Lloyd v Costigan

[1983] FCA 87

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. W.A. G14 of 1983
Judicial Review - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Morling J.
Fitzgerald J.

CATCHWORDS

JUDICIAL REVIEW - Decision by Royal Commissioner - Subpoena to give evidence and to produce material - Whether hearing should proceed by way of affidavit evidence - Power of Court to order compliance with a request under s.13 Administrative Decisions (Judicial Review) Act 1977.

APPEAL - Practice and procedure - Interlocutory orders - attitude of appellate court.

Administrative Decisions (Judicial Review) Act 1977, ss 5 & 13

HEARING

PERTH

#DATE 9:5:1983

ORDER

1. The appeal be dismissed with costs

JUDGE1

This is an appeal from an interlocutory order made by a single judge of this Court (Toohey J.) on 25 March 1983 in the course of proceedings under the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). His Honour dismissed, with costs, a motion by the applicant. It is desirable, before dealing further with the nature of the motion, to describe the events which led to the order which is now in question.

On 10 September 1980, Letters Patent were issued by the Governor-General to the respondent, Mr F.X. Costigan Q.C., pursuant to the Royal Commissions Act 1902. On 1 October 1980 the Governor of the State of Victoria issued further Letters Patent to Mr Costigan in the exercise of the prerogative of the Crown in right of that State. It may be noted immediately that, although the Commissions have been and are being conducted in conjunction, so that in some senses at least there is but a single enquiry, there is not one proceeding but two which are being conducted concurrently, one which is dependent upon and is being conducted under Commonwealth law, and the other which is dependent upon and is being conducted under the law of the State of Victoria: cf. Gallagher v. Attorney-General (Victoria), (High Court, unreported, reasons published 10 December 1982). The Victorian Commission and the Victorian legislation relevant thereto are for present purposes immaterial. It is with the Commonwealth Commission alone that the proceedings in this Court are concerned.

The scope of the Commonwealth Commission was extended by further Letters Patent dated 1 April 1982. There is no present need to record the terms of Mr Costigan's Commission. It is sufficient, for the moment, to describe the matters upon which he is required to report, as being the following:

1. Have members of the Federated Ship Painters and Dockers 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?

Mr Costigan has made interim reports. However the dates for reporting under each of the Letters Patent have been extended and the inquiries are continuing.

The applicant, Peter Hugh Lloyd, is a Western Australian legal practitioner and a member of the firm Dwyer and Thomas, Barristers and Solicitors of Perth. His firm has acted at all material times for each of Charles Catt and Son Pty Ltd, Alan C. Brooker, June A. Brooker, Donald Brooker, Kevin J.D. Bain, and Emma B. Bain "in transactions relating to West Australian Petroleum Permit 104", to quote from an affidavit filed by Mr Lloyd in these proceedings.

On 18 October 1982, the Commissioner issued a subpoena requiring Mr Lloyd "to attend . . . to give evidence at an Inquiry being . . . conducted by the Commissioner". A further subpoena was issued on the same day requiring Mr Lloyd "to attend . . . to give evidence at an Inquiry . . . being conducted by the Commissioner and also to bring . . . and produce . . . All notes, resolutions, correspondence, agreements, contracts, balance sheets, statements of account, auditors' reports, payment books, cash books, receipt books, bank books and any and all other like documents relating to Hammid Pty Ltd, Femor Pty Ltd, and/or Brunswick Oil N.L. and in respect of the period commencing the 1st of January 1972 to and including the date of service of the summons". Similar subpoenae were issued to Mr Kevin Bain on 19 November 1982.

Early in December 1982, a written submission apparently composed by senior counsel on behalf of Mr Lloyd was received by the Commissioner. The written submission contained sections dealing with what were described as the facts and, separately in relation to relevance and legal professional provilege, the law. A written submission in reply was made to the Commissioner by Counsel assisting the Commission. The Commissioner also heard oral submissions from senior counsel for Mr Lloyd and senior counsel assisting the Commissioner.

Largely, if not entirely, Mr Lloyd's initial attempt to resist attendance at the Commission was based on a contention that insufficient connection had been established by the material before the Commission between the Federated Ship Painters and Dockers Union or any member of that union, as such, and a project with which Mr Lloyd and his clients were associated.

