whether such a course is appropriate will depend upon the circumstances of the particular application. When this matter was recently on appeal, the Full Court expressed the view that the mechanisms of interrogatories and discovery will often be inappropriate in proceedings under the Judicial Review Act and that the difficulties then facing the applicant could well be met by a statement by the respondent in accordance with s.13 of the Act.

It was in response to the implied invitation of the court that the respondent provided a statement "setting out the findings on material questions of fact referring to the evidence or other material on which those findings were based and giving the reasons for the decision". (s.13).

The applicant complains that this statement does little more than repeat what appears in the affidavit of Brendan William Harkin filed in this matter some months ago.

In suggesting that the respondent might furnish a statement pursuant to s.13, the Full Court was not called upon to consider whether the decision said to have been made by the respondent was indeed a decision to which the section applied. Although he has provided such a statement, the respondent contends that, in terms of s.13(11)(c), his decision is included in one or more of the classes of decisions set out in Schedule 2 to the Act and hence is not a decision to which s.13 applies. In particular the respondent contends that any decision is one "relating to the administration of criminal justice" (para. (e) of Schedule 2) and in particular is a decision in connection with the investigation of persons for an offence against a law of the Commonwealth (para. (e)(i)) and a decision under a law of the Commonwealth requiring the production of documents, the giving of information or the summoning of persons as witnesses (para. (e)(v)).

The respondent also relies on para. (f)(i) and (vi) but I need say nothing of that paragraph since I am of the opinion that, having regard to the respondent's terms of reference contained in letters dated 10 September 1980, 25 June 1981 and in particular 1 April 1982, the decision in question falls within para. (e).

In reply to this argument the applicant says that the respondent has in fact furnished a s.13 statement and that although the respondent has purported to provide the applicant with the statement on a 'without prejudice' basis, that label cannot stand in the way of the court exercising any powers it may have.

If the respondent has not made a decision to which s.13 applies, the court is not empowered to make an order for "an additional statement or 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" (s.13(7)).

The power does not arise merely because the respondent has furnished such a statement. Although in form it may be such a statement it is not one to which s.13 applies. Having regard to the caveats with which the respondent surrounded the statement, it is not appropriate to proceed as if there had been some waiver of s.13(11) even if such an approach be legally tenable.

Whether the court has an inherent power to make good inadequacies in such a document provided to it, is a matter I need not resolve. It is unnecessary to do so because I am not persuaded that the information sought by the applicant is reasonably required to enable the court to deal with the substantive application adequately and with justice to the parties.

The respondent's decision is challenged on several grounds. Some go to his jurisdiction and to his authority under the Royal Commissions Act and his letters patent. Other grounds are summed up by the applicant in this way:

". . . the Respondent has exceeded his power and erred in law because the Respondent has no evidence or other materials of a sufficiently probative nature to justify the making of the decision the subject of review".

Without in any way prejudging issues to be argued on the hearing of the substantive application, the reference to evidence may not be apt when it is the conduct of a Royal Commission that is under consideration. In no sense is that to suggest that a Royal Commissioner is not subject to review under the provisions of the Judicial Review Act when he has made a decision to which the Act applies; it is simply to acknowledge the particular nature of the functions performed by a Royal Commissioner, as I sought to point out in the decision I delivered on 25 March 1983.

The respondent has furnished an extensive statement of his reasons for making the decision he did and of the material before him. He is prepared, said his counsel, to stand by that statement and if it can be shown by reference to it that one of the grounds in s.5 of the Act has been established, there may be no answer to the applicant's claim for relief. If by reason of the failure of the respondent to provide any of the information sought by the applicant, the connection between the matters he proposes to inquire into and his terms of reference appears the more tenuous, that is a consequence the respondent must accept.

The conclusions which the respondent says he has drawn from the material before him are not beyond examination by the court, although there may be debate as to the proper criteria to be applied, whether it is relevance, bona fide belief or something else.

The many questions asked by the applicant in his proposed interrogatories do not persuade me that the respondent has not provided adequate particulars of the reason for his decision and of the material which led him to make that decision, adequate that is for the purpose of determining the application.

The information required by the applicant might well be appropriate if the respondent had made findings of fact, the correctness of which was in issue before an appellate court. But what is to be reviewed is the decision by the respondent to call certain witnesses before him. The respondent justifies that decision by reference to material that is detailed in the statement he has provided. To inquire into the existence of other material is to lose sight of the special and limited nature of the review provided by the Judicial Review Act and of the particular nature of the functions of a royal commissioner.

The bona fides of the respondent are not challenged. It is not said that he did not reach his decision on the basis of the material to which he has referred in his statement or that he made it on the basis of other material. The contention is that the material upon which he has relied is insufficient to support his decision. That is a matter capable of being tested by reference to the statement.

In my view, the applicant has not demonstrated that the orders sought are appropriate, even if there be power to make them and the motion will be dismissed.