The "facts" stated in the written submission by counsel for Mr Lloyd were subjected to a scathing attack by counsel for the Commissioner. They pointed out, inter alia, that the source of the "facts" was not stated and further that the voluminous material before the Commission had not been analysed by the appellant.

Despite their criticisms of MrLloyd's facts, Counsel assisting the Commission detailed at length (but not necessarily exhaustively) discrepancies which they contended existed between the "facts" as stated by Counsel for Mr Lloyd and evidence then before the Commission, which they summarised. But they added a rider. They said:

"10. Before that is done, however, it is necessary to point but that it is quite inappropriate to make submissions at this stage as to what the truth may be in respect of this matter. This Commission is conducting an enquiry for the purpose of determining the truth. It should not be asked, in the middle of its enquiry, to determine such matters when plainly further enquiry should be made. Accordingly, the matters hereafter set out are for the purpose of demonstrating that the "facts" are not, in many respects, supported by the present state of the evidence. It is not put that the counter-assertions are necessarily the final conclusions that should be reached by the Commission. Submissions as to final conclusions can only be made when all the evidence has been collected and analysed."

The Commissioner delivered his ruling on 8 December 1982. In effect, he said that he was relevantly investigating the facilities provided by the Union and its members "to people involved in what is commonly described as white collar crime" and that, for that purpose, he wished to inquire into the particular project with which Mr Lloyd and his clients had been associated, including the circumstances in which a person known to be a painter and docker had become involved in that transaction. He therefore persisted in his requirement that Mr Lloyd attend before the Commission.

These proceedings were commenced by Mr Lloyd on 9 December 1982. Because in the end result it will minimise the confusion, we set out the terms of the Application:

"Application to review the decision of the Respondent (hereinafter 'the Commissioner') that he may call before him pursuant to subpoenana 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') Application 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 person aggrieved by the decision or conduct because they involve

(a) An unwarranted interference with the professional practice of Messrs. Dwyer & Thomas, Solicitors of 95 St. George's Terrace, Perth, in which firm he is a partner, he and his firm having acted as Solicitors in the clients' transactions on behalf of those persons.

(b) An unwarranted interference with the private affairs of the company and persons above mentioned who are the clients of Messrs. Dwyer & Thomas. The grounds of the application are that:-

(a) The Commissioner does not have jurisdiction to make the decision.

(b) The Commissioner is authorised neither by the Royal Commissions Act nor his Consolidated Letters Patent to make that decision.

(c) The decision is an unauthorised exercise of power by the Commissioner.

(d) The decision involves an error of law by the Commissioner.

(e) The Commissioner has no evidence or other materials before him to justify the making of the decision.

(f) The decision is otherwise contrary to the law. PARTICULARS PURSUANT TO ORDER 54 RULE 2(2)

(i) Any enquiry into the clients' transactions is an enquiry into matters outside the Commissioner's consolidated terms of reference;

(ii) The Commissioner having received evidence over a long period there are still no materials before him which provide a real possibility that an enquiry into the clients' transactions will provide any information relevant to the consolidated terms of reference.

(iii) There is now no material before the Commissioner which can sustain a reasonable belief that an enquiry into the clients' transactions will provide any information relevant to the consolidated terms of reference. The applicant claims an order -

(a) quashing the decision;

(b) a declaration that the Applicant and Kevin J.D. Bain are not obliged to answer questions on oath before the Commissioner which relate to the clients' transactions;

(c) an injunction restraining the Commissioner from examining any person on oath or permitting any person to be examined on oath before him about the clients' transactions;

(d) further or other relief;"

On 10 December 1982, Mr Lloyd swore an affidavit "in support of an application to expedite the trial of this matter", following an undertaking by his counsel to the Commissioner that Mr Lloyd would co-operate in the expeditious disposal of the proceedings in this Court. Paragraphs 4 and 8 of that affidavit by Mr Lloyd are in the following terms:

"4. There is no suggestion that any question will be asked by Counsel assisting the Commissioner which would infringe upon the legal professional privilege of those clients.

8. 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 emerge from the submissions contained in the transcript as responded to by Counsel leading Counsel assisting the Commissioner."

(A change of heart occurred and a request was made on 4 January 1983 under s.13 of the Act but no response has yet been forthcoming.) Exhibits to the affidavit included the subpoenae, the written and oral submissions to the Commissioner, and the Commissioner's ruling.

A directions hearing took place on 20 December 1982 when 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. Directions were given relating to the filing of affidavits and the discovery of documents. On 24 December 1982, the dates for the filing of affidavits were varied, the order for discovery was vacated, and a direction was made confining the hearing on 11 February 1983 to the dispute which had arisen as to the obligation of the Commissioner to give discovery, particularly in relation to documents received in confidential session. The hearing of the substantive application was fixed on 24 December 1982 to take place on 2 March 1983. Subsequently, at the request of the parties, the February date was vacated and the date 2 March 1983 was assigned for the hearing of the motion by the applicant which has given rise to this appeal. That motion was the product of further interlocutory disputation arising out of the affidavits filed pursuant to the directions which had been given.

Mr Lloyd swore an affidavit on 17 January 1983 which was filed, pursuant to O.4, r.6 of this Court's Rules and by way of compliance with the consent directions which had been given, in support of the substantive relief sought by him in his Application under the Act. A version of the "facts", consisting for the most part of contentious assertions as to the effect of the evidence before the Commission, was put forward by Mr Lloyd. What he swore to did not, however, touch upon the matters concerning which the Commission sought to question him. Further, the affidavit revealed no basis for the assertions which he made as to the material which was available to the Commission. Mr Lloyd swore as follows:

"1. I am the abovenamed Applicant and a partner in the firm of Dwyer & Thomas, Barristers & Solicitors of 5th Floor, Prudential Building, 95 St. George's Terrace, Perth.

2. At all material times Charles Catt & Son Pty. Ltd., Allan C. Brooker, June A. Brooker, Donald Brooker, Kevin J.D. Bain and Emma E. Bain have been clients of my firm and I and other practitioners in the firm have been acting for each of them in transactions relating to Western Australian Petroleum Exploration Permit 104P.

3. I have read what I believe to be the relevant portions of the transcript of the Commission and the exhibit "A" to the Affidavit sworn by me on the 10th day of December 1982 and verily believe that they disclose the following material facts.

4. One Johanson, whilst a person whom I now understand to be a member of the Federated Ship Painters & Dockers Union ("the Union") and his associate one Wallace, became directors of and the only shareholders in Hamidan Pty Ltd on or about the 18th day of February 1981.

5. According to the evidence of R.D. Huston, on or about the 14th October, 1981 they transferred their shares to Winston Management Pty Ltd by transfers executed bearing that date or in any event not later than about the 12th February 1982.

6. According to the evidence of R.D. Huston, on or about the 12th February, 1982 Johanson and Wallace executed Resignations as Directors of Hamidan Pty Ltd effective from that date.

7. Messrs Middleton and Ireland executed Consents to Act as Directors of Hamidan Pty Ltd as from the 12th February 1982 and have acted as its Directors ever since that date.

8. Robin D. Huston has been the administrator and controller of the affairs of Hamidan Pty Ltd since it commenced business on the 31st day of July 1981.

9. It is four months since the Respondent began to investigate the relationship between Johanson, Huston and Hamidan Pty Ltd and there is no evidence that any of the following is in any way connected with a member or members of the Union or has ever been so connected, viz Winston Management or Messrs Middleton and Ireland.

10. Further, there is no evidence that Johanson or Wallace did any act as directors of Hamidan for or for the benefit of the Union or that they became its directors because they were well known to the members of or connected with the Union or that Johanson or Wallace acted other than in their capacity as private citizens independent of any Union influence.

11. Further, there is no evidence that Johanson or Wallace had any meaningful connection whatsoever with Hamidan Pty Ltd or Huston or Middleton and Ireland after the date of their Resignations as Directors.

12. Hamidan Pty Ltd has an interest in West Australian Petroleum Exploration Permit W.A. 104P.

13. On or after the 1st June, 1982 the clients of Messrs. Dwyer & Thomas referred to in paragraph 2 hereof invested in that Permit by entering into a Sub-Joint Venture Agreement with Hamidan Pty Ltd.

14. There is no evidence that any of those clients or myself or any member of my firm is in any way connected with a member or members of the Union or has ever been so connected or that our clients invested funds have ever been under the control of Huston or Hamidan Pty Ltd or the Union or any member of the Union or any associate of any member.

15. The possibility that any enquiry into the affairs of the clients of Dwyer & Thomas referred to in paragraph 2 hereof may provide information even indirectly relevant to the Respondent's terms of reference is fanciful.

16. There are no materials capable of sustaining a bona fide belief that such enquiries will assist the Respondent in relation to any matter within his terms of reference."

The Commissioner's response was an affidavit from Mr Harkin who is a solicitor employed by the Commonwealth Attorney-General's Department and who is and at all material times was "attached as an Instructing Solicitor to the Royal Commission". After describing and exhibiting copies of the Commissioner's Letters Patent, Mr Harkin continued:

"7. Pursuant to its Inquiry the Commission has been and is investigating investment by members of the public in conjunction with a company Hamidan Pty Ltd (Hamidan) into an oil and gas drilling fund. This related to a Western Australian exploration permit WA-104-P. 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 Hamidan. The Commission first received evidence in connection with these matters in public or private hearings in February 1982.

8. To the date of swearing of this Affidavit and in furtherance of its investigations referred to in paragraph 7 hereof the Commission has received evidence in numerous private and public hearings and has acquired a large amount of documentary and other evidence. The Commission's enquiries into Hamidan and associated persons and matters have proceeded in all Australian states and overseas. The Commission has received and expects to receive information and material from authorities overseas together with the results of enquiries made at its request by diplomatic agencies of Australia. Further, the Commission has received information from Australian authorities and agencies and individuals and private organizations. Other and numerous enquiries have been made by the Commission staff on the instruction of the Commissioner. In these ways, as well as by the examination of witnesses and documents, the Commissioner informs himself of matters germane to his enquiries.

9. In relation to the matters set out in paragraphs 4 to 14 inclusive of the Affidavit of the Applicant sworn the 17th day of January 1983 I say the evidence before the Commission is, inter alia, as follows:-"

Mr Harkin then proceeded over many pages to summarise the evidence before the Commission in relation to the matters which have led to its attempt to derive assistance from Mr Lloyd; that is to say, he stated his view of its effect. Having done so, he concluded his affidavit as follows:

"10. Evidence before the Commission establishes a connection between members of the Union and their associates and the Applicant and his clients Catt, Bain and Brooker. Further such evidence is relevant to the terms of reference of the Commissioner and that it is capable of sustaining a bona fide enquiry into the affairs of the Applicant and such clients."

Mr Lloyd complains that Mr Harkin's affidavit is oppressive. The reasons why it is said to be oppressive are set out in the orders sought by Mr Lloyd on this appeal. The appeal is primarily concerned with the issue thus raised and the question of whether the proceedings should go forward on affidavit or on pleadings with oral evidence at the trial. The orders sought by Mr Lloyd are as follows:

"(a) the Respondent pay the costs of this appeal;

(b) the Order of His Honour Mr Justice Toohey made on 20th December 1981 for the hearing of this application to proceed by way of evidence on affidavit be vacated;

(c) the affidavit of Brendan William Harkin sworn herein the seventh day of February 1983 be taken off the file because it is oppressive in that:

(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 Appellant of any worthwhile opportunity to cross-examine upon his particulars pursuant to Order 54, Rule 2(2).

(d) The Appellant file and deliver a Statement of Claim within ten days;

(e) The Respondent file and deliver a defence within ten days;

(f) The Respondent give discovery on oath within seven days of the close of pleadings and an inspection in Perth within seven days thereafter;

(g) The Appellant have leave to administer interrogatories for the examination of the Respondent (if so advised) within seven days of the last day for inspeciton of documents."

The question of discovery was not argued either below or before us and it is appropriate, whatever the outcome of the appeal otherwise, that no formal order be made with respect to paragraphs (f) and (g) of the orders sought but that, to that extent, the motion stand but be adjourned to a date to be fixed.

The principal steps in the argment for the appellant may be briefly stated as follows:

A. The Commissioner's inquiry is limited by the terms of the Letters Patent. B. The Commissioner's opinion as to the permissible scope of the inquiry cannot be conclusive. C. A decision by the Commissioner which is based upon an erroneous view of the permissible scope of the inquiry is reviewable under the Administrative Decisions (Judicial Review) Act. D. The next proposition can best be seen, in the first instance, by reference to passages in a written submission put before us by counsel for Mr Lloyd, namely: "20. To review the Royal Commissioner's decision it is necessary to know what 'materials' in the broadest sense are before him. It is submitted that a Royal Commissioner must be in a position to point to the 'materials' upon which his further inquiry is based. For the highest motives a Royal Commissioner might be drawn to investigate some matter which he saw as possible evidence of some form of tax avoidance but when the 'materials' before him were displayed the matter might be seen to be so remote from his terms of reference as to be beyond power.

21. The 'materials' may exist in the transcript of the proceedings or in documents which have come into his possession, or indeed in things which he has been told or he has seen. However, if his mind is activated by something which he has seen and of which he does not have a copy, or of which he has been told which is not recorded then it is necessary to know what it is. However, it is submitted that there must come a point where mere speculation and suspicion unconnected with any 'material' takes an inquiry beyond power.

23. Although there is no set order in which evidence must be adduced before a Royal Commission and the links in the evidence will usually be dealt with separately (Ross & Another v. Costigan & Another (1982) 41 A.L.R. 319 at 334) and whether one applies the test in that case at p.335 of a real as distinct from a fanicful possibility that a line of questioning may provide information directly or indirectly relevant to the matters which the Commission is required to investigate under its letters patent, or whether one applies the test in Ross v. Costigan (No. 2) (1982) 41 A.L.R. 337 at 352 'what the Commissioner can look to is what he bona fide believes will assist him in his inquiry', it is submitted that there must, in an action such as this, be opportunity to test what is fanciful or what is bona fide believed will assist, by reference to the 'materials'.

24. Only when the 'materials' in their primary form are matched against the terms of reference upon their proper construction has a party in the position of the Appellant any prospect of restraining a Royal Commissioner from compelling his attendance under what was s.5(1) of the Royal Commissions Act 1902 and is now s.3 of the Royal Commissions Amendment Act 1982. But for the Administrative Decisions (Judicial Review) Act a person in the position of the Appellant would have to test the point as an accused person." E. The Commissioner has failed to obey the obligation imposed upon him by s.13 of the Act. Notwithstanding a request under sub-s. 13(1), the Commissioner has failed to furnish "a statement in writing 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". F. The Commissioner's failure to furnish a statement under s.13 leaves the appellant in the position in which he must resort to the ordinary procedures of the Court for the definition of issues and the acquisition of information in the possession of the adverse party, the Commissioner. G. The affidavit of Mr Harkin is unsatisfactory. It does not lead to a proper definition of the issues and will impede any attempt by the appellant to ascertain the basis for the Commissioner's decision. Mr Harkin does not identify the material before the Commissioner but swears to his conclusion as to what that evidence discloses. Further, it must be hearsay for the solicitor to the Commission to say in this way what the Commissioner has looked at or heard and what of it has operated upon his mind to form his belief.

There are numerous respects in which the various propositions advanced for the appellant would fall for close scrutiny were we not of opinion that the orders sought by the appellant ought in any event be refused.

For example, upon analysis, the extracts quoted from the appellant's written submissions to this Court can be seen to contain assertions that:

(i) the Commissioner must have 'materials' as a basis for a decision to inquire into a particular matter;

(ii) a party wishing to challenge such a decision who denies that there are such materials is entitled to require the Commissioner to state what these materials are.

The first of these assertions cannot be accepted without qualification, if at all. There is a balance of interest involved. It is important that the Executive Government be able to inquire into matters affecting government, and do so effectively and speedily. It is also important that the power of inquiry be not used as an instrument of oppression of the citizen.

When Letters Patent are issued to a Commissioner to inquire into some matter, it becomes his duty to inquire into it. It is the lack of material which prompts the inquiry. If the Commissioner could never properly inquire into a particular aspect of a matter unless he was already in possession of materials which would support his action, in logic he would not be justified in starting his inquiry. We refrain from saying more because the question is central to the present proceedings but was not argued on this interlocutory appeal.

The second of the assertions likewise cannot stand in such broad terms. There is much to be said for the view that it is not open to a party simply to allege that a decision was made without basis and then to seek to use the process of the Court to attempt to make out a case and indeed to find out if his allegation has any foundation: cf W.A. Pines Pty Ltd v. Bannerman (1980) ATPR 40-163. Such a use of legal proceedings would tend to delay and frustrate the normal operations of a Royal Commissioner.

A person aggrieved by a decision of a Commissioner has the rights given by the Act, s.5. He may request reasons under s.13. We are satisfied that, if the request is refused or not complied with, the Court has power to order reasons to be given, certainly once there are proceedings commenced to review a decision. Such a construction plainly accords with the intent of the legislation. A person aggrieved may apply for an order of review on any of the grounds specified in the Act. If he does so, the onus of proving his case rests upon the applicant. He may have his statement under s.13, but the procedures of discovery and interrogatories will often be inappropriate. Generally, at least, the information to which a person is entitled under that Act is intended to be obtained in the manner which the Act prescibes.

The proceedings were conducted below on the footing that the Court cannot oblige the Commissioner to furnish a statement under s.13 of the Act and a similar assumption was persisted in by both parties in this Court. There may also, it seems, have been some misapprehension below as to the breadth of Mr Lloyd's contentions. He does not accept that the material before the Commissioner is as described by Mr Harkin and wishes to mount a challenge on that question as an element of his challenge to the Commissioner's decision insofar as it is related to the material before the Commission. That misapprehension has been referred to before us to support alleged difficulties which the judgment below would cause the appellant in the conduct of cross-examination at the trial.

In our opinion, nothing in what has been said or done by Toohey J. to date purports to limit or control the conduct of the trial in any way. We agree entirely with Toohey J.'s opinion that, for the purposes of the present proceedings the truth or accuracy of the material before the Commissioner is not relevant. Subject to that qualification, Toohey J. has not sought to fix the permissible limits of cross-examination nor for that matter has he sought to rule that some or any cross-examination will be permissible. That will be a matter for the trial judge.

The real difficulties in this matter seem to us to emerge from the lack of a statement under s.13 of the Act. Because a request for such a statement has not been complied with, Mr Lloyd complains that he is denied information which he says he needs and to which, he says, he is entitled. That has caused him to go fishing. His Application is in the most general terms and his affidavit pursuant to 0.4, r.6 of the Rules made assertions for which he now concedes he knows no basis, relying, according to his affidavit, on transcript of proceedings before the Commission. The Commissioner's adoption of a somewhat similar technique in Mr Harkin's affidavit in response has led to Mr Lloyd's complaints of oppression and unfairness, and interlocutory skirmishes including a foreshadowed fight concerning discovery and interrogatories. All this could likely have been avoided by a s.13 statement. It has been made plain that there is no attack upon the Commissioner's bona fides. The crux of Mr Lloyd's case is simply that the Commissioner has exceeded his power and erred in law because the Commissioner has no evidence or other materials before him to justify the making of the decision.

When considering the absence of a statement, it may not be irrelevant that the Commissioner did make a ruling which was recorded in the transcript and that, initially, Mr Lloyd was content not to have a s.13 statement and was satisfied that a statement was unnecessary. As the proceedings have progressed, the absence of a statement has been adverted to, but as a relatively subsidiary consideration, and no attempt has been made to oblige the Commissioner to furnish a statement.

In our opinion, the course which has been followed by the parties will, if continued, distort the operation of the review procedure. As we have already said, we are satisfied that the Court has a general power to order that a statement be furnished where there is a duty to furnish a statement. The contents of such a statement must, of course be governed by the nature of the decision and of the proceedings, where there are proceedings, in which it was given. It is not appropriate for us to order that a statement be furnished. There has been no application to the Court for such an order and no argument on the question. However we consider that the appellant is not entitled to rely upon the absence of a statement to support his claim to the orders refused by Toohey J.

That consideration aside, no basis whatever exists for interfering with the decision to refuse the orders sought by the appellant.

The only orders which have been made to date, including the dismissal of the appellant's motion, have been interlocutory orders of a procedural nature. The undesirability of appeals from such orders has previously been mentioned (see, e.g. Superstar Australia Pty Ltd v. Coonan and Denlay Pty Ltd (1981) 40 A.L.R. 183) and we add our support to such comments. There is particular force to be found in the objection to such appeals when there has been an undertaking to proceed expeditiously and there is obvious urgency in a final determination on the merits. If there are unsatisfactory features in the present position in the litigation, that is not a matter for which the appellant can escape responsibility. In any event, we are satisfied that there is no basis for a fear that the appellant will be prejudiced or otherwise suffer injustice.

In our opinion, the appeal should be dismissed with costs.